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“ Besides the Canal de Haro, there is a prominent channel nearer to the mainland, known at present upon the Coast Survey and British Admiralty charts as Rosario Strait. The early Spanish navigators called it the Canal de Fedalgo. Captain Wilkes named it Ringgold's Channel. It is sometimes called Vancouver's Straits or Channel ; but, except on the Spanish Admiralty maps, I cannot learn that it was ever designated by name on any of the general maps of the northwest coast likely to be used at the time the treaty was made. Rosario Strait is a navigable channel, but it does not separate the continent from Vancouver's Island. In no part of its course does it touch upon the shore of either. It separates the islands of Lummi, Sinclair's, Cypress, Guemes, and Fedalgo, on the east ; from Orcas, Blakely, Decatur, and Lopez Islands on the west ; but in no respect does it separate the continent from Vancouver's Island, and cannot, therefore, in my opinion, be claimed, in accordance with the language of the treaty, as the channel therein referred to.
“ There is also another navigable channel connecting the Gulf of Georgia with the Straits of Fuca. It passes between the islands of San Juan, Spieden, and Stewart on the west, and Waldron, Orcas, Shaw, and Lopez on the east; but, like Rosario Straits, fails to touch the continent or Vancouver's Island. There are besides other channels no doubt navigable, but none except the Canal de Haro answer the requirements of the treaty in all respects.
“ Although I do not regard the relative merits of the navigability for sailing vessels of the Canal de Haro and Rosario Straits as having any bearing on the determination of the question before us, both being acknowledged navigable in the sense of the treaty, yet, as you have expressed an opinion thereon unfavourable to the Canal de Haro, I must beg respectfully to call your attention to the remarks of Captain Alden, of the United States navy, on the same subject. This gentleman was for many years in charge of the Hydrographic Survey of the Pacific coast, and during the working seasons of three years was engaged in examining and surveying these channels. In a report to the Superintendent of Coast Survey in 1855, he says The Gulf of Georgia and Straits of Fuca are connected by two good ship channels, called on the charts Haro and Rosario Straits. They are of sufficient width, and navigable for vessels of the largest class. The great depth of water presents a difficulty, but anchorage may be had for the most part, as the chart shows, at convenient distances along the shores.' In a previous report, in 1853, in comparing the two channels, he says, that in almost every respect the Canal de Haro is the better of the two channels. And again in the same report, after speaking of the various channels, he says, “It will be seen that the Canal de Haro is the widest, deepest, and best channel.' He expressed to me frequently the same opinion after my arrival on this coast, during the brief period in which he was attached to the Boundary Commission as commander of the coast survey steamer Active. My great deference to your knowledge of nautical affairs obliges me to avail myself of the opinions of one of the most experienced and accomplished officers of our navy and coast survey upon a subject relating purely to navigation. No person, however, can travel on these inland waters, and through these channels, and fail to be impressed with the idea of their peculiar adaptation to steam navigation, and the belief is general that eventually steamboats will supersede, in a great measure, the use of sailing vessels.
“ The Canal de Haro, being a much shorter communication between the Gulf of Georgia and the Pacific Ocean, would then have an advantage over Rosario Straits.
“From the views hereinbefore expressed, you will perceive that even if we adhere to the mere letter of the treaty, I am firmly convinced that the Canal de Haro is the channel' through which the boundary line should pass, and unless your consideration thereupon should modify your views, we are still as far from a determination of the boundary line as when we commenced the discussion of the subject. Therefore, should your opinion remain unchanged, it must be evident that, by taking the literal reading of the treaty alone as your guide, we are not likely to come to an agreement, nor will its precise wording' solve the doubt which you intimate may arise at first sight of the chart, as to which of the two channels the boundary line should pass through. I therefore think it becomes necessary to look beyond the mere words of the treaty, and endeavour, if possible, to reach the actual intentions of the treaty makers, or using them, for, undoubtedly, they must have had in their minds some particular channel, though not designated by name in the treaty.
