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The case of the United States by no means rested on the strength of the claims of the Canal de Haro to the title of "the channel" in a geographical point of view. Mr. Bancroft aimed to show that the Canal de Haro was the channel in the minds of the parties when the treaty of 1846 was made. So far as regards the gentlemen engaged on the American side, he was perfectly successful. There can be no doubt that Mr. McLane, who was our minister in England at that time, and that the leading members of the United States Senate, which ratified the treaty, never entertained a shadow of doubt that its language described, and was intended to describe, the Canal de Haro. Official documents record their contemporaneous expressions of the most unequivocal character, in which the phrase in the treaty is mentioned without suspicion that it could mean any thing else than the Canal de Haro, or allow to Great Britain any territory south of the parallel of 49°, except the southern extremity of Vancouver's Island, which would have fallen to the United States had the parallel of 49° been made the boundary throughout to the Pacific Ocean. This brings us to the history of the treaty of 1846. The convention of 1818 between the United States and Great Britain carried the boundary from the Lake of the Woods (where it had been left by earlier treaties) to the Rocky Mountains, and established it for this extent upon the forty-ninth parallel. At that date, the boundary of the territory westward from the Rocky Mountains was left undefined. For a considerable time, by the consent of both governments officially expressed, it remained free to the people of both countries, without prejudice to the title, or claims to title, on the part of either government. But from an early day efforts were made to define the boundary by treaty. The United States frequently proposed to carry the parallel of 49° westward to the. Pacific. Great Britain invariably refused this proposition, probably under the influence of the Hudson's Bay Company, which had some stations south of that parallel.
It will be remembered that in those days, when the northwestern part of the continent was a wilderness, more regard was had for islands lying off the coast, ports and harbors, and rivers giving access to the interior, than for areas of land upon the continent, however considerable, then difficult of approach and unsettled.
The Columbia River falls into the Pacific Ocean at a point considerably south of 49°. It was with a good deal of difficulty that the British statesmen could persuade themselves to agree to any boundary which should give the United States any thing north of the Columbia River. The forty-ninth parallel was not only north of the right bank of the Columbia River during the whole or nearly the whole of the navigable part of its course, but if adopted as the boundary throughout to the Pacific Ocean, it would pass directly across Vancouver's Island, and throw into the possession of the United States the southern extremity of that island, about one-fifth of its whole area; and thus give to the United States the command by land of both sides of the Straits of Fuca, which also he south of the parallel of 49°, and which, like the Columbia River, are an important means of communication with the interior, being the avenue leading to the mouth of Frazer's River and other waters.
Whenever, therefore, the discussion came to close quarters, it was evident that no arrangement could be made, unless means could be found to satisfy Great Britain as regards the navigation of the Columbia River and the possession of the whole of Vancouver's Island. For the rest, British statesmen were quite ready to agree to the parallel of 49°.
Meanwhile, an excitement was growing up in the United States on the subject; the strength of our claim to the whole territory as far north aa 54° 40', was asserted by popular orators; and the two houses of Congress directed official notice to be given to Great Britain for the termination of the then subsisting arrangement for the joint occupation of the whole territory.
During this period of excitement earnest efforts were making in both countries to find a way of adjusting the boundary, consistent with the honor and dignity of both powers, and therefore not inconsistent with the position in which either of them found itself placed by its previous action. Such an adjustment was found in adhering to the parallel of 49° as the principle of the boundary; but, allowing to British subjects, the free navigation of that stream, and of its great northern branch, south of the parallel, and allowing also to Great Britain the whole of Vancouver's Island.
This arrangement, as regards the boundary, was suggested to Lord Aberdeen by Mr. Everett, upon his own responsibility, in 1848; and substantially the same arrangement was publicly proposed by Mr. William Sturgis, in a lecture before the Mercantile Library Association in Boston, in January, 1845. Mr. Sturgis's lecture was printed, with a map showing the boundary he proposed. Copies were circulated in England as well as in this country. Although drawn upon a very small scale, the map plainly shows the boundary line drawn near to Vancouver's Island at the east, and between that island and two small islands lying between it and the mainland.
The proposition for thus settling the boundary on the principle of the parallel of 49°, but with such a variation as to allow to Great Britain the whole of Vancouver's Island, was received with favor on both sides of the Atlantic.
There is no doubt that, with the express purpose of coming, if possible, to an amicable adjustment of the boundary question, which it had been thought essential should be treated in Washington, Lord Aberdeen, in 1843, recalled Mr. Fox, who had been the British minister there, and appointed in his place Mr. Pakenham, who, it was hoped, would prove a more successful negotiator. These hopes, however, with regard to Mr. Pakenham, were disappointed; and finally Lord Aberdeen, in 1846, practically took the whole matter into his own hands.
