United States Secretary of State. It is designed to bring out the facts which will be seen in the course of this Statement to be of cardinal importance, namely, that the Treaty was formally negotiated at Washington between Mr. Pakenham and Mr. Buchanan; that it was on two distinct occasions discussed and approved by the Senate of the United States, in their capacity, under the Constitution, of a co-ordinate branch of the treaty-making power; that the project or draught of the Treaty was prepared in London by Lord Aberdeen, and sent to Mr. Pakenham, as embodying the proposal which Mr. Pakenham was instructed to make to the Government of the United States; that this project was, as regards the words now in discussion, identical with the Treaty as signed and ratified; and that, although Mr. MacLane was not formally empowered to conduct negotiations in the matter on behalf of his Government, yet Lord Aberdeen discussed with him the nature of the proposal which Her Majesty's Government contemplated making to the United States, and even showed him the project of the Treaty before it was sent to Mr. Pakenham.2

I.

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

6. When, on one occasion in the course of this long controversy between the two Governments, Mr. Cass, the United States Secretary of State, had put forward an assumption like this of Mr. Bancroft, Lord John Russell, then Her Majesty's Principal Secretary of State for For eign Affairs, said:3

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

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

1 For the convenience of the Arbitrator, there are appended to the Historical Note, (1) a Chronological List, showing the names and dates of appointment of the various Principal Secretaries of State for Foreign Affairs in Great Britain and British Ministers at Washington, and of the various Presidents and Secretaries of State of the United States and United States Ministers at London, from 1818 to 1872; and (2) a Memorandum relative to the origin and privileges of the Hudson's Bay Company, a corporation frequently named in this discussion.

2 Historical Note, p. xx.

3 Lord John Russell to Lord Lyons, December 16, 1859; read, and copy given, to United States Secretary of State.

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

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

Again, "where a right admits of different degrees, it is only the smallest degree which may be taken for granted." (Ist ein Recht verschiedener Abstufuugen fähig, so darf zunächst nur die geringste Stufe als zugestanden angenommen werden.") This rule of Heffter fits the present case so aptly, that it seems made for it. There being degrees in the departure from the parallel of 49, it must be taken that only the smallest degree was conceded.

The rule cited from Dr. Heffter's work does not touch the present case. This is not the case of a party making a concession in derogation of a clear and admitted right. It is the case of one concession set off against another; of a give-and-take arrangement.1

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

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

II.

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

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

12. There is no evidence that the prevention of the severance of Van-, couver's Island was the sole object of the arrangement. There [4] is nothing to support the allegation, *either in the preamble of

the Treaty, or in the Article describing the boundary; nor can it be sustained on the ground of anything contained in any of the contemporaneous documents exchanged between the Contracting Parties. It is true that the severance of Vancouver's Island by a boundary line drawn continuously on the forty-ninth parallel was the salient objection raised on the part of Her Majesty's Government to the United States proposal for continuing the boundary on that parallel from the Rocky Mountains to the Pacific. That proposal disregarded the physical conditions of the tract through which the line would run. It is true also that a deflection of the line so as not to sever Vancouver's Island was made in effect a condition sine qua non on the part of Her Majesty. It may even be admitted that the prevention of this severance was the motive for Article I of the Treaty. The nature of the motive is not necessarily a measure of the scope of the stipulation.

13. It is plain on the face of the Article that the Contracting Parties

1 Historical Note, p. viii.

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

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

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

Leaving the whole of Vancouver's Island, with its ports and harbors, in the possession of Great Britain.1

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

[5]

*16. Mr. Bancroft further cites (page 20) a passage from a report of a speech of Sir Robert Peel in the House of Commons: Those who remember the local conformation of that country will understand that that which we proposed is the continuation of the forty-ninth parallel of latitude till it strikes the Straits of Fuca; that that parallel should not be continued as a boundary across Vancouver's Island, thus depriving us of a part of Vancouver's Island, but that the middle of the channel shall be the future boundary, thus leaving us in possession of the whole of Vancouver's Island, with equal right to the navigation of the Straits.

It can scarcely be seriously contended that, because Sir Robert Peel, describing in a popular way the effect of the Treaty, spoke of it as leaving us in possession of the whole of Vancouver's Island, this

In this passage the words in italics are, in Mr. Bancroft's Memorial, printed with widened spaces between the letters, the mode of printing used in German to show emphasis, corresponding to the use of italics in the printing of English. The like observation applies to other passages cited in this Statement from Mr. Bancroft's Memorial.

amounts to a declaration by him that the effect of the Treaty is to exclude us from any possession other than Vancouver's Island, although lying within the future boundary, which he in the same breath specifies accurately as the middle of the channel.

