Memorial.
The treaty of which the interpretation is referred to Your Majesty’s arbitrament was ratified more than a quarter of a century ago. Of the sixteen members of the British cabinet which framed and presented it for the acceptance of the United States, Sir Robert Peel, Lord Aberdeen, and all the rest but one, are no more. The British minister at Washington who signed it is dead. Of American statesmen concerned in it, the minister at London, the President and Vice-President, the Secretary of State, and every one of the President’s constitutional advisers, except one, have passed away. I alone remain, and after finishing the three-score years and ten that are the days of our years, am selected by my country to uphold its rights.
Six times the United States had received the offer of arbitration on their Northwestern boundary, and six times had refused to refer a point where the importance was so great and the right so clear. But when consent was obtained to bring the question before Your Majesty, my country resolved to change its policy, and in the heart of Europe, before a tribunal from which no judgment but a just one can *emanate, to explain the solid foundation of our demand, and the principles of moderation and justice by which we have been governed.[4]
The case involves questions of geography, of history, and of international law; and we are glad that the discussion should be held in the midst of a nation whose sons have been trained in those sciences by a Carl Ritter, a Ranke, and a Heffter.
The long-continued controversy has tended to estrange from each other two of the greatest powers in the world, and even menaced, though remotely, a conflict in arms. A want of confidence in the disposition of the British government has been sinking into the mind of the States of the Union now rising on the Pacific, and might grow into a popular conviction, not easy to be eradicated. After having secured union and tranquillity to the people of Germany, and attained a happiness never before allotted by Providence to German warrior or statesman, will it not be to Your Majesty a crowning glory now, in the fullness of years and in the quiet which follows the mighty struggles of a most eventful life, to reconcile the two younger branches of the great Germanic family?
THE POINT FOR ARBITRATION.
The point submitted for arbitration is limited with exactness. By Article I of the Treaty concluded at Washington on the 15th of June, 1846, between the United States and Her Britannic Majesty, it was stipulated that the line of boundary between the territories of the United States and those of Her Britannic Majesty, from the point on the forty-ninth parallel of north latitude up to which it had already been ascertained, should be continued westward along the said parallel of north latitude “to the middle of the channel which separates the continent from Vancouver’s Island, and [Page 4] thence *southerly, through the middle of the said channel and of Fuca’s Straits to the Pacific Ocean.” The British Government claim that the water-line here referred to should run through a passage which they have thought proper to name the straits of Rosario, and which the United States, for the purpose of this reference, permit to go by that name. The United States claim that the water-line runs through the canal de Haro. The arbitrator is to say finally and without appeal which of those claims is most in accordance with the true interpretation of the treaty of June 15, 1846. That is the point submitted, and that alone; nothing more and nothing less.Appendix No. 1, p. 3. [5] Appendix, p. 4, 1. 20, 21.
If the United States can but prove their claim to be most in accordance with the true interpretation of the treaty, it is agreed that the award shall be in their favor; how much more, then, if they prove that their interpretation is the only one which the treaty admits!
HOW THIS DISCUSSION WILL BE CONDUCTED.
In conducting this discussion I shall keep in mind that the restoration of friendship between the two powers which are at variance is the object of the arbitration. Nothing that has been written since the ratifications of the treaty were exchanged can alter its words or affect its interpretation. I shall, therefore, for the present at least, decline to examine all communications that may have taken place since that epoch, except so far as is necessary to explain why there is an arbitration, and shall thus gain the advantage of treating the subject as simply an investigation for the ascertainment of truth.
Since the intention of the negotiators must rest on the knowledge in their possession at the time when the treaty was made, I shall use the charts and explorations which have advanced, or profess to have advanced, our knowledge of the *country in question, and which are anterior to that date. Of such charts I have found six, and six only; and though they are of very unequal value, yet for the sate or impartiality and completeness I present photographic copies or extracts of every one of them. Of charts of explorations of a later date, it was my desire to make no use whatever; but then, as will appear in the sequel, there would be not one map on which the channel claimed by the British government could be found with the name of “the straits of Rosario;” I am therefore compelled to add a later chart, on which that name is placed, as required for the arbitration. This chart also shows the length and breadth and depth of the respective channels.[6]
My task is an easy one; for I have only to deduce the intentions of the negotiators of the treaty from its history, and to interpret its words according to the acknowledged principles of international law.
PARALLELS OF LATITUDE THE CUSTOMARY BOUNDARIES OF ENGLISH COLONIES IN NORTH AMERICA.
A parallel of latitude extending from the Atlantic to the Pacific was a usual boundary established by England for its colonies in North America. The charter granted in 1620 by James I, to the company of Plymouth for New England, bounded its territory by the parallels of 48° and of 40° north latitude “in length and breadth throughout the mainland from sea to sea.” The charter granted by Charles I to Massachusetts in 1628 had in like manner for its northern and southern boundaries parallels of latitude running from sea to sea. So, too, had the old patent of Connecticut; [Page 5] so too had the charter to Connecticut, granted by Charles II, in 1662. The charter granted in 1663 by Charles II, to the Lords Proprietors of Carolina, adopted as their northern boundary the parallel of six and thirty degrees, and as their southern boundary the parallel of “one and thirty degrees of *northern latitude, and so west in a direct line as far as the South seas.” The precedent was followed by George II, in the charter granted in 1732 for Georgia; and in 1761 George III officially described that colony as extending by parallels “westward in direct lines” to the Pacific.Appendix, p. 6, 1. 14 –17. P. 6, 1. 24–27. P. 7, 1.7–10. P. 7, 1.16–18. [7] Appendix, p. 7, 1.29–21.
THE SAME RULE CONTINUED IN THE TREATY OF PEACE OF 1872.
In the first convention between the United States of America and Great Britain, signed at Paris on the 30th of November, 1782, the northern boundary line of the United States was carried by the two powers through the great upper lakes to the most northwestern point of the Lake of the Woods. If from that point the line was to be continued, the treaty, adopting the precedent of the past century of colonization, and foreshadowing the rule of the future, prescribed “a due west course.”Appendix No. 4, p. 8.
