tinent." To be sure he adds, it "cannot be the channel which separates the continent from Vancouver Island." But in that ground no anchor can hold. It is as if one were to own, that in latitude 53° 10′, St. George's channel separates Ireland from England, and yet insist that England is separated from Ireland by the strait of Menai.

In January, 1848, during the administration of which Lord John Russell, now Earl Russell, was the chief, the British minister at Washington, timidly and by way of experiment, expressed

Appendix No. 68..

a wish that the channel through which Vancouver sailed might be agreed upon by the two Governments as the boundary.

In August, 1859, when the internal commotions, which appeared to threaten the disruption of the United States, were already Appendix No. 73, spreading their baleful influences, Lord John Russell, then Pp. 111, 112. British Secretary of State for Foreign Affairs, first ventured upon a distinet avowal of the purpose of Her Britannic Majesty's Government to obtain the island of San Juan. In pursuing this object, he sought, in an interview with the Earl of Aberdeen, to obtain the support of that minister.

The chief interest in this narrative, as far as persons are concerned, centers in Lord Aberdeen. So far as the United States know, he never consented to set his hand to any paper which they would have a right

to regard as disingenuous. The United States have shown in [33] their memo*rial that Mr. MacLane, after an interview with Lord Aberdeen on the 15th of May, 1846, reported to his Appendix to MeGovernment that the treaty line would pass through the morial, No. 42 p. 47, canal de Haro.

1. 8-11.

The present agent of the United States in this arbitration resided as minister in England during the three years following the treaty, became well acquainted with Lord Aberdeen, conversed with him on its interpretation, and never heard from him one word that conflicted with the report of Mr. MacLane. Nor did he ever hear a different interpretation of the treaty from Sir Robert Peel. Nor during his whole residence in England did he ever hear such difference of interpretation attributed by any one to either of the two.

And, in 1859, Lord Aberdeen is appealed to by Lord John Russell for the aid of his testimony. Unhappily there exists no written Appendix No. 73,: answer of his own to the questions put to him; but only a Pp. 111, 112. very short report of the interview by Lord John Russell. According to that report, Lord Aberdeen did not deny that he used the name of the canal de Haro with Mr. MacLane, though he had no recollection of having done so. Now, nothing is more likely than that the words uttered in conversation thirteen years before, might have dropped from his memory; and against this failure of memory is to be weighed the dispatch of Mr. MacLane, written at the moment of the conversation. But, as to the channel which Lord Aberdeen had in view, he is represented as declaring that he knew none other than that "described in the treaty itself." Now, the channel described in the treaty, and in Lord Aberdeen's instructions to Mr. Pakenham, is, as we have seen, no other than the canal de Haro.

Left without support by Lord Aberdeen, the British Foreign Office brought forward, as its witness, Sir Richard Pakenham, who, with Mr. Buchanan, signed the boundary treaty of June, 1846.

[34]

In that same year, while everything was still fresh in *memory, Mr. Buchanan had recorded his interpretation of the treaty in an instruction to Mr. Bancroft, the American minister at London, who, as his colleague in Washington, had taken part in its negotiation, and

Appendix No. 51,

Appendix No. 73, pp. 112-114.

knew every step of its progress. An instruction written under such circumstances is the portraiture of the inmost mind of its p. 60, 1. 3-7. author. "It is not probable," wrote Mr. Buchanan, "that any claim will be seriously preferred on the part of Her Britannic Majesty's Government to any island lying to the eastward of the Canal of Arro, as marked in Captain Wilkes's 'map of the Oregon Territory."" Of the testimony, given more than twelve years later by Sir Richard Pakenham, every word, as far as communicated to the United States, is presented in the Appendix. It has no date, but was communicated to the United States in the year 1859. Captain Prevost, in his final letter to Mr. Campbell, the American commissioner, of November 24, 1857, had written: "I will at once frankly state how far I am willing to concede, but beyond what I now offer I can no further go. I am willing to regard the space above described [that is, the space between the continent and Vancouver Island, south of 49°] as one channel, having so many different passages through it, and I will agree to a boundary line being run through the 'middle' of it, in so far as islands will permit." This is the lead which Sir Richard Pakenham followed. He who signed the treaty on the British side declared positively, as his interpretation of it, that the so-called straits of Rosario are not the channel intended by the treaty; and we must hold the British Government to this confession, as it received its official approbation.

Appendix No. 70, p. 109.

*

*

*

It is true he also denied the straits of Haro to be the channel of the treaty, using these words:

The Earl of Aberdeen, in his final instructions, dated 18th May, 1846, says nothing whatever about the Canal de Haro, but, on the contrary, desires that the line [35] might be drawn "in a southerly *direction through the center of King George's Sound and the Straits of Fuca to the Pacific Ocean."

Appendix to Me1.5, 7.

