Case of the government of Her Britannic Majesty.

His Majesty the Emperor of Germany having consented to accept the office of arbitrator between the Government of the United States of America and the Government of Her Britannic Majesty, under the provisions of Article XXXIV of the treaty concluded at Washington on the 8th May, 1871, between the United States and Her Britannic Majesty, the Government of Her Britannic Majesty submits to the consideration of His Majesty the Emperor of Germany, in pursuance of Article XXXVI of the said treaty, the following case:

THE QUESTION FOR DECISION.

The question submitted to the decision of His Imperial Majesty affects so much of the boundary-line between Her Britannic Majesty’s possessions in North America and the territories of the United States as is comprised between the continent of America and Vancouver Island.Charts Nos. 3 and 4

The boundary-line is described in the treaty between the United States and Great Britain, of June 15, 1846, in the following general terms:Appendix No. 2.

TREATY OF JUNE 15, 1846.

From the point on the forty-ninth parallel of north latitude, where the boundary-line laid down in existing treaties and conventions between *Great Britain and the United States terminates, 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 Island, and thence southerly, through the middle of the said channel and of Fuca’s 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.Article I.[2]

The question more immediately submitted to the decision of His Imperial Majesty is described in Article XXXIV of the treaty of 8th May, 1871, in the following terms:Appendix No. 1.

TREATY OF MAY 8, 1871.

Whereas it was stipulated by Article I of the treaty concluded at Washington on the 15th June, 1846, between Her Britannic Majesty and the United States, that the line of boundary between the territories of the United States and those of Her Britannic Majesty, from the point on the forty-ninth parallel of north latitude, up to which it had already been ascertained, should be continued westward along the said parallel of north latitude to the middle of the channel which separates the continent from Vancouver Island, and thence southerly through the middle of the said channel and of Fuca Straits to the Pacific Ocean; and whereas the commissioners appointed by the two high contracting parties to determine that portion of the boundary which runs southerly through the middle of the channel aforesaid were unable to agree upon the same; and whereas the government of Her Britannic Majesty claims that such boundary-line should, under the terms of the treaty above recited, be run through the Rosario Straits, and the Government of the United States claims that it should be run through the Canal de Haro, it is agreed that the respective claims of the government of Her Britannic Majesty and the Government of the United States shall be submitted to the *arbitration and award of His Majesty the Emperor of Germany, who, having regard for the above-mentioned article of the said treaty, shall decide thereupon finally and without appeal which of those claims is most in accordance with the true interpretation of the treaty of June 15, 1846.[3]

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It will be observed by His Imperial Majesty, that whereas the treaty of June, 1846, speaks only of the channel which separates the continent from Vancouver Island, through the middle of which the boundary line is to be run, the treaty of 1871 speaks of the Rosario Straits and the Canal de Haro as if there was more than one channel between the continent and Vancouver Island through which the boundary line may be run and be continued through the middle of Fuca’s Straits to the Pacific Ocean.

It will be convenient, therefore, to bring to the attention of His Imperial Majesty at once the hydrography of the entire space between the continent and Vancouver Island south of the forty-ninth parallel of north latitude, according to the best information which is in the possession of Her Majesty’s government.

THE STRAIT OF GEORGIA.

The forty-ninth parallel of north latitude, continued westwardly, ac cording to the provisions of the treaty of June 15, 1846, strikes the upper waters of the ancient Gulf of Georgia, designated by the Spaniards El Canal del Rosario, in Semiahmoo Bay. These waters are now termed, in British charts, the Strait of Georgia. Continued across that bay, the parallel line intersects a narrow peninsula, the extreme of which was named, by Vancouver, Point Roberts. This point extends about one and three-quarter miles (English) south of the parallel line. Continued across the Strait of Georgia, the parallel line strikes at an acute angle a line drawn southerly through the middle of the channel.Chart No. 4.

Respecting so much of the boundary-line as extends to the middle of the Strait of Georgia, there is no controversy between the high contracting *parties to the treaty of June 15, 1846, that it terminates at a point on the parallel of 49° north latitude in the middle of the Strait of Georgia. It is with regard to the line to be *drawn southerly from the parallel of 49° north latitude through the middle of the channel that the commissioners of the high contracting parties have been unable to agree. The true direction of such a line drawn toward the Strait of Fuca would appear, from a survey of the waters, to be southeast by east for a distance of about nineteen miles, where the Strait of Georgia gradually expands to a width of nearly forty miles, and may be said to lose the characteristic features of a single strait.[4]

The space now entered upon is encumbered by numerous islands, varying in size and character, among which are three navigable channels leading into Fuca’s Straits.

The most eastern of the three channels has been of late termed in British charts the Rosario Straits, and in American charts Ringgold’s Channel. The most western is termed in British charts the Haro Strait, and in American charts the Canal de Arro. The latter term has been borrowed from the Spaniards, who term the lower part of the strait the Canal de Lopez de Haro.

There are, besides, other narrow passages; but they may scarcely be considered as highways for ships passing from the Strait of Georgia into Fuca’s Straits.

THE ROSARIO STRAIT.

From a point midway between Saturna Island and the continent and four miles (English) south of Point Whitehorn, on the shore of the continent, the waters of the Strait of Georgia merge [Page 63]on almost the same line of bearing (southeast by east) into those of the Rosario Strait, passing eastward of the small islands of Patos, Sucia, Matia, and Clark, thence between the large islands of Lummi and Orcas. At Point Lawrence, which is the eastward point of Orcas, the strait trends a little westward of south for three or four miles, (English,) and then leads by a due south course into the head-waters of the Straits of Fuca, the whose distance from the point above mentioned as where the Strait of Georgia merges in the Rosario Strait, being thirty miles, (English.)Chart No. 4.

The width of the Rosario Strait varies from six to one and one-third miles, (English.) At its northern entrance, between the Island of Sucia and Sandy Point, on the *continent, it is six miles (English) across; but the Alden Bank lies almost between those two points. There is, however, a clear passage of four miles (English) eastward of the bank, and a passage of one and a half miles (English) westward. The least water on the shoal part is two and one-fourth fathoms (English.) The bank itself is an extensive patch, being two and a half miles (English) north and south, and more than one mile (English) east and west. On the greater part of it, anchorage may be had in from five to nine fathoms, (English.) [5]

The bank is not really an impediment to the channel. The shoal part of it, which would be dangerous to a ship, is of small extent, and is easily avoided by good natural leading-marks during the day, and by the lead at night; while it is a manifest advantage to a sailing-vessel to be able to anchor in a moderate depth should calms, strong tides, or fogs render it desirable, and when it would probably be impossible to fetch a harbor. The width of the Rosario Strait, southward of the Alden Bank, soon decreases to three and a half miles and two miles, (English,) which latter is about its average breadth. Between Cypress and Blakely Islands it is as narrow as one and one-third miles; but soon opens out again to two and a half miles. The Bird and Belle Rocks lie almost in the center of the strait, three and a half miles (English) within its southern entrance. The former is an extensive rock, 15 feet above high water. The latter lies north-northeast of it, more than half a mile, (English,) and is covered until near low water. The tides, which sweep with considerable strength over these rocks, are calculated to render the passage between them dangerous to sailing-vessels in calms or fogs; but there is a good passage on either side of them; that to the eastward of them being one and three-fourths miles (English) wide, while the width of that to the westward is one and a half miles, (English.) The Williamson and Denis Rocks, which extend about one-third of a mile off the southwest side of Allan Island, are easily avoided. The former is 22 feet above high water; the latter awash at low spring tides.

