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Alaskan boundary tribunal. The argument of the United States, before the tribunal convened at London… Alaskan Boundary Tribunal 1903

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       f
ALASKAN BOUNDARY TRIBUNAL.
THE
ARGUMENT OF THE UNITED STATES
BEFORE THE
TRIBUNAL CONVENED AT LONDON
UNDER THE
PROVISIONS OF THE TREATY BETWEEN THE UNITED
STATES OF AMERICA AND GREAT BRITAIN
CONCLUDED JANUARY 24, 1903.
WASHINGTON:
GOVERNMENT   PRINTING   OFFICE.
1903.
"fo:Q  CONTENTS.
FIEST.
Page.
Statement      3
SECOND.
Rules of construction and interpretation      6
THIKD.
Evidence to be considered     11
FOURTH.
Territorial waters in international law:
Distinction between the outer and inner coast line     14
Distinction between the coast line of physical geography for the purposes of
boundary and the political coast line for the purposes of jurisdiction     16
The political coast line not involved in this case *..     17
FIFTH.
First question submitted for decision     19
SIXTH.
Second question submitted for decision:
The intention of the negotiators  19
Baron Tuyll's letter  27
Physical geography of Portland Channel  29
Evidence of cartographers  33
Maps and charts published since 1825  37
Presumption to be overcome by Great Britain that the thalweg is the boundary  I  39
The thalweg as the boundary of coterminous states  41
Southern line of Russia as defined in the treaty of 1824 between Russia and
the United States  45
Identity of Portland Channel as understood by the parties after the treaty . 49
Tongas Island station  52
Alleged admission in the United States Case  53
SEVENTH.
Third question submitted for decision     54
EIGHTH.
Fourth question submitted for decision     56
hi IV CONTENTS.
NINTH.
Page.
Fifth, sixth, and seventh questions submitted for decision      61
The "coast" referred to in the treaty, to which the mountains were to be
parallel, and to the sinuosities of which, if the mountains failed, the line
was to be drawn parallel, was the coast of all the interior waters, such as
Taku Inlet and Lynn Channel     65
The meaning of the word "cote" as understood by the parties prior to
the negotiation of the treaty of 1825 .      66
The meaning of "coast" as defined in the ukase of September 4,1821..    66
The understanding of the United States and Great Britain that the
ukase applied to the entire coast.     68
Claim of Great Britain to northwest coast     70
Claim of United States to northwest coast     71
Beginning of the negotiations     72
Negotiations of the treaty of 1825 did not proceed upon strict right, but
upon considerations of mutual expediency     72
The motives which -actuated the parties were the advantages to be
secured from controlling the rights of fishing and hunting and of trade
with the natives along the coast, and the question of territorial sovereignty was directed toward securing these rights and not merely
dominion over an extent of land     73
Certainty was desired in the treaty and the prevention of any disagreeable discussion in the future     75
The meaning of '' cote'' as shown by the negotiations     76
The first suggestion as to a line     76
The second suggestion as to a line     76
The third suggestion as to a line     77
The first formal proposal of Sir Charles Bagot     78
Contre-projet by Russia -.     78
Amended proposal by Sir Charles Bagot     79
Final proposition of Sir Charles Bagot     82
Final decision of Russian plenipotentiaries     82
Analysis.as to the use of the word "coast" in the draft convention submitted by Mr. Canning     85
The final negotiations     92
The meaning of '' coast'' in Article VII of the treaty of 1825     94
Conclusion of the negotiations     95
Crete des montagnes     99
The contention of the United States is that the negotiations did not
mean "the mountains next the sea," but mountains other than those
next the sea, and which constituted a chain separated from the sea
by intervening mountains which they intentionally rejected, and that
they did not contemplate individual mountains whose summits were
to be connected together, or even short ranges, which have a trend
across the line of coast of such waters as Taku Inlet and Lynn Canal,
but a generally continuous range of mountains supposed to begin near
the head of Portland Canal and to continue with a general trend
parallel with the coast, around the head of Lynn Canal, and that the
assumption of the existence of such a range and the agreement in reference to it was subordinate to and in harmony with the fundamental
postulate that "coast" meant all of what could be included by that
term and not anything less, to wit, all of the northwest coast of
America, north of 54° 40' over which Russia had claimed jurisdiction..    99 CONTENTS. V
Fifth, sixth, and seventh questions—Continued. Page.
Cr&te des montagnes—Continued.
The maps accessible to the negotiators showed a well-defined mountain
chain  101
The character and identity of the mountains as shown by the negotiations and treaty  106
The evidence of the maps issued after the treaty as to what mountains
were meant by the treaty \  120
The Stikine River:
Dryad affair  123
Surveys of the Stikine  125
Hunter survey and Peter Martin affair  129
Such mountains as those contemplated by the treaty do not exist within ten
marine leagues of the ocean *. 134
It was never the intention under the treaty to draw the line along the summits of disconnected peaks, and it is impossible, on the British theory,
for any tribunal to determine which of such peaks shall be chosen   135
From the treaty of 1825 to the treaty of 1867, the understanding manifested
by Great Britain, Russia, and the civilized world at large was, that it was
"the intention and meaning of said convention of 1825 that there should
remain in the exclusive possession of Russia a continuous fringe or strip of
coast on the mainland, not exceeding ten marine leagues in width, separating the British possessions from the bays, ports, inlets, havens, and
waters on the ocean and extending from the said point on the 56th degree
of latitude north to a point where such line of demarcation should intersect the 141st degree of longitude west of the meridian of Greenwich" 139
Assertion of claim by Russia by its official maps to all interior waters
and their coasts  139
The official maps of Great Britain and Canada showed their understanding that Russia owned all of the interior waters and coasts now
in controversy  141
The understanding as shown by the maps of Russia and of Great
Britain was of general acceptation by all cartographers, and the declarations of the official maps of Great Britain were continued with the
knowledge of this understanding  142
Russia showed by her occupation and exercise of sovereignty over the
waters and coasts in 'dispute that she claimed them as within her territory, and Great Britain never, down to the sale by Russia to the
United States, attempted to assert any jurisdiction over such waters
or coast or to occupy them in any way or to question the sovereignty
of Russia over them  144
From 1840 to the American purchase the Hudson's Bay Company held
all of the waters and coasts in dispute for Russia. This holding was
begun and continued with the knowledge and consent of Great
Britain, which thereby indicated that she understood that under the
treaty of 1825 they were to belong to Russia  146
The United States purchased Alaska with the understanding on its part and
with a knowledge of the understanding indicated by the conduct of Great
Britain that Russia under the treaty of 1825 owned all of the waters and
coasts now in dispute, and has held them with that understanding without
any protest from Great Britain down to the beginning of the present controversy   150
The American purchase 150
American occupation  151 VI
CONTENTS.
