THE FOURTH RULE OF INTERPRETATION.

The fourth of the rules to which Her Britannic Majesty's Government has invited the attention of His Imperial Majesty is, that the interpretation should be suitable to the reason of the Treaty, that is to say, the motive which led to the making of it, and the object in contemplation at the time.

We ought," says Vattel, (section 287,) "to be very certain that we know the true and only reason of the law, or the Treaty. In matters of this nature it is not allowable to indulge in vague and uncertain conjectures, and to suppose reasons and views where there are none certainly known. If the piece in question is in itself obscure; if, in order to discover its meaning, we have no other resource than the investigation of the author's views or the motives of the deed, we may then have recourse to conjecture, and in default of absolute certainty adopt, as the true meaning, that which has the greatest degree of probability on its side. But it is a dangerous abuse to go without in search of motives and uncertain views in order to wrest, restrict, or extend the meaning of the deed, which is of itself sufficiently clear, and carries no absurdity on the face of it.".

Now, the motive of the Treaty, as recited in the Preamble of it, was to terminate a state of doubt and uncertainty, which had hitherto prevailed respecting the sovereignty and govern

[26]

The motive of the Treaty.

ment of the territory on the north-west coast of America, lying westward of the Rocky Mountains, by an amicable compromise of the rights mutually asserted by the two parties over the said

territory.

It is a reasonable presumption from this Preamble that Her Britannic Majesty's Government, which drew up the paragraph of the Treaty of 1846, the meaning of which is in controversy, had a definite boundary line in view, which would terminate all doubt and uncertainty as to the limits. within which the respective Parties to the Treaty were henceforth to exercise rights of sovereignty.

The Treaty of 1846, it should also be borne in mind, was not an ordinary Treaty of friendship or alliance, in which a paragraph respecting mutual boundaries was inserted amongst paragraphs relevant to other matters; but it was a Treaty, of which the primary object was the settlement of a boundary line, and it would be unreasonable to attach a vague and uncertain meaning to any words descriptive of the boundary line, if such words are susceptible of a definite and certain meaning.

The object of the

It is not too much to say, and it will probably not be disputed-for it has been so stated by one of the most eminent of American statesmen-that the great aim of the United States in 1846 Treats. was to establish the 49th parallel of north latitude as the line of boundary on the western side of the Rocky Mountains, "not to be de parted from for any line further south on the Continent;" and that with regard to straits, sounds, and islands in the neighbouring seas, they were subjects of minor importance, to be dealt with in a spirit of fairness and equity. (Speech of Mr. Webster before the Senate of the United States, March 30, 1846.)

On the other hand, it is notorious, and it is also patent on the face of the Treaty itself, that the great aim of Her Britannic Majesty's Government was to meet the views of the United States Government in regard to the 49th parallel of north latitude with as little sacrifice as possible of the rights heretofore enjoyed by the Hudson's Bay Company and other British subjects in the waters south of that parallel.

No name is given

Now, it is a remarkable feature of the Treaty that no name is [27] given to the Channel, to the middle of which the 49th parallel of north latitude was to be continued after leaving the Continent, and through the middle of which it was to be drawn southto the Channel. erly after being deflected from that parallel. The Channel is described as "the Channel separating the continent from Vancouver's Island," and the line is simply directed to be drawn "southerly through the middle of the said Channel and of Fuca's Straits." The presumption arising from this description of it is that the Channel intended by the Treaty was the only Channel then used by sea-going vessels, and that it had no distinguishing name, but that upon the face of the charts then in use it would readily answer the description given of it in the Treaty, and would admit of the boundary line being deflected and continued through the middle of it and of Fuca's Straits to the Pacific Ocean. It will be seen by His Imperial Majesty, on an examination of Vancouver's Chart, which was the most accurate chart known Chart No. 2. to Her Britannic Majesty's Government at the time when the Treaty was made, and which was the Chart under the consideration of Her Britannic Majesty's Government when they framed the first Article of the Treaty, that the name of the Gulf of Georgia is assigned in that Chart to the whole of the interior sea, which separates the Continent from the group of islands, the chief of which is called Quadra and Vancouver's Island, such being the name of the largest island at the time when the chart was constructed, and that no distinguishing name is assigned either to the channel up which Vancouver sailed to the northward, or to the portion of the Gulf in the 49th parallel of north latitude. Her Majesty's Government accordingly contends, (1,) that the boundary line, which is directed by the Treaty to be continued westward along the 49th parallel of north latitude to the middle of a channel without any distinguishing name, and thence southerly through the middle of the said channel and of Fuca's Straits, is intended by the words of the Treaty to be drawn through the middle

of a channel which bad, at that time, no distinguishing name; [28] and (2) that, as the channel now called the Rosario *Strait is

found in the charts of the period (1846) without any distinguishing name assigned to it, and in other respects corresponding with the requirements of the Treaty, such channel ought to be preferred to the Canal de Haro, which bore a distinguishing name at that period.