THE SAME RULE APPLIED TO THE BOUNDARY OF LOUISIANA.
By the treaty of April 30, 1803, between the United States of America and the French Republic, the United States came into possession “forever and in full sovereignty” of the colony and Territory of Louisiana.Appendix No. 5, p. 8.
No sooner had the United States made this acquisition than they sent out an exploring expedition, which made known to the world the Rocky Mountains and the branches of the river of Oregon, the mouth of which an American navigator had been the first to enter.
By the acquisition of Louisiana the Republic of America and Great Britain, as sovereign over the territory of Hudson Bay, became neighbors still further to the west; and the two powers took an early opportunity to consider their dividing line west of the Lake of the Woods. The United States might have demanded, perhaps should have demanded, under *the treaty of 1782, that the line “due west” should proceed from “the most northwest point of the Lake of the Woods.” That point is near the parallel of 50°; the United States consented to the parallel of 49°. But with regard to the continuation of the line, while Mr. Madison, the American Secretary of State, was desirous not to advance claims that could be “offensive to Spain,” both parties, adopting the words of the treaty of 1782, agreed as between themselves that the line should proceed on that parallel “in a due west course” to the Rocky Mountains. In 1807 this agreement would have been ratified; but the maritime decrees of the Emperor Napoleon, dated at Berlin and at Milan, disturbed the peace of the oceans, and orders in council in Great Britain, which finally provoked war with the United States, interposed delay.[8] Appendix No. 6, p. 9. Appendix No. 7. p. 9, 10. Appendix No. 6, p. 9, 1. 1, 2.
When, in 1815, the terms of peace were to be adjusted, the American plenipotentiaries were instructed by their Government as to the northwestern boundary, to consent to no claim on the part of Great Britain to territory in that quarter south of the forty-ninth parallel of latitude; and they implicitly adhered to their instructions.Appendix No. 50, p. 56.
[Page 6]In due time the negotiations, which had effected an agreement in 1807, were renewed; and, on the 20th of October, 1818, the parallel of 49° was adopted as the boundary line between the two countries as far as the Stony, or, as we now more commonly call them, the Rocky Mountains. From that range of mountains to the Pacific, America, partly from respect to the claims of Spain, was willing to delay for ten years the continuance of the boundary line.Convention with G. Britain Oct. 20, 1816. Art. 1, 2, 3.
THE UNITED STATES ACQUIRE THE CLAIMS OF SPAIN NORTH OF 42°.
The ocean chivalry of Spain were the first to explore the northern coast of the Pacific. Hernando Cortes began the work. The straits of Fuca take their name from a Greek *navigator who was in the Spanish service in 1592. Perez, a Spaniard, whose explorations extended as far to the north as 54°, discovered Nootka Sound in 1774. In the next year Bodega y Quadra reached the fifty-eighth degree, and Heceta, on the 15th of August, 1775, returning from Nootka, noticed, though he did not enter, the mouth of the river Oregon. In 1789, 1790, 1791, before a British keel had entered the straits of Fuca, a succession of Spanish navigators, Martinez and de Haro, Eliza, Fidalgo, Quimper, and others, had explored and draughted charts of the island which is now called Vancouver, and the waters which lie to the, east of it. When Vancouver, on the 29th of April, 1792, passed through the straits of Fuca and entered those waters, he encountered, to his mortification, Spanish navigators who had already explored them and who produced before him a chart of that region made by Spanish officers the year before.[9] Appendix No. 12, p. 13.
By the treaty of Spain with the United States, of the 22d of February, 1819, “His Catholic Majesty ceded to the United States all his rights, claims, and pretensions to any territories north of the parallel of latitude 42°, from the Arkansas River to the Pacific.”Tratado de Limites Entre S. M. Ca. y los Estados unidos de America. Art. 3.
Thus did the custom of boundaries by a parallel of latitude receive a new confirmation; and thus did the United States become sole heir to all the pretensions and rights which Spain had acquired in North America, north of the parallel of 42°, and beyond that of 49°.
MR. HUSKISSON OBJECTS TO THE DIVISION OF VANCOUVER ISLAND.
When the ten years’ limitation of the treaty of 1818 drew near, Mr. Canning, secretary of state for foreign affairs in Great at Britain, on the 20th of April, 1826, invited the American Government to resume negotiations (attempted in vain in 1824) for settling the boundary upon the northwest coast of America.Appendix No. 8, p. 10.
*At that time John Quincy Adams was President of the United States, with Henry Clay for Secretary of State; and the negotiation on the American side was conducted in London by Albert Gallatin. Re enforced as were the United States of America by the titles of both France and Spain, in addition to their own claims from contiguity and discovery, they remained true to their principle of moderation, and again it was resolved not to insist on the territory to the north of 49° which Spain had ceded; and on the 19th of June, 1826, “in the spirit of and compromise, which he hoped Great Britain would recognise and reciprocate,” Mr. Clay authorized Mr. Gallatin to propose “the extension of the line on the parallel of 49° from the Stony Mountains to the Pacific Ocean.” “This” he wrote, “is our ultimatum, [Page 7] and you may so announce it. We can consent to no line more favorable to Great Britain.” In the following August Mr. Clay repeated to Mr. Gallatin: “The President cannot consent that the boundary on the northwest coast shall be south of forty-nine.”[10] Appendix No. 9, p. 11. Appendix No. 9, p. 12, 1. 5–7.
On the 22d of November, 1826, Mr. Huskisson, one of the British plenipotentiaries, remarked on the straight line proposed by the United States, that its cutting off the lower part of Vancouver Island was quite inadmissible. Here is the first intimation of the boundary line of 49° to the Pacific, with just so much deflection as to leave the southern extremity of Vancouver Island to Great Britain.Appendix No. 10, p. 12.
To this Mr. Gallatin, nine days later, replied, that ‘‘to the forty-ninth parallel the United States would adhere as a basis.” Yet as it seemed to cut Vancouver Island in an inconvenient manner, he had in view the exchange of that southern extremity for an equivalent north of 49° on the mainland. Here is the first intimation of the possibility, on the part of the United States, to vary from the line of 49°, but only so far as to yield to Great Britain the southern extremity of Vancouver Island, in return for a full equivalent.Appendix No. 11, p. 13.
