The Sun.
London, England, 1845-12-30 00:00:00

subsisting treaties between the belligerent powers." He
contends, however, in the first place, that this convention
is partly commercial ; and that, so far as it partakes of
this character, it was revived by the treaty con-
cluded at Madrid on the 28th of August, 1814, which
declares " that all the treaties of commerce which sub-
sisted between the two parties (Great Britain and Spain)
in 1796, were thereby ratified and confirmed ;" and, se-
cond, " that in other respects it must be considered as an
acknowledgment of subsisting rights, an admission of cer-
tain principles of international law" not to be revoked
by war.
In regard to the first proposition, the undersigned is
satisfied to leave the question to rest upon his former
argument, as the British Plenipotentiary has contented
himself with merely asserting the fact that the commer-
cial portion of the Nootka Sound convention was revived
by the treaty of 1814, without even specifying what he
considers to be that portion of the convention. If the
undersigned had desired to strengthen his former posi-
tion, he might have repeated with great effect the argu-
ment contained in the note of Lord Aberdeen to the
Duke of Sotomayor, dated 30th June, 1845, in which
his Lordship clearly established that all the treaties of
commerce subsisting between Great Britain and Spain
previous to 1796 were confined to the trade with Spain
alone, and did not embrace her colonies and remote pos-
The second proposition of the British Plenipoten-
tiary deserves greater attention. Does the Nootka
Sound convention belong to that class of treaties con-
taining "an acknowledgment of subsisting rights—an
admission of certain principles of international law"
not to be abrogated by war? Had Spai❑ by this con-
vention acknowledged the rights of all nations to make
discoveries, plant settlements, and establish colonies, on
the north-west coast of America, bringing with them
their sovereign jurisdiction, there would have been much
force in the argument. But such an admission never was
made, and never was intended to be made, by Spain.
The Nootka convention is arbitrary and artificial in the
highest degree, and is anything rather than the mere
acknowledgment of simple and elementary principles
consecrated by the law of nations. In all its provisions
it is expressly confined to Great Britain and Spain, and
acknowledges no right whatever in any third power to
interfere with the not th-west coast of America. Neither
in its terms, nor in its essence, does it contain any ac-
knowledgment of previously subsisting territorial rights
in Great Britain, or any other nation. It is strictly con-
fined to future engagements, and these_ are of a most
peculiar character.
Even under the construction of its provisions main-
tained by Great Britain, her claim does not extend to
plant colonies, which she would have had a right to do
under the law of nations, had the country been unap-
propriated ; but it is limited to a mere right of joint
occupancy, not in respect to any part, but to the whole,
the sovereignty remaining in abeyance. And to what
kind of occupancy ? Not separate and distinct colonies,
but scattered settlements, intermingled with each other,
over the whole surface of the territory, for the single
purpose of trading with the Indians, to all of which the
subjects of each Power should have free access, the right
of exclusive dominion remaining suspended. Surely, it
cannot be successfully contended that such a treaty is
"an admission of certain principles of international
law," so sacred and so perpetual in their nature as not
to be annulled by war. On the contrary, from the cha-
racter of its provisions, it cannot be supposed for a single
moment that it was intended for any purpose but that of
a mere temporary arrangement between Great Britain
and Spain. The law of nations recognises no such prin-
ciples in regard to unappropriated territory as those em-
braced in this treaty ; and the British Plenipotentiary
must fail in the attempt to prove that it contains " an
admission of certain principles of international law "
which will survive the shock of war.