Fifth, sixth, and seventh questions—Continued. " Page.
American occupation—Continued.
By Army and Navy  151
Under revenue officers  156
Under civil government  157
Schools and missions .. .*  159
Reports of governors of Alaska  159
United States census  161
Post-office  162
United States maps  162
British and Canadian maps after 1867  162
The Dawson map of 1887  163
Nothing was done on the part of Great Britain until 1898 indicating a claim
contrary to the understanding which she had prior to that time manifested that Russia, under the treaty of 1825, was owner of all the waters
and coasts now in dispute and that the United States had, under the treaty
of 1867, acquired all of them from Russia, and nothing has ever been done
by the United States indicating a contrary understanding 165
Propositions to survey  165
Negotiations for delimitation of boundary begun in November, 1872 ... 166
Survey of Stikine River by Hunter and adoption of provisional line in
1878 .*  173
The Dall-Dawson conference, 1888 - 175
Attention called in 1887 to Schwatka's reconnaissance of 1883 186
White Pass Trail, 1888  187
So-called protest of 1891   190
The convention of July 22, 1892  192
The instructions of Dr. Mendenhall, 1893  193
Dyea and Skagway, and alleged protest  196
Acquiescence 201 ARGUMENT OF THE UNITED STATES.
FIRST
STATEMENT.
In 1799 the Czar of Russia issued an Ukase granting to the
Russian American Company certain privileges, and jurisdiction over
the northwest coast of America, down to the 55th degree of north
latitude.
On September 4, 1821, an Ukase was issued by which Russia
claimed exclusive sovereignty over the northwest coast of America
down to the 51st degree of north latitude, and also over one
hundred miles of the Pacific Ocean, which washed the islands,
and the mainland of the northwestern coasts of America. This
Ukase was intended to protect and enlarge the privileges of the
Russian American Company, which had been granted by the Ukase
of 1799, the chief of which was the exclusive right of hunting and
trading for the pelts of animals in that territory.
The Ukase of September 4, 1821 extended the limits to the 51st
degree, and in addition, prohibited the navigation of the Pacific
Ocean to the subjects of all other nations, within one bundred
miles of such islands and coasts.
Protests were promptly made by the United States and Great
Britain.
Negotiations were begun in 1821, which terminated in a treaty
between Russia and the United States in 1824 and a treaty between
Russia and Great Britain in 1825. The treaty of 1825 between
Great Britain and Russia, among other things, defined a line separating the Russian from the British possessions as follows:
III. La ligne de demarcation entre les Possessions des Hautes Parties Contract-antes
sur la cote du continent et les lies de PAme>ique Nord-ouest, sera traced ainsi qu'il
A partir du point le plus meridional de Pile dite Prince of Wales, lequel Point se
trouve sous la parallele du 54me degr6 40 minutes de latitude Nord, et entre le 131me
3 4 ARGUMENT   OF  THE   UNITED   STATES.
et le 133me degre" de longitude Ouest (MeVidien de Greenwich), la dite ligne remon-
tera au Nord de long de la passe dite Portland Channel, jusqu'au Point de la terre
ferme oil elle atteint le 56me degre" de latitude Nord: de ce dernier point la ligne de
demarcation suivra la cr6te des montagnes situees parallelement a la Cote, jusqu'au
point d'intersection du 141me degre" de longitude Ouest (meme Meridien); et finale-
ment, du dit point d'intersection, la niSme ligne m£ridienne du 141me degre" for-
mera, dans son prolongement jusqu'a la mer Glaciale, la limite entre les Possessions
Russes et Britanniques sur le Continent de PAm6rique Nord-ouest.
IV. II est entendu, par rapport a la ligne de demarcation determined dans P Article
precedent:
1. Que Pile dite Prince of Wales appartiendra toiite enti&re a la Russie.
2. Que partout ou la create des montagnes qui s'6tendent dans une direction paral-
lele a la C6te depuis le 56me degre" de latitude Nord au point d'intersetion du 141me
degr4 de longitude Ouest, se trouverait a la distance de plus de dix lieues marines de
P Ocean, la limite entre les Possessions Britanniques et la lisiere de C6te mentionn£e
ci-dessus comme devant appartenir a la Russie, sera form^e par une ligne parallele
aux sinuosites de la Cote, et qui ne pourra jamais en etre eloigned que de dix lieues
marines.
In 1867 a treaty was entered into between the United States and
Russia, by which the United States purchased from Russia all of
its possessions upon the Northwest coast of America, to which was
given the name of Alaska. In this treaty the cession by Russia
was described in the identical language^ used in the treaty of 1825
between Russia and Great Britain, to define the boundary line
between their respective territories.
