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, and 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 cotemporaneous 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 15, 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. 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.

It

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 18, 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 that, 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 statements 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 their 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:

I 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.

1

J

From the foregoing extracts it will be clearly perceived that the object of the projectors of the treaty was to run the line so as to avoid cutting off the southern cape of Vancouver's Island, and that the Canal de Haro was selected as the channel adapted to that object.

President Polk, before accepting the proposal submitted by the British gov ernment, (received at the same time with Mr. McLane's letter,) laid it before the Senate (the co ordinate branch of the treaty-making power) for their advice on the subject; and, with his message transmitting it, he also submitted Mr. McLane's letter of the 18th of May, explanatory of the proposition, or projet of the treaty. And it is to be presumed he did so that the Senate might clearly understand the nature of the proposal upon which their advice was asked. They advised him to accept it; and, in accordance with their advice, the treaty was adopted by him, and submitted to the, Senate for its ratification.

To show the Senate's understanding of the meaning to be attached to the words of the treaty, "the channel which separates the continent from Vancouver's Island," I must call your attention to the language of Mr. Benton, one of the leading members of that body. In his speech on the treaty, the day of its ratification, he says:

The line established by the first article follows the parallel of forty-nine degrees to the sea, with a slight deflection, through the Straits of Fuca, to avoid cuting the south end of Vancouver's Island.

The first article of the treaty is in the very words which I myself would have used if the two governments had left it to me to draw the boundary line between them.

And, in describing the line, he says:

When the line reaches the channel which separates Vancouver's Island from the continent, (which it does within sight of the mouth of Frazer's River,) it proceeds to the middle of the channel, and thence, turning south, through the channel de Haro, (wrongly written Arro on the maps,) to the Straits of Fuca, and then west, through the middle of that strait, to the sea. This is a fair partition of these waters, and gives us everything we want, namely, all the waters of Puget Sound, Hood's Canal, Admiralty Inlet, Bellingham Bay, Birch Bay, and,. with them the cluster of islands, probably of no value, between de Haro's channel and the continent.

After reviewing the other articles of the treaty, Mr. Benton concludes:

In my high and responsible character of constitutional adviser to the President, I gave my opinion in favor of accepting the propositions which constitute the treaty. The first article is in the very terms which I would have used, and that article constitutes the treaty. With me it is the treaty.

I have thus presented to you, in writing, the evidence I laid before you during our discussions-that the Canal de Haro must be the channel referred to in the treaty, through the middle of which the boundary line is to be traced. This evidence is entitled to the greatest weight, considering the official positions occupied by Mr. McLane and Mr. Benton during the negotiation and ratification of the treaty, and is conclusive with me.

I am not aware of any evidence going to show that Rosario Straits was at all in the thoughts of the negotiators of the treaty, or that it was the intention or understanding of the two governments that the boundary line was to pass through it. The only claim I have been able find, on the part of the British government, that such was the case, is contained in a letter of Mr. Crampton to the Secretary of State, (Mr. Buchanan,) dated January 13, 1848, in which he calls the attention of our government to the expediency of endeavoring to arrive at an early settlement of everything connected with the Oregon boundary question, and particularly of the boundary line between the continent and Vancouver's Island. Mr. Crampton's letter will be found in the executive document of the House of Representatives for 1851, accompanying the message of President Fillmore for that year. In that letter Mr. Crampton gives his opinion

as the meaning of the words the channel which separates the continent from Vancouver's Island." He says:

In regard to that portion of the boundary line, (the water boundary.) a preliminary question arises, which turns upon the interpretation of the treaty, rather than upon the result of local observation and surveys.

The convention of June 15, 1846, declares that the line shall be drawn down the middle of the "channel" which separates the continent from Vancouver's Island; and upon this it may be asked what the word "channel" was intended to mean.

Generally speaking, the word "channel," when employed in treaties, means a deep and navigable channel. In the present case, it is believed only one channel, that, namely, which was laid down by Vancouver on his chart, has, in this part of the gulf, been hitherto surveyed and used; and it seems natural to suppose that the negotiators of the Oregon convention, in employing the word "channel," had that particular channel in view.

