The Oregon Question
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On the other hand, it seems to be understood that, so long as the convention remains in force, neither Government shall lay duties in the Territory on tonnage, merchandise, or commerce; nor exercise exclusive jurisdiction over any portion of it; and that the citizens and subjects of the two Powers, residing in or removing to the territory, shall be amenable only to the jurisdiction of their own country respectively.
It has been contended by the British Government that the establishment of any military post, or the introduction of any regular force under a national flag, by either Power, would be an act of exclusive sovereignty, which could not be permitted to either whilst the sovereignty remained in abeyance. Under existing circumstances, it is believed that such an act would be highly dangerous, and prove unfavorable to the United States.
But the establishment by the United States of a Territorial Government over Oregon is also objected to on the same principle. The want of such government appears to be the only serious inconvenience attending a continuance of the convention, and requires special consideration.
The United States have the same right as Great Britain, and are equally bound, to protect their citizens residing in the Oregon territory, in the exercise of all the rights secured to them by the convention. It has been fully admitted that these rights embrace the right to settle in and over any part of the territory, and that they are to be, in all cases whatever, amenable only to the jurisdiction of their own country. The subjects of Great Britain, who are not in the employ of the Hudson Bay Company, are forbidden to trade with the natives; and the company does in fact control and govern all the British subjects residing in the territory. This gives a strong guaranty against the violation, by rash individuals, of the rights of the citizens of the United States. Should any of them, however, be disturbed in the exercise of their legitimate rights, and the company should be unable or unwilling to relieve and indemnify them, the United States would be justly entitled to appeal to the British Government for the redress of a violation of rights secured by the convention; for the British Government has preserved a control over the Hudson Bay Company, and does in fact, through it, govern the British subjects who reside in the territory.
The United States are placed, in that respect, in a very different situation. It is not believed that the General Government is authorized to incorporate, as a political body, a commercial company, with such powers as would give it an efficient control over the private citizens residing in the territory. Such delegation of powers, either by any of the States or by Congress, is wholly inconsistent with our institutions. The United States may indeed give to their citizens in Oregon a regular and complete judiciary system; and they may also extend to them, as the British Government has done on its part, the laws of an adjacent territory. But an executive local power is wanted in this case, as it is everywhere else, under any form of government whatever, to cause the laws to be executed, and to have that general control which is now exercised, through the Hudson Bay Company, by the British Government. There are, besides, various acts of a public though local nature, such as opening roads, making bridges, erecting block-houses for protection against the natives, providing for the destitute, &c., all which are performed by the Hudson Bay Company, and cannot be accomplished by insulated individuals, bound by no legal association or government.
Whether any measures may be devised, other than a territorial government, that will be sufficient for the purpose intended; whether all the American citizens residing in Oregon might not be incorporated and made a body politic, with powers equivalent to those vested in the Hudson Bay Company, and with the reservation by the General Government of a check or control analogous to that reserved by the Government of Great Britain, are questions worthy of serious consideration. But Great Britain has the same interest as the United States to prevent collision during the continuance of the convention; and it is believed that, if negotiations should be renewed, with an equal and sincere desire on both sides to preserve friendly relations, there would be no difficulty at this time in coming to an understanding on the subject. It would seem sufficient that this should be accompanied with provisions, preventing the possibility of the powers exercised by the United States being ever applied to British subjects, and with an explicit declaration that these powers should never be construed as an admission by Great Britain of any claim of the United States to exclusive sovereignty.
There is another important subject which has not, it is believed, ever been discussed by the two Powers. This is the claim to the ownership of the places settled and improved under the convention. It seems to me that, on the principles of both natural and international law, these rights, to a defined extent, should be respected by each Power respectively, whose sovereignty over the portion of the territory in which such improved settlements may be situated will ultimately be recognized. It appears also that the United States may, in conformity with the convention, and without affecting in any shape the claims advanced by Great Britain, pass a law declaring that they abandon or grant without warranty, to such of their citizens as shall have made actual and bonâ fide settlements in any part of Oregon, under the convention, all the rights of and claims to the ownership of the soil, on which such settlements shall have been made, which the United States may now or hereafter claim or acquire: limiting and defining the extent of the grant in the same manner as would be done if such grant was absolute; and promising that the title should be confirmed, in case and whenever the sovereignty of the United States was recognized or asserted and maintained.
