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ment of Captain Prevost, the British commissioner, is to my mind conclusive. Vattel says,(1) 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 () Vattel, lib. ii., c. xvii., § 271.

of expression exactly the reverse of what they did

use.

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 guided.

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." ()

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 :(4)—

the

"The reason of the law or of the treaty, that is to say motive which led to the making of it, and the object in con

(1) Wheaton. Ed. 6, p. 355.

(3) Vattel, lib. ii., c. xvii., §§ 268, 270.

(2) Vattel, lib. ii., c. xvii., § 263.

(4) Idem, §§ 287, 288.

templation at the time, is the most certain clue to lead us to the discovery of its true meaning; and great attention should be paid to this circumstance, whenever there is question either of explaining an obscure, ambiguous, indeterminate passage in a law or treaty, or of applying it to a particular case. When once we can certainly know the reason which alone has determined the will of the person speaking, we ought to interpret and apply his words in a manner suitable to that reason alone. Otherwise he will be made to speak and act contrary to his intentions, and in opposition to his own views. Pursuant to this rule, a prince, who, on granting his daughter in marriage, has promised to assist his intended son-in-law in all his wars, is not bound to give him any assistance if the marriage does not take place.

"But we ought to be very certain that we know the true and only reason of the law, the promise, or the treaty. In matters of this nature, it is not allowable to indulge in vague and uncertain conjectures, and to suppose reasons and views where there are none certainly known. If the piece in question is in itself obscure-if, in order to discover its meaning, we have no other resource than the investigation of the author's views, or the motives of the deed-we may then have recourse to conjecture, and, in default of absolute certainty, adopt, as a true meaning, that which has the greatest degree of probability on its side. But it is a dangerous abuse to go, without necessity, in search of motives and uncertain views in order to wrest, restrict, or extend the meaning of a deed which is of itself sufficiently clear, and carries no absurdity on the face of it. Such a procedure is a violation of that incontestable maxim, that it is not allowable to interpret what has no need of interpretation. Much less are we allowed, when the author of a piece has in the piece itself declared his reasons and motives, to attribute to him some secret reason which may authorise us in giving an interpretation repugnant to the natural meaning of the expressions. Even though he should have entertained the views which we attribute to him, yet, if he has concealed them and announced different ones, it is upon the latter alone