THE OREGON : AMERICAN " PLEAS IN LAW."
THREE years of negotiation have, apparently, left unaltered and unmodified the views of the Oregon question entertained by the British and the United States Governments respectively. The voluminous correspondence between the British Minister at Washington and the gentlemen who have successively held the appointment of Secretary for Foreign Relations to the American Government since 1842 has produced no perceptible approxima- tion. Not one assertion or argument has been given up as un- tenable on either side. The proposal made by the British Minister with a view to settle the controversy by compromise has been rejected ; the proposal made to the same end by the American Secretary has been withdrawn. Not even a beginning has been made to avert the risk of hostilities, always contingent upon an "open question." Under these circumstances, the diplomatically urbane and temperate tone of the correspondence gives less satis- faction than it otherwise would do.
The only point discussed in this correspondence that possesses any degree of novelty, is the argument arising out of the con- vention between Spain and the United States in 1819, known by the name of the Florida treaty. The United States rest their claim to Oregon on three distinct and independent titles,—first, on the discoveries of Grey and Lewis ; second, on the acquisition of Louisiana ; third, on the acquisition of the Spanish title by the treaty of Florida. This third title appears to deserve more minute examination than it has hitherto received on our side of the Atlantic.
It may be assumed as an axiom, that no government can con- vey to another a right more extensive than itself possesses. The United States could acquire no other title to Oregon by the treaty of Florida than Spain itself possessed. The rights of Spain on the West coast of America to the North of the actual Spanish settlements were limited and defined by the convention between the Kings of Spain and Great Britain, signed at the Escurial in 1790. The preamble of that convention declares its object to be, " setting aside all retrospective discussion of the rights and pre- tensions of the two parties," to " fix their respective situation for the future [realer leer position respective a Pamir] on a basis conformable to their true interests." The third article establishes this " respective situation " or relative position—which is the more English translation of the French words : " It is agreed that their respective subjects shall not be disturbed or molested, either in navigating, or carrying on their fisheries in the Pacific Ocean or South Seas, or in 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 [y former des etablissemens]. The sixth article restricts the right to make settlements, either by the English or Spaniards, to the North-west coast : no permanent settlements are to be formed by either South of the territories actually occupied by Spain. By the convention of 1790, Spain and England renounced all title to the sovereignty of the West coast of America, North of the Spanish settlements, on the mere ground of discovery. The whole of that region was declared open to the subjects of both Governments, to prosecute their fisheries, to trade with the natives, or to colonize. " Y for- mer des etablissemens " was obviously used in the sense of "to colonize "; for these reasons—lst, The same word, " etablisse- mens," was used in the fourth article to denote the Spanish colo- nies with which trade was forbidden : 2nd, " Making settlements" was mentioned as something entirely distinct from trading—" y exercer leur commerce * * OU y former des etablissemens ": 3rd, It was agreed, in the first article, that the "tracts of land" [districts de terrein] on the North-west coast, of which British subjects had been dispossessed by a Spanish officer, should be restored to them, with compensation : 4th, It was stipulated that the subjects of either Crown should be admitted to trade without disturbance or molestation at the, settlements made or to be made by those of the other on the North-west coast ; which would have been a superfluous stipulation had these settle- ments not been under the dominion of the respective Crowns : 6th, On the 23rd of March 1795, the agreement to restore the buildings, &c., was actually carried into effect, in the pre- sence and with the sanction of a Spanish Commissioner, by razingg the fort which the Spaniards had erected at Nootka, and hoisting the British flag there as a symbol of sovereignty. Subsequently to 1790, Great Britain and Spain possessed a com- mon right to fish on the North-west coast of America, to trade there, or establish colonies there. The actual settlement of any district by the subjects of either Crown brought that district under its sovereignty. It is maintained by the diplomatists of the United States that the Nootka convention was terminated by the war of 1796. Territorial arrangements entered into by two independent states cannot be annulled by implication merely be- cause these states afterwards go to war. If a war were to break out between Great Britain and the United States, the Madawaska settlements would not revert to this country ipso facto, and require to be ceded over again at the return of peace, unless they had been actually occupied. In 1796, Spain did not, even in words, reas- sert the claim of sovereignty over the North-west territory which she renounced in 1790 ; much less did she take any measures to resume possession. The arrangement of 1790 was made for per- petuity [a l'avenir]; it has never been revoked, and is as firm now as on the day when it was made. By the Florida treaty the United States could acquire no right that Spain did not previously possess. The right of Spain in the territory North of Cape Mendecino was the right to fish on the coasts, to trade undisturbed both within the limits of the British settlements and in the unoccupied districts, and to colonize any unappropriated portions of the territory. This right to colonize had never been exerted by Spain. By accepting the Spanish title, the United States renounced all right of sovereignty on the ground of priority of discovery. In 1790, Spain and England agreed that mere discovery should establish no right of sove- reignty in the North-west territory; that actual settlement alone could confer that right. One of two parties to a compact cannot 'retain the rights it conveys to him and at the same time disclaim the obligations it imposes upon him. A third party, to whom he conveys his rights, must in like manner incur the correspond- ing obligations. Neither Spain, nor the United States coming