*But the interest of the Hudson Bay Company was better subserved by leaving the whole region open to the fur trade, and the United States on their part had no motive for hastening an adjustment. The American envoy, therefore, in 1827 consented to prolong the treaty of 1818, yet with the proviso that either party might abrogate it, on giving notice of twelve months tothe other contracting party. Under this convention the question of jurisdiction and boundary remained in abeyance for nearly sixteen years.[11] Convention with Great Britain, August 6, 1827.
LORD ABERDEEN AND MR. EVERETT DISCUSS THE NORTHWESTERN BOUNDARY.
In October 1822, the British foreign secretary, the Earl of Aberdeen, who through the agency of Lord Ashburton had just settled our northeastern boundary from the Lake of the Woods to the Atlantic, expressed to Mr. Everett, then American minister at London, a strong wish that he might receive instructions to settle the boundary between the two countries on the Pacific Ocean.Appendix No. 13, p. 14. No. 14, 15, p. 15.
American emigrants had already begun to find their way on foot across the continent. In 1843 a thousand emigrants, armed men, women, and children, with wagons and cattle, having assembled on the western frontier of Missouri, marched across the plains and through the mountain passes to the fertile valley of the Willamette in Oregon. The ability of America to enforce its rights by occupation grew with every year. But its increasing power did not change its policy of moderation, and to meet the wish of Lord Aberdeen, on the 9th of October, 1843, the Government of the United States sent to Mr. Everett the necessary powers, with this instruction: “The offer of the forty-ninth parallel may be again tendered, with the right of navigating the Columbia on equal terms.”Appendix No. 16, p. 16.
On the 29th of November, 1843, soon after Mr. Everett’s full powers had arrived, he and Lord Aberdeen had a very *long and important conversation on the Oregon question; and the concession of Lord Aberdeen appearing to invite an expression of the extremest modification which the United States could admit to their former proposal, Mr. Everett reports that he said:[12] Appendix No. 19, p. 19. P. 20, 1. 25–27. P. 20, 1. 31–36.
I thought the President might he induced so far to depart from the forty-ninth [Page 8] parallel as to leave the whole of Quadra and Vancouver’s Island to England, whereas that line of latitude would give us the southern extremity of that island, and consequently the command of the straits of Fuca on both sides. I then pointed out on a map the extent of this concession; and Lord Aberdeen said he would take it into consideration.P. 21, 1. 1–3.
The next day Mr. Everett more formally referred to the subject in a note to the British secretary:Appendix, p. 21, 22.
46 Grosvenor Place, 30th November, 1843.
My Dear Lord Aberdeen. * * * It appears from Mr. Gallatin’s correspondence that * * * Mr. Huskisson had especially objected to the extension of the 49° to the Pacific, on the ground that it would cut off the southern extremity of Quadra and Vancouver’s Island. My suggestion yesterday would obviate this objection. * * * A glance at the map shows its importance as a modification of the forty-ninth degree. * * * Edward Everett.
On the 2d of February, and on the 1st of April, 1844, Mr. Everett reports that he continuously insisted with Lord Aberdeen that the only modification which the United States could, in his opinion, be brought to agree to, was that they should waive their claim to the southern extremity of Vancouver Island, and that Lord Aberdeen uniformly answered: “he did not think there would be much difficulty in settling the question.”Appendix No. 20, p. 22–24. P. 18, 1. 32, 33. P. 23, 1. 39, 40.
During the following months Mr. Everett and Lord Aberdeen, both wishing sincerely to settle the controversy, had further frequent conversations, and, as the result of them all, Mr. Everett reported that England would not accept the *naked parallel of 49° to the ocean, but would consent to the line of the forty-ninth degree, provided it could be so modified as to leave to Great Britain the southern extremity of Vancouver Island. “I have spared no pains,” wrote Mr. Everett on the 28th of February, 1845, “to impress upon Lord Aberdeen’s mind the persuasion that the utmost which the United States can concede is the 49th parallel with the modification suggested, taking always care to add that I had no authority tor saying that even that modification would be agreed to.”[13] Appendix No. 22, p. 26, 1. 23–27.
To one fact I particularly invoke the attention of the Imperial arbitrator: not the least room for doubt was left by Mr. Everett with regard to the extent of the modification proposed. He had pointed it out to Lord Aberdeen on the map, and had so often and so carefully directed his attention to it, that there could be no misapprehension on the limit of the proposed concession. Mr. Everett retired from office in the full persuasion that the northwestern boundary would be settled, whenever the United States would consent so far to depart from the parallel of 49° as to leave the whole of Vancouver Island to Great Britain.
THE PAMPHLET OF MR. STURGIS.
The subject attracted public attention. On the 22d of January, 1845, Mr. William Sturgis, a distinguished citizen of the United States who had passed several years on the northwest coast of America, delivered in Boston a lecture on what was now generally called the Oregon question, in which, hitting exactly the idea of Mr. Everett, he proposed as the boundary: “a continuation of the parallel of 49° across the Rocky Mountains to tide-water, say to the middle of the Gulf of Georgia; thence by the northernmost navigable passage (not north of 49°) to the straits of Juan de Fuca, and down the middle of these straits to the Pacific Ocean; the navigation of the Gulf of Georgia and the Straits of Fuca to be forever *free to both parties; all the islands and other territory lying south and east of this line to belong to the United States, and all north and west to Great [Page 9] Britain. By this arrangement we should yield to Great Britain the portion of Quadra and Vancouver’s Island that lies south of latitude 49° * * * Will Great Britain accede to this? I think she will.”Appendix No. 21, p. 24, 25. [14]
The pamphlet of Mr. Sturgis, accompanied by a map on which the proposed boundary is marked, was read by Lord Ashburton and by Lord Aberdeen. To one who eminently enjoyed the confidence of both governments Lord Aberdeen pronounced it “a clear and sensible view of the matter.” Lord Ashburton, whose opinion on the subject carried the greatest weight, wrote to Mr. Sturgis:Appendix No. 26, p. 30, 1. 3. Appendix No. 25, p. 28, 1. 7–11.
