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in order to maintain (to the full of our right) the actual exercise and enjoyment of the navigation of the river Mississippi. The moment that we should do so, if such post or settlement should become an object of jealousy to the Spanish governor at New Orleans, he would undoubtedly, under the influence and authority of the doctrine as above explained, resist such settlement, and drive us from such posts, quoting against us our admission of the general orders, supported in the negociation relative to Falkland’s island; and leaving us to make out by treaty our precise and actual right to the territory whereon we made such settlements. Are then his Majesty’s rights and possessions secured by this late negociation and convention ? Are they not, on the contrary, actually exposed, and liable to be disturbed, under these Spanish claims and pretensions : This doctrine, thus explained, applies in like manner to the eastern boundaries of Florida. His Catholic majesty, by the 20th article of the same treaty, “ cedes and guarantees to his Britannic majesty Florida, with all that Spain possesses on the continent of North America, to the east or to the south east of the river Mississippi; and ingeneral everything that depends on the said country and land, with the sovereignty, property, and possession of all rights acquired by treaties or otherwise, which the Catholic king and crown of Spain have had till now over the said countries, lands, places, and their inhabitants. . There is no doubt but that the purport and spirit of this treaty went to the . all islands adjacent to and connected with this province; and yet as the language of this treaty does, in other parts, where islands are ceded, actually mention and specify them; as in the fourth article, where Canada with all its lands, islands, and coasts, and with all that depends on those lands, islands, and coasts, is ceded; can any one say, whether, precisely and definitively, the islands, which form the southern point of Cape Florida, are now the actual property of Great Britain In like manner, as I said before of the western boundaries of Florida, so I will remark upon these; thatmany cases may arise wherein it may become peculiarly proper to take posts and make settlements on some of those islands. It is known to all navigators, that to ships coming out of the Gulph of Mexico into the Atlantic, the only pas
sage is through the Gulph of Florida; and that the Havannah, lying on the eastern or south eastern entrance of this Gulph, does in a great measure hold a command over this navigation. There may come times, from various circumstances, when it may be not only proper but even necessary, for the protection of our commerce, and for the maintaining the communication between our provinces, to counteract and guard ourselves against any command which may intercept the free navigation of those seas. Under such circumstances, were we to make any settlements, or take post on any of the islands here referred to, and should the doctrine, held forth by the Spaniards in this negociation, be admitted to influence and operate to the extent to which they claim, the Spanish governor of the Havannah would, in |. manner as the governor of Buenos Ayres did, find himself justified under his oath of office, his eneral instructions, and their established aws of America, in driving us off by force from lands and territories to which we could not make out a defined right of posSeSSion. If this doctrine be admitted that Spain has a general right to the dominions of America, except where we can shew a positive, precise, and defined right of possession; and if this doctrine thus explained is to be applied to our rights in the bay of Honduras, the rights of the British subject dwelling there, for the purpose of cutting ...i. are held under the arbitrary interpretation which a Spanish governor may give to those general laws of America as recognized by this convention, and not under the spirit of the treaties by which we had those rights confirmed to us: and that cause and question which has been so many years agitated, and which was the source of the war of the year 1739, is again (notwithstanding the caution taken in the treaty of Paris) opened to all its mischievous consequences. The course and dangerous tendency of this negotiation; the claim of an exclusive American navigation to the southward of the equator; the inadmissible pretence that we have no right to sail or navigate in those parts, without the licence and permission of his Catholic majesty, was in all form, both of warning and denunciation, acted upon by the Spanish governor, and commander; it was exerted as a right, being neither contravened nor protested against in the negociation; it stands recognized as far as the conduct of our ministers could give it force; and that great source of war between the crowns of Great Britain and Spain is therefore by this negociation again laid open in its utmost extent, after having been settled and determined almost a hundred years ago. If I was asked what answer I would give to those Spanish claims founded on a right at least as good as any other nation can shew, I would not hurt this cause by giving an answer derived from my own opinion, which could have little weight in such a case, but I will hold forth to our present ministers, the language which the British ministry itself, in similar circumstances, found it necessary to hold, and therefore held; and which I believe will be an answer, not only from its authority but from its reason, not very easily refuted: I take it from the memorials that passed between the courts of Great Britain and France, concerning the island of St. Lucie, and it is to this very point, as follows: It would be a very extraordinary and dangerous doctrine and example, if it should be admitted, that the bare insertion of general words and descriptions of any general flatitude, into any instrument of government, should (according to the law of o convey to any people a right in all such lands and territories unforeseen and undiscovered by that people at that time, as should afterwards §. o covered and settled by other nations in the same latitude. Happily for the peace of mankind the law of nations has provided against such uncertainty by marking out to us what act shall be deemed to be such possession as confers a right.” If it should be said, that however just my reasoning would be, if the ground whereon I state it did exist in fact, yet that it is in the very ground of it without foundation: that the Spanish government does neither give, nor do we acknowledge them as giving, in this case, any other powers and instructions than
* Regulare est, ut occupatio rerum mobilium fiat manibus, rerum soli pedibus, widisse autem tantum aut scire quid sit, nondam ad posses. sionem sufficere judicatur. Puffend. lib. 4. §. 6. Primus acquireudi modus, qui juris gentium a Romanis dicitur, est occupatio eorum quae mullius sunt. Grotius, lib. 2. c. 2. Insula quie in mari” nata est (quod raró accidit) occupantis sit, nullius enim esse creditur. Instituti. lib. tit. 1. §. 22.
