By the 1st article of the treaty between the United States and Great Britain of the 15th of June, 1816, it was stipulated that the line of boundary between the territories of the parties on the forty-ninth parallel should stop in the middle of the channel which separates the continent from Vancouver’s Island, and should proceed thence southerly through the middle of that channel and of Fuca’s Straits, to the Pacific Ocean.
The point in dispute between the two governments is, as to which channel was meant by the words referred to. On the part of the United States it is contended that no other than the Haro, and on the part of Great Britain that no other than the Rosario Channel could have been in contemplation.
The United States also contend that the history of the negotiation shows that, in abandoning a claim to have the boundary of the forty-ninth parallel extended to the Pacific, and thereby relinquishing the whole of Vancouver’s Island to Great Britain, they were actuated by an expectation that all other islands south of that parallel and east of the Haro Channel would fall to them. The United States also contend that the parties could not have supposed that any other channel was meant than the widest, the deepest, and the shortest between the Straits of Fuca and the mouth of Fraser River, which conditions are only fulfilled by the Haro Channel; that the navigation to and from Fuca’s Straits by the Rosario Channel is comparatively circuitous, and that if that channel were to be the line, it would throw into the possession of Great Britain all the islands below the forty-ninth parallel and east of Vancouver.
The objects and intentions of the parties in agreeing to the first article of the treaty of the 15th June, 1846, seem to be well illustrated by the following antecedents to that instrument:
By the third article of the treaty between the United States and Great Britain of the 20th October, 1818, the parties agreed to a joint occupation of the territory which they might respectively claim on the northwest coast of America west of the Rocky Mountains.
By their treaty with Spain of the 22d of February, 1819, the United States acquired any title which the latter may have had in the same territory north of the forty-second parallel of latitude.
By their treaty with Great Britain of the 6th of August, 1827, the joint occupation of the territory referred to was indefinitely extended, upon the condition that if, after the 20th of October, 1828, either party should give twelve months’ notice to the other, the convention would be abrogated at the expiration of the said term of notice.
The forty-second parallel of latitude was also made the southern boundary of the United States wet of the Rocky Mountains, by their treaty with Mexico of April, 1831.
In a letter to Mr. Upshur, Secretary of State, of the 14th of November, [Page 307] 1813, Mr. Everett, United States minister to London, gives an account of an interview which he had had with Lord Aberdeen on the 6th of that month. His lordship considered that the question as to the northwestern boundary stood as it had been left by Mr. Gallatin in his negotiation with Messrs. Huskisson and Addington, in 1827. Lord Aberdeen assented to a remark of Mr. Everett, that the numerous stations which the Hudson’s Bay Company had established south of the 49th degree, since 1818, though they would embarrass the British government in reference to that company, and, through them, in reference to public opinion, ought not to prejudice the claims of the United States. Mr. Everett also remarked that, in offering the line of 49°, we acted fairly and liberally; that the offer was based on the natural principles of distribution, while they, in refusing that offer and insisting on the Columbia River, disregarded such principles, and simply insisted upon a boundary very favorable to themselves. The United States offer was in accordance with the rules of the English charters, of running northern and southern boundaries from sea to sea. To an objection of Lord Aberdeen, that lines of latitude were arbitrary, Mr. Everett answered, that they were as likely to be in favor of Great Britain as of the United States, and, besides, could readily be-ascertained by men of science; that the part of the boundary on the 49th parallel was the only one respecting which no controversy had arisen or was to be feared. Finally, Mr. Everett said, that an equal partition of the territory was an obvious and natural principle of division, and that the forty-ninth parallel was nearly an equal division of the region between 42° and 54°.40. Mr. Everett said to Lord Aberdeen, that when the United States presented themselves before the tribunal of the public opinion of the world, with a statement of the nature and foundation of their claim to the whole territory, as the successors of Spain, and that they had offered to England a partition as nearly equal as could be made, reserving to themselves only the half to what they had a better independent claim than England, founded on prior discovery, occupation, and exploration, and to which they had the fair claim of contiguity and natural extension, there could not be a doubt but that the decision of that tribunal would be in their favor.
Mr. Everett went on to remark that the main difficulty in the adoption of the forty-ninth degree to the ocean was, that it had already been thrice offered to Great Britain and always rejected. To meet this difficulty, suggested Mr. Everett, it might deserve the President’s consideration whether he would not agree to give up the southern extremity of Quadra and Vancouver’s Island, (which the forty-ninth degree would leave within the United States,) on condition that the entrance of the Straits of Juan de Fuca should at all times be left open and free to the United States, with a free navigation between that island and the mainland, and a free outlet to the north.