The Davidson Rock, occasionally uncovering itself at low spring tides, lies three-fourths of a mile (English) east by south of Colville Island, *and is easily avoided, as it is marked by kelp. The only other hidden danger which has been discovered to exist in Rosario Strait is the Panama Reef, which extends one-third of a mile (English) off the northwest end of Sinclair Island. This reef is marked by kelp, and uncovers itself at low water. A rock, also, which is about the same distance west of Rock Islet, near the north end of Cypress Island, is also marked by kelp, and uncovers itself at low water.[6]

The tides in Rosario Strait run with considerable strength. In the narrow part between Cypress and Blakely Islands they have been found, during spring tides, to exceed six miles (English) an hour; in other [Page 64]parts of the strait their velocity is from two to five miles, (English.) The depth of water, however, being from twenty-five to thirty-five fathoms over the greater part of the strait, admits of vessels anchoring anywhere, if it should be necessary; but the most desirable stopping-places are Fidalgo Bay, on the western side of the island of the same name; Walmouth Bight, on the southeast side of Lopez Island; the Guemes Passage and Strawberry Bay, on the west side of Cypress Island.

THE CANAL DE HARO.

On the other hand, the Canal de Haro, from the point where the Strait of Georgia may be said to lose the characteristic features of a single strait, takes a direction about southwest and a halt south between the ease point of Saturna Island and the small Island of Patos, for a distance of eight miles, (English;) it then turns to the westward, and runs in a direction southwest by west for almost an equal distance, until between Stuart and Moresby Islands, where it turns to the southward, and runs for a farther distance of about twenty miles, (English,) trending to the southeast, when it strikes the Straits of Fuca.Chart No. 4.

The width of the Canal de Haro at its northern entrance, between East Point and Patos Island, is two and one-half miles, (English,) where, from the strong tides and irregularity of the bottom, heavy races occur; about the same width is carried tor twelve miles, (English,) when, between Turn Point and Moresby *Island, it decreases to something less than two miles, (English,) and the narrowest part, which is between Stuart Island and Cooper’s Reef, is one and three-fourths miles, (English.) After passing south of Henry Island, it gradually widens, and is more than six miles in breadth when it enters the Straits of Fuca.[7]

The water is deeper and the depth is more irregular in the Canal de Haro than in the Rosario Strait, and though the tides run with about equal velocity in both, the former is more subject to irregularities and races.

The eastern or San Juan shore of the canal is bold and steep.

After passing San Juan, when northward of Henry Island, very strong and irregular tides are met with, and there are rocks off Spieden Island which must not be approached too close.

Off Turn Point, on Stuart Island, there are strong whirls and eddy tides; and, unless with a commanding breeze, a sailing-vessel is liable to be turned round by them and lose the power of her helm.

On the western side of the canal the principal dangers are—

The Zero Rock, and its neighboring shoals in Cormorant Bay; also the Kelp Reefs, which extend southward and eastward of Darcy Island.

Cormorant Bay, however, affords good anchorage. To enter it vessels may safely stand in midway between Gordon Head and Zero Bock, and anchorage in nine fathoms, where they will be free from any considerable tide. The Low and Bare Islands, northward of Sidney Island, should not be approached very close, and Cooper’s Beef should be particularly avoided. The flood-tide sets strongly to the northwest through the Miner’s Channel, and sailing-vessels would be very liable to be set into it during light winds.

Plumper Sound, on the northern side of the bend of the strait, between Stuart Island and the east point of Saturna Island, is a good anchorage, with a moderate depth of water for vessels seeking shelter, and one [Page 65]of the few among the group of islands, which is of easy access to a sailing-vessel.

Cowlitz Bay, on the western side of Waldron *Island, is also an excellent stopping place, easy of access or egress.[8]

There are two small anchorages in Stuart Island, Reid and Prevost Harbors, but they are only suited to small vessels or steamers.

A vessel passing through the Canal de Haro may seek shelter in any of the above-mentioned anchorages, but the great depth and irregular nature of the bottom would render it impossible for her to anchor anywhere in the main channel.

Such is the most complete account which Her Majesty’s Government is able to lay before His Imperial Majesty respecting the hydrography of the two channels which are in controversy.

ORIGIN OF THE NAMES OF THE TWO CHANNELS.

With regard to the origin of the respective names of the two channels there is some uncertainty. Prom an account published by Mr. Robert Greenhow, the librarian of the Department of State of the United States, in his “History of Oregon and California,” (Boston, 1845,) it would appear that, in the summer of 1790, an attempt was made by the Spaniards to explore the waters supposed to be identical with a northwest passage leading into the Polar Sea, which, according to an ancient tradition, had been discovered in the sixteenth century by a Greek pilot called commonly Juan de Fuca. For that purpose, to quote Mr. Greenhow’s words, (History, p. 221,) “Elisa, the commandant of Nootka, detached Lieutenant Quimper, in the sloop Princess Royal, who traced the passage in an eastwardly direction, examining both its shores to the distance of about a hundred miles from its mouth, when it was observed to branch off into a number of smaller passages toward the south, the east, and the north, some of which were channels between islands, while others appeared to extend far into the interior. Quimper was unable, from want of time, to penetrate any of these passages; and he could do no more than note the positions of their entrances and of several harbors, all of which are now well known, though they are generally distinguished by names *different from those assigned to them by the Spaniards. Among these passages and harbors were the Canal de Caamano, afterward named by Vancouver Admiralty Inlet; the Boca de Flon, or Deception Passage; the Canal de Guemes, and the Canal de Haro, which may still be found under those names in English charts, extending northward from the eastern end of the strait; Port Quadra, the Port Discovery of Vancouver, said to be one of the best harbors on the Pacific side of America, with Port Quimper near it on the west; and Port Nunez Gaona, called Poverty Cove by the American fur-traders, situated a few miles east of Cape Flattery, where the Spaniards attempted, in 1792, to form a settlement. Having performed this duty as well as possible, under the circumstances in which he was placed, Quimper returned to Nootka, where he arrived in the beginning of August.”[9]

It is probable that it was upon the authority of Quimper, who was an ensign of the royal navy of Spain, that the name of the Canal de Haro was given to the strait which separates Vancouver Island from the island of San Juan, in the Spanish chart of the discoveries made on the northeast coast of America, annexed to the narrative of the expedition of the Spanish exploring vessels. Sutil and Mexicana, which was published at Madrid in 1802, by order of the King of Spain.Chart No. 1.

