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sufficiently proved by local observation, which shows that the principal body of water flows uninterruptedly from the Gulf of Georgia through the Rosario Strait, causing a regularity of current which is not found elsewhere; for the waters flowing through the Canal de Haro are split by the various islands contiguous to it in different directions, causing an irregularity and diversity of current which is not found in the Rosario Strait, and therefore the Canal de Haro cannot be deemed a continuance of the channel between Saturna Island and Vancouver's Island. Putting the question of current aside, I think a glance at the map as to which channel is in continuation of the Gulf of Georgia will sufficiently test the truth of what I assert.
“10. Having thus replied to the principal arguments you have advanced in support of the adoption of the Canal de Haro as the channel of the treaty, and having shown you how firmly satisfied I am of the correctness of my opinion as to the Rosario Strait being a channel which in all respects answers to the channel of the treaty, which the Canal de Haro does not, I trust you may, upon reflection, be induced to modify your view that the Canal de Haro is the only channel which, according to the language of the treaty, separates the continent from Vancouver's Island.'
“ With the highest consideration and esteem, I have the honour to subscribe myself your most obedient and humble servant,
66 JAMES C. PREVOST.”
The United States Commissioner rejoined in the following letter: (1)
- United States North-west Boundary Commission, “Camp Simiahmoo, 49th parallel, November 18th, 1857.
“SIR,-I have the honour to acknowledge the receipt of your letter of the 9th instant in reply to mine of the 2nd instant.
(1) American State Papers, p. 20.
“In the communication of my views, made in compliance with your request, I clearly showed from contemporaneous evidence what was the intention of the framers and ratifiers of the treaty of June 15th, 1846, in using the words describing the water boundary line between the territories of the United States and the British possessions.
“Although the language of the treaty alone is sufficiently explicit to my mind, the disagreement between us, in respect to a part of the distance through which the boundary line is to be traced, rendered it, in my opinion, desirable, if not necessary, in order to carry the treaty into effect, that we should arrive at a mutual understanding of the actual intention of the treaty makers, and for that purpose that we should resort to the ordinary mode of interpretation in cases of obscurity or uncertainty. I, therefore, deemed it but an act of frankness to exhibit to you the evidence I had in my possession of the intention of the British Government in framing the language of the treaty, and of the understanding of the United States Government in adopting it. Considering the character of this evidence, and the weight to which it is entitled, it is difficult for me to comprehend how you could resist the conclusion to which it so clearly led,—viz., that
the channel' referred to in the treaty was intended to apply to the Canal de Haro.
“ With this clear and satisfactory evidence, answering in the fullest manner to the requirements of the rules laid down for ascertaining the true meaning of the language of a treaty, it is pursuing the shadow instead of the substance to confine ourselves to its mere words; and, judging by the course of argument adopted by you in your present communication, I infer that you do not now altogether disagree with me in that opinion. As you seem, however, to attach importance to what you call the peculiar wording of the treaty in regard to the relative position of the words, the continent and Vancouver's Island, I have carefully considered your argument thereon, but cannot perceive its force. The words of the treaty are, the channel which separates the
continent from Vancouver's Island,' and, in my opinion, they are placed in their proper position. Nothing could be more natural, in tracing and describing the long line of land boundary from the Rocky Mountains westward, than for the authors of the treaty to place the continent before Vancouver's Island ; and it would be strange if they had done otherwise. Still I do not conceive that a change in the position of the words could make any difference in the meaning of the expression.
“ The argument you draw from Mr. Benton's speech on this point is the one of all others I should bring forward (if I thought any necessary) to show there was no peculiarity in the wording of the treaty, or, if there were any, that it was in favour of the Canal de Haro ; for Mr. Benton, after stating that the first article of the treaty is in the very words he would have used himself if the two Governments had allowed him to draw it up, and with the very words of the treaty before him as he spoke, uses the expression, the channel which separates Vancouver's Island from the continent,' as conveying precisely the same meaning as the language of the treaty; for he immediately thereafter declares that this language carries the line through the Channel de Haro, and gives us the cluster of islands' between that channel and the continent. Surely no fair deduction can be drawn from the remarks of Mr. Benton to show that the language of the treaty, in his opinion, required a transposition of the words to carry the boundary line through Canal de Haro. After using the expression, reversing the order of the words of the treaty, he says, 'I am in favour of the first article of the treaty as it stands.' He certainly would not have said this if, as you assert, he must have thought it required a change in the wording of the treaty to make the language applicable to the Canal de Haro.
