The Oregon Territory Part 5

The language of this statement, it will be seen, is carefully worded, so as not to go beyond the actual facts narrated in Meares' Voyage; and further, on referring to the maps of the coasts and harbours which he visited, it continues, "in which every part of the coast in question, including _the Bay of the Columbia_ (_into which the log expressly states that Meares entered_,) is minutely laid down, its delineation tallying in almost every particular with Vancouver's subsequent survey, and with the description found in all the best maps of that part of the world adopted at this moment."

The entry in Meares' log-book is as follows: "July 6, lat. 46 10'; long.

235 24'; northerly; strong gales, a great sea. Pa.s.sed Cape Disappointment, _into Deception Bay_, and hauled out again, and pa.s.sed Quicksand Bay, Cape Grenville, and Cape Look-out."

There is, therefore, nothing strange in the view which the British Commissioners really insisted upon, though it is strange that Mr. Greenhow should have misconstrued their statement, particularly as, in a paragraph almost immediately following, which will be referred to in full in its proper place, they readily admit that Mr. Gray, four years afterwards, "was the first to ascertain that this bay formed the outlet of a great river."

The further examination of these coasts by British subjects was suspended for a short time, as already seen, by the interference of the Spanish authorities. After, however, that Spain had definitively abandoned her pretensions to exclusive rights along the entire northwest coast of America, as far as Prince William's Sound, and agreed, by the third article of the Convention of 1790, that occupation should be the test of territorial t.i.tle, the British Government judged it expedient "to ascertain with as much precision as possible the number, extent, and situation of any settlement which had been made within the limits of 60 and 30 north lat.i.tude by any European nation, and the time when such settlement was made. With this object, amongst others more immediately connected with the execution of the first article of the Convention, Captain George Vancouver was despatched from Deptford with two vessels on January 6, 1791, and having wintered at the Sandwich Islands, where he was instructed to wait for further orders in reference to the restoration of the buildings and tracts of land, of which British subjects had been dispossessed at Nootka, he arrived off the coast of America on April 17, 1792, in about 39 30'. He had received special instructions to ascertain the direction and extent of all such considerable inlets, whether made by arms of the sea, or by the mouths of great rivers, which might be likely to lead to, or facilitate in any considerable degree, an intercourse, for the purposes of commerce, between the northwest coast and the country upon the opposite side of the continent, which are inhabited or occupied by his Majesty's subjects;" but he was expressly required and directed "not to pursue any inlet or river further than it should appear to be navigable by vessels of such burden as might safely navigate the Pacific Ocean."

(Introduction to Vancouver's Voyage, p. xix.)

Having made a headland, which he supposed to be Cape Mendocino, Vancouver directed his course northward, examining carefully the line of coast, and taking soundings as he proceeded. In about lat.i.tude 42 52', longitude 235 35', he remarked a low projecting headland, apparently composed of _black_ craggy rocks in the s.p.a.ce between the woods and the wash of the sea, and covered with wood nearly to the edge of the surf, which, as forming a very conspicuous point, he distinguished by the name of Cape Orford. Mr. Greenhow has allowed his antipathy to Vancouver to lead him into an erroneous statement in respect to this headland. Vancouver (Vol.

i., p. 205, April 25, 1792) writes: "Some of us were of opinion that this was the Cape Blanco of Martin d'Aguilar; its lat.i.tude, however, differed greatly from that in which Cape Blanco is placed by that navigator; and its _dark_ appearance, which might probably be occasioned by the haziness of the weather, did not seem to ent.i.tle it to the appellation of Cape Blanco." He afterwards goes on to say, that at noon, when Cape Orford was visible astern, nearly in the horizon, they had a projecting headland in sight on the westward, which he considered to be Cape Blanco. He here ranged along the coast, at the distance of about a league, in hope of discovering the a.s.serted river of D'Aguilar. "About three in the afternoon, we pa.s.sed within a league of the cape above mentioned, and at about half that distance from some breakers that lie to the westward of it. This cape, though not so projecting a point as Cape Orford, is nevertheless a conspicuous one, particularly when seen from the north, being formed by a round hill, on high perpendicular cliffs, some of which are _white_, a considerable height from the level of the sea." It appeared to Vancouver to correspond in several of its features with Captain Cook's description of Cape Gregory, though its lat.i.tude, which he determined to be 43 23', did not agree with that a.s.signed by Captain Cook to that headland; but he again states, that there was a "probability of its being also the Cape Blanco of D'Aguilar, if land hereabouts the latter ever saw;" and that "a compact _white_ sandy beach commenced, where the rocky cliffs composing it terminate."