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A very brief allusion is made in the first chapter of that narrative to Quimper’s expedition. He is stated to have sailed from the Port of Nootka on May 31, 1790, to have reconnoitered the Port of Claucaud, (in Vancouver Island,) to have entered afterward into the Canal of Fuca, to have visited certain ports and part of the coast, to have taken surveys, and to have retired on the 1st of August, the weather not permitting him to continue his labors.Appendix No. 4.

Mr. Greenhow cites, as his authority, the journal of Quimper’s voyage, among the manuscripts obtained from the hydrographical department at Madrid.

On the other hand, the name of Rosario Channel appears, from the narrative of the Sutil and Mexicana, to have originated with Lieutenant *Elisa, who, prior to the arrival of those vessels, had penetrated into the upper waters, now called the Strait of Georgia, and had given to them the name of “El Canal del Rosario.” That name is accordingly given to those waters in the chart which represents the course of that expedition. Vancouver, on the other hand, in his chart, to which reference will be made hereafter, assigns that name to certain narrow waters farther north, which separate the continent from the island now called Texada. How the name has come to be applied in modern days to the waters of the Strait of Georgia, as they are traced southerly through the islands until they join the headquarters of the Straits of Fuca, does not appear. No name was in use at the time when the treaty of June 15, 1846, was concluded, to distinguish these waters from the upper waters. The fact, however, is clear, that the name assigned by the Spaniards to the upper waters of the ancient Gulf of Georgia is used in the present day to denote the channel which Her Majesty’s government maintains to he the true continuation of that strait.[10]Appendix No. 4.Chart No. 2.

The expedition of the Sutil and Mexicana, in 1792, appears to have ascended the Straits of Fuca to its headwaters, having touched first at Port Cordova, (now Esqnimalt Harbor,) at the southern extremity of Vancouver Island, It thence proceeded between the Island of Bonilla (Smith’s Island) and the southeast point of Lopez Island, at that time believed to be one and the same island with San Juan, until it reached the mouth of the Canal de Guemes, which separates the Island of Guemes from the continent. The expedition then passed up that strait into the “Seno de Gaston,” now Bellingham Bay, and thence along the passage which separates the island of Pacheco (now Lummi Island) from the continent, into the upper waters now known as the Strait of Georgia. The two vessels continued their voyage onward in those waters past the promontory of Cepeda, afterward called Point Roberts by Vancouver, and were employed in reconnoitering the Boca de Florida, the first large inlet north of Point Roberts, when they were joined by Vancouver.Appendix No. 4.Chart No. 1.

The expedition under Vancouver, after making *a complete survey of the Strait of Fuca up to its headwaters, had also passed onward through the channel between the the northeast point of Lopez Island and the continent; but instead of directing its course eastward, like the Sutil and Mexicana, on reaching Guemes Island, it continued its course northward along the main channel, which separates Blakely Island from Cypress Island, and anchored in Strawberry Bay.[11]Chart No 2.

Thence it pursued its course between Orcas Island and Lummi (Pacheco) Island, until it reached Birch Bay. Passing onward, it pursued a north and west course past Point Roberts, and fell in with the Spanish [Page 67]vessels Sutil and Mexicana, as already mentioned, off the first large inlet north of Point Roberts.

The narrative of Vancouver’s expedition was made public in 1798, and there was annexed to it a chart, in which the course of the expedition is traced through the present Rosario Strait, and soundings are given at the entrance and in various parts of that strait, and in the upper waters of the ancient gulf in continuation of that strait.

The name of the Canal de Arro appears also in this chart, assigned to the lower part of the strait which separates Vancouver Island from San Juan; but the parts on the west and north shores of these waters are not shaded, intimating that Vancouver derived his information from Spanish authorities.

No soundings whatever are given of the Canal de Haro, either in Vancouver’s chart or in the Spanish chart annexed to the narrative of the voyage of the Sutil and Mexicana.

The chart of Vancouver, in which the soundings, as above mentioned. are laid down, has been the guiding chart for all British vessels navigating the waters between the continent and Vancouver’s Island from 1798 until some time after 1817, when a more accurate survey was made of the Strait of Fuca by Captain Kellett; and there is evidence preserved in the logs of vessels in the service of the Hudson’s Bay Company prior to that year that it was their invariable practice to use the Rosario Strait as the leading channel from Fuca’s Strait into the upper waters now known as the Strait of Georgia. *Mr. Greenhow, in his “Memoir on the Northwest Coast of North America,” (New York, 1840,) page 139. says that “the observations of Vancouver form the basis of our best maps of the west coast of America, from the thirtieth degree of latitude to the northern extremity of Cook’s inlet, as also of those of the Sandwich Islands, which he surveyed with care. The maps contained in the atlas annexed to the journal of the voyage of the Sutil and Mexicana are nearly all copied from those of the British navigator.”Chart No. 2.[12]

EXTENT OF FUCA’S STRAIT.

It will have been observed by His Imperial Majesty that Her Majesty’s Government, in speaking of Fuca’s Strait, uses that expression to denote the inlet of the sea which extends from Cape Flattery to Whidbey Island, which lies off the American continent. The utmost length of Fuca’s Strait would thus extend over about 2° 5′ of longitude, equal, in that latitude, to about 80 miles, (English,) when it merges, at its southeast extremity, in Admiralty Inlet, and at its northeast extremity in Rosario Strait.Chart No. 3.

NAVIGATION OF FUCA’S STRAIT.

The Rosario Strait and the Canal de Haro are both of them connected immediately with Fuca’s Strait, so that it is possible for a vessel setting out from a port on either side of the channel. under the 49th parallel of north latitude, to pass by either of these intervening channels into Fuca’s Strait, and thence to the Pacific Ocean; with this difference, however, that a vessel passing down the Rosario Strait would enter Fuca’s Strait at its eastern end in about 122° 47′ west longitude, the proper and safe course for such a vessel being to the eastward of Davidson’s Rock, at the distance of about 1 mile south of Cape Colville, and so would have to navigate the whole of Fuca’s Strait on its [Page 68]way to the Pacific Ocean, whereas a vessel passing down the Canal de Haro can keep a safe *course between Discovery Island and the Middle Bank, and enter the Strait of Fuca in about 123° 10′ west longitude, and so would only he obliged to navigate about two-thirds of Fuca’s Strait on its way to the Pacific Ocean. On the other hand, a vessel entering Fuca’s Strait from the Pacific Ocean, and bound up the Rosario Strait by night, alter making the light upon Race Island, would have to make the light upon New Dungeness, which is about 70 miles from Cape Flattery, and then the light upon Smith or Blunt Island, which lies almost in the centre of the eastern end of Fuca’s Strait and about 6 miles from the entrance of the Rosario Strait. Having made Smith’s Island, the vessel may pass safely either to the northward or the southward of it, according as the wind may allow. In the former case she would probably have to pass within 3 miles of Cape Colville before she can enter the Rosario Strait. On the other hand, if she is obliged to keep a course to the southward of Smith’s Island, she would probably have to pass within 3 miles of Whidbey Island before she reaches the entrance of the Rosario Strait. She might thus be obliged, in one or the other case, to navigate within the three miles limit On the contrary, a vessel entering Fuca’s Strait from the ocean, and bound up the Canal de Haro, will not be under any necessity to pass within territorial waters on either side of the boundary line in order to reach the entrance of the Canal.Chart No. 4.[13]Chart No. 3.

