Majesty and those of the United States, as settled in the first article of the treaty of 15th June, 1846.

"2. Could I regard the correspondence of Mr. McLane and the speech of Mr. Benton as of greater weight than the treaty itself, I should probably, in the absence of direct contradictory evidence of equal value, respond to your view that the boundary line should pass through the Canal de Haro; but, taking the treaty alone as my authority, and with its words plainly and unmistakably before me, I could never conscientiously admit that the Canal de Haro is a channel which intrinsically answers to the channel described in that treaty. In that treaty I find two fixed points named-the continent on one hand and Vancouver's Island on the other, and it is agreed that the boundary line is to run through the middle of the channel separating the former from the latter. In this case,

in my opinion, the continent is de facto the continent, as much as the island is de facto the island; and holding this view, I conceive that no interpretation of the treaty per se can admit of the Canal de Haro being regarded as the channel through which the boundary line should pass. It appears to me that the claim to this channel rests entirely on the correspondence of Mr. McLane and the speech of Mr. Benton. If upon this ground the Canal de Haro be admitted as the channel of the treaty, with equal justness it might be argued that the line along the forty-ninth parallel should not strike the water at the forty-ninth parallel, but that it should deflect to Birch's Bay, which is a few miles to the southward; for Mr. McLane, in his letter of the 18th May, 1846, states that the offer will probably be to divide the territory by the extension of the line on the parallel of forty-nine 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;' but I find no mention of Birch's Bay in the treaty, any more than I do of the Canal de Haro; and as the words of the treaty are as distinct upon the one head as they are upon the other, I cannot admit that they should be departed from, either to carry the boundary line through the Canal de Haro, or to deflect it from

the forty-ninth parallel to Birch's Bay. I conceive that the correspondence of Mr. McLane and the speech of Mr. Benton, and the concurrent proceedings in the Senate of the United States, must be viewed in connection with the whole Oregon question as agitated at the time, and not merely with reference to the small portion of that question which is comprised in the determination of the line of boundary between the continent and Vancouver's Island. I have received the whole of this evidence with the greatest respect, and I have given to it the most careful and anxious study and reflection, but I cannot admit it as otherwise than secondary to the treaty. While upon this point, I would respectfully submit to you that if the treaty was intended by the United States Government to accord with the correspondence of Mr. McLane and the speech of Mr. Benton, I conceive that the general maxim you have quoted from Vattel would be more applicable to the United States than to the British Government, for if the former intended that the Canal de Haro should be the channel through which the boundary line was to pass, they should have taken care that it was so expressed clearly and plainly in the treaty. That it was never either the proposition or in the contemplation of the British Government, every further reflection I give to the subject only the more firmly con

vinces me.

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"3. Notwithstanding the construction you are pleased to put upon the quotation I used from Vattel to show that it was not necessary to give a term everywhere the same signification in the same deed, I must, with the utmost deference, still maintain that it is strictly to the point for which I quoted it; and I think further reflection on your part will show you that the objection because the term occurs only once,' whereas the rule applies to words which occur more than once,' is but a mere play upon words; the whole spirit of the paragraph in Vattel being so evident. The word 'southerly,' in reference to which the quotation was made, although only once printed, is applied twice, and, therefore, is in the same category as if it were used twice; for although the actual

6

words of the treaty are and thence southerly, through the middle of the said channel and of Fuca's Straits to the Pacific Ocean,' yet you would apply the words as if they were written, and thence southerly through the middle of the said channel, and thence southerly through the middle of Fuca's Straits to the Pacific Ocean. Although I do not for one moment suppose that the word southerly was intended by the treaty-makers to apply to Fuca Straits at all, yet you have thought fit to so interpret it, and I do not dispute that, viewing the construction of the passage in which it occurs in a strictly grammatical sense, such an interpretation may be given to it. The further quotation I used from Vattel is also, I conceive, strictly applicable; for no 'absurdity' follows the strict use of the term 'southerly' in connection with Rosario Strait, although it does if the term be similarly used in reference to the boundary line reaching the Pacific Ocean through the Straits of Fuca.