The country from the 56th parallel to Mount St. Elias, through
which the boundary line was to be drawn, had not been explored,
but it was known to be mostly barren, and composed generally of
snow capped mountains with many large glaciers intervening. This
strip of territory was washed by the Pacific Ocean, which indented the
coast with many bays and inlets, in which the tide ebbed and flowed.
The boundary line was never surveyed and marked by Great Britain
and Russia. Russia claimed and exercised sovereignty over all of
the interior waters and their coasts. Great Britain never questioned
such claim or jurisdiction, and never in any way indicated that she
claimed any rights to an}^ of them. The United States in 1867,
entered into possession of, and has exercised jurisdiction over, all
of these interior waters and coasts to the present time. Propositions have been made by Great Britain at different times, prior to
1898, to survey and determine the line in the interior, but these
propositions in no way suggested any question as to the sovereignty ARGUMENT   OF   THE   UNITED   STATES. 0
over the bays and inlets and the coasts bordering them, all of
which were in the undisputed possession of the United States.
In 1892 the United States and Great Britain entered into a treaty,
providing for a joint survey, for the purpose of marking the boundary. They obligated themselves in this treaty, to proceed as soon
as practicable after the report, or reports, of the commissioners, to
consider and establish the boundary line in question. It was provided that a report should be made within two j^ears after the first
meeting of the commissioners. By a supplemental treaty of February 3, 1894, the time was extended to December 31, 1895.
Joint surveys were made, and a joint report was submitted December 31, 1895, but it contained no recommendation for a settlement.
The discovery of gold in 1896 in the Yukon territory attracted
many persons to the Klondike District. The natural pathway for
them was from the Pacific Ocean up through Lynn Canal over the
Chilkat and Chilkoot passes and thence into the territory of Great
Britain. Along this route thousands of miners passed. The ports at
the head of Lynn Canal at once assumed large commercial importance.
It was not until after this that any question was officially raised
as to the boundary line between Alaska and Canada extending
around the heads of the bays and inlets. Although individual
citizens of. Canada had, at times, advanced the theory that the
treaty of 1825 should be so interpreted, as to run the boundary
line along the summits of mountains claimed to be parallel to the
general or mainland coast, and so as to leave the heads of the bays
and inlets in British territory, such a claim was never put forward
by Great Britain until 1898.
After the failure to agree under the treaty of 1892, a Joint High
Commission was constituted, for the adjustment of the boundary
differences, which met in 1898 and 1899.
The Marquis of Salisbury, in his instructions to the British
High Commissioners July 19, 1898, said:
From Portland Channel to Glacier Bay there is no such continuous range of
mountains running parallel to the coast as the terms of the Treaty of 1825
appear to contemplate. That Treaty, again, provides that the line should be
parallel to the sinuosities of the coast, and that it should never exceed the distance of ten leagues from the Pacific Ocean. Considering the number and size
of the projections and indentations along the coast, it would be difficult to trace
the boundary according to the Treaty.*2
«B. C. App., 298. 6
ARGUMENT   OF   THE   UNITED   STATES.
Thus he stated specifically that, there "is no such continuous
range of mountains running parallel to the coast as the terms of
the Treaty of 1825 appear to contemplate," and that "considering
the number and size of the projections, and indentations along the
coast, it would be difficult to trace the boundary according to the
Treaty." Notwithstanding these official declarations, as to the mountains and the coast, a position was assumed by Great Britain, in
direct conflict with them. A line was claimed, as shown by map
28 of the United States Atlas, which put in British territory all of
the inlets and almost all of the harbors and safe anchorages. It
included much of the mining territorj^ in the Porcupine, Berners
Bay, Juneau, Snettisham, Sumdum, Windham Bay and Unuk River
districts, whose mineral wealth for twenty years has been, without
any question, exploited by citizens of the United States. It also
included the towns of Pj^ramid Harbor, Haines, Dyea, and Skag-
way, all of them situated where the United States had exercised
undisputed sovereignty since 1867.
An even more astounding feature of the claim was that the line
was not laid down along any part of Portland Canal, but was drawn
up Clarence Strait and thence through Ernest Sound to the continent. The character of the contention put forward by Great
Britain precluded all possibility of a settlement by the Joint High
Commission, and the two governments, by a treaty of March 3,
1903, have, for the purpose of settling all differences, constituted
this Tribunal, to whose decision seven questions are submitted.
These questions will be discussed in their order, and the provisions of the treaty of 1893, which are thought to bear upon their
solution, will be referred to in the course of the argument.
SECOND.
RULES  OF  CONSTRUCTION AND INTERPRETATION TO BE APPLIED TO  THE
TREATY  OF  1825 BETWEEN  GREAT  BRITAIN  AND  RUSSIA.
In the general principles by which treaties are to be interpre-
tated is embodied the important distinction between "construction,"
the process through which the general sense of a treaty is derived
by the application of the rules of logic to what appears upon its
face, and "interpretation," the process through which the meaning ARGUMENT   OF   THE   UNITED   STATES. (
of particular terms is explained by reference to local circumstances
and conditions the framers had in mind at the time.
Jurists are generally agreed in laying down certain rules of construction and interpretation as being applicable when disagreement
takes place between the parties to a treaty as to the meaning or intention of its stipulations. Some of these rules are either unsafe in their
application or are of doubtful applicability; and rules tainted by any
shade of doubt, from whatever source it may be derived, are unfit for
use in international controversy.a
Since the time of Grotius, who devoted an entire chapter to the
construction and interpretation of difficult and ambiguous terms,
(De Jure Belli ae Pads, ii. c, XVI.), the system of rules
which he founded has been revised and reproduced by Puffendorf
(V. c. XII), by Domat (Cushing's Ed. I, p. 108), by Vattel (ii, c.
XVIL), and by Rutherforth (II, c. 7). The best parts of the
work of each are embodied in Potter's Dwarris on Statutes and
Constitutions, pp. 121-146, and also in Wildman's Institutes of Int.
