Chapter V: The Convention of the Escurial

The King George's Sound Company, in 1785.--Dixon and Portlock.--The
Nootka and Sea Otter.--The Captain Cook and Experiment.--Expedition of
Captain Hanna under the Portuguese Flag.--The Felice and
Iphigenia.--The Princesa and San Carlos, in 1788.--Martinez and Haro
directed to occupy Nootka in 1789.--The Princess Royal arrives at
Nootka.--Colnett arrives in the Argonaut, July 2, 1789, with
instructions to found a Factory.--He is seized, with his Vessel, by
Martinez.--The Princess Royal also seized.--Both vessels sent as
Prizes to San Blas.--The Columbia and Washington allowed to
depart.--Representation of the Spanish Government to the Court of
London.--British Reply.--Memorial of Captain Meares.--Message of the
British Crown to Parliament.--British Note of May 5, 1790, to the
Spanish Minister in London.--British Memorial of May 16.--Memorial of
the Court of Spain, July 13.--Declaration of his Catholic Majesty to
all the Courts of Europe.--Treaty of Utrecht.--Declaration and Counter
declaration of July 4.--Spain demands aid from France, according to
the Family Compact of 1761.--The National Assembly promotes a peaceful
Adjustment of the Dispute.--Convention between Spain and Great Britain
signed at the Escurial, Oct. 28, 1790.--Recognition of the Claims of
Great Britain.

It has been already observed, that no British subject could trade to the west of Cape Horn without a licence from the South Sea Company, whilst, on the other hand, to the eastward of the Cape of Good Hope the East India Company possessed an exclusive monopoly of commerce. Thus the mercantile association which assumed the name of the King George's Sound Company, and which despatched two vessels under Dixon and Portlock from England in the autumn of 1785, had found it necessary to obtain licences from the South Sea Company for them to proceed by way of Cape Horn, and they had likewise entered into an arrangement with the East India Company to carry their furs to Canton, and there exchange them for teas and other products of China, to be conveyed in their turn round the Cape of Good Hope to England. These vessels sailed under the British flag. With a similar object, two vessels, the Nootka, under Captain Meares, and the Sea Otter, under Captain Tipping, were, by an association under the patronage of the Governor General of India, early in 1786, despatched from Calcutta, under the flag of the English East India Company, whilst the Captain Cook and the Experiment sailed from Bombay for the same destination. An attempt, however, had been made by the British merchants in the preceding year, to organise a trade between North-west America and China, under the protection of the Portuguese flag, so as to evade the excessive harbour dues demanded by the Chinese authorities from other European nations, by means of licences granted by the Portuguese authorities at Macao. The first expedition of this kind was made by Captain Hanna, in 1785, and was most successful as a commercial speculation. In a similar manner, in 1788, some British merchants residing in India fitted out the Felice and Iphigenia for this trade, and through the interest of Juan Cavallo, a Portuguese merchant who had resided for many years at Bombay as a naturalised British subject, and traded from that place under the protection of the East India Company, obtained from the Governor of Macao permission for them to navigate under the Portuguese flag, if found convenient. Meares in his memorial states, that Cavallo merely lent his name to the firm, and that he had no real interest in the Iphigenia, as on his subsequent bankruptcy the claims of his creditors were successfully resisted, and the Iphigenia consequently lost the privileges which she had hitherto enjoyed in the ports of China, in her character of a Portuguese ship. On the other hand, in the obligation which Martinez exacted from the master and supercargo of the Iphigenia, Cavallo is spoken of as the lawful owner of the vessel in whose name they bound themselves. It is possible however that they may have bound the ostensible owner on purpose to defeat the object of the Spanish commander, instead of the real owners; and assuredly the instructions of the Merchant Proprietors to Captain Meares, "commanding the Felice and Iphigenia," seem to be at variance with the fact of Cavallo being the real owner, as they are addressed to him evidently not in the mere character of supercargo, but as having the complete control of the vessels, which are expressly stated to have been fitted out and equipped by the Merchant Proprietors: and Meares is directed to defend his vessel against all attempts of Russian, English, or Spanish vessels to seize it; to protest, if captured, against the seizure of his vessel and cargo; and to take possession of any vessel that attacked him, as also her cargo, in case he should have the superiority in the conflict. (Appendix to Meares' Voyage.)

