Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume V

Second and definitive statement on behalf of the government of Her Britannic Majesty.

[undated]

1. The Government of Her Britannic Majesty, in pursuance of Article XXXVI of the Treaty of Washington of 1871, have drawn up and now lay before His Majesty the Emperor of Germany, as Arbitrator, this their second and definitive Statement, in reply to the Memorial or Case presented in the name of the United States Government by Mr. Bancroft.

2. The matter of Mr. Bancroft’s Memorial (as far as it is of an argumentative character) may, for the purposes of the examination to which Her Majesty’s Government propose here to subject it, be ranged in the following divisions:

I. Mr. Bancroft assumes that at the date of the Treaty of 1846 the United States had a clear tide to the whole Oregon district, up to the forty-ninth parallel of latitude at least; represents the arrangement embodied in the Treaty as a pure concession on the part of the United States; and contends that the concession should consequently be confined within the narrowest limits.

II. He maintains that the object of the arrangement embodied in the Treaty was to secure to Her Majesty the whole of Vancouver’s Island, and no more.

III. He adduces what he considers evidence to show that the construction now contended for by the United States was the admitted construction at the time of the making of the Treaty.

IV. He represents the Treaty as specially the work of Her Majesty’s Government, and seems to suggest that they are consequently precluded from maintaining any construction of the Treaty not admitted by the other side.

V. He maintains that the language of the Treaty admits no interpretation but the American, and that it points to the Canal de Haro, and to that channel alone.

*3. An examination of the arguments on these points, to be intelligible, must be accompanied by an historical explanation of the circumstances attendant on the Treaty. For that purpose many documents must be set out at length. It is, therefore, more convenient to present the explanation in the form of a separate paper. It is accordingly subjoined to this Statement as an Historical Note; and Her Majesty’s Government beg that the Note, with the other papers appended to this Statement, may be taken as part thereof.[2]

4. The Note shows the relative positions of the principal actors in the matter of the Treaty; in London, the Earl of Aberdeen, Her Majesty’s Principal Secretary of State for Foreign Affairs, and Mr. MacLane, the United States Minister Plenipotentiary; at Washington, Mr. Pakenham, Her Majesty’s Minister Plenipotentiary, and Mr. Buchanan, the United States Secretary of State.1¹ It is designed to bring out the facts which will be seen in the course of this Statement to be of cardinal importance, namely, that the Treaty was formally negotiated at Washington between Mr. Pakenham and Mr. Buchanan; that it was on two distinct occasions discussed and approved by the Senate of the United States, in their capacity, under the Constitution, of a co-ordinate branch of the treaty-making power; that the project or draught of the Treaty was prepared in London by Lord Aberdeen, and sent to Mr. Pakenham, as embodying the proposal which Mr. Pakenham was instructed to make to the Government of the United States; that this project was, as regards the words now in discussion, identical with the Treaty as signed and ratified; and that, although Mr. MacLane was not formally empowered to conduct negotiations in the matter on behalf of his Government, yet Lord Aberdeen discussed with him the nature of the proposal which Her Majesty’s Government contemplated making to the United States, and even showed him the project of the Treaty before it was sent to Mr. Pakenham.2²

I.

5. Mr. Bancroft’s assumption that the United States were clearly entitled to the whole Oregon district up to the forty-ninth parallel is not warranted by the facts of the case. Territorial rights in the whole district were claimed by both parties with equal persistency, and their respective contentions were supported by arguments drawn from like sources, such as the history of discovery and the terms of international engagements. In the official documents on both sides the alternative of war was shadowed forth. In the end there was a compromise; each party yielded a portion of what it had contended in argument was its right.

6. When, on one occasion in the course of this long controversy between the two Governments, Mr. Cass, the United States Secretary of State, had put forward an assumption like this of Mr. Bancroft, Lord John Russell, then Her Majesty’s Principal Secretary of State for Foreign Affairs, said:3³

Undoubtedly, the title by which Great Britain now holds British Columbia and Vancouver’s Island is the same as that by which the United States possess the Oregon State and Washington *Territory, namely, the Treaty of 1846; but when General Cass asserts, that previously to that Treaty the title of the United States to the whole of the territory between the parallels 42° and 54° 40′ had been clear and unquestionable, Her Majesty’s Government can only reply that, in their opinion, it was the title of Great Britain to that territory which was clear and indisputable.[3]

It is plain that when this was written, Her Majesty’s Government had not adopted the notion that in 1846 the concession had been all on the side of the United States; nor, have they ever changed their position.

7. Mr. Bancroft further assumes that the United States had, before the Treaty, the forty-ninth parallel as an admitted boundary line on the Continent. Such an admission had never been made by Her Majesty’s Government. That boundary would not (it is plain) have been conceded on the Continent without a concurrent arrangement satisfactory to Her Majesty’s Government respecting Vancouver’s Island and the navigation of the adjacent waters.

8. The passage in Mr. Bancroft’s Memorial in which his assumptions under this head are most strongly put is the following, (page 30:)

Again, “where a right admits of different degrees, it is only the smallest degree which may he taken for granted.” (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 he taken that only the smallest degree was conceded.

The rule cited from Dr. Heffter’s work does not touch the present case. This is not the case of a party making a concession in derogation of a clear and admitted right. It is the case of one concession set off against another; of a give-and-take arrangement.1⁴

9. The preamble of the Treaty is express on this point. The two Powers (it says:)

Deeming it desirable for the future welfare of both countries that the state of doubt and uncertainty which has hitherto prevailed respecting the sovereignty and government of the territory on the Northwest coast of America, lying westward of the Rocky or Stony Mountains, should be finally terminated by an amicable compromise of the rights mutually asserted by the two parties over the said territory, have respectively named Plenipotentiaries to treat and agree concerning the terms of such settlement.

II.

10. Closely connected in character with the arguments of Mr. Bancroft under the first head, and equally inconclusive, as Her Majesty’s Government submit, are his arguments under the second.

11. Mr. Bancroft alleges in effect that the intention of the Contracting Parties was only to avoid cutting off the end of Vancouver’s Island, and he infers that the line is to be strictly so drawn as to effect this object, and no more. Her Majesty’s Government dispute both the allegation and the inference.

12. There is no evidence that the prevention of the severance of Vancouver’s Island was the sole object of the arrangement. There is nothing to support the allegation, *either in the preamble of the Treaty, or in the Article describing the boundary; nor can it be sustained on the ground of anything contained in any of the contemporaneous documents exchanged between the Contracting Parties. It is true that the severance of Vancouver’s Island by a boundary line drawn continuously on the forty-ninth parallel was the salient objection raised on the part of Her Majesty’s Government to the United States proposal for continuing the boundary on that parallel from the Rocky Mountains to the Pacific. That proposal disregarded the physical conditions of the tract through which the line would run. It is true also that a deflection of the line so as not to sever Vancouver’s Island was made in effect a condition sine qua non on the part of Her Majesty. It may even be admitted that the prevention of this severance was the motive for Article I of the Treaty. The nature of the motive is not necessarily a measure of the scope of the stipulation.[4]

13. It is plain on the face of the Article that the Contracting Parties had further and other aims. If the sole object of the stipulation had been to keep Vancouver’s Island one, a very simple provision would have sufficed. It would have been enough to say the whole of Vancouver’s Island shall belong to Her Britannic Majesty. The Article in effect says this, but it says more in two respects. First, it in effect vests in Her Majesty, as against the United States, the whole territorial sovereignty and property over and in all land and sea adjacent to the island on its eastern and southern sides, lying within the mid-channel line, (wherever drawn,) although lying beyond the ordinary territorial three-mile limit. Secondly, it secures to Her Majesty’s subjects freedom of navigation throughout the whole extent of the boundary-channel and of the Straits of Fuca. These two provisions in combination effect what was plainly one of Lord Aberdeen’s main objects in the arrangement, namely, the preservation to Her Majesty’s subjects of unquestionable and abundant facilities of access to the British coasts and harbors north of the 49th parallel. Had the boundary line been continued on the 49th parallel to the ocean, the navigation of the Gulf of Georgia from the southward would have been sealed to British subjects.

