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

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The United States on the 12th of December last presented their Memorial, on the Canal de Haro as the boundary line of the United States of America, to the Imperial Arbitrator, and to the representative of Her Britannic Majesty’s Government at Berlin. To the Case of the Government of Her Britannic Majesty, likewise submitted at that time, they now offer their reply. A formal answer to every statement in the British Case to which they take exception, would require a wearisome analysis of almost every one of its pages. They hold it sufficient, to point out a few of the allegations which they regard as erroneous; to throw light upon the argument on which the British principally rest their Case; to establish the consistency of the American Government by tracing the controversy through all its changes to its present form; and, lastly, to apply to the interpretation of the Treaty some of the principles which Her Britannic Majesty’s Government itself has invoked.

I.—THE BRITISH CASE.

The argument of Her Britannic Majesty’s Government has kept in the background the clear words of the Treaty describing the boundary, and has made no attempt to bring *them into harmony with the British claim. On the contrary, in the statement of the question submitted for arbitration, it assumes that the Treaty of 1871 sneaks “as if there were more than one channel between the continent and Vancouver Island through which the boundary may be run.” The United States are of the opinion that the Treaty of 1846 designates the Haro Channel precisely as the only channel of the boundary. The words are: “The channel that separates the continent from Vancouver Island;” and there is but one such channel. The so-called Straits of Rosario touch neither the continent nor Vancouver Island.[4]British Case, p. 3.

The name of the continent of South America, as used by geographers, includes the group of islands south of the Straits of Magellan. The continent of Asia includes Ceylon and Sumatra; the continent of Europe includes Great Britain and Ireland, and the Hebrides. Asia Minor includes Lesbos, and Scio, and Samos, and Rhodes, and Tenedos; and so the continent of North America includes all adjacent islands, to the great Pacific.

Were the question to be asked, “What channel separates the continent of Europe from Candia?” the answer would not draw the line north of the greater part of the Ægean Archipelago, but, like all European diplomacy, would point to the channel south of Santorin. In like manner, when the Treaty speaks of “that channel which separates the continent from Vancouver Island,” nothing is excepted but Vancouver Island itself.

The United States assented, in 1871, to no more than that Great Britain might lay her pretensions before an impartial tribunal, all the while believing and avowing, that the simple statement which has just been made is absolutely conclusive on the point submitted for arbitration.

The British Case seeks to draw an inference unfavorable to the American demand from the proviso in the Treaty of 1846 which secures to either party the free navigation of the whole *of Fuca’s Straits. It is quite true that the right was safe, and was known to be safe “under the public law;” yet it appears from documents printed at the time, that, as the recent assertion by the Russian Government of a claim to the exclusive navigation of a part of the Northern Pacific Ocean was recollected, it was thought best to insert the superfluous clause, recognizing the straits of Fuca as an arm of the sea.British Case, p. 33.[5]Senate Documents, vol. ix, Doc. 489, p. 44. Appendix to Memorial, p. 47.

The British argument seems suited to mislead by its manner of using the name “straits of Rosario.” The first channel from the straits of Fuca to the north, that was discovered and partly examined in 1790, was the Canal de Haro. The expedition under Lieutenant Eliza explored that channel in June, 1791, with the greatest industry and care, and discovered the broad water which is its continua tion to the north. That water, lying altogether to the north of the northern termination of Haro Channel, was named by the expedition, El Gran Canal de Neustra Señora del Rosario la Marinera. Thus the Canal de Haro and the true Spanish Channel of Rosario form at once the oldest historical continuous channel, as it is the one continuous boundary-channel of the Treaty of 1846.British Case, pp. 10, 32.Appendix No. 62, p. 100, 1. 37, 38.

The passage which the British authorities now call the Straits of Rosario, appears as early as 1791 on the map of Eliza as the Channel of Fidalgo. Vancouver, coming after Eliza, transferred the name of Rosario to the strait east of the island of Texada. The British Admiralty, soon after receiving the surveys made under its orders in 1847 by Captain Kellett, suddenly removed the name of the straits of Rosario from the narrow water between the continent and the island of Texada, where it had remained on British maps for fifty years, to the passage which the Spaniards called the chan nel of Fidalgo. And yet the Government of Her Britannic Majesty advances the assertion, that “how the name has come to be” so “applied in modern days does not appear.” For this act of the British Admiralty in February, 1849, there exists no historical justification whatever.Map K.Map C.Admiralty Map of Vancouver Island and the Gulf of Georgia. From the surveys of Captain G. Vancouver, R. N., 1793, Captains D. Galiano and C. Valdes 1792, Captain H. Kellett, R. N., 1847. Published Feb. 28, 1849.British Case, p. 10.

*The United States have obtained from the Hydrographical Bureau in Madrid a certified copy of two reports, made in 1791, of the explorations of de Eliza, and a fac-simile of a map which accompanied them. On this authentic map, of which a lithographic copy is laid before the Imperial Arbitrator, the position of the canal de Haro, of the Spanish canal de Rosario, and of the channel of Fidalgo may be seen at a glance, as they were determined by the expedition of Eliza in the year 1791.[6]Map K.

The British Case exaggerates the importance of the voyage of Captain Vancouver. So far were American fur-traders from following his guidance, they were his forerunners and teachers. Their early voyages are among the most marvelous events in the history of commerce. So soon as the Independence of the United States was acknowledged by Great Britain, the strict enforcement of the old, unrepealed navigation laws cut them off from their former haunts of commerce, and it became a question from what ports American ships could bring home coffee, and sugar, and spices, and tea. All British colonies were barred against them as much as were those of Spain. So American ships sailed into eastern oceans, where trade with the natives was free. The great Asiatic commerce poured wealth into the lap of the new republic, and Americans, observing the fondness of the Chinese for furs, sailed fearlessly from the Chinese seas or round Cape Horn to the northwest coast of America in quest of peltry to exchange for the costly fabrics and products of China. They were in the waters of northwest America long before the Hudson’s Bay Company. We know, alike from British and from Spanish authorities, that an American sloop, fitted out at Boston in New England, and commanded by Captain Kendrick, passed through the straits of Fuca just at the time when the American Constitution went into operation—two years before Vancouver, and even before Quimper and de Haro. Americans did not confine themselves to one passage in preference to others, but entered every *channel, and inlet, and harbor, where there was a chance of trafficking with a red Indian for skins; and they handed down from one to another the results of their discoveries.Meare’s Voyage. lvi, 235. Vancouver’s Voyages, vol. i, xx. [Quimper Ms. Journal. Documento existento en el archivo de Indias en Sevilla.Appendix No. 62, p. 101.[7]

The instruction from the British Admiralty to Captain Vancouver was prompted by an account, which they had seen, of the voyage of Kendrick, and the belief, derived from that account, that the waters of the Pacific might reach far into the American continent. Vancouver was therefore instructed to search for channels and rivers leading into the interior of the continent, the farther to the south the better, in the hope that water communication might be found even with the Lake of the Woods. In conformity to these instructions, founded on the voyage of Americans, he entered the straits of Fuca, and keeping always as near as he could to the eastern shore, he vainly searched the coast to the southern limit of Puget Sound. Turning to the north, he passed through the channel of Fidalgo, or the spurious Rosario, because his instructions required him to keep near the shore of the continent.Appendix No. 63, pp. 101, 102.

The inference of Her Britannic Majesty’s Government, that the so-called Rosario Strait is the channel of the Treaty because Vancouver sailed through it, is a fallacy. He never committed such a mistake as to represent the so-called Rosario, which he apparently did not even think worthy of a name, as being comparable to the channel of Haro.

The argument of Her Britannic Majesty’s Government misstates the character and exaggerates the value of the chart of Vancouver by assuming that he prepared directions to mariners for navigation. But the chart which is produced is only one map among many, never published apart from a work, too voluminous, expensive, and rare to find a place on board the small vessels of fur-traders. The line on his map is nothing more nor less than the track of his own course while engaged in explorations under controlling instructions, and is a track which no ship has followed or is likely to follow.

