[20]

37. Finally, it should be noted that the fact that the Canal de Haro has long borne a proper name on the maps is no evidence of the superiority of that passage for purposes *of navigation. It would seem to have been accidentally distinguished by a name, before and at the date of the treaty, from the circumstance that it obtained a name (Canal de Lopez de Haro) on the Spanish map of Quimper's observations of the Straits of Fuca in 1790.1 But it was little known, except by name, at the date of the Treaty, and for some time after.

38. Her Majesty's Government have now finished their examination of Mr. Bancroft's Memorial. They do not trouble the Arbitrator with any remarks on such parts of it as refer to the Lecture or Pamphlet of Mr. Sturgis, the observations of Mr. Bates, the articles in the Quarterly Review and the Examiner, and other matters which seem to them to have little (if any) bearing on the question to be decided. The interpretation of the Treaty cannot be affected by the public discussions which preceded it, nor can any amount of unofficial declarations as to what ought to be done be evidence of what the Governments of the two countries intended by the Treaty to do.

39. Nor have Her Majesty's Government thought it necessary to examine in detail the passage in the Memorial (page 23) which is headed "Plea for the integrity of Sir Robert Peel's Ministry," or the corresponding passage (page 31) which forms the concluding paragraph of the Memorial. Her Majesty's Government see no necessity for any such plea, and no ground for the suggestions in the passage last referred to. The characters of Sir Robert Peel and Lord Aberdeen place them beyond suspicion of having acted with insincerity or duplicity in any part of this transaction. Moreover, the frankness with which Lord Aberdeen communicated to Mr. MacLane the project of Treaty, in which no mention is made of the Canal de Haro as the channel through which the boundary should run, sufficiently shows that Mr. MacLane had no sure ground for his surmise that the Canal de Haro was contemplated by Lord Aberdeen as the boundary channel, or, at all events, was so at the time when Lord Aberdeen framed the project of Treaty.

40. The Arbitrator will not fail to observe that the explanation given in this Statement of the mention by Mr. MacLane and Mr. Benton of the Canal de Haro, far from involving any dishonoring imputation, is entirely consistent with the view, which Her Majesty's Government sincerely entertain, that Mr. MacLane, and all those who in any degree represented the United States on the occasion of the Treaty, acted with perfect good faith. Mr. MacLane, it seems almost certain, misled himself by a misapplication of Wilkes's map, and Mr. Benton was misled either by Mr. MacLane's letter, or by a misapplication, of his own geographical knowledge, or by both.

41. Her Majesty's Government then submit to His Majesty the Arbitrator, on the whole case, that, whether he looks at the general position of the two nations with reference to their claims to the Oregon [21] district, or at the circumstances attending the *particular transaction which issued in the Treaty, or at the language of the Treaty, he will be led to adopt the conclusions of Her Majesty's Government.

A copy of this map was not in the possession of Her Majesty's Government at the time of the preparation of their Case presented to the Arbitrator in December, 1871. The map, which seems to be the result of mere eye-sketches, is of small value in itself. It describes itself as made by Quimper's "primer piloto," (first mate, or master,) Don Gonzalo Lopez de Haro. This fact may account for the prominence given to the channel bearing the name of Haro. But little more than the southern mouth of the channel is shown. The southern entrance of Rosario Straits is indistinctly shown as Boca de Fidalgo.

42. His Majesty the Arbitrator has been pleased to take on himself to ascertain the channel of the Treaty, on the failure of the Commissioners appointed by the two Governments to agree. In the execution of this task, he has to look at the state of things as they existed at the time of the Treaty. He has to determine through which of the two channels, the Rosario Straits or the Canal de Haro, the line ought to have been drawn by Commissioners appointed for the purpose the day after the exchange of the ratifications.

43. The considerations, connected with the hydrography of the region and with the history and existing conditions of the navigation of its waters, on which, as Her Majesty's Government submit, this determination cannot fail to be in accordance with their conclusións, are fully set forth in the Case presented by them to the Arbitrator in December, 1871. The channel of the Treaty is that one of the two channels in question. which was the main navigable channel, as known and used at the date of the Treaty. That channel is the Rosario Straits.

HISTORICAL NOTE.-1818 TO 1846.'

1818.

In 1818 an agreement was come to between the Government of His Britannic Majesty and that of the United States respecting the boundary line between the British and United States territories in Northwestern America.