Mr. Greenhow remarks: "Near the 43d degree of lat.i.tude, they sought in vain for the river, which Martin d'Aguilar was said to have seen, entering the Pacific thereabouts, in 1603: and they appeared inclined to admit as identical with the Cape Blanco of that navigator, a _high, whitish_ promontory, in the lat.i.tude of 42 52', to which, however, they did not scruple to a.s.sign the name of Cape Orford." Had these observations been made in reference to Cape Gregory, the high cliffs of which are described by Vancouver as _white_, they would have been intelligible; but, directed as they are by Mr. Greenhow against a headland which Vancouver expressly describes as a "wedge-like, low, perpendicular cliff; composed of _black craggy rock_, with breakers upon sunken rocks about four miles distant, in soundings of forty-five fathoms, _black_ sandy bottom," they expose Mr.

Greenhow himself to the charge of not being sufficiently scrupulous when a.s.sailing a writer, towards whom he confesses that he feels considerable animosity.

Having reached Cape Lookout, in 45 32' N. L., Vancouver examined with attention the portion of coast which Meares had seen. About ten leagues to the north of this headland, the mountainous inland country descends suddenly to a moderate height, and were it not covered with lofty timber, might be deemed low land. Noon, "on the 27th of April, brought them in sight of a conspicuous point of land, composed of a cl.u.s.ter of hummocks, moderately high, and projecting into the sea from the low land above mentioned. The hummocks are barren, and steep near the sea, but their tops thinly covered with wood. On the south side of this promontory was the appearance of _an inlet, or small river_, the land behind not indicating it to be of any great extent; nor did it seem accessible to vessels of our burden, as the breakers extended from the above point two or three miles into the ocean, until they joined those on the beach, three or four leagues further south. On reference to Mr. Meares' description of the coast south of this promontory, I was at first induced to believe it to be Cape Shoalwater; but on ascertaining its localities, I presumed it to be that which he calls Cape Disappointment, and the opening south of it Deception Bay. This cape was found to be in lat.i.tude of 46 19', longitude 236 6' east. The sea had now changed from its natural to _river-coloured_ water, the probable consequence of some streams falling into the bay, or into the opening north of it, through the low land. Not considering this opening worthy of our attention, I continued our pursuit to the northwest, being desirous to embrace the advantages of the now-prevailing breeze and pleasant weather, so favourable to our examination of the coasts."

The purport of Vancouver's observations in the pa.s.sage just cited will not be correctly appreciated, unless his instructions are kept in mind, which directed his attention exclusively to such inlets or rivers which should appear to be navigable to sea-going vessels, and be likely to facilitate in any considerable degree a communication with the northwest coast.

Vancouver seems to have advanced a step beyond Heceta in observing the _river-coloured water_, and so determining the inlet not to be a strait of the sea; but he rightly decided that the opening in the north part of the bay was not worthy of attention, either in respect to his main object of discovering a water-communication with the northwest coast, or to the prospect of its affording a certain shelter to sea-going vessels.