From the above extracts from Mr. Crampton's letter-written within two years after the conclusion of the treaty-it will be perceived that no evidence is presented to show that the channel called Rosario Straits was the one intended by the negotiators. If there had been any evidence that such was their intention, it would undoubtedly have been produced. But Mr. Crampton is mistaken even in his assumption that Vancouver's channel was the only one in that part of the gulf that had been hitherto surveyed and used; hence his inference that the negotiators of the Oregou convention, in employing the word "channel," had that particular channel in view, falls to the ground. The Canal de Haro had been both surveyed and used by the Spanish government and our own.

Mr. Crampton, at the conclusion of his letter, remarks that, as the question is "one of interpretation, rather than of local observation and survey, it ought, in the opinion of her Majesty's government, to be determined before the commissioners go out." It would thus appear that the British government regard an interpretation of the treaty as necessary to an understanding of the negotiators in employing the word "channel."

Having in this communication, as in our recent discussions, frankly laid before you my views in regard to the literal meaning of the treaty, and having, also, shown by cotemporaneous evidence what was the understanding of the government of the United States as to the intention of the British government in the projét of the treaty, and of the meaning of the words of the treaty itself, I can only repeat that my convictions in regard to the channel are so fixed that I cannot admit a doubt upon the subject.

With the highest respect and esteem, I have the honor to subscribe myself your most obedient servant,

ARCHIBALD CAMPBELL, Commissioner on the part of the United States for determining the Northwest Boundary Line.

Captain JAMES C. PREVOST, R. N.,

British Commissioner Northwest Boundary, &c., &c., &c.

Captain Prevost to Mr. Campbell.

HER BRITANNIC MAJESTY'S SHIP SATEllite,

Esquimault, Vancouver's Island, November 9, 1857. SIR: I have the honor to acknowledge the receipt of your letter of the 2d instant, containing a statement of your views of the interpretation to be put upon the first article of the treaty of the 15th June, 1846, between Great Britain and the United States, so far as the article relates to the water boundary to be traced between the possessions of the two countries.

2. From what has passed, I think it may now be considered as established hat there is no difficulty in tracing the boundary line through the waters now

called the Gulf of Georgia, and through the waters of the Straits of Fuca to the Pacific Ocean, but that it is in the space between these waters that the question arises as to which is the channel of the treaty. I advance that the channel now called the Rosario Strait is the channel through which the boundary line should pass; you assert that your "convictions" "are fixed" that the Canal de Haro is the channel of the treaty. I have given every consideration to all the points you have advanced, and I have most carefully weighed all the arguments you have adduced in support of your views, and I regret extremely that your views and mine upon the subject should be so widely different.

3. Before commencing to reply to the arguments you have advanced in opposition to the views I have expressed, I will state that I fully acknowledge the weight to be attached to the opinions you have quoted from Vattel, that in cases of obscurity in the language of a treaty its interpretation is to be sought in the intentions of the negotiators. But while fully recognizing this, and while ever being ready to bow to the opinion of an authority so high as Vattel, I must, on the other hand, maintain that when the language of a treaty is clear and precise, and will admit to be interpreted according to its strict and literal sense, there cannot be any need to seek for aught else to its elucidation.