To the same effect, the orders of Captain Meares to Captain Douglas, of the Iphigenia, seem to be conclusive that the latter had full control over the vessel. "Should you," it is observed, "in the course of your voyage, meet with the vessels of any other nation, you will have as little communication with them as possible. If they be of superior force, and desire to see your papers, you will show them. You will, however, be on your guard against surprise. Should they be either Russian, English, Spanish, or any other civilised nation, and are authorised to examine your papers, you will permit them, and treat them with civility and friendship. But at the same time you must be on your guard. Should they attempt to seize you, or even carry you out of your way, you will prevent it by every means in your power, and repel force by force."

Captain Douglas, moreover, was directed to note down the good behaviour of his officers and crew, and thus afford his employers a medium to distinguish merit from worthlessness. "This log-book," they go on to state, "is to be signed by yourself. On your return to China you will seal up your log-book, charts, plans, &c., &c., and forward them to Daniel Beale, Esq., of Canton, who is the ostensible agent for the concern; and you have the most particular injunctions not to communicate or give copies of any charts or plans that you may make, as your employers assert a right to all of them, and as such will claim them."

The person to whom such instructions were addressed must evidently have had the control of the vessel, and not been merely in charge of the cargo. It has been, however, rightly observed by Mr. Greenhow, that the papers on board the Iphigenia, when seized by Martinez, were written in the Portuguese language, which Captain Douglas did not understand, and therefore could not well act upon. The reply to this seems to be, that Douglas himself acted upon the letter of Captain Meares, inserted in the Appendix to Meares' Voyages, which embodied in English the substance of the general instructions drawn up for the expedition in Portuguese; and that the ship's papers were in the Portuguese language to support her assumed Portuguese character. There is no doubt that there was some deception in the transaction, but the deception seems to have been directed rather against the Chinese than the Spaniards.

Whatever may have been the character which was sought to be given to the Felice and Iphigenia, Meares appears on landing at Nootka to have avowed his British character, by hoisting British colours upon the house which he built on ground granted to him by Maquilla, the chief of the neighbouring district, as well as by displaying the English ensign on the vessel which he constructed and launched at Nootka. It was his intention to employ this vessel, a sloop of about forty tons, exclusively on the coast of America, in exploring new trading stations, and in collecting furs to be conveyed by the other vessels to the Chinese markets. It was named the North-west America, and was manned by a crew of seven British subjects and three natives of China.

Meares, having left the Iphigenia and North-west America to carry on the trade on the American coast, returned with a cargo of furs to Macao, in December 1788, and having there sold the Felice, associated himself with some merchants of London, who had embarked in this commerce under licences from the East India and South Sea Companies. Two of their vessels, under Dixon and Portlock, which have already been alluded to, the Prince of Wales and Princess Royal, had just arrived at Canton from the north-west coast of America. Meares, apprehending that mutual loss would result from competition, entered into a formal agreement with Mr. John Etches, the supercargo of the two ships, making a joint stock of all the vessels and property employed in that trade. The new firm immediately purchased an additional ship, named the Argonaut, and the Prince of Wales being chartered with a cargo of tea to England by the East India Company, the Princess Royal and the Argonaut were ordered to sail to Nootka Sound under the command of Captain Colnett and Captain Hudson. It is indisputable that these vessels were sailing under the British flag, and from the instructions delivered to Captain Colnett, the Iphigenia and North-west America were henceforward to be under his orders, and to trade on account of the Company. He was accordingly directed to send home Captain Douglas in the Argonaut, and to receive from him the Iphigenia and North-west America, shifting their crews, &c.

"We also authorise you," the instructions go on to state, "to dismiss from your service all persons who shall refuse to obey your orders, when they are for our benefit, and in this case we give you to understand, the Princess Royal, America, and other small craft, are always to continue on the coast of America. Their officers and people, when the time of their service is up, must be embarked in the returning ship to China, and on no account whatever will we suffer a deviation from these orders."

Thenceforward, it appears, that the Iphigenia and North-west America would be considered as sailing under the same character as the other vessels of this Company.