Vancouver, as he approached De Fuca's Straits on 29th April, when off Cape Flattery, fell in with the merchant s.h.i.+p Columbia, commanded by Mr. Robert Gray, which had sailed from Boston on the 28th Sept., 1788. Captain Gray had formerly commanded the Was.h.i.+ngton, when that vessel and the Columbia, commanded by Captain John Kendrick, visited Nootka in 1788. Having given Vancouver some information respecting De Fuca's Straits, he stated that he had "been off the mouth of a river in the lat.i.tude of 46 10', where the outset, or reflux, was so strong as to prevent his entering it for nine days. This," continues Vancouver, "was probably the opening pa.s.sed by us on the forenoon of the 27th, and was apparently then inaccessible, not from the current, but from the breakers that extended across it." Gray at this time had not succeeded in pa.s.sing the bar at the mouth of the Columbia. After parting from Vancouver, he continued his course to the southward for the purposes of his summer trade. The extract from his own log-book, which Mr. Greenhow has inserted in his Appendix, will furnish the best account of his proceedings:--"May 11th, at 4 A.M. saw the entrance of our desired port bearing E.S.E., distance six leagues; in steering sails, and hauled our wind in sh.o.r.e. At 8 A.M., being a little to windward of the entrance into the harbour, bore away and run in E.N.E.

between the breakers, having from five to seven fathoms water. When we came over the bar, we found this to be a large river of fresh water, up which we steered."

In the British statement it is admitted that "Mr. Gray, finding himself in the bay formed by the discharge of the waters of the Columbia into the Pacific, was the first to ascertain that this bay formed the outlet of a great river--a discovery which had escaped Lieutenant Meares, when in 1788, four years before, he entered the same bay."

This pa.s.sage has been quoted to show that the claim of Captain Gray to the honour of having first crossed the bar of the river has not been impeached by the British Commissioners. He gave to the river the name of his own vessel, the Columbia.

The Columbia remained at anchor on the 12th and 13th. On the 14th of May, Gray weighed anchor, and stood up the river N.E. by E.

The log-book of the Columbia furnishes the following extract:--

"We found the channel very narrow. At 4 P.M. we had sailed upwards of twelve or fifteen miles, when the channel was so very narrow that it was almost impossible to keep in it, having from three to eighteen fathoms water, sandy bottom. At half-past four the s.h.i.+p took ground, but she did not stay long before she came off; without any a.s.sistance. We backed her off stern-foremost into three fathoms, and let go the small bower, and moved s.h.i.+p with kedge and hawser. The jolly-boat was sent to sound the channel out, but found it not navigable any further up; _so of course we must have taken the wrong channel_. _So ends_, with rainy weather; many natives alongside." On the following day Gray unmoored, and dropped down the river with the tide. On the 18th he made the lat.i.tude of the entrance to be 46 17' north. On the 20th he succeeded, after some difficulty, in beating over the bar out to sea.

This log-book, the authenticity of which is vouched for by Mr. Bulfinch, of Boston, one of the owners of the Columbia, affords the best evidence that Captain Gray's claim is limited to the discovery of the _mouth of the Columbia_, a discovery different indeed _in degree_ from Heceta's or Vancouver's, and ent.i.tled to higher consideration, but not different _in kind_. It must be remembered that the problem to be solved was the discovery of the Great River of the West, but this problem was surely not solved by Gray, who expressly states that the channel which he explored was not navigable any further up than twelve or fifteen miles from the entrance; "so of course," he adds, "we must have taken the wrong channel."

But such a description would hardly have convinced the world that Gray had succeeded in discovering the Great River, unless Lieutenant Broughton had subsequently succeeded in entering the right channel, and had explored its course for the distance of more than one hundred miles from the sea. But the reputation of this enterprising man needs no fict.i.tious laurels. He was decidedly the first to solve the difficult question of their being a pa.s.sage, such as it is, over the bar of the river.

Mr. Greenhow, in commenting upon Gray's discovery, observes, "Had Gray, after parting with the English s.h.i.+ps, _not returned to the river_, and ascended it as he did, there is every reason to believe that it would have long remained unknown; for the a.s.sertion of Vancouver, that no opening, harbour, or place of refuge for vessels was to be found between Cape Mendocino and the Strait of Fuca, and that this part of the coast formed one compact, solid, and nearly straight barrier against the sea, would have served completely _to overthrow the evidence of the American fur-trader_, and to prevent any further attempts to examine those sh.o.r.es, or even to approach them."

