« 이전계속 »
Chart No. 2.
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 seå-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.
It will be seen by His Imperial Majesty, on an examination of Vancouver'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 Van
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 lati. tude 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.
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 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 Ilaro 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, but 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.
The Fifth Rule of Interpretation.
The Fifth Rule of Interpretation.
A favourable interpretation to he preferred to an
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 be 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."
Now, it may be stated by Her Majesty's Government without fear of contradiction, that, at the time when the Treaty of 1816 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
The Charts in use in 1846.
Chart No. 2.
there 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 49o 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 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 Sixth Rule of Interpretation.
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 The presumption is in favour of the possessor of a
thing 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.
It has been already said that the Channel in use in 1846, and the only Channel in use by
Chart No. 2.
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.
The Government of the United States contends for 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 Con. tracting Parties at the time when the Treaty of