Your treatise enables me every day to answer satisfactorily the questions put to me so often, where is the Oregon, and what is this dispute about? You have stated the case distinctly in a few pages, and, what is indeed uncommon, with great impartiality
MR. BUCHANAN NEGOTIATES WITH MR. PAKENHAM.
Meantime the negotiation on the Oregon question had been transferred to the new British minister at Washington. Offers of arbitration had been rejected; emigration across the plains gave promise of founding States on the Pacific; and the Congress of the United States teemed with propositions to prepare for establishing a territorial government in Oregon. When the administration of Mr. Polk entered upon office, all parties in America were unanimous in insisting on a boundary at the least as favorable as the parallel of 49°; while a very large number, and seemingly the largest number, thought the time had come for America, as the heir of Spain, to carry its claims beyond the parallel of 49°. But the new administration would not swerve from the moderation which had marked the policy of the country.
Meantime both parties had received more accurate information on the geography of that district. In July, 1841, Captain Wilkes had made a survey of the waters south of 49°, especially of the channel of Haro; and in the early part of 1845 his narrative and accompanying map had been published both in America and England. Believing now that Great Britain would accept the line of 49°, with the small modification for the southern end of Vancouver Island, the American administration, on the 12th of July, 1845, made to the British minister at Washington the proposal, “that the Oregon territory shall be divided between the two countries by the forty-ninth parallel of north latitude from the Rocky Mountains to the Pacific Ocean; offering at the same time to make free to Great Britain any port or ports on Vancouver’s Island south of this parallel, which the British government may desire.” A friendly spirit dictated the proposition, which it was sincerely hoped and expected might “prove the foundation of lasting peace and harmony between the two countries.”[15] Appendix No. 27, p. 31. Appendix No. 28, p. 31.
The proposition, which excited surprise by its moderation, was rejected by the British plenipotentiary at Washington, who, without even waiting to refer the subject to the ministry in England, suffered the negotiation on his part to drop, expressing his trust that the United States would offer “some further proposal for the settlement of the Oregon question.”Appendix No. 29, p. 32. Appendix No. 30, p. 32, 33.
In consequence of receiving such an answer, the American Secretary of State withdrew the offer that he had made.
On hearing of this abrupt rejection of the American proposal, Lord Aberdeen invited Mr. MacLane, the new American minister at London, to an interview, of which Mr. MacLane made report:Appendix No. 31, p. 34.
Lord Aberdeen not only lamented but censured the rejection of our proposition by [Page 10] Mr. Pakenham without referring it to his government. He stated that if Mr. Pakenham had communicated the American proposition to the government here, as he was expected to have done, he, Lord Aberdeen, would have taken it up as a basis of his action, and entertained little doubt that he would have been enabled *to propose modifications which might have resulted in an adjustment mutually satisfactory to both governments.[16]
The conduct of Mr. Pakenham was not censored in private only. Lord Aberdeen censured it in the House of Lords. In the House of Commons, on the night of Friday, the 23d of January, 1846, Lord John Russell condemned it as “a hasty proceeding.” Sir Robert Peel was cheered, when on the same evening he observed:Appendix No. 34. p. 37–39.
It would have been better had he transmitted that proposal to the home government for their consideration; and, if found in itself unsatisfactory, it might possibly have formed the foundation for a further proposal.
And now that the re-opening of the negotiation was thrown upon his ministry, he was loudly applauded by the House, as he gave a pledge for his own future conduct in these words:
I think it would he the greatest misfortune, if a contest about the Oregon between two such powers as England and the United States, could not, by the exercise of moderation and good sense, be brought to a perfectly honorable and satisfactory conclusion.
FINAL PROPOSAL OF THE EARL OF ABERDEEN.
Lord Aberdeen confessed that it now fell to him to propose a peaceful solution of the long controversy. Mr. Everett had left him no doubt as to the utmost departure from the parallel of forty-nine degrees, which the United States, under the late administration, could have conceded. The only doubt was now, if the United States would still be willing to yield so much. The rude rejection of Mr. Buchanan’s proposal had roused and united their people. Mr. Calhoun, the late Secretary of State, and the ablest Senator from one section of the country, declared himself in the Senate for the forty-ninth degree as the boundary line. Mr. Webster, the former Secretary of State, who had settled with Lord Ashburton the northeastern boundary, repeatedly “said as plainly as he could speak, or put down *words in writing, that England must not expect anything south of forty-nine degrees.” All those members of Congress who were of a different mind, Mr. John Quincy Adams, a late President of the United States, Mr. Cass, afterward Secretary of State, Mr. Sevier, then the chairman of the Committee on Foreign Affairs, contended, not for less than the line of forty-nine degrees, but, under the heirship from Spain, for very much more. The voice of England became loud for the line of the forty-ninth parallel. Mr. Bates, an American naturalized in Great Britain by act of Parliament, and much trusted by both governments, wrote from London:Appendix No. 35, p. 39–41. [17] P. 40, 1. 8–21. P. 40, 1. 22–26, p. 41. Appendix No. 36, p. 41. Appendix No. 33, p. 36.
The forty-ninth degree, to the strait, giving Vancouver’s Island to Great Britain, is as much as any American, be he Bostonian or Carolinian, will, I think, consent to give up. If Great Britain is not satisfied with that, let them have war if they want it.
The British government sought anxiously to know what proposition the American Government would consent to receive, and the American Government proved its firmness by its moderation. To protect the rights of the country, Congress voted to give to Great Britain the twelve months’ notice required by treaty, for terminating the convention of 1827, and thus open the region of the Northwest to the progress of American colonization. Meanwhile, on the 26th of February, 1846, Mr. Buchanan answered, that the President would consent to consult the Senate on the proposition, to divide [Page 11] the territory between the two countries “by the forty-ninth parallel and the straits of Fuca,” so that “the cape of Vancouver’s Island would be surrendered to Great Britain.” This was exactly the proposition of Mr. Everett.P. 35, 1. 11, 12. Appendix No. 37, 43 1. 7–9, 17.