Law, 1, pp. 176-186. These should be supplemented by the expositions of Heffter, Sec. 95; Phillimore, II, c. VIII; Calvo, Sees.
713-77; Fiore, Sees. 1117-31; Hall, Sees. Ill, 112, and Savigny's
exposition of "fundamental rules of interpretation" in his System
des Reutigen Romisehen Rechts (Vol. I, ch. IV., Sec. XXXIII).
No publicist of recent times is more often quoted throughout the
English-speaking world than William Edward Hall, who, after
rejecting all rules of interpretation of doubtful authority, says:
"1.—When the language of a treaty, taken in the ordinary meaning of the words, yields a plain and reasonable sense, it must be
' taken as intended to be read in that sense, subject to the qualifications, that any words which may have a customary meaning in
treaties, differing from their common signification, must be understood to have that meaning, and that a sense cannot be adopted
which leads to an absurdity, or to incompatibility of the contract
with an accepted fundamental principle of law. * * 3.—When
the words of a treaty fail to yield a plain and reasonable sense
they should be interpretated in such xme of the following ways as
may be appropriate: (a) By recourse to the general sense and
spirit of the treaty as  shown by the  context of  the   incomplete,
«Hall, Int. Law, p. 350. b ARGUMENT   OF   THE   UNITED   STATES.
improper, ambiguous or obscure passages, or by the provisions of
the instrument as a whole. This is so far an exclusive, or rather
a controlling method, that if the result afforded by it is~incompati-
ble with that obtained by any other means except proof of the
intention of the parties, such other means must necessarily be discarded; there being so strong a presumption that the provisions of
a treaty are intended to be harmonious, that nothing short of clear
proof of intention can justify any interpretation of a single provision which brings it into collision with the undoubted intention
of the remainder. "a
According to Calvo, Sec. 600 * * "The ambiguity of clauses
is sometimes removed by keeping in mind the end which the parties
had in view at the moment of the beginning of the negotiations, or
by consulting the usages observed in the country most interested
in the engagement entered into.
You may also, in order to arrive at a harmonious conclusion,
examine the facts, the circumstances which immediately preceded
the signature of the agreement, referring to the protocols, the pro-
ces-verbal, or to other writings addressed by the negotiators, examining the motives or the causes which have brought about the
treaty,—in a word, the reason of the transaction (ratio legis)\ finally
by comparing the text with other treaties, anterior, posterior or
contemporary, concluded by the same parties in analogous cases.
Sec. 601. All the articles of the treaty form an indivisible whole,
which loses its consistency and value if one alters one of its parts;
one should not separate the clauses, nor look at one of them in
particular, on its own merits, without taking into account its correlation with those which follow or precede it. One stipulation
may appear doubtful, ambiguous when each expression is taken by
itself, which will appear clear, precise, altogether justifiable when
you consider the accord of all the agreements of which it makes a
part.*
The Supreme Court of the United States in the Market Co. v.
Hoffman, 101 U. S., 115, has said: " We are not at liberty to construe any statute so as to deny effect to any part of its language.
It is a cardinal rule of statutory construction that its significance
and effect shall, if possible, be accorded to every word. As early
as in Bacon's Abridgement, Section 2, it was said a statute ought,
« Hall, Int. Law, pp. 350-355.
& Droit Int., 1, pp. 727-729. ARGUMENT   OF  THE   UNITED   STATES.
9
upon the whole, to be so construed that, if it can be prevented, no
clause, sentence or word shall be superfluous, void or insignificant."
See to the same effect United States v. Fisher, 109 U S.,p. 145.
In the effort to arrive at the original meaning of the parties to a
contract or convention, their subsequent acts under it are of vital
significance. In the Attorney General v. Drummond, I Drury and
Warren's Reports, p. 368, it was said: "Tell me what you have
done under such a deed and I will tell you what that deed means."
In Insurance Company v. Dutcher, 95 United States, $73, it was
said: "There is no surer way to find out what parties meant than
to see what they have done."
When the rules for the construction and interpretation of treaties,
as defined by the leading publicists of the world from Grotius to
Calvo, have been carefully analyzed, it appears that there is certainly a consensus of views as to the following:
(1) As all the articles of a treaty constitute an indivisible whole,
the primary purpose of construction and interpretation is to extract
from them, considered as a whole, the dominant intention or motive
of the transaction, "laraison d'etre deVacte {ratio legis)."
(2) While thus seeking for the motive the court will, if necessary, put itself in the place of the parties and read the instrument
in the light of the circumstances surrounding them at the time it
was made and of the objects which they evidently had in view.
Thus the court may "examine the facts, the circumstances, which
immediately preceded the signature of the agreement, referring to
the protocols, the proces-verbal, or to other writings addressed
by the negotiators, examining the motives or the causes which have
brought about the treaty,—in a word, the reason of the transaction
{ratio legis)."
(3) In the effort to arrive at the original meaning of the parties
to a treaty or convention, great weight should be given to their
subsequent acts under it.
(4) Since the lawful interpretation of a contract ought to tend
only to the discovery of the thoughts of the author or authors of
that contract, as . soon as we meet with any obscurity, we should
seek for what was probably- in the thoughts of those who drew it
up and to interpret it accordingly. This is the general rule of all
interpretations.
The contracting powers are obliged to express themselves in such 10
ARGUMENT  OF  THE   UNITED  STATJ2S.
a manner as they mutually understand each other. If then, they
ought to speak in such a manner as to be understood, it is necessary that they should employ the words in their proper signification, in the sense which custom has given them, and that they
should affix to the terms they use and to all their expressions, the
received signification. They are not permitted to deviate with
design, and without mentioning it from the common use, and propriety of the expression; and it is presumed that they have conformed to it, while there are no pressing reasons to presume
the contrary; for the presumption is in general, that things have
been done as thej ought. From all these incontestable truths
results this rule: In the interpretation of treaties, pacts, and promises, we ought not to deviate from, the common use of the language,
at least, if we have not very strong reasons for it.