14. The Article speaks for itself. The preservation of the unity of Vancouver’s Island was of the essence of the arrangement, but there were collateral arrangements. The difference now referred to arbitration presupposes the existence of such arrangements; the controversy is as to their extent.

15. Lord Aberdeen’s instructions to Mr. Pakenham cannot be read so as to cut down the effect of the Treaty. They must be interpreted so as to correspond in scope with the project of the Treaty prepared and sent contemporaneously by Lord Aberdeen. The words quoted by Mr. Bancroft (page 19) from Lord Aberdeen’s instructions are:

Leaving the whole of Vancouver’s Island, with its ports and harbors, in the possession of Great Britain.1⁵

The form of expression requires little explanation. Lord Aberdeen naturally dwelt on the most prominent part of the arrangement which Mr. Pakenham was to propose, namely, the securing the possession to this country of the whole of Vancouver’s Island. He referred only to the broad geographical features, the mention of which was supposed to be sufficient for the matter under discussion. There is nothing in his words to exclude any additional advantage which the terms of the project of the Treaty would give to this country, and more (it is plain) the project did give.

*16. Mr. Bancroft further cites (page 20) a passage from a report of a speech of Sir Robert Peel in the House of Commons:[5]

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.

It can scarcely be seriously contended that, because Sir Robert Peel, describing in a popular way the effect of the Treaty, spoke of it as leaving us in possession of the whole of Vancouver’s Island, this amounts to a declaration by him that the effect of the Treaty is to exclude us from any possession other than Vancouver’s Island, although lying within the future boundary, which he in the same breath specifies accurately as the middle of the channel.

17. In connection with the reference to Sir Robert Peel’s speech, Mr. Bancroft (page 20) says:

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.

Here, as in some other parts of Mr. Bancroft’s Memorial, it is difficult to discover the object of statements made by him, but not put into an argumentative form. The object of this statement would seem, from the context, to be to suggest that Sir Robert Peel was at this time cognizant of the particulars of a speech of Mr. Benton, a Senator of the United States, made in the Senate (referred to just before by Mr. Bancroft and to be particularly considered hereafter in this Statement.) If this is the suggestion meant, there are three answers to it:

(i.) The deliberation of the Senate, reported in Mr. Pakenham’s dispatch, read in part by Sir Robert Peel, was not the debate in which Mr. Benton’s speech was made. The dispatch relates to the deliberation consequent on the preliminary Message of the President, asking the advice of the Senate, not to the debate on the ratification. It was the latter debate in the course of which Mr. Benton’s speech was made.

(ii.) Even if Mr. Benton’s speech had been spoken before Mr. Pakenham’s dispatch, and the fact had been mentioned therein, there would still be no force in Mr. Bancroft’s suggestion, inasmuch as the debates in the Senate were secret, and the injunction of secrecy was not removed until after the date of the exchange of ratifications in London.1⁶

(iii.) The dispatch of Mr. Pakenham (of which the part relating to this matter is printed by Mr. Bancroft in the extract from Sir Robert Peel’s speech in Appendix No. 46 to the Memorial) gives no information as to the name of any speaker, or the particulars of any speech, in the Senate. It simply says:2⁷

After a few hours’ deliberation on each of the three days, Wednesday, Thursday, and Friday, the Senate, by a majority of 38 votes to 12, adopted yesterday evening a resolution advising the President to accept the terms proposed by Her Majesty’s Government.

*It is clear, therefore, that Sir Robert Peel had not at the time of speaking (if he ever had) any knowledge of what was said by Mr. Benton in the Senate. If this is not the point of Mr. Bancroft’s reference to the debate in the Senate, Her Majesty’s Government do not know why the reference is made.[6]

III.

18. The third division of Mr. Bancroft’s arguments comprises his endeavors to shew that there is evidence, contemporaneous with the making of the Treaty, in support of the contention of the United States. Mr. Bancroft says (page 18:)

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:

“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.

“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.” * * * * * * *

Here follow other clauses, conceding to the Hudson’s 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: “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.”

Now what the proposal of Mr. Everett had been we know from the citations which I have made from his dispatches; and I have actually referred to the fact that he had drawn the line of demarkation on the map, and specially directed the attention of Lord Aberdeen to it.

19. In this passage Mr. Bancroft puts forward prominently Mr. MacLane’s letter, but he nowhere deduces distinctly the inference he wishes the Arbitrator to draw from it. In whatever light, however, the letter is regarded, it will appear that, when all the circumstances are candidly considered, the letter furnishes no ground for any inference favorable to the United States in the present discussion.

(i.) Mr. MacLane does not profess in his letter to report the words of the contemplated Treaty. He had seen the words, and knew that the Canal de Haro was not specified. He must then (it would seem) have considered the words he saw as amounting substantially (according to his own expression) to the proposal of a line by the Canal de Haro. He applied (whether accurately or not is not the question) his geographical information to the words shown to him, and inferred in his own mind that a line such as he saw described would run through the Canal de Haro. Under this impression he wrote to his Government. If this is the true explanation of the facts, (and no other explanation is apparent,) his statement is of no weight on the question, what is the channel of the Treaty. That question, which is the question now under arbitration, remains unaffected by his letter.

* (ii.) One circumstance in Mr. MacLane’s letter tends to support this explanation, that is, his mention of Birch Bay, (incorrectly called by him Birch’s Bay,) which he treats as being on the forty-ninth parallel. This geographical error (which is peculiar in this controversy to Mr. MacLane) has been accounted for thus by Mr. Archibald Campbell:1⁸[7]

Mr. MacLane, in tracing on the map the forty-ninth parallel “to the sea, that is to say, the arm of the sea called Birch’s Bay,” evidently supposed that the space between the Continent and Vancouver’s Island at the forty-ninth parallel was designated as Birch Bay. And from the conspicuous position given to the name of Birch Bay on Wilkes’s map, and even on Vancouver’s chart, such an error might very naturally occur. In reality, however, Birch Bay is only the small indentation on the main-land at the extreme right of the name, and is a few miles south of the forty-ninth parallel. The name of the Gulf of Georgia is intended by Wilkes to extend from the parallel of 50° as far south as the northern extremity of the Canal de Haro, including the space supposed by Mr. MacLane to be Birch Bay.