The steady advance of the Russian establishments along the north-west shores of the Pacific, which had become notorious from the publication of Captain Cook's journals, could not but cause great anxiety to the Spanish government. An expedition of inquiry was in consequence sent northward from the port of San Blas in 1788, consisting of two vessels, the Princesa and San Carlos, under the command of Esteban Jose Martinez and Gonzalo Lopez de Haro. They were instructed to proceed directly to Prince William's Sound, and to visit the various factories of the Russians in that neighbourhood. Having executed their commission, they returned to San Blas in the autumn of the same year, and reported the results of their voyage to the Viceroy of Mexico. Martinez brought back the information that it was the intention of the Russians to found a settlement at Nootka. The Court of Madrid in consequence addressed a remonstrance to the Emperor of Russia against the encroachments upon the territories of his Catholic Majesty, which were assumed to extend northward up to Prince William's Sound, and the Viceroy of Mexico in the mean time took measures to prevent the execution of any such schemes. With this object he despatched Martinez and Haro in 1789, with instructions to occupy the port of Nootka by right of the prior discovery of Perez in 1774, to treat any Russian or English vessels that might be there with the courtesy which the amicable relations between the several nations required, but to manifest to them the paramount rights of Spain to make establishments there, and by inference to prevent all foreign establishments which might be prejudicial to Spanish interests.

The Princesa sailed into Nootka Sound on the 6th of May 1789, and found the Iphigenia at Friendly Cove. The San Carlos joined her consort on the 13th. The Columbia merchantman, of the United States of America, was lying at anchor at no great distance. Mutual civilities passed between the different vessels till the 15th, when Martinez took possession of the Iphigenia, and transferred her captain and crew as prisoners to his own vessels. He subsequently allowed the Iphigenia to depart, upon an obligation being signed by the captain and supercargo on behalf of Juan Cavallo of Macao, as the owner, to satisfy all demands, in case the Viceroy of Spain should pronounce her to be a prize, on account of navigating or anchoring in seas or ports belonging to the dominion of his Catholic Majesty without his permission. Captain Kendrick of the Columbia, and Ingraham his first pilot, were called in to witness this agreement. The Iphigenia was released on the 1st of June, and sailed away directly to Queen Charlotte's Island. On the 8th, the North-west America arrived from a trading voyage along the southern coasts, and was immediately taken possession of by Martinez. A few days afterwards the Princess Royal arrived from Macao, bringing intelligence of the failure of the house of Cavallo, in consequence of which Martinez hoisted Spanish colours on board of the North-west America, and employed her to trade along the coast upon his own account.

The Princess Royal was not however molested by him, but, on the 2d of July, her consort the Argonaut arrived with Captain Colnett, who, upon hearing of the treatment of the Iphigenia and the North-west America, hesitated at first to enter the Sound. His instructions were to found a factory, to be called Fort Pitt, in the most convenient station which he might select, for the purpose of a permanent settlement, and as a centre of trade, round which other stations might be established. Having at last entered the Sound, he was invited to go on board the Princesa, where an altercation ensued between Martinez and himself, in respect of his object in visiting Nootka, the result of which was the arrest of Colnett himself and the seizure of the Argonaut. Her consort the Princess Royal on her return to Nootka on the 13th of July, was seized in like manner by the Spanish commander. Both these vessels were sent as prizes to San Blas, according to Captain Meares' memorial. The Columbia in the mean while had been allowed to depart unmolested, and her consort the Washington, which had been trading along the coast, soon followed her.

Such is a brief summary of the transactions at Nootka Sound in the course of 1789, which led to the important political discussions, that terminated in the convention of the 28th of Oct. 1790, signed at the Escurial. By this convention the future relations of Spain and Great Britain in respect of trade and settlements on the north-west coast of America, were amicably arranged.