Having thus, in the first place, brought under the consideration of His Imperial Majesty the physical features of the waters through which the boundary line is be drawn, pursuant to the provisions of the Treaty of the 15th June, 1846, Her Britannic Majesty’s Government proposes, in the second place, to submit to the consideration of His Imperial Majesty certain rules of interpretation which, in the opinion of jurists of the highest authority, are applicable to the interpretation of Treaties, and which, in the opinion of Her Britannic Majesty’s Government, may be properly invoked to elicit the true interpretation of the treaty of the 15th June, 1846.

*RULES FOR THE INTERPRETATION OF TREATIES.[14]

There are certain admitted Rules to which Her Majesty’s Government invites the attention of His Imperial Majesty, as proper to be observed in the interpretation of Treaties:

1. The words of a Treaty are to be taken to be used in the sense in which they were commonly used at the time when the Treaty was entered into.

In affirmatiom of this rule, Vattel (l. ii, chap. 17, sec. 271) writes: “In the interpretation of Treaties, compacts, and promises, we ought not to deviate from the common use of language unless we have very strong reasons for it;” and in illustration of what he means by “the common use of language,” he goes on to say, in section 272, “The usage we here speak of is that of the time when the Treaty or the Deed, of whatever kind, was drawn up and concluded. Languages incessantly vary, and the signification and force of words changes with time.”Vattel, l. ii, chap. 17, sec. 271. London, 1811.

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2. In interpreting any expressions in a Treaty, regard must be had to the context and spirit of the whole Treaty.

In affirmation of this rule, Vattel (ibid., sec. 285) writes as follows:Vattel, ibid., sec. 285.

It frequently happens that, with a view to conciseness, people express imperfectly, and with some degree of obscurity, things which they suppose to be sufficiently elucidated by the preceding matter, or which they intend to explain in the sequel; and, moreover, words and expressions have a different force, sometimes even a quite different signification, according to the occasion, their connection, and their relation to other words.

The connection and train of the discourse is, therefore, another source of interpretation. We must consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression not so much the signification which it may individually admit of, as that which it ought to have from the context and spirit of the discourse. Such is the maxim of the Roman law: “Incivile est, nisi totâ lege perspectâ, unâ aliquâ particulâ ejus proposita, *judicare vel respondere.”—(Digest, l. i, tit. iii, De Legibus, leg. 24.)[15]

3. The interpretation should be drawn from the connection and relation of the different parts.

Upon this rule, Vattel (ibid., see. 286) writes as follows:Vattel, l. ii, chap. 17, sec. 286.

The very connection and relation of the things in question helps also to discover and establish the true sense of the Treaty or of any other piece. The interpretation ought to be made in such a manner that all the parts may appear consonant to each other—that what follows may agree with what preceded, unless it evidently appear that, by the subsequent clauses, the parties intended to make some alteration in the preceding ones. For it is to be presumed that the authors of a deed had an uniform and steady train of thinking; that they did not aim at inconsistencies and contradictions, but rather that they intended to explain one thing by another; and, in a word, that one and the same spirit reigns throughout the same production or the same Treaty.

4. The interpretation should be suitable to the reason of the Treaty.

In illustration of this rule, Vattel (ibid., sec. 287) writes:Vattel, ibid., sec. 287.

The reason of the law or of the Treaty—that is to say, the motive which led to the making of it and the object in contemplation 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 the 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 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 intention, 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 allow able to indulge in vain 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 the 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.[16]

It may be observed, by the way, that the motive of the High Contracting Parties to the Treaty of 1846, and the object they had in view, are explicitly stated in the Preamble of the Treaty, so that it will not be necessary for His Imperial Majesty to travel out of the words of the Treaty itself, for the purpose of ascertaining the reason of it.

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5. Treaties are to be interpreted in a favourable rather than an odious sense.

In illustration of this rule Vattel (ibid., sec. 301) writes:Vattel, l. ii, chap. 17, sec. 301.

It will not be difficult to show in general what things are favourable, and what are odious. In the first place, everything that tends to the common advantage in Conventions, or that has a tendency to place the Contracting Parties on a footing of equality, is favourable. The voice of equity and the general rule of contracts require that the conditions between the parties should be equal. We are not to presume, without very strong reasons, that one of the Contracting Parties intended to favour the other to his own prejudice; but there is no danger in extending what is for the common advantage. If, therefore, it happens that the Contracting Parties have not made known their *will with sufficient clearness, and with all the necessary precision, it is certainly more conformable to equity to seek for that will in the sense most favourable to equality and the common advantage, than to suppose it in the contrary sense. For the same reason everything that is not for the common advantage, everything that tends to destroy the equality of a contract, everything that onerates only one of the parties, or that onerates the one more than the other, is odious. In a Treaty of strict friendship, union, and alliance, everything which, without being burdensome to any of the parties, tends to the common advantage of the Confederacy, and to draw the bonds of the union closer, is favourable. In unequal treaties, and especially in unequal alliances, all the clauses of inequality, and principally those that onerate the inferior ally, are odious. Upon this principle that we ought, in cases of doubt, to extend what leads to equality and restrict what destroys it, is founded that well-known rule—“Incommoda vitantis melior, quam commoda petentis, est causa.” (Quinctilian, Inst. Orat., l. vii, ch. iv.) The party who endeavours to avoid a loss has a better cause to support than he who aims at obtaining an advantage.[17]

6. Whatever interpretation tends to change the existing state of things at the time the Treaty was made is to be ranked in the class of odious things.

Vattel, (ibid., sec. 305,) in illustration of this rule, observes that “the proprietor cannot be deprived of his right, except so far precisely as he relinquishes it on his part; and in case of doubt the presumption is in favour of the possessor. It is less repugnant to equity to withhold from the owner a possession which he has lost through his own neglect, than to strip the just possessor of what lawfully belongs to him. In the interpretation, therefore, we ought rather to hazard the former inconvenience than the latter. Here also may be applied in many cases the rule above-mentioned, (sec. 301,) that the party who endeavours to avoid a loss has a better cause to support than he who aims at obtaining an advantage.”Vattel, l. ii, chap. 18, sec. 305.

*Her Britannic Majesty’s Government will now proceed to submit to the consideration of His Imperial Majesty, in the third place, their views as to the proper application of the above rules to the interpretation of the Treaty of 15th June, 1846.[18]

THE FIRST RULE OF INTERPRETATION IN ITS APPLICATION TO THE TREATY OF 1846.