*The British argument frequently refers to the soundings taken by Vancouver in the Fidalgo-Rosario Channel. Only two such soundings appear on his map, while there are five or six on an arm of the Canal de Haro, and one on its edge, showing that its waters were found to be more than two hundred feet deep. The chart of these waters for mariners, published by the Spaniards in 1795, exhibits many soundings to facilitate the use of the Canal de Haro. If this excellent chart contains no soundings in the great center of the channel of Haro, it is for a reason to which Vancouver repeatedly refers, that the usual soundinglines of those days were not long enough to touch bottom in the deep waters where walls of igneous rock go perpendicularly down hundreds of feet, close even to the shore. “Even nearest the islands,” writes De Eliza, “we could not find bottom with a line of forty fathoms.” “Proximo à las islas, no se encuentra fondo con 40 brazas.”[8]British Case, pp. 11, 18, 19, 28, 31.Map L.Appendix No. 64, p. 102.

The British Case assigns in like manner an undue prominence to the trade in the Vancouver waters prior to the treaty of 1846. As to general commerce, there was none. As to settlements, properly so called, there could be none; for under the British treaty with Spain, and the treaty of non-occupation between the United States and Great Britain, impliedly at least, there could be no grants or holdings of territory by individuals or companies of either party. The American voyages on the northwest coast were entirely broken up by the maritime orders and acts of England which preceded the war of 1812; and the American fur-trade never recovered from the effects of that war. The trade became a monopoly of the Hudson’s Bay Company, and that company boasted officially that “they compelled the Americans one by one to withdraw from the contest.” The United States acknowledge that the boast was true. At rare intervals of years, Americans may have entered Fuca’s Straits, but a careful search fails to discover proof that even one single United States vessel sailed into those waters between the year 1810 and the * arrival of the American Exploring Expedition under Wilkes in 1841. A monopoly of the trade was maintained by the Hudson’s Bay Company, not against Americans only, but against all ships but their own. What then becomes of the British argument, that trading-vessels of other nations were in all that time not known to pass through the Canal de Haro?British Case, pp. 11, 32.Appendix No. 67, pp. 104, 105.[9]

The Hudson’s Bay Company was once a company of commercial importance, as well as of political influence, But the hunting-ground over which it ranged was enormously wide, stretching from Labrador to California and to the Russian settlements in northwestern America. They could spare very little of their limited resources for the waters around San Juan Island. Their leading settlement in the West, until 1843, was at Fort Vancouver on Columbia River. Of shipping in their employ, nothing is heard for many years, except of one small steamer, the Beaver, and of one small schooner, the Cadboro. Wilkes in 1841 met only the Beaver. These vessels were accustomed twice a year to make the trip from Fort Vancouver to the various posts, to distribute supplies and to collect furs. If in these trips they chose to pass through the Fidalgo-Rosario channel, rather than the Canal de Haro, the British Case has omitted to state the reason of the choice. In the semi-annual trip from Fort Vancouver to the trading posts, the first one that was visited was Nisqually, at the head of Puget Sound. A vessel sailing from that part of the United States to Fraser’s River would naturally pass through the Fidalgo-Rosario channel. To have taken any other would have been circuitous. A geographical sketch is annexed, from which the reason will appear why the vessels on these trips passed through the so-called Rosario Straits; not because it was the great channel from the Straits of Juan de Fuca to the north, but because it was the shortest passage between Nisqually in Puget Sound and Fort Langley on Fraser’s River. The return voyage, when there was no need of touching at Nisqually, was sometimes made by the Channel of Haro.Appendix No. 53, p. 66, 1. 15.Appendix, p. 66, 1. 18–21; No. 56, pp. 69, 70, p. 72. 1. 20–40, p. 73, 1. 1–27; No. 59, p. 76.British Case, p 51, p. 48.Map N.

* “There were no vessels engaged in those waters, writes Rear-Admiral Wilkes of his visit to them in 1841, “except the small and very inefficient steamer, called the Beaver, commanded by Captain McNeill, who spoke of it [the Strait of Haro] to me as the best passage, although he was obliged to pass through the Rosario passage.”Appendix No. 53, p. 66.[10]

Again, in narrating the survey of the Haro channel by the United States exploring expedition, in 1841, the British Case shapes the narrative so as to give the impression that the American expedition regarded the so-called straits of Rosario as superior to the Haro, while the opposite is the truth. Commodore Wilkes, who commanded the expedition, detached a subordinate officer in the Vincennes to survey the channels among the islands of the archipelago; he reserved for himself the more important but less difficult office of surveying the channel of Haro.British Case, p. 19.

On the 26th page of the British Case it is asserted that the late Mr. Daniel Webster stated in the Senate of the United States that the great aim of the United States in 1846 was to establish the forty-ninth parallel of north latitude as the line of boundary on the western side of the Rocky Mountains, “not to be departed from for any line further south on the continent.”British Case, p. 26.

The inference drawn from this is, that Mr. Webster demanded the line of the parallel of 49° for “the continent” only, and was indifferent as to “the islands.”

Mr. Webster was not at that time a member of the Government of the United States, but the leader of the political minority in the Senate, which opposed the administration of that day. The United States, therefore, may, without questioning the great authority of his name, deny that he is to be received as an interpreter of the views of the cabinet which negotiated the treaty of 1846. It may, however, surprise the Imperial Arbitrator to learn that Mr. Webster not only did not entertain the opinions attributed to him, but expressed himself in a sense exactly the reverse.[11]

*Some members of the Senate insisted on the parallel of 54° 40′ as the American boundary; Mr. Webster declared himself content with the parallel of 49°. But his words were absolute. The British Case puts words into his mouth which he never uttered. What Mr. Webster said was, that the line of 49° was “not to be departed from for any line further south.” The words “on the continent” are an interpolation made by the British Case. In the same debate and on the same day Mr. Webster, to guard against misrepresentation, observed with great solemnity; “The Senate will do me the justice to allow, that I said as plainly as I could speak, or put down words in writing, that England must not expect anything south of forty-nine degrees.”Appendix No. 65, pp. 102, 103.

The Government of Her Britannic Majesty includes in the charts annexed to its Case a map of Oregon and Upper California drawn by one Preuss, and yet in its printed Case there is not one single word explaining why the map has been produced. The United States know only that on a former occasion Captain, now Admiral Prevost, the British Boundary Commissioner, wrote of it, in his official character, to the American Boundary Commissioner: “I beg you to understand that I do not bring this map forward as any authority for the line of boundary.”British Case. Map No. 5.Appendix No. 70, p. 109, 1. 1–4.

Forty years ago the mountain ranges and upland plains from which the water flows to the Gulf of California, or is lost in inland seas, still remained as little known as the head springs of the Congo and of the Nile. Frémont had thrice penetrated those regions, once or more with Preuss in his service as draughtsman. On the return of Frémont from his third expedition, the Senate of the United States, although he was not then in the public service, instead of leaving him to seek a publisher, on the 5th and 15th of June, 1848, at the instance of Mr. Benton, voted to print his geographical memoir on Upper California, and the map of Oregon and *California, “according to the projection to be furnished by the said J. C. Frémont.”[12]

In representative governments, each branch of the legislature may order printed what it will; but the order gives no sanction to what is printed. Last winter, for example, the German Diet printed at the public cost, that the German constitution is not worth the paper it is written on. Neither Frémont nor Preuss had ever been within many hundred miles of the straits of Fuca, and Frémont himself says, “The part of the map which exhibits Oregon is chiefly copied from the works of others.” The Senate never saw the map as delivered to the lithographer. The work was printed, not under the revision of officers of the Senate, but solely “subject to the revision of its author.” Except for the regions which he had himself explored, Frémont abandoned the drawing of the map to Preuss, who followed “other authorities.” While Mr. Preuss was compiling his map, Mr. Bancroft, the representative of his country in London, with full authority from the President and Secretary of State of the United States, delivered to the British Government in the clearest words the declaration of his own Government that the boundary line passes through the middle of the Haro channel. Any error of Mr. Preuss was therefore perfectly harmless.Senate Miscellaneous Documents No. 148, 30th Congress, 1st session.Appendix No. 51, p. 62, 1, 5, 6, p. 63, 1. 9, 10.

And under any circumstances what authority could attach to a draught by Mr. Preuss? He was one of the many adventurers who throng to the United States, a mechanic, possessing no scientific culture, and holding his talent as a draughtsman at the command of any who would employ him.

