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Newcastle claimed the 1670 Treaty did not clarify boundaries

Source: Historical proof of the right of the Catholic King to the territory held to-day by the British King under the name of New Georgia #558

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And, having been informed of the indisputable right of the sovereigns of Spain to the dominion in question, it [Court of London] will not persist in the doubt whether the limits of that jurisdiction are or are not marked in the treaty of 1670, as it asserted in a letter of the Duke of Newcastle, done at Hampton Court, on September 2/13, 1737, in reply to those letters of Don Tomas Gerardino. In this letter he says*[Arredondo note * Letter of the Duke of Newcastle, existing in the office of the secretary of the government of the captaincy of Havana.] that the British King does not understand upon what pretext Spain can formulate this demand, and that, having ordered the said treaty and that of Utrecht of 1713 to be examined with great care, he had given him orders to make known to the minister of Spain that there was in them no special demarkation of the I boundaries of the provinces spoken of, and that Article 7 of the Treaty of 1670 especially, in accordance with which his British Majesty was of the opinion that the respective possessions in America ought to be fixed, very far from containing any description or regulation of this sort, did not prescribe any other rule than that of possession. 82. [Bolton note: For the Geraldino-Newcastle correspondence, see pp. 72-73.]

34. The Court of Madrid does not recede one jot from the rule of possession prescribed in the [1670] treaty. On the contrary, its demand is reduced to the desire that it be observed, for this rule of possession clearly and expressly states that it is understood and ought to be understood as the regions, islands, colonies, and dominions held and possessed by Great Britain in that year. This is the same as excluding her entirely from those which she did not hold or possess. And since the beginning, middle, and end of this work have clearly shown that in the year 1670 England did not hold or possess any other territory in this region than that extending from Virginia to Charleston, inclusive, and that the rest, to the southward, was inhabited and ruled by the Spaniards, it follows as a necessary consequence that Article 7 of the treaty referred to makes the King of Great Britain owner of the territory as far as Charleston, and the Spaniards as far as Santa Elena, of which jurisdictions the respective nations were in possession.

35. From this arise the incontestable reasons why the limits of the two territories were not distinctly marked. They were ignored by the Court of London, which did not see that it was a useless procedure, since the words of Article 7 left no room for doubt or for interpretation, for they say that "the sovereigns of Great Britain, their heirs and successors, with plenary right of sovereignty, shall hold and possess perpetually all the lands, regions, islands, colonies, and dominions in the Western Indies that they hold and possess at present in the name of the British King." Pray, tell what clearer distinction or more particular demarkation of limits does the Court of London wish to find in the treaty than the possessions of each nation in the year 1670? If Great Britain had possessed more land toward the south of Charleston, or less toward the north, there could never have been any controversy or doubt concerning the boundaries, for their limits are explicitly defined in that document, with the concession of the lands that they held, expressed in those words: "which they hold and possess at present in the name of the British King."

36. One can do no less than ask England to observe that in case the words of the article were not so express and clear (which is not possible) by virtue of which there might be some reason for doubt as to the limits, it ought not to be supposed that this defect would concede to Great Britain greater right than to Spain, for there is no title or prerogative by which it might claim preeminence. On the contrary, bearing in mind, as one should, the generic nature of the beginnings and the origin of the basic right of acquisition or first occupancy acquired by his Catholic Majesty to all the Western Indies, all dispute would cease. For any territory that might not be clearly defined ought to be adjudged favorably to the Crown of Spain, and not to England, who would not have in her favor the least presumption or foundation for this adjudication.

37. In consideration of such powerful reasons, it is strange that the British Minister should deduce from the treaty conclusions so incompatible as to say farther on in the quoted letter of the Duke of Newcastle that, "from the words of the said treaty it is inferred that the predecessors of his British Majesty were not only in possession of the region which bears the name of South Carolina before the conclusion of the treaty, but also of the part of the said province now called Georgia, and that they had also granted to their subjects before the said treaty was made the country between 36° 30' and 29° north latitude, inclusive, which comprehends not only South Carolina, but also all the province and country called Georgia, which has always been held since then as part of South Carolina by the subjects of his British Majesty, by virtue of the patents which have been granted to them, and the boundaries which are indicated here have been publicly recognized and always acknowledged." And the minister added that care had been taken that the letters patent granted by his sovereign to the Company of Georgia in the year 1732 should not cover a greater territory than those granted by the predecessors of his Majesty to his subjects.

38. A fine way of arguing, indeed! There is no person living who could be convinced by such arguments, or who would not freely say that the treaty in no way prescribed such conditions that terms for the boundary may be drawn from them. For there is not a word in the whole of it that can lend the least support to the statement that "the predecessors of his British Majesty were in possession not only of the dominion that bears the name of South Carolina before the conclusion of the treaty, but also of the part of the said province now called Georgia." On the contrary, it definitely points out the limits that ought to be enjoyed by each one of the nations in the words, "that the sovereigns of Great Britain, their heirs, etc., shall possess and hold perpetually all the lands, etc., that they hold and possess at present in the name of the British King;" which is certainly the same as saying that those which they did not have and possess before the conclusion of the treaty they could not and ought not to hold afterward.

