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instructions issued to him by the Earl of Aberdeen, dated the 18th May, 1846, stated that his desire was that the boundary line might be drawn (1) “in a southerly direction through the centre of King George's Sound and the Straits of Fuca to the Pacific Ocean." Not a word with reference to Vancouver's Island, or the reason for the deflection from the forty-ninth parallel alleged by Mr. Campbell; not a word with reference to the Canal de Haro or Straits of Haro.
It is probable that the map used by Mr. Pakenham (3) was Vancouver's chart, and I submit that a superficial glance at such map, or a careful inspection of the same, would lead an unprejudiced observer to the conclusion that the “channel ” intended by Mr. Pakenham as the “ channel ” of the treaty was that through which the course sailed by Vancouver was drawn, and styled Vancouver's or Rosario Straits. That channel is in fact depicted as the only continuous channel between the mainland and Vancouver's Island.
On the part of the United States, a letter of Mr. McLane, who was sent on a special mission to Great Britain to aid in the settlement of the Oregon boundary question, is put forward as conclusive evidence of the intentions and views of Mr. Buchanan. The production of this letter exhibits the candour of
(1) American State Papers, p. 224. Mr. Campbell gives another version of this despatch (p. 58), written from memory after an inspection of the document, and he adds to the foregoing, “thus giving to Great Britain the whole of Vancouver's Island and its harbours." (2) American State Papers, pp. 59, 61, 63,
Mr. Campbell in a brilliant light, for he thereby adduced evidence most damnatory of the cause he advocated. On the 18th of May, 1846, Mr. McLane writes as follows to Mr. Buchanan :(1)
“The proposition” (of Great Britain) “most probably will offer substantially as follows:
“1st. 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. Buchanan signed the treaty with this despatch before him and yet, as Sir Richard Pakenham expressly states (?)—
“ He made no mention whatever of the Canal de Haro, as that through which the line of boundary would run, as understood by the United States Government.”
Mr. Campbell also relies upon certain correspondence which preceded the treaty, and upon Mr. Benton's speech to the Senate. If it be contended that the wishes and views of the United States Government, prior to the making of the treaty, were that the Canal de Haro should be the boundary, the fact that that channel was not expressly mentioned in the treaty then affords the most convincing proof that the views and intentions of the British Government were otherwise, and that the United States negotiator felt that the treaty could not be concluded if the Canal de Haro were insisted on as the boundary, and openly described
(1) American State Papers, p. 14. (2) Idem, p. 224.
as such, and that he designedly and purposely refrained from demanding such a concession from the British negotiator.
I shall conclude these remarks with a discussion of the doctrine so confidently put forward by the United States Commissioner, that “islands are appurtenant to the mainland”_"the continent embracing, as natural appendages to its coasts, the islands between it and the Canal de Haro."(1) This, for the United States, is a convenient theory, and, it must be confessed, when stated with proper limitations, has its foundation in natural law and reason. I am the more willing and ready to concede this, inasmuch as the argument based upon it tells more powerfully in favour of the claim of Great Britain than of that of the United States to the Haro Archipelago. Vancouver's Island has an area of about 1,670 square miles, or about onefourth the extent of England and Wales, and that island may be said to have an independent existence, and can scarcely be termed a natural appendage to the coast of Washington Territory. It is covered with valuable timber, and beneath its surface lie extensive deposits of coal and limestone. From the description of the Haro Archipelago which has been given above, it must be evident that the islands of which it is composed are identical in appearance and in their geological formation with Vancouver's Island, and differ in those particulars, in as marked a degree, from the mainland of Washington Territory.() Thus, they
(") On this theory the United States found their alleged claims to the West India Islands, and to the distant Bermudas.
(3) American State Papers, pp. 133, 137, 139, 141.
“abound with timber, coal, and limestone,” whilst “it was found necessary to obtain limestone for building on Puget Sound either from California or Vancouver's Island.”O
It might then with greater propriety be argued that the cluster of islands composing the Haro Archipelago are natural appendages of Vancouver's Island, and that the possession of that island should carry with it the sovereignty of the group with which it is identical in its appearance and formation. This will appear more clearly if we consider the principles and origin of the doctrine referred to, which doctrine is thus stated by Mr. Wheaton. (*)
“ The term coasts' includes the natural appendages of the territory which rise out of the water, although these islands are not of sufficient firmness to be inhabited or fortified; but it does not properly comprehend all the shoals which form sunken continuations of the land perpetually covered with water. The rule of law on this subject is, terræ dominium finitur, ubi finitur armorum vis; and, since the introduction of fire-arms, that distance has usually been recognised to be about three miles from the shore. In a case before Sir W. Scott (Lord Stowell) respecting the legality of a capture alleged to be made within the neutral territory of the United States, at the mouth of the river Mississippi, a question arose as to what was to be deemed the shore, since there are a number of little mud islands, composed of earth and trees drifted down by the river, which form a kind of portico to the mainland. It was contended that these were not to be considered as any part of the
(4) It has even been stated by those acquainted with the opposite coast of Japan that the geological formation of Vancouver's Island, Queen Charlotte's Island, and the other islands of the British Pacific coast, is more akin to that of the Japanese coast than to that of Washington Territory.
(2) Wheaton's Elements. Ed. 6, p. 234,
American territory, that they were a sort of 'no man's land, not of consistency enough to support the purposes of life, uninhabited, and resorted to only for shooting and taking birds' nests. It was argued that the line of territory was to be taken only from the Balize, which is a fort raised on made land by the former Spanish possessors. But the learned judge was of a different opinion, and determined that the protection of the territory was to be reckoned from these islands, and that they are the natural appendages of the coast on which they border, and from which, indeed, they were formed. Their elements were derived immediately from the territory; and on the principle of alluvium and increment, on which so much is to be found in the books of law, Quod vis fluminis de tuo prædio detraxerit, et vicino prædio attulerit, palam tuum remanet, even if it had been carried over to an adjoining territory. Whether they were composed of earth or solid rock, would not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil.
The only authority cited by Mr. Wheaton in support of this statement is that of Lord Stowell, whose remarks in the case of the “ Anna”
may be produced here with advantage, and it will be seen that they do not go to the extent of the doctrine contended for by Mr. Campbell. The facts of the case are stated by the learned judge, and it will not be necessary to allude to them further. Lord Stowell said, in the course of his judgment:(1)
“When the ship was brought into this country a claim was given of a grave nature, alleging a violation of the territory of the United States of America. This great leading fact has very properly been made a matter of much discussion, and charts have been laid before the Court to show the place of
(1) Robinson's “ Admiralty Reports.” Vol. 5, p. 385.