The prolongation, in 1827, of the convention of 1818, was evidently intended as a temporary measure, since it was made revocable at the will of either party. The plenipotentiaries of the two Powers had been unable to agree on the terms of a definitive arrangement, or even in defining with precision the conditions on which the convention of 1818 might be continued for a determinate period. It will be seen, by reference to the protocols and correspondence, that, although it was generally admitted that neither party ought during such continuance to exercise any exclusive sovereignty over the territory, the American Plenipotentiary declined to agree to any convention containing an express provision to that effect, or accompanied by the insertion in the protocol of a declaration for the same purpose by the British Plenipotentiaries. The reason was not only because an exclusive right over Astoria and its dependencies was claimed by the United States, but principally because it was anticipated that, in order to have in fact an authority equal to that exercised by the Hudson Bay Company, it would become necessary for the United States to perform acts which the British Government might contend to be forbidden by such express provision or declaration. The consequence was, that the convention recognizes some certain rights, and imposes no positive restrictions but only such, as may be supposed to be implied in the clause which declares, that nothing contained in it should be construed to impair or affect the claims of either party. The probability that it might become necessary for the United States to establish a territory or some sort of government over their own citizens was explicitly avowed; the deficiencies of the renewed convention of 1827, and the inconveniences which might ensue, were fully understood; and the continuance of that of 1818, made revokable at will, was agreed on, with the hope that the two Powers would embrace an early opportunity, if not to make a definitive arrangement, at least to substitute for the convention another, defining with precision the acts which both parties should be allowed or forbidden to perform so long as the sovereignty remained in abeyance.
The inconveniences alluded to have been fairly stated in this paper, and some of the means by which they may be avoided have been suggested. It is not, therefore, on account of the intrinsic value of the convention that its abrogation is objectionable and dangerous. It is because nothing is substituted in its place; it is because, if the two Powers are not yet prepared to make a definitive agreement, it becomes the duty of both Governments, instead of breaking the only barrier which still preserves peace, to substitute for the existing convention one adapted to the present state of things, and which shall prevent collisions until the question of sovereignty shall have been settled. The inconveniences which were only anticipated have become tangible, from the time when American citizens, whom the United States are bound to protect, began to make settlements in the territory of Oregon. The sudden transition, from an agreement however defective to a promiscuous occupancy, without any provisions whatever that may prevent collisions, is highly dangerous. When this is accompanied by an avowed determination on the part of the United States to assume that exclusive sovereignty which Great Britain has positively declared she would resist, War becomes inevitable.
NUMBER V
It may not be possible to calculate, with any degree of certainty, the number of citizens of the United States who, aided by these various measures, will, within any given period, remove to the territory beyond the Stony Mountains. It is certain that this number will annually increase, and keep pace with the rapid increase of the population of the Western States. It cannot be doubted that ultimately, and at no very distant time, they will have possession of all that is worth being occupied in the territory. On what principle, then, will the right of sovereignty be decided?
It may, however, be asked whether, if this be the inevitable consequence of the continuance of the convention, England will not herself give notice that it shall be abrogated. It might be sufficient to answer that we must wait till that notice shall have been given, and the subsequent measures which England means to adopt shall have been made known to us, before we assume rashly a hostile position. The United States may govern themselves; although they may irritate Great Britain, they cannot control the acts of her Government. The British Government will do whatever it may think proper; but for the consequences that may ensue it will be alone responsible. Should the abrogation of the convention on her part be followed by aggressive measures; should she assume exclusive possession over Oregon or any part of it, as it is now proposed that the United States should do, America will then be placed in a defensive position; the war, if any should ensue, will be one unprovoked by her, a war purely of defence, which will be not only sustained, but approved by the unanimous voice of the nation. We may, however, be permitted to examine what motive could impel England, what interest she might have, either in annulling the convention or in adopting aggressive measures.
When it is recommended that the United States should give notice of the abrogation of the convention, it is with the avowed object of adopting measures forbidden by the convention, and which Great Britain has uniformly declared she would resist. But, according to the view of the subject uniformly taken by her, from the first time she asserted the rights she claims to this day, the simple abrogation of her convention with the United States will produce no effect whatever on the rights, relations, and position of the two Powers. Great Britain, from the date at least of Cook's third voyage, and prior to the Nootka convention, did deny the exclusive claim of Spain, and assert that her subjects had, in common with those of other States, the right freely to trade with the natives, and to settle in any part of the Northwestern coast of America, not already occupied by the subjects of Spain. The Nootka convention was nothing more than the acquiescence, on the part of Spain, in the claims thus asserted by Great Britain, leaving the sovereignty in abeyance. And the convention between the United States and Great Britain is nothing more nor less than a temporary recognition of the same principle, so far as the two parties were concerned. England had, prior to that convention, fully admitted that the United States possessed the same rights as were claimed by her. The abrogation of the convention by her will leave those rights precisely in the same situation as they now stand, and as they stood prior to the convention. It cannot therefore be perceived what possible benefit could accrue to Great Britain from her abrogation of that instrument; unless, discarding all her former declarations, denying all that she has asserted for more than sixty years, retracting her admission of the equal rights of the United States to trade, to occupy, and to make settlements in any part of the country, she should, without cause or pretext, assume, as is now threatened on the part of the United States, exclusive sovereignty over the whole or part of the territory. It may be permitted to believe that the British Government entertains no such intention.
