CHAPTER VII.

On the 11th of August, 1856, () an Act was at length passed by Congress, authorising the appointment of a commissioner by the United States Executive, to work jointly with a commissioner appointed by Great Britain; the joint instructions proposed by Mr. Crampton on the former occasion were not, however, accepted, each Government being left at liberty to issue its own instructions to its own officers. By Section 4 of that Act it was provided that, “until otherwise provided for by law, the proceedings of the said commission shall be limited to the demarcation of that part of the said line of boundary which forms the boundary line between Washington Territory and the British possessions."

Two commissioners were then appointed by the British Government, Captain Prevost and Captain Richards, of the Royal Navy. As a dispute subsequently arose as to the authority with which those commissioners were invested, it will be convenient to insert here the commission by which they were appointed, and the instructions issued to them.

The commission was as follows :(2)

"Whereas, by the first Article of the Treaty concluded and signed at Washington on the 15th day of June, 1846,

(1) American State Papers, p.

3.

(2) American State Papers, p. 99.

between us and our good friends the United States of America, it was stipulated and agreed that from the point on the fortyninth parallel of north latitude, where the boundary laid down in existing treaties and conventions between Great Britain and the United States terminates, the line of boundary between our territories and those of the United States shall be continued westward along the said forty-ninth parallel of north latitude to the middle of the channel which separates the continent of Vancouver's Island, and thence southerly through the middle of the said channel of the Fuca Straits to the Pacific Ocean: Provided, however, that the navigation of the whole of the said channel and straits south of the forty-ninth parallel of north latitude remain free and open to both parties. And whereas the line of boundary described in the said Article has never yet been ascertained and marked out, and it appears to us and to our said good friends the United States of America expedient to appoint commissioners for that purpose: Now know ye, that we, reposing especial trust and confidence in the diligence, skill, and integrity of our trusty and well-beloved James Charles Prevost, Esquire, a captain in our royal navy, have nominated, constituted, and appointed, and by these presents do nominate, constitute, and appoint him our First Commissioner, for the purpose of surveying, ascertaining, and marking out, in conjunction with the commissioner or commissioners appointed, or to be appointed, by the President of the United States in that behalf, so much as the line of boundary hereinbefore described as it is to be traced from the point where the forty-ninth parallel of north latitude strikes the eastern shore of the Gulf of Georgia. And we do hereby give to our said commissioner full power and authority to do and perform all acts, matters, and things which may be necessary and proper for duly carrying into effect the object of this our

commission.

"And we, reposing especial trust and confidence in the diligence, skill, and integrity of our trusty and well-beloved George Henry Richards, Esquire, a captain in our royal navy,

have nominated, constituted, and appointed, and by these presents do nominate, constitute, and appoint him our second commissioner for the purpose of this our commission, and we do hereby give unto him full power and authority to be present with and to assist our first commissioner in the due execution thereof, and also in the case of the death, absence, or incapacity of our said first commissioner, to supply his place and to act singly as our commissioner for the due execution of this our commission.

"In witness whereof we have signed these presents with our royal hand, given at our Court, at Osborne House, the 18th day of December, in the year of our Lord One thousand eight hundred and fifty-six, and in the twentieth year of our reign.

"By Her Majesty's command.

"CLARENDON."

The original instructions issued to Captain Prevost were contained in two letters addressed to him by Lord Clarendon, dated 20th December, 1856. The first letter was as follows :(1)

"Foreign Office, December 20th, 1856. "SIR,-I enclose you herewith a commission, under Her Majesty's sign manual, appointing you to be Her Majesty's first commissioner for ascertaining and marking out so much of the boundary, under the first article of the treaty between Great Britain and the United States, of which a copy is enclosed, as is traced from the point where the forty-ninth parallel north latitude strikes the eastern shore of the Gulf of Georgia, and also appointing Captain Richards to be Her Majesty's second commissioner, and authorising him to be present with, to aid and assist you in the execution of your duties as first commissioner; and, in case of your being incapacitated by any cause from the performance of your duties, to supply your place as first commissioner.

(1) American State Papers, p. 100.

"Under the authority of this appointment, Captain Richards may, if you consider it desirable, be present at, and take part in, the discussions between yourself and the commissioner or commissioners appointed by the United States, but the responsibility for the conduct of the commission, and the control of its proceedings, as far as the British portion of it is concerned, rests exclusively with yourself. Captain Richards is placed under your orders, and you will assign to him a portion of the duties devolving upon the commission as you may consider expedient.

"I have appointed Mr. George Young to be secretary to the commission, and he will also be under your orders. In a subsequent despatch I furnish you with detailed instructions for your guidance; and I have only, therefore, to state to you, in my present despatch, that the boundary line which may be agreed upon must be accurately laid down on a map drawn in duplicate, and each copy of such map must be signed by the commissioners of both parties, and annexed to the protocol, also signed in duplicate, in which the agreement come to shall be recorded. The Board of Admiralty have been requested to supply you with such scientific instruments as you may require for the use of the commission, and with any maps or charts which may be likely to be useful to you. You will report to me from time to time, and in duplicate, your proceedings in execution of the instructions which I have addressed to you.

"Captain Prevost, R.N., &c., &c."

"CLARENDON.

Additional instructions were at the same time issued to Captain Prevost, which, so far as they related to the character of his duties, and to the extent of his powers, were as follows :(1)

"The Queen, having been pleased to appoint you to be Her Majesty's First Commissioner for marking out so much

(1) American State Papers, p. 104.

of the boundary between Her Majesty's possessions in North America, and the territories of the United States, as is comprised between the continent of America and Vancouver's Island, I have to furnish you with the following instructions for your guidance in the execution of the duties intrusted to you by Her Majesty. The boundary which, in conjunction with one or more commissioners appointed by the Government of the United States, it will be your duty accurately to define, is described in the treaty between Great Britain and the United States, of June 15th, 1846, in the following general

terms:

"From the point on the forty-ninth parallel of north latitude, where the boundary laid down in existing treaties and conventions between Great Britain and the United States terminates, the line of boundary between the territories of Her Britannic Majesty and those of the United States shall be continued westward along the said forty-ninth parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly, through the middle of the said channel and of Fucas Strait to the Pacific Ocean: Provided, however, that the navigation of the whole of the said channel and straits south of the fortyninth parallel of north latitude remain free and open to both parties.'

"It is to be regretted that no map or plan was annexed to the treaty on which the line of boundary thus indicated was laid down, as in the intermediate space between the continent and Vancouver's Island, there are several smaller islands, through and among which different channels run, in various directions, along one or more of which a passage to the southward, from the Gulf of Georgia to the Strait of Juan di Fuca, may be found.

"At the time, however, when the treaty was concluded, in 1846, only one navigable channel was known to exist, viz., that known by the name of Rosario Strait (sometimes called Vancouver's Channel), which runs due south from the lower extremity of the Gulf of Georgia to the eastern extremity