Now the evidence of the American fur-trader, _had he not returned to the river_, would have needed no Vancouver to overthrow it, for it would have amounted to this, that Gray had been off the mouth of a river for nine days, without being able to enter it; whereas Vancouver's own statement would have been, that on the south side of Cape Disappointment there was the appearance of an inlet or small river, "which did not however seem accessible for vessels of our burthen," as breakers extended right across it. Mr. Greenhow misrepresents Vancouver, when he states that Meares'

opinion was subscribed without qualification by Vancouver, for Vancouver carefully limits his opinion of the river to its being inaccessible to vessels of equal burthen with his own sloop of war, the Discovery.

Gray, after entering the Columbia, appears to have returned to Nootka, and to have given to Senor Quadra, the Spanish commandant, a sketch of the river. Vancouver, having attempted in vain to conclude a satisfactory arrangement with Quadra in respect to the fulfilment of the first article of the Nootka Convention, determined to re-examine the coast of New Albion. With this object he sailed southward in the Discovery, accompanied by the Chatham and the Daedalus. The Daedalus having been left to explore Gray's harbour in 46 53', the Discovery and Chatham proceeded round Cape Disappointment, and the Chatham, under Lieutenant Broughton, was directed to lead into the Columbia river, and to signalize her consort if only four fathoms water should be found over the bar. The Discovery followed the Chatham, till Vancouver found the water to shoal to three fathoms, with breakers all around, which induced him to haul off to the westward, and anchor outside the bar in ten fathoms. The Chatham, in the meantime, cast anchor in the midst of the breakers, where she rode in four fathoms, with the surf breaking over her. "My former opinion," writes Vancouver, "of this port being inaccessible to vessels of our burthen was now fully confirmed, with this exception, that in very fine weather, with moderate winds and a smooth sea, vessels not exceeding 400 tons might, so far as we were able to judge, gain admittance." It may be observed that the vessels of the Hudson's Bay Company, by which the commerce of this part of the country is almost exclusively carried on, do not exceed 360 tons, and draw only fourteen feet water. Captain Wilkes, in the United States Exploring Expedition, vol. iv., p. 489, speaks of a vessel of from 500 to 600 tons, the Lausanne, having navigated the Columbia; on the other hand, the Starling, which accompanied the Sulphur exploring vessel, under Captain Belcher, in July, 1839, left her rudder on the bar, and the American corvette, the Peac.o.c.k, which attempted to enter the river in July, 1841, was lost in very fine weather, having been drifted amongst the breakers by the set of the current.

When it is known that the vessels of the Hudson's Bay Company have been obliged to lie-to off the mouth of the Columbia for upwards of two months before they could venture to cross the bar, and that vessels have been detained inside the bar for upwards of six weeks, it must be acknowledged that Vancouver's declaration of the probable character of the river has not fallen very wide of the mark.

On the next day the Chatham succeeded, with the flood-tide, in leading through the channel, and anch.o.r.ed in a tolerably snug cove inside Cape Disappointment; but the Discovery, not having made so much way, was driven out by a strong ebb tide into 13 fathoms water, where she anch.o.r.ed for the night, and on the following day was forced by a gale of wind to stand out to sea, and to abandon all hope of regaining the river.

On the Chatham rounding the inner point of Cape Disappointment, they were surprised to hear a gun fired from a vessel, which hoisted English colours, and proved to be the Jenny, a small schooner of Bristol, commanded by Mr. James Baker, which had sailed from Nootka Sound direct to England, before Vancouver started. This cove or bay inside Cape Disappointment was in consequence named, by Lieut. Broughton, Baker's Bay, which name it retains, and it appeared from Captain Baker's account that this was not the first occasion of his entering the river, but that he had been there in the earlier part of the year.

