1846 was signed, and the Government of the United States has never contended 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. 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. Recapitulation of Facts. 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. 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 of the 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 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. 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. |