Now why was Sir Richard Pakenham introduced to give testimony as to the instruction which he received from Lord Aberdeen? morial No. 43, p. 50, The instruction itself was in the Foreign Office, and was the best authority on the subject, and would have given the whole truth. Sir Richard Pakenham in his testimony leaves out the most important words of his final instructions. Lord Aberdeen, it is true, did not name in them the channel of Haro by name, but so far from writing anything to "the contrary," he defined it exactly, when, in those same "final instructions," he describes the channel of the treaty as the channel "leaving the whole of Vancouver Island, with its ports and harbors, in the possession of Great Britain."

The final interpretation of the treaty by Sir Richard Pakenham runs as follows:

The conditions of the treaty, according to their liberal 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 Island.

Thus Mr. Pakenham, the British signer of the treaty, adopting the theory first communicated to the United States by Captain Prevost eleven years after the treaty was ratified, rejects entirely the channel of the so-called Rosario as the channel of the treaty. The question now is not between the so-called Rosario and some channel intermediate between it and that of Haro. It is whether the claims of the United States to the Haro, or those of Great Britain to the so-called Rosario, are more in accordance with the true interpretation of the treaty. The instructions to Captain Prevost show that the British Government had no confidence in the so-called Rosario as being the treaty channel; the

testimony of Sir Richard Pakenham is that the British government at the time of negotiating the treaty did not intend the so-called [36] Rosario as the channel, while the words which he suppressed from Lord Aberdeen's final instructions prove the channel of the treaty to be the canal de Haro. Adopting the theory of Captain Prevost and Sir Richard Pakenham, Lord John Russell somewhat peremptorily demanded of the United States the acceptance of that theory, and in an instruction which the British minister at Washington was directed to communicate to the United States, he wrote:

Appendix No. 73,

The adoption of the central channel would give to Great Britain the island of San Juan, which is believed to be of little or no value to the United States, while much importance is attached by British colonial authorities, and by Her Majesty's government, to its retention as a dependency of the colony of Vancouver's Island.

P. 112.

Her Majesty's Government must, therefore, under any circumstances, maintain the right of the British Crown to the island of San Juan. The interests at stake in connection with the retention of that island are too important to admit of compromise, and your lordship will consequently bear in mind that whatever arrangement as to the boundary line is finally arrived at, no settlement of the question will be accepted by Her Majesty's government which does not provide for the island of San Juan being reserved for the British Crown.

To this naked and even menacing demand the American Government made the only fitting reply; and certainly the Imperial Arbitrator will not give an award to Great Britain, because the Vancouver colonial authorities and Her Majesty's Government covet the possession of San Juan.

When the attention of the British Secretary of State was called to the absoluteness and to the motives of this communication, he answered:

Appendix No. 75 p. 117, 1. 17-22.

Her Majesty's Government were by implication abandoning a large part of the territory they had claimed, and were merely insisting on the retention of an island [37] which, from the peculiarity of *its situation, it was impossible for Her Majesty's

Government to cede, without compromising interests of the gravest importance.

Lord John Russell acknowledged the necessity of supporting his pretensions by bringing them into agreement with the words of Appendix No 75,. the treaty; and therefore, giving up the channel of the so- p. 118, 1. 4-22. called Rosario, he entered into an argument in favor of the channel called on the United States Coast Survey "the San Juan Channel," on the British Admiralty chart "Douglas Channel," as the channel of the treaty.

In other words, he interpreted the treaty simply as giving the island of San Juan to the British, by which they would gain the exclusive possession of the Haro channel.

A conclusion is thus made very easy. Captain Prevost, Sir Richard Pakenham, and Lord John Russell unite in renouncing any treaty right to the so-called Rosario channel, and unite in the opinion that the Douglas Channel has a better right to be regarded as the channel of the treaty than the so-called Rosario. There is no escape from this cumulated evidence thus furnished by the British Government: first, in the instructions of Lord Aberdeen to Mr. Pakenham; second, in Mr. Pakenham's declaration of the meaning of the British Government at the time the treaty was negotiated; third, in the instructions to Captain Prevost; and fourth, in the statements of Lord John Russell, that the so-called Rosario strait was not the channel through which, in the interpretation of the British Government, the boundary line was to be run. It further shows that up to the date of the instructions to Cap

tain Prevost in 1856, the British Government had never suggested any other than the Haro and the so-called Rosario channel. Their own evidence, excluding the Rosario straits from their contemplation at the date of the treaty, leaves the Haro as the only possible channel within the contemplation of either party, and the only one in accordance with the true interpretation of the treaty.

[38]

XXXVI. Protocol

tween the high com

ington.

* One more effort was made for the settlement of the question by the two Governments. On the 15th day of March, 1871, of conference be the commissioners on the part of the United States and missioners, at Wash- the commissioners on the part of Great Britain, in a conference at Washington took up the northwestern boundary question, and when no agreement could be arrived at respecting the proper interpretation of the treaty of June, 1846, the American commissioners expressed their readiness to abrogate the whole of that part of the treaty of 1846, and re-arrange the boundary line which was in dispute before that treaty was concluded. At the conference on the 20th of March, 1871, the British commissioners declined the proposal.