The Chatham in the meantime proceeded up the inlet, and having in her course grounded for a short time on a shoal, anch.o.r.ed ultimately a little below the bay which had terminated Gray's researches, to which Gray had given his own name in his chart. The sketch of this, with which Vancouver had been favoured by the Spanish commandant at Nootka, was found by Broughton not to resemble much what it purported to represent, nor did it mark the shoal on which the Chatham grounded, though it was an extensive one, lying in mid-channel. The bay, for instance, which Lieut. Broughton found to be not more than fifteen miles from Cape Disappointment, was, according to the sketch, thirty-six miles distant. Broughton left the Chatham here, and determined to pursue the further examination of the channel in the cutter and the launch.

At the distance of about twenty-five miles from the sea, Broughton found the stream narrow rather suddenly to about half a mile in breadth, which seemed to warrant him in considering the lower part, (the width of which was from three to seven miles,) to be a sound or inlet, and the true entrance of the river itself to commence from the point where it contracted itself. Broughton continued his ascent for seven days, making but slow progress against a strong stream. At the end of that time he was obliged to return from want of provisions, having reached a point which he concluded to be about 100 miles distant from the Chatham's anchorage, and nearly 120 from the sea. He was the more readily reconciled to the abandonment of any further examination, "because even thus far the river could hardly be considered as navigable for s.h.i.+pping." Previously, however, to his departure, he formally "took possession of the river and the country in its vicinity in his Britannic Majesty's name, having every reason to believe that the subjects of no other civilised nation or state had ever entered this river before." Broughton had fallen in with large parties of Indians in his ascent of the river, and had been kindly received by them. Amongst these was a friendly old chief, who accompanied them almost throughout the voyage, and who a.s.sisted at the ceremony and drank his Majesty's health on the occasion. It may be reasonably suspected that this worthy old chief would have as readily joined the next comers in drinking the health of the King of Spain, or the President of the United States. From him Broughton endeavoured to obtain further information respecting the upper country. "The little that could be understood was, that higher up the river, they would be prevented from pa.s.sing by falls.

This was explained by taking water up in his hands, and imitating the manner of its falling from rocks, pointing at the same time to the place where the river rises, indicating that its source in that direction would be found at a great distance."

The furthest angle of the river which Broughton reached was called by him Point Vancouver, and upon it stands in the present day Fort Vancouver, the chief establishment of the Hudson's Bay Company. A little above this are the Cascades, a series of falls and rapids extending more than half a mile, which form the limit of the tide-way; about thirty miles higher up are the Dalles, where the river rushes rapidly between vast ma.s.ses of rocks, and about four miles further are the _Chutes_ or Falls of the Columbia, where the river first enters the gap in the Cascade mountains, through which it finds its way to the ocean. Lieutenant Broughton, having occupied twelve days in the examination of the channel, prepared to join the Discovery without delay; but for four days the surf broke across the pa.s.sage of the bar with such violence, as to leave no apparent opening. At last he succeeded in beating out, the Jenny schooner leading, as her commander Mr. Baker was better acquainted with the course of the channel, and after nearly losing their launch and the boat-keeper in the surf, they once more reached the open sea. Such is the summary of the account, which may be perused in full in the second volume of Vancouver's Voyage.

Mr. Greenhow (p. 248) considers that the distinction which Broughton and Vancouver made "between the upper and lower portion of the Columbia, is entirely dest.i.tute of foundation, and at variance with the principles of our whole geographical nomenclature. Inlets and sounds," he continues, "are arms of the sea running up into the land, and their waters, being supplied from the sea, are necessarily salt; the waters of the Columbia are on the contrary generally fresh and palatable within ten miles of the Pacific, the violence and overbearing force of the current being sufficient to prevent the further ingress of the ocean. The question appears at first to be of no consequence: the following extract from Vancouver's Journal will, however, serve to show that the quibble was devised by the British navigators, with the unworthy object of depriving Gray of the merits of his discovery:--'Previously to his (Broughton's) departure, he formally took possession of the river, and the country in its vicinity, in his Britannic Majesty's name, having every reason to believe that the subjects of no other civilised nation or state had ever entered this river before. In this opinion he was confirmed by Mr. Gray's sketch, in which it does not appear that Mr. Gray either saw or ever was within five leagues of its entrance.' This unjust view has been adopted by the British Government and writers, and also, doubtless from inadvertency, by some distinguished authors in the United States. It may, indeed, be considered fortunate for Gray, that by communicating the particulars of his discoveries, as he did, to Quadra, he secured an unimpeachable witness of his claims: had he not done so, the world would probably never have learned that a citizen of the United States was the first to enter the greatest river flowing from America into the Pacific, and to find the only safe harbour on the long line of coast between Port San Francisco and the Strait of Fuca."

