Expiration of the

Convention of 1824 be

tween the United

§ 171. In the mean time, the period of ten years, established by the 4th article of the Convention between the United States and Russia, during which the vessels of both nations might frequent the bays, creeks, harbors, States and Russia. and other interior waters on the north-western coast of America, had expired. The Russian government had chosen to consider that article as the only limitation of its right to exclude American vessels from all parts of the division of the coast, on which the United States stipulated to form no establishments; disregarding entirely the first article of the Convention, by which all unoccupied places on the north-western coast were declared free and open to the citizens or subjects of both parties - American ✦ vessels were consequently prohibited by the Russian authorities from trading on the unoccupied parts of that coast, north of the parallel of 54th degree 40 minutes. The American government protested against this prohibition, and at the same time, proposed to the Russian government to renew the stipulations of the Convention of 1824, for an indefinite period of time. (a)

In the letter of instructions from the Secretary of State, Mr. Forsyth, to the American Minister at Petersburg, it was stated that if the 4th article was to be considered as merely applicable to parts of the coast unoccupied, then it merely provided for the temporary enjoyment of a privilege which existed in perpetuity, under the law of nations, and which had been expressly declared so to exist by a previous article of the Convention. Containing, therefore, no provision not embraced in the preceding article, it would be useless and of no effect. But the rule in regard to the construction of an instrument, of whatever kind, was, that it should be so construed, if possible, as that every part may stand.

If the article were construed to include points of the coast already occupied, it then took effect, thus far, as a temporary exception to a perpetual prohibition, and the only consequence of the expiration of the term to which it was limited, would be the immediate and continued operation of the prohibition.

It was still more reasonable to understand it, however, as intended to grant permission to enter interior bays, &c., at the mouths of which there might be establishments, or the shores of which might be, in part, but not wholly, occupied by such estab

(a) Greenhow, 343-361.

lishments, thus providing for a case which would otherwise admit of doubt, as without the 4th article it would be questionable whether the bays, &c., described in it belonged to the first or second article.

In no sense could it be understood as implying an acknowledgment, on the part of the United States, of the right of Russia to the possession of the coast above the latitude of 54 degrees 40 minutes north. It must be taken in connection with the other articles of the Convention, which had, in fact, no reference whatever to the question of the right of possession of the unoccupied part of the coast. In a spirit of compromise, and to prevent future collisions or difficulties, it was agreed that no new establishments should be formed by the respective parties to the north or south of a certain parallel of latitude, after the conclusion of the agreement; but the question of the right of possession beyond the existing establishments, as it subsisted previously to, or at the time of the conclusion of the Convention, was left untouched. The United States, in agreeing not to form new establishments to the north of latitude 54 degrees 40 minutes north, made no acknowledgment of the right of Russia to the territory above that line. If such an admission had been made, Russia, by the same construction of the article, must have acknowledged the right of the United States to the territory south of the designated line. But that Russia did not so understand the article, was conclusively proved by her having entered into a similar agreement in a subsequent treaty (1825) with Great Britain; and having, in fact, acknowledged in that instrument the right of the same territory by Great Britain. The United States could only be considered as acknowledging the right of Russia to acquire, by actual occupation, a just claim to unoccupied lands above the latitude 54 degrees 40 minutes north; and even this was mere matter of inference, as the Convention of 1824 contains nothing more than a negation of the right of the United States to occupy new points within that limit.

Admitting that this inference was just, and was in contemplation of the parties to the Convention, it would not follow that the United States ever intended to abandon the just right acknowledged by the first article to belong to them under the law of nations, i.e. to frequent any part of the unoccupied coasts of North America, for the purpose of fishing or trading with the natives.

All that the Convention admitted was an inference of the right of Russia to acquire possession by settlement north of 54 degrees 40 minutes north. Until that actual possession was taken, the first article of the Convention acknowledged the right of the United States to fish and trade as prior to its negotiation. This was not only the just construction, but it was the one both parties were interested in putting upon the instrument, as the benefits were equal and mutual, and the object of the Convention, to avoid converting the exercise of the common right into a dispute about exclusive privilege, was secured by it.

These arguments were not controverted by the Russian cabinet, which, however, declined the proposition for a renewal of the engagements contained in the 4th article; and the matter still rests on the same footing. (b)

Claim of

States to the

§ 172. The claim of the United States to the territory the United between the Rocky Mountains and the Pacific Ocean, Oregon ter- and between the 42d degree and 54th degree and 40 ritory. minutes of north latitude, is rested by them upon the following grounds:

1. The first discovery of the mouth of the river Columbia by Captain Gray, of Boston, in 1792; the first discovery of the sources of that river, and the exploration of its course to the sea by Captains Lewis and Clark, in 1805-6; and the establishment of the first posts and settlements in the territory in question by citizens of the United States.

