Arbitrator that it is of little, if any, weight. All that it amounts to is this, that some of the persons concerned on the part of the United States, on the occasion of the Treaty, anticipated that the Treaty, couched in the words proposed on one side and adopted on the other, would have a certain effect. These anticipations were not communicated at the time to Her Majesty's Government, or to any representative of that Government, and are, therefore, in no degree binding on them to their detriment.

25. But before parting from this branch of the subject, Her Majesty's Government will advert to two other pieces of evidence which have been in the course of the controversy adduced as "personal testimony contemporaneous with the Treaty," and which it is possible may be brought up again as such in the present discussion.

(1.) It is stated that, on 28th December, 1846, Mr. Bancroft (who was then the United States Minister at London) having written to Mr. Buchanan on the subject from London, Mr. Buchanan inclosed, in a letter to Mr. Bancroft, a traced copy of Wilkes's chart of the Straits of Arro, (that is, the Canal de Haro,) and added:

It is not probable, however, that any claim of this character will be seriously preferred by Her Majesty's Government to any island lying to the eastward of the Canal de Arro, as marked ju Captain Wilkes's map of the Oregon Territory.

The correspondence at this time between Mr. Bancroft and Mr. Buchanan, as far as the same is known to Her Majesty's Government, is set forth in the Appendix to this Statement.2 Her Majesty's Government submit to the Arbitrator that if this correspondence is proposed to be used on the present occasion as evidence on behalf of the United States, it ought to be rejected. First, it was from its nature entirely unknown at its dates to Her Majesty's Government; secondly, any declarations it contains were made post litem motam. Even if admitted, it would be of little value, as it cannot carry the case further than it is carried by Mr. MacLane's letter, on which Mr. Buchanan's statements in this correspondence explicitly rest. Mr. Buchanan does not use a word that can fairly be considered as conveying his personal testimony as to the intention of himself or his Government at the time of the making of the Treaty. Finally, if this correspondence is admitted as evidence, then Her Majesty's Government would ask that there be taken into consideration along with it the report of Mr. Buchanan's views in 1848, made by Mr. Crampton, Her Majesty's Minister at Washington, and the subsequent communication thereon made to the United States Government.3

(2.) The other piece of evidence referred to by Her Majesty's Government as having been adduced on behalf of the United States is the following:4

Mr. Bancroft, who was a member of President Polk's Cabinet when the Treaty was concluded, wrote repeatedly to Lord Palmerston after receiving this chart, [the traced copy of Wilkes's chart above mentioned,] and uniformly described the Straits of Arro 'as the channel through the middle of which the boundary is to be continued."

166

The communications between Mr. Bancroft and Viscount Palmerston here referred to were in July and November, 1848. The letters are set forth in the Appendix, together with the published

[13]

5

*

1 Mr. Cass to Mr. Dallas, 20th October, 1859; read, and copy given, to Her Majesty's Secretary of State for Foreign Affairs.

2 Appendix No. 2.

3 Appendix No. 3.

Mr. Cass to Mr. Dallas, 20th October, 1859; read, and copy given, to Her Majesty's Secretary for Foreign Affairs.

5 Appendix No. 4.

extract of a letter from Mr. Bancroft to Mr. Buchanan, describing a conversation which he (Mr. Bancroft) had had with Lord Palmerston. No statement of Mr. Bancroft made more than two years after the exchange of ratifications can be reasonably regarded as "personal testimony contemporaneous with the Treaty," in which category it is placed in the paper of Mr. Cass adducing it. The only use to which these documents could now be fairly applied would be to show that Lord Palmerston had then made to Mr. Bancroft admissions now binding on Her Majesty's Government. But the documents afford no ground for such a suggestion. The course taken by Lord Palmerston on Mr. Bancroft's second letter (in which he for the second time intimated his view that the boundary was to pass through the Canal de Haro) is conclusive as to Lord Palmerston's view of the position. It is plain, on the face of Lord Palmerston's answer to that letter, that the answer was deliberately framed so as not to amount to an admission of the claim put forward by Mr. Bancroft. If there could be any doubt of this, on the words of the letter, the doubt would be put an end to by a reference to the minutes on Mr. Bancroft's letter which preceded the preparation of the draught of Lord Palmerston's answer. On Mr. Bancroft's letter the Under-Secretary of State made the following minute for Lord Palmerston :

Shall this letter be acknowledged and Mr. Bancroft be thanked for it? And if so, shall the underlined assumption of Mr. Bancroft be passed over without observation? The underlined words were, "through the middle of which our boundary line passes." Lord Palmerston's minute in answer was as follows Thank him, and say that the information contained in these charts as to soundings will no doubt be of great service to the Commissioners to be appointed, by assisting them in determining where the line of boundary described by the Treaty ought to run.2

IV.

26. The next class of Mr. Bancroft's arguments is to be found in those passages in which he contends, in effect, that Her Majesty's Government are precluded from disputing the interpretation put on the Treaty by the United States, on the ground that the framing of the Treaty was (as he represents) the work of Her Majesty's Government.