The United States are unable to inform the Imperial Arbitrator what authority served as a guide to Mr. Preuss when he drew the Oregon boundary to suit British pretensions. Not Mr. Benton; his opinion was well known. Not the Senate, which is the only permanent body under our Constitution, and which, in the twenty-five years since the treaty was made, has inflexibly maintained the right of the United States to the *Haro boundary. Not Mr. Buchanan, the Secretary of State, whose instructions on the Haro as the boundary, sanctioned by the President and his cabinet, date from the year in which the treaty was made. Neither could Preuss have copied the line from printed materials. No such printed materials existed at that time. A wish expressed by the British minister at Washington slumbered in the Department of State, and was known only to the President and his cabinet.[13]

Mr. Preuss is no longer living to explain by whom he was misled. Mr. Frémont remembers that Mr. Preuss had among his materials a copy of a manuscript map of the northwest territory by the Hudson’s Bay Company, received from one of its officers. Be this as it may, it is enough for the United States to have shown that the map never had the sanction of any branch of their Government.

Analogous mistakes have been made in Great Britain, and under weightier authority. Pending the discussion between the two countries, Messrs. Malby & Co. of London, “manufacturers and publishers to the Society for the Diffusion of Useful Knowledge,” sent out a large and splendid globe, on which they assigned to the United States by line and color the whole northwestern territory up to the latitude of 54° 40′.

To treat mistakes like these as important is unsuited to negotiations between great powers. The United States do not complain that the map of Preuss is produced by Her Majesty’s Government, for the production of it is a confession of the feebleness of the British Case. They might complain that Her Britannic Majesty’s Government did not state what it hoped to prove by the map. They might complain that it produced the map without an acknowledgment of its well-known worthlessness as an exposition of American opinion. And above all they might complain of the British Government for submitting the map to the Imperial Arbitrator without avowing that its own archives contain a contemporaneous, explicit, and authoritative *declaration from the American Government, that the straits of Haro are the boundary channel of the treaty of 1846.[14]

II.—REPLY TO THE ARGUMENTS OF THE BRITISH CASE.

Having thus drawn attention to the character of the paper which the Government of Her Britannic Majesty has presented as its Case, its allegations in support of its pretensions are next to be examined. The Government of Her Britannic Majesty presents but one argument, and that argument has two branches. The British Government admits, and even insists, that the channel of the treaty must be a continuous channel from the forty-ninth parallel to the straits of Fuca; and it argues, first, that the strait which is now called Rosario, but which, at the time of making the treaty of 1846, had “no distinguishing name,” must have been the channel contemplated by the treaty, because the British, at that time, “had no assurance” that the canal de Haro “was even navigable;” “had a firm belief that it was a dangerous strait;” and, secondly, that Fuca Straits extend from Cape Flattery to Whidbey Island. In discussing these two points their order will be reversed.

First, then, do the straits of Fuca, as now pretended by Great Britain, reach to Whidbey Island? The answer depends in part on the definition of the word “strait.” Her Majesty’s Government forget that the word applies only to a narrow “passage connecting one part of a sea with another.” Such is a lesson taught by all geographers, whether British, or French, or American, or German. As soon as the southeast cape of Vancouver Island is passed, the volume of water spreads into a broad expanse, filled with numerous islands, and becomes a gulf or bay, but is no longer a strait.

Neither can it be pretended that any exception takes place in the geographical usage of the name “straits of Fuca,” as employed in all the scientific explorations and maps pre*vious to June, 1846. On the contrary, the pretension is hazarded in the face of them all.[15]

The first map of the strait is by the pilot Lopez de Haro; on that the mouth of the so-called strait of Rosario is named Boca de Fidalgo, and the water to the south of it bears the name of the gulf of Santa Rosa.Map J

The map of Eliza, in 1791, confines the name of the straits of Juan de Fuca to the straits that separate Vancouver Island on the south from the continent; and that officer in his report repeats the name of the gulf of Santa Rosa as the name of the interior waters.Map K

The explorers in the Sutil and Mexicana, alike in the Spanish chart of 1795, and in the map annexed to the publication of their voyage in 1802, call the straits “Entrada,” a Spanish word that can extend to no more than an entrance.Map L

Next came Vancouver, and the great authority of the British navigator overthrows the British argument beyond room for cavil; for he not only, like all his predecessors, confines the name of Straits of Juan de Fuca to the passage between Vancouver Island on the south and the continent, but, alike in his narrative and on his map, expressly distinguishes those straits from “the interior sea,” which he, with great solemnity, named the gulf of Georgia.Map C.

The man of Duflot de Mofras, of 1844, and that of Wilkes, in 1845, confine the name of the straits of Fuca strictly to the waters that really form a strait between the continent and the southern line of Vancouver Island.Map E.Map F.

The government of Her Britannic Majesty cannot produce one single map older than 1846 in defense of its views.

The common use of language among the British in Vancouver still corresponds with the undivided testimony of the maps. Pemberton, surveyor-general of Vancouver Island, in a work published in 1860, writes thus of a “stranger steaming, for the first time, eastward into the straits of Juan de Fuca:” *“On his right hand is Washington Territory; on his left is Vancouver Island; straight before him is the gulf of Georgia.”Appendix No. 66, pp. 103, 104.[16]

The statement of Commander Mayne is, if possible, still more precise. Of the Strait of Juan de Fuca, he writes in these words: “At the Race Islands the strait may be said to terminate, as it there opens out into a large expanse of water.” Now the Race Islands, or Race Rocks, alike on the British and American maps, lie to the southwest of the channel of Haro. On the point in question there could be no better authority than Commander Mayne, as he is a man of science, and was employed on the surveys during the period in which Captain, now Admiral, Prevost and Captain Richards acted as the British Boundary Commissioners.Appendix No. 66, p. 103.

But to refute the British assumption, we need not go outside of the British Case itself. On page 27 it claims the chart of Vancouver as the chart according to which Her Majesty’s Government framed the first article of the treaty, and then most correctly says: “The name of the gulf of Georgia is assigned on that chart to the whole of the interior sea.”British Case, p 27.

Thus this branch of the argument offered by the British Government is in flat contradiction to the proper use of language, to nature, to the concurrent testimony of every competent witness, and is given up before the end of the very paper in which it is presented.

We now come to the other branch of the British argument: that prior to 1846 there was no assurance that the canal de Haro was even navigable. That channel is now universally acknowledged to be the best and most convenient for the British. It forms the only line of communication regularly used by them. The mail steamers take only that route. It is the broadest, it is the deepest, it is the shortest passage; and so it is the only one used by the government, the traders, the immigrants, and inhabitants of British Columbia. It became the exclusive channel as soon as gold-hunting *lured adventurers to that region, and the navigation of those waters was no longer confined to the vessels coasting from one to another of the trading-posts of the Hudson’s Bay Company. Its superiority appears alike from the chart of the British Admiralty and of the American Coast Survey. A map is annexed exhibiting in several cross-sections the relative depths of its channel.Appendix Nos. 53, 54, 55, 57, 58, 61.[17]Map M.

The plea of ignorance on the part of the British up to 1846 is irrelevant. The treaty does not designate the channel which was or was not most in use, but the channel which separates the continent from Vancouver.

In negotiating the treaty neither side had in view the tracks of the few former fur-traders whose course was run; but the great channels provided by nature for future commerce. American statesmen officially foretold at the time to the British negotiators that, under American auspices, flourishing commonwealths, such as we now see in California and Oregon, would rise up on the Pacific.

The plea of Lord Aberdeen’s ignorance of the Haro waters rests not on anything real and tangible which can be investigated, but on something purely ideal; on an unspoken, unwritten opinion attributed to him. It was not set up till after the death of Sir Robert Peel, who professed to understand “the local conformation of that country,” and explained it to the House of Commons; nor till after Lord Aberdeen in 1855 had finally retired into private life. It is not pretended by any one that the opinion was well founded; and as it is erroneous in itself, and never obtained the sanction either of Sir Robert Peel or of Lord Aberdeen, it must be classed among the dreams that come from the realm of shades through the ivory gate.

