It will be necessary, in the first place, to inquire what effect the Nootka convention, concluded in 1790 between Great Britain and Spain, could have on this title.

*

That the Nootka convention expired on the commencement of war between Great Britain and Spain, in October, 1796, has been already shown to be conformable with the principles of reason and justice, with the opinions of the most distinguished writers on national law, and with the universal practice of nations for ages; and that Great Britain supports this view in its fullest extent is abundantly proved by reference to the negotiations between her government and that of the United States, in 1815, with regard to the Newfoundland fisheries.† The British minister on that occasion declared, that his nation "knew no exception to the rule that all treaties are put an end to by a subsequent war between the same parties," though he admitted that treaties might contain " acknowledgments of title in the nature of perpetual obligations." This, however, is by no means the case with the Nootka convention, which is, in every respect, a series of " temporary concessions on both sides. To navigate and fish in the open sea, and to trade and settle on coasts unoccupied by a civilized nation, are general rights claimed

*See NOTE on this subject, page 259.

The interesting and able discussions, on this subject, between Mr. J. Q. Adams, the American plenipotentiary at London, and Lord Bathurst, the British secretary for the colonies, having charge of the department of foreign affairs, may be found among the documents annexed to President Monroe's message to Congress of December 29, 1819.

Mr. Adams, on that occasion, insisted that his countrymen should continue, not only to fish on the Banks of Newfoundland, but also to land on the British American coasts for the same purpose, as they had done before the war of 1812, by the treaty of 1783, although that treaty had not been renewed by the treaty of Ghent, at the termination of the war- - upon the ground that the treaty of 1783, by which Great Britain acknowledged the independence of the United States, was "of a peculiar nature, and bore, in that nature, a character of permanency, not subject, like many of the ordinary contracts between independent nations, to abrogation by a subsequent war between the same parties." To this Lord Bathurst answered, that, "if the United States derived from the treaty of 1783 privileges from which other independent nations, not admitted by treaty, were excluded, the duration of those privileges must depend on the duration of the instrument by which they were granted; and if the war abrogated the treaty, it determined the privileges. It has been urged, indeed," continues his lordship, "on the part of the United States, that the treaty of 1783 was of a peculiar nature, and that, because it contained a recognition of American independence, it could not be abrogated by a subsequent war between the parties. To a position of this novel nature Great Britain cannot accede. She knows of no exception to the rule, that all treaties are put an end to by a subsequent war between the same parties: she cannot, therefore, consent to give to her diplomatic relations with one state a different degree of permanency from that on which her connection with all other states depends. Nor

by all civilized nations on the grounds of obvious justice and reason; yet reason and justice in many cases also obviously indicate modifications in the exercise of these rights, some of which are conceded by common consent, while others are made the subjects of treaties. Spain, before 1790, had always resisted the exercise of these rights with regard to the parts of America, bordering on the Pacific and Southern Oceans, of which her pretensions to the exclusive occupation had been indirectly admitted, or suffered, by various maritime powers, as shown by all their treaties with her, since and including those of Utrecht, in language sufficiently distinct to warrant her government in maintaining those pretensions.* By the Nootka treaty, she merely engaged to desist from the exercise of all the privileges thus conceded to her, by long usage and repeated treaties, so far as concerned British subjects, with the condition that they should in return be restrained from the exercise of certain other privileges, claimed for them by their government, under the general law of nations. Both parties were equally entitled, by that general law, to settle on the unoccupied southernmost coasts of America; yet both were, by the convention, equally excluded from making any settlements there. The northwest coasts of

can she consider any one state at liberty to assign to a treaty, made with her, such a peculiarity of character as shall make it, as to duration, an exception to all other treaties, in order to found on a peculiarity, thus assumed, an irrevocable title to all indulgences which have all the features of temporary concessions." The British minister proceeded to show, that the independence of a state is that which cannot be correctly said to be granted by a treaty, but to be acknowledged by one, "and that, by whatever mode acknowledged, the acknowledgment is, in its own nature, irrevocable. A power of modifying it would be destructive of the thing itself; and therefore, all such power is necessarily renounced when the acknowledgment is made. The war could not put an end to it, for the reason justly assigned by the American minister, because a nation could not forfeit its sovereignty by the act of exercising it," &c. Lord Bathurst further observed, that "it is by no means unusual for treaties, containing acknowledgments of title in the nature of perpetual obligations, to contain, likewise, grants of privileges liable to revocation;" and, referring to the treaty of 1783, he showed, that the right of the Americans to fish on the banks of Newfoundland (that is to say, in the open sea) was there distinctly acknowledged, while the liberty to use the British coasts for the same purpose was conceded to them; and that, although the right subsisted in virtue of the independence of the United States, the liberty expired on the declaration of war in 1812, and could not again be enjoyed, without the express consent of Great Britain. The position thus assumed by the British government was maintained throughout the negotiation; at the end of which, by the convention of October 20, 1818, the liberty to take and cure fish on certain parts of the British American coasts, so long as they should remain unsettled, was secured to the citizens of the United States, in common with British subjects, forever; that is to say, until the commencement of another war between the two nations.

* See page 96.

the northern continent were, in like manner, equally open to both; yet it was agreed that neither party should have the right to appropriate to itself any spot on those coasts not actually occupied by its subjects, or to exclude the subjects of the other from any spot so occupied. All ideas of sovereignty or domain, in any of these territories, are expressly repelled and provided against by the repeated words, as well as by the whole spirit, of the convention; the territories taken from the subjects of the respective sovereigns are to be restored to the said subjects, not to their sovereigns or nations; the privileges to be enjoyed, and the restrictions to be observed, apply only to the subjects; and their sovereigns or nations could do no more, under the convention, than see that those privileges were enjoyed and those restrictions were maintained. The recognition of such restrictions and privileges is utterly incompatible with permanence of right; depending, as they do, entirely upon the concurrence of both parties. When that concurrence ceased, as it did on the breaking out of war in 1796, the recognition perished with it, and could not be revived without the express renewal of the concurrence.