In accordance with the first rule above mentioned, Her Majesty’s Government submits to the consideration of His Imperial Majesty the following facts in support of the position that the narrow waters, now designated the Rosario Strait in British Charts, were the only channel between the Continent and Vancouver’s Island generally known and commonly used by sea going vessels at the time when the Treaty of 15th June, 1846, was made, and that the words “the Channel,” in the signification which common usage affixed to them at that tim, denoted those waters.Chart No. 2.The general use of the Rosario Strait before 1846.

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(1.) Vancouver’s expedition, in 1792, after exploring the head-waters of Fuca’s Strait, passed on to the northward, along the narrow waters which separate Lopez Island from what was then believed to be the Continent, and followed those waters in their course between Blakely Island and Cypress Island into Birch Bay, and thence passed onwards to Point Roberts and the upper waters of the ancient Gulf now called the Strait of Georgia. Soundings were made throughout the passsage, which are stated in Vancouver’s narrative, and are laid down in the chart annexed to it, sufficient to secure for future navigators a safe course from Fuca’s Strait into the upper Gulf. Vancouver did not explore, nor does he give any soundings of the Canal de Haro. It is not mentioned in his narrative; the name of it, however, appears on the face of his Chart, distinguishing waters without soundings from the Channel through which Vancouver passed.

(2.) The Spanish exploring vessels Sutil and Mexicana, in the same year, appear, from the narrative of the expedition, to have pursued *a course to the southward of the San Juan Island until they reach the head-waters of Fuca’s Strait. They then entered the same channel which Vancouver entered, and followed it as far as the Island of Guemes, when they passed onwards, along the Canal de Guemes, into Bellingham Bay, (“El Seno de Gaston.”) From Bellingham Bay they pursued a northerly course past Point Roberts into the upper waters of the ancient Gulf.[19]Appendix No. 4.Chart No. 1.

(3.) The Chart of Vancouver, which gives soundings only for navigating through the Rosario Channel, was the Chart in general use up to the end of 1846.Chart No. 2.

(4.) No Spanish chart of a date antecedent to the Treaty of 15th June, 1846, is known to Her Majesty’s Government, in which soundings are given for navigating through the Canal de Haro.

(5.) When the Beaver, the first steam-vessel used by the Hudson’s Bay Company, passed up from Fuca’s Strait to Fort Langley, on the Frazer River, in 1837, she made use of what is known as the Rosario Channel. She explored the Canal de Haro for the first time in 1846.

(6.) When the United States exploring vessel Porpoise, under Lieutenant Ringgold, passed up to the northward, from Fuca’s Straits into the upper Gulf, in 1841, she made use of what is now known as the Rosario Channel. The boats, on the other hand, of her consort, the Vincennes, which remained at New Dungeness, were dispatched to the Canal de Haro to make a survey of it. Lieutenant Wilkes, in his narrative, (vol. iv, p. 515,) states that they were so engaged for three days, by which time they “completed all that was essential to the navigation of it.”

(7.) Her Maiesty’s steamer Cormorant, the first of Her Majesty’s steamships which navigated the waters between the Continent and Vancouver’s Island, in September, 1846, passed up the Rosario Channel to the northward, and returned to Fuca’s Strait by the same channel.Appendix No. 6.

(8.) The declarations of sea-captains and other persons in the service of the Hudson’s Bay Company are conclusive that the only channel used and considered safe by them prior to 1846, was the Rosario Channel.Appendix No. 5.

* THE SECOND AND THIRD RULES OF INTERPRETATION.[20]

It is conceived by Her Majesty’s Government that the second and third rules for the interpretation of Treaties, already brought to the attention [Page 72]of His Imperial Majesty, as they are of a cognate character, may be conveniently considered together in their application to the question submitted to the arbitration of His Imperial Majesty.

These rules may be, then, briefly expressed:

(a) That the context and spirit of a discourse is a source of interpretation, where particular expressions are obscure from over-conciseness of statement.

(b) The interpretation of any part of a discourse ought to be made in such a manner that all the parts may be consonant to one another.

It may be observed, then, in the first place, that the only expressions in the Treaty of 15th June, 1846, respecting which any disagreement has arisen between the High Contracting Parties, are to be found in the second paragraph of the first article of it: “And thence southerly, through the middle of the said Channel, and of Fuca’s Strait, to the Pacific Ocean;” and that the disagreement is limited to the words “the said Channel.” It is considered, therefore, by Her Majesty’s Government that, in order to arrive at the true interpretation of the above words, regard may properly be had, not merely to the context of the paragraph itself, but to the text of the preceding and following paragraphs of the 1st Article, which is the operative part of the Treaty as regards the settlement of the line of boundary.Appendix No. 2.

The 1st Article, then, of the said Treaty, is divided into three paragraphs:

1. From the point in the 49th parallel of north latitude, where the boundary laid down in existing Treaties and Conventions between Great Britain and the United States terminates, the line of boundary between the territories of Her Britannic Majesty and the United States shall be continued westward along the said 49th parallel of north latitude to the middle of the Channel which separates the Continent from Vaneouver’s Island.

*2. And thence southerly through the middle of the said Channel and of Fuca’s Straits to the Pacific Ocean.[21]

3. Provided, however, that the navigation of the whole of the said Channel and Straits south of the 49th parallel of north latitude remain free and open to both parties.

Looking now to the text of the first paragraph of this Article in connection with the second paragraph, Her Majesty’s Government submits to His Imperial Majesty that the second para graph may be read as if it were written in extenso thus: “And thence southerly through the middle of the Channel which separates the continent from Vancouver’s Island, and through the middle of Fuca’s Straits to the Pacific Ocean,” the channel and the straits being so connected in the second paragraph as to be governed by the preceding words, “through the middle of.”The context of the Treaty considered.

Now, the extent of the waters here designated as Fuca’s Strait is not in controversy. It is true, indeed, that by some writers, amongst whom may be mentioned Mr. Robert Greenhow, the Librarian to the Department of State of the United States, and the author of a Memoir, Historical and Political, on the North-west Coast of North America, published in 1840 by direction of the Senate, the term “Fuca’s Strait” has been used prior to the Treaty of 1846 to denote the whole of the channel through which it was supposed that the Greek pilot, Juan de Fuca, found a passage into the Polar Sea in the sixteenth century. Thus Mr. Greenhow, in his “History of Oregon,” (p. 29,) speaking of the three great groups of islands south of 54° 40′ north latitude, says, “The southernmost group embraces one large island, and an infinite number of smaller [Page 73]ones, extending from the 49th parallel to the 51st, and separated from the continent on the south and east by the channel called the Strait of Fuca.” There is a slight inaccuracy, it may be observed, in this passage as regards the latitude of the group of islands; but Mr. Greenhow, in a previous passage of the same work, (p. 22,) has described the channel which he has in view with greater accuracy, as running eastward about one hundred miles between the *48th and 49th parallels of latitude, and then turning to the north-west.[22]

The view of Her Majesty’s Government is, that the term “Fuca’s Straits” is used in the Treaty of 1846 to signify the lower portion only of Mr. Greenhow’s Channel, namely, the inlet of the sea which extends eastward from the Pacific Ocean to the entrance of the passage, through which Vancouver continued his voyage to the northward, and which he has laid down in his chart as a navigable channel, connecting Fuca’s Strait with the upper waters of the ancient Gulf.

