The sentence, once given, is binding upon the parties whose own act has created the jurisdiction over them. The extreme case may indeed be supposed, of a sentence bearing upon its face glaring partiality, and attended with circumstances of such evident injustice as to be null. "Nec tamen" (Voet observes)" executioni danda erit, si per sordes, aut "per manifestam gratiam vel inimicitiam probetur lata." But for such exceptions no rules can be safely laid down (7).

By the recent Treaty of Washington (r) England and the United States of North America agreed to refer two questions in dispute between them to Arbitration. The question relating to certain claims arising out of the acts of privateers or armed vessels which, during the North American civil war, had left the ports of this country, was by far the most important, and as it is discussed in a later chapter (s), in which the obligations of neutral States are considered, will not be treated of in this place. The other question, which related to "the San Juan Boundary," was submitted to the decision of the King of Prussia, the Emperor of Germany. By the Treaty of Washington, dated June 15, 1846, it was stipulated that from a certain point on the 49th parallel of north latitude" the line of boundary "between the territories of Her Britannic Majesty and those "of the United States shall be continued westward along the "said 49th parallel to the middle of the channel which separates "the continent from Vancouver's island, and thence southerly, "through the middle of the said channel and of Fuca Straits, "to the Pacific Ocean." The question arose as to the con

non ignaros tertium assumi, patientiam præbuisse atque ità tacitè consensum accommodâsse constet: nam si ob dissensum arbitrorum malint à compromisso resilire, uti id leges ipsis permittunt, ideòque testationibus denunciaverint ambo, vel alteruter, ne tertius assumeretur, aut assumptus sententiam diceret, non animadverto, cur efficax foret quod ab eo, quem superarbitrum vulgò appellant, fuisset definitum, cùm nunquam in eum consensisse dici queant: nullus verò satis idoneus arbiter sine partium voluntate possit censeri."—Voet, ib.

(q) Ib. s. 24.

(r) See vol. ii. Pref. vi. ch. ix.

(8) Ch. ix.

struction of the words "middle of the channel." It has been observed by competent (t) authority that "as regards the "island of San Juan, there is no doubt that the Treaty of 1846 "between the English and American Governments is unfortunately somewhat vague. Although it clearly sets forth "that the boundary line should be the 49th degree of north "latitude, to the centre of the Gulf of Georgia, thence "southward through the channel which separates the conti"nent of America from Vancouver Island, to the Strait of "Juan de Fuca, it unhappily overlooked the fact of there "being three separate channels existing between the islands "and the main shore. The' channel would have been defi"nite enough were there but one. There being three, how"ever, has given rise to the contention as to the construction "of the Treaty in respect to them." The decision of the Imperial Arbitrator appears in the following correspondence.

(f) In the Times of October 30th, 1872, is the following extract from the Victoria (Vancouver's Island) British Colonist of the 20th of September :

:

"There is no longer room to doubt that the Emperor of Germany has given his decision in favour of the United States, thus making Haro Strait the water boundary between the two countries. The blunder committed by Great Britain does not consist in consenting to submit the point of dispute to the sole arbitrament of the German Emperor, for there was, perhaps, no man living to whom it were better to submit the question, if that mode of settlement were to be adopted. The blunder appears to have consisted rather in the manner of presenting the case to the Emperor. Had the distinguished referee been simply invited to decide where, under all the circumstances, and in view of all the consequences, the boundary should run, it can scarcely be doubted that the Middle Channel would have been named. By this the group of islands in dispute would have been about equally divided between the two nations; Saint Juan and its immediate neighbours, with Haro Channel, falling to the Empire of British North America, and Lopez, Orcas, and adjacent islands, with the Rosario Channel, falling to the United States. Thus would each nation have its channel of communication with the open sea, each channel being guarded by considerable islands. The chief objection to the United States possessing San Juan Island is, that it gives them possession of Rosario Channel and the Middle Channel, and also the means of controlling Haro Channel, thus leaving no channel of any importance free to the British. True, the British will have the right to use Haro

"I.-Lord Odo Russell to Earl Granville.-(Received October 28.)

66

My Lord, I have the honour to transmit herewith to your Lordship, by Admiral Provost, the decision and award of the Emperor of Germany respecting the true interpretation of the Treaty of June 15, 1846, which, in accordance with the 35th Article of the Treaty of Washington, is given in writing, signed by His Majesty, and dated on the 21st inst., and is forwarded to me by M. de Balan, in a letter dated to-day, the 23rd inst., which has just been delivered at this Embassy.

"I have, &c.

ODO RUSSELL."

"II.-M. Balan to Lord Odo Russell.

