48th and 49th parallels of latitude, and then turning to the north-west. 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 donbt. Her Majesty's Government further submits to The consonance of the second and third paragraphs of the Treaty. 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 Chart No. 4. 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. 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 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. 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 aquæ 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 aquæ, 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. 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, Reason of the third paragraph. L The Fourth Rule of Interpretation. The motive of the Treaty. 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. 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 be 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. 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 departed 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.) 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. Now it is a remarkable feature of the Treaty that no name is given to the Channel, to the The object of the Treaty. No name is given to the Channel, |