But the British Plenipotentiary contends that from the
silence of Spain during the negotiations of 1818, between
Great Britain and the United States, respecting the
Oregon territory, as well as " from her silence with
respect to the continued occupation by the British of
their settlements in the Columbia territory, subsequently
to the convention of 1814," it may fairly " be inferred
that Spain considered the stipulations of the Nootka
convention and the principles therein laid down to be
still in force."
The undersigned cannot imagine a case where the
obligations of a treaty, once extinguished by war, can
be revived without a positive agreement to this effect
between the parties. Even if both parties after the
conclusion of peace should perform positive and unequi-
vocal acts in accordance with its provisions, these must
be construed as merely voluntary, to be discontinued by
either at pleasure. But in the present case it is not
even pretended that Spain performed any act in accord •
ante with the cc nvention of Nootka Sound, after her
treaty with Great Britain of 1814. Her mere silence is
relied upon to revive that convention.
The undersigned asserts confidently, that neither by
public nor private law, will the mere silence of one
party, whilst another is encroaching upon his rights,
even if he had knowledge of this encroachment, deprive
him of these rights. If this principle be correct as ap-
plied to individuals, it holds with much greater force in
regard to nations. The feeble may not be in a condition
to complain against the powerful ; and thus the en-
croachment of the strong would convert itself into a
perfect title against the weak.
In the present case it was scarcely possible for Spain
even to have learned the pendency of negotiations be-
tween the United States and Great Britain, in relation
to the north-west coast of America, before she had ceded
all her rights on that coast to the former by the
Florida treaty of the 22d of February, 1819. The con-
vention of joint occupation between the United States
and Great Britain was not signed at London until the
20th of October. 1818—but four months previous to the
date of the Florida treaty, and the ratifications were not
exchanged, and the convention published, until the 30th
of January, 1819.
Besides, the negotiations which terminated in the
Florida treaty had been commenced as early as Decem-
ber, 1815, and were in full progress on the 20th October,
1818, when the convention was signed between Great
Britain and the United States. It does not appear,
therefore, that Spain had any knowledge of the exist-
ence of these negotiations, and even if this were other-
wise, she would have bad no motive to complain, as she
was in the very act of transferring all her rights to the
United States.
But, says the British Plenipotentiary, Spain looked in
silence on the continued occupation by the British of
the settlements in the Columbia territory subsequently
to the convention of 1814 ; and, therefore, she con-
sidered the Nootka Sound convention to be still in force.
The period of this silence, so far as it could affect Spain,
commenced on the 28th day of August, 1814, the
date of the additional articles to the treaty of Madrid,
and terminated on the 22d of February, 1819, the
date of the Florida treaty. Is there the least reason
from this silence to infer an admission of Spain of the
continued existence of the Nootka Sound convention? In
the first place, this convention was entirely confined to
landing on the coasts of those seas, in places not already
occupied, for the purpose of carrying on their commerce
with the natives of the country, or of making settlements
there. It did not extend to the interior. At the date of
this convention no person dreamed that British traders
from Canada or Hudson's Bay would cross the Rocky
Mountains, and encroach on the rights of Spain from
that quarter. Great Britain had never made any settle-
ment on the north-western coast of America, from the
date of the Nootka Sound convention until the 22d of
February, 1819 ; nor, so far as the undersigned is in-
formed, has she done so down to the present moment.
Spain could not, therefore, have complained of any
such settlement. In regard to the encroachments which
had been made from the interior by the North- West Com-
pany, neither Spain nor the restof the world had any spe-
cific knowledge of their existence. But even if the British
Plenipotentiary had brought such knowledge hometoher,
which he has not attempted, she had been exhausted by one
long and bloody war, and was then engaged in another
with her colonies ; and was, besides, negotiating for a
transfer of all her rights on the north-western coast of
America to the United States. Surely these were suffi-
cient reasons for her silence, without inferring that she
acquiesced in the continued existence of the Nootko con-
vention. If Spain had entertained the least idea that
the Nootka convention was still in force, her good faith
and her national honour would have caused her to com-
municate this fact to the United States before she had
ceded this territory to them for an ample consideration.
Not the least intimation of this kind was ever communi-
cated. _ _ _ _ _ _

Like Great Britain in 1818, Spain in 1819 had no idea
that the Nootka Sound convention was in force. It had
then passed away and was forgotten.
The British Plenipotentiary alleges, that the reason
why Great Britain did not assert the existence of the
Nootka convention during the negotiations between
the two Governments in 1818, was, that no occa-
sion had arisen for its interposition, the American
Government not having then acquired the title of
Spain. It is very true that the United States had
not then acquired the Spanish title ; but in it pos-
sible to imagine that throughout the whole negotiation
the British Commissioners, had they supposed this con-
vention to have been in existence, would have remained
entirely silent in regard to a treaty which, as Great
Britain now alleges, gave her equal and co ordinate
rights with Spain to the whole north-west coast o.
America ? At that period Great Britain confined her
claims to those arising from discovery and purchase
from the Indians. How vastly she could have strength-
ened these claims, had she then supposed the Nootka
convention to be in force, with her present construction
of its provisions. Even in 1824 it was first introduced
into the negotiation, not by her Commissioners, but by
Mr. Rush the American Plenipotentiary.
But the British Plenipotentiary argues that " the
United States can found no claim on discovery, explora-
tion, and settlement effected previously to the Florida
treaty, without admitting the principles of the Nootka.
convention ;" " nor can they appeal to any exclusive
right as acquired by the Florida treaty, without upset-
ting all claims adduced in their own proper right, by
reason of discovery, exploration,, and settlement antece-
dent to that arrangement."
This is a most ingenious method of making two dis-
tinct and independent titles held by the same nation
worse than one—of arraying them against each
other, and thus destroying the validity of both. Does
he forget the t the United States own both these titles.
and can wield them either separately or conjointly
against the claim of Great Britain at their pleasure ?
From the course of his remarks, it might be supposed
that Great Britain, and not the United States, had ac-
quired the Spanish title under the Florida treaty.
But Great Britain is a third party—au entire stranger
to both those titles, and has no right whatever to marsnal
the ono against the other.
By what authority can Great Britain interpose in than
manner ?—Was it ever imagined in any court of justice
that the acquisition of a new title destroyed the
old one ; and vice versa, that the purchase of the
old title destroyed the new one ? In a question of
mere private right, it would be considered absurd
if a stranger to both titles should say to the party

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