testimony of Sir Richard Pakenham is that the British government at the time of negotiating the treaty did not intend the so-called [36] Rosario *as the channel, while the words which he suppressed

from Lord Aberdeen's final instructions prove the channel of the treaty to be the canal de Haro. Adopting the theory of Captain Prevost and Sir Richard Pakenham, Lord John Russell somewhat peremptorily demanded of the United States the acceptance of that theory, and in an instruction which the British minister at Washington was directed to communicate to the United States, he wrote:

Appendix No. 73,

The adoption of the central channel would give to Great Britain the island of San Juan, which is believed to be of little or no value to the United States, while much importance is attached by British colonial authorities, and by Her Majesty's government, to its retention as a dependency of the colony of Vancouver's Island.

p. 112.

Her Majesty's Government must, therefore, under any circumstances, maintain the right of the British Crown to the island of San Juan. The interests at stake in connection with the retention of that island are too important to admit of compromise, and your lordship will consequently bear in mind that whatever arrangement as to the boundary line is finally arrived at, no settlement of the question will be accepted by Her Majesty's government which does not provide for the island of San Juan being reserved for the British Crown.

To this naked and even menacing demand the American Government made the only fitting reply; and certainly the Imperial Arbitrator will not give an award to Great Britain, because the Vancouver colonial authorities and Her Majesty's Government covet the possession of San Juan.

When the attention of the British Secretary of State was called to the absoluteness and to the motives of this communication, he answered:

Appendix No. 75 p. 117, 1. 17-22.

Her Majesty's Government were by implication abandoning a large part of the territory they had claimed, and were merely insisting on the retention of an island [37] which, from the peculiarity of *its situation, it was impossible for Her Majesty's

Government to cede, without compromising interests of the gravest importance.

Lord John Russell acknowledged the necessity of supporting his pretensions by bringing them into agreement with the words of Appendix No 75,. the treaty; and therefore, giving up the channel of the so- p. 118, 1. 4-22. called Rosario, he entered into an argument in favor of the channel called on the United States Coast Survey "the San Juan Channel," on the British Admiralty chart "Douglas Channel," as the channel of the treaty.

In other words, he interpreted the treaty simply as giving the island of San Juan to the British, by which they would gain the exclusive possession of the Haro channel.

A conclusion is thus made very easy. Captain Prevost, Sir Richard Pakenham, and Lord John Russell unite in renouncing any treaty right to the so-called Rosario channel, and unite in the opinion that the Douglas Channel has a better right to be regarded as the channel of the treaty than the so-called Rosario. There is no escape from this cumulated evidence thus furnished by the British Government: first, in the instructions of Lord Aberdeen to Mr. Pakenham; second, in Mr. Pakenham's declaration of the meaning of the British Government at the time the treaty was negotiated; third, in the instructions to Captain Prevost; and fourth, in the statements of Lord John Russell, that the so-called Rosario strait was not the channel through which, in the interpretation of the British Government, the boundary line was to be run. It further shows that up to the date of the instructions to Cap

tain Prevost in 1856, the British Government had never suggested any other than the Haro and the so-called Rosario channel. Their own evidence, excluding the Rosario straits from their contemplation at the date of the treaty, leaves the Haro as the only possible channel within the contemplation of either party, and the only one in accordance with the true interpretation of the treaty.

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XXXVI. Protocol

tween the high com

ington

* One more effort was made for the settlement of the question by the two Governments. On the 15th day of March, 1871, of conference be the commissioners on the part of the United States and missioners, at Wash the commissioners on the part of Great Britain, in a conference at Washington took up the northwestern boundary question, and when no agreement could be arrived at respecting the proper interpretation of the treaty of June, 1846, the American commissioners expressed their readiness to abrogate the whole of that part of the treaty of 1846, and re-arrange the boundary line which was in dispute before that treaty was concluded. At the conference on the 20th of March, 1871, the British commissioners declined the proposal.

On the 19th of April the British commissioners, willing to renounce all claim to the so-called Rosario, renewed the offer of the line which had before been pressed by Captain Prevost, and maintained as the line of the treaty by Sir Richard Pakenham and by Lord John Russell. The American commissioners on the instant declined to entertain the proposal, and the British commissioners could not consent to regard the channel of Haro as the boundary, "except after a fair decision by an impartial arbitrator."

IV.-INTERPRETATION OF THE TREATY OF 1846.

The United States have already asked Your Majesty's attention to rules of international law applicable to the interpretation of the treaty submitted for arbitration.