On the 19th of April the British commissioners, willing to renounce all claim to the so-called Rosario, renewed the offer of the line which had before been pressed by Captain Prevost, and maintained as the line of the treaty by Sir Richard Pakenham and by Lord John Russell. The American commissioners on the instant declined to entertain the proposal, and the British commissioners could not consent to regard the channel of Haro as the boundary, "except after a fair decision by an impartial arbitrator."

IV.-INTERPRETATION OF THE TREATY OF 1846.

The United States have already asked Your Majesty's attention to rules of international law applicable to the interpretation of the treaty submitted for arbitration.

They agree with the British Government, that "the words of a treaty are to be taken to be used in the sense in which they were British Case, p. 14. commonly used at the time when the treaty was entered into," and ask Your Majesty to interpret the words "Fuca's straits" according to the usage established by all the maps and reports prior to 1846.

[39]

*They further agree that "treaties are to be interpreted in a favorable rather than an odious sense;" but they did not in their Memorial invoke this rule, though it so decisively confirms British Case, p. 29. their rights, because they had no fear that the German Emperor could give to the convention an odious interpretation. Since, however, this rule of interpretation has been brought forward by the government of Her Britannic Majesty, the United States must explain the immeasurably odious nature of the interpretation which the British government desires Your Majesty to adopt.

The United States, in signing the treaty of 1846, had in view. permanent relations of amity with Great Britain, and therefore dealt with it generously in the treaty, that there might remain to that power no motive for discontent or cupidity. When they consented that Great Britain should hold the southern cape of Vancouver Island, they knew that the harbor of that cape was the very best on the Pacific, from San Francisco to the far north. The United States took also into consideration that Great Britain needed to share, and had a right to expect to share in the best line of communication with its possessions to the north.

A ship using the so-called Rosario strait may be exposed to cannon

shot, not only as it enters that strait, but nearly all the way as it sails through it. One British Ministry after another has shown that it set no value upon it whatever, and has represented that it was not contemplated by treaty as a boundary, and has used the claim to it only as a means of driving the United States into a surrender of the island of San Juan.

A ship, as both parties agree, can enter the channel of Haro and not be under any necessity of passing within territorial waters on either side of the central line.

This passage by the Haro channel to the British possessions. [40] north of 49°, is the shortest, the most convenient, *the best, and the only perfectly safe one, alike in peace and in war. Of this channel, the United States by the treaty of 1846 concede the joint possession to the British, but they concede it with circumstances of peculiar generosity, or rather magnanimity. In passing from the lower part of the Haro channel to the upper interior waters, they allow to Great Britain equal rights with themselves to pass through the Haro channel to the true Rosario of the Spaniards, the British gulf of Georgia. Thus far the United States reserve to themselves no advantage over the English. They go farther. There are two other channels connecting the straits of Haro with the upper waters; one of them a little above 49°, at the Portier pass; the other below 49°, through Swanson channel and Active pass. As to both of these, the United States leave to the British the exclusive possession of the islands on each side. This is a great concession, far outweighing in value any advantage the Americans may gain in the so-called Rosario straits. The regular track of the British steamers between south Vancouver and Fraser's river is through the channel of Swanson and Active pass, a wide, sheltered channel, to them the shortest and most convenient, never freezing in winter, with water nowhere less than ninety feet deep, as easy of navigation as any part of the broadest and most magnificent river in Europe.

Map O.

To keep all these advantages and to acquire exclusive possession of the channel of Haro became the uncontrollable desire, first of the Hudson's Bay Company, then of the politicians of Vancouver Island. The conduct of the United States merited a better requital.

The demand of the government of Her Britannic Majesty is as contrary to every principle of convenience, equity, and comity, as it is to the intention and the language of the treaty of 1846. To ask the United States to give up their equal right in the canal de Haro is to ask them to shut themselves out of their own house. They own the [41] continent *east of these waters to the lake of the Woods, a distance of 28° of longitude. Is it within the bounds of belief that they should have given up to Great Britain the exclusive possession of the best channel, and the only safe channel, by which they could approach their own vast dominions on the north? Grant the English demand, draw the line of boundary through the so-called Rosario chan nel, and the Americans would have access to their own immense territory from the Pacific, only by the good will of the English. Such an interpretation of the treaty is so unequal, so partial to Great Britain, so opposite to the natural rights of the United States, so inconsistent with the words of the treaty, that the American Government holds itself deeply aggrieved by the British persistence in demanding an interpretation in so "odious a sense."

The United States, it may once more be said, had not the intention to present the subject in this light to the Imperial Arbitrator, for they