4. In support of my proposition that the Rosario Strait should be the channel of the treaty, I advance that it is the only channel that will admit of being considered the channel, according to the treaty, which "separates the continent from Vancouver's Island." You state, that "while the other channels only separate the islands in the group from each other, the Canal de Haro for a considerable distance north of the Straits of Fuca, and where their waters unite, washes the shores of Vancouver's Island, and is, therefore, the only one which, according to the language of the treaty, separates the continent from Vancouver's Island." Surely this would prove the converse of the proposition. It appears to me a direct proof that the Canal de Haro is the channel separating Vancouver's Island from the continent, and, therefore, so long as other channels exist more adjacent to the continent, cannot be the channel which " separates the continent from Vancouver's Island." I would ask your best attention to this most peculiar language of the treaty, in which the usual terms of expression appear to be designedly reversed, for the lesser is not separated from the greater, but the greater from the lesser-not the island from the continent, but the continent from the island; and, therefore, it would seem indisputable that where several channels exist between the two, that channel which is the most adjacent to the continent must be the channel which separates the continent from any islands lying off its shores, however remote those islands may be. You state that the Rosario Strait does not separate the continent from Vancouver's Islaud, because "in no part of its course does it touch upon the shores of either," but that "it separates the islands of Lummi, Sinclair, Cypress, Guemes, and Fidalgo on the east, from Orcas, Blakely, Decatur, and Lopez islands on the west." I would submit that the islands of Lummi, Sinclair, Cypress, Guemes, and Fidalgo are lying close to the shores of the continent, and that between them and the continent is no navigable channel which would answer to the channel of the treaty, and that if the Rosario Strait is the channel separating these islands from Orcas, Blakely, Decatur, and Lopez islands, it is also the navigable channel separating the continent from them; and in separating the first named islands from Orcas, Blakely, Decatur, and Lopez islands, it also separates the first named islands from San Juan, Sidney, James's islands, &c., and from Vancouver's Island; and, therefore, if separating the continent from Orcas, Blakely, Decatur, and Lopez islands, it also separates the continent from San Juan, Sidney, James's Island, &c., and from Vancouver's Island.

5. In answer to my statement that the Canal de Haro will not meet one of the conditions of the channel of the treaty, as it will not admit of the boundary Ex. Doc. 29-2

66

line being carried into it in a southerly direction, you state that the objection applies with equal force to the Gulf of Georgia, if the term southerly is to be construed in a strictly nautical or technical sense, and with still greater force to the Straits of Fuca, which, for the greater part of its course, runs northwesterly, for the language of the treaty being thence southerly through the middle of the said channel and of Fuca's Strait to the Pacific Ocean,' the direction applies throughout the whole extent of the line;" and you further state that "if objection is made on this ground the treaty will be nullified and cannot be carried into effect." This conclusion I cannot admit. It can hardly, I think, be disputed that when the words of a treaty can be carried out in their strict and literal sense they should be so interpreted; when they cannot be so carried out, the intentions of the negotiators and the dictates of common sense have to be sought, and from them should the interpretation be deduced. From the Gulf of Georgia to the Straits of Fuca the boundary line can be carried through the Rosario Strait in a "southerly direction;" to pass through the Canal de Haro it must take a westerly course; therefore, so far as this particular is concerned, I conceive that the Rosario Strait admits of a closer adherence to the words of the treaty than does the Canal de Arro, and should, for this reason, be chosen in preference to a channel which would cause a wider departure from the words of the treaty.

6. In alluding to the necessity in cases of obscurity to seek the interpretation of a treaty in the intentions of its negotiators, you observe that you will "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," and you proceed to quote from a letter of Mr. McLane, the ambassador of the United States, sent specially to Great Britain to aid in settling the Oregon boundary question, and from the speech of Mr. Benton, one of the leading members of the Senate of the United States. Evidence from so high a source as this is most unquestionably entitled to the greatest respect and deepest consideration. That consideration I have given it, and I assure you it has had its full weight with me. But I would respectfully observe that neither Mr. McLane nor Mr. Benton were the actual negotiators of the treaty, and however valuable their opinions may be to the elucidation of obscure points, yet that these opinions can in no way alter the actual wording and terms of the treaty. Mr. McLane, in his report to the Secretary of State for the United States, writes that the proposition of the British government most probably will offer substantially as follows:

First, to divide the territory by the extension of the line on the parallel of 49 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.

Now this is stated to have been the probable proposition; it appears strange, if it was the adopted proposition, that the simple and unmistakable wording used by Mr. McLane should not have been retained. The fact that it was not retained would seem rather to show that discussion on the subject had taken place, and that the line of boundary had been designedly altered and the wording of the treaty as it now stands substituted to meet the alteration, the channel through which the boundary line was to pass not being designated by name, inasmuch as it had no name on the map, which was, I have not the least doubt, used by the British government at the time, viz., that of Vancouver, where the channel,now called the Rosario Strait is shown, as, in fact, it really is, as a continuation of the waters now called the Gulf of Georgia, the whole being named by Vancouver the Gulf of Georgia. It is quite possible that in viewing the boundary line as passing through the Canal de Haro some objection_might have been made to the nearness of some of the islands to Vancouver's Island,