It was agreed in substance that for the space extending from the Lake of the Woods westward to the Rocky (then called the Stony) Mountains, the boundary line should be the forty-ninth parallel of north latitude.

With respect to any country that might be claimed by either party on the north west coast, westward of the Rocky Mountains, it was agreed that for ten years the same, with its harbors and the navigation of its rivers, should be free and open to the vessels, citizens, and subjects of the two Powers; with a proviso that the agreement was not to prejudice any claim which either party might have to any part of that country. This agreement was embodied in a Treaty made at London, 20th October, 1818.

The district between the Rocky Mountains and the Pacific, or part of it, came to be known as Oregon or the Oregon Territory or district, the name being taken from the Oregon River, now usually called the Columbia.

The northern boundary of this district, as it was in question between the two Governments, was the parallel of 54° 40' north latitude, being the southern boundary of the Russian territory, as recognized by Treaty. The southern boundary was the parallel of 420 north latitude, being the northern boundary of the Spanish territory, as recognized by Treaty.

The British Plenipotentiaries who negotiated the Treaty of 1818 acceded to the arrangement relating to the country west of the Rocky Mountains in the hope that by thus leaving that country open to the trade of both nations, they substantially secured every present advantage, while removing all prospect of immediate collision, without precluding any further discussion for a definite settlement. In their judgment the American Plenipotentiaries were not authorized to admit any territorial claim of Great Britain in that quarter to the southward of the Straits of Fuca, although they would have consented to leave those straits and the waters connected with them in the possession of Great Britain.

1824.

In 1824 negotiations were resumed for the settlement of questions between the two nations, including the question of the boundary west of the Rocky Mountains.

The British Plenipotentiaries contended for the right of British subjects to make settlements in the disputed territory, a right which they

1 Referred to in the Statement, page 2, par, 3,

[ii]

maintained was derived not only from discovery, but also from use, occupancy, and settlement. They proposed that Article III *of the Treaty of London of 1818 should cease to have effect, and that the boundary line west of the Rocky Mountains should be drawn due west to the point where the forty-ninth parallel strikes the great northeasternmost branch of the Oregon or Columbia River, marked on the maps as McGillivray's River, thence down along the middle of that river, and down along the middle of the Oregon or Columbia to its junetion with the Pacific Ocean.

The proposal of the United States Plenipotentiaries was to the effect that the term of ten years limited in Article III of the Treaty of 1818 should be extended to ten years from the date of a new Treaty, but that the rights of settlement and other rights should be restricted during the new term, so that the citizens of the United States should form no settlements to the north of the forty-ninth parallel, and that British subjects should form no settlements to the south of that parallel, or to the north of the fifty-fourth.

Terms were not agreed on, and the Conference came to an end in July, 1824.

1826, 1827.

In November, 1826, negotiations were again resumed.

The United States proposal was, that if the forty-ninth parallel should be found to intersect the Oregon or McGillivray's River at a navigable point, the whole course of that river thence to the ocean should be made perpetually free to British vessels and subjects.

The British Plenipotentiaries were authorized to offer that if the United States would consent to the Columbia being the southern British frontier, the United States should have the harbor in De Fuca Strait, called by Vancouver Port Discovery, with land five miles in breadth encircling it.

Should this offer not fully satisfy the United States, the British Plenipotentiaries were then authorized to extend the proposition, so as to include the cession by Great Britain to the United States of the whole peninsula comprised within lines described by the Pacific to the west, De Fuca's Inlet to the north, Hood's Canal (so called in Vancouver's charts) to the east, and a line drawn from the southern point of Hood's Canal to a point ten miles south of Gray's Harbor to the south, by which arrangement the United States would possess that peninsula in exclusive sovereignty, and would divide the possession of Admiralty Inlet with Great Britain, the entrance being free to both parties.

The negotiations ended in a Convention dated 6th August, 1827. This Convention continued Article III of the Treaty of 1818 indefinitely, but with power to either party to put an end to it on twelve months' notice, (after 20th October, 1828.)

The Convention also contained a saving for the claims of either party to any part of the country west of the Rocky Mountains.

1827-1842.

Negotiations on the Oregon question remained in abeyance until the special mission of Lord Ashburton to the United States in 1842, when he received the following instructions on this subject:

Your lordship may, therefore, propose to the Government of the United States, as a fair and equitable adjustment of their][the two Governments] respective claims, a line