It may also be observed that England has heretofore evinced no disposition whatever to colonize the territory in question. She has, indeed, declared most explicitly her determination to protect the British interests that had been created by British enterprise and capital in that quarter. But, by giving a monopoly of the fur trade to the Hudson Bay Company, she has virtually arrested private efforts on the part of British subjects. Her Government has been in every other respect altogether inactive, and apparently careless about the ultimate fate of Oregon. The country has been open to her enterprise at least fifty years; and there are no other British settlements or interests within its limits than those vested in, or connected with the Hudson Bay Company. Whether the British Government will hereafter make any effort towards that object cannot be known; but as long as this right to colonize Oregon shall remain common to both Powers, the United States have nothing to apprehend from the competition.
The negotiations on that subject between the two Governments have been carried on, on both sides, with perfect candor. The views and intentions of both parties were mutually communicated without reserve. The conviction on the part of America that the country must ultimately be occupied and settled by her agricultural emigrants, was used as an argument why, in case of a division of the territory, the greater share should be allotted to the United States. The following quotation, from the American statement of the case of December, 1826, proves that this expectation was fairly avowed at the time:
"If the present state of occupancy is urged on the part of Great Britain, the probability of the manner in which the territory west of the Rocky Mountains must be settled belongs also essentially to the subject. Under whatever nominal sovereignty that country may be placed, and whatever its ultimate destinies may be, it is nearly reduced to a certainty that it will be almost exclusively peopled by the surplus population of the United States. The distance from Great Britain, and the expense incident to emigration, forbid the expectation of any being practicable from that quarter but on a comparatively small scale. Allowing the rate of increase to be the same in the United States and in the North American British possessions, the difference in the actual population of both is such that the progressive rate which would, within forty years, add three millions to these, would within the same time give a positive increase of more than twenty millions to the United States. And if circumstances, arising from localities and habits, have given superior facilities to British subjects of extending their commerce with the natives, and to that expansion which has the appearance, and the appearance only, of occupancy, the slower but sure progress and extension of an agricultural population will be regulated by distance, by natural obstacles, and by its own amount."
There was no exaggeration in that comparative view; the superiority of the progressive increase of population in the United States was, on the contrary, underrated. The essential difference is, that migration from the United States to Oregon is the result of purely natural causes, whilst England, in order to colonize that country, must resort to artificial means. The number of American emigrants may not, during the first next ensuing years, be as great as seems to be anticipated. It will at first be limited by the amount of provisions with which the earlier settlers can supply them during the first year, and till they can raise a crop themselves; and the rapidity with which a new country may be settled is also lessened where maize cannot be profitably cultivated.
Whether more or less prompt, the result is nevertheless indubitable. The snowball sooner or later becomes an avalanche: where the cultivator of the soil has once made a permanent establishment game and hunters disappear; within a few years the fur trade will have died its natural death, and no vestige shall remain, at least south of Fuca's Straits, of that temporary occupancy, of those vested British interests, which the British Government is now bound to protect. When the whole territory shall have thus fallen in the possession of an agricultural industrious population, the question recurs, by what principle will then the right of sovereignty, all along kept in abeyance, be determined?
The answer is obvious. In conformity with natural law, with that right of occupancy for which Great Britain has always contended, the occupiers of the land, the inhabitants of the country, from whatever quarter they may have come, will be of right as well as in fact the sole legitimate sovereigns of Oregon. Whenever sufficiently numerous, they will decide whether it suits them best to be an independent nation or an integral part of our great Republic. There cannot be the slightest apprehension that they will choose to become a dependent colony; for they will be the most powerful nation bordering on the American shores of the Pacific, and will not stand in need of protection against either their Russian or Mexican neighbors. Viewed as an abstract proposition, Mr. Jefferson's opinion appears correct, that it will be best for both the Atlantic and the Pacific American nations, whilst entertaining the most friendly relations, to remain independent rather than to be united under the same Government. But this conclusion is premature; and the decision must be left to posterity.