In a dispatch of the 2d of December, Mr. Everett gives an account of another interview with Lord Aberdeen on the 29th of November, 1843, in the course of which his lordship stated that it would be impossible for the ministry, for the time being, to accept what had been rejected in 1824 and 1826; that they did not suppose that we, any more than themselves, could now agree to terms which we had then declined; and that, consequently, there must be concession on both sides; that they were willing to act on this principle, and that we must do the same.
Mr. Everett says that he regarded that observation, now made to him for the first time, as very important. He told Lord Aberdeen that he thought it would be very difficult for the United States to make any [Page 308] modification of their former proposal, except in one point, which he regarded as very important to England. He 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 the United States the southern extremity of that island, and consequently the command of the straits of Fuca. Mr. Everett said that he was not authorized to say whether that would be agreed to, but that he thought and wished it might be. He then pointed out on a map the extent of the concession, which Lord Aberdeen said he would take into consideration.
In a dispatch of the 1st of April, 1844, Mr. Everett gives an account of another interview which he had with Lord Aberdeen on the 16th of March, in the course of which he remarked that, in proportion as his lordship should be inclined to think that the offer formerly made by the United States to continue the forty-ninth to the sea was an equitable offer, he ought to be satisfied with but a moderate departure from that proposal, particularly if such modification, without involving a great sacrifice to the United States, were eminently advantageous to Great Britain. In fact, such a modification was the only one which the United States, in Mr. Everett’s opinion, could be brought to agree to. A waiver by the United States of their claim to the southern extremity of Quadra and Vancouver’s Island, which would be cut off by the forty-ninth degree of latitude, was precisely of that kind. Lord Aberdeen did not commit himself as to whether such a proposition would be accepted.
In a dispatch to Mr. Calhoun, of the 28th of February, 1845, Mr. Everett, referring to the proceedings in Congress in regard to the establishment of a territorial government in Oregon, stated that he had had several conversations with Lord Aberdeen. Mr. Everett expressed an opinion founded on them, that England would never accept the naked proposition of the forty-ninth degree; but that she would accept that line with the modification to which he had referred in previous dispatches, namely: the southern extremity of Quadra and Vancouver’s Island, though Lord Aberdeen had never told him that they would do this, and he was confident that this was the best boundary which the United States could get by negotiation.
In a dispatch to Mr. Buchanan, of the 3d of March, 1846, Mr. McLane referred to interviews which he had had with Lord Aberdeen, and stated that he had little or no expectation that the British government would offer or assent to a better partition than the extension of a line on the 49th parallel to the Straits of Fuca, and thence through the middle of those straits to the Pacific.
In a dispatch to Mr. Buchanan, of the 18th of May, 1846, Mr. McLane remarked: “I have now to acquaint you that, after the receipt of your dispatches on the 15th instant, by the Caledonia, I had a lengthened conference with Lord Aberdeen, on which occasion the resumption of the negotiation for an amicable settlement of the Oregon question, and the nature of the proposition he contemplated submitting for that purpose, formed the subject of a full and free conversation. 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, and confirming to the United State’s what, indeed they would possess [Page 309] without any special confirmation, the right freely to use and navigate the straits throughout its extent.”
June 29, 1846, in the House of Commons, Sir Robert Peel, in tendering the resignation of the ministry, said, in reference to the termination of the existing convention for the joint occupation of Oregon by Great Britain and the United States: “It appeared to us that the addition of that conciliatory declaration—the expression of a hope that the termination of the convention might the more strongly impress upon the two countries the necessity of amicable adjustment—removed any barrier which diplomatic punctilios might have raised to a renewal by this country of the attempt to settle our differences with the United States. We did not hesitate, therefore, within two days after the receipt of that intelligence—we did not hesitate, although the offer of arbitration made by us had been rejected—to do that which, in the present state of the protracted dispute, it became essential to do, namely, not to propose renewed and lengthened negotiations, but to specify frankly and without reserve what were the terms on which we could consent to a partition of the country of the Oregon. Sir, the President of the United States met us in corresponding spirit. Whatever might have been the expressions heretofore used by him, however strongly he might have been personally committed to the adoption of a different course, he most wisely and patriotically determined at once to refer our proposals to the Senate, that authority of the United States whose consent is requisite for the conclusion of any negotiation of this kind, and the Senate, acting also in the same pacific spirit, has, I have the heartfelt satisfaction to state, at once advised acquiescence in the terms we offered. From the importance of the subject, and considering that this is the last day I shall have to address the house as a minister of the Crown, I may, perhaps, be allowed to state what are the proposals we made to the United States for the final settlement of the Oregon question. In order to prevent the necessity for renewed diplomatic negotiations, we prepared and sent out the form of a convention, which we trusted the United States would accept.”