This explanation is simple and reasonable, and it strongly confirms the suggestion of Her Majesty’s Government that Mr. MacLane was merely interpreting, according to his own lights, the words of the project which Lord Aberdeen had shown him, and was not reporting to his Government Lord Aberdeen’s interpretation, or an agreed interpretation. There is no suggestion, and no ground for a suggestion, that Lord Aberdeen ever spoke of Birch Bay. If, then, it is probable that Mr. MacLane did not derive from Lord Aberdeen his mention of Birch Bay, in just the same degree is it probable that he did not derive from Lord Aberdeen his mention of the Canal de Haro.1⁹

(iii.) The use by Mr. MacLane of Wilkes’s map (which is thus made almost certain) goes far to account for his mention of the Canal de Haro, (or Arro, as it is written on Wilkes’s map, and by Mr. MacLane,) for that passage is so conspicuously marked on Wilkes’s map as to seem to be the only direct channel between the Continent and Vancouver’s Island leading into the Straits of Fuca. But, however it is to be accounted for, there is no ground whatever for the suggestion that Mr. MacLane’s mention of the Canal de Haro was authorized by anything said to him by Lord Aberdeen.

(iv.) In 1859 Lord Aberdeen, on being referred to by Lord John Russell, then Her Majesty’s Principal Secretary of State for Foreign Affairs, informed Lord John Russell that he (Lord Aberdeen) distinctly remembered the general tenor of his conversations with Mr. MacLane on the subject of the Oregon boundary, and he had no recollection of any mention having been made during the discussion of the Canal de Haro, or, indeed, any other channel than those described in the Treaty itself.2¹⁰

(v.) Mr. MacLane was not negotiating with Lord Aberdeen. His connection with the question was (as he himself says) “in a great degree informal.”3¹¹ The negotiations were being carried on at Washington by Mr. Pakenham (acting immediately under Lord Aberdeen’s instructions) on the one hand, and Mr. Buchanan on the other hand.4¹² *Lord Aberdeen was at liberty to inform Mr. MacLane of his views and intentions; he was at liberty to refrain from doing so. Anything that passed between Lord Aberdeen and Mr. MacLane was not negotiation in a proper sense, and no binding compact can be extracted from it, taken alone.[8]

(vi.) Mr. MacLane perfectly understood this position. Lord Aberdeen’s project of Treaty was so far from being the result of a bargain made between him and Mr. MacLane, that Mr. MacLane in reporting it to his Government disapproved of it, and (it would appear) tried to induce his Government to reject it.1¹³ He says, (among other things:)2¹⁴

It is scarcely necessary for me to state that the proposition as now submitted has not received my countenance. Although it has been no easy task, under all the circumstances, to lead to a re-opening of the negotiations by any proposition from this Government, and to induce it to adopt the parallel of 49 as tire basis of a boundary, nevertheless I hoped it would have been in my power to give the present proposition a less objectionable shape, and I most deeply lament my inability to accomplish it. I have, therefore, felt it my duty to discourage any expectation that it would be accepted by the President; or, if submitted to that body, approved by the Senate.

(vii.) If Mr. MacLane had been in a position to enter into a contract with Lord Aberdeen it is plain he never would have used the qualification “most probably.” Mr. Bancroft, seeing the force of this consideration, endeavors to get over the difficulty by alleging that the phrase “most probably” applies, not to the boundary, but to the other parts of Lord Aberdeen’s proposal; for, he says, those other parts “were not precisely ascertained.” Mr. MacLane’s letter (as far as it relates to the Oregon question) is printed in the Historical Note, and is open to the judgment of the Arbitrator. It appears to Her Majesty’s Government to afford no ground to justify this limited application of the phrase “most probably.” This phrase is in immediate connection, grammatically, and in the arrangement of the matter, with the passage relating to the boundary. The three subjects, (1,) boundary; (2,) possessory rights of British subjects; (3,) navigation of the Columbia, are discussed throughout the letter on the same footing. The proposal on any one subject is treated in the letter as being quite as much settled and definitive as the proposal on any other. Moreover, in point of fact, the exact proposal was as much ascertained on any one point as on any other, and this must have been so in Mr. MacLane’s apprehension, as Lord Aberdeen had shown him the project of the Treaty.

(viii.) The boundary, however, it is argued by Mr. Bancroft, was precisely ascertained, because Mr. MacLane states that the line as proposed by Lord Aberdeen had been suggested by Mr. Everett, and what the proposal of Mr. Everett was (he says) is known from the citations in the Memorial from his (Mr. Everett’s) dispatches. The passage in Mr. Bancroft’s Memorial, relating to Mr. Everett’s suggestion, is as follows, (page 11:)

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 concessions 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: “I thought the President might be induced so far to depart from the forty-ninth 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.”

The next day Mr. Everett more formally referred to the subject in a note to the British Secretary:

* “46 Grosvenor Place, November 30, 1843.[9]

“My Dear Lord Aberdeen: * * * It appears from Mr. Gallatin’s correspondence that * * * Mr. Huskisson had especially objected to the extension of the forty-ninth degree 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’s Island, and that Lord Aberdeen uniformly answered, “he did not think there would he much difficulty in settling the question.”

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, hut 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 forty-ninth parallel with the modification suggested, taking always care to add that I had no authority for saying that even that modification would be agreed to.”

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.

It is difficult to see the force of this reference from the letter of Mr. MacLane to the writings and acts of Mr. Everett. It seems to Her Majesty’s Government to be a process of ascertaining a thing uncertain in itself by means of something still more uncertain. It does not appear that Mr. Everett pointed out on a map, or referred in any manner to, the Canal de Haro; yet this is the whole question. The fair inference from Mr. Everett’s statements is that he did not speak of the water boundary at all, but only pointed out on a map how much of Vancouver’s Island would be cut off by the forty-ninth parallel. Mr. Bancroft appears to overstrain Mr. Everett’s words. Mr. Everett says he “pointed out on a map the extent of the concession,” as regards the southern extremity of Vancouver’s Island; Mr. Bancroft says (page 19) Mr. Everett “had drawn the line of demarkation upon the map,” which seems to be a very different thing. If this had been stated by Mr. Everett, and if it also appeared that the line of demarkation drawn by him on the map passed down the Canal de Haro, then Mr. Bancroft’s inference that Lord Aberdeen was proposing a line through the Canal de Haro, from the fact that Mr. MacLane says that the line proposed by Lord Aberdeen had been suggested by Mr. Everett, would not be so remote orso weak as it is.

(ix.) The statements of Mr. MacLane to his own Government can in no way bind Her Majesty’s Government. Mr. MacLane does not say that he did, and there is no evidence that he did, ever specify any channel in his conversations with Lord Aberdeen. There is no evidence that he ever told Lord Aberdeen what he was going to report to his Government. The presumption to be drawn from Lord Aberdeen’s dispatch of 29th June, 1846, to Mr. Pakenham, is to the contrary.1¹⁵ Mr. MacLane’s letter was not published, even in the United States, until after the exchange of ratifications in London.1¹⁶ It could not, therefore, have reached Lord. Aberdeen’s knowledge before the transaction was closed.