In accordance with this signification of Fuca’s Straits, Her Majesty’s Government submits to His Imperial Majesty that the term “Fuca’s Straits” must be taken to have been inserted in the second paragraph of the first Article of the Treaty of 1846 for the sake of describing with greater precision the course of the boundary line, and that it is one of the necessary conditions of the boundary line that it should be drawn through the middle of the inlet of the sea, of which Cape Flattery may be regarded as the south-western extremity, and Deception Pass as the north-eastern extremity.

Now, a line may be properly said to be drawn through the middle of this inlet, if it be drawn in either of two ways, namely, if it be drawn lengthways, or if it be drawn breadthways. There can, however, be no doubt as to which of such alternative lines is required to satisfy the Treaty, as the line is to be drawn to the Pacific Ocean, and this can only be effected by drawing the line through the middle of Fuca’s Straits lengthways. Upon this point in the case Her Majesty’s Government submits to His Imperial Majesty that there can be no reasonable doubt.

Her Majesty’s Government further submits to His Imperial Majesty, that in order that the second paragraph of the first Article of the Treaty of 1846 shall be consonant to the third paragraph—in other words, in order to account for and give reasonable effect to the third paragraph, whereby the navigation of the whole of Fuca’s Straits is secured to both the High Contracting Parties—the second paragraph must be interpreted as *requiring the line to be drawn southerly through the middle of a channel which will allow it to enter the head-waters of Fuca’s Straits, and to be continued through the middle of the Straits in an uninterrupted line to the Pacific Ocean; in other words, the boundary line, after it has entered Fuca’s Straits, must divide the waters of the Straits in such a manner as to render the proviso necessary which is embodied in the third paragraph.The consonance of the second and third paragraphs of the Treaty.[23]

For the purpose of bringing this part of the case more completely before the mind of His Imperial Majesty, Her Majesty’s Government will recapitulate briefly the characteristics of Fuca’s Straits, as they bear upon the question.

The breadth, then, of Fuca’s Straits where they leave the Pacific Ocean between Cape Flattery on the Continent, their southern point, and Bonilla Point on Vancouver’s Island, their northern point, is thirteen miles. Within these points they soon narrow to eleven miles, and carry this width on an east course for forty miles. They then take an east-north-east direction to the shore of Whidbey Island. Between Race Islands and the Southern shore is the narrowest [Page 74]part of the Straits. Their least breadth, however, in this part is not less than eight miles, after which the Straits expand immediately to seventeen miles, a width which they maintain more or less in the part where the Canal de Haro enters them. On the other hand, it is difficult to define precisely the place where the waters of Fuca’s Straits merge in those of the Rosario Strait, but Fuca’s Straits gradually contract as they approach the entrance of the Rosario Strait, which is only five miles wide. A provision which thus secures to the vessels of either nation the right of free navigation on either side of the boundary line throughout the whole of the channel and Fuca’s Straits, would be perfectly intelligible, and, in fact, would be a requisite precaution, if the line is to pass through Rosario Strait, dividing the head-waters of Fuca’s Straits; but it would not be in any such sense a necessary precaution, if the line of boundary is to be drawn through the Canal de Haro.Chart No. 4.

*On the former supposition it would be reasonable to secure to either party the free navigation of the whole of Fuca’s Straits equally as of the Rosario Channel, inasmuch as the medium filum aquœ in the uppermost part of Fuca’s Straits would be within the “three miles limit” of either shore; on the other hand, the part of Fuca’s Straits, where the Canal de Haro strikes them, are of so great a breadth that there would be an ample margin of common navigable water for vessels on either side of the medium filum aquœ, and no necessity for vessels passing to and from the Pacific Ocean to navigate within the jurisdictional waters of either of the High Contracting Parties.[24]Reason of the third paragraph.

If it should be said on behalf of the United States Government that the proviso in the third paragraph of the first Article of the Treaty of 1846 was not inserted by way of precaution, but rather by way of comity, to preserve to both the High Contracting Parties a liberty of navigation hitherto enjoyed by them in common, Her Majesty’s Government submits that considerations of comity would equally have required the extension of the proviso to the waters of the Channel, which separates the continent from Vancouver’s Island north of the forty-ninth parallel of north latitude, as both parties had heretofore enjoyed in common the free navigation of those waters; but no such precaution has been taken in the Treaty to limit the exercise of exclusive sovereignty north of the forty-ninth parallel.

Again, it would have been an unreasonable thing to have provided by the Treaty that both parties should retain the free enjoyment of the navigation of the whole of Fuca’s Straits, unless the Treaty is to be interpreted as requiring the boundary line to be drawn through the middle of those Straits, and continued through the Rosario Channel, in which case the free navigation of the whole of Fuca’s Straits to the eastward of the Canal de Haro would be at times a condition essentially necessary to enable British or American vessels, as the case may be, to enter or leave the channel connecting Fuca’s Straits with the waters of the upper Gulf. *To contend, indeed, that this provision of the Treaty would be consonant to an interpretation of the Treaty which would continue the boundary line through the Canal de Haro, is to deprive the proviso of any rational meaning, as American vessels would possess the right of navigating the Straits to the eastward of the Canal de Haro without any such proviso, and British vessels would not require any such liberty to enable them to enter or leave the Channel through which the boundary line is to pass from Fuca’s Straits into the waters of the upper Gulf.[25]

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THE FOURTH RULE OF INTERPRETATION.

The fourth of the rules to which Her Britannic Majesty’s Government has invited the attention of His Imperial Majesty is, that the interpretation should he suitable to the reason of the Treaty, that is to say, the motive which led to the making of it, and the object in contemplation at the time.

“We ought,” says Vattel, (section 287,) “to be very certain that we know the true and only reason of the law, 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 the true meaning, that which has the greatest degree of probability on its side. But it is a dangerous abuse to go without in search of motives and uncertain views in order to wrest, restrict, or extend the meaning of the deed, which is of itself sufficiently clear, and carries no absurdity on the face of it.”

Now, the motive of the Treaty, as recited in the Preamble of it, was to terminate a state of doubt and uncertainty, which had hitherto prevailed respecting the sovereignty and government of the territory on the north-west coast of America, lying westward of the Rocky Mountains, by an *amicable compromise of the rights mutually asserted by the two parties over the said territory.The motive of the Treaty.[26]

It is a reasonable presumption from this Preamble that Her Britannic Majesty’s Government, which drew up the paragraph of the Treaty of 1846, the meaning of which is in controversy, had a definite boundary line in view, which would terminate all doubt and uncertainty as to the limits within which the respective Parties to the Treaty were henceforth to exercise rights of sovereignty.