Here Sir Robert Peel quoted the language of the first article of the treaty, and, in explanation thereof, continued: “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 navigation of the straits. Sir, the second article of the convention we sent for the acceptance of the United States was to this effect.”
Here Sir Robert Peel quoted the second article of the treaty, relating to the navigation of the Columbia River.
Continuing, he said: “Sir, I will not occupy the attention of the House with mere details. I have read the important articles.”
Sir Robert further quoted an official letter from Mr. Pakenham, intimating the acceptance of the British proposals, and giving assurance of the immediate termination of differences with the United States.
Mr. Pakenham wrote, under date of June 13, that “the President sent a message on Wednesday last to the Senate, submitting for the opinion of that body the draught of a convention for the settlement of the Oregon question;” that after a few hours’ deliberation on each of the three days—Wednesday, Thursday, and Friday—the Senate, by a [Page 310] majority of thirty-eight votes to twelve, adopted yesterday evening a resolution advising the President to accept the terms proposed by Her Majesty’s government. President Buchanan accordingly sent for me this morning, and informed me that the conditions offered by Her Majesty’s government were accepted by the Government of the United States, without the addition or alteration of a single word. Thus, sir, the governments of two great nations, impelled, I believe, by the public opinion of each country in favor of peace, have by moderation, by mutual compromise, averted the dreadful calamity of a war between two nations of kindred origin and common language.” (Hansard’s Debates, vol. 87, p. 1050 et seq.)
Viscount Palmerston in reply said: “I should be sorry to leave one topic of the right honorable gentleman’s speech after the deep pleasure which it has afforded; I mean the communication which he made, and which will be received with entire satisfaction, not only within the walls of Parliament but throughout the country, that the unfortunate differences which have arisen between this country and the United States have been brought to a termination, which, as far as we can at present judge, seems equally favorable to both parties.” (Hansard’s Debates, 3d Series, vol. 87, p. 1057 et seq.)
The papers of which the following is a synopsis bear date subsequently to that of the treaty:
Mr. J. McHenry Boyd, chargé d’affaires of the United States at London, in a dispatch to Mr. Buchanan, Secretary of State, of the 19th of October, 1846, represents that British subjects contemplated settling on Whitby’s Island, one of those within the Straits of Fuca, south of the forty-ninth parallel; that the British government had consequently been thrown into some doubt whether, according to the boundary in the Oregon treaty, that island would fall within American or British jurisdiction. Mr. Boyd accordingly suggested that if the Department was not already in possession of evidence clearly defining the line, measures should be taken toward obtaining it, for the purpose of meeting the question when it should arise.
In a dispatch to Mr. Buchanan of the 3d of November, 1846, Mr. Bancroft, then United States minister at London, requested a copy of Wilkes’s chart of the Straits of Haro, it having been intimated to him that questions might arise with regard to the islands east of that strait. Mr. Bancroft requested authority to meet any such claim at the threshold, by the assertion of the central channel of Straits of Haro as the main channel intended by the recent treaty of Washington.
Mr. Buchanan complied with Mr. Bancroft’s request by an instruction of the 28th of December, 1846. The instruction remarks that it was not probable that the British government would seriously claim any island east of the Canal of Haro. That no doubt that was the channel which Lord Aberdeen had in view when, in conversation with Mr. McLane, about the middle of May, 1846, he explained the character of the proposition he intended to submit through Mr. Pakenham, the British minister at Washington. This was, first, to divide the territory by the extension of the line on the parallel of 49° to the sea; that is to say, to the arm of the sea called Birch’s Bay, thence by the Canal de Haro and Straits of Fuca to the ocean.
In a dispatch to Mr. Buchanan of the 29th of March, 1847, Mr. Bancroft adverts to supposed wishes of the Hudson’s Bay Company to get some of the islands on our side of the line in the Straits of Fuca, and says that he would not be surprised if a formal proposition should soon be made by the British government to run the line. The proposition [Page 311] would in itself be proper if there should be no ulterior motive to raise unnecessary doubts and to claim islands, that are properly ours. He expressed his belief that the ministry had no such design. Some of its members would be the first to frown on it.