Moreover, the attention of Lord Aberdeen, two days before he sent out the treaty to Mr. Pakenham, was specially called to the islands of the Haro Archipelago. On the 15th of May, 1846, he definitively assented, as Mr. MacLane understood him, to the Haro channel as the boundary. On the 16th, Sir John Pelly, then governor of the Hudson’s Bay Com*pany, the same who boasted that that company had “compelled” the Americans to withdraw from the fur-trade, waited upon Lord Aberdeen with map in hand, pointed out to him the group of islands, wholly on the south of the parallel of 49°, and described in distinct and unequivocal language, as well “as colored red,” “the water demarkation line” which would secure every one of the Haro islands. Lord Aberdeen, after having his mind thus closely and exactly drawn to the position of those islands, like “the straightforward man” of honor the United States took him for, rejected the “explicit” advice which would, indeed, have prevented the consummation of the treaty; and, in his instructions and in his draught of the treaty, stipulated only for the channel, “leaving the whole of Vancouver’s Island in the possession of Great Britain.”[18]Appendix No. 67, p. 106.

Further, this plea of ignorance in 1846 that the channel of Haro was navigable, is in itself absurd. For what is a channel? canal? Fahrwasser? Seegat? A channel means the depest part of a river, or bay, where the main current flows. The word is never used except of water that is navigable. Geographies are full of the names of channels, and the maps of Europe and Asia are studded with them; and who ever before thought of denying any one of them to be navigable? The present British suggestion is without precedent. To say that the canal de Haro was not known to be navigable is to say that the canal de Haro was not known to be the “canal de Haro.”

It is very unlucky for the Government of Her Britannic Majesty that its plea of ignorance relates to the waters inside of Fuca straits. The emoluments of the fur-trade; the Spanish jealousy of Russian encroachments down the Pacific coast; the lingering hope of discovering a northwest passage; the British desire of finding water communication from the Pacific to the great lakes; the French passion for knowledge; the policy of Americans to investigate their outlying possessions; all conspired to cause more frequent and more thorough examina*tions of these waters, even before 1846, than of any similarly situated waters in any part of the globe.[19]

Before that epoch, the waters east and south of Vancouver Island had been visited by at least six scientific expeditions, from four several nations: three from Spain, one from Great Britain, one from France, and one from the United States; and the discoveries of all the four nations had been laid before the world.

De Haro, of the Spanish exploring party of 1789, discovered, and partly sounded and surveyed, the one broad and inviting channel which then seemed, not merely the best, but the only avenue by water to the north; and he left upon it his name.

The official reports of the expedition of Lieutenant de Eliza in 1791, and the large and excellent map which accompanied his narrative, prove that on the 31st day of May, 1791, an armed boat was ordered to enter and survey the canal of Lopez de Haro; but the survey was interrupted by the hostile appearance of six Indian canoes, filled by more than a hundred warriors. On the 14th day of June, the exploration of the canal de Haro was resumed, and was continued till the whole line of the canal de Haro was traced from Fuca’s straits to its continuation in the great upper channel.Appendix No. 62.

But the Imperial Arbitrator may ask if these discoveries were published to the world; and the United States answer that they were published before the end of the century, both in Spain and in England. In 1792 the Spanish vessels Sutil and Mexicana, commanded by Captains Galiano and Valdes, taking with them the map of Lieutenant de Eliza, verified and completed the exploration of the interior waters, The results of the three Spanish expeditions were published officially by Spain in 1795, in an elaborately prepared chart for manners, of which a lithographed copy accompanies this reply.Map l.

The map of Eliza was also communicated to Vancouver in 1792, at the time when he met Galiano and Valdes, in the *waters east of Vancouver Island. Thus Captain Vancouver became equally well aware of the superiority of the channel of Haro. That he put trust in the communications made to him by the Spaniards, is proved beyond a doubt, for he incorporated them into his map. The discoveries of the Spaniards, enriched by additional surveys of Vancouver himself, were published in Great Britain in 1798, in connection with his voyage. Before the end of the eighteenth century, therefore, the relative importance of the channels in the waters east of Vancouver Island was known to every one who cared to inquire about it, and who could gain access either to the chart published in Cadiz, or to the account of Vancouver’s voyage which was issued in London. Her Majesty’s Government seems certainly to have been in possession of the surveys of Captains D. Galiano and C. Valdes, for in the first chart drawn by the British Admiralty of Vancouver Island and the Gulf of Georgia, and published in February, 1849, they are cited as equal in authority to the chart of Vancouver, and as equally well known.[20]Appendix to Memorial No. 12, pp. 13, 14.

As to the result of the French explorations, Duflot de Mofras, in his work published in 1844, reports:Appendix to Memorial No. 48, p. 55.

Dans l’espace qui s’étend de la terre ferme jusqu’à la partie Est de la grande île de Quadra, il existe une foule de petites îles qui, malgré les abris sûrs qu’elles offrent aux navires, présentent à la navigation de grandes difficultés. Le passage le plus facile est par le canal de Haro, entre l’île de Quadra et Vancouver et celle de San Juan.

In the space between the continent and the eastern part of the large island of Quadra, there is a multitude of small islands, which, in spite of the safe shelters that they offer to ships, present great; difficulties to navigation. The most easy passage is through the canal de Haro, between the island of Quadra and Vancouver and that of San Juan.

The testimony of Duflot de Mofras is clear and unequivocal. It is impartial, and it is authoritative, as it occurs in a formal report to his sovereign.

* Commodore Wilkes himself, in 1841, made all the surveys and soundings that were necessary for the safe navigation of the Haro channel, and, in 1845, published officially, both in London and America, that he had done so.[21]

The American adventurers who collected furs in those waters for the trade with China knew the relative value of the two channels. At Boston, in 1845, Mr. Sturgis, the great representative of that class, describes the Haro channel correctly as the northernmost navigable channel, and draws the boundary line through the center of its waters. And his pamphlet and his map were known and approved by Lord Aberdeen before the treaty was framed.

Thus in Cadiz, in Paris, in Philadelphia, in Boston, and in London, the character of the Haro channel had been publicly made known before the end of 1845.

The British claim that the Hudson’s Bay Company navigated those waters from 1827 or 1828 to 1846. Is it credible that for nineteen years they should have sailed a distance of six German miles, and, at the end of that time, be able to affirm that they were ignorant of the most obvious, broadest, shortest, nearest, and best channel to Fraser’s River? Unless they took the channel of Haro, they must have passed it twice on every voyage, and a sailor, from the mast-head of a vessel, or even from the deck, could have seen it in all or nearly all its extent.

Governor Douglas, one of the most enterprising and inquisitive of men, famous for his “intimate acquaintance with every crevice on the coast,” came in 1842, with the knowledge and approval of Lord Aberdeen, to select the station for the Hudson’s Bay Company near the southeast of Vancouver. From the hill that bears his name, his eye could have commanded the whole of the canal de Haro, and his experience of the sea would have revealed to him at a glance the great depth of its waters. Moreover, in a good boat, with a favoring wind and tide, he could have passed through the whole channel *in less than three hours. To say that he was not thoroughly well aware of its merits is, to those who know the character of the man, beyond the bounds of credibility.Appendix, No. 66, p. 104, 1, 12–14.[22]

The British Government has not produced one particle of evidence of an older date than 1846, that any one questioned the navigability of the Haro channel, while all the evidence which the American Government has thus far produced to establish it, is older than the treaty, is supported by the testimony of four different nations, and proves beyond all possibility of doubt, that before the treaty of 1846 the superiority of the canal de Haro was known by all who cared to know anything on the subject.

The testimony which Her Britannic Majesty’s government of to-day brings forward to prove the ignorance of its predecessors is found to be the more groundless the more it is examined. It would be difficult to state too strongly the objections which any British court of law would make to it. The declarations are taken by the one party without notice to the other. The distinguished officers of the Hudson’s Bay Company, men like Governor Douglas, are passed by; for they could not be expected to stultify themselves by pleading ignorance of the merits of Haro channel. Obscure men bear positive testimony to that about which they knew nothing. A set of written questions is presented to them, and in different places, and on different days, they answer in large part in the same words, implying that answers, as well as questions, were prepared beforehand. The testimony thus picked up is of the less value, as the witnesses were not cross-examined; and yet, without being confronted or cross-examined, they involve themselves in contradictions if not in falsehoods.

The questions are framed so as to seem to be to the point, and yet most of them are of no significance.