On the 15th of May, 1846, information of the notice for terminating the convention of 1827 was received by the British ministry in London. For four years Lord Aberdeen had been striving to close this question of boundary. He had privately and publicly censured his subordinate, Mr. Pakenham, at Washington, for rejecting the parallel of forty-nine. *He had taken pains to learn what deviation from that parallel the United States might accept. The Secretary of State for the United States, after minute inquiry concerning the probable vote of the Senate, had promised not at once to reject the offer of the line proposed by Mr. Everett, and not to listen to any demand for a larger concession. This had been formally communicated to the British Government by Mr. MacLane, the American minister at London. And now, within two days alter receiving news of the termination of the convention of 1827, Lord Aberdeen held a lengthened conference with Mr. MacLane, in which the nature of the proposition he contemplated submitting for an amicable settlement of the Oregon question “formed the subject of a full and free conversation.” Mr. MacLane was a calm and experienced statesman, trained in business, exact in his use of words, careful especially in reporting what was said by others. Lord Aberdeen in the House of Lords publicly expressed his esteem for him, founded on an acquaintance which dated from fifteen or six teen years before.Appendix No. 42, p. 46, 1. 15–18, 24. [18] P. 46, 1. 23–27. P. 47, 1. 1, 2. Appendix No. 45, p. 51, 1. 30–33.
With this knowledge of Mr. MacLane’s character, and of the confidence reposed in him by Lord Aberdeen, I request the imperial arbitrator to take in hand the map of the Oregon territory by Wilkes, which had been published in England as well as in America in 1845, and which was the latest, most authentic, and best map of the Territory, as well as the only one recognized by the American Senate; and with this map in hand to read the following extract from Mr. MacLane’s official report of the interview, made on the 18th of May, 1846:Map F. Appendix No. 41, p. 46, 1. 6, 7.
I have now to state that instructions will be transmitted to Mr. Pakenham by the steamer of to-morrow to submit a new and further proposition on the part of this Government for a partition of the territory in dispute.Appendix No, 42, p. 47, 1. 3–11.
The proposition, most probably, will offer substantially:
First. To divide the territory by the extension of the line on the parallel of forty-nine to the sea; that is to say, *to the arm of the sea called Birch’s Bay, thence by the canal de Arro and straits of Fuca to the ocean.[19]
* * * * * * *
Here follow other clauses conceding to the Hudson Bay Company a temporary use of the Oregon River for navigation, with other advantages, and protection to British subjects who would suddenly come under the jurisdiction of the United States. To these clauses the phrase “most probably” applies, for they were not precisely ascertained; but not to the boundary; on that point the further statement of Mr. MacLane in the same dispatch leaves no room for a doubt. His words are:P. 47.
During the preceding administration of our Government, the extension of the line on the forty-ninth parallel to the straits of Fuca, as now proposed by Lord Aberdeen, was actually suggested by my immediate predecessor, (Mr. Everett,) as one he thought his Government might accept.P. 48, 1. 25–29.
Now what the proposal of Mr. Everett had been, we know from the [Page 12] citations which I have made from his dispatches; and I have already referred to the fact that he had drawn the line of demarkation upon the map, and specially directed the attention of Lord Aberdeen to it.
On the same day Lord Aberdeen sent the treaty which Mr. Pakenham was to invite Mr. Buchanan to sign. In the accompanying instruction to Mr. Pakenham he accepted the parallel of 49° as the radical principle of the boundary, and described the line as a line of demarkation “leaving the whole of Vancouver Island with its ports and harbors in the possession of Great Britain.”Appendix No. 43, p. 49. No. 45, p. 51, 1. 4–6. No. 43, p. 50, 1. 6, 7.
A suspicion of ambiguity could not lurk in the mind of any one. Mr. Benton found the language so clear that he adopted it as his own. In his speech in the Senate on the day of the ratification of the treaty, he said:
The first article of the treaty is in the very words which I myself would have used, if the two governments had *left it to me to draw the boundary line between them. * * * The line established by the first article follows the parallel of 49° to the sea, with a slight deflection, through the Straits of Fuca, to avoid cutting off the south end of Vancouver’s Island. * * *When the line reaches the channel which separates Vancouver’s Island from the continent, it proceeds to the middle of the channel, and thence, turning south, though the channel de Haro, (wrongly written Arro on the maps,) to the Straits of Fuca, and then west, through the middle of that strait, to the sea. This gives us * * * the cluster of islands between de Haro’s Channel and the continent.[20] Appendix No. 44, p. 50.
The language of the treaty seemed perfectly clear to the Senate, to the President, to his Secretary of State, and to every one of his constitutional advisers, as departing from the line of the parallel of 49° only so far as to yield the southern extremity of Vancouver’s Island, and no more. And so it was signed on the 15th of June, 1846, and returned to England for the exchange of ratifications.
In the House of Commons Lord Palmerston welcomed it as honorable to both countries; Sir Robert Peel quoted from a dispatch which proved that he was aware of the three days’ debate in the American Senate on the treaty before its approval. He cited every word of the article on the boundary, and interpreted it thus:Appendix No. 5, p. 54, 1. 13, 14.
Those who remember the local conformation of that country will understand that that which we proposed is the continuation of the forty-ninth parallel of latitude till it strikes the Straits of Fuca: that that parallel should not be continued as a boundary across Vancouver’s Island, thus depriving us of a part of Vancouver’s Island, but that the middle of the channel shall be the future boundary, thus leaving us in possession of the whole of Vancouver’s Island, with equal right to the navigation of the straits.P. 53, 1. 31–38.