The Treaty of 1846, it should also be borne in mind, was not an ordinary Treaty of friendship or alliance, in which a paragraph respecting mutual boundaries was inserted amongst paragraphs relevant to other matters; but it was a Treaty, of which the primary object was the settlement of a boundary line, and it would be unreasonable to attach a vague and uncertain meaning to any words descriptive of the boundary line, if such words are susceptible of a definite and certain meaning.

It is not too much to say, and it will probably not be disputed—for it has been so stated by one of the most eminent of American statesmen—that the great aim of the United States in 1846 was to establish the 49th parallel of north latitude as the line of boundary on the western side of the Rocky Mountains, “not to be de parted from for any line further south on the Continent;” and that with regard to straits, sounds, and islands in the neighbouring seas, they were subjects of minor importance, to be dealt with in a spirit of fairness and equity. (Speech of Mr. Webster before the Senate of the United States, March 30, 1846.)The object of the Treaty.

On the other hand, it is notorious, and it is also patent on the face of the Treaty itself, that the great aim of Her Britannic Majesty’s Government was to meet the views of the United States Government in regard to the 49th parallel of north latitude with as little sacrifice as possible of the rights heretofore enjoyed by the Hudson’s Bay Company and other British subjects in the waters south of that parallel.

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Now, it is a remarkable feature of the Treaty that no name is given to the Channel, to the *middle of which the 49th parallel of north latitude was to be continued after leaving the Continent, and through the middle of which it was to be drawn southerly after being deflected from that parallel. The Channel is described as “the Channel separating the continent from Vancouver’s Island,” and the line is simply directed to be drawn “southerly through the middle of the said Channel and of Fuca’s Straits.” The presumption arising from this description of it is that the Channel intended by the Treaty was the only Channel then used by sea-going vessels, and that it had no distinguishing name, but that upon the face of the charts then in use it would readily answer the description given of it in the Treaty, and would admit of the boundary line being deflected and continued through the middle of it and of Fuca’s Straits to the Pacific Ocean.[27]No name is given to the Channel.

It will be seen by His Imperial Majesty, on an examination of Van couver’s Chart, which was the most accurate chart known to Her Britannic Majesty’s Government at the time when the Treaty was made, and which was the Chart under the consideration of Her Britannic Majesty’s Government when they framed the first Article of the Treaty, that the name of the Gulf of Georgia is assigned in that Chart to the whole of the interior sea, which separates the Continent from the group of islands, the chief of which is called Quadra and Vancouver’s Island, such being the name of the largest island at the time when the chart was constructed, and that no distinguishing name is assigned either to the channel up which Vancouver sailed to the northward, or to the portion of the Gulf in the 49th parallel of north latitude. Her Majesty’s Government accordingly contends, (1,) that the boundary line, which is directed by the Treaty to be continued westward along the 49th parallel of north latitude to the middle of a channel without any distinguishing name, and thence southerly through the middle of the said channel and of Fuca’s Straits, is intended by the words of the Treaty to be drawn through the middle of a channel which had, at that time, no distinguishing name; and (2) that, as the channel now called the Rosario *Strait is found in the charts of the period (1846) without any distinguishing name assigned to it, and in other respects corresponding with the requirements of the Treaty, such channel ought to be preferred to the Canal de Haro, which bore a distinguishing name at that period.Chart No. 2.[28]

Her Britannic Majesty’s Government contends, on this part of the case, that to draw the line through the middle of the waters distinguished in Vancouver’s Chart from the Channel, through which he sailed, by the name of the “Canal de Arro,” and which waters are represented in that chart as unsurveyed, would be to continue the line not through “the said Channel”—that is, a Channel without any distinguishing name—but through a channel which, at the time the Treaty was made, was distinguished by name from the channel surveyed by Vancouver. No reason can well be assigned, if such a channel was contemplated by both parties, why it should not have been designated by its distinguishing name to prevent all uncertainty.

But it may be said that there is evidence that the Canal de Haro was contemplated by the United States Government, and that they had charts in their possession which satisfied them that it was a navigable and safe channel, equally as the channel along which Vancouver sailed. The reply to such an argument is not far to seek. If it can be established that one of the parties to the Treaty had knowledge only of one navigable Channel corresponding to the provisions of the Treaty, the fact [Page 77]that the other party was aware of another navigable Channel could never justify such an interpretation being given to the Treaty as should bind the former to accept the Treaty in a sense of which it did not know it to be capable, when the Treaty may be interpreted in a sense in which both parties were aware that it was capable of being interpreted. The reason of the thing is against such an interpretation as has been proposed to be given to the Treaty on the part of the United States Government.

There is a further reason why the Canal de Haro does not satisfy the language of the Treaty.

The commencement of the boundary line, which is to be drawn southerly, is described in *the Treaty as being in a Channel under the 49th parallel of north latitude; but a glance at the chart will satisfy His Imperial Majesty that the Canal de Haro cannot, in any proper sense of the words, be held to commence under that parallel. It has a distinct commencement between Saturna Island and Patos Island, under a lower parallel. It has, therefore, not only a distinguishing name, hut it has its physical characteristics which distinguish it from the channel described in the Treaty of 1846 as identical with the channel under the 49th parallel of north latitude.[29]

THE FIFTH RULE OF INTERPRETATION.

The fifth rule of interpretation, to which Her Britannic Majesty’s Government has invited the attention of His Imperial Majesty, is, that Treaties are to he interpreted in a favourable rather than in an odious sense.

“We are not to presume,” says Vattel, (sec. 30.) “without any strong reasons, that one of the Contracting Parties intended to favour the other to his own prejudice, but there is no danger in extending what is for the common advantage. If, therefore, it happens that the Contracting Parties have not made known their will with sufficient clearness and with all the necessary precision, it is certainly more conformable to equity to seek for that will in the sense most favourable to equality and the common advantage.”A favourable interpretation to be preferred to an odious interpretation.