Immediately upon receiving information of these transactions from the Viceroy, the Spanish Government hastened to communicate to the Court of London the seizure of a British vessel, (the Argonaut,) and to remonstrate against the attempts of British subjects to make settlements in territories long occupied and frequented by the Spaniards, and against their encroachments on the exclusive rights of Spain to the fisheries in the South Seas, as guaranteed by Great Britain at the treaty of Utrecht. The British Ministry in reply demanded the immediate restoration of the vessel seized, as preliminary to any discussion as to the claims of Spain. The Spanish Cabinet in answer to this demand stated, that as the Viceroy of Mexico had released the vessel, his Catholic Majesty considered that affair as concluded, without discussing the undoubted rights of Spain to the exclusive sovereignty, navigation, and commerce in the territories, coasts, and seas, in that part of the world, and that he should be satisfied with Great Britain directing her subjects to respect those rights in future. At this juncture, Meares, who had received from the Columbia, on her arrival at Macao, the tidings of the seizure of the North-west America, whose crew returned as passengers in the Columbia, as well as of the Argonaut and the Princess Royal, arrived at London with the necessary documents to lay before the British Government. A full memorial of the transactions at Nootka Sound in 1789, including an account of the earlier commercial voyages of the Nootka and the Felice, was presented to the House of Commons on May 13, 1790. It is published in full in the appendix to Meares' Voyages, and the substance of it may be found amongst the state papers in the Annual Register for 1790. This was followed by a message from his Majesty to both Houses of Parliament on May 25th, stating that "two vessels belonging to his Majesty's subjects, and navigated under the British flag, and two others, of which the description had not been hitherto sufficiently ascertained, had been captured at Nootka Sound by an officer commanding two Spanish ships of war." Having alluded to the substance of the communications which had passed between the two Governments, and to the British minister having been directed to make a fresh representation, and to claim full and adequate satisfaction, the message concluded with recommending that "such measures should be adopted as would enable his Majesty to support the honour of his crown and the interests of his people." The House of Commons gave their full assent to these recommendations, and readily voted the necessary supplies, so that preparations to maintain the rights of Great Britain by arms were immediately commenced. In the mean time a note had been addressed on May 5th, to the Spanish minister in London, to the effect that his Majesty the King of England would take effectual measures to prevent his subjects from acting against the just and acknowledged rights of Spain, but that he could not accede to her pretensions of absolute sovereignty, commerce, and navigation, and that he should consider it his duty to protect his subjects in the enjoyments of the right of fishery in the Pacific Ocean. In accordance with the foregoing answers, the British charge-d'affaires at Madrid made a demand, on May 16th, for the restitution of the Princess Royal, and for reparation proportionate to the losses and injuries sustained by English subjects trading under the British flag. He further asserted for them "an indisputable right to the enjoyment of a free and uninterrupted navigation, commerce, and fishery, and to the possession of such establishments as they should form with the consent of the natives of the country, not previously occupied by any of the European nations." The substance of these communications was embodied in the memorial of the Court of Spain, delivered on June 13th to the British ambassador at Madrid. It appeared, however, from a subsequent reply from the Spanish minister, the Conde de Florida Blanca, that Spain maintained, "that the detention of the vessels was made in a port, upon a coast, or in a bay of Spanish America, the commerce or navigation of which belonged exclusively to Spain by treaties with all nations, even England herself." The nature of these exclusive claims of Spain had been already notified to all the courts of Europe, in a declaration made by his Catholic Majesty on June 4th, where the words are made use of, "in the name of the King, his sovereignty, navigation, and exclusive commerce to the continent and islands of the South Sea, it is the manner in which Spain, in speaking of the Indies, has always used these words: that is to say, to the Continent, islands and seas, which belong to his Majesty, so far as discoveries have been made, and secured to him by treaties and immemorial possession, and uniformly acquiesced in, notwithstanding some infringements by individuals, who have been punished upon knowledge of their offences. And the King sets up no pretensions to any possessions, the right to which he cannot prove by irrefragable titles."

What were the treaties and immemorial possession upon which Spain rested her claims, was more explicitly stated in the Spanish Memorial of the 13th June. The chief reliance seemed to have been placed upon the 8th article of the Treaty of Utrecht, as concluded between Great Britain and Spain in 1713, by which it was agreed, that the exercise of navigation and commerce to the Spanish West Indies should remain in the same state in which it was in the time of Charles II. of Spain; that no permission should at any time be given to any nation, under any pretext whatever, to trade into the dominions subject to the Crown of Spain in America, excepting as already specially provided for by treaties: moreover, Great Britain undertook "to aid and assist the Spaniards in re-establishing the ancient limits of their dominions in the West Indies, in the exact situation in which they had been in the time of Charles II." The extent of the Spanish territories, commerce, and dominions on the continent of America was further alleged in this memorial to have been clearly laid down and authenticated by a variety of documents and formal acts of possession about the year 1692, in the reign of the above-mentioned monarch: all attempted usurpations since that period had been successfully resisted, and reiterated acts of taking possession by Spanish vessels, had preserved the rights of Spain to her dominions, which she had extended to the limits of the Russian establishments within Prince William's Sound. It was still further alleged, that the Viceroys of Peru and New Spain had of late directed the western coasts of America, and the islands and seas adjacent, to be more frequently explored, in order to check the growing increase of smuggling, and that it was in one of the usual tours of inspection of the coasts of California that the commanding officer of a Spanish ship had detained the English vessels in Nootka Sound, as having arrived there, not for the purposes of trade, but with the object of "founding a settlement and fortifying it."