Words are only designed to express the thoughts; thus the true
signification of an expression in common use, is the idea which custom has affixed to that expression. It is then a gross quibble to
affix a particular sense to a word in order to elude the true sense
of the entire expression.
There is not perhaps any language that has not also words which
signify two or many different things, or phrases, susceptible of more
than one sense. Thence arise mistakes in discourse. To employ
them with design in order to elude engagements, is real perfidy,
since the faith of treaties obliges the contracting parties to express
their intentions clearly.
We ought always to give to expressions the sense most suitable to
the subject, or the matter to which they relate, for we endeavor by
a true interpretation to discover the thoughts of those who speak,
or of the contracting powers in a treaty.
When one can and ought to have made known his intention we
may take for true against him what he has sufficiently declared.
As good faith ought to preside in conventions, they are always
interpreted on the supposition that it actually did preside in them.
The rule of interpretation forbids turning the sense of the words
contrary to the manifest intention of the contracting powers.
The connection and relation of things themselves serve also to
discover and establish the true sense of the treaty or of any other
piece." ARGUMENT  OF  THE  UNITED  STATES
II
(5) The reason of the law, or, the treaty, that is, the motive which
led to the making of it and the view there proposed is, one of the
most certain means of establishing the true sense, and great attention ought to be paid to it, whenever it is required to explain an
obscure, equivocal and undetermined point, either of a law or of a
treaty or to make an application of them to a particular case. As
soon as we certainly know the reason which alone has determined the
will of him who speaks, we ought to interpret his words and to apply
them in a manner suitable to that reason alone.a
(6) The voice of equity requires that the conditions between the
parties should be equal; this is the general rule of contracts. We
do not presume to think, without Very strong reasons, that one of
the contracting powers has intended to favor the other to his own
prejudice, but there is no danger of extending what is for the
common advantage. If it then be found, that the contracting powers
have not made known their will with sufficient clearness, and with
all the precision required, it is certainty more conformable to
equity to seek for this will in the sense most favorable to the
common advantage and equality, than to suppose it in the contrary
sense.6
THIRD.
EVIDENCE  TO  BE  CONSIDERED.
Under the title "Russian Occupation" in the British Counter case,
p. 66, it is said that:
A large part of the case of the United States, and of the evidence contained
in the Appendix thereto relates to the action of Russia, and subsequently of the
United States in the region through which the boundary runs.
This matter is, of course, introduced pursuant to the provision at the end of
Article III of the Treaty under which the tribunal sits.
After quoting from Art. 3, omitting the words "shall also," it
proceeds:
That clause requires the tribunal to 'take into consideration any action of the
several governments, or of their respective representatives preliminary or subse-
juent to tne conclusion oi said Treaties, so iar as the same tends to show the
" i respect to the limits of their
ue of the provisions of said
aments, or of their respective re
conclusion of said Treaties, so :
original and effective understanding of the Par
several territorial jurisdictions under and b:
Treaties.'
'Vattel's Law of Nations, Book II, Ch. 17, Sec. 287.       &Ibid., Sec. 301. 12
ARGUMENT   OF  THE   UNITED   STATES.
It is submitted that the position thus taken is unsound. It is
founded upon an incomplete quotation which omits significant
words. It ignores altogether the provision in Art. II., and the
effect of Art. III., construed in connection with it, and invokes
a rule altogether so narrow as not to have possibly been within
contemplation.
Art. II. provides that:
Each party may present to the tribunal all pertinent evidence, documentary,
historical, geographical or topographical, including maps and charts, in its possession or control applicable to the rightful decision of the questions submitted.a
Here the door is opened wide, with no limitation except that
the evidence must be pertinent to the rightful decision of the
questions submitted.
Art. III. provides:
The tribunal shall also take into consideration any action of the several governments or of their respective representatives preliminary or subsequent to the
conclusion of said treaties so far as the same tends to show the original and
effective understanding of the parties in respect to the limits of their several
territorial jurisdictions under and by virtue of the provisions of said treaties.&
This does not limit the provision of Art. II., but whether the
Tribunal might consider it pertinent or not makes it obligatory to
also take into consideration any such action of the several governments or of their respective representatives. Art. III. in like
manner compels the Tribunal to consider the Treaties of 1824, 1825
and 1867. It has a discretion as to determining whether or not all
other evidence introduced under Art. II. is pertinent. It has no
such discretion as to that specified in the superadded provisions in
Art. III.
The British Counter Case assumes that Art. III. alone must be looked
to, and that all of the evidence of the United States is introduced pursuant to the provisions of that article.
Art. III. obligates the Tribunal to consider certain evidence. It
does not in any way restrict its discretion as to determining what
other evidence is pertinent. The context shows that it was regarded
that other evidence would be pertinent, and that in addition thereto
the evidence particularized in Art. III. shall also be taken into consideration.    The statement that Art. III.  "excludes all private action
« U, S. C. App., p. 3. 6 U. S. C. App., p. 4. ARGUMENT   OF  THE   UNITED   STATES.
13
and, a fortiori, all private expression of opinion, whether by map
makers or others," is not supported. The pertinency and weight of
such testimony are to be determined by the Tribunal. It may be of
remote relevancy and of slight importance. The British Counter Case
makes no specification except as to maps published by private map
makers. Private map makers are historians of their times. Their
work is accepted or rejected according to its intrinsic merit and their
reputation. If all of the map makers of the world throughout a long
period of time agree to an interpretation of a treaty, and if it be
assumed that such concensus was known to all enlightened governments, then-such governments are affected with knowledge of the common understanding of the world.
