Before news reached Madrid of the action of the National Assembly negotiations had begun for a final settlement of the Nootka question.
The declaration and counter declaration signed late in July had been accepted by England as affording the satisfaction demanded. This had opened the way for a pacific discussion of the respective rights to Nootka and the neighboring coast.[399] On September 8 Fitzherbert presented to Floridablanca the first projet of a treaty. It had been formulated in London three weeks earlier and had been sent with instructions to the British ambassador. These instructions declared it to be the purpose of the British Government to avoid requiring Spain to make any mortifying renunciation of rights, but at the same time the stipulations were to be so worded that they would not imply an admission of the Spanish claims by the British Government. It was impossible for His Majesty to recognize them, either directly or indirectly. They were merely a matter of pride with Spain, it was said, and were really a source of weakness rather than of strength.[400]
When Fitzherbert submitted the projet he inclosed with it extended observations on each article. The preamble, as it had been worded by the British ambassador, declared a desire to form a convention which would settle the present differences and avoid such disputes for the future. On this he observed that the Court of London thought that would be the best means of settlement which, without formally pronouncing on the opposing pretensions, should regulate the respective positions of the two Crowns for the future. If British subjects could be assured of the free exercise of their rights in the Pacific, the English King would not be reluctant to establish all possible rules to prevent illicit commerce with Spanish possessions. The Court of London was persuaded that a Cabinet so wise as that of Spain could not seriously have advanced such vast pretensions.
The first article declared that British subjects should be replaced in possession of the ships and lands of which they had been deprived at Nootka by a Spanish officer toward the month of April, 1789.[401] The observations on this gave the English arguments against the claim of Spain to exclusive dominion over the coasts in question. The English Court could not admit the justice of an exclusive sovereignty over so vast a coast, which since its discovery had without interruption been frequented by British subjects and by those of other nations as well. Spain claimed only as far as the sixty-first degree, conceding to Russia the portion beyond. Fitzherbert insisted, with a good deal of sagacity, that the very principle of this division demonstrated the inadmissibility of the Spanish pretension. If Russia had acquired rights to the coast beyond the sixty-first degree in virtue of the establishments which her subjects had formed there, how, he asked, could other nations be denied the opportunity of making establishments in like manner on the parts of the coast situated below this degree and not already occupied? As to the Spanish claim to priority of discovery, he implied that it could be disproved, though he did not disprove it. However, he insisted that discovery alone, without being followed up by actual occupation, could not be admitted as furnishing a right to possession which could operate to the exclusion of other nations. England did not claim exclusive jurisdiction, he said. What she wished was a reciprocal assurance of free access for both nations to the new establishments formed or to be formed by the one or the other.