It has been attempted in these papers to prove —
1. That neither of the two Powers has an absolute and indisputable right to the whole contested territory; that each may recede from its extreme pretensions without impairing national honor or wounding national pride; and that the way is therefore still open for a renewal of negotiations.
2. That the avowed object of the United States, in giving notice of the abrogation of the convention, is the determination to assert and maintain their assumed right of absolute and exclusive sovereignty over the whole territory; that Great Britain is fully committed on that point, and has constantly and explicitly declared that such an attempt would be resisted, and the British interests in that quarter be protected; and that war is therefore the unavoidable consequence of such a decisive step – a war not only necessarily calamitous and expensive, but in its character aggressive, not justifiable by the magnitude and importance of its object, and of which the chances are uncertain.
3. That the inconveniences of the present state of things may in a great degree be avoided; that, if no war should ensue, they will be the same, if not greater, without than under a convention; that not a single object can be gained by giving the notice at this time, unless it be to do something not permitted by the present convention, and therefore provoking resistance and productive of war. If a single other advantage can be gained by giving the notice, let it be stated.
4th. That it has been fully admitted by Great Britain that, whether under or without a convention, the United States have the same rights as herself, to trade, to navigate, and to occupy and make settlements in and over every part of the territory; and that, if this state of things be not disturbed, natural causes must necessarily give the whole territory to the United States.
Under these circumstances, it is only asked, that the subject may be postponed for the present; that Government should not commit itself by any premature act or declaration; that, instead of increasing the irritation and excitement which exist on both sides, time be given for mutual reflection, and for the subdual or subsidence of angry and violent feelings. Then, and then only, can the deliberate opinion of the American people on this momentous question be truly ascertained. It is not perceived how the postponement for the present and for a time can, in any shape or in the slightest degree, injure the United States.
It is certainly true that England is very powerful, and has often abused her power, in no case in a more outrageous manner than by the impressment of seamen, whether American, English, or other foreigners, sailing under and protected by the American flag. I am not aware that there has ever been any powerful nation, even in modern times, and professing Christianity, which has not occasionally abused its power. The United States, who always appealed to justice during their early youth, seem, as their strength and power increase, to give symptoms of a similar disposition. Instead of useless and dangerous recriminations, might not the two nations, by their united efforts, promote a great object, and worthy of their elevated situation?
With the single exception of the territory of Oregon, which extends from 42 to 54° 40´ north latitude, all the American shores of the Pacific Ocean, from Cape Horn to Behring's Straits, are occupied, on the north by the factories of the Russian Fur Company, southwardly by semi-civilized States, a mixture of Europeans of Spanish descent and of native Indians, who, notwithstanding the efforts of enlightened, intelligent, and liberal men, have heretofore failed in the attempt to establish governments founded on law, that might ensure liberty, preserve order, and protect persons and property. It is in Oregon alone that we may hope to see a portion of the western shores of America occupied and inhabited by an active and enlightened nation, which may exercise a moral influence over her less favored neighbors, and extend to them the benefits of a more advanced civilisation. It is on that account that the wish has been expressed that the Oregon territory may not be divided. The United States and England are the only Powers who lay any claim to that country, the only nations which may and must inhabit it. It is not, fortunately, in the power of either Government to prevent this taking place; but it depends upon them, whether they shall unite in promoting the object, or whether they shall bring on both countries the calamities of an useless war, which may retard but not prevent the ultimate result. It matters but little whether the inhabitants shall come from England or from the United States. It would seem that more importance might be attached to the fact that, within a period of fifteen years, near one million of souls are now added to the population of the United States by migrations from the dominions of Great Britain; yet, since permitted by both Powers, they may be presumed to be beneficial to both. The emigrants to Oregon, whether Americans or English, will be united together by the community of language and literature, of the principles of law, and of all the fundamental elements of a similar civilisation.
The establishment of a kindred and friendly Power on the North-west Coast of America is all that England can expect, all perhaps that the United States ought to desire. It seems almost incredible that, whilst that object may be attained by simply not impeding the effect of natural causes, two kindred nations, having such powerful motives to remain at peace, and standing at the head of European and American civilisation, should, in this enlightened age, give to the world the scandalous spectacle, perhaps not unwelcome to some of the beholders, of an unnatural and an unnecessary war; that they should apply all their faculties and exhaust their resources in inflicting, each on the other, every injury in their power, and for what purpose? The certain consequence, independent of all the direct calamities and miseries of war, will be a mutual increase of debt and taxation, and the ultimate fate of Oregon will be the same as if the war had not taken place.