2. The virtual recognition by the British government of the title of the United States in the restitution of the settlement of Astoria or Fort George, at the mouth of the Columbia River, which had been captured by the British during the late war between the two countries, and which was restored in virtue of the 1st article of the treaty of Ghent, 1814, stipulating that "all territory, places, and possessions whatever, taken by either party from the other during the war," &c., "shall be restored without delay." This restitution was made, without any reservation or exception whatsoever, communicated at the time to the American government.

3. The acquisition by the United States of all the titles of Spain, which titles were derived from the discovery of the coasts

(b) Mr. Forsyth's letter to Mr. Dallas, Nov. 3, 1837: Cong. Doc. Sess. 1838-9, i. 36. Greenhow, 361–363.

of the region in question, by Spanish subjects, before they had been seen by the people of any other civilized nation. By the 3d article of the treaty of 1819, between the United States and Spain, the boundary line between the two countries, west of the Mississippi, was established from the mouth of the river Sabine, to certain points on the Red River and the Arkansas, and running along the parallel of 42 degrees north of the South Sea; His Catholic Majesty ceding to the United States "all his rights, claims, and pretensions, to any territories east and north of the said line; and" renouncing "for himself, his heirs and successors, all claim to the said territories for ever." The boundary thus agreed on with Spain was confirmed by the treaty of 1828, between the United States and Mexico, which had, in the mean time, become independent of Spain.

4. Upon the ground of contiguity, which should give to the United States a stronger right to those territories than could be advanced by any other power. "If," said Mr. Gallatin, "a few trading factories on the shores of Hudson's Bay have been considered by Great Britain as giving an exclusive right of occupancy as far as the Rocky Mountains; if the infant settlements on the more southern Atlantic shores justified a claim thence to the South Seas, and which was actually enforced to the Mississippi; that of the millions of American citizens already within reach of those seas, cannot consistently be rejected. It will not be denied that the extent of contiguous country to which an actual settlement gives a prior right, must depend, in a considerable degree, on the magnitude and population of that settlement, and on the facility with which the vacant adjacent land may, within a short time, be occupied, settled, and cultivated by such population, compared with the probability of its being occupied and settled from any other quarter. This doctrine was admitted to its fullest extent by Great Britain, as appeared by all her charters, extending from the Atlantic to the Pacific, given to colonies established then only on the borders of the Atlantic. How much more natural and stronger the claim, when made by a nation whose population extended to the central parts of the continent, and whose dominions were by all acknowledged to extend to the Rocky Mountains."

The exclusive claim of the United States is opposed by Great Britain on the following grounds:

British

Oregon Ter

§ 173. 1. That the Columbia was not discovered by claims to the Gray, who had only entered its mouth, discovered four ritory. years previously by Lieutenant Meares of the British navy; and that the exploration of the interior borders of the Columbia by Lewis and Clark could not be considered as confirming the claim of the United States, because, if not before, at least in the same and subsequent years, the British Northwest Company had, by means of their agents, already established their posts on the head waters or main branch of the river.

2. That the restitution of Astoria, in 1818, was accompanied by express reservations of the claim of Great Britain to that territory, upon which the American settlement must be considered an encroachment.

3. That the titles to the territory in question, derived by the United States from Spain through the treaty of 1819, amounted to nothing more than the rights secured to Spain equally with Great Britain by the Nootka Sound Convention of 1790: namely, to settle on any part of those countries, to navigate and fish in their waters, and to trade with the natives.

4. That the charters granted by British sovereigns to colonies on the Atlantic coasts were nothing more than cessions to the grantees of whatever rights the grantor might consider himself to possess, and could not be considered as binding the subjects of any other nation, or as part of the law of nations, until they had been confirmed by treaties.

Negotia- § 174. During the negotiation of 1827, the British plentions of 1827. ipotentiaries, Messrs. Huskisson and Addington, presented the pretensions of their government in respect to the territory in question in a statement, of which the following is a summary.

"Great Britain claims no exclusive sovereignty over any portion of the territory on the Pacific, between the 42d and the 49th parallels of latitude. Her present claim, not in respect to any part, but to the whole, is limited to a right of joint occupancy, in common with other States, leaving the right of exclusive dominion in abeyance; and her pretensions tend to the mere maintenance of her own rights, in resistance to the exclusive character of the pretensions of the United States.

"The rights of Great Britain are recorded and defined in the Convention of 1790. They embrace the right to navigate the waters of those countries, to settle in and over any part of them,