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Appendix No. 42.

the territory between the two countries by the forty-ninth parallel and the straits of Fuca,” so tbat "the cape of Vancouver's Island would be surrendered to Great Britain." This was exactly the proposition of Mr. Everett.

On the 15th of May, 1846, information of the notice for terminating the convention of 1827 was received by the British ministry in London. For four years Lord Aberdeen had been striv- Ap ing to close this question of boundary. He had privately and p. 46, 1. 15-18, 24.

publicly censured his subordinate, Mr. Pakenham, at Washington, [18] for rejecting the parallel of forty-nine. * He had taken pains to

learn what deviation from that parallel the United States might accept. The Secretary of State for the United States, after minute inquiry concerning the probable vote of the Senate, had promised not at once to reject the offer of the line proposed by Mr. Everett, and not to listen to any demand for a larger concession. This had been formally communicated to the British Government by Mr. MacLane, the American minister at London. And now, within two days after receiv.

P. 46, 1. 23–27. ing news of the termination of the convention of 1827, Lord Aberdeen held a lengthened conference with Mr. MacLane, in which the nature of the proposition he contemplated submitting for an amicable settlement of the Oregon question " formed the subject of a full and free conversation.” Mr. MacLane was a calm and experienced statesman, trained in business, exact in his use of words, careful especially in reporting what was said by others. Lord Aberdeen in the House of Lords publicly expressed his esteem for him, Appendix No. 45. founded on an acquaintance which dated from fifteen or six. p. 51, 1. 30-33 teen years before.

With this knowledge of Mr. MacLane's character, and of the confidence reposed in him by Lord Aberdeen, I request the imperial arbitrator to take in hand the map of the Oregon territory by Wilkes, which had been published in England as well as in America in 1845, and which was the latest, most authentic, and best map of the Territory, as well as the only one recognized by the Appendix No. 41, American Senate; and with this map in hand to read the p. 46, 1. 6, 7. following extract from Mr. MacLane's official report of the interview, made on the 18th of May, 1816 :

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 Appendix No. 12, part of this Government for a partition of the territory in dispute, p. 47, 1. 3-11. The proposition, most probably, will offer substantially:

First. To divide the territory by the extension of the line on the parallel of [19] 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.

P. 47,1, 1, 2.

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Here follow other clauses conceding to the Hudson Bay Company a temporary use of the Oregon River for navigation, with other advantages, and protection to British subjects who would suddenly come under the jurisdiction of the United States. To these clauses the phrase “ most probably” applies, for they were not precisely ascertained; but not to the boundary; on that point the further statement of Mr. MacLane in the same dispatch leaves no room for a doubt. His words are:

During the preceding administration of our Government, the extension of the line on the forty-ninth parallel to the straits of Fuca, as now proposed by 4 - 90 Lord Aberdeen, was actually suggested by my immediate predecessor, (Mr. Everett,) as one he thought his Government might accept.

Now what the proposal of Mr. Everett had been, we know from the

Appendix No. 45

P. 49.

2. 50.

citations which I have made from his dispatches; and I have already referred to the fact that he had drawn the line of demarkation upon the map, and specially directed the attention of Lord Aberdeen to it. On the same day Lord Aberdeen sent the treaty which Mr. Pakenham No. 43. was to invite Mr. Buchanan to sign.. In the accompanying

instruction to Mr. Pakenbam he accepted the parallel of No. 45, p. 51. I. 4-6 Wro. 490 as the radical principle of the boundary, and described

the line as a line of demarkation " leaving the whole of No. 43, D. 50, 1. 6, 7. Vancouver Island with its ports and harbors in the posses. sion of Great Britain."

A suspicion of ambiguity could not lurk in the mind of any one. Mr. Benton found the language so clear that he adopted it as his own. In his speech in the Senate on the day of the ratification of the treaty, he said:

The first article of the treaty is in the very words which I myself would have [20] used, if the two governments had *left it to me to draw the

boundary line between them. * * * The line established by Appendix No. 41, the first article follows the parallel of 49° to the sea, with a slight deflection, through the Straits of Fuca, to avoid cutting off the south end of Vancouver's Island. * * * When the line reaches the channel which separates Vancouver's Island from the continent, it proceeds to the middle of the channel, and thence, turning south, though the channel de Haro, (wrongly written Arro on the maps,) to the Straits of Fuca, and then west, through the middle of that strait, to the sea. This gives us * * * the cluster of islands between de Haro's Channel and the coutinent.