If with such knowledge of a common belief in respect of a matter of sovereignty over the arms and inlets of the sea and their
coasts in which all maritime nations and all powers having navies
are directly interested, a government publicly acts through a long
period of time so as to confirm such understanding, then such acts
become more solemn than if they were made without the existence
of an understanding. Such understanding shows that the mind of
the world was on the question and that it deemed it of importance.
If it had no thought about it, then the acts of a government in
regard to it, might be of no special interest and might escape
notice. Such common understanding joined in by the government
most interested, becomes a universally accredited historical fact.
It cannot be said that such common understanding, not dissented
from, but confirmed, is not pertinent in considering the weight
that should be given to the official maps of Great Britain.
The British Counter.Case further concludes that the action of the
respective governments that can be looked to is limited to those
immediately preliminary^ to the treaty. a What has been said about
the admissibility of evidence under Art. II. applies to this proposition. The Treaty should be interpreted in the light of the respective attitudes of the parties when they began their negotiations.
Their relations to the subject-matter of controversy should be known
by the Tribunal in order to better understand the language used
by them in settling the controversy. The rule invoked in the British
Case  is  narrower  than that which  in the courts  of Great Britain
4574—03- 2
*B. C. C, p. 66. 14
ARGUMENT   OF   THE   UNITED   STATES.
and the United States would apply to private litigants. Any court
would admit evidence showing the attitude in which the parties
stood toward the subject matter of contract. It is further said
that:
In addition, the understanding which the action must tend to show is that of
'the Parties.'.that is to say, of both Parties. Action by one Party not known to
the other Party will not tend to show this.«
If one party took action which showed that it understood that
the Treaty meant a certain thing, and if the other party took action
which showed that such party had the same understanding, and if
proof of such actions be made to the Tribunal it does not make a
particle of difference whether or not these separate acts of the several parties were known to the other party. If Great Britain had
passed an Act of Parliament reciting that by the Treaty Russia
owned all of the interior waters and coasts in question, and bad
penalized any trespass upon them by British subjects, would it have
made any difference as to the understanding of Great Britain of
the Treaty that this Act was never known to Russia? If there
were such an act would the United States have to show that Russia
knew of it, and assented to It before it could be admitted in evidence? All separate acts of the parties tending to show their
respective understandings are admissible. If they show the same
understanding they are conclusive. It is only necessary to show
knowledge upon the part of the other party where it is sought to
set up assent or acquiescence. In such cases knowledge must be
shown or the act must have such characteristics that knowledge of
it must be assumed.
FOURTH.
TERRITORIAL  WATERS   IN   INTERNATIONAL LAW.
DISTINCTION BETWEEN THE OVTEB AND   IS NEB,  COAST LINE.
An eminent .English publicist has said that "certain plrysical
peculiarities of coasts in various parts of the world, where land
impinges on the sea in an unusual manner, require to be noticed
as affecting the territorial boundary. Off the coast of Florida,
among the Bahamas, along the shores of Cuba, and in the Pacific,
are to be found groups of numerous islands and islets rising out
of vast banks, which are covered with very shoal water, and either
«B. C. C, p. 66.
mt ARGUMENT   OF   THE   UNITED   STATES.
15
form a line more or less parallel with land or compose s}7stems of
their own, in both cases enclosing considerable sheets of water,
which are sometimes also shoal and sometimes relatively deep. The
entrance to these interior ba}rs or lagoons may be wide in
breadth of surface water, but it is narrow in navigable water. To
take a specific case, on the south coast of Cuba the Archipielago
de los Canarios stretches from sixty to eighty miles from the
mainland to La Isla de Pinos, its length from the Jardines bank
to Cape Frances is over a hundred miles. * * "::" In cases of
this .sort the question whether the interior waters are, or are not,
lakes enclosed within the territory, must always depend upon the
depth upon the banks, and the width of the entrances. Each must
be judged upon its own merits. But in the* instance' cited, there
can be little doubt that the whole Archipielago de los Canarios is
a mere salt-water lake, and that the h»n><J<iry of the hmd of C«h"
nms „lnn<J the exterior edge of the haul*."
In the famous case of the Anna (56 Rob. Adm. 373) Lord Stowell
held that the extent of territorial waters must be estimated
from the. outer edge of the land -represented in that case by
certain low mud islands formed from the alluvial wash and
debris of the Mississippi river, more than three miles from the
Belize, the extreme point of the main land. "It is argued," said
Lord Stowell, "that the line of territory is to be taken only from
the Belize, which is a fort raised on made land by the former
Spanish possessors. I am of a different opinion. I think that the
protection of territory is to be reckoned from these islands, and
that they are the natural appendages of the coast on which they
border, and from which, indeed, they are formed."
It thus appears that from the outer coast line of a maritime state,
as defined in physical geography, is invariably measured under
international law, the limit of that zone of territorial water generally known as the marine league. The boundary of Alaska,—that
is, the exterior boundary from which the marine league is
measured, runs along the outer edge of the Alaskan or Alexander
Archipelago, embracing a group composed of hundreds of islands.
When "measured in a straight line from headland to headland" at
their entrances, Chatham Strait, Cross Sound, Sumner Strait and
Clarence Strait, by which this exterior coast line is pierced, meases Hall, Int. Law, p. 129-130. 16
ARGUMENT   OF   THE   UNITED   STATES.
ure less than ten miles. That fact, according to the authorities
quoted in the British Counter Case, pp. 24-28, places them within
the category of territorial waters. All of the interior waters
touching upon the lisiere, such as Behm Canal, Taku Inlet and
Lynn Canal are, in the language of Hall, " lakes enclosed within
the territory", and as such are territorial waters, regardless of
their width at their entrances when measured from headland to
headland.
