H.] PROOFS AND ILLUSTRATIONS. 457 



every where, and over the whole face of the country, to the subjects of 

 both parties, and even declared every such settlement, made by either 

 party, in a degree common to the other. Such a state of things is clearly 

 incompatible with distinct jurisdiction and sovereignty. The convention, 

 therefore, could have had* no such object in view as to fix the relations of 

 the contracting powers in that respect. On that subject it established or 

 changed nothing, but left the parties where it found them, and in posses- 

 sion of all such rights, whether derived from discovery, or from any other 

 consideration, as belonged to each, to be urged by each, whenever the 

 question of permanent and separate possession and sovereignty came to 

 be discussed between them. 



It is, indeed, expressly admitted that the convention provided for com- 

 merce and settlements, leaving the sovereignty in abeyance. And Great 

 Britain, at this time, claims only a right of joint occupancy, in common 

 with other nations, leaving the right of exclusive dominion in abeyance. It 

 is not perceived how it can, at the same time, be asserted that the argu- 

 ments and pretensions of both parties were definitively set at rest by the 

 convention, and that it is only in its text and stipulations that the title on 

 either side is now to be traced. 



Commerce and settlements might, indeed, be made by either party, 

 during the joint occupancy, without regard to their respective pretension 

 or title, from whatever consideration derived. But since the sovereignty, 

 since the right of exclusive dominion, has been left in abeyance, that right 

 over any part of the country, to whichever party belonging, has not been 

 extinguished, but only suspended, and must revive to its full extent when- 

 ever that joint occupancy may cease. 



Whenever, therefore, a final line of demarkation becomes the subject 

 of discussion, the United States have a right, notwithstanding, and in 

 conformity to the Nootka convention, to appeal, in support of their claims, 

 not only to their own discoveries, but to all the rights derived from the 

 acquisition of Louisiana, and from their treaty of 1819 with Spain, in the 

 same manner as if that convention had never been made. The question 

 to be examined is, whether those claims are supported by the laws and 

 usages of nations. 



It may be admitted, as an abstract principle, that, in the origin of soci- 

 ety, first occupancy and cultivation were the foundation of the rights of 

 private property and of national sovereignty. But that principle, on which 

 principally, if not exclusively, it would seem that the British government 

 wishes to rely, could be permitted, in either case, to operate alone, and 

 without restriction, so long only as the extent of- vacant territory was 

 such, in proportion to population, that there was ample room for every 

 individual, and for every distinct community or nation, without danger of 

 collision with others. As, in every society, it had soon become necessary 

 to make laws, regulating the manner in which its members should be 

 permitted to occupy and to acquire vacant land within its acknowledged 

 boundaries, so, also, nations found it indispensable for the preservation 

 of peace, and for the exercise of distinct jurisdiction, to adopt, particu- 

 larly after the discovery of America, some general rules, which should 

 determine the important previous question, " Who had a right to occupy?" 



The two rules generally, perhaps universally, recognized and conse- 

 crated by the usage of nations, have flowed from the nature of the subject. 



By virtue of the first, prior discovery gave a right to occupy, provided 



58 



