No. 74.
Mr. Cass to Mr. Dallas.
Sir: * * * * * * *
The words of the treaty are “through the middle of said channel and of Fuca’s Straits to the Pacific Ocean.” Ordinarily, and in the absence of any other controlling circumstances, the way which would be selected from one given point to another would be the shortest and the best way. In the present ease this is the Canal de Haro, which is, undoubtedly, the broadest, the deepest, and the shortest route by which the Straits of Fuca can be reached from the point of deflection. This pre-eminence was given to it by De Mofras as long ago as 1841, and it has been fully confirmed by subsequent surveys. The Canal de Haro may, therefore, be fairly regarded, from its own intrinsic merits merely, as the main channel down the middle of which the treaty boundary is to pass to the Straits of Fuca.Mr Casa on the channel of the treaty.
It is the only channel, moreover, which is consistent with the purpose of those who negotiated the treaty, for it is the only channel which separates Vancouver’s Island from the continent without leaving something more to Great Britain south of the forty-ninth parallel than the southern cape of that island. The Rosario Channel, claimed by Captain Prevost, would surrender to Great Britain not only Vancouver’s Island, but the whole archipelago between that island and itself; while the middle channel, which is *proposed as a compromise by Lord John Russell, would, in like manner, concede the important island of San Juan.[115]
These considerations seem to be almost conclusive in favor of the Haro Channel. But they are abundantly confirmed by evidence contemporaneous with the negotiation of the treaty. The description given by Mr. MacLane, immediately after he had an interview on the subject with Lord Aberdeen, of what the British proposal would be, has already been mentioned, and carries the line in so many words down the Canal de Haro. Equally clear is the statement of Senator Benton as to what the proposition was. Colonel Benton was one of the most earnest members of the Senate in his support of the treaty; and he was better acquainted, perhaps, than any other member with the geography of the region in dispute. His construction, therefore, of the treaty, at the very time it was before the Senate for ratification, is entitled to no inconsiderable weight. On that occasion he said: “The first article is in the very words which I myself would have used, * * * and that article constitutes the treaty. With me it is the treaty. * * * The great question was that of boundary. * * * * 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 through the channel de Haro (wrongly written [Page 187] Arro in the maps) to the Straits of Fuca.” Mr. Buchanan, who signed the treaty, was equally explicit in his understanding of this part of it.
On the 28th December, 1846, Mr. Bancroft having written to him on the subject from London, he inclosed to him a traced copy of Wilkes’s Chart of the Straits of Arro, and added in his letter: “It is not probable, however, that any claim of this character will be seriously preferred by Her Britannic Majesty’s government to any island lying to the eastward of the Canal de Arro, as marked in Captain Wilkes’s map of the Oregon Territory.” Mr. Bancroft, who was a member of President Polk’s Cabinet when the treaty was concluded, wrote repeatedly to Lord Palmerston after receiving this chart, and uniformly described the Straits of Arro “as the channel through the middle of which the boundary is to be continued.” * * * The Canal de Haro, then, as being the best channel leading from the point of deflection to the Straits of Fuca; as answering completely the purpose for which the deflection was made; as being the only channel between the island and the main-land *which does answer this purpose, and as being supported, also, by a large amount of personal testimony contemporaneous with the treaty, must fairly be regarded, in my judgment, as the treaty channel.]116]
Nor are there any important difficulties which seem to me to be necessarily in conflict with this conclusion. Lord John Russell, indeed, says that it is beyond dispute that the intentions of the British government were that the line of boundary should be drawn through Vancouver’s Channel. But this assumption is wholly inconsistent, not only with the treaty itself, but with the statements both of the Earl of Aberdeen and of Sir Richard Pakenham. Lord Aberdeen declares that it was the intention of the treaty to adopt the mid-channel of the straits at the time of demarkation, without reference to islands, the position of which, and indeed the very existence of which, had hardly at that time been accurately ascertained; “and he has no recollection of any mention having been made during the discussion of any other channel than those described in the treaty itself.” Sir Richard Pakenham is still more explicit. “Neither the Canal de Haro nor the channel of Vancouver,” he says, “could, as I conceive, exactly fulfill the conditions of the treaty which, according to their literal tenor, would require the line to be traced along the middle of the channel, meaning, I presume, the whole intervening space which separates the continent from Vancouver’s Island.” He adds further, that he has no recollection whatever that any other channel was designated in the discussions than that described in the language of the treaty. Surely there is nothing in this testimony which supports the statement of Lord John Russell that the channel of Vancouver was the channel intended by the treaty; but on the contrary another and entirely different channel is suggested as that which the convention requires. After these statements of Lord Aberdeen and Sir Richard Pakenham, the Rosario Channel can no longer, it seems to me, be placed in competition with the Canal de Haro. Whether the latter is the true channel or not, in the opinion of the British negotiation, it is quite certain, by the concurrent testimony of both the American and British negotiators, that the former channel is not. In respect, moreover, to the Canal de Haro, the other considerations to which I have referred appear to me to quite outweigh the mere want of recollection of Lord Aberdeen and Sir Richard Pakenham, or their general impression at this time as to what is required by the literal language of the treaty.
*There is one allusion in Sir Richard Pakenham’s memorandum to which I think it right to call your special attention. It is the [Page 188] reference which he makes to his final instructions from Lord Aberdeen, dated May 18, 1846, and describing the boundary line which he was authorized to propose to Mr. Buchanan. These instructions were shown by Lord Napier to Mr. Campbell, and according to his clear recollection, the description quoted by Sir Richard Pakenham was followed in dispatch by these words: “Thus giving to Great Britain the whole of Vancouver’s Island and its harbors.” This places beyond controversy the object which was intended by deflecting the treaty boundary south of the parallel of 49°, and ought to have great weight, undoubtedly, in determining the true channel from the point of deflection to the Straits of Fuca. * * *[117]
George M. Dallas, Esq.