The war between Great Britain and Spain, begun in October, 1796, was terminated, by the general piece of Amiens, on the 27th of March, 1802: it was, however, renewed before the end of the following year, and continued to the 14th of January, 1809, when a treaty of peace and alliance was concluded between Great Britain and the Supreme Junta of Spain, under which they remained, acting in conjunction against France, until the general peace in 1814. No engagement for the renewal of international compacts existing before 1796 was, however, made before the 28th of August, 1814, when, in the first of the three additional articles to the treaty of Madrid of the 20th of July previous, "It is agreed that, pending the negotiation of a new treaty of commerce, Great Britain shall be admitted to trade with Spain upon the same conditions as those which existed previously to 1796; all the treaties of commerce, which at that period subsisted between the two nations, being hereby ratified and confirmed." Thus the Nootka convention could not have been in force at any time between October, 1796, and August, 1814; nor since that period, unless it were renewed by the additional article above quoted. That the first part of this article related only to trade between the European dominions of Great Britain and Spain is certain, because no trade had ever been allowed, by treaty or otherwise, between either kingdom, or its colo

nies, and the colonies of the other, except in the single case of the asiento, concluded in 1713, and abrogated in 1740, agreeably to which the British South Sea Company supplied the Spanish colonies with negro slaves during that period; and because, moreover, by an article in the treaty of Madrid, to which the above-quoted article is additional, "In the event of the commerce of the Spanish American colonies being opened to foreign nations, his Catholic majesty promises that Great Britain shall be admitted to trade with those possessions, as the most favored nation." The second part of the additional article is evidently intended merely in confirmation of the first, which would otherwise have wanted the requisite degree of precision; and the object of the whole was, as clearly, to restore "the trade between the two nations" upon "the same conditions as those which existed previously to 1796" excluding all reference to stipulations directed, like those of the Nootka convention, solely and expressly to prevent all trade between them.

It has been abundantly proved, in preceding chapters of this history, that, neither before the conclusion of the Nootka convention, nor during its subsistence, did Great Britain or her subjects acquire a right, by occupation or ownership of the soil in any way, to a single spot on the north-west side of America; whilst Spain had created for herself a valid right of sovereignty, at Nootka, by her establishment formed there before the convention, and maintained until the spring of 1795. As Spain did, however, at the latter period, admit the right of British subjects to occupy lands at Nootka, by the act of the delivery of those lands agreeably to the convention, that right will not now be questioned. The surrender, however, applied merely to those lands and to no others; it was made in favor of British subjects, and could not have involved the transfer or acknowledgment of any right of domain or sovereignty to their nation. The lands thus delivered were never occupied, and, on the abrogation of this convention, by war, in 1796, not a single subject of either nation was to be found in any part of America, bordering on the Pacific, north of the bay of San Francisco. When the convention ended, therefore, neither Spain nor Great Britain possessed any sovereignty there, agreeably to the general law of nations; and whatsoever may have been the claims of Spain, founded on discoveries and settlements anterior to the

* This has been distinctly declared, by the British government, in the discussions with Spain relative to the duties on sugar from the Spanish colonies. See correspondence between Lord Aberdeen and the Duke of Sotomayor, and the debates in parliament on the subject, in August, 1845.

convention, they had undoubtedly been considerably lessened by her entire neglect of those regions, and her quiet submission to the occupation of various parts by other nations, during the whole period between her abandonment of Nootka, and the cession of her claims to the United States, by the Florida treaty. The Russians had held long and undisputed possession of the coasts north of the latitude of 54 degrees 40 minutes, and had even occupied a position near the Bay of San Francisco. The British had formed establishments which gave to them rights in the country drained by Fraser's River; and the Americans had, in like manner, acquired rights, by exploration and, settlement, in the regions of the Columbia. The rights of these powers to the territories thus held by them respectively, Spain, and no other power than Spain, could legally contest; and it was in consideration of this imperfection of their claims, as well as to prevent disputes between themselves, that the British and the Americans admitted each other to equality in the use of all the regions claimed by both, for a limited period, by the convention of October, 1818.

Thus it is demonstrated, that the Nootka convention did not subsist at the time when the Florida treaty was concluded; and that if it had then continued in force, it could only have served to prevent both the parties to it, and no other parties, from acquiring sovereignty in North-west America. It might have invalidated the rights of Great Britain in the Fraser's River country; but it could not have affected those of the United States to the Columbia regions, which were founded on discovery and occupation, under the general law of nations.

Though it may be doubted that any other nation could, in justice, have claimed the sovereignty of any territory north of the Bay of San Francisco, on the ground of occupation, without the assent of Spain, at the time when the Florida treaty was concluded, it is certain that the latter power could not, agreeably to any principle or general rules of national law, have claimed the exclusive possession of any spot in that territory, or have entered into engagements respecting its trade, navigation, or settlement, with a nation other than the one so claiming it by occupation.

Thus, whilst the title to the countries north of the 42d parallel, derived by the United States from Spain, in 1819, was undoubtedly imperfect, yet that title, in addition to those previously possessed by the United States, in virtue of their discoveries and settlements, made under the general law of nations, constituted together a right