Between these accounts, however, there are really no discrepancies. The fort at Nootka was dismantled and abandoned by the Spaniards; and they could have had no further object in maintaining it, even supposing its occupation to have been, what it seems not to have been, conformable with the convention. The British commissioner hoisted the flag of his nation over the lands given up to his countrymen, and the Spaniards may have left their flag flying over the spot which they had occupied. As to the virtual abandonment of the territory by Great Britain, the supposition is confirmed by facts; for, after the visit of Broughton to Nootka, in 1796, no British subject, so far as known, touched at that spot for nearly twenty years.

With regard to the mode of restitution settled between the courts of London and Madrid, nothing can be learned from Pearce's despatch, or from any other known source. Vancouver states it to have been nearly the same which he had offered to Quadra, in September, 1792. On that occasion, the British commissioner had required the unconditional surrender, to his sovereign, of all the territories of Nootka and Clyoquot; and the Spaniards, while denying that British subjects had been ever dispossessed of any lands at either place, had, nevertheless, agreed to give up those temporarily occupied by Meares, in 1789, provided that Nootka were recognized as the northernmost Spanish possession, and all south of it as belonging to Spain. These were the questions referred by the commissioners, in 1792, to their courts. At the time when the reference reached Europe, Spain had just made ample reparation to the British claimants, for their losses at Nootka, by the payment of two hundred and ten thousand dollars, besides restoring their vessels; and the two nations were engaged in concluding a treaty of alliance defensive and offensive against France, which was signed at Aranjuez on the 25th of May, 1793. Under these circumstances, it is more reasonable to suppose the agreement to have been, that the lands at Nootka should be delivered up in form, to save the credit of the British ministry, and that both parties should abandon the north-west coast of America, than that either should have persisted in its original demand at a moment when their cordial union and coöperation was so desirable for both.

committed. The count recommends to his successor the maintenance of those colonies, as the best means of preserving Mexico from foreign influences; advising him, at the same time, however, not to extend the establishments beyond the Strait of Fuca. With regard to Nootka, it is merely stated, in paragraph 713, that orders had been sent to the commandant to abandon the place, agreeably to a royal dictamen

The alliance between Great Britain and Spain proved so disastrous to the latter, that she was obliged, in July, 1796, to make peace with France, and, in October following, to declare war against her former ally, Great Britain, which lasted, with the intermission of two years of doubtful relations after the treaty of Amiens, until 1809. From the moment of this declaration of war, the Nootka Convention ceased to have effect, agreeably to the universal rule of national law, observed by all civilized states, that all treaties expire on the commencement of war between the parties to them. From that moment all the privileges allowed, and restrictions imposed, by the convention were terminated, and each nation was left at liberty to pursue its own course with regard to the seas and territories to which that agreement related. Spain might again claim the exclusive navigation of the Pacific and Southern Oceans, and the exclusive sovereignty of the parts of America bordering on them; and Great Britain might again assert her right to sail in any open sea, and to occupy, and possess in sovereignty, any vacant

coasts.

NOTE. On this question of national law and usage, it will be convenient here to present a few observations.

A treaty or convention is a record of engagements between two or more nations, to perform, or to abstain from, certain acts, under certain circumstances of time, place and occasion, as specified either directly or implicitly by the terms of the compact; and as these engagements are supposed to be for the advantage of one or more of the parties, so are they necessarily understood to subsist only during peace between them, unless otherwise especially declared. (Vattel, Book 3, chap. 10, sec. 175.) A nation, when resorting to war, by the same right employs every means in its power to distress its enemy, and to benefit itself; without regard to any engagements not specially referring to a state of hostilities, or to any restrictions as to the means employed, except such as it may choose to observe, from respect to the dictates of humanity or the opinion of the world.