In a dispatch to Mr. Buchanan, of the 4th of August, 1848, Mr. Bancroft says that he had been told by Lord Palmerston that he had made a proposition at Washington for marking the boundary and for ascertaining the division line in the channel by noting the bearings of certain objects. “I observed that the water in the channel of Haro did not require to be divided, though, of course, the islands east of the center channel of Haro were ours. He spoke of the propriety of settling definitively the ownership of the several islands, in order that settlements might not be begun by one party on what properly belonged to the other.”
In a note to Mr. Buchanan, of the 13th of January, 1848, Mr. Crampton stated that he had been instructed to propose that the two governments should proceed to mark the boundary defined in the treaty. After remarking upon other parts of the line, he goes on to say: “But between the Gulf of Georgia and the Straits of Fuca the line is less distinctly and accurately defined by the verbal description of the treaty by which it is established, and local circumstances render it probable that if this part of the line were not to be precisely determined, the uncertainty as to its course might give rise to disputes between British subjects and citizens of the United States.” Mr. Crampton also said, in substance, that as the point in the center of the channel between Vancouver’s Island and the continent could not, probably, be marked out by any object to be permanently fixed on the spot, it should be ascertained by the intersection of cross-bearings of natural and artificial landmarks.
He goes on in the following words: “But in regard to this portion of the boundary-line, a preliminary question arises, which turns upon the interpretation of the treaty rather than upon the result of local observation and survey. The convention of the 15th of June, 1846, declares that the line shall be drawn through the middle of the channel which separates the continent from Vancouver’s Island. And upon this it may be asked what the word ‘channel’ intended to mean. Generally speaking, the word ‘channel,’ when employed in treaties, means a deep and navigable channel. In the present case it is believed that only one channel, that, namely, which was laid down by Vancouver in his chart, has, in this part of the Gulf, been hitherto surveyed and used, and it seems natural to suppose that the negotiators of the Oregon convention, in employing the word ‘channel,’ had that particular channel in view.”
Mr. Crampton’s note was accompanied by a draught of instructions to the commissioners for marking the boundary.
The receipt of the communication, however, does not appear to have been acknowledged.
With a note to Lord Palmerston of the 31st of July, 1848, Mr. Bancroft sent a copy of Wilkes’s chart of the Straits of Juan de Fuca; but remarked that, though it did not extend to the parallel of 49°, it contained the wide entrance into the Straits of Haro, the channel through the middle of which the boundary was to be continued.
With a dispatch to Mr. Buchanan of the 19th of October, 1848, Mr. Bancroft sent a copy of the map of Vancouver’s Island, by Wyld, geographer to the Queen. It purports to mark, by a dotted line, the boundary between the United States and Great Britain. “You will see that this map suggests an encroachment on our rights by adopting a line far to the east of the Straits of Haro.”[Page 312]
With a note to Lord Palmerston of the 3d of November, 1848, Mr. Bancroft sent him a copy of the United States surveys of the waters of Puget Sound and those dividing Vancouver’s Island from our territory. Mr. Bancroft remarked, “Your lordship will readily trace the whole course of the Channel of Haro, through the middle of which our boundary-line passes.”
In a note to Mr. Bancroft of the 7th of November Lord Palmerston thanked him for the surveys.
An act of the Congress of the United States was passed on the 11th of August, 1856, providing for the demarkation of the boundary on our part. Mr. Archibald Campbell was appointed commissioner. The instructions of Mr. Marcy, Secretary of State, addressed to him in that character, bear date the 25th of February, 1857. They do not advert to any particulars in regard to the water-boundary. The following is a paragraph of the instructions:
Having completed the organization and outfit, and made the other preparations indicated, you will repair to Fuca Straits, via San Francisco, to meet the commissioner on the part of the British government, and proceed with him to determine such portion of the line described in the first article of the treaty as is provided for by the act above cited.
Captain James C. Prevost, of Her Britannic Majesty’s ship Satellite, was the commissioner on the part of Great Britain. After divers conferences with Mr. Campbell on the subject of the water-boundary, he addressed a letter to him under date the 28th of October, 1857, setting forth his objections to the adoption of the line of the Haro Channel. These are, in substance, that when the line from the initial point in the Gulf of Georgia proceeds in a southerly direction as far as 48° 45′ of north latitude, it meets a group of islands through which there are two passages. One of these, called Rosario Strait, is near the continent, and the other, called Haro Channel, is nearer Vancouver’s Island. He asserts that the only navigable channel separating the continent from Vancouver’s Island is Rosario Strait.