From these negotiations it would appear, that Spain claimed for herself an exclusive title to the entire north-western coast of America, up to Prince William's Sound, as having been discovered by her, and such discovery having been secured to her by treaties, and repeated acts of taking possession. She consequently denied the right of any other nation (for almost all the nations of Europe had been parties to the Treaty of Utrecht) to make establishments within the limits of Spanish America. Great Britain, on the other hand, maintained her right "to a free and undisturbed navigation, commerce, and fishery, and to the possession of any establishment which she might form with the consent of the natives of the country, where such country was not previously occupied by any of the European nations." These may be considered to have been the two questions at issue between Great Britain and Spain, which were set at rest by the subsequent convention.

That such was the object of the convention, is evident from the tenor of two documents exchanged between the two courts on the 24th of July, 1790, the first of which contained a declaration, on the part of his Catholic Majesty, of his engagement to make full restitution of all the British vessels which were captured at Nootka, and to indemnify the parties with an understanding that it should not prejudice "the ulterior discussion of any right which his Majesty might claim to form an exclusive establishment at the port of Nootka;" whilst on the part of his Britannic Majesty a counter-declaration was issued, accepting the declaration of his Catholic Majesty, together with the performance of the engagements contained therein, as a full and entire satisfaction for the injury of which his Majesty complained; with the reservation that neither the declaration nor its acceptance "shall prejudice in any respect the right which his Majesty might claim to any establishment which his subjects might have formed, or should be desirous of forming in future, in the said Bay of Nootka." Mr. Greenhow's mode of stating the substance of these papers (p. 206) is calculated to give an erroneous notion of the state in which they left the question. He adds, "it being, however, at the same time _admitted and expressed on both sides_, that the Spanish declaration was not to preclude or prejudice the ulterior discussion of any right which his Catholic Majesty might claim to form an exclusive establishment at Nootka Sound." This is not a correct statement of the transaction, as the reservation was expressed in the declaration of his Catholic Majesty; but so far was his Britannic Majesty from admitting it in the counter-declaration, that he met it directly with a special reservation of the rights of his own subjects, as already set forth.

Had the crown of Spain been able to rely upon assistance from France, in accordance with the treaty of 1761, known as the Family Compact, there can be no doubt that she would have attempted to maintain by arms her claim of exclusive sovereignty over "all the coast to the north of Western America on the side of the South Sea, as far as beyond what is called Prince William's Sound, which is in the sixty-first degree;" but her formal application for assistance was not attended with the result which the mutual engagements of the two crowns would have secured at an earlier period. The National Assembly, to which body Louis XVI. was obliged, under the altered state of political circumstances in France, to submit the letter of the King of Spain, was rather disposed to avail itself of the opportunity which seemed to present itself for substituting a national treaty between the two nations for the Family Compact between the two Courts; and though it decreed that the naval armaments of France should be increased in accordance with the increased armaments of other European powers, it made no direct promise of assistance to Spain. On the contrary, the Diplomatic Committee of the National Assembly resolved rather to strengthen the relations of France with England, and to prevent a war, if possible; and with this object they co-operated with the agent of Mr. Pitt in Paris (Tomline's Life of Pitt, c. xii.) and with M. de Montmorenci, the French Secretary for Foreign Affairs, in furthering the peaceable adjustment of the questions in dispute.

_Convention between His Britannic Majesty and the King of Spain, signed at the Escurial the 28th of October, 1790._ (Annual Register, 1790, p. 303. Martens, Recueil de Traites, t. iv., p. 493.)