Mr. Greenhow may be perfectly justified in disputing the propriety of Lt.

Broughton's distinction. The words of the latter are,--"Between the ocean and that which should properly be considered the entrance of the river, is a s.p.a.ce from three to seven miles wide, intricate to navigate on account of the shoals that extend nearly from side to side, and it ought rather to be considered as _a sound_ than as const.i.tuting a part of the river, since the entrance into the river, which they reached about dark, was found not to be more than half a mile wide, formed by the contracting sh.o.r.es of the sound." It may fairly be admitted that the ordinary use of the terms "sound," or "inlet," warrants the verbal criticism of Mr. Greenhow, and that they are more usually employed to distinguish arms of the sea where there is no fresh water, or tideways outside the bars of rivers.

Lieutenant Broughton, if we may judge from the context would have been more correct had he used the term "estuary" instead of "sound," for, "in common understanding," as Lord Stowell has observed, "the embouchure or mouth of a river is that spot where the river enters the open s.p.a.ce to which the sea flows, and where the points of the coast project no further." (Twee Gebroeden, 3 Robinson's Reports, p. 34.) At the same time, after a careful perusal of Vancouver's journal, a protest must be entered against any reader of that work, particularly against one who occupies the position which Mr. Greenhow fills, attributing such motives to the British navigator, or insinuating such a probability as that Gray's discovery would have been suppressed by Vancouver, had not Gray fortunately secured Quadra as an unimpeachable witness to it. Mr. Greenhow's jealousy for the fame of his countryman may be excusable up to a certain point, but when he states that Vancouver "did not hesitate to adopt unworthy means to deprive the Americans of the reputation which they had justly earned by their labours in exploring, and to blacken their characters as individuals," he has allowed an unreasonable sensitiveness to hurry him into the commission of the very fault which he censures in others, and has laid himself open to the identical charge, mutatis mutandis, which he has set up against Vancouver.

Had there been any _substantial_ misrepresentation on the part of Vancouver in respect to what Gray actually did discover, "a want of good faith" might have been reasonably imputed to him. Happily, however, for Vancouver's memory, the extract from the log-book of the Columbia bears out all the facts which Lieutenant Broughton alleges as to the extent of Gray's researches. "From this point," the latter says, alluding to a remarkable projecting point on the southern side, appearing like an island, a little above Point George, to which the name of Tongue Point was given, "was seen the centre of a deep bay, lying at the distance of seven miles N. 26 E. This bay terminated the researches of Mr. Gray; and to commemorate his discovery, it was called after him, Gray's Bay." "In Mr.

Gray's sketch," Broughton further informs us, "an anchor was placed in this bay," so that he does not attempt in any way to misrepresent the locality of the spot where Gray's researches terminated. Lieutenant Broughton certainly denies the correctness of the sketch in respect to the distance of this bay from the entrance of the river. "It was not more," he writes, "than fifteen miles from Cape Disappointment, though according to the sketch it measures thirty-six miles." But the log-book itself confirms approximatively Lieutenant Broughton's statement, for it makes the distance of the spot where Gray brought up his vessel to be about twenty-two or twenty-five miles from the entrance between the bars, and Cape Disappointment is six miles distant from the entrance, so that there must have been an error in the sketch, if we admit the accuracy of the log-book.