War between civilized nations commonly ends by consent of the parties, expressed in a treaty of peace. The mere declaration that there shall be peace, however, establishes nothing more than that hostilities between the parties shall cease from that moment: it merely reduces them to inertia; the restoration of conquests, the evacuation of territories invaded, even the release of prisoners, must be made the subjects of separate express stipulations. In all points for which provision is not thus clearly made, each party may legally remain in the exact position held by it at the moment of concluding the treaty of peace. (Vattel, Book 4, chap. 2, sec. 19, 21.) That such is the practice of nations, every treaty of peace will show; and none more unequivocally, than the two between Great Britain and the United States.

The restoration of peace, therefore, does not of itself produce necessarily a revival of engagements existing when the war began. As the peace is supposed to be made with the free will of all the parties, so must the revival of former engagements, as well as the contraction of new ones, be regarded as made with the entire consent of each; and it is difficult to conceive any class of agreements, the revival of which may not, after a war, be considered by some party as deleterious to its interests. It is consequently clear, that some general understanding should exist; and that treaties

of peace should, in order to answer their end, show unequivocally — what previous compacts are to be restored to force, all others being regarded as null -- or which are to be annulled, all others being revived. To leave such points undetermined, would be only to open the way for a speedy rupture of the peace.

Of the two alternatives thus presented, the simpler rule is evidently that -- which leaves extinct all engagements made previous to the war, except those restored to force by the specific terms of the treaty of peace; and that this rule has been pursued invariably by civilized nations, ever since national law was first defined and reduced to principles, all the treaties of peace made within the two last centuries prove beyond question. Thus the treaties of Utrecht, in 1713, of Aix-la-Chapelle, in 1748, of Paris, in 1763, and of Versailles, in 1783, distinctly declare what treaties, existing previous to the war ended by each compact, are to be renewed, either wholly or in part, unconditionally or with exceptions; all others being ipso facto considered null and void. The French revolution so completely changed the face of Europe, that the plenipotentiaries at Amiens, in 1802, found nothing in previous treaties which could not be expressed more easily by new stipulations; and the treaties of Amiens were in their turn considered as nearly obsolete in 1814, when those concluded at Vienna again referred to provisions made at Utrecht a hundred years before.

Some eminent writers on national law have however attempted to establish a particular class of treaties, to be called Transitory Compacts, including those for cessions or exchange of territory, settlement of boundaries, and other objects, which are to be regarded as "perpetual in their nature, so that being once carried into effect, they subsist independent of any change in the sovereignty and form of government of the contracting parties; and, although their operation may in some cases be suspended during war, they revive, on the return of peace, without any express stipulation." (Wheaton's Elements of International Law, Part 3, chap. 2, sec. 7.- See, also, Marten's Precis du Droit des Gens, Book 2, chap. 1, sec. 5.)

With due respect to those high authorities, the distinction thus proposed seems to be unnecessary, if not embarrassing; and to rest on a misapprehension of the nature of a treaty. The class of transitory compacts would embrace only those, which are supposed to be intended to settle a question definitively by some specified act or acts, and do not acquire this character of perpetuity until they have been thus carried into effect. But a treaty is only a record of engagements; when the acts have been completed, the question is closed, the engagement is cancelled, and the treaty containing it becomes merely a proof, to which the parties may refer in substantiation of their rights or claims. A territory ceded to a nation, or confirmed to it by the settlement of a boundary, under a valid treaty, becomes thenceforth as much its property as any other of its territories; it may, like any other, be transferred with a valid title to another nation, even during war with the party first ceding it, and is neither more nor less than any other subject to the effects of war and of peace. The same principle applies to all recogni tions or abdications of rights or powers, which are nothing more than indications of certain acts, to be performed or avoided, for an indefinite period: during war they are of no avail; if renewed by a treaty of peace, they are binding on the parties, like any other engagements; though their non-renewal does not necessarily imply a release from the obligation to observe them, as they may, and generally do, relate to what is already ordered by the law of nature, by common sense, or by the common consent of nations. Thus the acknowledgment of the independence of the United States of America by Great Britain, in the treaty of 1783, was necessary, not only because the latter power had always previously refused and opposed it by arms, but also, in order to show what territories and people were embraced in the new republic; but the repetition of this acknowledgment, in the treaty of 1814, after thirty years of intercourse, in every way, between the two powers, would have been no less absurd than the insertion of an admission by the United States, of the capacity of Great Britain to contract engagements.