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"4. In your letter of the 18th ultimo, in alluding to a continuous channel from the Gulf of Georgia to the Straits of Fuca, you state, 'But whatever name may have been given to the waters broken up by the islands' (between the continent and Vancouver's Island), they are all continuations of the waters proceeding from the Straits of Fuca or Gulf of Georgia, and are all perfectly on an equality in that respect;' and again, it has been acknowledged that Rosario Strait, in common with the other channels is a continuation of the Gulf of Georgia.' After stating this as your conviction and opinion, it is difficult for me to conceive how you can reconcile the claim to trace the boundary line through the middle of the Canal de Haro with a strict adherence to the terms of the treaty, 'taking the words in the most literal sense.' Surely, if all the channels between the continent and Vancouver's Island, from the southern termination of the Gulf of Georgia to the eastern termination of the Straits of Fuca, are a continuation of the channel called the Gulf of Georgia, it must necessarily follow that they are collectively part of that channel, and consequently the said channel' of the treaty, through the

'middle' of which the line of boundary should be carried to accord with the terms of the treaty. Although I do not

admit the correctness of your view with regard to all the channels in the position before described forming a continuation of the channel of the Gulf of Georgia, yet it was this statement of your view that induced me to make the proposition I did, with the sincere hope that we might ourselves come to an arrangement of the matter; and when I reflected upon this statement of yours, and when I voluntarily offered to recede from what I firmly and honestly believed was not only the intention of the British Government in employing the words used in the first article of the treaty, but also the true and literal interpretation of the words themselves; and when I offered to abandon what I most conscientiously and candidly conceived was the better claim of the two, solely in order that the matter might be settled at once and by ourselves, I think it was no unreasonable hope to indulge, and no overconfident expectation to entertain, that I should meet with the most ready response from you. That it has not been so, I can now only regret; and it is but for me now to propose that a conference be held whenever it may be convenient to you, in order that it may be formally recorded that we are unable to agree as to the direction of the boundary line, and that you decline to accede to my proposition for an amicable compromise, and that we therefore decide upon a reference of the whole matter to our respective Governments.

"With the utmost consideration and esteem, I beg to subscribe myself, sir, your most obedient humble servant, "JAMES C. PREVOST,

"Captain H.B.M. Ship Satellite, and Her Majesty's First "Commissioner for determining the aforesaid Boundary." "Archibald Campbell, Esq.,

"U.S. Commissioner North-west Boundary, &c. &c."

To these arguments the United States Commissioner replied in the following letter, which, with the exception of a mere letter of acknowledgment from

Captain Prevost, closed the correspondence on this head:(1)

"United States North-west Boundary Commission, Camp "Simiahmoo, 49th parallel, December 2, 1857. "SIR,-I have the honour to acknowledge the receipt of your letter of the 1st instant. In my previous letters I have distinctly stated that the Canal de Haro, in my opinion, is the channel intended by the treaty, taking it in the most literal sense consistent with its execution,' and I have given my reasons therefor. In like manner you have asserted that Rosario Straits is 'the channel' of the treaty, and given the grounds upon which your opinion is based.

66 Finding, however, that we could not agree by confining ourselves to the mere words of the treaty, I laid before you contemporaneous evidence of the highest authority and most undoubted authenticity, in hopes that it would aid in settling the disputed question, and enable us to execute our instructions by carrying the treaty into effect. You did not decline to consider this evidence, but attempted to degrade its character by designating it as mere opinions, and to destroy its force by the production of what you were pleased to call 'counter evidence.' But when you find its facts to be incontrovertible, and the counter evidence entitled to no credit, you again intrench yourself behind the mere words of the treaty, and refuse to 'admit any evidence whatever on the subject to weigh with' you that would lead to an interpretation that the precise terms of the treaty will not admit.'

"I also called your attention to the views of your own Government in 1848, within two years after the conclusion of the treaty, to prove that there was no evidence in existence that Rosario Straits was ever intended as 6 the channel' of the treaty. With such evidence in favour of the Canal de Haro, and against the Rosario Strait, I think I had good reason to expect an acknowledgment on your part that you were mistaken in the views you first entertained.

(1) American State Papers, p. 46.