39. For Great Britain to pretend to some show of right to the territory which she is now occupying under the name of Georgia, it would not be suificient merely to demonstrate that it was deserted and unoccupied by any kind of inhabitants since before the year 1670. Besides this, two impossible things should be alleged and proved in order that the possession conceded by the agreement of Article 7 might fall with some legality to the British Crown, as that of the other regions fell to it. One is that England held and possessed it before the treaty; the other is that the Spaniards were not the owners and inhabitants, as they really were, in the year of its ratification.

40. In addition to these attempts, so contradictory to each other, it would also be necessary to show that the dates of the patents issued to the Company of New Georgia were anterior to the year 1670, and not sixty-two years after its ratification. But since all the world knows that they were granted in 1732, how can the British Minister, without causing astonishment and amazement, draw the inference that "the predecessors of his British Majesty were in possession of the dominion called Georgia before the conclusion of the treaty?" The inconsistencies are manifest in themselves.

41. No one can fail to see that it would be necessary for the English subjects who were living in this territory to have the gift of invisibility, and the need to live incompatibly incorporated with the Spaniards who dwelt in it until the year 1702 without any one knowing of their presence; and that they must have removed to some other place after the formation of the Company of Georgia. For it is evident and notorious that this province has not had, and has not now, any other inhabitants than those that Oglethorpe brought with him to settle it, and those which the said Company has subsequently sent.

42. The British Minister tries to draw the inference from the treaty "that the predecessors of his British Majesty had granted to his subjects before it was ratified the country between 36° 30' and 29°, inclusive, etc." Laying aside all the proofs given to the contrary, but granting how improbable this would be if the subjects of Spain were actual owners of it, as they indeed were, it should be replied that in none of the articles agreed upon is there a word or expression to be found which gives any indication that the Court of Spain had had any notification whatever of the concessions he speaks of, or that his Catholic Majesty had recognized or consented to the fixing of the limits in accordance with the patents of Great Britain, much less that the province and country called Georgia had always been possessed as a part of South Carolina.

43. Those words in Article 7, "shall hold and possess perpetually all the lands, regions, islands, colonies, and dominions in the Western Indies under the name of the British King," refer, clearly and expressly, only to what his vassals held and possessed as such occupants, and do not in any manner concede to Great Britain the countries which in his imagination he had granted to his subjects by his patents, both because these patents did not constitute possession, and because the Court of Spain was totally ignorant of them. And it is not possible to imagine that his British Majesty would have given to his vassals possession of territory to which he had no right, and over which the Spaniards had enjoyed full dominion for more than one hundred years previously.

44. It is certain that in order to prevent the Spaniards at any time from disputing with England the possession of the country under discussion, it would have been necessary to have in the treaty between the two courts stipulations like the following: "that the sovereigns of Great Britain, their heirs, etc., shall possess and hold perpetually not only all the lands, etc., that they now hold under the name of the British King, but also those to which patents may previously have been given to his vassals as far as 29°, inclusive," and to have added at the same time "notwithstanding that they may be inhabited by Spaniards." In this way, indeed, England would possess with legal title of ownership the province of New Georgia, and his Catholic Majesty would have no right to insist upon the just claims upon which he is now insisting. On the contrary, as soon as the treaty was ratified it would have been necessary for him to give orders to his subjects to demolish the old fort of Santa Elena and remove themselves from the province of Guale, in which they were living in the year 1670. And then the city of San Agustin and the rest of the Spanish settlements as far as Mosquito Inlet, inclusive, being comprehended within the 29th degree, would, by force of the treaty, have had to be evacuated, in order to leave the English in full possession of their jurisdiction. These circumstances did not exist, nor should they have existed, for the conditions were totally lacking in the treaty under which they would have been prescribed, and which would have been necessary in order that Great Britain should have the power that is requisite in a Prince to concede patents to his subjects to settle dominions which neither directly nor indirectly belong to him.

45. Not less pertinent to the subject is the palpable inconsistency into which the Duke of Newcastle found it necessary to fall in his letter already quoted. In his attempt to deprive the Crown of Spain of its right, in order to argue in favor of his court, he did not scruple to say: "that in the treaties of the year 1670 and that of Utrecht in 1713 there is no description or particular designation of the limits of the said provinces." And in the next paragraph, wishing to draw the inference from the treaty of 1670, that "the predecessors of his sovereign not only were in possession of the region which bears the name of South Carolina before conclusion of the treaty, but also of the part of the said province now called Georgia," he freely states that "the limits indicated here have been publicly recognized and always agreed to." Therefore, it is easy to see that the Court of London, being obfuscated, and not knowing how to combine at once a negative and an affirmative into one proposition, asserts in its own favor the very thing it denies, and inadvertently denies, on the other hand, the very thing it admits, without seeing that its self-contradiction convicts it of its own lack of logic.