(x.) Nor is there anything to affect Her Majesty’s Government through Mr. Pakenham. There is no suggestion that Mr. Buchanan communicated to Mr. Pakenham *Mr. MacLane’s letter. On the contrary, it is evident from Mr. Pakenham’s dispatch of the 29th July, 1846, that the letter was unknown to him till its unauthorized publication, as mentioned in that dispatch.1¹⁷ Nor did Mr. Buchanan in any manner inform Mr. Pakenham of Mr. MacLane’s view. In a Memorandum,1¹⁸ written in 1858, Sir Richard (formerly Mr.) Pakenham states that Mr. Buchanan on the occasion of the Treaty “made no mention whatever of the Canal de Haro as that through which the line of boundary should run as understood by the United States Government.” If, indeed, Mr. Buchanan had done so, that mere fact would be of no importance as against Her Majesty’s Government. Mr. Pakenham was acting under strict instructions. If Mr. Buchanan had indicated the Canal de Haro as the boundary channel, Mr. Pakenham could only have answered as he did on the question of the effect of Article II, namely, the Article speaks for itself.2¹⁹ He had no power to modify the project of Treaty in substance, and no power to bind his Government by assenting to or acquiescing in an interpretation which would have been equivalent to a serious modification.[10]

20. It appears to Her Majesty’s Government that this examination of Mr. MacLane’s letter justifies them in submitting to the Arbitrator that the letter affords no support to the contention of the United States.

21. In addition to Mr. MacLane’s letter, Mr. Bancroft refers to the speech of Mr. Benton in the Senate before mentioned. The passage in Mr. Bancroft’s Memorial is as follows, (page 19:)

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 through 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.”

22. Her Majesty’s Government submit that the speech of Mr. Benton is even of less value, as evidence in support of the contention of the United States, than is Mr. MacLane’s letter.

(i.) It seems probable that Mr. Benton founded his exposition of the draught Treaty on Mr. MacLane’s letter,3²⁰ extracts from which had been communicated by the President of the United States to the Senate. If so, Mr. Benton’s interpretation is only a reflection of Mr. MacLane’s.

(ii.) Mr. Benton may indeed have formed his opinion not directly on Mr. MacLane’s letter, but on the same sort of ground on which it would appear Mr. MacLane’s statement was made, namely, a knowledge (whether complete or accurate, or not) of the local conditions.4²¹ In that case his statement would amount to no more than a declaration of *his opinion that, on the true construction of the words of the Treaty, the line described would run down the Canal de Haro. But Mr. Benton’s opinion on this question of construction is not alleged to be of any special value, and its authority in the present discussion is not admitted. The question whether or not the line runs down the Canal de Haro, according to the construction of the Treaty, is the question before the Arbitrator.[11]

(iii.) But whatever was the foundation of Mr. Benton’s observations, and whatever title they have to consideration, Her Majesty’s Government cannot be affected either through Mr. Pakenham or through Lord Aberdeen by anything that was said on this occasion in the Senate. The debates in the Senate were in Secret Session. No publication of them was permitted or made until after the time when the ratifications had been exchanged in London.1²²

23. Mr. Bancroft adduces no further evidence whatever on this point, yet he goes so far as to say, (page 20:)

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.

With respect to the view of the language of the Treaty formed at the time by the Senate (as a body) or by the President, or by any one of the President’s constitutional advisers other than his Secretary of State, Mr. Buchanan, Her Majesty’s Government have no information, either from Mr. Bancroft’s Memorial or otherwise. The exception of Mr. Buchanan is here made, not on account of anything in Mr. Bancroft’s Memorial, but because, in the course of the controversy between the two Governments, a statement respecting Mr. Buchanan’s opinion has been made on behalf of the United States. It has been said2²³ that, in a letter to Mr. MacLane, dated 6th June, 1846, the day on which the draught Treaty was presented to Mr. Buchanan by Mr. Pakenham, Mr. Buchanan mentions the Canal de Haro as the channel intended by the Treaty. This letter has not been seen by Her Majesty’s Government. It may be supposed that it is simply (so to speak) an echo of Mr. MacLane’s conjectures as to what would be found to be the substantial effect of Lord Aberdeen’s proposal, when it came to be worked out. But whether that is so or not, statements passing between Mr. Buchanan and Mr. MacLane, not communicated to Mr. Pakenham or to Lord Aberdeen, are not admissible as against Her Majesty’s Government. Sir Richard Pakenham, in his Memorandum before cited, says:

It is certain that Mr. Buchanan signed the Treaty with Mr. MacLane’s dispatch before him, and yet that he made no mention whatever of the Canal de Haro as that through which the line of boundary should run, as understood by the United States Government.

And this, after Mr. Buchanan had had read to him, by Mr. Pakenham, such an extract from Lord Aberdeen’s instructions as comprised the paragraph containing the description of the line of demarkation to be proposed, and had himself read over the extract again in Mr. Pakenham’s presence;3²⁴ which two readings must have shown Mr. Buchanan the erroneousness of any expectation that the Canal de Haro would be specified.

24. The examination has now been completed of everything that can reasonably be regarded as contemporaneous evidence in favor of the United States of the intention *of their Government in concluding the Treaty. Her Majesty’s Government submit to the Arbitrator that it is of little, if any, weight. All that it amounts to is this, that some of the persons concerned on the part of the United States, on the occasion of the Treaty, anticipated that the Treaty, couched in the words proposed on one side and adopted on the other, would have a certain effect. These anticipations were not communicated at the time to Her Majesty’s Government, or to any representative of that Government, and are, therefore, in no degree binding on them to their detriment.[12]

25. But before parting from this branch of the subject, Her Majesty’s Government will advert to two other pieces of evidence which have been in the course of the controversy adduced as “personal testimony contemporaneous with the Treaty,”1²⁵ and which it is possible may be brought up again as such in the present discussion.

(1.) It is stated 1²⁶ that, on 28th December, 1846, Mr. Bancroft (who was then the United States Minister at London) having written to Mr. Buchanan on the subject from London, Mr. Buchanan inclosed, in a letter to Mr. Bancroft, a traced copy of Wilkes’s chart of the Straits of Arro, (that is, the Canal de Haro,) and added:

It is not probable, however, that any claim of this character will be seriously preferred by Her 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.

The correspondence at this time between Mr. Bancroft and Mr. Buchanan, as far as the same is known to Her Majesty’s Government, is set forth in the Appendix to this Statement.2²⁷ Her Majesty’s Government submit to the Arbitrator that if this correspondence is proposed to be used on the present occasion as evidence on behalf of the United States, it ought to be rejected. First, it was from its nature entirely unknown at its dates to Her Majesty’s Government; secondly, any declarations it contains were made post litem motam. Even if admitted, it would be of little value, as it cannot carry the case further than it is carried by Mr. MacLane’s letter, on which Mr. Buchanan’s statements in this correspondence explicitly rest. Mr. Buchanan does not use a word that can fairly be considered as conveying his personal testimony as to the intention of himself or his Government at the time of the making of the Treaty. Finally, if this correspondence is admitted as evidence, then Her Majesty’s Government would ask that there be taken into consideration along with it the report of Mr. Buchanan’s views in 1848, made by Mr. Crampton, Her Majesty’s Minister at Washington, and the subsequent communication thereon made to the United States Government.3²⁸

(2.) The other piece of evidence referred to by Her Majesty’s Government as having been adduced on behalf of the United States is the following:4²⁹

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, [the traced copy of Wilkes’s chart above mentioned,] and uniformly described the Straits of Arro “as the channel through the middle of which the boundary is to be continued.”

