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“ Following the above rules for the interpretation of the treaty before us, so far as it devolves upon us to carry it into effect, I will proceed to prove, by contemporaneous evidence of the highest authority, that the Canal de Haro was the channel proposed by the British Government and accepted by the United States Government, as the one through which the boundary line was to be traced; and that the language of the treaty, drawn up by the British Government, was intended to convey that fact, and was so understood by the Government of the United States.
“The correspondence in relation to the treaty of June 15th, 1846, published by order of the Senate of the United States, will show, conclusively, that the reason or motive for not carrying the forty-ninth parallel as a boundary line to the Pacific Ocean was that the British Government refused to surrender the southern cape of Vancouver's Island, which was claimed by the American Government. The latter finally agreed to the proposal of the former, to make such a deflection from the forty-ninth parallel as would avoid dismembering the island. It is certainly fair to suppose that, in carrying out this intention, the nearest natural boundary would be sought by the negotiators, which the maps would show to be the Canal de Haro.
“Mr. McLane, the ambassador of the United States sent specially to Great Britain to aid in settling the Oregon boundary question, after nearly a year's negotiation, communicates (May 18th, 1846) to Mr. Buchanan, then Secretary of State, and one of the signers of the treaty, the nature of the proposal made by Lord Aberdeen for a settlement of the question, as follows:
" I have now to acquaint you, after the receipt of your despatches of 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 as follows :
"61st. To divide the territory by the extension of the line on the parallel of forty-nine to the sea—that is to say, the arm of the sea called Birch's Bay, thence by the Canal de Haro and Straits of Fuca to the ocean, and confirming to the United States—what, indeed, they would possess without special confirmation—the right freely to use and navigate the strait throughout its extent.'
“Mr. McLane also states, substantially, the other articles of the treaty, and a comparison of the treaty itself with his statement of their substance, will show how accurately he described them, though he does not profess to give the exact words. He evidently fully understood the nature of the proposition to be made; and his views were communicated to his Government for the thorough understanding of the meaning of the language that would be used in the projet of the treaty. The very general description he gives of the water line shows, what we know must have been the case, that the framers of the treaty had before them only the general maps of the coast, and could not pretend to describe with accuracy the minute courses of the line."
“ In the same letter he says :
"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, as one he thought his Government might accept.'
“He again says:
“I may add that I have not the least reason to suppose it would be possible to obtain the extension of the forty-ninth parallel to the sea, so as to give the southern cape of Vancouver's Island to the United States.'
6 From the foregoing extracts it will be clearly perceived
that the object of the projectors of the treaty was to run the line so as to avoid cutting off the southern cape of Vancouver's Island, and that the Canal de Haro was selected as the channel adapted to that object. President Polk, before accepting the proposal submitted by the British Government (received at the same time with Mr. McLane's letter), laid it before the Senate (the co-ordinate branch of the treaty-making power) for their advice on the subject, and, with his message, transmitted it; he also submitted Mr. McLane's letter of the 18th May, explanatory of the proposition or projet of the treaty. And it is presumed he did so that the Senate might clearly understand the nature of the proposal upon which their advice was asked. They advised him to accept it, and, in accordance with their advice, the treaty was adopted by him, and submitted to the Senate for its ratification.
“To show the Senate's understanding of the meaning to be attached to the words of the treaty—the channel which separates the continent from Vancouver's Island'-I must call your attention to the language of Mr. Benton, one of the leading members of that body. In his speech on the treaty, the day of its ratification, he says :
“ The line established by the first article follows the parallel of forty-nine degrees to the sea, with a slight deflection through the Straits of Fuca, to avoid cutting the south end of Vancouver's Island.
66. The first article of the treaty is in the very words which I myself would have used if the two Governments had left it to me to draw the boundary line between them.'
“And in describing the line he says :- When the line reaches the channel which separates Vancouver's Island from the continent (which it does within sight of the mouth of Fraser River), it proceeds to the middle of the channel, and thence, turning south, through the Channel de Haro (wrongly written Arro on the maps) to the Straits of Fuca and the west, through the middle of that strait, to the sea. This is a fair partition of these waters, and gives us everything we want; namely, all the waters of Puget Sound, Hood's Canal, Admiralty Inlet, Bellingham Bay, Birch Bay, and, with them, the cluster of islands, probably of no value, between de Haro channel and the continent.'
“ After reviewing the other articles of the treaty, Mr. Benton concludes :- In my high and responsible character of constitutional adviser to the President, I gave my opinion in favour of accepting the propositions which constitute the treaty. The first article is in the very terms which I would have used, and that article constitutes the treaty. With me it is the treaty.'
“I have thus presented to you, in writing, the evidence I laid before you during our discussions—that the Canal de Haro must be the channel referred to in the treaty, through the middle of which the boundary line is to be traced. This evidence is entitled to the greatest weight, considering the official positions occupied by Mr. McLane and Mr. Benton during the negotiation and ratification of the treaty, and is conclusive with me.
“I am not aware of any evidence going to show that Rosario Strait was at all in the thoughts of the negotiators of the treaty, or that it was the intention or understanding of the two Governments that the boundary line was to pass through it. The only claim I have been able to find, on the part of the British Government, that such was the case, is contained in a letter of Mr. Crampton to the Secretary of State (Mr. Buchanan) dated January 13th, 1848, in which he calls the attention of our Government to the expediency of endeavouring to arrive at an early settlement of everything connected with the Oregon boundary question, and particularly of the boundary line between the continent and Vancouver's Island. Mr. Crampton's letter will be found in the executive documents of the House of Representatives for 1851, accompanying the message of President Fillmore for that year. In that letter Mr. Crampton gives his opinion as to the meaning of the words, the channel which separates the continent from Vancouver's Island.' He says :
“In regard to that portion of the boundary line (the water boundary) a preliminary question arises, which turns upon the interpretation of the treaty, rather than upon the result of local observations and surveys.
" The convention of June 15th, 1846, declares that the line shall be drawn down the middle of the channel which separates the continent from Vancouver's Island; and upon this it may be asked what the word channel was 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 only one channel, that, namely, which was laid down by Vancouver on his chart, has, in this part of the gulf, been hitherto surveyed and used ; and it seems natural to suppose that the negociators of the Oregon Convention, in employing the word channel, had that particular channel in view.'
“From the above extracts from Mr. Crampton's letter, written within two years after the conclusion of the treaty, it will be perceived that no evidence is presented to show that the channel called Rosario Strait was the one intended by the negotiators. If there had been any evidence that such was their intention it would undoubtedly have been produced. But Mr. Crampton is mistaken even in his assumption that Vancouver's channel was the only one in that part of the gulf that had been hitherto surveyed and used; hence his inference that the negotiators of the Oregon Convention, in employing the word channel, had that particular channel in view, falls to the ground. The Canal de Haro had been both surveyed and used by the Spanish Government and our own.
“Mr. Crampton, at the conclusion of his letter, remarks that, as the question is one of interpretation, rather than of local observation and survey, it ought, in the opinion of Her Majesty's Government, to be determined before the commissioners go out. It would thus appear that the British Government regard an interpretation of the treaty as necessary to an understanding of the negotiators in employing the word channel.
“ Having in this communication, as in our recent discus