The language of the treaty seemed perfectly clear to the Senate, to the President, to his Secretary of State, and to every one of his constitutional advisers, as departing from the line of the parallel of 490 only so far as to yield the southern extremity of Vancouver's Island, and no more. And so it was signed on the 15th of June, 1846, and returned to England for the exchange of ratifications. In the House of Commons Lord Palmerston welcomed it as honorable

die Noon to both countries; Sir Robert Peel quoted from a dispatch 54, 1. 13, 14. which proved that he was aware of the three days' debate in the American Senate on the treaty before its approval. He cited every word of the article on the boundary, and interpreted it thus:

Those who remember the local conformation of that country will understand that P. 53, l. 31-38.

that which we proposed is the continuation of the forty-ninth parallel

of latitude till it strikes the Straits of Fuca; that tbat 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 chanuel shall be the future boundary, thus leaving us in possession of the whole of Vancouver's Island, with equal right to the navigation of the straits. [21] *MR. BUCHANAN AND SIR ROBERT PEEL BELIEVED THEY HAD

CLOSED EVERY CAUSE OF DISSENSION. It had been the special object of Mr. Buchanan to leave nothing in Appendix No. 46. the treaty which could give occasion to future controversy. p. it, l. 25-28. And on the night before Sir Robert Peel retired from office, never again to resume it, he spoke of the treaty as having averted the dreadful calamity of a war between two nations of kindred origin and common language, and having at length “ closed every cause of dissenP. 54,1.34, 35. sion between the two countries." All Great Britain, all the. P. 35, 1. 1-3. United States, were gladdened by the belief that at last every controversy between the two nations had come to a happy end.

THE MINISTRY OF LORD JOHN RUSSELL RENEWS 'DISSENSION. And yet it was not so. My country has had no serious difficulties on its limits with any power but Great Britain. When its boundary on the

Appendix No.

4-6, 22-25.
P. 53, L. 16. 17.

south with Spain was adjusted by treaty, not a difference arose, though the line extended from sea to sea. When, afterward, the southern boundary was regulated with Mexico under a treaty most imperfect in its descriptions, commissioners unrestrained by instructions promptly settled the line. It is with Great Britain alone that obstinate dissensions on boundaries, extending from the Gulf of Saint Lawrence to the Pacific, have exercised disturbing influences for sixty-four years. At last we thought ourselves assured of quiet on that side also by the treaty of 1846; and though its terms were not altogether satisfactory, the country, in the expectation of rest, accepted cheerfully and unanimously the action of its Government. Yet, after a pause of bardly two years, the strife was re-opened by the ministry which succeeded that of Sir Robert

Peel. Under instructions from Lord Palmerston, the British min(22) ister at Washington on the *13th of January, 1848, in a proposed

draught of instructions to commissioners for settling the boundary, indirectly insinuated a claim that the line of boundary should be drawn on the channel through which Vancouver in 1792 had sailed from Admi. ralty Inlet to Birch's Bay.

This insinuation took the American Government by surprise. The history of the negotiation shows that no such line was suggested by either side to the other. Vancouver was an explorer, who examined every inlet and bay and passage, not a merchant seeking the shortest, most natural, and best passage. Nothing justifies a reference to his course of sailing from one interior bay to another, as the line of the treaty. The suggestion is in open conflict with the law of Appendix nations. The draught of the treaty was made entirely, as even to the minutest word, by the British ministry, and was P. 64, 1. 19, 20. signed by both parties without change. The British government cannot, therefore, take advantage of an ambiguity of their own, otherwise the draught of the treaty would have been a snare. Such is the principle of natural right, such the established law of belli et pacis, III, 20, nations. Hugo Grotius lays down the rule that the interpretation must be made against the party which draughted the conditions : « Ut contra eum fiat interpretatio, qui conditiones Vattel. lv. 11. 2 elocutus est." But no one has expressed this more clearly 26. than Vattel, who writes:

Voici une règle qui coupe court à toute chicane: Si celui qui pouvoit et devoit s'expliquer nettement et pleinement, ne l'a pas fait, tant pis pour lui: il ne peut être reçu à apporter subséquemment des restrictions qu'il n'a pas exprimées. C'est la maxime du droit romain: pactionem obscuram iis nocere, in quorum fuit potestate legem apertius conseribere. L'équité de cette règle saute aux yeux; sa nécessité n'est pas moins

évidente. Nulle convention assurée, nulle concession ferme et solide, si on peut [23] les rendre *vaines par des limitations subsequentes, qui devoient être énoncées

dans l'acte, si elles étoient dans la volonté des contractans. “Here is a rule which cuts short all chicanery: If he wbo could and should express himself plainly and fully, has not done so, so much the worse for him; he cannot be permitted subsequently to introduce restrictions which he has not expressed. It is the maxim of Roman law: An obscure contract harms those in whose power it was to lay down the law more clearly. The equity of this rule is self-evident; its necessity is not less obvious. There can be no assured convention, no firm and solid concession, if they can be rendered vain by subsequent limitations, which ought to have been announced in the act, if they existed in the intention of the contracting parties."

PLEA FOR THE INTEGRITY OF SIR ROBERT PEEL'S MINISTRY. And can it be true, that Sir Robert Peel and Lord Aberdeen were insincere in their professions of an earnest desire to settle the boundary question in Northwest America ? Did they put into the core of the treaty which they themselves framed, words interpreted in one way by

H. Grotius. De jure

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all Americans and by themselves in public, and secretly interpreted by themselves in another? When Sir Robert Peel, on the last night of his official life, in the face of political enemies and friends, cast up the account of his ministry for the judgment of posterity, and declared, in the

most public and solemn manner, that he had closed every p. $1,19.133-35.o. 33, cause of dissension between Great Britain and the United Appendix No. 52,

States," had he indeed planted the seed of embittered discord in the instrument that he and his associate minister claimed as their own work, and extolled as a convention of peace ?

My respect for Sir Robert Peel and his administration forbids [24] the thought that they put any ambiguity into the treaty *which

they themselves draughted. There attaches to human language. such imperfection that an acute caviller may dispute about the meaning of any proposition. But the words of the present treaty are so singularly clear that they may claim protection under the first general maxim • Vettel liv. II. 1. of international law on the subject of interpretation :

"Qu'il n'est pas permis d'interpréter ce qui n'a pas besoin d'interprétation.”


8 263.

The words of the treaty are as follows:
From the point on the forty-ninth parallel of north latitude, where the boundary

laid down in existing treaties and conventions between the United Appendix No. 1, P, States and Great Britain terminates, the line of boundary between the

territories of the United States and those of Her Britannic Majesty shall be continued westward along the said forty-ninth parallel of north latitude, to the middle of the channel which separates the continent from Vancouver Island, and thence southerly through the middle of the said channel, and of Fuca's Straits, to the Pacific Ocean : Provided, however, That the navigation of the whole of the said channel and straits south of the forty-ninih parallel of north latitude remain free and open to both parties.


The language of the treaty, taken as a whole, admits no interpretation but the American. The radical principle of the boundary is the fortyninth parallel of north latitude, and the only reason for departing from that parallel was to yield the whole of Vancouver Island, and no more, to the power which would already possess the greater part of that island. To express this line concisely, in both countries it was described as the

line of the “forty-ninth parallel and Fuca's Straits." This short [25] form of expression occurs many times in the dispatches *of Mr.

MacLane; in the instructions of Mr. Buchanan; in the letters of Mr. Bates from London ; in an article in the London Quarterly Review, written in February, 1846, and published in March; and, finally, in the speech of Sir Robert Peel, on the 29th of June, 1846, which I have already quoted. The description of the line as that of the forty-ninth parallel and Fuca's Straits” was not only the usage of the day; it was also well chosen for all time. The forty-ninth parallel can be found as long as the sun shall continue in the heavens; Fuca's Straits end at the southeast cape of Vancouver Island, and will end there till nature shall. heave with a convulsion. If the name of Haro does not specially appear in the treaty, let it be borne in mind that neither does the name of the Gulf of Georgia.


The words of the description, considered collectively, establish the American interpretation of the treaty and exclude every other. The same result follows from the consideration of each separate word. When

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