The result of this inquiry seems fully to warrant the position which the British commissioners insisted on in 1826-7, that the discovery of the Columbia river was _a progressive discovery_. Heceta made the first step in 1775, when he discovered the bay, and concluded that "the place was the mouth of some great river, or of some pa.s.sage to another sea;" but Heceta's report was not made public by the Spanish authorities. Meares, in 1788, confirmed Heceta's discovery of the bay, but impugned the correctness of the Spanish charts, as to there being a river there with a good port; his Voyages were published in London in 1790. Vancouver, having seen Meares' account before he left England, examined the bay in April 1792, and at that time came to the conclusion that, though there was river-coloured water in the bay, yet the opening was not worthy of attention, as being inaccessible to vessels of the same burden as the Discovery: his account was published in 1798. Gray, in the May following, after having on a former occasion beat about in the bay for nine days ineffectually, succeeded on his second visit in pa.s.sing the bar, and explored the estuary for more than twenty miles: the extract of his log-book, which relates the particulars, was not made public before 1816.

Lieutenant Broughton in the same year may be considered to have completed the discovery of the river, by ascending it for more than eighty miles above the limits of Gray's researches, almost to the foot of the Cascades, where the tide ceases to be felt: the particulars of this expedition were published in the 2nd vol. of Vancouver's Voyage, in 1798.

The plenipotentiary of the United States, Mr. Gallatin, on the other hand, repudiated the notion of Gray's enterprise being considered as only a step in the progress of discovery, and maintained that the discovery of the river belonged exclusively to the United States; that Quadra (or he should have said, Heceta) had overlooked it; that Meares had likewise failed, and Vancouver had been not more fortunate; and that Broughton's merit consisted merely in performing with fidelity the mechanical duty of taking the soundings 100 miles up its course. Upon the fact of this a.s.serted first discovery in 1792, followed by the settlement of Astoria in 1812, Mr. Rush, announced, for the first time, in 1824, "that the United States claimed in their own right, and in their absolute and exclusive sovereignty and dominion, the whole of the country west of the Rocky Mountains from the 42d to at least as far up as the 51st degree of north lat.i.tude." "It had been ascertained that the Columbia extended by the River Multnomah to as low as 42 degrees north, and by Clarke's river to a point as high up as 51 degrees, if not beyond that point; and to this entire range of country, contiguous to the original dominions, and made a part of it by the almost intermingling waters of each, the United States,"

he said, "considered their t.i.tle as established, by all the principles that had ever been applied on this subject by the powers of Europe to settlements in the American hemisphere. I a.s.serted," he continued, "that a nation discovering a country, by entering the mouth of its princ.i.p.al river at the sea coast, must necessarily be allowed to claim and hold as great an extent of the interior country as was described by the course of such princ.i.p.al river, and its tributary streams."

Great Britain formally entered her dissent to such a claim, denying that such a principle or usage had been ever recognised amongst the nations of Europe, or that the expedition of Captain Gray, being one of a purely mercantile character, was ent.i.tled to carry with it such important national consequences, (British and Foreign State Papers, 1825-6.)

In the subsequent discussions of 1826-7, Great Britain considered it equally due to herself and to other powers to renew her protest against the doctrine of the United States, whilst on the other hand the United States continued to maintain, that Gray's discovery of the Columbia river gave, by the acknowledged law and usage of nations, a right to the whole country drained by that river and its tributary streams.

Haying now pa.s.sed in review the main facts connected with the discovery and occupation of the Oregon territory, we may proceed to consider the general principles of international law which regulate territorial t.i.tle.

CHAPTER VII.

ON THE ACQUISITION OF TERRITORY BY OCCUPATION.