27. He says, (page 22:)

The draught of the Treaty was made entirely, even to the minutest word, by the British Ministry, and was 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 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 elocutus est." But no one has expressed this more clearly than Vattel, who writes:

[14]

*28. Her Majesty's Government submit that the fact that the project of the Treaty emanated from them can be in no way used to their disadvantage. The Treaty, as it comes before the Arbitrator,

"If I notice General Cass's allusion to the letters which he says Mr. Bancroft repeatedly wrote to Lord Palmerston in 1848, it is only for the purpose of placing on record what, no doubt, Mr. Bancroft duly reported to his Government at the time, namely, that Lord Palmerston gave Mr. Bancroft distinctly to understand that the British Government did not acquiesce in the pretensions of the United States that the boundary line should be run down the Haro Channel."-Lord John Russell to Lord Lyons, 16th December, 1859; read, and copy given, to United States Secretary of State.

These observations may not be thought too minute when it is stated that Lord Palmerston's letter has been treated by Mr. Archibald Campbell as a virtual admission of the Canal de Haro as the Treaty channel.

must be regarded as the work of both parties. It was in the power of the President or of the Senate of the United States to insist on any alteration of the terms. They had abundant opportunity for considering the terms. The project was delivered by Mr. Pakenham to Mr. Buchanan, and considered by them in conference, on the 6th of June. It was sent by the President to the Senate on the 10th of June. It was considered by the Senate on the 10th, 11th, and 12th of June. The Treaty was signed on the 15th of June. It was sent to the Senate for ratification on the 16th of June. The Treaty, with various incidental motions, was before the Senate on the 16th, 17th, and 18th of June. Mr. Buchanan intimated to Mr. Pakenham that the President's message sending the project to the Senate might, and probably would, suggest some modifications in it. An entire counter proposal was made and divided on in the Senate; in the preliminary deliberation a formal motion was divided on for adding a proviso to Article II; and Mr. Buchanan made representations to Mr. Pakenham respecting the effect of that Article.1 Some of the reasons that prevailed with the Senate to induce them to adopt the project as it stood may be gathered from Mr. Benton's speech. He objected to any alteration (first) on the ground of the delay that would be caused, which would be injurious to the in terests, particularly the commercial interests, of the United States; and (secondly) because of the importance to the United States of closing the question, as they were then engaged in war with the Republic of Mexico. In all these circumstances, the words of the Treaty must be taken to be, as they in fact are, the words, not of Lord Aberdeen and Mr. Pakenham only, but the words also of Mr. Buchanan and of the President and Senate of the United States.

29. The words cited by Mr. Bancroft from Grotius's book are not applicable to the present case. The passage from which they are extracted relates to the case of dictation of conditions of peace. The whole chapter to which they belong is on that and cognate subjects. The sentence from which Mr. Bancroft's citation is taken reads in a more complete. form thus:

In dubio autem sensu magis est ut contra eum fiat interpretatio, qui conditiones elocutus est, quod esse solet potentioris: est ejus qui dat non qui petit conditiones pacis dare [dicere,] ait Annibal.

The passage produced by Mr. Bancroft from Vattel's work appears to Her Majesty's Government to be as capable of an application favorable to them as of one unfavorable to them.

30. In another place (page 30) Mr. Bancroft says:

A party offering the draught of a Treaty is bound by the interpretation which it knew at the time that the other party gave it. Lord Aberdeen cannot have doubted how the Treaty was understood by Mr. MacLane, by Mr. Buchanan, and by the Senate of the United States. "Where the terms of promise," writes Paley, whose work was long a text-book at Oxford, "admit of more senses than one, the promise is to be performed in the sense in which the promiser apprehended at the time that the promisee received it. This will not differ from the actual intention of the promiser, where the promise is given without collusion or reserve; but we put the rule in the above form to exclude evasion, wherever the promiser attempts to make his escape through some ambiguity in the expressions which he used."

[15]

*Her Majesty's Government are not here concerned to dispute the general proposition that a party offering to another the draught of a Treaty is bound by the interpretation which it (the party offering) knew at the time the other party gave to the draught. But they do dispute, and submit they have disproved, Mr. Bancroft's particular prop

Appendix No. 5, and Historical Note, p. xix.

osition. Lord Aberdeen (he says) cannot have doubted how the Treaty was understood by Mr. MacLane, by Mr. Buchanan, and by the Senate of the United States. Her Majesty's Government have proved that Lord Aberdeen did not know until after the exchange of ratifications (if personally he ever knew) of Mr. MacLane's letter to Mr. Buchanan, of Mr. Buchanan's letter to Mr. MacLane, or of Mr. Benton's speech (the views expressed in which Mr. Bancroft seems to ascribe to the Sen ate as a body.)

31. The doctrine contained in the passage cited by Mr. Bancroft from Dr. Paley's treatise on Moral and Political Philosophy appears to Her Majesty's Government generally true, but here irrelevant. That doctrine applies to a promise in the ordinary sense, a unilateral promise, or an engagement taken by one party wholly or mainly. It is not appropriate to the case of a contract, which the same treatise defines as a mutual promise. A few pages further in that treatise, the following is stated as "a rule which governs the construction of all contracts:"

Whatever is expected by one side, and known to be so expected by the other, is to be deemed a part or condition of the contract.