William H. McNeill pretends to have used Vancouver’s charts, not knowing that Vancouver made no charts except as an illustration of his own voyage. Then he affirms that * in coming south from Fraser’s River he went through Rosario straits; while the Rosario straits on Vancouver’s map lie far to the north of Fraser’s River. Again, he says that the navigation of Haro straits is much impeded by numerous small islands and rocks; whereas it may be seen by the charts of the British Admiralty, as well as those of the United States Coast Survey, that the channel is broad and singularly deep, and where the bottom is marked rocky, the soundings show a depth of three hundred, six hundred, and even a thousand feet. The same man puts his name to the statement that what he calls the strait of Rosario was the only surveyed channel; whereas the canal de Haro had been surveyed both by Spanish and American expeditions.British Case, pp. 48, 49.[23]

William Mitchell testifies twice over that the so-called Rosario strait was the only known channel; while the channel of Haro appears on the Spanish chart, on the French, on the American, and is given by Vancouver himself. The same William Mitchell testifies, like McNeill, and equally falsely, that in June, 1846, the straits of Rosario, so called, were the only surveyed channel.British Case, p. 51.

But Alexander C. Anderson exceeds others in alacrity. He testifies that as late as 1851 the passage through the Haro strait was incompletely known. Now the large charts prepared by Wilkes and his officers had been for several years exposed for sale to anybody that chose to buy them, and it is absolutely certain that they were presented by the American minister at London to Lord Palmerston, British Secretary of State for Foreign Affairs, and by him thankfully acknowledged, in the year 1848; so that the Government of Her Britannic Majesty happily possesses the means of correcting the rash declarations of the last-named witness.British Case, p, 54.Appendix No. 51.

The American Government cannot offer the rebutting testimony of American mariners, for their fur-trade on the northwest coast had been broken up by the British before 1810, and when at a later day they attempted to renew it, they *had been forcibly compelled by the officers and servants of the Hudson’s Bay Company to give up the field. The American sailors, therefore, who were familiar with those regions have long since gone to slumber with their fathers.[24]

But the British Case enables the American Government to cite the log-books of the Hudson’s Bay Company. It nowhere ventures to say that the log-books of the vessels of the Hudson’s Bay Company prove that they never went through the Haro channel, but only that they used the so-called Rosario straits as the “leading channel.” This is a confession that the log-books of those vessels show that sometimes one channel was used by them, sometimes the other. It is admitted by the British Case that in 1843 the Cadboro sailed through Haro straits, and that once, at least, the Hudson’s Bay Company’s steamer Beaver chose the same route. Commander Mayne admits that when the Hudson’s Bay Company established their headquarters at Victoria, the canal de Haro became used. In corroboration of this use of the channel of Haro, especially from the year 1842 to 1846, some affidavits and statements are offered, correcting the testimony contained in the British Case, and confirming facts which the British Case itself admits. From the want of time, no notice could be given to the other party; but among the witnesses will be found some of the highest officers in the Army and Navy of the United State, as well as men known by their works to the scientific world.British Case, p. 11.British Case, pp. 52, 48.Mayne’s Four Years in British Columbia, p. 39.Appendix Nos. 53, 54, 55, 57, 58, 59, 60, 61.

It is a remarkable characteristic of the British Case, that while it seems to make assertions in language of the most energetic affirmation, it qualifies them so as to make them really insignificant. It might almost be said that the British Case gives up its own theory of the ignorance of Lord Aberdeen as to the character of the Haro channel; for it affirms, not that he was ignorant about its navigability, but that he “had no assurance that it was even navigable in its upper waters.”

“No assurance” is a very vague expression; so is *the phrase “upper waters;” and with them both nothing is asserted, while the form of the statement is an ample confession that Lord Aberdeen was at least perfectly well acquainted with the existence of the strait. When, using the same words with which they introduced their total misapprehension of Mr. Webster’s opinion, they write of the Haro channel, “It is not too much to say that Her Majesty’s Government had a firm belief that it was a dangerous strait,” it is enough to reply that not one word has been presented to show that Lord Aberdeen believed it a dangerous strait; and without his positive testimony, which has not been produced, this is an idle and groundless assertion.British Case, p. 30.[25]

Strange as it is for a great nation to come before a tribunal like that of the German Emperor, and complain that the treaty which they themselves draughted contains an ambiguity due, not to bad faith, but to ignorance, the United States have avowed themselves ready to abrogate that part of the treaty on the ground alleged by the British Government, that it might have been made under a mutual misunderstanding; and to re-arrange the boundary which was in dispute before the treaty was concluded. When put to the test, the British are compelled practically to acknowledge the candor and forbearance of the Americans in the formation of the treaty, and that, if the work were to be done over again, they have no hope of a settlement so much to their advantage. The treaty, as it is understood by the United States, made very large concessions to Great Britain; and the British Government insists upon preserving it.Proctocols 36 and 37 of Conference between the High Commissioners, at Washington.

Then, since Her Majesty’s Government will not consent to cancel the treaty, it must be accepted according to its plain meaning; and if its meaning is not plain, the party which draughted it must suffer the consequences of the ambiguity.

*III.—PROCEEDINGS UNDER THE TREATY OF 1846.[26]

The United States have always held the treaty to be free from ambiguity, and have maintained their understanding of it with unvarying consistency. If between a channel that had a name, and one that had none, the British Government intended to take the channel without a name, it should have described it with distinctness and care; instead of which, the words of their description exclude the channel without a name, and apply exactly and alone to the Haro Channel.British Case, pp. 28, 33.

In January, 1848, the British minister at Washington, treating the “islets” of the San Juan archipelago as of “little or no value” expressed a “wish” to the United States that the passage used by Vancouver in passing from Admiralty Inlet to the north, might be mutually considered as the channel of the treaty. No claim whatever was preferred, and the wish was excused, “because otherwise much time might be wasted in surveying the various intricate channels formed by the numerous islets which lie between Vancouver’s Island and, the main-land, and some difficulty might arise in deciding which of those channels ought to be adopted for the dividing boundary.” The letter of Lord Palmerston, under which the British minister at Washington expressed this wish of Her Majesty’s Government, has never been communicated to the Government of the United States.Appendix No. 68, p. 107.

To Mr. Bancroft, who, immediately after the ratification of the treaty, was selected as the United States minister at London, and who on all occasions spoke and wrote of the canal de Haro as the boundary channel, Lord Palmerston, then Secretary of State for Foreign Affairs, never presented any counter claim; and the American minister was persuaded that danger to the immediate peaceful execution of the treaty arose, not from within the ministry, but from the parlia*mentary influence of the Hudson’s Bay Company, whose desires the ministry seemed reluctant to adopt.Appendix No. 51, pp. 60, 61.[27]

Mr. Bancroft did not suffer the authoritative interpretation of the treaty on the part of his Government to rest on the uncertainty of conversations which time might obliterate, or memory pervert.

On the last day of July, 1848, Lord Palmerston observed that he had no good chart of the Oregon waters; and having asked to see a traced copy of Wilkes’ chart, Mr. Bancroft immediately sent it to him with this remark:

* * Unluckily this copy does not extend quite so far north as the parallel of 49°, though it contains the wide entrance into the straits of Haro, the channel through the middle of which the boundary is to be continued. The upper part of the straits of Haro is laid down, though not on a large scale, in Wilkes’ map of the Oregon Territory.

Obtaining from Washington an early copy of Wilkes’ surveys, Mr. Bancroft delivered it to Lord Palmerston with the following official note:

November 3, 1848.

My Lord: I did not forget your lordship’s desire to see the United States surveys of the waters of Puget’s Sound, and those dividing Vancouver’s Island from our territory.

These surveys have been reduced, and have just been published in three parts, and I transmit for your lordship’s acceptance the first copy which I have received.

The surveys extend to the line of 49°, and by combining two of the charts your lordship will readily trace the whole course of the channel of Haro, through the middle of which out boundary line passes. I think you will esteem *the work done in a manner very creditable to the young Navy officers concerned in it.[28]

I have the honor, &c.,

GEORGE BANCROFT.

Viscount Palmerston, &c., &c.

To this formal and authorized announcement of the Haro as the boundary, the answer of Lord Palmerston, written after four days, was in like manner official, and ran as follows:

Foreign Office, November 7, 1848.

Sir: I beg leave to return you my best thanks for the surveys of Puget’s Sound and of the Gulf of Georgia, which accompanied your letter of the 3d instant.

The information as to soundings contained in these charts will no doubt he of great service to the commissioners who are to be appointed under the treaty of the 15th of June, 1846, by assisting them in determining where the line of boundary described in the first article of the treaty ought to run.

