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

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subsisting treaties between the belligerent powers." He
contes? however, in the first place, that this convention
is partly comnierciel ; and that, sr, 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 Siam n)
in 1796, were thereby ratified and confirmed ;" and, se-
cond, " that in other respects it must be considered as fert
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-
sessions.
The second proposition of the British Plenipoten-
tiary deserves greater attention. Does the Nootkas
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 Spain 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 vela: eeign jurisdiction, there would have been much
force in the ara-pment. But such an admission never was
made, and never woes intended to be made, by Spain.
The Nootka conveatiea Lv arbitrary and artificial in the
highest degree, and is anyt:eing rather than the mere
acknowledgment of simple awl 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 leiwer to
interfere with the north-west coast of America. Neither
in its terms, nor in its essence, does it contain any ace
knewledgment 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
(J. B. 2.) either at pleasure. But in the present case it is not
Department of State, Washington, Aug. 30,1845. even pretended that Spain performed any act in accord-
The undersigned, Secretary of State of the United ante with the convention of Nootka Sound, after her
States, deems it his duty to make some observations in treaty with Great Britain of 1814. Her mere silence is
reply to the statement of her Britannic Majesty's Envoy relied upon to revive that convention.
Extraordinary and Minister Plenipotentiary, marked The undersigned asserts confidently, that neither by
H. P., and dated 29th July, 1845. public nor private law, will the mere silence of one
Preliminary to the discussion, it is necessary to fix party, whilst another is encroaching upon his rights,
our attention upon the precise question under considera- even if he had knowledge of this encroachment, deprive
tion, in the present stage of the negotiation. The ques- him of these rights. If this principle be correct as ap-
tion simply is, were the titles of Spain and the United plied to individuals, it holds with much greater force in
States, when united by the Florida treaty on the 22d of regard to nations. The feeble may not be in a condition
IFebruary, 1819, good as against Great Britain, to the to complain against the powerful ; and thus the en-
OregeSss territory as far north as the Russian line, in the croachwent of the strong would convert itself into a
latitude ot'jst. degrees 40 minutes ? If they were, it will perfect title against the weak.
be admitted that this whole territory now belongs to the In the present case it was scarcely possible for Spain
United States. even to have learned the pendency of negotiations be-
The undersigned again nimgrks that it is not his pur- tween the United States and Great Britain, in relation
which hie predecessor, to the north-west coast of America, before she had ceded
pose to repeat the argument by
tnerican title "to all her rights on that coast to the former by the
Mr. Calhoun, has demonstrated the .r.'e .
rtaer awl its Florida treaty of the 22d of February, 1819. The con-
the entire region drained by the Columbia
branches." He will not thus impair its force. vention of joint occupation between the United States
It is contended, on the part of Great Britain, than the and Great Britain was not signed at London until the
and hold the Spanish title, sub- 20th of October, 1818—hut four months previous to the
United States acquired
ject to the terms and conditions of the Nootka Sound lete of the Florida treaty, and the ratifications were not
ceebeenged, and the convention published, until the 30th
convention, concluded between Great Britain and Spain,
1819.
at the Escurial, en the 28th of October, 1790. of Janut.:.rr,
In opposition to the argument of the undersigned con- Besides, .4.lie negotiations which terminated in the
tamed in his statement, marked J. 8., maintaining that Florida treaty 11'. ad been commenced as early as Deem-
this convention had been annulled by the war between ber, 1815, nod were in full progress on the 20th October,
Spain and Great Britain, in 1796, and has never since 1818, when the convention was signed between Great
been revived by the parties, the British Plenipotentiary, Britain and the United States. It does not appear,
in his statement marked B. P., has taken the following therefore, that Spain had any knowledge of the exist-
positions : trice of these negotiations, and evsen if this were other-
1. " That a hen Spain concluded with the United States wise, she would have had no motive tes complain, as she
the treaty of 1819, commonly called the Florida treaty, was in the very act of transferring all hter rights to the
the convention concluded between the former power and United States.
