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repudiating the very peculiar wording' of the treaty, and Captain Prevost's interpretation of the word 'southerly,' informed me that the Earl of Clarendon seemed to attach some importance to them. I cannot but think, therefore, that these instructions or suggestions have been purposely omitted from the extract, and, as they really formed the great obstacles to an agreement between Captain Prevost and myself, I think it important they should be obtained.
“A difficulty has also occurred in regard to an agreement upon the common initial point of the water and land boundary on the west side of Point Roberts, which, probably, is also the result of instructions. And I have also good reason to believe that Captain Prevost was authorised in some shape or form to negotiate with me for the disposal of the southern end of Point Roberts by exchange, make - weight, or oherwise, The manner in which the demarcation of the line across Point Roberts is held in abeyance by the refusal of the British commissioner to mark it as the initial point, satisfies me that considerable importance is attached by the British Government to the possession of it, and that they hope by some fortuitous circumstance to secure it.
“As the department has furnished the British Government with a full copy of my instructions, there is no reason why they should not in return furnish full copies of their commissioner's instructions. I would therefore respectfully recommend that a full copy of the instructions of Captain Prevost be requested for the information of the Government, and that when received, a copy of so much of them as I have not already received in the extract be transmitted to me.
“I transmit herewith, for the information of the department, a recent correspondence with Captain Prevost, from which it will be seen that there is little prospect of any progress in the determination of the line until the British Government are called upon to give their commissioner peremptory instructions to adopt the Canal de Haro. At present he seems to be divested of all power to act by his reference of the question to his Government, a condition of affairs anything but satisfactory. “ Circumstances to which I will allude in a subsequent communication (1) show the necessity of a speedy settlement of the boundary question. And I would strongly urge upon the department decisive measures to bring it about.
“As far as I am concerned, I am, as I have ever been, ready to settle it upon principles of common sense and international law. It is for the department to take such steps as will provide me with a colleague whose powers shall be equal to my own, and whose sense of right and duty will not be so crippled by special instructions for his guidance as to render the honest and faithful execution of the treaty an impossibility. “I have the honour to be, very respectfully, “Your obedient servant,
“ARCHIBALD CAMPBELL, “Commissioner North-west Boundary Survey. “ Hon. Lewis Cass, Secretary of State.”
It is desirable, both in the interests of Great Britain and the United States, that Point Roberts should be placed in the possession of Great Britain, although by the treaty it is given to the United States. If its possession be insisted on by the latter country, a valueless strip of land jutting out into the sea will be placed beyond the jurisdiction of the adjoining territory of British Columbia. Being also, by its position and little value, placed virtually out of the jurisdiction of the nearest United States authorities, this strip of land will prove a refuge for the wrongdoers of both countries, and will be the source of numerous disputes.
(1) American State Papers, p. 112.
Ir further argument be necessary in aid of that of Capt. Prevost, I would base the claim of Great Britain to the Haro Archipelago firstly and mainly upon the clear and express language of the treaty of 1846, and shall contend that no gloss or explanation of the same can be given outside the words themselves of that treaty, as, for example, by evidence of the probable views and intentions of its negotiators.
Secondly (if such gloss or explanation be admitted), I shall argue that from the nature of the subject, from its inherent probabilities, from the evidence which is extant as to the views and intentions of the negotiators, from that which is required by international equity and by strict justice, as tending to place the contracting parties on an equality, the claim of Great Britain to the archipelago is incontestable.
In proceeding to construe this treaty, I do not think it absolutely necessary, but it may be convenient (having regard to the statements above quoted of Mr. Campbell), to state that the negotiator on the part of Great Britain was evidently actuated by perfect good faith; and was influenced by no desire or thought of overreaching the United States, or of leaving any loophole (as is sometimes done by parties contracting) for escape from the provisions of the contract into which he was about to enter. It will be conceded
that (as Chief Justice Eyre remarked in his judgment, delivered with reference to another treaty between Great Britain and the United States), “ The negotiations (of Great Britain) have been at all times distinguished for their good faith, to a degree of candour which has been supposed sometimes to have exposed it to the hazard of being made the dupe of more refined politicians.” (1)
Good faith on our part being conceded (and I do not intend to argue for one moment that the Government of the United States was not actuated by the most sincere good faith), I shall adopt a canon or rule of construction laid down by the learned judge above referred to :o)
“We have but one rule by which we are to govern ourselves. We are to construe this treaty as we would construe any other instrument, public or private. We are to collect, from the nature of the subject, from the words and from the context, the true intent and meaning of the contracting parties. This rule is identical in principle with Vattel's first general maxim of interpretation : ‘It is not allowable to interpret what has no need of interpretation.?" (8)
This rule of construction has also the support of the authority of the late Lord Brougham, who, in a judgment upon the construction of an Act of Parliament, said:1—
“ The construction of the Act must be taken from the bare
(1) In the case of Marryat v. Wilson. Bosanquet and Pullen's “ Reports,” p. 436.
(2) Idem, p. 439.
(4) In the case of Crawford v. Spooner. Moore's “ Indian Appeal Cases,” Vol. 4, p. 187.
words of the Act. We cannot fish out what possibly may have been the intention of the Legislature ; we cannot aid the Legislature's defective phrasing of the statute; we cannot add and mend, and by construction, make up deficiencies which are left there. If the Legislature did intend that which it has not expressed clearly, much more, if the Legislature intended something very different, if the Legislature intended something pretty nearly the opposite of what it said, it is not for judges to invent something which they do not meet with in the words of the text, aiding their construction of the text always, of course, by the context ; it is not for them so to supply a meaning, for, in reality, it would be supplying it. The true way in these cases is to take the words as the Legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question controlled or altered, and, therefore, if any other meaning was intended than that which the words purport plainly to import, then let another Act supply that meaning, and supply the defect in the previous Act.”
I shall, then, in accordance with the above authorities, construe the language of the treaty without any reference either to the probable intentions of its framers (other than can be gained from the context) or to any extrinsic evidence, and shall consider the subject as though everything which they ought to have provided for has been provided for, and as though the hydrography, topography, and geological formation of the district were as well known to them as it is to us at this day.
The words requiring explanation run as follows:
“ The line of boundary between the territories of Her Britannic Majesty and those of the United States shall be continued westward along the said forty-ninth parallel of north