in the place of Spain, can establish any right of sovereignty in the North-west territory, subsequently to 1790, on the mere ground of discovery. Had the United States advanced a claim to sovereignty in any part of that region prior to 1790, a treaty between Spain and England could not have invalidated that earlier claim ; but the earliest discovery to which the Americans lay claim was made in 1792. This was the view of the question taken by the American Go- vernment in 1814, when it claimed restitution of Astoria. This was the view taken by the American Government in 1818, when it entered into the arrangement of joint-occupancy with Great Britain. By asserting a right of sovereignty over Astoria, by as- serting a right of joint-occupancy with Great Britain, the Go- vernment of the United States proclaimed more strongly than it could do by words its conviction that the Spanish Government had no right of sovereignty in the North-west territory. Since 1818, the United States Government has learned nothing respect- ing the Spanish title that it did not know before. It now asserts the existence of a right it denied before, without advancing any new fact or new argument to justify the change of opinion, sim- ply because it has persuaded the party to whom the right is at-
tributed to execute a deed of conveyance in its favour. By as- serting in 1845 what it denied in 1818, the United States Go- vernment places itself in the position of one who maintains that whatever he thinks conducive to his interest must be right.
The claim advanced to Oregon by the United States Govern- ment on the ground of prior discovery, and the claim it advances on the ground of having acquired the Spanish title, are incom- patible. The one destroys the other. Mr. Buchanan argues that his Government can rest upon both, because a private litigant can strengthen his own title by acquiring that of his adversary. The private litigant can confirm himself in possession by purchasing the title of a claimant, because he thereby puts that claimant out of court. But if there are two claimants, the mere purchase of the title of one of them does not put the other out of court. The possessor must make out one or both of his titles to be stronger than that of the remaining claimant. And if one of his titles being established would render the other invalid, he cannot strengthen his case by resting upon both. But in truth, there is
no analogy between the case of the United States claiming Oregon at once on the ground of discovery and of succession to the Spanish title, and that of a private litigant acquiring. his adversary's title. The parallel case would be that of a private litigant in an English court attempting to strengthen his claim to an inheritance by showing that the law of Scotland would
give it to him. The claim advanced to Oregon by the United States on the ground of prior discovery, is under a general law of nations, which with certain restrictions has been
frequently recognized. The claim advanced on the ground of succession to the Spanish title, is under a special law of nations; applicable exclusively to the North-west territory., and derived froth the Nootka convention. The titles derived from the same legal system may strengthen each other ; but titles derived from different legal systems cannot strengthen each other. The epeeist law from which the Spanish title is derived is a restriction of the more general law from which the original American title is de- rived. Either the one or the other system of law must give way —both cannot be in force at once.
Bat the American diplomatists have fallen into a worse incon- sistency than a merely illogical train of reasoning. The eagerness with which they seek to strengthen their legal pleas by adding one to another, in the hope that their numerical may compensate for their want of individual force, betrays a litigious spirit. While professing to desire an equitable arrangement, they osten- tatiously parade every technical plea of law they can discover. They make the number and speciousness of these legal pleas a pretext for withdrawing a proposal for compromise, merely be- cause they are asked to reconsider it. If they really wish for an equitable settlement of the dispute, these technical pleadings must be thrown aside, and the actual interests of the parties steadily and exclusively kept in view. An amicable termination of the Oregon controversy will only then be possible when both parties set about it in the same spirit which animated the Governments of Spain and England in 1790—" Their Britannic and Catholic Majesties, being desirous of terminating, by a speedy and solid agreement, the differences which have lately arisen between the two crowns, have judged that the best way of attaining this salutary object would be that of an amicable arrangement, which, setting aside all retrospective discussion of the rights and preten-
sions of the two parties, should fix their respective situation [position respective] for the future on a basis conformable to their true interests." And to this end it will be necessary, that the governing class—the professional politicians in America—abstain (as that class has all along done in England) from stimulating
the general public to resist such an equitable settlement. The pleading which is most flattering to the passions of a litigant is that which is least likely to be approved of by an impartial judge —least likely to be consistent with strict equity. We have just received a " Lecture on Oregon" delivered at Boston by the Hon- ourable C. Cushing, late Envoy to China. Addressed to an arbiter
appointed to decide on the contending claims of England and Ame- rica, his over-statement of the American case would have ap- peared only an error in judgment : addressed to the subjects of his own Government, it is neither more nor less than an incite- ment to hold their own views and their own will, right or wrong, for law.
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