*MR. BUCHANAN AND SIR ROBERT PEEL BELIEVED THEY HAD CLOSED EVERY CAUSE OF DISSENSION.[21]
It had been the special object of Mr. Buchanan to leave nothing in the treaty which could give occasion to future controversy. And on the night before Sir Robert Peel retired from office, never again to resume it, he spoke of the treaty as having averted the dreadful calamity of a war between two nations of kindred origin and common language, and having at length “closed every cause of dissension between the two countries.” All Great Britain, all the United States, were gladdened by the belief that at last every controversy between the two nations had come to a happy end.Appendix No. 46, p. 54, 1. 25–28. P. 54, 1. 34. 35. P. 55, 1. 1–3.
THE MINISTRY OF LORD JOHN RUSSELL RENEWS DISSENSION.
And yet it was not so. My country has had no serious difficulties on its limits with any power but Great Britain. When its boundary on the [Page 13] south with Spain was adjusted by treaty, not a difference arose, though the line extended from sea to sea. When, afterward, the southern boundary was regulated with Mexico under a treaty most imperfect in its descriptions, commissioners unrestrained by instructions promptly settled the line. It is with Great Britain alone that obstinate dissensions on boundaries, extending from the Gulf of Saint Lawrence to the Pacific, have exercised disturbing influences for sixty-four years. At last we thought ourselves assured of quiet on that side also by the treaty of 1846; and though its terms were not altogether satisfactory, the country, in the expectation of rest, accepted cheerfully and unanimously the action of its Government. Yet, after a pause of hardly two years, the strife was re-opened by the ministry which succeeded that of Sir Robert Peel. Under instructions from Lord Palmerston, the British minister at Washington on the *13th of January, 1848, in a proposed draught of instructions to commissioners for settling the boundary, indirectly insinuated a claim that the line of boundary should be drawn on the channel through which Vancouver in 1792 had sailed from Admiralty Inlet to Birch’s Bay.[22]
This insinuation took the American Government by surprise. The history of the negotiation shows that no such line was suggested by either side to the other. Vancouver was an explorer, who examined every inlet and bay and passage, not a merchant seeking the shortest, most natural, and best passage. Nothing justifies a reference to his course of sailing from one interior bay to another, as the line of the treaty. The suggestion is in open conflict with the law of nations. The draught of the treaty was made entirely, even to the minutest word, by the British ministry, and was signed by both parties without change. The British government cannot, therefore, take advantage of an ambiguity of their own, otherwise the draught of the treaty would have been a snare. Such is the principle of natural right, such the established law of nations. Hugo Grotius lays down the rule that the inter pretation must be made against the party which draughted the conditions: “Ut contra eum fiat interpretatio, qui conditiones elocutus est.” But no one has expressed this more clearly than Vattel, who writes:Appendix, p. 51, 1. 4–6, 22–25. P. 53, 1. 16, 17. P. 54, 1. 19, 20. H. Grotius. De jure belli et pacis, III, 20, § 26. Vattel, liv. II, § 264.
Voici une règle qui coupe court à toute chicane: Si celui qui pouvoit et devoit s’expliquer nettement et pleinement, ne l’a pas fait, tant pis pour lui: il ne peut être reçu à apporter subséquemment des restrictions qu’il n’a pas exprimées. C’est la maxime du droit romain: pactionem obscuram iis nocere, in quorum fuit potestate legem apertius conscribere. L’équité de cette règle saute aux yeux; sa nécessité n’est pas moins évidente. Nulle convention assurée, nulle concession ferme et solide, si on peut les rendre *vaines par des limitations subséquentes, qui devoient être énoncées dans l’acte, si elles étoient dans la volonté des contractans.[23]
“Here is a rule which cuts short all chicanery: If he who could and should express himself plainly and fully, has not done so, so much the worse for him; he cannot be permitted subsequently to introduce restrictions which he has not expressed. It is the maxim of Roman law: An obscure contract harms those in whose power it was to lay down the law more clearly. The equity of this rule is self-evident; its necessity is not less obvious. There can be no assured convention, no firm and solid concession, if they can be rendered vain by subsequent limitations, which ought to have been announced in the act, if they existed in the intention of the contracting parties.”
PLEA FOR THE INTEGRITY OF SIR ROBERT PEEL’S MINISTRY.
And can it be true, that Sir Robert Peel and Lord Aberdeen were insincere in their professions of an earnest desire to settle the boundary question in Northwest America? Did they put into the core of the treaty which they themselves framed, words interpreted in one way by [Page 14] all Americans and by themselves in public, and secretly interpreted by themselves in another? When Sir Robert Peel, on the last night of his official life, in the face of political enemies and friends, cast up the account of his ministry for the judgment of posterity, and declared, in the most public and solemn manner, that he “had closed every cause of dissension between Great Britain and the United States,” had he indeed planted the seed of embittered discord in the instrument that he and his associate minister claimed as their own work, and extolled as a convention of peace?Appendix No. 52, p. 54, 1. 33–35. P. 55, 1. 1–3.
My respect for Sir Robert Peel and his administration forbids the thought that they put any ambiguity into the treaty *which they themselves draughted. There attaches to human language such imperfection that an acute caviller may dispute about the meaning of any proposition. But the words of the present treaty are so singularly clear that they may claim protection under the first general maxim of international law on the subject of interpretation: “Qu’il n’est pas permis d’interpréter ce oui n’a pas besoin d’interprétation.”[24] Vattel, liv. II, 17, § 263.
THE WORDS OF THE TREATY.
The words of the treaty are as follows:
From the point on the forty-ninth parallel of north latitude, where the boundary laid down in existing treaties and conventions between the United States and Great Britain terminates, the line of boundary between the territories of the United States and those of Her Britannic Majesty shall be continued westward along the said forty-ninth parallel of north latitude, to the middle of the channel which separates the continent from Vancouver Island, and thence southerly through the middle of the said channel, and of Fuca’s Straits, to the Pacific Ocean: Provided, however, That the navigation of the whole of the said channel and straits south of the forty-ninth parallel of north latitude remain free and open to both parties.Appendix No. 1, p. 3.
THE WORDS OF THE TREATY, TAKEN TOGETHER.
