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surrender, certain other rights which she possesses (as, for instance, to the islands lying off the coast), the obvious answer is that, inasmuch as she did not specifically surrender those rights under the last-mentioned treaty, it is too late to argue as to what ought to have been, or what was intended to have been further provided thereunder.
To sum up this chapter, Great Britain formerly claimed a right of joint occupancy, in common with other states, in respect of the territory lying between the 42nd and 49th parallels, and the islands adjacent thereto: it remains to be seen how those rights were affected by the treaty about to be described.
SUBSEQUENT to the passing of the last mentioned convention, new discussions were raised between the Governments of Great Britain and of the United States, () and as a result thereof a treaty was concluded between them on the 15th June, 1846.
The 1st article provided as follows:(3)—
“From the point on the forty-ninth parallel of north latitude, where the boundary laid down in existing treaties and conventions between the United 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's Island, and thence southerly, through the middle of the said channel, and of Fucas Straits, to the Pacific Ocean. Provided, however, that the navigation of the whole of the said channel and straits, south of the forty-ninth parallel of north latitude, remain free and open to both parties.”
The second article provided for the free navigation of the Columbia River by the Hudson's Bay Company, and the British subjects trading with them, from the forty-ninth parallel of north latitude to the ocean.
The third article provided that the possessory
(1) The correspondence between the two Governments will be found in a Blue Book of the year 1846, entitled, “Correspondence relative, &c., to the Oregon Territory."
(3) American State Papers, p. 2.
rights of the Hudson's Bay Company, and all other British subjects, to the territory south of the said forty-ninth parallel, should be respected.
The circumstances, under which this treaty was made and signed, are explained in a memorandum subsequently drawn up by Sir Richard Pakenham, the negotiator thereof on the part of Great Britain, as follows:
“I have examined the papers put into my hands by Mr. Hammond, relating to the line of boundary to be established between the British and United States possessions on the north-west coast of America, and I have endeavoured to call to mind any circumstance which might have occurred at the time when the Oregon treaty was concluded (15th June, 1846) of a nature either to strengthen or invalidate the pretension, now put forward by the United States Commissioner, to the effect that the boundary contemplated by the treaty would be a line passing down the middle of the channel, called Canal de Haro, and not, as suggested on the part of Great Britain, along the middle of the channel called Vancouver's or Rosario Strait, neither of which two lines could, as I conceive, exactly fulfil the conditions of the treaty which, according to their literal 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's Island. And I think I can safely assert that the treaty of 15th June, 1846, was signed and ratified without any intimation to us whatever, on the part of the United States Government, as to the particular direction to be given to the line of boundary contemplated by Article 1 of that treaty.
“All we knew about it was that it was to run through the middle of the channel which separates the continent from Vancouver's Island, and thence southerly through the middle of the said channel, and of Fuca Strait to the Pacific Ocean.'
" It is true that in a despatch from Mr. McLane, then United States Minister in London, to the Secretary of State, Mr. Buchanan, dated 18th May, 1846, which despatch, however, was not made public until after the ratification of the treaty by the Senate, Mr. McLane informs his Government that the line of boundary about to be proposed by Her Majesty's Government, would probably be substantially to divide the territory by the extension of the line on the parallel of fortynine degrees 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.'
" It is also true that Mr. Senator Benton, one of the ablest and most zealous advocates for the ratification of the treaty (relying, no doubt, on the statement furnished by Mr. McLane), did, in a speech on the subject, describe the intended line of boundary to be one passing along the middle of the Haro channel.
“But, on the other hand, the Earl of Aberdeen, in his final instructions, dated 18th May, 1849, 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 centre of King George's Sound and the Straits of Fuca to the Pacific Ocean.'
"It is my belief that neither Lord Aberdeen nor Mr. McLane, nor Mr. Buchanan, possessed at that time a sufficiently accurate knowledge of the geography or hydrography of the region in question to enable them to define more accurately what was the intended line of boundary than is expressed in the words of the treaty, and it is certain that Mr. Buchanan signed the treaty with Mr. McLane's despatch before him, and yet that he made no mention whatever of the Canal de Haro as that through which the line of boundary would run, as understood by the United States Government.
“My own despatch of that period contains no observation whatever of a tendency contrary to what I thus state from memory, and they, therefore, so far, plead in favour of the accuracy of my recollection."
This document shows that the contracting parties were quite unaware of the importance of the question, and were not accurately acquainted with the geography of the district with which they were dealing.
It appears that at the time this treaty was made (1) only one of the two straits above mentioned had been surveyed and used, viz., the Rosario Strait, and it would certainly seem to be the natural view to take of the intention of the negotiators of the treaty, that the word “channel” therein used had reference to that strait. Some time elapsed before any attempt was made to carry out the terms of the treaty, and to mark out the boundary line therein stipulated.
A survey of the so-called Gulf of Georgia was, however, set on foot by the British Government, but the same does not appear to have proceeded with very great rapidity.
At length, after some correspondence on the subject between the two Governments, Mr. Crampton, the then British Minister at Washington, was instructed to propose that Commissioners should be appointed for the purpose of carrying down such parts of the boundary line as should, on consultation, seem advisable to the two Governments. Accordingly, on the 13th January, 1848, he wrote to Mr. Buchanan a letter, from which the following is an extract :(*)—
“ From the lake of the woods to the Gulf of Georgia
(1) American State Papers, p. 42 ; Letter of Crampton.
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