(Translation. Inclosure 1.)

"Berlin, Oct. 23, 1872.

"His Imperial and Royal Majesty having, in accordance with the Treaty of Washington of May 8, 1871, given his Channel; but if the Americans choose to fortify San Juan Island and hostilities should arise, she could only use it with their permission. In short, the decision of the Emperor places the United States in a position to command the only channel of communication between Victoria and the mainland-the only way to the open sea possessed by the Dominion. Thus does Brother Jonathan become the strong man armed, keeping the door of the Pacific. Emperor William has given him the key. John Bull foolishly threw it away. But, instead of presenting the case as we have suggested it should have been presented, the British went for Rosario straight-that is to say, they joined issue on Rosario, as being the channel of the Treaty and of justice and equity. In principle they may have been right. As an act of policy they were wrong. Of course the Americans claimed Haro Channel; and thus it became the sole prerogative of the referee to decide as between these two channels, which of them in the highest degree fulfilled the conditions and spirit of the Treaty. There was no room for compromise; no opportunity of deciding the dispute in a spirit of equity by selecting the Middle Channel. And it may well be believed that the arguments in support of Haro, as being the channel of the stupid Treaty, were more adroitly framed and more deftly put than were those of Rosario."-Letter of D. G. T. Macdonald, C. E., late of the Government Staff of B.C., to The Times, October 24, 1872.

Royal award in the Boundary question at issue between Great Britain and the United States, the undersigned has the honour herewith to transmit to his Excellency Her Britannic Majesty's Ambassador, Lord Odo Russell, the award in writing, informing him at the same time that a similar document has been forwarded to the Envoy of the United States at this Court.

"The undersigned, &c.

"BALAN."

III.-We, William, by the grace of God, German Emperor, King of Prussia, &c.

'After examination of the Treaty between the Governments of Her Britannic Majesty and that of the United States of America, dated at Washington May 6 (u), 1871, by virtue of which the above-named Governments have submitted to our arbitration the question at issue between them-viz., whether the line of boundary, which, according to the Treaty, dated Washington, June 15, 1846, after it had been continued westward along the 49th parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island, shall be further drawn southerly through the middle of the said channel and of Fuca Straits to the Pacific Ocean, should be run, as claimed by the Government of Her Britannic Majesty, through the Rosario Straits or through the Canal of Haro, as claimed by the Government of the United States, in order that we should decide finally and without appeal which of these claims is most in accordance with the true interpretation of the Treaty of June 15, 1846;

"Have, after taking into consideration the statement of the experts and jurists appointed by us to report upon the contents of the respective cases and counter-cases with their inclosures, given the following decision:

"The claim of the Government of the United States"viz., that the line of boundary between the dominions of

(u) Sic in orig. query May 8?

"Her Britannic Majesty and the United States should be "run through the Canal of Haro, is most in accordance "with the true interpretation of the Treaty concluded "between the Government of Her Britannic Majesty and "that of the United States of America, dated at Washing"ton, June 15, 1846.

"Given under our hand and seal, at Berlin, October 21, "1872. (x).

“ WILLIAM.”

It is certainly very unsatisfactory that the reasons of the experts and jurists should not have been stated. It has been generally believed that the question was treated purely as one of (y) geography (z) to be decided by reference

(c) Some able and interesting articles and letters on the subject of this decision, written by competent authorities, will be found in The Times of October 18, 23, 26, 29, 30, 1872.

:

(y) One of the experts was, I believe, a Professor of Geography. () Macdonald, C. E., cited in the former note, in a second letter to the Times, October 26, 1872, has said, inter alia "The future of Canada on the Pacific cannot be said to have been decided at Berlin, but I am afraid that the people will feel the greatest disappointment when they hear of the award of the Emperor of Germany, though nobody in Canada will question the impartiality of the arbitrator. Several circumstances will make the loss of San Juan, and of what hangs to San Juan, very much felt. The people of Canada generally will continue, I think, to believe that the equity of the whole case favoured England. As regards the Canadian Province of British Columbia in particular, the island of San Juan is not far from the capital city, Victoria, and the inhabitants of Victoria and of its populous neighbourhood will be reminded daily of their loss by the presence of the divorced territory before their eyes, in the foreground of scenery not easily matched anywhere. Another great section of the population of British Columbia, as has already been pointed out in your columns, will also feel the effect of the award very much.

"The settlers in the southern portion of the mainland of British Columbia will have just about the same feelings on the matter that Londoners would have were the access to the mouth of the river Thames suddenly limited to a single narrow channel, one side of which (with the joint right of navigating the single channel) was owned by a foreign Power. Your readers, I think, already know that the