DISTINCTION BETWEEN THE COAST LINE OF FHYSICAL GEOGBABHY FOB THE
FUBF0SES OF BOUNDABY, AND THE POLITICAL COAST LINE, FOB THE FUBP0SES
OF JUBISDICTION.
Physical geography simply reproduces the actual coast lines of
maritime states, as they are defined by nature at the point of contact of the sea with the land. The following description of the
coast of Maine, from an eminent geographical authority, may be
taken as an apt illustration:
On the Atlantic coast Maine presents an uninterrupted succession of peniniulas,
islands, and bays; and all these bays are the mouths of rivers—outlets of valleys
having their origin far in the interior. Nothing similar is seen on all the territory of the Union. One must come to Norway or go to the extreme point of
South America to find so long a part of the coast—400 kilometers in a straight
line from the southwest to the northeast—so deeply cut up that we measure on
it more than 4,000 kilometers of contact with the deep sea. All these bays of
Maine are also fiords, but spacious, and which in spite of their equally rocky
banks, of comparatively little elevation, receive the morning and afternoon sun,
as well as that of noon, and open to mariners more ports, more anchorages, and
safe shelters than all the other coasts upon the three seas of the Union.«
It thus appears that the actual coast line of Maine, as known to
physical geography, following as it must the sinuosities defined by
the contact of the sea with the land, is about 4,000 kilometers,
while the political coast line, superimposed upon it by operation
of international law, is vastly shorter bjT reason of the fact that
the artificial and imaginary line cuts across the heads of bays and
inlets. The natural coast line, as known to physical geography,
exists primarily for the purposes of boundary. The artificial coast
line, as known to international law, exists only for the purposes of
jurisdiction.    That obvious distinction is well illustrated bv Rivier
«See Maine,
Vol. Ill, p. 559.
Dictionnaire de  Gtographie   Universelle,   Saint Martin, ARGUMENT   OF   THE   UNITED   STATES.
17
.in his Principes du Droit des Gens. Speaking of uZa mer litto-
rale," he says: "The name territorial sea is applied to all the seas
or portions of the sea which belong to the territory: to the littoral sea, to the interior sea, in the various acceptations of this word,
to gulfs and straits. It is the general and juridical term {le terme
general et juridique), while the others are rather physical or geographical {physiques ou geographiques). The term littoral sea has the
advantage of a special meaning. They say also jurisdictional sea,
after one of the elements of the juridical situation of that part of
the sea.
The principle that the littoral sea forms a part of the territory is
justified, by the necessities of the preservation and security of the
state, from the point of view, military, sanitary, fiscal, as well as the
point of view of the interests of industry, specially of the right of
fishing. The result is, for the coast and for terra firm.a, the littoral
sea has the character of an accessory {le caractere d'un accessoire) and
it cannot be taken independently of the coast {independamment de la
cote). Speaking of uZesFrontieres" he says: "I have spoken already
of the frontier on the sea, and of that of the land. There exists also
special limits for the wants of administration because the geographical and political frontier {la frontiere politique et geographique) do
not always answer in a sufficient manner."a The distinction thus
clearly recognized between a geographical and political frontier is too
obvious to require further illustration.
If the geographical frontier happens to be on the sea or ocean, it is
known as the coast, the point of contact between the sea water and the
land, upon which the political frontier is superimposed as an accessory
that can not be taken independently of the coast {et qu' on ne saw a It
V acquerir independamment de la cote). That dependent and accessorial frontier created by international law, solely for the purposes of
jurisdiction, is annexed only to'the outer coast of a maritime state
which it shortens by cutting across the heads of bays and inlets, thus
following what is called the general trend of the coast.
THE POLITICAL COAST LINE NOT INVOLVED IN THIS CASE.
The artificial coast line created by international law for the purposes
of jurisdiction only, which, following the general trend of the coast, 18
ARGUMENT OF THE UNITED STATES
cuts across the heads of bays and inlets is not involved in this case in
any form, for the simple reason that the outer coast, to which it is
exclusively an accessory, is not involved.
The entire British Case rests upon the admission that the eastern
boundary of the lisiere is to be determined with reference to the inner
coast only, and on the contention that a political coast line can be predicated of this coast. In the language of the British Case (p. fS| "It
seems clear that, in the whole course of these negotiations, Count
Nesselrode used the term 'cote' as meaning the general line of the
continent." The eastern line of the lisiere as now contended for by
Great Britain is drawn in reference to "the general line of the con
tinent." that is, of the inner coast. The heart of that contention is that
such inner coast is not the entire natural coast of physical geography,
but that it is to be ignored at places and that for it shall be substituted
an artificial coast line which under international law is a mere accessory
toa physical coast. Such an artificial coast line relates to the outer
coast only,'and can have no reference whatever to the inner coast line
in question. The only coast with which we are dealing is the inner
coast, the physical coast, the coast defined by the contact of the sea
with the land.
The result of the British claim that the line shall be'drawn from
headland to headland is that a principle which became established in
international law for the purpose of giving additional rights as incident to the ownership is perverted to the purpose of determining
what shall be considered coast. It could only apply where there was
admitted sovereignty over a coast line, and then only for the purpose
of'giving, by enlarging the jurisdiction beyond the actual coast, accessorial rights. It was never adopted and has never before been applied
for the purpose of determining the sovereignty over coasts. What
was adopted as a shield for the protection of the coast is turned into
an instrument for dissevering it.
The British Counter Case (p. 28) quotes from Mr. Joshua Bates who
in 1853 says: "This doctrine of the headlands is new." And yet it is
sought to make it appear that the negotiators of the Treaty of 1825
must have intended to apply it, for the purpose of determining what
was "coast" as that word was used by them. AR
3UMENT   0
F   THE   UNITED   STATES.