This rule Her Majesty's Government submit to be judged by. Even if it were admitted (as it is not) that Mr. Bancroft has shown what amounts (in the phraseology of Dr. Paley) to an expectation on the side of the United States, he has entirely failed to show on the other side (that of Her Majesty's Government) a knowledge of the existence of that expectation. On the contrary, Her Majesty's Government have demonstrated their necessary ignorance on the point.

32. Sir Richard Pakenham (in his Memorandum before cited) says, (he is writing some twelve years after the Treaty, and he speaks therefore in guarded phrase, but his testimony is clear:)

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 I of that Treaty.

V.

33. It remains to examine the arguments by which Mr. Bancroft endeavors to show that the language of the Treaty points to the Canal de Haro and to that channel alone.

(i.) Mr. Bancroft refers (page 24) to the concise form of expression by which, he says, in both countries the line was described as the line of the "forty-ninth parallel and Fuca's Straits." Two observations occur: (1) Many persons, including Mr. Greenhow, used the name Fuca's Straits to embrace the waters, or at least the southern waters, of the Gulf of Georgia. (2) If, in this phrase, the name is not so understood, then the use of this expression (the forty-ninth parallel and Fuca's Straits) is of no weight in favor of Mr. Bancroft's argument; for the whole ques[16] tion is where the line is to run, which is required to form a connecting link between the forty-ninth parallel and Fuca's Straits, (that name being used in the modern sense.)

(ii.) Mr. Bancroft says, (page 25:)

When the Treaty speaks of "the channel," for that part south and west of Birch's Bay, it must mean the Channel of Haro, for no other "channel" was known to the negotiators.

Above, paragraph 23.

It is, however, not altogether unimpeachable, as will appear from the criticisms of another English author, Austin, Lectures on Jurisprudence, vol. ii, p. 122.

And he proceeds to instance maps on which the Canal de Haro and no other channel is named. This argument assumes that the reference in the Treaty is necessarily to some named channel. Her Majesty's Government, on the contrary, have submitted that the absence of any name in the Treaty is strong evidence in favor of their contention. The fact that the Rosario Straits had no name specially fits that passage to be the nameless channel of the Treaty. The Canal de Haro was conspicuously named on Vancouver's chart and Wilkes's map. If it had been intended to be the channel of the Treaty, it would have been obvious and easy to name it. Mr. Bancroft can scarcely mean to contend that the Rosario Straits are not a channel, because they do not bear a name of which the word "channel" is part.

(iii.) Mr. Bancroft proceeds, (page 26:)

Again, the word “ channel” when employed in Treaties, means a deep and navigable channel, and when there are two navigable channels, by the rule of international law. preference is to be given to the largest column of water.

That the word "channel" means a navigable channel in Treaties generally, and in the Treaty under consideration in particular, is maintained. also by Her Majesty's Government. But they do not admit the existence of such a rule as is here alleged. If navigability is of the essence of a channel, then, as between two channels, preference should be given to the one which is the better fitted for navigation. Now, at the time when the Treaty was made, at which time it must be read as speaking, the Canal de Haro was almost unknown to and unused by practical navigators. It can scarcely, in the true sense of language, regarded as used at that day, be called a navigable channel. Even at the present day, when thoroughly explored and surveyed, it is found to be of difficult and dangerous navigation, especially for sailing vessels, and only one steamer had penetrated into those waters at the date of the Treaty. (iv.) Then Mr. Bancroft says, (page 26:)

Now, compared with any other channel through which a ship could pass from the sea at the forty-ninth parallel, to the Straits of Fuca, the Channel of Haro is the broadest and the deepest, the shortest and the best. With regard to depth, the contrast is still more striking.

But, although depth of channel may be an advantage in river navigation, and may therefore well weigh in the choice of one channel as a boundary in preference to one or another less deep, yet depth beyond a certain limit-a limit, perhaps, never reached in river navigation-becomes a disadvantage in navigation of every kind, as it lessens the facilities for anchoring, and thus increases the dangers of navigation. The Canal de Haro is an instance. Its depth is so great that there are but few anchorages in it, and there are none in the main channel; and with this defect, and its rapid and variable currents, it becomes an unsafe passage for sailing-vessels. The Rosario Straits, on the other hand, while they are deep enough for vessels of the very largest class, have many anchorages, conveniently and securely situated; and at the same time the regularity of the currents in them makes them comparatively easy of navigation.

[17]

*(v.) Mr. Bancroft further says (page 26) that the Canal de Haro is "the shortest and most direct way between the parallel of 49° and Fuca Straits." But there is nothing in the Treaty to show that the line between the forty-ninth parallel and the Straits of Fuca is to be run by what may now be held to be the shortest and most direct

On these points Her Majesty's Government refer to the evidence in the Appendix to their Case, presented to the Arbitrator in December, 1971.