The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1845-12-15

NO exclusive sovereignty over any portion OF that
territory Her present claim, not IN respect TO any
part, but 10 the whole, Is limited to right OF JOINT
occupancy in common with other States, leaving
the right Of exclusive dominion IN allegiance" And
again: by that convention (of Nootka) II was
agreed that all parts of the northwestern coast OF
America, not already occupied at that time by either
OF the contracting parties, should thenceorward be
equally open to the subjects Of both for all purposes
OF commerce and settlement-the sovereignty re-
naming IN allegiance" But on this subject we are
not left to mere inferences, however clear. The
British commissioners in their statement from
which the undersigned has just quoted, have virtu-
ally abandoned any other title which Great Britain
may have previously asserted to the territory in dis
pute and expressly declare that whatever that IL
tie may have been, however, either on the part OF
Great Britain or on the part of Spain, prior to the
convention OF 1870, II was thencefOrward no longer
to be traced IN vague narratives OF discoveries Sc
veral of them admitted to be apocryphal, but in the
text and stlpulations of that convention itself"
And again, In summing up their whole case, they
"Admttlng that the United States have acquired
all the rights which Spain possessed up to the treaty
of Florida, either in virtue of discovery, or, as Is
pretended, IN right OF Louisiana, Great Britain
maintains that the nature and extent OF these rights,
well the rights of Great Britain, are fixed and
defined by the convention OF Nootka," DC. &c.
The undersigned, after careful examination, can
discover nothing in the note of the present British
plenipoteniary to Mr.. Calhoun, OF the 18th Septem
Der last to impair the force of these declarations
and admissions OF his predecessors. On the con-
traIy, Its general tone is In perfect accordance with
them.
Whatever may be the consequences, then, wheth
for good or tor evll-whether to strengthen or TO
destroy the British caim-it is now too late for the
British government to vary their position. If the
Nootka convention conters upon them such
rights they claim they cannot at this late hour go
behind Its provisions, and set up claims which, IN
1896, they admitted had been merged " in the text
and stpulatons OF that convention iteelf."
The undersigned regrets that the British plenlpo-
Tertiary has not noticed his exposition OF the true
tr,,ct,on of tha 10 na hod
endeavored, and he believes successfully, to prove
that this treaty transient in its very nature; that
1t conferred upon Great Britain no right but that OF
merely trading with the Indians whilst the country
should remain unsettled, and making the necessary
establishments for this purpose and that 1t did not
interfere with the ultimate sovereignty OF Spain
over the territory. The British penipoentlary has
not attempted to resist these conclusions. II they
be fair and legitimate, then 1t would not avail Great
Britain, even if she should prove the Nootka con-
vention to be still in force On the contrary, this
convention, IT the construction placed upon 1t by the
undersigned be correct contains clear virtual ad.
mission the part of Great Britain that Spain held
the eventual right of sovereignty the whole dis
puted territory; and consequently that 1t now belongs
to the United States
The value OF this admission, made in 1870, is the
same whether or not the convention has continued
to exist until the present day. But he is willing to
leave this point on the uncontroverted argument
contained in his former statement.
But is the Nootka Sound convention still in force?
The British penipotentiary does not contest the
inmates all subsistng treaties between the belge-
rent powers" He contends, however, in the first
place, that this convention is partly commercially and
that so far as II partaes OF this character, II was re-
vved by the treaty concluded at Madrid on the 18th
August, 1874 which declares "that all the treaties
of commerce which subsisted between the two par
ties (Great Britain and Span) in 1876, were there
by ratified and confirmed and, second, "that in
other respects it must be considered as an acknow
ledgment Of subsisting yightsan admission of GER
tain principles of international law" not to be revok
| ed by war
In regard to the first proposition, the undermined
is satisfied to leave the question TO rest upon for
mer argument, as the British penipotentiary has
contented himself with merely asserting the fact,
that the commercial portion Of the Nootka Sound
convention wins revived by the treaty OF 1914, with
out even specifying what he considers to be that
portion of that convention. II the undersigned had
desired to strengthen his former POSITION he might
have repeated with great effect the argument con-
tanned in the note Of Lord Aberdeen to the Duke OF
Sotomayor, dated Goth of June, 1916, in which his
lordship clearly established that all the treaties of
commerce subslsting between Great Britain and
Spain previous to 1876 were confined to the trade
with Spain alone, and did not embrace her colonies
and remote possessions
The second proposition of the British plenpoten-
tlary deserves greater attention. Does the Nootka
Sound convention belong to that class of treaties
containing an acknowledgment OF subssting
rlghts-an admission OF certain principles Of inter-
national law" not to be abrogated by war. Had
Spain by this convention acknowledged the right OF
all nations TO make discoveries, plant settlements,
and establish colonies, the northwest coast OF
America, bringing with them their sovereign juris-
dction, 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 acknowledgement of simple and elementary
principles consecrated by the law of nations. In
all its provisions il is expressly confined to Great
Britain and Spain, and acknowledges no right what
ever In any third power to Interfere with the north
west coast OF America. Neither in its terms, nor in
/ acknowledgements
previously subsstlng territorial rights in Great Bril-
tam, or any other nation. II is strictly confined to
future engagements; and these are of most peculiar
character. Even under the construction OF Its pro-
visions maintained by Great Britain, her claim does
not extend to plant colonies; which she would have
had right to do under the law OF nations, had the
country been Incorporated; ; but il is limited to
mere right of JOINT occupancy. not IN respect to any
part, but to the whole, the sovereignty remaining IN
allegiance. And to what kind of occupancy? Not
separate and distinct colonies, but scattered settle
ments, interminged with each other, over the whole
surface OF the territory, tor the single purpose OF ira
ding 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 commended that such trea-
y is !" an admission 4 certain principles OF interna-
tional law" sacred and perpetual IN their ma
ture not to be annuled by war. On the contrary
from the character OF its provisions, 1t cannot be
supposed for single moment that il was intended
for any purpose but that OF mere temporary arrange
ment between Great Britain and Spain The law OF
nations recognises no such principles In regard to
unappropriated territory as those embraced in this
treaty; and the British plenpotentary must fail
the attempt to prove that it contains Fan admission
OF certain principles of international law which
will survive the shock of war.
But the British plenpotentary contends that from
the silence OF Spain during the negotiations OF 1918
between Great Britain and the United States re-
specting the Oregon territory, well "from her
silence with respect to the continued occupation by
the British OF their settlements in the Columbia ter
rltory, subsequently, to the convention OF 1874" it
may fairly BE inferred that Spain considered the
stiI uations OF the Nooka convention, and the prln
ciples therein laid down, to be still in force"
The undersigned cannot imagine case where
the obligations OF treaty, once extngnished by
war, can be revived without positive agreementto
this effect between the parties. Even If both par
positive and unequlvoca acts in accordance with il