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he was justified in doing, and, indeed, bound to do) upon a careful consideration of the wording of the treaty.
On the 2nd November, 1857, the United States commissioner, then encamped at Simiahmoo, replied as follows:(
“Sir, I have the honour to acknowledge the receipt of your letter of the 28th ultimo, embodying your views in relation to the determination of the water boundary between the United States and the British possessions, as described in the first article of the treaty of June 15th, 1816 ; and, in compliance with your request, I herewith communicate my views on the subject for your consideration.
“ The following is the description of the whole boundary line, that part of it relating to the water boundary being underscored :
“From the point of the forty-ninth parallel of north latitude, where the boundary laid down in existing treaties and conventions terminates, the line of boundary between the territories of the United States and those of Her Britannic Majesty shall be continued westward along the said forty-ninth 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 Strait, to the Pacific Ocean; provided, however, that the navigation of the whole of the said channel and straits south of the forty-ninth parallel of north latitude remain free and open to both parties.'
“ It was conceded on both sides, in our recent discussions, that there would be no difficulty in tracing the boundary line through the Gulf of Georgia and the Straits of Fuca (the northern and southern extremities of the line between the forty-ninth parallel and the Pacific Ocean); but as there are several navigable channels connecting their waters, a question
(') American State Papers, p. 11.
arose as to which of these was the channel intended by the treaty. These channels are caused by a cluster of islands, and are of various dimensions. Among them, however, one is found pre-eminent as to width, depth, and volume of water, and in every respect satisfying the requirements of the treaty. This channel has been known since its first discovery as the Canal de Haro, and was the only one usually designated by name on the maps in use at the time the treaty was under consideration. 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 shore 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
- The objection raised that for a short distance it would not carry the boundary line in a southerly direction, and thus fails to meet one of the requirements of the treaty, I think will apply 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, thence southerly through the middle of the said channel, and of Fuca Straits to the Pacific Ocean, the direction applies throughout the whole extent of line. If objection is made on this ground, the treaty will be nullified, and cannot be carried into effect. It is quite evident, however, that the term southerly' is to be understood only in its common and general sense. It is undoubtedly used here in apposition to northerly, and simply to show that Vancouver's Island is to be left on the British instead of the American side of the line, for it can hardly be supposed that the framers of the treaty would have ventured, with the general maps before them, to decide upon the whole course of the line, except in the most general terms. The impracticability of applying the same test to the Straits of Fuca, clearly shows in what sense the term is to be understood. “ Besides the Canal de Haro, there is a prominent channel nearer to the mainland, known at present upon the Coast Survey and British Admiralty charts as Rosario Strait. The early Spanish navigators called it the Canal de Fedalgo. Captain Wilkes named it Ringgold's Channel. It is sometimes called Vancouver's Straits or Channel; but, except on the Spanish Admiralty maps, I cannot learn that it was ever designated by name on any of the general maps of the northwest coast likely to be used at the time the treaty was made. Rosario Strait is a navigable channel, but it does not separate the continent from Vancouver's Island. In no part of its . course does it touch upon the shore of either. It separates the islands of Lummi, Sinclair's, Cypress, Guemes, and Fedalgo, on the east ; from Orcas, Blakely, Decatur, and Lopez Islands on the west; but in no respect does it separate the continent from Vancouver's Island, and cannot, therefore, in my opinion, be claimed, in accordance with the language of the treaty, as the channel therein referred to.
“ There is also another navigable channel connecting the Gulf of Georgia with the Straits of Fuca. It passes between the islands of San Juan, Spieden, and Stewart on the west, and Waldron, Orcas, Shaw, and Lopez on the east; but, like Rosario Straits, fails to touch the continent or Vancouver's Island. There are besides other channels no doubt navigable, but none except the Canal de Haro answer the requirements of the treaty in all respects.
“Although I do not regard the relative merits of the navigability for sailing vessels of the Canal de Haro and Rosario Straits as having any bearing on the determination of the question before us, both being acknowledged navigable in the sense of the treaty, yet, as you have expressed an opinion thereon unfavourable to the Canal de Haro, I must beg respectfully to call your attention to the remarks of Captain Alden, of the United States navy, on the same subject. This gentleman was for many years in charge of the Hydrographic Survey of the Pacific coast, and during the working seasons of three years was engaged in examining and surveying
these channels. In a report to the Superintendent of Coast Survey in 1855, he says :— The Gulf of Georgia and Straits of Fuca are connected by two good ship channels, called on the charts Haro and Rosario Straits. They are of sufficient width, and navigable for vessels of the largest class. The great depth of water presents a difficulty, but anchorage may be had for the most part, as the chart shows, at convenient distances along the shores. In a previous report, in 1853, in comparing the two channels, he says, that in almost every respect the Canal de Haro is the better of the two channels. And again in the same report, after speaking of the various channels, he says, “It will be seen that the Canal de Haro is the widest, deepest, and best channel.' He expressed to me frequently the same opinion after my arrival on this coast, during the brief period in which he was attached to the Boundary Commission as commander of the coast survey steamer Active. My great deference to your knowledge of nautical affairs obliges me to avail myself of the opinions of one of the most experienced and accomplished officers of our navy and coast survey upon a subject relating purely to navigation. No person, however, can travel on these inland waters, and through these channels, and fail to be impressed with the idea of their peculiar adaptation to steam navigation, and the belief is general that eventually steamboats will supersede, in a great measure, the use of sailing vessels.
- The Canal de Haro, being a much shorter communication between the Gulf of Georgia and the Pacific Ocean, would then have an advantage over Rosario Straits.
“From the views hereinbefore expressed, you will perceive that even if we adhere to the mere letter of the treaty, I am firmly convinced that the Canal de Haro is the channel through which the boundary line should pass, and unless your consideration thereupon should modify your views, we are still as far from a determination of the boundary line as when we commenced the discussion of the subject. Therefore, should your opinion remain unchanged, it must be evident that, by taking the literal reading of the treaty alone as your guide, we are not likely to come to an agreement, nor will its 'precise wording' solve the doubt which you intimate may arise at first sight of the chart, as to which of the two channels the boundary line should pass through. I therefore think it becomes necessary to look beyond the mere words of the treaty, and endeavour, if possible, to reach the actual intentions of the treaty makers, or using them, for, undoubtedly, they must have had in their minds some particular channel, though not designated by name in the treaty.
“ The rule laid down by Vattel is, that, as soon as we meet with any obscurity in a treaty, we should seek for what was probably in the thoughts of those who drew it up, and interpret it accordingly.
“Now, however clear it may be to me that the Canal de Haro is the channel,' taking the words of the treaty in the most literal sense consistent with its execution, yet the fact that you are as firmly convinced that Rosario Straits is
the channel' would imply that there was some obscurity in the language of the treaty before us. Vattel also says :
666 It is a question in the interpretation of a treaty, to know what the contracting powers have agreed upon, in order to determine precisely, on any particular occasion, what has been promised and accepted; that is to say, not only what one of the parties has had the intention to promise, but, also, what the other has reasonably and sincerely thought to be promised, what has been sufficiently declared to him, and upon which he must have regulated his acceptance. ... The interpretation of every act, and of every treaty, ought, then, to be made according to certain rules proper to determine the sense of them, such as the parties concerned must naturally have understood when the act was prepared and accepted.'
“ 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.'