I have the honor, &c.,

PALMERSTON.

George Bancroft, Esq., &c., &c.

Here is no pretense of an ignorance of the channel of Haro as affecting the interpretation of the treaty—that theory was not started until after the death of Sir Robert Peel—but a calm, wise, assent to the use of the large charts of Wilkes in running the boundary. And this assent was virtually a concession that the American interpretation was just and true. Lord Palmerston declined all controversy about the channel. He received a formal, authoritative statement of the line as understood by the United States, and in his *reply made no complaint and proposed no other interpretation. This note is the first and the last and the only word that the United States possess from Lord Palmerston under his own hand on the subject of the boundary. The correspondence relating to it is inserted in full in the Appendix. The American minister of that day had very good opportunity to know what was going forward, and every motive to give the most correct information to his Government.[29]Appendix No. 51.

In December, 1852, Lord Aberdeen came to the head of affairs. The last official word of the Americans to Great Britain on the boundary had been that it passes through the center of the channel of Haro. At the beginning of his ministry, in the winter of 1852–’53, the territorial legislature of Oregon included the whole of the archipelago of Haro in one of its counties. Had Lord Aberdeen been dissatisfied with the state of the question, he, who made the treaty and now had returned to power, was bound to have taken this subject earnestly in hand; but he remained silent, made no excuses that he had draughted the treaty in ignorance, and entered no counter pretension to the American view.

The administration which, in February, 1855, succeeded that of Lord Aberdeen, was one over which the Hudson’s Bay Company exercised great influence. The progress of colonization demanded a settlement of the question of jurisdiction—the more so, as the British Government had made a grant of the island of Vancouver to that company. Accordingly, in 1856 the two Governments agreed to send out commissioners to mark the line of boundary.

The United States, in perfect good faith, gave their commissioner full powers, and communicated his instructions unreservedly to the British Government. The British Government gave its commissioner ostensible instructions, which were readily communicated to the United States, but fettered him by additional ones, which were kept secret, and of which the United States repeatedly but vainly solicited a copy, *until, some years later, Lord Malmesbury, in the ministry of Lord Derby, became once more Secretary of State for Foreign Affairs.[30]

Could the Hudson’s Bay Company obtain possession of the island of San Juan, they would have exclusive possession of the best channel, and of the only safe one in time of war. No British authority in Great Britain or in Vancouver expressed any desire for the so-called Rosario channel, on which the British Case now affects to lay so much stress. The members of Her Britannic Majesty’s Government did not pretend among themselves to a right to it “as the channel indicated by the words of the treaty,” but, yielding to the importunity of the influential government of Vancouver, they were willing to hazard an experimental attempt to gain the island of San Juan. To accomplish this end, the British commissioner received the following secret instruction:

If the commissioner of the United States will not adopt the line along Rosario Strait, and if, on a detailed and accurate survey, and on weighing the evidence on both sides of the question, you should be of opinion that the claims of Her Majesty’s Government to consider Rosario Strait as the channel indicated by the words of the treaty cannot be substantiated, you would be at liberty to adopt any othor intermediate channel which you may discover, on which the United States commissioner and yourself may agree as substantially in accordance with the description of the treaty.Appendix No. 69, P. 108.

According to his commission, and according to his ostensible instructions, Captain Prevost was a commissioner, and no more than a commissioner, to mark the boundary line according to the treaty of 1846; but by his secret instructions, which he resolutely refused to communicate, he was in fact a plenipotentiary appointed to negotiate for a channel which should take the island of San Juan from the United States. examination and the weighing of evidence on both sides of the question, he “should be of opinion that the claims of Her Majesty’s Government to consider Rosario Strait as the channel indicated by the words of the treaty cannot be substantiated.” After having been five months within the straits of Fuea, and after having verified and approved the accuracy of the United States Coast Survey chart of the channels and islands between Vancouver Island and the continent, and after consenting to It must be borne in mind that Captain Prevost had authority to offer a compromise only on the condition that, after personal adopt it for the purpose of determining the boundary line, he proposed such a compromise as would have left to the United States the so-called Rosario Straits and every island in the archipelago except San Juan.[31]Appendix No. 70, p. 109, 1. 5–15.

The commissioner of the United States, Mr. Archibald Campbell, divined the character of the secret instructions under which Captain Prevost was acting, adhered with intelligence and uprightness to his duty as commissioner, and “declined to accede to any compromise.”Appendix No. 72, p. 110, 1, 5,6.

Captain Prevost, the British commissioner, who, by his offer of compromise, had conceded that the British claim to the so-called Rosario straits “cannot be substantiated,” struggled hard to recover the position of a zealous champion of the right of Great Britain to that channel. But for this he had drifted too far, and he was too honest to succeed. As an interpreter of the treaty Captain Prevost writes very correctly: “The channel mentioned should possess three characteristics: 1. It should separate the continent from Vancouver’s Island; 2. It should admit of the boundary line being carried through the middle of, it in a southerly direction; 3. It should be a navigable channel.” He adds: “It is readily admitted that the Canal de Arro is a navigable channel, and therefore answers to one characteristic of the channel of the treaty.”Appendix No. 70.

*This admission, written from on board a ship anchored within sight of the Haro channel, is conclusive as to the first point. As to his second characteristic, a glance at the map will show the Imperial Arbitrator that the line which is drawn due south from the middle of the channel on the parallel of 49°, strikes the channel of Haro, and leaves the so-called Rosario far to the east.[32]Map O.

As to Captain Prevost’s remaining characteristic, the United States again cite his testimony, for he writes: “The canal de Haro is the channel separating Vancouver’s Island from the continent.” To be sure be adds, it “cannot be the channel which separates the continent from Vancouver Island.” But in that ground no anchor can hold. It is as if one were to own, that in latitude 53° 10′, St. George’s channel separates Ireland from England, and yet insist that England is separated from Ireland by the strait of Menai.Appendix No. 70, p. 108, 1. 21–25.

In January, 1848, during the administration of which Lord John Rus sell, now Earl Russell, was the chief, the British minister at Washington, timidly and by way of experiment, expressed a wish that the channel through which Vancouver sailed might be agreed upon by the two Governments as the boundary.Appendix No. 68.

In August, 1859, when the internal commotions, which appeared to threaten the disruption of the United States, were already spreading their baleful influences, Lord John Russell, then British Secretary of State for Foreign Affairs, first ventured upon a distinct avowal of the purpose of Her Britannic Majesty’s Government to obtain the island of San Juan. In pursuing this object, he sought, in an interview with the Earl of Aberdeen, to obtain the support of that minister.Appendix No. 73, pp. 111, 112.

The chief interest in this narrative, as far as persons are concerned, centers in Lord Aberdeen. So far as the United States know, he never consented to set his hand to any paper which they would have a right to regard as disingenuous. The United States have shown in their memo*rial that Mr. MacLane, after an interview with Lord Aberdeen on the 15th of May, 1846, reported to his Government that the treaty line would pass through the canal de Haro.[33]Appendix to Memorial, No. 42 p. 47, 1. 8–11.

The present agent of the United States in this arbitration resided as minister in England during the three years following the treaty, became well acquainted with Lord Aberdeen, conversed with him on its interpretation, and never heard from him one word that conflicted with the report of Mr. MacLane. Nor did he ever hear a different interpretation of the treaty from Sir Robert Peel. Nor during his whole residence in England did he ever hear such difference of interpretation attributed by any one to either of the two.

And, in 1859, Lord Aberdeen is appealed to by Lord John Russell for the aid of his testimony. Unhappily there exists no written answer of his own to the questions put to him; but only a very short report of the interview by Lord John Russell. According to that report, Lord Aberdeen did not deny that he used the name of the canal de Haro with Mr. MacLane, though he had no recollection of having done so. Now, nothing is more likely than that the words uttered in conversation thirteen years before, might have dropped from his memory; and against this failure of memory is to be weighed the dispatch of Mr. MacLane, written at the moment of the conversation. But, as to the channel which Lord Aberdeen had in view, he is represented as declaring that he knew none other than that “described in the treaty itself.” Now, the channel described in the treaty, and in Lord Aberdeen’s instructions to Mr. Pakenham, is, as we have seen, no other than the canal de Haro.Appendix No. 73, pp. 111, 112.