He claims that the channel contemplated by the treaty should possess three characteristics: 1st. It should separate the continent from Vancouver’s Island; 2d. It should admit of the boundary-line being carried through the middle of it in a southerly direction; 3d, It should be a navigable channel. To these conditions the Rosario Strait most entirely answers. He goes on to admit that the Haro Channel is also navigable, but on account of the currents and the want of anchorage-grounds, not so easily so. He asserts that that channel does not separate the continent from Vancouver’s Island, and that the line to reach that channel must proceed for some distance in a westerly direction.
Mr. Campbell replied on the 2d of November, 1857, that as the Haro Channel was pre-eminent in width, depth, and volume of water, this must have been the one contemplated by the treaty. It was known under its name since the first discovery, and was the only one usually designated by name on the maps in use at the time the treaty was under consideration, while the other channels only separate the islands in the group from each other; the Haro Channel for a considerable distance north of the Straits of Fuca, and where their waters unite, washes the shore of Vancouver’s Island, and is therefore the only one which, according to the language of the treaty, separates the continent from Vancouver’s Island.
The term southerly used in the treaty would not admit of the demarkation of the line in a due south direction through any channel. It [Page 313] was consequently to be presumed that the genera direction only was to be toward the south.
Rosaria Straits do not separate the continent from Vancouver’s Island, but some islands from others; although the relative merits of the navigability for sailing-vessels of the Haro Channel and Rosario Straits was not to be regarded as having any bearing on the determination of the question. Captain Alden, however, of the United States Navy, who, in the years 1853 and 1855, had made surveys of those waters, had officially reported the Haro Channel as the widest, deepest, and best. Reference is then made to the dispatch of Mr. McLane to Mr. Buchanan of the 18th of May, 1846, in which he reported that the line of the Haro Channel was to be proposed by the British government. Mr. Campbell thence infers that the object of the framers of the treaty was to run the line so as to avoid cutting off the southern cape of Vancouver’s Island by adopting the line through the Haro Channel. The speech of Mr. Benton in the Senate relative to the treaty shows the same understanding in regard to it.
Captain Prevost replied, under date of the 9th of November, that in his opinion the Rosario Channel was the only one that conformed to the language of the treaty, by separating the continent from Vancouver’s Island. The Haro Channel separates Vancouver’s Island from the continent. The usual terms of expression appear to be designedly reversed in the treaty, for the lesser is not separated from the greater, but the greater from the lesser. There is no navigable channel between the continent and the islands on the east of Rosario Straits, and, therefore, no such channel as the treaty calls for. From the Gulf of Georgia to the Straits of Fuca the line can be carried through Rosario Straits in a southerly, whereas through the Haro Channel it must take a westerly direction.
The information given by Mr. McLane was as to a probable proposition. The one adopted in the treaty was different.
He then refers to Preuss’s map of Oregon, printed by order of the Senate, in which the line is carried through Rosario Channel.
Mr. Campbell rejoined, under date of the 18th November, 1857, that in his judgment no change in the position of the words used in the treaty could make any difference in their meaning. Captain Prevost’s admission that the Haro Channel is undoubtedly the navigable channel which, at its position, separates Vancouver’s Island from the continent, might be regarded as tantamount to a settlement of the question. Although Mr. McLane and Mr. Benton were not the signers of the treaty, they had such an official connection with the negotiations that their evidence should have equal weight with that of the signers themselves. Immediately upon the receipt of Mr. McLane’s dispatch of the 18th of May, Mr. Pakenham submitted to Mr. Buchanan the draught of a convention. This draught was laid before the Senate, with all the correspondence upon the subject, and was approved by that body. The draught referred to is the same, word for word, with the treaty as signed. Mr. Campbell shows that Captain Prevost’s comment upon Mr. McLane’s dispatch, to the effect that supposing the original proposition to have been as reported by that gentleman it was designedly altered after discussion, to be without foundation. No such discussion could have taken place between Mr. McLane and Lord Aberdeen without being reported by the former; and none could have taken place between Mr. Pakenham and Mr. Buchanan, as the former was not authorized to enter into any. Preuss’s map had no official authority.
