CHAPTER X.

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: (2)—

"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.'" (3)

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.

(3) Vattel, lib. ii., c. xvi., § 263.

(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

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.