"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 pretensions of the two parties, should fix their respective situation for the future on a basis conformable to their true interests, as well as to the mutual desire with which their said Majesties are animated, of establishing with each other, in every thing and in all places, the most perfect friendship, harmony, and good correspondence. In this view, they have named and constituted for their plenipotentiaries; to wit, on the part of his Britannic Majesty, Alleyne Fitz-Herbert, Esq., one of his said Majesty's Privy Council in Great Britain and Ireland, and his Ambassador Extraordinary and Plenipotentiary to his Catholic Majesty; and, on the part of his Catholic Majesty, Don Joseph Monino, Count of Florida Blanca, Knight Grand Cross of the Royal Spanish Order of Charles III., Councillor of State to his said Majesty, and his Principal Secretary of State, and of the Despatches; who, after having communicated to each other their respective full powers, have agreed upon the following articles:--

"ART. I. It is agreed that the buildings and _tracts of land_ situated on the north-west coast of the continent of North America, or on islands adjacent to that continent, of which the subjects of his Britannic Majesty were _dispossessed_, about the month of April, 1789, by a Spanish officer, shall be restored to the said Britannic subjects.

"ART. II. And further, that a just reparation shall be made, according to the nature of the case, for all acts of violence or hostility which may have been committed, subsequent to the month of April, 1789, by the subjects of either of the contracting parties against the subjects of the other; and that, in case any of the said respective subjects shall, since the same period, have been forcibly dispossessed of their _lands_, buildings, vessels, merchandise, or other property whatever, on the said continent, or on the seas or islands adjacent, they shall be _re-established in the possession thereof_, or a just compensation shall be made to them for the losses which they shall have sustained.

"ART. III. And in order to strengthen the bonds of friendship, and to preserve in future a perfect harmony and good understanding between the two contracting parties, 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 in the 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_; the whole subject, nevertheless, to the restrictions and provisions specified in the three following articles.

"ART. IV. His Britannic Majesty engages to take the most effectual measures to prevent the navigation and fishery of his subjects in the Pacific Ocean, or in the South Seas, from being made a pretext for illicit trade with the Spanish _settlements_; and with this view, it is moreover expressly stipulated, that British subjects shall not navigate, or carry on their fishery in the said seas, within the space of ten sea leagues from any part of the coasts _already occupied by Spain_.

"ART. V. It is agreed, that as well in the places which are to be restored to the British subjects, by virtue of the first article, as in all other parts of the north-western coasts of North America, or of the islands adjacent, situated to the north of the parts of the said coast already occupied by Spain, wherever the subjects of either of the two powers _shall have made settlements_ since the month of April, 1789, or _shall hereafter make any_, the subjects of the other shall have free access, and shall carry on their trade, without any disturbance or molestation.

"ART. VI. It is further agreed, with respect to the eastern and western coasts of South America, and to the islands adjacent, that no _settlement_ shall be formed hereafter, by the respective subjects, in such parts of those coasts as are situated to the south of those parts of the same coasts and of the islands adjacent, which are already occupied by Spain: provided that the said respective subjects shall retain the liberty of landing on the coasts and islands so situated, for the purposes of their fishery, and of erecting thereon huts, and other temporary buildings, serving only for those purposes.

"ART. VII. In all cases of complaint or infraction of the articles of the present convention, the officers of either party, without permitting themselves previously to commit any violence or act of force, shall be bound to make an exact report of the affair, and of its circumstances, to their respective courts, who will terminate such differences in an amicable manner.

"ART. VIII. The present convention shall be ratified and confirmed in the space of six weeks, to be computed from the day of its signature, or sooner, if it can be done.

"In witness whereof, we the undersigned Plenipotentiaries of their Britannic and Catholic Majesties, have, in their names, and in virtue of our respective full powers, signed the present convention, and set thereto the seals of our arms.

"Done at the Palace of St. Laurence, the twenty-eighth of October, one thousand seven hundred and ninety.

"ALLEYNE FITZ-HERBERT.
(L. S.)

"El Conde DE FLORIDA BLANCA."
(L. S.)