Connexion of the Sovereignty of a Nation with the Domain.--Vattel. The Sovereignty and Eminent Domain (Dominium eminens) attend on Settlement by a Nation.--Settlement by an Individual limited to the Acquisition of the Useful Domain (Dominium utile.) A Nation may occupy a Country by its Agents, as by settling a Colony. Kluber's Droits des Gens.--The Occupation must be the Act of the State.--Occupation const.i.tutes a perfect t.i.tle.--Bracton de Legibus.--Wolff's Jus Gentium.--Acts accessorial to Occupation, such as Discovery, Settlement, &c., create only an imperfect t.i.tle.

"When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the _empire_ or sovereignty over it, at the same time with the _domain_. For, since the nation is free and independent, it can have no intention, in settling in a country, to leave to others the rights of command, or any of those rights that const.i.tute sovereignty. The whole s.p.a.ce over which a nation extends its government, becomes the seat of its jurisdiction, and is called its _territory_."

(Vattel, b. i., -- 205.)

The acquisition of sovereignty, therefore, attends as a necessary consequence upon the establishment of a nation in a country. But a nation may establish itself in a country, either by immigration in a body, or by sending forth a colony; and when a nation takes possession of a vacant country, and settles a colony there, "that country, though separated from the princ.i.p.al establishment or mother country, naturally becomes a part of the state, equally with its ancient possessions." (Vattel, b. i., -- 210.)

The right of _domain_ in a nation corresponds to the right of _property_ in an individual. But every nation that governs itself by its own authority and laws, without dependence on any foreign power, is a sovereign state; and when it acts as a nation, it acts in a sovereign capacity. When a nation therefore occupies a vacant country, it imports its sovereignty with it, and its sovereignty ent.i.tles it not merely to a disposing power over all the property within it, which is termed its Eminent Domain, but likewise to an exclusive right of command in all places of the country which it has taken possession of. In this respect, then, a nation differs from an individual, that, although an independent individual may settle in a country which he finds without an owner, and there possess an independent domain (the dominium utile, as distinguished from the dominium eminens,) yet he cannot arrogate to himself an exclusive right to the country, or to the empire over it. His occupation of it would be, as against other nations, rash and ridiculous (Vattel, b. ii., -- 96;) and it would be termed, in the language of the Jus Gentium, a "temeraria occupatio, quae nullum juris effectum parere potest," (Wolffii Jus Gentium, -- 308.)

A nation, however, may delegate its sovereign authority to one or more of its members for the occupation of a vacant country, equally as for other purposes, where it cannot act in a body; in such cases the practice of nations allows it to be represented by an agent. Thus the right of settling a colony is a right of occupation by an agent. The colonists represent the nation which has sent them forth, and occupy their new country in the name of the mother country. But the colonists must be sent forth _by the public authority of the nation_, otherwise they will possess no national character, but will be considered to be a body of _emigrants_, who have abandoned their country.

Thus, Kluber, in his "Droit des Gens Modernes de l'Europe:"--"Un etat peut acquerir des choses qui n'appartiennent a personne (_res nullius_) par l'occupation (originaire;) les biens d'autrui au moyen de conventions (occupation derivative.).... Pour que _l'occupation_ soit legitime, la chose dolt etre susceptible d'une propriete exclusive; elle ne doit appartenir a personne; _l'etat doit avoir l'intention d'en acquerir la propriete, et en prendre possession_ (the State ought to have an intention to acquire the right of property in it, and to take possession of it;) c'est a dire, la mettre entierement a sa disposition et dans son pouvoir physique."

_Occupation_, then, in this sense of the word, denotes the taking possession of a territory previously vacant, which has either always been unoccupied, or, if ever occupied, has been since abandoned. It const.i.tutes a perfect t.i.tle, and its foundation may be referred to an axiom of natural law: "Quod enim ante nullius est, id ratione naturali occupanti conceditur." (Dig. l. 3, D. de Acq. Rer. Dom.) This principle, engrafted into the Roman law, was as fully recognised by Bracton and by Fleta:--"Jure autem gentium sive naturali dominia rerum acquiruntur multis modis. Imprimis, per occupationem eorum, quae non sunt in bonis alicujus, et quae nunc sunt ipsius regis de jure civili, et non communia ut olim."