261

CHAPTER XII.

1788 TO 1810.

Establishment of the North-West Fur Trading Company of Montreal, in 1783 — Expeditions of Mackenzie to the Arctic Sea and to the Pacific Coast - The Trade between the North Pacific Coasts of America and Canton conducted almost exclusively by Vessels of the United States from 1796 to 1814- Establishment of the Russian American Company - Its Settlements and Factories on the American Coasts Expedition of Krusenstern through the North Pacific - Proposition of the Russian Government to that of the United States, with Regard to the Trade of the North Pacific.

WHILST the navigators of various nations were thus completing the survey of the shores of North-West America, important information respecting the interior regions of that section of the continent was obtained by the agents of an association formed at Montreal, in 1784, for the prosecution of the fur trade in the Indian territories, which were supposed to be beyond the jurisdiction of the Hudson's Bay Company.

Before Canada came into the possession of Great Britain, a large, if not the greater, portion of the furs sent from America by the subjects of that power was shipped from New York. After that period, Montreal became the principal seat of the trade; and disputes immediately arose between the Hudson's Bay Company, which claimed the whole division of America drained by streams falling into that sea, and the Canadians, who pursued their trade in the southern and western parts of that territory. These disputes, with which the British government did not, from policy, choose to interfere, were injurious to the interests of both parties; and, the Indian countries north of Lake Superior having been, about the same time, almost depopulated by the smallpox, the trade was confined, for some years, to the environs of Hudson's Bay, the lower lakes, and the St. Lawrence, where the animals were less numerous, and their furs inferior in quality.

At length, about the year 1775, some enterprising merchants of Montreal penetrated into the countries, far north-west of Lake Superior, drained by the Saskatchawine and Athabasca Rivers,

which had long before been frequented by the French; and their success in trade was such as to induce others to make similar expeditions. The Canadians were, however, exposed, on their way, to great difficulties and annoyances from the Hudson's Bay Company, with which they were unable separately to contend; and they, in consequence, in the year 1784, united their interests, and assumed for their association the title of the North-West Company of Montreal. Other associations were afterwards formed, but they were soon either dissolved or united with the North-West Company.

The organization of this new company was such as to insure the utmost regularity and devotion to the interests of the concern among all who were engaged in its service. The number of the shares was at first sixteen, but was afterwards increased to twenty, and then to forty. A certain proportion of them was held by the agents, residing in Montreal, who furnished the capital; the remainder being distributed among the proprietors, or partners, who superintended the business in the forts or posts in the interior, and the clerks, who traded directly with the Indians. The clerks were young men (for the most part natives of Scotland) who entered the service of the company for five or seven years; and, at the end of that time, or even earlier, if they conducted themselves well, they were admitted as proprietors. The inferior servants of the company were guides, interpreters, and voyageurs, — the latter being employed as porters on land and as boatmen on the water, — all of whom were bound to the interests of the body by hopes of advancement, in station or in pay, and of pensions in their old age.

Before the formation of the North-West Company, the farthermost trading establishment of British subjects was one on the Athabasca or Elk River, about twelve hundred miles north-west of Lake Superior, which had been founded, by Messrs. Frobisher and Pond, in 1778; and this continued to be the principal post in that part of the continent for ten years, when it was abandoned, and another, called Fort Chipewyan, was established on the south-west side of the Athabasca Lake, or Lake of the Hills, into which the Elk River discharges its waters. In the mean time, several large parties had been sent, for the purposes of trade and discovery, from Canada towards the west-one of which, consisting of about a hundred men, penetrated to the foot of the great dividing chain then called the Shining Mountains, or Mountains of Bright Stones, and now commonly known as the Rocky Mountains ; * but they were

Collections of the Massachusetts Historical Society for 1794, p. 21.