While the negotiation nominally continued at Washington, Lord Aberdeen caused the draught of a treaty to be prepared in the Foreign Office in London, and sent it over to Mr. Pakenham. Mr. Pakenham at once communicated it, as a basis for negotiation, to Mr. Buchanan, then Secretary of State under President Polk. Departing in some degree from recent usage, and reverting to a frequent practice of President Washington in his relations with the Senate as a part of the treaty-making power, President Polk submitted Lord Aberdeen's draught to the Senate, as a proposal for a treaty. The Senate, after due deliberation, passed a resolution advising its acceptance. This action of the Senate was anticipatory of the advice and consent required by the Constitution for treaties after they have been made. Fortified by the opinion of the Senate, Mr. Buchanan required but short time with Mr. Pakenham for the formal "negotiations;" the treaty was agreed to by them, and was again laid before the Senate, this time as a treaty already concluded; and again, after due deliberation, the Senate advised and consented to it, this time in the sense of the Constitution; and it was without delay ratified on the part of both governments.
Lord Aberdeen's draught was sent from London on the 18th of May, 1846; the treaty was signed by Mr. Buchanan and Mr. Pakenham on the 15th of June, and the vote of the Senate, advising and consenting to the ratification, took place on the 18th of June, or precisely one calendar month from the time the draught left Lord Aberdeen's hands. The formal exchange of ratifications took place at London on the 17th of July.
In these proceedings, no alteration of a single word even, so far as regards the boundary line, was made in the draught that was sent over from London by Lord Aberdeen.
From the peculiar way in which the treaty was thus originated and negotiated, there are no preliminary "protocols" connected with it. There is, it would seem, a memorandum of the interview between Mr. Buchanan and Mr. Pakenham, at which the latter presented the draught. This memorandum is not printed in the volume before us, and probably simply records the fact that Mr. Pakenham offered a draught of a treaty. The language of the draught, now become without change the language of the treaty, is left to speak for itself.
Under these circumstances, in order to ascertain the sense in which the words of the draught were understood by the parties, it would seem reasonable to refer to the official correspondence of Mr. Everett and Mr. McLane, our ministers in London, recording their conversations with Lord Aberdeen preh'minary to the draught prepared under his direction, and to other contemporaneous records showing the state of public opinion in the two countries On the subject. But Great Britain, in the definitive statement presented to the arbitrator at Berlin, took the ground that this sort of evidence is beside the question. The readers of this journal will probably acquiesce in the technical accuracy of this point.
Nevertheless, the evidence which the lawyers on the British side would thus exclude, would seem to be admissible at least to illustrate the language used in the treaty. It is of overwhelming strength, to show that the United States on their side never meant to give up to Great Britain any territory south of the parallel of 49° except the southern portion of Vancouver's Island.
The parallel of 49° was the radical principle of the boundary. A variation to accord to Great Britain a piece of Vancouver's Island south of that line was the ultimatum of concession on the American side, — " ultimatisshnum," Mr. Bancroft happily calls it. The treaty was possible of acceptance, because it was beheved on our side that it embodied and faithfully described this arrangement.
In his official despatch to Mr. Buchanan, by the same packet which carried from Lord Aberdeen to Mr. Pakenham the draught of the treaty, Mr. McLane, fresh from an interview with Lord Aberdeen, who had described it to him, spoke of it in express terms as making the Canal de Haro the boundary; and it was so described in the Senate by Mr. Webster and by Mr. Benton in the discussion in that body on both occasions when the subject was before it.
Let us now turn to the correspondence on the British side between Lord Aberdeen and Mr. Pakenham. In a despatch of the same date as that which covered the draught of the treaty, Lord Aberdeen, writing to Mr. Pakenham, describes the proposed boundary as follows: "To be continued along the forty-ninth parallel from the Rocky Mountains to the sea-coast; and from thence in a southerly direction through the centre of King George's Sound and the Straits of Juan de Fuca to the Pacific Ocean, leaving the whole of Vancouver's Island, with its ports and harbors, in the possession of Great Britain."
Observe, this is Lord Aberdeen's official instruction, contemporaneous with the treaty, and describing its purport as he meant it should be understood. "King George's Sound " I
King George's Sound was a name given by Captain Cook in 1778 to what is now known as Nootka Sound, a place on the western side of Vancouver's Island, north of the forty-ninth parallel; and of course having not the remotest connection with any boundary line to be drawn east of Vancouver's Island and south of 49°.
Of course Lord Aberdeen wrote " King George's Sound " by a slip of the pen for something else. For what? This is sheer conjecture. If it were "Canal de Haro," which Mr. McLane wrote on the same day to his chief as the description of the same thing, then every thing is clear as sunlight; and but for the unfortunate slip of the pen this whole controversy need never have arisen, and the arbitration of the German Emperor need never have been invoked.