Protocol., the 17th of October, 1868

Protocol.

The undersigned, Reverdy Johnson, esq., envoy extraordinary and minister plenipotentiary of the United States of America, and Edward Henry, Lord Stanley, her Britannic Majesty’s principal secretary of state for foreign affairs, being respectively authorized and empowered to place on record the basis on which the United States of America and her Majesty, the Queen of the United kingdom of Great Britain and Ireland, are prepared to close all further discussion with regard to the true direction of the line of water boundary between their respective possessions, as laid down in article I of the treaty concluded between them on the 15th of June, 1846, have agreed upon the following protocol:

I.

Whereas it was stipulated, by article I of the treaty concluded at Washington on the 15th of June, 1846, between the United States of America and her Majesty the Queen of the United Kingdom of Great Britain and Ireland, that the line of boundary between the territories of the United States and those of her Britannic Majesty, from the point on the 49th parallel of north latitude up to which it had already been ascertained, should be continued westward along the said 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 Fuca’s straits, to the Pacific ocean;” and whereas the commissioners appointed by the two high contracting parties to mark out that portion of the boundary which runs southerly through the middle of the channel aforesaid have not been able to determine which is the true line contemplated by the treaty—

It is agreed to refer to some friendly sovereign or state to determine the line which, according to the terms of the aforesaid treaty, runs southerly through the middle of the channel which separates the continent from Vancouver’s island and Fuca’s straits to the Pacific ocean; and it is further agreed that within three months after the exchange of the ratifications of any treaty that may hereafter be concluded for giving effect to the terms of this protocol, the contracting parties shall select some friendly sovereign or state to act as referee in the premises.

II.

If such sovereign or state should be unable to ascertain and determine the precise line intended by the words of the treaty, it is agreed that it shall be left to such sovereign or state to determine upon some line which, in the opinion of such sovereign or state, will furnish an equitable solution of the difficulty, and will be the nearest approximation that can be made to an accurate construction of the words of the treaty.

III.

It is agreed that such soverign or state shall be at liberty to call for the production of, and to consult all, the correspondence which has taken place between the American and British governments on the matter at issue, and to weigh the testimony of the American and British negotiators of the treaty, as recorded in that correspondence as to their intentions in framing the article in question; and such sovereign or state shall further be at liberty to call for the reports and correspondence, together with any documents, maps, or surveys bearing on the same, which have emanated from, or were considered by, the commissioners who have recently been employed by the two governments, to endeavor to ascertain the line of boundary as contemplated by the treaty, and to consider all evidence that either party may produce. But the referee shall not depart from the true meaning of the article as it stands, if he can deduce that meaning from the words of that article; those words having been agreed to by both parties, and having been inserted in a treaty ratified by both governments

IV.

The respective parties formally engage to consider the decision of the referee, when given, as final and conclusive; whether such decision shall be a positive decision as to the line of boundary intended by the true meaning of the words of article I of the treaty of 1846, or whether the said referee, being unable to give such positive decision, shall give as a decision a line of boundary as the nearest approximation to an accurate construction of those words, and as furnishing an equitable solution of the difficulty; and such decision shall without reserve be carried into immediate effect by commissioners to be appointed for the purpose of marking out the line of boundary in accordance with such decision of the referee.

V.

It is understood that this agreement shall not go into operation or have any effect until the question of naturalization now pending between the two governments shall have been satisfactorily settled by treaty, or by law of Parliament, or by both, unless the two parties shall in the mean time otherwise agree.