The language of the treaty, taken as a whole, admits no interpretation but the American. The radical principle of the boundary is the forty-ninth parallel of north latitude, and the only reason for departing from that parallel was to yield the whole of Vancouver Island, and no more, to the power which would already possess the greater part of that island. To express this line concisely, in both countries it was described as the line of the “forty-ninth parallel and Fuca’s Straits.” This short form of expression occurs many times in the dispatches *of Mr. MacLane; in the instructions of Mr. Buchanan: in the letters of Mr. Bates from London; in an article in the London Quarterly Review, written in February, 1846, and published in March; and, finally, in the speech of Sir Robert Peel, on the 29th of June, 1846, which I have already quoted. The description of the line as that “of the forty-ninth parallel and Fuca’s Straits” was not only the usage of the day; it was also well chosen for all time. The forty-ninth parallel can be found as long as the sun shall continue in the heavens; Fuca’s Straits end at the southeast cape of Vancouver Island, and will end there till nature shall heave with a convulsion. If the name of Haro does not specially appear in the treaty, let it be borne in mind that neither does the name of the Gulf of Georgia.[25]
THE CHANNEL.
The words of the description, considered collectively, establish the American interpretation of the treaty and exclude every other. The same result follows from the consideration of each separate word. When [Page 15] the treaty speaks of the “channel,” for that part south and west of Birch’s Bay, it must mean the channel of Haro, for no other “channel” was known to the negotiators. The channel of Haro was on the map of Vancouver, the highest English authority, and on the map of Wilkes, the highest American authority at the time when the treaty was signed; and no other channel is named on either of these maps, or on any map used by the negotiators. On the chart of those waters by Duflot de Mofras, published in 1844, under the auspices of Louis Philippe and the French ministry, the channel of Haro is named, and no other. In the collection of maps in the Royal Library at Berlin, not a single German or other map, anterior to June, 1846, names any other channel than that of Haro. How is it possible, then, that any other channel could have been intended, when no other was named on any map which it can be pretended *was known to Lord Aberdeen or Mr. MacLane, to Mr. Buchanan or Mr. Pakenham?Map C. Map F. Map E. [26]
Again, the word “channel,” when employed in treaties, means a deep and navigable channel; and where there are two navigable channels, by the rule of international law, preference is to be given to the largest column of water. Now, compared with any other channel through which a ship could pass from the sea at the forty-ninth parallel to the Straits of Fuca, the channel of Haro is the broadest and the deepest, the shortest and the best. Its maximum width is six and a half English miles, and there is no other channel of which the maximum width exceeds four miles. The narrowest part of the channel of Haro is about two and a quarter English miles, and there is no other channel of which the minimum width exceeds about one and a quarter English miles. With regard to depth, the contrast is still more striking. A cross-section on the parallel of 48° 45′ shows the Canal de Haro to be there about a hundred and twenty fathoms deep, about twice as deep as any other; on the parallel of 48° 35′ the Canal de Haro is nearly a hundred and fifty fathoms deep, against thirty fathoms for any competitor; on the parallel of 48° 25′ the Canal de Haro has nearly a hundred and ten fathoms, while no other passage has more than forty.Map H.
Not only is the volume of water in the Canal de Haro vastly greater than that in any other passage—a single glance at any map shows that it is the shortest and most direct way between the parallel of 49° and Fuca’s Straits. Duflot de Mofras describes it as notoriously the best.Appendix No. 48, p. 55, 1. 17–19.
If the channel of Haro excelled all others only on one point—if it were the widest though not the deepest, or the reverse, or, if being the widest and deepest, it were not the shortest and best, there might be some degree of color for cavil; but since the channel of Haro is the broadest and the deepest, and the shortest and the best, how can any one venture to pretend that any other is “the channel” of the treaty?
*“THE CHANNEL WHICH SEPARATES THE CONTINENT FROM VANCOUVER ISLAND.”[27]
The next words of the treaty are: “The channel which separates the continent from Vancouver Island,” and this, from latitude about 48° 46′, can be no other than the Canal de Haro. It is the only one which from that latitude to “Fuca’s Straits” separates the continent from Vancouver Island. There are other passages which divide islands from islands, but none other separates the continent from Vancouver Island. [Page 16] In the statement the continent is properly named first, because it is far away in the interior of the continent that the line begins, and it is the continent that the line leaves in going toward Vancouver. But when a great continent like North America is spoken of as distinguished from a large island lying near it, the intervening cluster of smaller islands would, according to all geographical usage, be taken as included with the continent, and thus the channel of Haro divides the continent from Vancouver. But we will not waste words. Nobody can dispute that the Canal de Haro washes the eastern shore of Vancouver Island, and separates that island from the continent.
“AND THENCE SOUTHERLY.”
The next words in the treaty are: “And thence southerly.” The southerly deflection from the forty-ninth parallel is made to avoid cutting Vancouver Island, and must be limited to that object. The movement of the boundary line is steadily west to the Pacific. The treaty knows only two points of compass: “westward” and this “southerly” deviation from the due west course. The southern deflection, therefore, must always be accompanied with the idea of a western direction; and of two channels going in a “southerly” direction, that which least interrupts the general “westward” direction of the line must be chosen as the channel of the treaty.
*“THROUGH THE MIDDLE OF THE SAID CHANNEL AND OF FUCA’S STRAITS TO THE PACIFIC OCEAN.”[28]
The next words of the treaty are: “Through the middle of the said channel and of Fuca’s Straits to the Pacific Ocean.” The treaty contemplates a continuous channel to the Pacific; the channel of Haro and Fuca’s Straits form such a continuous channel, and a glance at the map will show that no other channel can pretend to do so.
So, then, the description of the treaty as a whole applies to no channel but that of Haro; and every single phrase, taken separately, points also to that channel, and to that channel alone.
“THE STRAITS OF ROSARIO.”
And yet the British government ask the Imperial arbitrator to find the channel of the treaty in a passage for which, in January, 1848, they had no name and no other description than “the wide channel to the east of numerous islands, which is laid down by Vancouver,” and which now, in 1871, they call by the name of “the Rosario Straits.”