Now, it may be stated by Her Majesty’s Government without fear of contradiction, that, at the time when the Treaty of 1846 was signed at Washington, no charts were in use by those who navigated the interior sea between the Continent and Vancouver’s Island, but Vancouver’s Chart and possibly a Spanish Chart, purporting to be constructed in 1795 upon the surveys made by the Sutil and Mexicana. Of the latter chart, indeed, Her Britannic Majesty’s Government had no certain knowledge in 1846, for the only Spanish chart of those waters, which is to be found in the archives of the British Admiralty at Whitehall, did not come into its possession until 1849. In neither, however, of those Charts are *there are any soundings of a navigable passage through the Canal de Haro. It is true, indeed, that in the Spanish Chart some soundings are given of Cordova Channel, in which the boats of the Sutil and Mexicana appear to have crept close along the shore; but there are no soundings to guide a vessel out of the Canal de Haro into any part of the upper waters, which are south of 49° parallel of north latitude. An interpretation, therefore, of the Treaty, which would declare the Canal de Haro to be the channel down which the boundary line is to be carried, would be to declare that Her Britannic Majesty’s Government, when it concluded the Treaty of 1846, intended to favour the United States Government to its own prejudice; for it would be to [Page 78]declare that Her Britannic Majesty’s Government intended to abandon the use of the only channel leading to its own possessions which it knew to be navigable and safe, and to confine itself to the use of a channel respecting which it had no assurance that it was even navigable in its upper waters for sea-going vessels; nay, respecting which it is not too much to say that Her Britannic Majesty’s Government had a firm belief that it was a dangerous strait. On the other hand, an interpretation which would declare Vancouver’s Channel, now distinguished by the name of the Rosario Strait, to be the common boundary, will give to both Parties the use of a Channel, which was known to both Parties at the time when the Treaty was made to be a navigable and safe channel. The two Parties in respect of such an interpretation would be placed in a position of equality.The Charts in use in 1846.Chart No. 2.[30]

THE SIXTH RULE OF INTERPRETATION.

The sixth Rule of Interpretation, which is a corollary to the next preceding Rule, and which is also submitted to the attention of His Imperial Majesty, is that, in case of doubt, the presumption is in favour of the possessor of a thing; in other words, the party who endeavours to avoid a loss has a better cause to support than he who aims at obtaining an advantage.The presumption is in favour of the possessor of a thing.

It has been already said that the Channel in use in 1846, and the only Channel in use by *British vessels navigating from the Straits of Fuca to the stations of the Hudson’s Bay Company on Frazer’s River, and elsewhere north of the 49th parallel of north latitude, was the channel surveyed by Vancouver, and of which soundings are given in his Chart.[31]Chart No. 2.

The Government of the United States contends tor an interpretation of the Treaty which will dispossess British vessels of the use of this channel. There is no evidence, on the other hand, that the Canal de Haro was used by vessels of the United States prior to the Treaty of 1846.

Her Britannic Majesty’s Government, on the other hand, is not contending for an interpretation of the Treaty which will deprive the citizens of the United States of any right habitually exercised by them prior to the Treaty. If, indeed, the United States Government had knowledge from unpublished surveys or otherwise, prior to the Treaty of 1846, that the Canal de Haro was a navigable and safe channel, it cannot be denied that citizens of the United States, if they used any channel at all prior to 1846, made use of the channel now called the Rosario Strait. It is submitted accordingly to His Imperial Majesty, that an interpretation of the Treaty, which declares the Rosario Strait to be the channel, through the middle of which the boundary line is to be drawn, will continue to American citizens the full enjoyment of such rights of navigation as were exercised by them prior to the Treaty, whilst a declaration in favour of the claim of the United States will strip British subjects of corresponding rights. Wherever there is doubtful right, it is less repugnant to equity to withhold from a claimant the enjoyment of a thing, which he has never possessed, than to strip the possessor of a thing of which he has habitually had the enjoyment.

The question whether any third channel, other than the Rosario Strait or the Canal de Haro, would satisfy the requirements of the Treaty of 1846, has not been touched upon by Her Britannic Majesty’s Government for these reasons—amongst others, that the existence of any intermediate navigable channel was unknown to both the Contracting Parties at the time when the Treaty of *1846 was signed, and the Government of the United States has never contended [Page 79]for any such channel. Besides, Her Britannic Majesty’s Government presumes that the true interpretation of the Treaty of 1846 is to be sought rebus sic stantibus, that is, upon the state of facts known to both parties at the time when the Treaty of 1846 was concluded.[32]

On the above considerations of fact and of public law, Her Britannic Majesty’s Government submits to His Imperial Majesty that the claim of Her Britannic Majesty’s Government that the portion of the boundary line which, under the terms of the Treaty of 15th June, 1846, runs southerly through the middle of the Channel which separates the Continent from Vancouver Island, should be run through the Rosario Strait, is valid, and ought to be preferred to the claim of the Government of the United States, that it should be run through the Canal de Haro.

RECAPITULATION OF FACTS.

The considerations of fact may be briefly recapitulated:

1. That the Channel now designated as the Rosario Strait in British charts, which designation embraced the Channel to the north as well as the south of the 49th parallel of north latitude in Spanish charts, was the only Channel between the Continent and Vancouver Island generally known and commonly used by sea-going vessels at the time when the Treaty of 15th June, 1846, was made, and that the words “The Channel,” in the signification which common usage affixed to them at that time, denoted those waters.

2. That the context of the first and second paragraphs of Article 1 of the Treaty of 15th June, 1846, requires that the boundary line should be continued through the middle of a Channel so as to enter the head waters of Fuca’s Straits, which is practicable, if the line should be run through the Rosario Strait, but is impracticable if it should be run through the Canal de Haro.Appendix No. 2.

*3. That the proviso in the third paragraph of Article I, which secures to either Party the free navigation of the whole of Fuca’s Straits, is intelligible, as a necessary precaution, if the boundary line is to be run through the Rosario Strait, but is unnecessary and unreasonable if the boundary line is to be run through the Canal de Haro.[33]

4. That a boundary line run through the middle of the Channel now called the Rosario Strait satisfies the great aim which either party had in view prior to the conclusion of the Treaty 15th June, 1846; and as that Channel had no distinguishing name at the time when the Treaty was made, it could not be otherwise described than as it is described in the Treaty. On the other hand, the Canal de Haro had a distinguishing name, and there was no reason, if the Canal de Haro was contemplated by both the High Contracting Parties at the time when the Treaty was made, why it should not have been described by its distinguishing name to prevent all uncertainty.

5. That a line of boundary run through the middle of the Rosario Strait, in accordance with the knowledge which both the High Contracting Parties possessed at the time when the Treaty of 15th June, 1846, was made, would have been favourable to both Parties, whereas a line of boundary run through the Canal de Haro would have deprived Her Britannic Majesty of a right of access to her own possessions through the only then known navigable and safe channel.

6. That it is more in accordance with equity that His Imperial Majesty should pronounce in favour of the claim of Her Britannic Majesty’s Government than in favour of the claim of the Government of the United [Page 80]States, as a decision of His Imperial Majesty declaring the Rosario Strait to be the Channel through which the boundary line is to be run will continue to citizens of the United States the free use of the only Channel navigated by their vessels prior to the Treaty of 15th June, 1846; whilst a declaration of His Imperial Majesty in favour of the claim of the Government of the United States will deprive British subjects of rights of navigation *of which they have had the habitual enjoyment from the time when the Rosario Strait was first explored and surveyed by Vancouver.[34]

The evidence which Her Britannic Majesty’s Government has thought it proper to offer to the consideration of His Imperial Majesty in support of the present case, has, for the convenience of His Imperial Majesty, been collected in an Appendix, which is annexed thereto.

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