Captain Prevost replied, under date of the 24th of November, 1858, that [Page 314] the continent as well as the island must be regarded according to its natural signification and according to its natural position; and that when two channels exist between a continent and a particular island, the argument appeared irresistible that the channel contiguous to the continent was the channel separating the continent from the island, while the channel contiguous to the island is the channel separating the island from the continent. The inference that the Haro Channel was proposed by the British government because that-happened to be mentioned in Mr. McLane’s dispatch, was unwarrantable. He would be surprised if Captain Alden should not agree with him that Rosario Straits are preferable to Haro Channel for sailing-vessels. The treaty in the matter of the channel separating the continent from Vancouver’s Island was clear, and he could not admit any evidence on this subject to weigh with him that would lead to an interpretation that the precise terms of the treaty would not admit. Although he was firm in the conviction that Rosario Straits and not Haro Channel was the one contemplated by the treaty, he was willing to regard the Gulf of Georgia as one channel, and agree to a line passing through the middle of it, so far as the islands would permit.
Mr. Campbell rejoined, under date of the 28th of November, 1858, that the proposed instructions to the commissioners which accompanied Mr. Crampton’s note to Mr. Buchanan, of the 13th of January, 1848, contained the following sentence: “From that point you will carry on the line of boundary along the forty-ninth parallel of latitude to the middle of the channel between Vancouver’s Island and the continent.”
This, Mr. Campbell contends, shows the view of the British government within two years after the conclusion of the treaty. He adds that, in 1848, Rosario Straits was not claimed on the ground that there was anything peculiar in the wording of the treaty; nor was there any claim founded upon the supposition of a “designed alteration” of the original draught of the treaty by omitting the Haro Channel and substituting its present language. In opposition to Captain Prevost’s opinion that the words of the treaty were so peculiarly precise and clear as to point out unmistakably Rosario Straits as the channel, Mr. Crampton, speaking on the part of his government, says: “But between the Gulf of Georgia and the Straits of Fuca the line is less distinctly and accurately defined by the verbal description of the treaty.” In regard to this, Mr. Campbell quotes the following passage from Vattel: “If he who can and ought to have explained himself clearly and plainly has not done it, it is the worse for him. He cannot be allowed to introduce subsequent restrictions which he has not expressed.”
Mr. Campbell declined accepting Captain Provost’s proposition, and expressed the opinion that there was not the slightest probability that the British government, Captain Prevost, or any other person, would ever be called upon for a renewal of it.
Captain Prevost replied, under date of the 1st of December, 1857, that if the treaty was intended by the United States Government to accord with the correspondence of Mr. McLane and the speech of Mr. Benton, the general maxim which Mr. Campbell had quoted from Vattel would be more applicable to the United States than to the British government; for, if the former intended that the line should run through the Haro Channel, they should have taken care that it was so expressed “clearly and plainly “in the treaty. In conclusion, he proposed a conference, in order that it might be formally recorded that the commissioners were unable to agree; that Mr. Campbell had declined to accede to his proposition for a compromise, and, therefore, that the whole matter might be referred to their respective governments.[Page 315]
Mr. Campbell replied on the 2d of December, recapitulating his previous arguments, and concluding with the remark that he thought any proposition, with a view to concession on the part of United States, was hardly justifiable under the circumstances.
In a report to General Cass, Secretary of State, of the 25th of September, 1858, Mr. Campbell represents that the settlement of the question of the channel involves the sovereignty of the group of islands called the Haro Archipelago, between the Haro Channel and Rosario Straits, embraced in a space of about four hundred square miles. He then proceeds to show the importance of these islands, in a military and naval point of view, quoting official opinions of officers.
In a letter to Mr. Campbell of the 15th of June, 1858, Mr. Bancroft states that he was in Mr. Polk’s cabinet when the Oregon treaty was concluded, and that the general understanding, both in England and in the United States, was, that the British boundary was to extend to the middle of the Haro Channel.
In a full and elaborate report to General Cass of the 20th of January, 1859, Mr. Campbell reviewed his proceedings as commissioner, and commented on the respective claims of the parties to the channel mentioned in the treaty. In the course of his letter Mr. Campbell expresses an opinion that the compromise line offered by Captain Prevost would not be a suitable channel for a boundary, with such channels as Haro and Rosario in its vicinity. In support of this opinion, he states the maximum and minimum width of the several channels, and refers to other important circumstances.