“ The rule laid down by Vattel is, that, as soon as we meet with any obscurity in a treaty, we should seek for what was probably in the thoughts of those who drew it up, and interpret it accordingly.
“Now, however clear it may be to me that the Canal de Haro is the channel, taking the words of the treaty in the most literal sense consistent with its execution, yet the fact that you are as firmly convinced that Rosario Straits is • the channel' would imply that there was some obscurity in the language of the treaty before us. Vattel also
says: 666 It is a question in the interpretation of a treaty, to know what the contracting powers have agreed upon, in order to determine precisely, on any particular occasion, what has been promised and accepted ; that is to say, not only what one of the parties has had the intention to promise, but, also, what the other has reasonably and sincerely thought to be promised, what has been sufficiently declared to him, and upon which he must have regulated his acceptance.
The interpretation of every act, and of every treaty, ought, then, to be made according to certain rules proper to determine the sense of them, such as the parties concerned must naturally have understood when the act was prepared and accepted.'
“ He again says >
“The reason of the treaty, that is, the motive, which led to the making of it, and the view there proposed, is one of the most certain means of establishing the true sense ;
great attention ought to be paid to it whenever it is required to explain an obscure, equivocal, and undetermined point.'
“ Following the above rules for the interpretation of the treaty before us, so far as it devolves upon us to carry it into effect, I will proceed to prove, by contemporaneous evidence of the highest authority, that the Canal de Haro was the channel proposed by the British Government and accepted by the United States Government, as the one through which the boundary line was to be traced ; and that the language of the treaty, drawn up by the British Government, was intended to convey that fact, and was so understood by the Government of the United States.
“ The correspondence in relation to the treaty of June 15th, 1846, published by order of the Senate of the United States, will show, conclusively, that the reason or motive for not carrying the forty-ninth parallel as a boundary line to the Pacific Ocean was that the British Government refused to surrender the southern cape of Vancouver's Island, which was claimed by the American Government. The latter finally agreed to the proposal of the former, to make such a deflection from the forty-ninth parallel as would avoid dismembering the island. It is certainly fair to suppose that, in carrying out this intention, the nearest natural boundary would be sought by the negotiators, which the maps would show to be the Canal de Haro.
“Mr. McLane, the ambassador of the United States sent specially to Great Britain to aid in settling the Oregon boundary question, after nearly a year's negotiation, communicates (May 18th, 1846) to Mr. Buchanan, then Secretary of State, and one of the signers of the treaty, the nature of the proposal made by Lord Aberdeen for a settlement of the question, as follows:
“I have now to acquaint you, after the receipt of your despatches of the 15th instant, by the Caledonia, I had a lengthened conference with Lord Aberdeen, on which occasion the resumption of the negotiation for an amicable settlement of the Oregon question, and the nature of the proposition he contemplated submitting for that purpose formed the subject of a full and free conversation. I have now to state that
instructions will be transmitted to Mr. Pakenham, by the steamer of to-morrow, to submit a new and further proposition on the part of this Government for a partition of the territory in dispute. The proposition, 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. McLane also states, substantially, the other articles of the treaty, and a comparison of the treaty itself with his statement of their substance, will show how accurately he described them, though he does not profess to give the exact words.
He evidently fully understood the nature of the proposition to be made; and his views were communicated to his Government for the thorough understanding of the meaning of the language that would be used in the projet of the treaty. The very general description he gives of the water line shows, what we know must have been the case, that the framers of the treaty had before them only the general maps of the coast, and could not pretend to describe with accuracy the minute courses of the line." In the same letter he
says :“During the preceding administration of our Government the extension of the line on the forty-ninth parallel to the Straits of Fuca, as now proposed by Lord Aberdeen, was actually suggested by my immediate predecessor, as one he thought his Government might accept.' “ He again says: may
add that I have not the least reason to suppose it would be possible to obtain the extension of the forty-ninth parallel to the sea, so as to give the southern cape of Vancouver's Island to the United States.'
“ From the foregoing extracts it will be clearly perceived