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

Sir Robert Peel quoted from a dispatch which proved that he was aware of the three days' debate in the American Senate on the Treaty before its approval.

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

(i.) The deliberation of the Senate, reported in Mr. Pakenham's dispatch, read in part by Sir Robert Peel, was not the debate in which Mr. Benton's speech was made. The dispatch relates to the deliberation consequent on the preliminary Message of the President, asking the advice of the Senate, not to the debate on the ratification. It was the latter debate in the course of which Mr. Benton's speech was made. (ii.) Even if Mr. Benton's speech had been spoken before Mr. Pakenham's dispatch, and the fact had been mentioned therein, there would still be no force in Mr. Bancroft's suggestion, inasmuch as the debates in the Senate were secret, and the injunction of secrecy was not removed until after the date of the exchange of ratifications in London.1

(iii.) The dispatch of Mr. Pakenham (of which the part relating to this matter is printed by Mr. Bancroft in the extract from Sir Robert Peel's speech in Appendix No. 46 to the Memorial) gives no information as to the name of any speaker, or the particulars of any speech, in the Senate. It simply says: 2

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

ment.

[6]

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

III.

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

Ratifications exchanged July 17. Resolution of Senate removing injunction of secrecy, August 6. Earliest publication of Mr. Benton's speech known to Her Majesty's Government, August 29, (in Niles's National Register, a weekly newspaper published at Baltimore.)

2 Historical note, p. xix.

With this knowledge of Mr. MacLane's character, and of the confidence reposed in him by Lord Aberdeen, I request the Imperial Arbitrator to take in hand the map of the Oregon Territory by Wilkes, which had been published in England as well as in America in 1845, and which was the latest, most authentic, and best map of the territory, as well as the only one recognized by the American Senate, and, with this map in hand, to read the following extract from Mr. MacLane's official report of the interview, made on the 18th of May, 1846:

"I have now to state that instructions will be transmitted to Mr. Pakenham by the steamer of to-morrow to submit a new and further proposition on the part of this Government, for a partition of the territory in dispute.

“The proposition, most probably, will offer substantially:

"First, to divide the territory by the extension of the line on the parallel of fortynine to the sea, that is to say, to the arm of the sea called Birch's Bay, thence by the Canal de Arro and Straits of Fuca to the ocean."

*

*

*

Here follow other clauses, conceding to the Hudson's Bay Company a temporary use of the Oregon River for navigation, with other advantages, and protection to British subjects who would suddenly come under the jurisdiction of the United States. To these clauses the phrase "most probably" applies, for they were not precisely ascertained; but not to the boundary: on that point the further statement of Mr. MacLane in the same dispatch leaves no room for a doubt. His words are: "During the preceding Administration of our Government, the extension of the line on the forty-ninth parallel to the Straits of Fuca, as now proposed by Lord Aberdeen, was actually suggested by my immediate predecessor (Mr. Everett) as one he thought his Government might accept."

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

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

(i.) Mr. MacLane does not profess in his letter to report the words of the contemplated Treaty. He had seen the words, and knew that the Canal de Haro was not specified. He must then (it would seem) have considered the words he saw as amounting substantially (according to his own expression) to the proposal of a line by the Canal de Haro. He applied (whether accurately or not is not the question) his geographical information to the words shown to him, and inferred in his own mind that a line such as he saw described would run through the Canal de Haro. Under this impression he wrote to his Government. this is the true explanation of the facts, (and no other explanation is apparent,) his statement is of no weight on the question, what is the channel of the Treaty. That question, which is the question now under arbitration, remains unaffected by his letter. [7]

If

*(ii.) One circumstance in Mr. MacLane's letter tends to support this explanation, that is, his mention of Birch Bay, (incorrectly called by him Birch's Bay,) which he treats as being on the forty-ninth parallel. This geographical error (which is peculiar in this controversy to Mr. MacLane) has been accounted for thus by Mr. Archibald Campbell:1

Mr. MacLane, in tracing on the map the forty-ninth parallel "to the sea, that is to say, the arm of the sea called Birch's Bay," evidently supposed that the space between

'Mr. Archibald Campbell was Commissioner on behalf of the United States, when Commissioners were appointed (as mentioned in the preamble of Article XXXIV of the Treaty of Washington of 1871) on behalf of the two Governments in 1856, to determine the water boundary under the Treaty of 1846. The document of Mr. Campbell's quoted or referred to here and elsewhere in this Statement, is a report made by him to Mr. Cass, the United States Secretary of State, dated 20th January, 1859.