Left without support by Lord Aberdeen, the British Foreign Office brought forward, as its witness, Sir Richard Pakenham, who, with Mr. Buchanan, signed the boundary treaty of June, 1846.[34]

In that same year, while everything was still fresh in *memory, Mr. Buchanan had recorded his interpretation of the treaty in an instruction to Mr. Bancroft, the American minister at London, who, as his colleague in Washington, had taken part in its negotiation, and knew every step of its progress. An instruction written under such circumstances is the portraiture of the inmost mind of its author. “It is not probable,” wrote Mr. Buchanan. “that any claim will be seriously preferred on the part of Her Britannic Majesty’s Government to any island lying to the eastward of the Canal of Arro, as marked in Captain Wilkes’s ‘map of the Oregon Territory.”’Appendix No. 51, p. 60, 1. 3–7.

Of the testimony, given more than twelve years later by Sir Richard Pakenham, every word, as far as communicated to the United States, is presented in the Appendix. It has no date, but was communicated to the United States in the year 1859. Captain Prevost, in his final letter to Mr. Campbell, the American commissioner, of November 24, 1857, had written: “I will at once frankly state how far I am willing to concede, but beyond what I now offer I can no further go. * * * I am willing to regard the space above described [that is, the space between the continent and Vancouver Island, south of 49°] as one channel, having so many different passages through it, and I will agree to a boundary line being run through the ‘middle’ of it, in so far as islands will permit.” This is the lead which Sir Richard Pakenham followed. He who signed the treaty on the British side declared positively, as his interpretation of it, that the so-called straits of Rosario are not the channel intended by the treaty; and we must hold the British Government to this confession, as it received its official approbation.Appendix No. 73, pp. 112–114.Appendix No. 70, p. 109.

It is true he also denied the straits of Haro to be the channel of the treaty, using these words:

The Earl of Aberdeen, in his final instructions, dated 18th May, 1846, says nothing whatever about the Canal de Haro, but, on the contrary, desires that the line might be drawn “in a southerly *direction through the center of King George’s Sound and the Straits of Fuca to the Pacific Ocean.”[35]

Now why was Sir Richard Pakenham introduced to give testimony as to the instruction which he received from Lord Aberdeen? The instruction itself was in the Foreign Office, and was the best authority on the subject, and would have given the whole truth. Sir Richard Pakenham in his testimony leaves out the most important words of his final instructions. Lord Aberdeen, it is true, did not name in them the channel of Haro by name, but so far from writing anything to “the contrary,” he defined it exactly, when, in those same “final instructions,” he describes the channel of the treaty as the channel “leaving the whole of Vancouver Island, with its ports and harbors, in the possession of Great Britain.”Appendix to Memorial No. 43, p. 50, 1. 5, 7.

The final interpretation of the treaty by Sir Richard Pakenham runs as follows:

The conditions of the treaty, according to their liberal 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 Island.

Thus Mr. Pakenham, the British signer of the treaty, adopting the theory first communicated to the United States by Captain Prevost eleven years after the treaty was ratified, rejects entirely the channel of the so-called Rosario as the channel of the treaty. The question now is not between the so-called Rosario and some channel intermediate between it and that of Haro. It is whether the claims of the United States to the Haro, or those of Great Britain to the so-called Rosario, are more in accordance with the true interpretation of the treaty. The instructions to Captain Prevost show that the British Government had no confidence in the so-called Rosario as being the treaty channel; the testimony of Sir Richard Pakenham is that the British government at the time of negotiating the treaty did not intend the so-called Rosario *as the channel, while the words which he suppressed from Lord Aberdeen’s final instructions prove the channel of the treaty to be the canal de Haro. Adopting the theory of Captain Prevost and Sir Richard Pakenham, Lord John Russell somewhat peremptorily demanded of the United States the acceptance of that theory, and in an instruction which the British minister at Washington was directed to communicate to the United States, he wrote:[36]

The adoption of the central channel would give to Great Britain the island of San Juan, which is believed to be of little or no value to the United States, while much importance is attached by British colonial authorities, and by Her Majesty’s government, to its retention as a dependency of the colony of Vancouver’s Island.Appendix No. 73, p. 112.

Her Majesty’s Government must, therefore, under any circumstances, maintain the right of the British Crown to the island of San Juan. The interests at stake in connection with the retention of that island are too important to admit of compromise, and your lordship will consequently bear in mind that whatever arrangement as to the boundary line is finally arrived at, no settlement of the question will be accepted by Her Majesty’s government which does not provide for the island of San Juan being reserved for the British Crown.

To this naked and even menacing demand the American Government made the only fitting reply; and certainly the Imperial Arbitrator will not give an award to Great Britain, because the Vancouver colonial authorities and Her Majesty’s Government covet the possession of San Juan.

When the attention of the British Secretary of State was called to the absoluteness and to the motives of this communication, he answered:Appendix No. 75 p. 117, 1. 17–22.

Her Majesty’s Government were by implication abandoning a large part of the territory they had claimed, and were merely insisting on the retention of an island which, from the peculiarity of *its situation, it was impossible for Her Majesty’s Government to cede, without compromising interests of the gravest importance.[37]

Lord John Russell acknowledged the necessity of supporting his pre tensions by bringing them into agreement with the words 0f the treaty; and therefore, giving up the channel of the so-called Rosario, he entered into an argument in favor of the channel called on the United States Coast Survey “the San Juan Channel,” on the British Admiralty chart “Douglas Channel,” as the channel of the treaty.Appendix No 75,. p. 118, 1. 4–22.

In other words, he interpreted the treaty simply as giving the island of San Juan to the British, by which they would gain the exclusive possession of the Haro channel.

A conclusion is thus made very easy. Captain Prevost, Sir Richard Pakenham, and Lord John Russell unite in renouncing any treaty right to the so-called Rosario channel, and unite in the opinion that the Douglas Channel has a belter right to be regarded as the channel of the treaty than the so-called Rosario. There is no escape from this cumulated evidence thus furnished by the British Government: first, in the instructions of Lord Aberdeen to Mr. Pakenham; second, in Mr. Pakenham’s declaration of the meaning of the British Government at the time the treaty was negotiated; third, in the instructions to Captain Prevost; and fourth, in the statements of Lord John Russell, that the so-called Rosario strait was not the channel through which, in the interpretation of the British Government, the boundary line was to be run. It further shows that up to the date of the instructions to Captain Prevost in 1856, the British Government had never suggested any other than the Haro and the so-called Rosario channel. Their own evidence, excluding the Rosario straits from their contemplation at the date of the treaty, leaves the Haro as the only possible channel within the contemplation of either party, and the only one in accordance with the true interpretation of the treaty.

* One more effort was made for the settlement of the question by the two Governments. On the 15th day of March, 1871, the commissioners on the part of the United States and the commissioners on the part of Great Britain, in a conference at Washington took up the northwestern boundary question, and when no agreement could be arrived at respecting the proper interpretation of the treaty of June, 1846, the American commissioners expressed their readiness to abrogate the whole of that part of the treaty of 1846, and re-arrange the boundary line which was in dispute before that treaty was concluded. At the conference on the 20th of March, 1871, the British commissioners declined the proposal.[38]XXXVI. Protocol of conference between the high commissioners, at Washington.

On the 19th of April the British commissioners, willing to renounce all claim to the so-called Rosario, renewed the offer of the line which had before been pressed by Captain Prevost, and maintained as the line of the treaty by Sir Richard Pakenham and by Lord John Russell. The American commissioners on the instant declined to entertain the proposal, and the British commissioners could not consent to regard the channel of Haro as the boundary, “except after a fair decision by an impartial arbitrator.”

IV.—INTERPRETATION OF THE TREATY OF 1846.

The United States have already asked Your Majesty’s attention to rules of international law applicable to the interpretation of the treaty submitted for arbitration.

They agree with the British Government, that “the words of a treaty are to be taken to be used in the sense in which they were commonly used at the time when the treaty was entered into,” and ask Your Majesty to interpret the words “Fuca’s straits” according to the usage established by all the maps and reports prior to 1846.British Case, p. 14.