The communications between Mr. Bancroft and Viscount Palmerston here referred to were in July and November, 1848. The letters are set forth in the Appendix,5³⁰ together *with the published extract of a letter from Mr. Bancroft to Mr. Buchanan, describing a conversation which he (Mr. Bancroft) had had with Lord Palmerston. No statement of Mr. Bancroft made more than two years after the exchange of ratifications can be reasonably regarded as “personal testimony contemporaneous with the Treaty,” in which category it is placed in the paper of Mr. Cass adducing it. The only use to which these documents could now be fairly applied would be to show that Lord Palmerston had then made to Mr. Bancroft admissions now binding on Her Majesty’s Government. But the documents afford no ground for such a suggestion.1³¹ The course taken by Lord Palmerston on Mr. Bancroft’s second letter (in which he for the second time intimated his view that the boundary was to pass through the Canal de Haro) is conclusive as to Lord Palmerston’s view of the position. It is plain, on the face of Lord Palmerston’s answer to that letter, that the answer was deliberately framed so as not to amount to an admission of the claim put forward by Mr. Bancroft. If there could be any doubt of this, on the words of the letter, the doubt would be put an end to by a reference to the minutes on Mr. Bancroft’s letter which preceded the preparation of the draught of Lord Palmerston’s answer. On Mr. Bancroft’s letter the Under-Secretary of State made the following minute for Lord Palmerston:[13]

Shall this letter he acknowledged and Mr. Bancroft he thanked for it? And if so, shall the underlined assumption of Mr. Bancroft he passed over without observation?

The underlined words were, “through the middle of which our boundary line passes.” Lord Palmerston’s minute in answer was as follows

Thank him, and say that the information contained in these charts as to soundings will no doubt he of great service to the Commissioners to he appointed, by assisting them in determining where the line of boundary described by the Treaty ought to run.2³²

IV.

26. The next class of Mr. Bancroft’s arguments is to be found in those passages in which he contends, in effect, that Her Majesty’s Government are precluded from disputing the interpretation put on the Treaty by the United States, on the ground that the framing of the Treaty was (as he represents) the work of Her Majesty’s Government.

27. He says, (page 22:)

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 interpretation 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: * * *

*28. Her Majesty’s Government submit that the fact that the project of the Treaty emanated from them can be in no way used to their disadvantage. The Treaty, as it comes before the Arbitrator, must be regarded as the work of both parties. It was in the power of the President or of the Senate of the United States to insist on any alteration of the terms. They had abundant opportunity for considering the terms. The project was delivered by Mr. Pakenham to Mr. Buchanan, and considered by them in conference, on the 6th of June. It was sent by the President to the Senate on the 10th of June. It was considered by the Senate on the 10th, 11th, and 12th of June. The Treaty was signed on the 15th of June. It was sent to the Senate for ratification on the 16th of June. The Treaty, with various incidental motions, was before the Senate on the 16th, 17th, and 18th of June. Mr. Buchanan intimated to Mr. Pakenham that the President’s message sending the project to the Senate might, and probably would, suggest some modifications in it. An entire counter proposal was made and divided on in the Senate; in the preliminary deliberation a formal motion was divided on for adding a proviso to Article II; and Mr. Buchanan made representations to Mr. Pakenham respecting the effect of that Article.1³³ Some of the reasons that prevailed with the Senate to induce them to adopt the project as it stood may be gathered from Mr. Benton’s speech. He objected to any alteration (first) on the ground of the delay that would be caused, which would be injurious to the in terests, particularly the commercial interests, of the United States; and (secondly) because of the importance to the United States of closing the question, as they were then engaged in war with the Republic of Mexico. In all these circumstances, the words of the Treaty must be taken to be, as they in fact are, the words, not of Lord Aberdeen and Mr. Pakenham only, but the words also of Mr. Buchanan and of the President and Senate of the United States.[14]

29. The words cited by Mr. Bancroft from Grotius’s book are not applicable to the present case. The passage from which they are extracted relates to the case of dictation of conditions of peace. The whole chapter to which they belong is on that and cognate subjects. The sentence from which Mr. Bancroft’s citation is taken reads in a more complete form thus:

In dubio autem sensu magis est ut contra eum fiat interpretation, qui conditiones elocutus est, quod esse solet potentioris: est ejus qui dat non qui petit conditiones pacis dare [dicere,] ait Annibal.

The passage produced by Mr. Bancroft from Vattel’s work appears to Her Majesty’s Government to be as capable of an application favorable to them as of one unfavorable to them.

30. In another place (page 30) Mr. Bancroft says:

A party offering the draught of a Treaty is bound by the interpretation which it knew at the time that the other party gave 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 form to exclude evasion, wherever the promiser attempts to make his escape through some ambiguity in the expressions which he used.”

*Her Majesty’s Government are not here concerned to dispute the general proposition that a party offering to another the draught of a Treaty is bound by the interpretation which it (the party offering) knew at the time the other party gave to the draught. But they do dispute, and submit they have disproved, Mr. Bancroft’s particular proposition. Lord Aberdeen (he says) cannot have doubted bow the Treaty was understood by Mr. MacLane, by Mr. Buchanan, and by the Senate of the United States. Her Majesty’s Government have proved that Lord Aberdeen did not know until after the exchange of ratifications (if personally he ever knew) of Mr. MacLane’s letter to Mr. Buchanan, of Mr. Buchanan’s letter to Mr. MacLane,1³⁴ or of Mr. Benton’s speech (the views expressed in which Mr. Bancroft seems to ascribe to the Sen ate as a body.)[15]

31. The doctrine contained in the passage cited by Mr. Bancroft from Dr. Paley’s treatise on Moral and Political Philosophy appears to Her Majesty’s Government generally true,2³⁵ but here irrelevant. That doctrine applies to a promise in the ordinary sense, a unilateral promise, or an engagement taken by one party wholly or mainly. It is not appropriate to the case of a contract, which the same treatise defines as a mutual promise. A few pages further in that treatise, the following is stated as “a rule which governs the construction of all contracts:”

Whatever is expected by one side, and known to be so expected by the other, is to be deemed a part or condition of the contract.

This rule Her Majesty’s Government submit to be judged by. Even if it were admitted (as it is not) that Mr. Bancroft has shown what amounts (in the phraseology of Dr. Paley) to an expectation on the side of the United States, he has entirely failed to show on the other side (that of Her Majesty’s Government) a knowledge of the existence of that expectation. On the contrary, Her Majesty’s Government have demonstrated their necessary ignorance on the point.

32. Sir Richard Pakenham (in his Memorandum before cited) says, (he is writing some twelve years after the Treaty, and he speaks therefore in guarded phrase, but his testimony is clear:)

I think I can safely assert that the Treaty of 15th June, 1846, was signed and ratified without any intimation to us whatever on the part of the United States Government as to the particular direction to be given to the line of boundary contemplated by Article I of that Treaty.

V.

33. It remains to examine the arguments by which Mr. Bancroft endeavors to show that the language of the Treaty points to the Canal de Haro and to that channel alone.