Great Britain, in 1790, was considered by the parties to But, says the British Plenipotentiary, Spain looked in
it to be still in force." silence on the continued occupation by the British of
And 2. " But that, even if no such treaty had ever ex- the settlements in the Columbia territory subsequently
isted, Great Britain would stand, with reference to a to the convention of 1814 ; and, therefore, she con-
claim to the Oregon territory, in a position at least as sidered the Nootka Sound convention to be still in foree.-
favourable as the United States." The period of this silence, so far as it could affect Spain,.
The undersigned will follow, step by step, the argu- commenced on the 28th day of August, 1814, the.
meat of the British Plenipotentiary in support of these date of the additional articles to the treaty of
8 Madrid,
propositions. and terminated on the 22d of February, 119, the
The British Plenipotentiary states, "that the treaty of date of the Florida treaty. Is there the least reason
1790 is not appealed to by the British Government, as from this silence to infer an admission of Spain of the
the American Plenipotentiary seems to suppose, as their continued existence of the Nootka Sound convention? In
' main reliance' in the present discussion ; but to show the first place, this convention was entirely confined to.
that, by the 'Florida treaty of 1819, the United States ac- landing on the coasts of those seas, in places not already
quired no right to exclusive dominion ever any part of occupied, for the purpose of carrying on their commerce
that Oregon territory." with the natives of ti.e country, or of making settlements
The undersigned had believed that ever since 1826 there. It did not extend to the interior. At the date of
the Nootka convention had been regarded by the British this convention no person dreamed that British traders
Government as their main, if not their only, reliance. from Canada or Hudson's Bay would cross the Rocky
The very nature and peculiarity of their claim identified Mountains, and encroach on the rights of Spain from
it with the construction which they have imposed upon that quarter. Great Britain had never made any settle-
this convention, and necessarily excludes every other went on the north-western coast of America, from the
basis of title. What but to accord with this construction date of the Nootka Sound convention until the 22d of
could have caused Messrs. Huskisson and Addington, February, 1819 ; nor, so far as the undersigned is in-
the British Commissioners, in specifying their title, on formed, has she done so down to the present moment.
the 16th of December, 1826, to declare " that Great Spain could not, therefore, have complained of any
Britain claims no exclusive sovereignty over any porton such settlement. In regard to the encroachments which
of that territory. Her present claim, not in respect to had been made from the interior by the North-West Com-
any part, but to the whole, is limited to a right of joint pany, neither Spain nor the rest of the world had any spe-
occupancy in common with other states, leaving the Mile knowledge of their existence. But even if the British
right of exclusive dominion in abeyance." And again: Plenipotentiary had brought such knowledge hornet° her,
"By that convention (of Nootka) it was agreed that all which he has not attempted, she had been exhausted by one'
parts of the north-western coast of America, not al- long and bloody war, and was then engaged in another
ready occupied at the time by either of the contracting with her colonies ; and was, besides, negotiating for a
parties, should thenceforward be equally open to the transfer of all her rights on the north-western coast of
subjects of both for all purposes of commerce and settle- America to the United States. Surely these were suffi-
ment—the sovereignty remaining in abeyance." But cient reasons for ber silence, without inferring that she
on this subject, we are not left to mere inferences, how- acquiesced in the continued existence of the Nootko con-
ever clear. The British Commissioners, in their state- vention. If Spain had entertained the least idea that
went from which the undersigned has just quoted, have the Nootka convention was still in force, her good faith
virtually abandoned any other title which Great Britain and her national honour would have caused her to com-
may have previously asserted to the territory in dispute, municate this fact to the United States before she had'
and expressly declare " that whatever that title may ceded this territory to them for an ample consideration..
have been, however, either on the part of Great Britain Not the least intimation of this kind was ever communi
or on that of Spain, prior to the convention of 1790, it cated.
was thenceforward no longer to be traced in vague nar- Like Great Britain in 1818, Spain in 1819 had no 'idea
ratives of discoveries, several of them admitted to be that the Nootka Sound convention was in force. It had
apocryphal, but in the text and stipulations of that con- then passed away and was forgotten.
