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“ 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.”
In the year 1827 an attempt was made at a settlement of the question, Messrs. Huskisson and Addington being deputed to treat on behalf of Great Britain; and the claim of the power whose representatives they were, was supported by them in a lucid statement, of which Mr. Wheaton gives the following summary :(1)
“ Great Britain claims no exclusive sovereignty over any portion of the territory on the Pacific between the 42nd 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 abryance; 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.
(1) Wheaton's “ Elements,” p. 231.
.. 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, and to trade with the inhabitants and occupiers of the same. These rights have been peaceably exercised ever since the date of that convention ; that is for a period of nearly forty years. Under that convention, valuable British interests have grown up in those countries. It is admitted that the United States possess the same rights, although they have been exercised by them only in a single instance, and have not, since the year 1813, been exercised at all; but beyond these rights they possess none.
“In the interior of the territory in question, the subjects of Great Britain have had, for many years, numerous settlements and trading posts; several of these posts are on the tributary waters of Columbia; several upon the Columbia itself; some to the northward, and others to the southward of that river; and they navigate the Columbia as the sole channel for the conveyance of their produce to the British stations nearest to the sea, and for its shipment thence to Great Britain ; it is also by the Columbia and its tributary streams that these posts and settlements receive their annual supplies from Great Britain.
“To the interests and establishments which British industry and enterprise have created Great Britain owes protection; that protection will be given, both as regards settlement and freedom of trade and navigation, with every intention not to infringe the co-ordinate rights of the United States, it being the desire of the British Government, so long as the joint occupancy continues, to regulate its own obligations by the same rules which govern the obligations of every other occupying
No definite settlement of the controversy was arrived at in that year, but a convention was concluded between the two powers, which was in the terms following:
"Art. 1. All the provisions of the third article () of the convention concluded between the United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland, on the 20th of October, 1818, shall be, and they are, hereby further indefinitely extended and continued in force, in the same manner as if all the provisions of the said Article were herein specifically recited.
“ Art. 2. It shall be competent, however, to either of the contracting parties, in case either should think fit at any time after the 20th October, 1828, on giving due notice of twelve months to the other contracting party, to annul and abrogate this convention; and it shall, in such case, be accordingly entirely anulled and abrogated after the expiration of the said term of notice.
“Art. 3. Nothing contained in this convention, or in the third article of the convention of the 20th of October, 1818, hereby continued in force, shall be construed to impair, or in any manner affect, the claims which either of the contracting parties may have to any part of the country westward of the Stony or Rocky Mountains.”
From the foregoing discussions and treaties it is manifest, that Great Britain claimed an exclusive right to what is termed the Hudson's Bay Territory, north of the 49th parallel of north latitude, and claimed also a right of joint occupancy, in common with other states, in respect of the territory lying between the 49th and 42nd parallels. When, therefore, in the interests of peace, she surrendered her rights to the last-mentioned territory by the treaty about to be described, she must be taken to have surrendered so much only of those rights as is defined by that treaty. And if it is now contended, on the part of the United States, that Great Britain ought to have surrendered, and intended to
(1) Ante, p. 35.
surrender, certain other rights which she possesses (as, for instance, to the islands lying off the coast), the obvious answer is that, inasmuch as she did not specifically surrender those rights under the last-mentioned treaty, it is too late to argue as to what ought to have been, or what was intended to have been further provided thereunder.
To sum up this chapter, Great Britain formerly claimed a right of joint occupancy, in common with other states, in respect of the territory lying between the 42nd and 49th parallels, and the islands adjacent thereto: it remains to be seen how those rights were affected by the treaty about to be described.
SUBSEQUENT to the passing of the last mentioned convention, new discussions were raised between the Governments of Great Britain and of the United States, () and as a result thereof a treaty was concluded between them on the 15th June, 1846.
The 1st article provided as follows:(3)—
“From the point on the forty-ninth parallel of north latitude, where the boundary laid down in existing treaties and conventions between the United States and Great Britain terminates, the line of boundary between the territories of the United States and those of Her Britannic Majesty shall be continued westward along the said forty-ninth parallel of north latitude, to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly, through the middle of the said channel, and of Fucas Straits, to the Pacific Ocean. Provided, however, that the navigation of the whole of the said channel and straits, south of the forty-ninth parallel of north latitude, remain free and open to both parties.”
The second article provided for the free navigation of the Columbia River by the Hudson's Bay Company, and the British subjects trading with them, from the forty-ninth parallel of north latitude to the ocean.
The third article provided that the possessory
(1) The correspondence between the two Governments will be found in a Blue Book of the year 1846, entitled, “Correspondence relative, &c., to the Oregon Territory.”
(?) American State Papers, p. 2.