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Her Britannic Majesty's Government contends, on this part of the case, that to draw the line through the middle of the waters distinguished in Vancouver's Chart from the Channel, through which he sailed, by the name of the "Canal de Arro," and which waters are represented in that chart as unsurveyed, would be to continue the line not through the said Channel"—that is, a Channel without any distinguishing name-but through a channel which, at the time the Treaty was made, was distinguished by name from the channel surveyed by Vancouver. No reason can well be assigned, if such a channel was contemplated by both parties, why it should not have been designated by its distinguishing name to prevent all uncertainty.

But it may be said that there is evidence that the Canal de Haro was contemplated by the United States Government, and that they had charts in their possession which satisfied them that it was a navigable and safe channel, equally as the channel along which Vancouver sailed. The reply to such an argument is not far to seek. If it can be established that one of the parties to the Treaty had knowledge only of one navigable Channel corresponding to the provisions of the Treaty, the fact

that the other party was aware of another navigable Channel could never justify such an interpretation being given to the Treaty as should bind the former to accept the Treaty in a sense of which it did not know it to be capable, when the Treaty may be interpreted in a sense in which both parties were aware that it was capable of being interpreted. The reason of the thing is against such an interpretation as has been proposed to be given to the Treaty on the part of the United States Government.

There is a further reason why the Canal de Haro does not satisfy the language of the Treaty.

[29]

The commencement of the boundary line, which is to be drawn southerly, is described in the Treaty as being in a Channel under the 49th parallel of north latitude; but a glance at the chart will satisfy His Imperial Majesty that the Canal de Haro cannot, in any proper sense of the words, be held to commence under that parallel. It has a distinct commencement between Saturna Island and Patos Island, under a lower parallel. It has, therefore, not only a distinguishing name, but it has its physical characteristics which distinguish it from the channel described in the Treaty of 1846 as identical with the channel under the 49th parallel of north latitude.

THE FIFTH RULE OF INTERPRETATION.

A favourable interpretation to be pre

The fifth rule of interpretation, to which Her Britannic Majesty's Government has invited the attention of His Imperial Majesty, is, that Treaties are to be interpreted in a favourable rather than in an odious sense. "We are not to presume," says Vattel, (sec. 30,) "without any strong reasons, that one of the Contracting Parties intended to favour the other to his own prejudice, but there is no danger erred to an odious in extending what is for the common advantage. If, there- interpretation. fore, it happens that the Contracting Parties have not made known their will with sufficient clearness and with all the necessary precision, it is certainly more conformable to equity to seek for that will in the sense most favourable to equality and the common advantage."

The Charts in use

in 1846.

Chart No. 2.

Now, it may be stated by Her Majesty's Government without fear of contradiction, that, at the time when the Treaty of 1846 was signed at Washington, no charts were in use by those who navigated the interior sea between the Continent and Vancouver's Island, but Vancouver's Chart and possibly a Spanish Chart, purporting to be constructed in 1795 upon the surveys made by the Sutil and Mexicana. Of the latter chart, indeed, Her Britannic Majesty's Government had no certain knowledge in 1846, for the only Spanish chart of those waters, which is to be found in the archives of the British Admiralty at Whitehall, did not come into its possession until 1849. In neither, however, of those Charts are [30] *there are any soundings of a navigable passage through the Canal de Haro. It is true, indeed, that in the Spanish Chart some soundings are given of Cordova Channel, in which the boats of the Sutil and Mexicana appear to have crept close along the shore; but there are no soundings to guide a vessel out of the Canal de Haro into any part of the upper waters, which are south of 49° parallel of north latitude. An interpretation, therefore, of the Treaty, which would declare the Canal de Haro to be the channel down which the boundary line is to be carried, would be to declare that Her Britannic Majesty's Government, when it concluded the Treaty of 1846, intended to favour the United States Government to its own prejudice; for it would be to

declare that Her Britannic Majesty's Government intended to abandon the use of the only channel leading to its own possessions which it knew to be navigable and safe, and to confine itself to the use of a channel respecting which it had no assurance that it was even navigable in its upper waters for sea-going vessels; nay, respecting which it is not too much to say that Her Britannic Majesty's Government had a firm belief that it was a dangerous strait. On the other hand, an interpretation which would declare Vancouver's Channel, now distinguished by the name of the Rosario Strait, to be the common boundary, will give to both Parties the use of a Channel, which was known to both Parties at the time when the Treaty was made to be a navigable and safe channel. The two Parties in respect of such an interpretation would be placed in a position of equality.

THE SIXTH RULE OF INTERPRETATION.

The sixth Rule of Interpretation, which is a corollary to the next preceding Rule, and which is also submitted to the attention of His Imperial Majesty, is that, in case of doubt, the presumption is in favour is in favour of the of the possessor of a thing; in other words, the party who en possessor of a thing. deavours to avoid a loss has a better cause to support than he who aims at obtaining an advantage.