vention itself." The British Plenipotentiary alleges, that the reason
And again, in summing up their whole case, they say: why Great Britain did not assert the existence of the
—" Admitting that the United States have acquired all Nootka convention during the negotiations between
the rights which Spain possessed up to the treaty of the two Governments in 1818, was, that no occa-
Florida, either in virtue of discovery, or, as it is pre- sion had arisen for its interposition, the American
tended, in right of Louisiana, Great Britain maintains Government not having then acquired the title of
that the nature and extent of these rights, as well as the Spain. It is very true that the United States bad
rights of Great Britain, are fixed and defined by the con- not then acquired the Spanish title ; but in it pos-
vention of Nootka, Sec. sible to imagine that throughout the whole negotiation
The undersigned, after a careful examination, can dis- the British Commissioners, bad they supposed this con-
cover nothing in the note of the present British Plenipo;
tertiary to Mr. Calhoun, of the 12th of September last, vention to have been in existence, would have remained
entirely silent in regard to a treaty which, as Great
, gave her equal and co • ordinate
to impair the force of these declarations and admissions
of his predecessors. On the contrary, its general tone Br i
gr iht at
si n
wni
toi wi
sapl
al ei g" n
to the whole north-west coast of
is in perfect accordance with them. America ? At that period Great Britain confined her
Whatever may be the consequences, then, whether for claims to those arising from discovery and purchase
good or evil—whether to strengthen or to destroy the from the Indians. How vastly she could have strength-
British claim—it is now too late for the British Govern- ened these claims, had she then supposed the Nootka
meat to vary their position. If the Nootka convention convention to be in force, with her present construction
confers upon them no such rights as they claim, they of its provisions. Even in 1824 it was first introduced
cannot at this late hour go behind its provisions, and set into the negotiation, not by her Commissioners, but by
up claims which, in 1826, they admitted had been merged Mr. Rush the American Plenipotentiary.
"in the text and stipulations of that convention itself." But the British Plenipotentiary argues that " the
Thit undersigned regrets that the British Plenipoten- United States can found no claim on discovery, explora-
tiary has not noticed his exposition of the true construe- tion, and settlement effected previously to the Florida
tioa of the Nootka convention. He had endeavoured, treaty, without admitting the principles of the Nootka,
and he believes successfully, to prove that this treaty
convention ;" " nor can they appeal to any exclusive
was transient in its very nature; that it conferred
, right as acquired by the Florida treaty, without upset-
upon Great Britain no right but that of merely traok-
ting all claims adduced in their own proper right, by
ing with the Indians whilst the country should remain
unsettled, and making the necessary establishments r_,easoent n
that arrangement.
of discovery, exploration, and settlement antece-
u to
This is a most ingenious method of making two dis-
for ibis purpose; and that it did not inter-
fere with the ultimate sovereignty of Spain over the ter- tinct and independent titles held by the same nation
ritory. The British Plenipotentiary has not attempted worse than one—of arraying them against each
to, resist these conclusions. If they be fair and legitimate, other, and thus destroying the validity of both. Does
then it would not avail Great Britain, even if she should he forget that the United States own both these titles,
nro ye the Nootka convention to be still in force. On and can wield them either separately or conjointly
the ,contrary, this convention, if the construction placed against the claim of Great Britain at their pleasure ?
. it by the undersigned be correct, contains a clear
upon . From the course of his remarks, it might be supposel
dmission on the part of Great Britain that Spain
virtual tothat Great Britain, and not the United States, bad ac-
held the eventual right of sovereignty over the whole quired the Spanish title under the Florida treaty.
disputed te_eritory, and consequently that it now belongs But Great Britain is a third party—an entire stranger
to the l'initeul States. to both these titles, and has no right whatever to marshal
The vai.'le nt. this admission, made in 1799, the samC, the one against the other.
whether or 'het the convention has continued to exist ;nw
By what authority can Great Britain interpose in this
manner
the present day:- But he is willing to.leadve.t
his former
on ?—Was it ever imagined in any court of justice
the uucontrovert,,d argument curtained in ns
that the acquisition of a new title destroyed the
old one ; and vice versa, that the purchase of the
statement. sound convention still in force ?
But is the Nootka e'l ry does not contest the clear old title destroyed the new one ? In a question of
The British Plenipotentia •ew " thtwar terminates .
, a
if a stranger to both titles should says to the party
general principle of public i..

PRICE SD.