My first request is that the Imperial arbitrator will ascertain where on the 15th of June, 1846, the day when the treaty was signed, the negotiators supposed Rosario Straits to lie. On that day the name “Straits of Rosario” was, on every map used by the negotiators, placed upon the waters which divide the island of Texada from the continent, far north of the parallel of 49°. There it lies fast anchored on the map of Vancouver, published in 1798; it holds the same place in the atlas of the French translation of Vancouver. There, too, it is found on the French map of Duflot de Mofras, published in 1844; and also on the map of Wilkes, published in 1845; and there, too, on the British map of Vancouver Island, published by the geographer to the Queen, so late as 1848. Then, since all British and American maps, which in 1846 *had on them the name “Straits of Rosario,” located those straits far to the [Page 17] north of 49°, how can the British government invite Your Majesty to say that the straits of Rosario form the line of boundary established by British and American negotiators in that year between the United States and the British territory?Map C. Map E. Map F. [29]
How and why the British unmoored the name from the waters to which they themselves had consigned it, and where it remained for just half a century, I leave them to explain and to justify. I remark only that they cannot produce a map, English, French, Spanish, or German, older than 1848, on which the passage which they now call the Straits of Rosario bears that name. On Spanish maps the name is applied only to the very broad channel lying north of the Canal de Haro and of the forty-ninth parallel of latitude.Map B. Map D.
Further: the so-called Straits of Rosario are not straits at all. It is the track of Vancouver on his way from Admiralty Inlet to the north, as his map shows; but it received from him no name whatever. On British maps it never bore a name till after the British government introduced a new interpretation of the treaty of June, 1846.
Again—and this remark is of conclusive importance, by itself alone sufficient to decide the question—the line of the treaty must run from the middle of “the channel which separates the continent from Vancouver Island.” Now, the so-called Straits of Rosario neither touch the continent nor Vancouver Island. They divide small islands from small islands, and nothing else; they have no pretension to divide Vancouver from the continent, or the continent from Vancouver.
Moreover, the water-line of the treaty must be a channel which makes a continuous line with Fuca’s Straits; for the words of the treaty are, “through the middle of the said channel and of Fuca’s Straits.” Now, the so-called Straits of Rosario lead only to a sound, which Spanish voyagers called the Bay of Santa Rosa; they do not connect with Fuca’s Straits, *which cease at the southeastern promontory of Vancouver Island. Reversing the track of Vancouver, and following the so-called straits of Rosario southerly, the mariner would enter Admiralty Inlet; he never would reach the Straits of Fuca.Map A. [30]
Then, too, compared with the Canal de Haro, the so-called Strait of Rosario is, as we have seen, a narrower passage, a shallower passage, and a roundabout passage.
CONCLUSION.
But enough: the rights of America cannot be darkened except by an excess of words. The intention of the parties to the treaty is made plain by its history, and the boundary which we claim is clearly set forth in its words, taken collectively and taken separately. I will close by citing general principles of interpretation established by international law.
A party offering the draught of a treaty is bound by the interpretation which it knew at the time that the other party gave to it. Lord Aberdeen cannot have doubted how the treaty was understood by Mr. MacLane, by Mr. Buchanan, and by the Senate of the United States. “Where the terms of promise,” writes Paley, whose work was long a text-book at Oxford, “admit of more senses than one, the promise is to be performed in the sense ‘in which the promiser apprehended at the time that the promisee received it.’ This will not differ from the actual intention of the promiser, where the promise is given without collusion or reserve; but we put the rule in the above [Page 18] form to exclude evasion, wherever the promiser attempts to make his escape through some ambiguity in the expressions which he used.” Appendix No. 49, p. 56.
Again: “Where a right admits of different degrees, it is only the smallest degree which may be taken tor grauten, “Ist ein Recht verschiedener Abstufungen fähig, so darf zunächst nur die geringste Stufe als zugestanden angenommen *werden.” This rule of Heffter fits the present case so aptly that it seems made for it. There being degrees in the departure from the parallel of 49°, it must be taken that only the smallest degree was conceded.Heffter’s Volkerrecht, § 95, p. 176. Ed. 1867. [31]
Finally and above all: there is a principle which not only controls the interpretation of treaties, but the results of investigation in every branch of human knowledge. A theory which implies confusion and contradiction is at once to be rejected; of two rival theories, that which most nearly reconciles all phenomena is to be preferred; the theory that reconciles all appearances and all circumstances is to be received as true. The British interpretation of the treaty implies that the British, who exclusively draughted it, sowed the seeds of future dissensions in the very instrument by which they proposed to settle every boundary question forever; that among the negotiators of the treaty there were those who duped, and those who were dupes. Lord Aberdeen ceases to be the “straightforward” man of Mr. MacLane’s report. On the American side the statesmen appear void of spirit and of common sense, and easily circumvented. The historical process by which the treaty was arrived at becomes incomprehensible. The names on maps must be changed; the conformation of islands and continents and the highways of the great deep are made to expand and contract so as to suit the cavils of a government which does not profess exactly to understand the true meaning of the treaty, for every word of which it is itself responsible. Take the other theory; interpret the treaty as the Americans accepted it, and there are no statesmen on the British side who attempted to dupe, and no dupes on the American side. The history of the negotiation becomes clear, and is consistent with its result. Mr. MacLane retains the reputation for prudence and clear perception and careful statement which has always been attributed to him. All words that fell from the pen or lips of every one concerned in framing, accepting, or approving the treaty, agree together and *bear the stamp of good intention and uprightness. Everything that was uttered by Mr. Everett, Mr. MacLane, and Mr. Buchanan, by Lord Aberdeen, Mr. Benton, or Sir Robert Peel, is perfectly reconciled, without even the semblance of contradiction. The straits and channels may rest where nature has set them, and old names may be restored to their rightful places. The completion of the treaty does honor to the labors of honest and able statesmen, bent on establishing friendship and peace between “kindred nations.” Persons and history, and reports of conversations and the words of the treaty, all chime together in the most perfect harmony, inviting an award which will command ready aquiescence, and leave nothing to rankle in the wound which it heals.[32]