*They further agree that “treaties are to be interpreted in a favorable rather than an odious sense;” but they did not in their Memorial invoke this rule, though it so decisively confirms their rights, because they had no fear that the German Emperor could give to the convention an odious interpretation. Since, however, this rule of interpretation has been brought forward by the government of Her Britannic Majesty, the United States must explain the immeasurably odious nature of the interpretation which the British government desires Your Majesty to adopt.[39]British Case, p. 29.

The United States, in signing the treaty of 1846, had in view permanent relations of amity with Great Britain, and therefore dealt with it generously in the treaty, that there might remain to that power no motive for discontent or cupidity. When they consented that Great Britain should hold the southern cape of Vancouver Island, they knew that the harbor of that cape was the very best on the Pacific, from San Francisco to the far north. The United States took also into consideration that Great Britain needed to share, and had a right to expect to share in the best line of communication with its possessions to the north.

A ship using the so-called Rosario strait may be exposed to cannon-shot, not only as it enters that strait, but nearly all the way as it sails through it. One British Ministry after another has shown that it set no value upon it whatever, and has represented that it was not contemplated by treaty as a boundary, and has used the claim to it only as a means of driving the United States into a surrender of the island of San Juan.

A ship, as both parties agree, can enter the channel of Haro and not be under any necessity of passing within territorial waters on either side of the central line.

This passage by the Haro channel to the British possessions north of 49°, is the shortest, the most convenient, *the best, and the only perfectly safe one, alike in peace and in war. Of this channel, the United States by the treaty of 1846 concede the joint possession to the British, but they concede it with circumstances of peculiar generosity, or rather magnanimity. In passing from the lower part of the Haro channel to the upper interior waters, they allow to Great Britain equal rights with themselves to pass through the Haro channel to the true Rosario of the Spaniards, the British gulf of Georgia. Thus far the United States reserve to themselves no advantage over the English. They go farther. There are two other channels connecting the straits of Haro with the upper waters; one of them a little above 49°, at the Portier pass; the other below 49°, through Swanson channel and Active pass. As to both of these, the United States leave to the British the exclusive possession of the islands on each side. This is a great concession, far outweighing in value any advantage the Americans may gain in the so-called Rosario straits. The regular track of the British steamers between south Vancouver and Fraser’s river is through the channel of Swanson and Active pass, a wide, sheltered channel, to them the shortest and most convenient, never freezing in winter, with water nowhere less than ninety feet deep, as easy of navigation as any part of the broadest and most magnificent river in Europe.[40]Map O.

To keep all these advantages and to acquire exclusive possession of the channel of Haro became the uncontrollable desire, first of the Hudson’s Bay Company, then of the politicians of Vancouver Island. The conduct of the United States merited a better requital.

The demand of the government of Her Britannic Majesty is as contrary to every principle of convenience, equity, and comity, as it is to the intention and the language of the treaty of 1846. To ask the United States to give up their equal right in the canal de Haro is to ask them to shut themselves out of their own house. They own the continent *east of these waters to the lake of the Woods, a distance of 28° of longitude. Is it within the bounds of belief that they should have given up to Great Britain the exclusive possession of the best channel, and the only safe channel, by which they could approach their own vast dominions on the north? Grant the English demand, draw the line of boundary through the so-called Rosario channel, and the Americans would have access to their own immense territory from the Pacific, only by the good will of the English. Such an interpretation of the treaty is so unequal, so partial to Great Britain, so opposite to the natural rights of the United States, so inconsistent with the words of the treaty, that the American Government holds itself deeply aggrieved by the British persistence in demanding an interpretation in so “odious a sense.”[41]

The United States, it may once more be said, had not the intention to present the subject in this light to the Imperial Arbitrator, for they confide entirely in his justice. But since Her Majesty’s government apparently assumes that an award in favor of the American Government would be “odious,” the United States must not neglect to invite attention to the true aspect of the case.

The American Government is the more surprised at this manner of presenting the subject by the government of Her Britannic Majesty, inasmuch as Captain Prevost, after months employed in exploring the waters, conceded that the British claim to the so-called Rosario Strait “could not be substantiated,” and this opinion was formally adopted by Sir Richard Pakenham and by Lord John Russell; the latter of whom himself declares that he abandoned by implication all but the island of San Juan.

Another reason why an award in favor of the so-called Rosario as the channel would be odious, is, that it would transfer to the foreign allegiance of Great Britain, islands east of San Juan which have long been and are now in the undisputed posses*sion of the United States. The United States have likewise been virtually in possession of the island of San Juan; though each party maintains in it a small garrison. The civil population on that island is thoroughly American. Out of ninety-six resident males of twenty-one years of age and upward, the number of American citizens is fifty-six; the number of those born in Great Britain and Ireland is but twenty-six. Of both sexes and all ages, there are one hundred and seventy-nine Americans and but fifty-two of British nationality on the island of San Juan. In the whole archipelago, the American population numbers three hundred and fourteen, the British but ninety. How unsuitable it would be, then, to assign to Great Britain islands which have never been out of the possession of the United States, and which are occupied almost exclusively by their citizens![42]Appendix No. 76.

The United States do not understand how a controversy could have arisen on the meaning of the boundary treaty of June 15, 1846. It will be remembered that it was they who, in the administration of Sir Robert Peel, recalled the intimation of Mr. Huskisson in 1826, and suggested that the disputed boundary might be arranged by just so much deflection from the forty-ninth parallel, as would leave the whole of Vancouver island to Great Britain. For more than two years, through two successive envoys, they continued to propose this settlement. At length Lord Aberdeen consented to it. The language of the treaty for carrying out the arrangement came from him. The United States accepted it in the sense in which they had suggested it; and by all rules for the equitable construction of contracts, Great Britain ought not now o attach to it a sense different from that in which Lord Aberdeen must have known that the United States accepted it. Moreover, before the treaty of June, 1846, was signed, Lord Aberdeen, well knowing by the experience of more than two years that the United States had proposed as their ultimatissimum, not to divide Vancouver island, instructed the British minister at Washington, that what England *was to obtain was the channel “leaving the whole of Vancouver’s island in the possession of Great Britain.” Thus both parties had the same object in view; both parties intended the same thing and expressed in writing their intentions before the treaty was signed. The Government of the United States of that day assented to the treaty of 1846, with the understanding, communicated in advance to the British Government, that the boundary line was to deflect from the forty-ninth parallel for the sole purpose of giving the south of Vancouver Island to Great Britain, so that it was necessarily to pass through the canal de Haro. The American Senate accepted it in that sense, and only in that sense. After it had been accepted, and before the ratifications were exchanged, Sir Robert Peel in the House of Commons announced in memorable words, that Her Majesty’s government had made the contract in the same sense. Not long afterwards the present agent of the United States in this arbitration, then the plenipotentiary of the United States near the Court of St. James, officially called the official attention of Lord Palmerston to this construction; and from Lord Palmerston, then the British Secretary of Foreign Affairs, who, on the 29th of June, 1846, had, as a member of the House of Commons, listened to Sir Robert Peel’s interpretation of the treaty, and, with the knowledge of this interpretation, had on the same evening welcomed it as honorable to both countries, the note of the American plenipotentiary received the acquiescence of silence.Appendix to Memorial No. 10 and No. 19, p. 22, 1. 2–6.[43]Appendix to Memorial No. 46.

The broad and deep channel of Haro, in its ceaseless ebb and flow, is the ever faithful and unimpeachable interpreter of the treaty. Time out of mind, it formed the pathway for the canoe fleets of the Red Men. It is the first channel discovered by Anglo-Americans or Europeans within the strait of Fuca; it is the first that was explored and surveyed from side to side; it is the first through which Europeans sailed from the Fuca Strait to the waters above the parallel *of 49. And now, in the increase of emigration and trade, it approves itself as “the channel” of commerce by the unanimous choice of the ships of all nations.[44]

Everything favors a peaceful adjudication. The influential and active Hudson’s Bay Company has ceased to exist. The United States have paid them, and all other British companies or citizens, for their possessory rights large indemnities, which they themselves and the British government acknowledge to be most ample. The generation of Britons who reluctantly assumed the unwelcome task of keeping the fruitful region of Northwest America in a wilderness condition, has passed away. Under the genial influence of the United States, cities rise on the stations of fur-traders, and agriculture supersedes hunting and trapping. This condition of the country facilitates the final recognition of the rights of the United States, and encourages the belief that an award favorable to them will be accepted without an emotion of surprise or discontent.