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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 Straits 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."
There is not one word in the treaty as to the contention on the part of the United States Government, that the line was deflected from the forty-ninth parallel, solely in order to give us possession of Vancouver's Island. Looking at the language of the treaty, the inference would be that the line was deflected in order to give to Great Britain a free navigation of the entire channel or Straits of Georgia.
The phrases upon which a construction must be placed are “channel," “ separates the continent from Vancouver's Island," "and thence southerly through the middle of the said channel and of Fuca Straits.” The word channel is used twice, but in each case it refers to the same channel. I think there can be no doubt as to the meaning of the word: on the one hand, a shallow strip of water would not satisfy its meaning, since it must be a navigable channel; on the other hand, a uniform depth of sixty feet would not be required in order to constitute such a formation. The Rosario Channel (1) is of sufficient width, and is navigable for vessels of the largest class. Great depth is unfavourable to navigation, inasmuch as no anchorage can be found. With reference to the second phrase, the argu
(1) American State Papers, p. 13.
ment of Captain Prevost, the British commissioner, is to my mind conclusive. Vattel says, (\) that treaty makers should not designedly depart from the common usage and appropriate meaning of words, and that it is presumed that they have conformed to established custom in this particular, as long as no cogent reasons can be adduced to authorise a presumption to the contrary; for that the presumption is, in general, that things have been done as they ought. In the present case the form of language commonly used is exactly reversed; instead of saying “which spearates Vancouver's Island” (the lesser) “from the continent” (the greater), the treaty says, “which separates the continent (the greater) from Vancouver's Island (the lesser). Had the contracting parties used the ordinary form of expression, there might have been some room for argument on the part of the United States, but the parties (judged by their own language) were careful to exclude all possibility of doubt or argument by departing from the usual mode of expression, and using a form by which their meaning is most clearly and unmistakably evidenced.
The contracting parties evidently placed themselves in the position of a man walking westwards along the continent, laying down the boundary line, and then, taking the nearest channel, that is, the one “ which separates the continent,” drawing the boundary line down the middle thereof. So, if they had commenced the demarcation of the boundary line from Vancouver's Island, they would have made use of a form
(1) Vattel, lib. ii., c. xvii., § 271.
of expression exactly the reverse of what they did
But the channel intended by the treaty must fulfil other conditions besides being navigable and being the one “separating the continent from Vancouver's Island;” a line commencing from the north of it, drawn through the middle of it, must run in a southerly direction. The words of the treaty which refer to this point should be construed as follows: "and thence southerly through the middle of the said channel and [through the middle of Fuca Straits to the Pacific Ocean." Any other interpretation would lead to an absurdity, and, therefore, according to Vattel, ought to be rejected (1). Now it is strange that the negotiators of the treaty did not use the words “due south,” instead of “southerly," and the use of the latter form of expression powerfully supports the contention of Great Britain. Three main channels are recognised by geographers as running between the continent and Vancouver's Island: the Haro Strait, in fact composed of two channels, the one proceeding in a westerly, the other in a southerly direction; the channel of the compromise proposed by Lord Russell, also made up of two or more channels; and the Rosario Strait.
In order to fulfil the requirements of the treaty, the “channel” must be a continuous channel separating the continent from Vancouver's Island, running from the north in a southerly direction, and joining the Straits of Fuca. I venture to submit that the Rosario Strait is the
(1) Vattel, lib. ii., c. xvii., § 282.
only channel which fulfils all these requirements, and that it fulfils them strictly and to the letter.
Firstly.-The stretch of water, flowing from the middle of the Straits of Georgia, on the forty-ninth parallel of north latitude, through the Rosario Straits, and to the Straits of Fuca, may be correctly described as one continuous channel. The Haro Strait, as has been stated above, is made up of two distinct channels, one called the Saturna Channel, the other Haro Strait proper. The same remark applies to the channel of the compromise, which, as a glance at the map will show, is also made up of one or more distinct channels or straits.
Secondly.--The Rosario Strait separates the continent of America from Vancouver's Island, which the other channels cannot, according to the ordinary and received use of language, be said to do.
Thirdly.—The last-mentioned strait is a channel through the middle of which a line could be drawn which would run from the forty-ninth parallel, “southerly” and “through the middle of Fuca Straits to the Pacific Ocean.” A line drawn through the Haro Strait channel would run first southerly, then due west, and then southerly to the Straits of Fuca.
It is contended, however, on the part of the United States, that the literal reading or precise wording of the treaty can lead to no safe or certain conclusion as to its meaning; and it is sought to open a vague and unsatisfactory inquiry into the intentions of the contracting parties and the motives by which they were actuated. (1)
(1) American State Papers, p. 13.
It is obvious that such an inquiry, if it be admitted, must be conducted according to certain principles; and inasmuch as the commission on the part of the United States has appealed to Vattel, and inasmuch as their great international jurist, Mr.Wheaton, (1) has not discussed the principles by which such an inquiry should be governed, but has referred his readers to that author, I shall proceed to extract from the work of Vattel the rules by which such an inquiry ought to be guid-d.
The first general canon of interpretation laid down by Vattel, is, as has been stated, that “it is not allowable to interpret what has no need of interpretation.” (R)
This fundamental maxim is followed by the statement, that “in the interpretation of a treaty, or of any other deed whatsoever, the question is, to discover what the contracting parties have agreed upon;" and assuming that the terms of the treaty require interpretation, he proceeds to lay down certain fixed rules on which such interpretation ought to be formed. (3)
These fixed rules are stated in minute detail, and are supported with all the prolixity and profuse illustration by which his work is everywhere characterised. I shall, therefore, refer only to those which appear to me to bear immediately upon the question in hand.
The first of them runs as follows:
“ The reason of the law or of the treaty, that is to say the inotive which led to the making of it, and the object in con