(i.) Mr. Bancroft refers (page 24) to the concise form of expression by which, he says, in both countries the line was described as the line of the “forty-ninth parallel and Fuca’s Straits.” Two observations occur: (1) Many persons, including Mr. Greenhow, used the name Fuca’s Straits to embrace the waters, or at least the southern waters, of the Gulf of Georgia. (2) If, in this phrase, the name is not so understood, then the use of this expression (the forty-ninth parallel and Fuca’s Straits) is of no weight in favor of Mr. Bancroft’s argument; for the whole question is where the line is to run, which is required to form *a connecting link between the forty-ninth parallel and Fuca’s Straits, (that name being used in the modern sense.)[16]

(ii.) Mr. Bancroft says, (page 25:)

When 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.

And he proceeds to instance maps on which the Canal de Haro and no other channel is named. This argument assumes that the reference in the Treaty is necessarily to some named channel. Her Majesty’s Government, on the contrary, have submitted that the absence of any name in the Treaty is strong evidence in favor of their contention. The fact that the Rosario Straits had no name specially fits that passage to be the nameless channel of the Treaty. The Canal de Haro was conspicuously named on Vancouver’s chart and Wilkes’s map. If it had been intended to be the channel of the Treaty, it would have been obvious and easy to name it. Mr. Bancroft can scarcely mean to contend that the Rosario Straits are not a channel, because they do not bear a name of which the word “channel” is part.

(iii.) Mr. Bancroft proceeds, (page 26:)

Again, the word “channel” when employed in Treaties, means a deep and navigable channel, and when there are two navigable channels, by the rule of international law, preference is to be given to the largest column of water.

That the word “channel” means a navigable channel in Treaties generally, and in the Treaty under consideration in particular, is maintained also by Her Majesty’s Government. But they do not admit the existence of such a rule as is here alleged. If navigability is of the essence of a channel, then, as between two channels, preference should be given to the one which is the better fitted for navigation. Now, at the time when the Treaty was made, at which time it must be read as speaking, the Canal de Haro was almost unknown to and unused by practical navigators. It can scarcely, in the true sense of language, regarded as used at that day, be called a navigable channel. Even at the present day, when thoroughly explored and surveyed, it is found to be of difficult and dangerous navigation, especially for sailing-vessels, and only one steamer had penetrated into those waters at the date of the Treaty.1³⁶

(iv.) Then Mr. Bancroft says, (page 26:)

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. * * * * With regard to depth, the contrast is still more striking. * * * *

But, although depth of channel may be an advantage in river navigation, and may therefore well weigh in the choice of one channel as a boundary in preference to one or another less deep, yet depth beyond a certain limit—a limit, perhaps, never reached in river navigation—becomes a disadvantage in navigation of every kind, as it lessens the facilities for anchoring, and thus increases the dangers of navigation. The Canal de Haro is an instance. Its depth is so great that there are but few anchorages in it, and there are none in the main channel; and with this defect, and its rapid and variable currents, it becomes an unsafe passage for sailing-vessels. The Rosario Straits, on the other hand, while they are deep enough for vessels of the very largest class, have many anchorages, conveniently and securely situated; and at the same time the regularity of the currents in them makes them comparatively easy of navigation.

*(v.) Mr. Bancroft further says (page 26) that the Canal de Haro is “the shortest and most direct way between the parallel of 49° and Fuca Straits.” But there is nothing in the Treaty to show that the line between the forty-ninth parallel and the Straits of Fuca is to be run by what may now be held to be the shortest and most direct way. The line is to be drawn by the channel of the day, the ordinary and frequented navigable channel.[17]

(vi.) Mr. Bancroft, in favor of the Canal de Haro, says, (page 26,) “Duflot de Mofras describes it as notoriously the best.” From this and other references in the Memorial to this writer, it might be supposed that he was entitled to high respect as an authority on the hydrography and navigation of the region. The fact is he was attached to a European Legation in Mexico in 1840–’42, and was sent thence to report on the Oregon district and neighboring countries. In his account he says, with regard to the difficulty of navigation of these waters, that the Canal de Haro is “le passage le plus facile.” He was not a naval officer, and appears to have been employed solely in a civil capacity. Mr. Archibald Campbell, after quoting the passage in which the observation referred to by Mr. Bancroft is made, says:

And this opinion ho [Duflot de Mofras] must have derived from the general report of those engaged in the navigation of these waters, as his own explorations are con sidered very superficial.

It is plain that he has no personal authority on a question of navigation.

(vii.) Mr. Bancroft contends (pages 27 and 29) that the Canal de Haro is the only channel which separates the Continent from Vancouver’s Island; that there are other passages which divide islands from islands, but none other separates the Continent from Vancouver’s Island; and that the Rosario Straits touch neither the Continent nor Vancouver’s Island. But Her Majesty’s Government submit that, even if the present state of knowledge is to be taken into account, the distinctions here attempted are not tenable, as the map attached to Mr. Bancroft’s Memorial shows. The Rosario Straits are, by the evidence of that map in the respects here mentioned, as much entitled as the Canal de Haro to be regarded as the dividing channel between the Continent and the Island. But the question must be referred back to the time of the Treaty, and then the Rosario Straits will be the dividing channel, as being the ordinary track of vessels passing up and down on the waters lying between the island and the main-land.

(viii.) Mr. Bancroft (page 27) founds an argument on the word “southerly;” but, as to this expression, there seems little room for discussion. It is evidently used in a large and loose sense, as contrasted with a line carried westward to the Pacific, or deflected northward up the Gulf of Georgia. This is the more evident when it is observed that, on a strict construction, the word is applied to the continuation of the line through the Straits of Fuca, where its direction would in fact be westerly, or even in part northwesterly.

(ix.) Mr. Bancroft further says, (page 28:)

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.

Mr. Bancroft’s map speaks for itself; it is difficult to see on it a higher degree of continuity in the Canal de Haro than in Rosario Straits. In fact the waters passing southerly through the Rosario Straits are derived from the Gulf of Georgia alone and uninterruptedly, while the Canal de Haro is in the southerly direction supplied only partly and indirectly by the waters from the southern termination of the Gulf of Georgia, and partly and more directly from the waters flowing through the passages between Vancouver’s Island and the archipelago off its eastern coast. This is obvious on the map, and is confirmed by observation. The flow of an interrupted body of water from the Gulf of Georgia through the Rosario Straits causes a marked regularity of current in *that passage, while in the Canal de Haro, on the contrary, the currents are irregular, the waters flowing into it being broken and dispersed by the islands in and near its northern entrance.[18]

(x.) Mr. Bancroft labors the point (page 28) that the name Rosario Straits was not given till of late to the channel through which Vancouver sailed. Her Majesty’s Government are not concerned to dispute this. But they have not invented the name of Rosario Straits (as Mr. Bancroft seems to think) for the purposes of the present discussion. Mr. Archibald Campbell gives a history of the names borne at different times by the channel, ending thus: “It is now [1859] universally called Rosario Straits.” It is, in fact, called so over and over again in United States official documents, and it had been named Rosario Strait on the map of the United States Coast Survey (by Lieutenant Alden, United States Navy,) published in 1854.

(xi.) Lastly, Mr. Bancroft says, (page 29:)

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.

Her Majesty’s Government submit that it is plain that Fuca’s Straits, even in the more modern and restricted sense of that name, extend to the western coast of Whidbey Island. Formerly, they used to be considered, at least by many persons, including Mr. Greenhow, as sweeping round to the north and northwest through the archipelago which lies between the Canal de Haro and Rosario Straits, and as including in their waters both those passages. On Quimper’s map, indeed, the easternmost part of the Straits is marked Seno de Santa Rosa. But that map (the earliest extant) is a very imperfect representation of the land and water of the district, and the name of the Bay of Santa Rosa never appears again on any map known to Her Majesty’s Government.