With a letter to the Department of the 21st of June, 1859, Mr. Campbell transmitted a copy of the Coast Survey chart of the space between the continent and Vancouver’s Island, corrected by the results of a survey of the same space by Captain Richards, of the British navy, acting on behalf of his government. In the course of his letter, Mr. Campbell represents that the map adverted to shows that there is still another channel nearer to Vancouver’s Island than that of Haro, which answers the description in the treaty as separating the continent from that island. The lines on the map indicate, according to Mr. Campbell’s statement—
- The boundary-line contemplated by the treaty, as shown by contemporaneous evidence, through the middle of the Gulf of Georgia and Haro Channel, the main channel between the continent and Vancouver’s Island.
- The boundary-line claimed by the British commissioner through the Gulf of Georgia and Rosario Straits, on the pretense that the channel which separates the continent from Vancouver’s Island means the channel nearest to the continent.
- The boundary-line proposed by the British commissioner as a compromise through the Gulf of Georgia, a part of the Haro Channel, and the channel east of San Juan Island.
- The boundary-line which might be claimed by the United States in accordance with the letter of the treaty, or by adopting an interpretation of it, so as to carry out the sole object of the deviation of the boundary-line from the forty-ninth parallel to the ocean, through the Straits of Fuca, viz, to give the whole of Vancouver’s Island to Great Britain.
- Track of steamers plying between Victoria and Fraser River since the discovery of gold.
A copy of instructions of the British government to Captain Prevost was obtained through Mr. Dallas, United States minister at London. [Page 316] They bear date the 20th December, 1856, and express the opinion that the Rosario Channel was the boundary contemplated by the treaty. They use the following language: “If, however, the commissioner of the United States will not adopt the line along Rosario Straits, 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 Straits as the channel indicated by the words of the treaty cannot be substantiated, you would be at liberty to adopt any other 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.”
A copy of these instructions having been communicated to Mr. Campbell, he remarks, in a letter to the Department of the 4th of August, 1859, that they show that Captain Prevost was by them virtually, if not positively, prohibited from adopting the Haro Channel as the boundary channel intended by the treaty.
With a letter to the Department of the 18th of August, 1858, Mr. Campbell communicated information of the landing of a company of United States troops, under command of Captain Pickett, on the island of San Juan, on the 26th of July. He also communicated a copy of the protest of Governor Douglas, of Vancouver’s Island, against the military occupation of that island by any other than a British force.
In a letter of Mr. Drinkard, Acting Secretary of War, to General Harney, of the 3d of September, 1859, the occupation of San Juan Island by a military force is not approved.
In a letter of Mr. Drinkard to General Scott, of the 16th of September, 1859, the wish of the President was referred to that he should take command of the military forces on the Pacific coast, and he was instructed that until the title to the island of San Juan could be adjusted it would be desirable for him to arrange for a joint occupation of that island.
This General Scott did, in a letter of the 25th of October, 1859, to Governor Douglas, of Vancouver’s Island. The proposition was at first declined, but was afterward practically acceded to by the landing of a body of British marines at the north end of the island. The joint military occupation has ever since continued.
Under date the 12th of May, 1859, Lord Lyons addressed a note to General Cass relative to attempts of citizens of the United States to establish themselves on the island of San Juan, and stated that his government trusted that the United States Government would, so far as it could, restrain them from attempting to settle, by unauthorized acts of violence, a question which there would probably be little difficulty in arranging by amicable communication between the two governments.
In an instruction to Lord Lyons of the 24th of August, 1859, Lord Russell referred to the disagreement between the American and British commissioners in regard to the demarkation of the water boundary, expressed regret that no map was annexed to the treaty of 1846, but stated that his government fully concurred with their commissioner that the line should run through Rosario Straits. He then proceeded to review the arguments on both sides, and concluded by proposing the same compromise line as that offered to Mr. Campbell by Captain Prevost, and by declaring that his government must, under any circumstances, maintain its right to the island of San Juan.