The presumption

It has been already said that the Channel in use in 1846, and [31] the only Channel in use by *British vessels navigating from the Straits of Fuca to the stations of the Hudson's Bay Company on Frazer's River, and elsewhere north of the 49th parallel of north latitude, was the channel surveyed by Vancouver, and of which soundings are given in his Chart.

Chart No. 2.

The Government of the United States contends for an interpretation of the Treaty which will dispossess British vessels of the use of this channel. There is no evidence, on the other hand, that the Canal de Haro was used by vessels of the United States prior to the Treaty of 1846.

Her Britannic Majesty's Government, on the other hand, is not contending for an interpretation of the Treaty which will deprive the citi zens of the United States of any right habitually exercised by them prior to the Treaty. If, indeed, the United States Government had knowledge from unpublished surveys or otherwise, prior to the Treaty of 1846, that the Canal de Haro was a navigable and safe channel, it cannot be denied that citizens of the United States, if they used any channel at all prior to 1846, made use of the channel now called the Rosario Strait. It is submitted accordingly to His Imperial Majesty, that an interpretation of the Treaty, which declares the Rosario Strait to be the channel, through the middle of which the boundary line is to be drawn, will continue to American citizens the full enjoyment of such rights of navigation as were exercised by them prior to the Treaty, whilst a declaration in favour of the claim of the United States will strip British subjects of corresponding rights. Wherever there is doubtful right, it is less repugnant to equity to withhold from a claimant the enjoy ment of a thing, which he has never possessed, than to strip the possessor of a thing of which he has habitually had the enjoyment.

The question whether any third channel, other than the Rosario Strait or the Canal de Haro, would satisfy the requirements of the Treaty of 1846, has not been touched upon by Her Britannic Majesty's Government for these reasons-amongst others, that the existence of

any intermediate navigable channel was unknown to both the [32] Contracting Parties at the time when the Treaty of *1846 was sigued, and the Government of the United States has never con

tended for any such channel. Besides, Her Britannic Majesty's Government presumes that the true interpretation of the Treaty of 1846 is to be sought rebus sic stantibus, that is, upon the state of facts known to both parties at the time when the Treaty of 1846 was concluded.

On the above considerations of fact and of public law, Her Britannic Majesty's Government submits to His Imperial Majesty that the claim of Her Britannic Majesty's Government that the portion of the boundary line which, under the terms of the Treaty of 15th June, 1846, runs southerly through the middle of the Channel which separates the Continent from Vancouver Island, should be run through the Rosario Strait, is valid, and ought to be preferred to the claim of the Government of the United States, that it should be run through the Canal de Haro.

RECAPITULATION OF FACTS.

The considerations of fact may be briefly recapitulated:

1. That the Channel now designated as the Rosario Strait in British charts, which designation embraced the Channel to the north as well as the south of the 49th parallel of north latitude in Spanish charts, was the only Channel between the Continent and Vancouver Island generally known and commonly used by sea-going vessels at the time when the Treaty of 15th June, 1846, was made, and that the words "The Channel," in the signification which common usage affixed to them at that time, denoted those waters.

Appendix No. 2.

2. That the context of the first and second paragraphs of Article 1 of the Treaty of 15th June, 1846, requires that the boundary line should be continued through the middle of a Channel so as to enter the head waters of Fuca's Straits, which is practicable, if the line should be run through the Rosario Strait, but is impractica ble if it should be run through the Canal de Haro.

[33) *3. That the proviso in the third paragraph of Article I, which secures to either Party the free navigation of the whole of Fuca's Straits, is intelligible, as a necessary precaution, if the boundary line is to be run through the Rosario Strait, but is unnecessary and unreasonable if the boundary line is to be run through the Canal de Haro.

4. That a boundary line run through the middle of the Channel now called the Rosario Strait satisfies the great aim which either party had in view prior to the conclusion of the Treaty 15th June, 1846; and as that Channel had no distinguishing name at the time when the Treaty was made, it could not be otherwise described than as it is described in the Treaty. On the other hand, the Canal de Haro had a distinguishing name, and there was no reason, if the Canal de Haro was contemplated by both the High Contracting Parties at the time when the Treaty was made, why it should not have been described by its distinguishing name to prevent all uncertainty.

5. That a line of boundary run through the middle of the Rosario Strait, in accordance with the knowledge which both the High Contracting Parties possessed at the time when the Treaty of 15th June, 1846, was made, would have been favourable to both Parties, whereas a line of boundary run through the Canal de Haro would have deprived Her Britannie Majesty of a right of access to her own possessions through the only then known navigable and safe channel.

6. That it is more in accordance with equity that His Imperial Majesty should pronounce in favour of the claim of Her Britannic Majesty's Government than in favour of the claim of the Government of the United