They agree with the British Government, that "the words of a treaty are to be taken to be used in the sense in which they were British Case, p. 14. commonly used at the time when the treaty was entered into,” and ask Your Majesty to interpret the words "Fuca's straits" according to the usage established by all the maps and reports prior to 1846.

139]

*They further agree that "treaties are to be interpreted in a favorable rather than an odious sense;" but they did not in their Memorial invoke this rule, though it so decisively confirms British Case, p. 29. their rights, because they had no fear that the German Emperor could give to the convention an odious interpretation. Since, however, this rule of interpretation has been brought forward by the government of Her Britannic Majesty, the United States must explain the immeasurably odious nature of the interpretation which the British government desires Your Majesty to adopt.

The United States, in signing the treaty of 1846, had in view permanent relations of amity with Great Britain, and therefore dealt with it generously in the treaty, that there might remain to that power no motive for discontent or cupidity. When they consented that Great Britain should hold the southern cape of Vancouver Island, they knew that the harbor of that cape was the very best on the Pacific, from San Fran cisco to the far north. The United States took also into consideration that Great Britain needed to share, and had a right to expect to share in the best line of communication with its possessions to the north.

A ship using the so-called Rosario strait may be exposed to cannon

shot, not only as it enters that strait, but nearly all the way as it sails through it. One British Ministry after another has shown that it set no value upon it whatever, and has represented that it was not contemplated by treaty as a boundary, and has used the claim to it only as a means of driving the United States into a surrender of the island of San Juan.

A ship, as both parties agree, can enter the channel of Haro and not be under any necessity of passing within territorial waters on either side of the central line.

This passage by the Haro channel to the British possessions [40] north of 490, is the shortest, the most convenient, *the best, and the only perfectly safe one, alike in peace and in war. Of this channel, the United States by the treaty of 1846 concede the joint possession to the British, but they concede it with circumstances of peculiar generosity, or rather magnanimity. In passing from the lower part of the Haro channel to the upper interior waters, they allow to Great Britain equal rights with themselves to pass through the Haro channel to the true Rosario of the Spaniards, the British gulf of Georgia. Thus far the United States reserve to themselves no advantage over the English. They go farther. There are two other channels connecting the straits of Haro with the upper waters; one of them a little above 49°, at the Portier pass; the other below 49°, through Swanson channel and Active pass. As to both of these, the United States leave to the British the exclusive possession of the islands on each side. This is a great concession, far outweighing in value any advantage the Americans may gain in the so-called Rosario straits. The regular track of the British steamers between south Vancouver and Fraser's river is through the channel of Swanson and Active pass, a wide, sheltered channel, to them the shortest and most convenient, never freezing in winter, with water nowhere less than ninety feet deep, as easy of navigation as any part of the broadest and most magnificent river in Europe.

Map O.

To keep all these advantages and to acquire exclusive possession of the channel of Haro became the uncontrollable desire, first of the Hudson's Bay Company, then of the politicians of Vancouver Island. The conduct of the United States merited a better requital.

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The demand of the government of Her Britannic Majesty is as contrary to every principle of convenience, equity, and comity, as it is to the intention and the language of the treaty of 1846. To ask the United States to give up their equal right in the canal de Haro is to ask them to shut themselves out of their own house. They own the continent *east of these waters to the lake of the Woods, a distance of 28° of longitude. Is it within the bounds of belief that they should have given up to Great Britain the exclusive possession of the best channel, and the only safe channel, by which they could approach their own vast dominions on the north? Grant the English demand, draw the line of boundary through the so-called Rosario channel, and the Americans would have access to their own immense territory from the Pacific, only by the good will of the English. Such an interpretation of the treaty is so unequal, so partial to Great Britain, so opposite to the natural rights of the United States, so inconsistent with the words of the treaty, that the American Government holds itself deeply aggrieved by the British persistence in demanding an interpretation in so "odious a sense."

The United States, it may once more be said, had not the intention to present the subject in this light to the Imperial Arbitrator, for they

confide entirely in his justice. But since Her Majesty's government apparently assumes that an award in favor of the American Government would be "odious," the United States must not neglect to invite attention to the true aspect of the case.

The American Government is the more surprised at this manner of presenting the subject by the government of Her Britannic Majesty, inasmuch as Captain Prevost, after months employed in exploring the waters, conceded that the British claim to the so-called Rosario Strait "could not be substantiated," and this opinion was formally adopted by Sir Richard Pakenham and by Lord John Russell; the latter of whom himself declares that he abandoned by implication all but the island of San Juan.