This paper was fully replied to by General Cass in an instruction to Mr. Dallas of the 20th of October, 1859. After adverting to circumstances [Page 317] leading to the treaty of 1846, and stating that the object of the United States in accepting that instrument was to allow to Great Britain the whole of Vancouver’s Island, but to exclude her from any other territory south of the parallel of 49°, the instruction goes on to remark that the friendly sentiments expressed in Lord Russell’s paper do not harmonize with the declaration which it contained that the British government would, under any circumstances, maintain its right to the island of San Juan. If this declaration should be insisted on, said General Cass, it must terminate the negotiation at its threshold. The proposition for compromise assumes that the disagreement in respect to the treaty is irreconcilable. The failure of the commissioners to agree was in part, at least, imputable to the peculiar character of the instructions to the British commissioner. At the time of the negotiation of the treaty, all that the British government claimed was that the line should deflect from the forty-ninth parallel so far as to assign to them the whole of Vancouver’s Island. This was all that the American Government conceded. Mr. Buchanan had instructed Mr. McLane that, except for this, purpose, the President would never consent to bring the British boundary a single inch below the parallel of 49°, and no other purpose than this was anywhere’ avowed. The Haro is the only channel which would not leave something more to Great Britain south of the forty-ninth parallel than the southern cape of Vancouver’s Island. Whether the Haro was or was not the true channel in the opinion of the British negotiators, it was quite certain, from current testimony of both the American and British negotiators, that the Rosario Channel was not. The Douglas Channel, which was suggested by Lord Russel, is admitted to be an inferior one, scarcely capable of navigation, except by steamers, and was supposed to be recommended because it would leave the island of San Juan to Great Britain.
In an instruction to Lord Lyons, of the 16th of December, 1859, Lord Russell replied that his government could not concur in the conclusions to which General Cass had arrived. What Lord Aberdeen meant by King George’s Sound, down which the line was to run, might be clearly inferred from a letter addressed to him at the time of the conclusion of the treaty, by Sir John Pelly, then the governor of the Hudson’s Bay Company, of which letter the following is an extract: “With respect to the other islands, the water demarkation line should be from the center of the water in the Gulf of Georgia, in the forty-ninth degree, along the line colored red as navigable in the chart made by Vancouver until it reaches a line drawn through the center of the Straits of Juan de Fuca. The only objection to this is giving to the United States the valuable island of Whidbey.” However the British government might be disposed to rely on the instructions of Lord Aberdeen and the letter of Sir John Pelly, and the United States on the statements of Mr. McLane and Mr. Benton, it must be confessed on both sides that the interpretation of one party, without the expressed assent of the other, goes but very little way to remove the difficulty. Lord Russel concludes his paper with a direction to renew the offer of compromise.
General Cass, in an instruction to Mr. Dallas, of the 4th of February, 1860, after adverting to other points in the instruction of Lord Russell to Lord Lyons of the 16th of December, 1859, states that, as Lord Russell repeats his original declaration that no settlement of the question would be accepted by the British government which did not provide for the reservation of the island of San Juan to the British Crown, the President had directed him to state that the United States would, under all circumstances, maintain their right to the island in controversy until [Page 318] the question of title to it should be determined by some amicable arrangement between the parties.
In an instruction to Lord Lyons of the 9th of March, 1860, Lord Russell refers to his declaration contained in his dispatch of the 21th of August, to which exception was taken by General Cass, and was put forward as a ground for declining to continue the discussion. Lord Russell expresses disappointment that the explanation which Lord Lyons was authorized to offer was not accepted as satisfactory, “Her Majesty’s government maintain that either the Canal de Rosario or the Douglas Channel might be held to be the boundary contemplated by the treaty; but that the Canal de Haro neither fulfills the intention of the British negotiators of the treaty, nor is consistent with the words of the treaty itself.”
In an instruction to Mr. Dallas of the 23d of April, 1860, General Cass remarked that, as Lord Russell had acknowledged that the expression objected to in his dispatch of the 24th of August, 1859, was not intended to convey the meaning which this Government had attached to it, the subject was now free from the embarrassment occasioned thereby. General Cass also referred to the speech of Sir Robert Peel on the treaty in the House of Commons on the 29th of June, 1846, as showing that the deflection in the line from the parallel of 49° had not left Great Britain in the possession of any other island than that of Vancouver. “While the President, therefore, feels himself obliged to decline to adopt the Douglas Channel as the boundary of the two countries between Vancouver’s Island and the continent, and to maintain the Canal de Haro as the true boundary in that quarter, which was intended by the treaty, he is glad to believe that no serious injury can be inflicted on British interests by the adoption of the American line.”
In a note to General Cass of the 10th of December, 1860, Lord Lyons proposed that the question of the water boundary should be referred to the arbitration of a reigning prince or sovereign state.
No reply appears to have been made to this note.
No diplomatic discussion of the question of boundary has since taken place.