* Priority of discovery makes the same case,
what all the British governors have from their sovereign, namely, to oppose intrusion, to remove usurpations, and to repel invasions. I will, in hopes that candour and reason may meet in this argument, mark the essential difference between an instrument of #". which is given for the ruling and protecting a right already existing, and an instrument of government formed . to create a right. The powers and instructions of the British governors operate only where there is an actual possession founded upon undoubted and acknowledged right; but the powers and instructions of the Spanish governors go to the creating of supposed rights merely by their being inserted in their commission; without any of those acts of discovery and occupancy which the law of nations has fixed as the acts which create a real right. Their instructions go to the exerting of power and force in support of such supposed rights, where there is pot, in fact, any actual right at all; or where nothing yet has been done according to the law of nations to take it out of dispute. If the force of this distinction is not acknowledged, then it is not only admitted in negociation, but avowed in debate here also,
that the Spanish rights extend to the full
extent of their claims, and that their jurisdiction ought in right, as it did in this case in fact, to operate to the full of their powers and instructions; and is rightly founded in the established laws of America. Upon the whole, his Majesty’s ministers having neither objected to, nor contravened; having neither protested against, nor even demanded an explanation of, these claims and pretensions; but having suffered the court of Spain to argue the principle upon which they are built, and to justify their governors in acting under them, these ministers have acknowledged, and submitted to, dangerous positions and destructive doctrines; have exposed, as far as their negociation could do, his Majesty’s rights and possessions; and rendered them liable to be disturbed on such pretensions. If it were in my wishes or intentions to go into matter of crimination, the ground on which this business stands would support me. But in the situation in which this country is, every well-wisher to it will rather aim to prevent or remedy evils, than to inflame the sense of men against them; would rather choose a measure of remedy, which may unite us in the inte
rest of our country, than any thing which is vindictive, that would divide and distract. The motion therefore which I shall take the liberty to make, marking the defect, points solely to the remedy, is, “That in the late Negociation with the court of Spain concerning Falkland's island, his Majesty's ministers, having neglected to demand an o of the oath of office taken by the Spanish governors in America, their general orders, and the established laws of America, under which these governors pretend to act, and under which the court of Spain doth pretend to lo them in commencing hostilities; }. Majesty’s rights and possessions in America remain thereby exposed and liable to be disturbed by the said governors, under pretence of such oath of office, their general orders, and the established laws of America.”
Mr. Damer seconded the motion, by observing, that the gentlemen who could not join in the Address of satisfaction upon the late negociation, did not wish for war; but anxious for an honourable, safe and lasting peace, and thinking both the honour of the crown, and the rights of the nation deeply affected by the dishonourable and dangerous conditions which the ministers had submitted this country to, by this convention, could not but express their utter disapprobation of it. And although they could never rest satisfied with, or think the nation and its rights secure under this convention, yet they wished, and would most studiously unite to render peace as secure as possible, by doing every thing in their power to rectify and remedy its defects; and that as he was convinced, on how dangerous a ground it now stood, standing on the rotten basis of this convention, he could not but join in marking out that danger, and wished it to be marked by this House, in the resolution proposed, that it might turn the eyes of the ministers, in whose hands the business now was, to some remedy; and added, that if, in the progress of this business, they should still continue to neglect this, it would become necessary for the House to apply, by an address to his Majesty, and to pray him to give his directions to them for that purpose.
Mr. Wood, imagining that that official
. END OF WOL, XVI.