34. In connection with this branch of the subject Her Majesty’s Government desire to guard against an error that might be caused by the map attached to Mr. Bancroft’s Memorial, (which may be taken as a sample of the most modern maps.) This map represents a state of geographical and hydrographical knowledge very different from that which existed at the date of the Treaty. In one respect this consideration is of great importance. The islands shown on this map, forming a chain along the eastern coast of Vancouver’s Island, named Galiano Island, Mayne Island, Samuel Island, and Saturna Island, were at the date of the Treaty supposed by both Contracting Parties to be parts of Vancouver’s Island. A comparison of maps of the date of the Treaty with maps of the present day will show this conclusively. Her Majesty’s Government adopt the words of Mr. Archibald Campbell:

None of the maps extant at that day [the date of the Treaty] present a perfectly correct idea of the space between the continent and Vancouver’s Island, at, and immediately south of, the forty-ninth parallel. The Straits of Fuca and the Archipelago east of the Canal de Haro are fairly enough represented; but between the Haro Archipelago and the forty-ninth parallel the space is inaccurately represented as free from islands, and, consequently, with but a single channel between the continent and Vancouver’s Island. The surveys made subsequently to the conclusion of the Treaty show that what was laid down by the early Spanish navigators, by Vancouver and by Wilkes, as the eastern coast of Vancouver’s Island, is, in fact, the coast of an extensive archipelago skirting the shore of the main island between latitude 48° 47′ and 49° 10′.

Now, Her Majesty’s Government submit it to the Arbitrator as a clear proposition that the Treaty is to be interpreted according to the common knowledge and under*standing of the Contracting Parties at the time.1³⁷ Therefore, in prolonging the forty-ninth parallel to the middle of the channel between the Continent and Vancouver’s Island, and in drawing the mid-channel line southerly therefrom to Fuca’s Straits, the Arbitrator will have to consider the channel, at and immediately to the southward of the forty-ninth parallel, as bounded on the west, not by the eastern coast of Vancouver’s Island, as now ascertained, but by the broken line of coast, which is, in fact, formed by the eastern shores of Galiano Island and the other islands of that chain.[19]

35. With reference to maps, another distinction requires notice. The map spoken of as Wilkes’s map of the Oregon Territory (an extract of which is Mr. Bancroft’s map F) is merely a map, in the ordinary sense, and is not a chart with soundings marked or otherwise adapted for purposes of navigation. 2³⁸

36. Mr. Bancroft speaks (page 28) of the place of a particular name “on every map used by the negotiators.” Who are meant by the negotiators does not appear. In the ordinary sense, the negotiators were Mr. Pakenham and Mr. Buchanan. There is no evidence known to Her Majesty’s Government of any particular map, or of any map, having been used for the purposes of the negotiations which issued immediately in the Treaty. There was a map before Mr. Everett and Lord Aberdeen in one of their conversations, 3³⁹ but what map does not appear. Mr. MacLane, it would seem, used Wilkes’s map, 4⁴⁰ but there is no evidence that he and Lord Aberdeen together referred to that or any other map. As regards Lord Aberdeen himself, he probably used Vancouver’s chart, but it would rather seem that he did not give much attention to a map in the matter. In his instructions to Mr. Pakenham, 5⁴¹ he makes a slip in using the name of King George’s Sound, an obsolete name for Nootka Sound, instead of the Gulf of Georgia; 6⁴² and, in his statement to Lord John Russell in 1859, 7⁴⁴ he says it was the intention of the Treaty to adopt the mid-channel of the straits as the line of demarkation without any reference to islands, the position, and, indeed, the very existence of which (he adds) had hardly at that time been accurately ascertained.

37. Finally, it should be noted that the fact that the Canal de Haro has long borne a proper name on the maps is no evidence of the superiority of that passage for purposes *of navigation. It would seem to have been accidentally distinguished by a name, before and at the date of the treaty, from the circumstance that it obtained a name (Canal de Lopez de Haro) on the Spanish map of Quimper’s observations of the Straits of Fuca in 1790. 1⁴⁶ But it was little known, except by name, at the date of the Treaty, and for some time after.[20]

38. Her Majesty’s Government have now finished their examination of Mr. Bancroft’s Memorial. They do not trouble the Arbitrator with any remarks on such parts of it as refer to the Lecture or Pamphlet of Mr. Sturgis, the observations of Mr. Bates, the articles in the Quarterly Review and the Examiner, and other matters which seem to them to have little (if any) bearing on the question to be decided. The interpretation of the Treaty cannot be affected by the public discussions which preceded it, nor can any amount of unofficial declarations as to what ought to be done be evidence of what the Governments of the two countries intended by the Treaty to do.

39. Nor have Her Majesty’s Government thought it necessary to examine in detail the passage in the Memorial (page 23) which is headed “Plea for the integrity of Sir Robert Peel’s Ministry,” or the corresponding passage (page 31) which forms the concluding paragraph of the Memorial. Her Majesty’s Government see no necessity for any such plea, and no ground for the suggestions in the passage last referred to. The characters of Sir Robert Peel and Lord Aberdeen place them beyond suspicion of having acted with insincerity or duplicity in any part of this transaction. Moreover, the frankness with which Lord Aberdeen communicated to Mr. MacLane the project of Treaty, in which no mention is made of the Canal de Haro as the channel through which the boundary should run, sufficiently shows that Mr. MacLane had no sure ground for his surmise that the Canal de Haro was contemplated by Lord Aberdeen as the boundary channel, or, at all events, was so at the time when Lord Aberdeen framed the project of Treaty.

40. The Arbitrator will not fail to observe that the explanation given in this Statement of the mention by Mr. MacLane and Mr. Benton of the Canal de Haro, far from involving any dishonoring imputation, is entirely consistent with the view, which Her Majesty’s Government sincerely entertain, that Mr. MacLane, and all those who in any degree represented the United States on the occasion of the Treaty, acted with perfect good faith. Mr. MacLane, it seems almost certain, misled himself by a misapplication of Wilkes’s map, and Mr. Benton was misled either by Mr. MacLane’s letter, or by a misapplication of his own geographical knowledge, or by both.

41. Her Majesty’s Government then submit to His Majesty the Arbitrator, on the whole case, that, whether he looks at the general position of the two nations with reference to their claims to the Oregon district, or at the circumstances attending the *particular transaction which issued in the Treaty, or at the language of the Treaty, he will be led to adopt the conclusions of Her Majesty’s Government.[21]

42. His Majesty the Arbitrator has been pleased to take on himself to ascertain the channel of the Treaty, on the failure of the Commissioners appointed by the two Governments to agree. In the execution of this task, he has to look at the state of things as they existed at the time of the Treaty. He has to determine through which of the two channels, the Rosario Straits or the Canal de Haro, the line ought to have been drawn by Commissioners appointed for the purpose the day after the exchange of the ratifications.

43. The considerations, connected with the hydrography of the region and with the history and existing conditions of the navigation of its waters, on which, as Her Majesty’s Government submit, this determination cannot fail to be in accordance with their conclusions, are fully set forth in the Case presented by them to the Arbitrator in December, 1871. The channel of the Treaty is that one of the two channels in question which was the main navigable channel, as known and used at the date of the Treaty. That channel is the Rosario Straits.