On examining this convention, it will be seen that the first article confirmed the positive engagement which his Catholic Majesty had contracted by his declaration of the 24th July: that the second contained an engagement for both parties to make reparation mutually for any contingent acts of violence or hostility: that the third defined for the future the mutual rights of the two contracting parties, in respect to the questions which remained in dispute after the exchange of the declaration and counter-declaration. By this article the navigation and fisheries of the Pacific Ocean and the South Seas were declared to be free to the subjects of the two crowns, and their mutual right of trading with the natives on the coast, and of _making settlements in places not already occupied_, was fully recognised, subject to certain restrictions in the following articles.

By the fourth of these, his Britannic Majesty bound himself to prevent his subjects carrying on an illicit trade with the Spanish settlements, and engaged that they should not approach within ten miles of the coasts already occupied by Spain.

By the fifth it was agreed that, in the places to be restored to the British, and in whatever parts of the north-western coasts of America, or the adjacent islands, situate to the north of the parts already occupied by Spain, the subjects of either power should make settlements, the subjects of the other should have free commercial access.

By the sixth it was agreed, that no settlements should be made by either power on the eastern and western coasts of South America, or the adjacent islands, south of the parts already occupied by Spain; but that they should be open to the temporary occupation of the subjects of either power, for the purposes of their fishery.

By the seventh, provisions were made for the amicable arrangement of any differences which might arise from infringements of the convention; and, by the eighth, the time of ratification was settled.

It thus appears that, by the third article, the right insisted upon by the British charge-d'affaires at Madrid, in the Memorial of the 16th of May, was fully acknowledged; namely, "the indisputable right to the enjoyment of a free and uninterrupted navigation, commerce, and fishery, and to the possession of such establishments as they should form, with the consent of the natives of the country, not previously occupied by any of the European nations." In accordance with this view, it is observed in Schoell's Histoire Abregee des Traites de Paix: "En consequence il fut signe le 28 Octobre, au palais de l'Escurial, une convention par laquelle la question litigieuse fut entierement decidee en faveur de la Grande Bretagne."

Thus, indeed, after a struggle of more than two hundred years, the principles which Great Britain had asserted in the reign of Elizabeth, were at last recognised by Spain: the unlimited pretensions of the Spanish crown to exclusive dominion in the Western Indies, founded upon the bull of Alexander VI., were restrained within definite limits; and occupation, or actual possession, was acknowledged to be henceforward the only test between the two crowns, in respect to each other, of territorial title on the west coast of North America.

Mr. Greenhow states, (p. 215,) that both parties were, by the convention, equally excluded from settling in the vacant coasts of South America; and from exercising that jurisdiction which is essential to political sovereignty, over any spot north of the most northern Spanish settlement in the Pacific. The former part of this statement is perfectly correct, but the latter is questionable, in the form in which it is set forth. The right of trading with the natives, or of making settlements in places not already occupied, was secured to both parties by the third article: whereas, in places where the subjects of either power should have made settlements, free access for carrying on their trade was all that was guaranteed to the subjects of the other party. This then was merely a commercial privilege, not inconsistent with that territorial sovereignty, which, by the practice of nations, would attend upon the occupation or actual possession of lands hitherto vacant. In fact, when Mr. Greenhow observes, in continuation, that "the convention determined nothing regarding the rights of either to the sovereignty of any portion of America, except so far as it may imply an abrogation, or rather suspension of all such claims on both sides, to any of those coasts;" he negatives his previous supposition that the convention precluded the acquisition of territorial sovereignty by either party. The general law of nations would regulate this question, if the convention determined nothing: and, by that general law, "when a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or _sovereignty_ of it at the same time with the _domain_." The discussion of this question, however, as being one of law, not of fact, will be more properly deferred.

One object of Vancouver's mission, as already observed, was to receive from the Spanish officers such lands or buildings as were to be restored to the subjects of his Britannic Majesty, in conformity to the first article of the convention, and instructions were forwarded to him, after his departure, through Lieutenant Hergest, in the Daedalus, to that effect. The letter of Count Florida Blanca to the commandant at Nootka, which Lieutenant Hergest carried out with him, is to be found in the Introduction to Vancouver's Voyage, p. xxvii. "In conformity to the first article of the convention of 28th October, 1790, between our Court and that of London, ( . . . . . ) you will give directions that his Britannic Majesty's officer, who shall deliver this letter, shall immediately be put into possession of the buildings, and districts or parcels of land, which were occupied by the subjects of that sovereign in April 1789, as well in the port of Nootka or of St. Lawrence, as in the other, said to be called Port Cox, and to be situated about sixteen leagues distant from the former, to the southward; and that such parcels or districts of land of which the English subjects were dispossessed, be restored to the said officer, in case the Spaniards should not have given them up."