Another reason why an award in favor of the so-called Rosario as the channel would be odious, is, that it would transfer to the foreign allegi

ance of Great Britain, islands east of San Juan which have long [42] been and are now in the undisputed possession of the United

States. The United States have likewise been virtually in possession of the island of San Juan; though each party maintains in it a small garrison. The civil population on that island is thoroughly American. Out of ninety-six resident males of twenty-one years of age Appendix No. 76. and upward, the number of American citizens is fifty-six; the number of those born in Great Britain and Ireland is but twentysix. Of both sexes and all ages, there are one hundred and seventynine Americans and but fifty-two of British nationality on the island of San Juan. In the whole archipelago, the American population numbers three hundred and fourteen, the British but ninety. How unsuitable it would be, then, to assign to Great Britain islands which have never been out of the possession of the United States, and which are occupied almost exclusively by their citizens!

Appendix to Me19, p. 22, 1. 2-6.

The

The United States do not understand how a controversy could have arisen on the meaning of the boundary treaty of June 15, morial No. 10 and No. 1846. It will be remembered that it was they who, in the administration of Sir Robert Peel, recalled the intimation of Mr. Huskisson in 1826, and suggested that the disputed boundary might be arranged by just so much deflection from the forty-ninth parallel, as would leave the whole of Vancouver island to Great Britain. For more than two years, through two successive envoys, they continued to propose this settlement. At length Lord Aberdeen consented to it. language of the treaty for carrying out the arrangement came from him. The United States accepted it in the sense in which they had suggested it; and by all rules for the equitable construction of contracts, Great Britain ought not now o attach to it a sense different from that in which Lord Aberdeen must have known that the United States accepted it. Moreover, before the treaty of June, 1846, was signed, Lord Aberdeen, well knowing by the experience of more than two years that the United States had proposed as their ultimatissimum, not to divide Vancouver island, instructed the British minister at Washington, that what England *was to obtain was the channel "leaving the whole of Vancouver's island in the possession of Great Britain." Thus both parties had the same object in view; both parties intended the same thing and expressed in writing their intentions before the treaty was signed. The Government of the United States of that day assented to the treaty of 1846, with the understanding, communicated in advance to the British Government, that the boundary line was to deflect from the forty-ninth parallel for the sole purpose of giving the south of Vancouver Island to Great Britain, so that it was necessarily to

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pass through the canal de Haro. The American Senate accepted it in that sense, and only in that sense. After it had been accepted, and before the ratifications were exchanged, Sir Robert Peel in the House of Commons announced in memorable words, that Her Appendix to MeMajesty's government had made the contract in the same morial No. 46. sense. Not long afterwards the present agent of the United States in this arbitration, then the plenipotentiary of the United States near the Court of St. James, officially called the official attention of Lord Palmerston to this construction; and from Lord Palmerston, then the British Secretary of Foreign Affairs, who, on the 29th of June, 1846, had, as a member of the House of Commons, listened to Sir Robert Peel's interpretation of the treaty, and, with the knowledge of this interpretation, had on the same evening welcomed it as honorable to both countries, the note of the American plenipotentiary received the acquiescence of silence.

The broad and deep channel of Haro, in its ceaseless ebb and flow, is the ever faithful and unimpeachable interpreter of the treaty. Time out of mind, it formed the pathway for the canoe fleets of the Red Men. It is the first channel discovered by Anglo-Americans or Europeans within the strait of Fuca; it is the first that was explored and surveyed

from side to side; it is the first through which Europeans sailed [44] from the Fuca Strait to the waters above the parallel *of 49.

And now, in the increase of emigration and trade, it approves itself as "the channel" of commerce by the unanimous choice of the 'ships of all nations.

Everything favors a peaceful adjudication. The influential and active Hudson's Bay Company has ceased to exist. The United States have paid them, and all other British companies or citizens, for their possessory rights large indemnities, which they themselves and the British government acknowledge to be most ample. The generation of Britons who reluctantly assumed the unwelcome task of keeping the fruitful region of Northwest America in a wilderness condition, has passed away. Under the genial influence of the United States, cities rise on the stations of fur-traders, and agriculture supersedes hunting and trapping. This condition of the country facilitates the final recognition of the rights of the United States, and encourages the belief that an award favorable to them will be accepted without an emotion of surprise or discontent.

10 D