1. For the convenience of the Arbitrator, there are appended to the Historical Note, (1) a Chronological List, showing the names and dates of appointment of the various Principal Secretaries of State for Foreign Affairs in Great Britain and British Ministers at Washington, and of the various Presidents and Secretaries of State of the United States and United States Ministers at London, from 1818 to 1872; and (2) a Memorandum relative to the origin and privileges of the Hudson’s Bay Company, a corporation frequently named in this discussion.
2. Historical Note, p. xx.
3. Lord John Russell to Lord Lyons, December 16, 1859; read, and copy given, to United States Secretary of State.
4. Historical Note, p. viii.
5. In this passage the words in italics are, in Mr. Bancroft’s Memorial, printed with widened spaces between the letters, the mode of printing used in German to show emphasis, corresponding to the use of italics in the printing of English. The like observation applies to other passages cited in this Statement from Mr. Bancroft’s Memorial.
6. Ratifications exchanged July 17. Resolution of Senate removing injunction of secrecy, August 6. Earliest publication of Mr. Benton’s speech known to Her Majesty’s Government, August 29, (in Niles’s National Register, a weekly newspaper published at Baltimore.)
7. Historical note, p. xix.
8. Mr. Archibald Campbell was Commissioner on behalf of the United States, when Commissioners were appointed (as mentioned in the preamble of Article XXXIV of the Treaty of Washington of 1871) on behalf of the two Governments in 1856, to determine the water boundary under the Treaty of 1846. The document of Mr. Campbell’s quoted or referred to here and elsewhere in this Statement, is a report made by him to Mr. Cass, the United States Secretary of State, dated 20th January, 1859.
9. There is nothing in the explanation here given of Mr. MacLane’s words inconsistent with the character of him drawn by Mr. Bancroft, (page 18:) “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.”
10. Lord John Russell to Lord Lyons, 24th August; 1859, read, and copy given, to United States Secretary of State. Extract, Appendix No. 1.
11. Appendix No. 32 to Mr. Bancroft’s Memorial.
12. Mr. Bancroft correctly says (page 14) with reference to the time just before the Treatv: “Meantime the negotiation on the Oregon question had been transferred to the new British Minister at Washington.” And again, (page 16:) “Lord Aberdeen confessed that it now fell to him to propose a peaceful solution of the long controversy.”
13. The character of the letter in this respect is brought out by Mr. Pakenham’s comments in his dispatch of the 29th July, 1846, Historical Note, p. xx.
14. Historical Note, p. xiv.
15. Historical Note, p. xx.
16. Historical Note, p. xx.
17. Historical Note, p. xx.
18. Inclosed in Lord John Russell’s dispatch to Lord Lyons, 24th August, 1859; read, and copy given, to United States Secretary of State. Appendix No. 1.
19. Historical Note, p. xx.
20. This was Sir Richard Pakenham’s view, as expressed in his Memorandum, Appendix No. 1.
21. Mr. Cass describes Mr. Benton as being “better acquainted, perhaps, than any other member [of the Senate] with the geography of the region in dispute.”—To Mr. Dallas, 20th October, 1859; read, and copy given, to Her Majesty’s Secretary of State for Foreign Affairs.
22. Page 199, above, and note 1 there.
23. Mr. Cass to Mr. Dallas, 20th October, 1859; read, and copy given, to Her Majesty’s e cretary of State for Foreign Affairs.
24. Historical Note, p. xvii.
25. Mr. Cass to Mr. Dallas, 20th October, 1859; read, and copy given, to Her Majesty’s Secretary of State for Foreign Affairs.
26. Mr. Cass to Mr. Dallas, 20th October, 1859; read, and copy given, to Her Majesty’s Secretary of State for Foreign Affairs.
27. Appendix No. 2.
28. Appendix No. 3.
29. Mr. Cass to Mr. Dallas, 20th October, 1859; read, and copy given, to Her Majesty’s Secretary for Foreign Affairs.
30. Appendix No. 4.
31. “If I notice General Cass’s allusion to the letters which he says Mr. Bancroft repeatedly wrote to Lord Palmerston in 1848, it is only for the purpose of placing on record what, no doubt, Mr. Bancroft duly reported to his Government at the time, namely, that Lord Palmerston gave Mr. Bancroft distinctly to understand that the British Government did not acquiesce in the pretensions of the United States that the boundary line should be run down the Haro Channel.”—Lord John Russell to Lord Lyons, 16th December, 1859; read, and copy given, to United States Secretary of State.
32. These observations may not be thought too minute when it is stated that Lord Palmerston’s letter has been treated by Mr. Archibald Campbell as a virtual admission of the Canal de Haro as the Treaty channel.
33. Appendix No. 5, and Historical Note, p. xix.
34. Above, paragraph 23.
35. It is, however, not altogether unimpeachable, as will appear from the criticisms of another English author, Austin, Lectures on Jurisprudence, vol. ii. p. 122.
36. On these points Her Majesty’s Government refer to the evidence in the Appendix to their Case, presented to the Arbitrator in December, 1871.
37. Mr. Bancroft says, (page 5:) “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.”
38. There was no chart issued with the Narrative of the United States Exploring Expedition, under Lieutenant Wilkes, as part of the atlas connected with it, or otherwise. Indeed, no chart, showing the surveys of that Expedition in the Oregon region, appears to have been published up to the time of the correspondence between Mr. Bancroft and Lord Palmerston in July to November, 1848, Appendix No. 4.
39. Above, paragraph 19, (viii.)
40. Above, paragraph 19, (ii.)
41. Historical Note, p. xii.
42. Mr. Archibald Campbell remarks on this point: “Lord Aberdeen, in tracing the boundary line, follows the forty-ninth parallel to the sea-coast and deflects ‘thence in a southerly direction through the center of King George’s Sound and the Straits of Fuca to the ocean.’ On either of the accompanying tracings, and indeed upon any map of the northwest coast, we may look in vain for ‘King George’s Sound’ between the Continent and Vancouver’s Island. This mistake is not so readily accounted for as Mr. MacLane’s in regard to Birch Bay, as the name is nowhere to be found on Vancouver’s chart, which is said to have been used by the British Government in reference to the water boundary. ‘King George’s Sound’ is the name that was given in 1778, by Captain Cook, to Nootka Sound, on the western coast of Vancouver’s Island, between latitude 49° and 50°. The name was never much in vogue, except to distinguish a mercantile association formed soon after the discovery of Nootka, called the ‘King George’s Sound Company.’ There is, however, no need of conjecture as to Lord Aberdeen’s actual meaning. He simply miscalled the Gulf of Georgia.”
44. Appendix No. 1.
46. A copy of this map was not in the possession of Her Majesty’s Government at the time of the preparation of their Case presented to the Arbitrator in December, 1871. The map, which seems to be the result of mere eye-sketches, is of small value in itself. It describes itself as made by Quimper’s “primer piloto,” (first mate, or master.) Don Gon zalo Lopez de Haro. This fact may account for the prominence given to the channel bearing the name of Haro. But little more than the southern mouth of the channel is shown. The southern entrance of Rosario Straits is indistinctly shown as Boca de Fidalge.