“Your admission that the Canal de Haro is undoubtedly the navigable channel which at its position separates Vancouver's Island from the continent, in my opinion is equivalent to the settlement of the question — the continent, according to the well-known geographical fact that islands are appurtenant to the mainland, embracing as natural appendages to its coast the islands between it and the Canal de Haro. Your argument that the Rosario Straits must be the channel which separates the continent from Vancouver's Island would apply with equal force to Vancouver's Island if it were situated as far distant as the Sandwich Islands. For, you say: 'It would seem indisputable that where several channels exist between the two (that is, between the continent and Vancouver's Island) that channel which is the most adjacent to the continent must be the channel which separates the continent from any islands lying off its shores, however remote those islands may be.' This process of reasoning would elevate an island to a much higher degree of importance than a continent, by making all intermediate islands appendages to it instead of to the continent, a doctrine which I am not prepared to admit, nor do I think, upon further reflection, you will maintain.
“You decline to admit the correctness of my conclusion that if the term southerly' be taken in a strictly technical or nautical sense, the treaty cannot be carried into effect. But I do not understand you as denying the fact that the word
southerly' applies equally to the Straits of Fuca as to the channel which separates the continent from Vancouver's Island. Still, while denying a liberal construction of term as far as may be applicable to the Canal de Haro, you appear to be willing to appeal to the dictates of common sense, or to seek for the intention of the negotiators of the treaty when it applies to the Straits of Fuca. I must respectfully repeat, if the term “southerly,' as used in the treaty, is to be construed as you still construe it in relation to the course of the Canal de Haro, the same meaning must be given to it in regard to the course of the Straits of Fuca, for the channel and straits are so connected in the language of the treaty as to be governed by the preceding words, “southerly through the middle of.' The object of my remarks on that subject was to prevent the treaty from becoming a nullity, by adopting the natural meaning of the word instead of its
strictly technical or nautical sense; but it seems to me not entirely just to apply it in one sense to the Canal de Haro and in another to the Straits of Fuca. I think, therefore, you will be obliged to abandon your objection to the Canal de Haro on the ground that a line cannot be traced through it in a southerly direction. I refer to Mr. Benton's speech for his understanding of the word to confirm my own. In giving his reasons for voting in favour of the treaty he says: “When the line reaches the channel which separates Vancouver's Island from the continent, it proceeds to the middle of the channel, and thence turning south through the Channel de Haro to the Straits of Fuca, and thence west through the middle of that strait to the sea. Here is the true reading of the language of the treaty, and it is in perfect accordance with that contained in my letter of the 2nd instant.
“In your remarks upon the evidence of Mr. McLane and Mr. Benton, showing which channel' was intended and proposed by the British Government, and understood and accepted by the United States Government, you observe that (it has had its full weight' with you, but add that neither Mr. McLane nor Mr. Benton were the actual negotiators of the treaty, and however valuable their opinions may be to the elucidation of obscure points, yet these opinions can in no way alter the actual wording and terms of the treaty.'
"I am not aware that there is any rule in the law governing the interpretation of treaties that would require the evidence of the actual negotiators. What is required in such cases is that which was probably in the thoughits of the author or authors of the treaty. And here I beg to call your attention on that point to the quotations (in my letter of the 2nd instant) from Vattel in his article on the interpretation of treaties, by which you will perceive that I have gone much further than is required. I have shown their actual intentions at the time the treaty was drawn up, proposed, and accepted, and I propose to go a step further and show that this intention and understanding remained unchanged up to the complete ratification of the treaty by both Governments.