Vancouver, however, on his arrival, found himself unable to acquiesce in the terms proposed by Senor Quadra, the Spanish commandant, and despatched Lieutenant Mudge, by way of China, to England, for more explicit instructions. Lieutenant Broughton was subsequently directed to proceed home in 1793, with a similar object. On his arrival he was sent by the British Government to Madrid; and on his return to London, was ordered to proceed to Nootka, as captain of his Majesty's sloop Providence, with Mr. Mudge as his first lieutenant, to receive possession of the territories to be restored to the British, in case they should not have been previously given up. His own account, published in his Voyage, p. 50, is unfortunately meagre in the extreme. On 17th March, 1796, he anchored in the Sound, where Maquinna and another chief brought him several letters, dated March, 1795, which informed him "that Captain Vancouver sailed from Monterey the 1st December, 1794, for England, and that the Spaniards had delivered up the port of Nootka, &c., to Lieutenant Pierce of the marines, agreeably to the mode of restitution settled between the two Courts. A letter from the Spanish officer, Brigadier Alava, informed him of their sailing, in March, 1795, from thence."

It is evidently to this transaction that Schoell, in his edition of Koch's Histoire Abregee des Traites de Paix, t. i., ch. xxiv., refers, when he writes,--"L'execution de la Convention du 28 Octobre 1790, eprouva, du reste, des difficultes qui la retarderent jusqu'en 1795. Elles furent terminees le 23 Mars de cette annee, sur les lieux memes, par le brigadier Espagnol Alava, et le lieutenant Anglais Poara, (Pierce?) qui echangerent des declarations dans le golfe de Nootka meme. Apres que le fort Espagnol fut rase, les Espagnols s'embarquerent, et le pavillon Anglais y fut plante en signe de possession." M. Koch does not give his authority, but it was most probably Spanish, from the modification which the name of the British lieutenant has undergone. On the other hand, Mr. Greenhow cites a passage from Belsham's History of England, to this effect:--"It is nevertheless certain, from the most authentic information, that the Spanish flag flying at Nootka was never struck, and that the territory has been virtually relinquished by Great Britain." It ought, however, to have been stated, that this remark occurs in a note to Belsham's work, without any clew to the authentic information on which he professed to rely, and with a special reference to a work of no authority--L'Histoire de Frederic-Guillaume II., Roi de Prusse, par le Comte de Segur;--in which it is stated, that the determination of the French Convention to maintain at all risk the Family Compact, intimidated Great Britain into being satisfied with the mere restitution of the vessels which had been captured with her subjects, while engaged in a contraband trade with the Spanish settlements! It further appears from an official Spanish paper, to which Mr. Greenhow alludes in a note (p. 257,) as existing in the library of Congress at Washington, intitled "Instruccion reservada del Reyno de Nueva Espana, que el Exmo Senor Virey Conde de Revillagigedo dio a su sucesor el Exmo Senor Marques de Branciforte, en el ano de 1704," that orders had been sent to the commandant at Nootka to abandon the place, agreeably to a royal _dictamen_. The negative remark, therefore, of Mr. Belsham, cannot disprove the fact of the restitution of Nootka to the British, against the positive statements of so many high authorities: it may, indeed, be conclusive of his own ignorance of the fact, and so far his integrity may remain unimpeached; but it must be at the expense of his character for accurate research and careful statement--the most valuable, as well as the most necessary qualifications of a writer of history.

M. Duflot de Mofras, in his recent work, intitled, "Exploration du Territoire de l'Oregon," tom. ii., p. 145, further states, that Lieutenant Pierce passed through Mexico. "Par suite de quelques fausses interpretations du traite de 28 Oct. 1790, les Espagnols ne remirent point immediatement Nootka aux Anglais, et ce ne fut qu'en Mars 1795, que le commandant Espagnol opera cette cession entre les mains du Lieutenant Pierce, de l'infanterie de marine Anglaise, venu tout expres de Londres par le Mexique, pour hater l'execution du traite de l'Escurial."