FIFTH.
19
First Q
UESTION
"Whati
s intended as the point of comm
encement
Of tin   Inn
?%"
On this
questic
m  there i
s  no  controversy.    The  Unite
i   States
requests t
ie tribui
lal to decic
le that Cape Muzon is the poinl
of com-
mencemen
t."
In the 1
But Great
British C
Britain cc
a-se occurs
ncedes that:
the following:
t sufficiently appears that Cape Muzon
, the more
southerly pc
be the point
int, fulfill
of depart
s the essentia
are. &
1 conditions of the Treaty, and should
SIXTH.
be held to
Second
QUESTK
dn:   What
■luimul is the Portland Cluiniwl
%l
Answei
I PROPOS
ED  BY THI
] United States:
The Unil
ed States
requests the
Tribunal to answer and decide tha
t Portland
Channel  is
the same
i body of w
ater now  commonly  known  and  de
scribed as
Portland Ca
nal, whic
h, passing fi
om the north between Ramsden.Po
int on the
mainland a
rid Pearse
Island, anc
1 thence southward  of said island
aid Wales
Island, ente
Island.
rs Dixon
Entrance be
tween the island last mentioned anc
I Compton
THE  INTENTK
>N  OF  THE  NEGOTIATORS.
Portlan(
1 Chann<
il, as the <
course of the boundary, first appears in
the discus
sion in
Russia's pi
oposal of Feb. VI 24, 1824.    Tl
ie line of
demarcate
)n start!
ng from J
5rince of Wales Island was to
"follow
Portland
Channel
up  to  th
e mountains which border the
coast, "c
Russia hac
. previoi
isly, on Oc
t. 2, 1823, proposed the 54: of
latitude
(Poletica t
o Nessel
rode, Nov.
3, 1823).d   Sir C. Bagot had un
derstood
him to off*
» the 5c
>° (Bagot t
o Canning, Oct. 17, 1823)/ but
;he ques-
tion had n
ot been
seriously d
iscussed between them because,
as stated
by Sir C.
Bagot, '
•M. Poletic
•a was not empowered to treat o
r, indeed
to pledge
his go^
/ernment to any precise point." and Sir
Charles
"abstaine
1 from (
entering with him as fully into the matte
r" as he
otherwise
would h
we done.
He also assigned as an additional reason
for not ad
dancing
the negotia
tions that, in view of the positi
jn of the
United St
ates, he
did not "1
hink it safe to venture furthei
into the
question "
until he
had learn e
d the opinion of His Majesty's
Govern-
ment upoi
the pre
:ensions ad
vanced by the United States.
,«U. s
. Case, p.
104.          cTJ.
S. C. App., 158.         *U. S. C. App.,
131.
&B. C
•> p. 46.
'T
S. C. App., 139. 20
ARGUMENT   OF   THE   UNITED   STATES.
The pretensions of the United States, as stated by Mr. Middleton
to Sir C. Bagot are reported in the latter's letter to Mr. Canning,
Oct. 17/29, 1823,« to be that the United States had succeeded to all
claims which Spain had to the northwest coast, and that as Russia
had disclaimed all intention of interfering with Spanish claims south
of 61°, "any claim of the coast lying between 42c and 61° ought
in strictness to be made between the United States and Great
Britain alone;" but that the United States was ready to acknowledge
that no country had any absolute and exclusive claim to those coasts,
and only intended to claim, as the heirs of the Spanish claims, that
the United States had the best pretensions as between Russia, Great
Britain and itself.
An argument based on this claim was advanced by Sir C. Bagot,
to show that Russia had recognized the superior claim of the United
States to the whole coast; but this argument reacted and was
turned against Great Britain later in the negotiations, when the
United States withdrew below 54° 40' in favor of Russia under their
treaty.
Pending the resumption of the negotiations after the preliminary
proposals of Sir C. Bagot and M. Poletica, the position of the
United States had been more clearly defined and had given the
territorial question "a new and complicated character."6 The
Monroe doctrine had been announced and had furnished Great
Britain " a conclusive reason for our not mixing ourselves in the
negotiations" between Russia and the United States. The treaty
of 1818, which was still in force, made it unnecessary for Great
Britain to settle the boundary question at once with the United
States, and an independent negotiation with Russia on the territorial question was therefore determined upon.
Such was the situation when Russia's proposal of the line through
Portland Channel was first offered. Count Nesselrode. in reporting
the negotiation to Count Lieven, said of this proposal that—
In order not t
would remain tc
to latitude 54° 40/ and t
ut Prince of Wales Island, which, according to this arrangement
ussia, we proposed to carry the southern frontier of our domain*
:e it abut upon t
utinent at Portland Can
of
which the opening into the ocean is at the same latitude as Prince of Wales Island.
aV. S. C. App., 129. '
&U. S. C. App., 144.
cJJ. S. C. App., 173. ARGUMENT   OF   THE   UNITED   STATES.
21
Russia assumed the position that the boundarj7 as a matter of right
should not be above the 55°, because of the lease to that point of
the Russian American Company.
Sir C. Bagot took exception to the way in which this proposal was
offered, in that Count Nesselrode seemed to intimate that it would be
asking too much of the imperial dignity to require that pretensions
advanced twenty-five years ago by the Emperor Paul should now be
renounced, but he later recognized that this was an element in the
situation which could not be disregarded; and finally took the
responsibility upon himself of exceeding the limit of his instructions
by offering to carry the line below 55° on the islands, because he
felt that "His Imperial .Majesty might vet possibly feel an invincible repugnance to retract from the pretensions advanced by the
Emperor Paul in the charter given to the Russian American
Company in 1899." a
His instructions had been to carry the line to the southward only as
far as the point opposite the southern ends of the island upon which
Sitka stood, which was fixed upon the charts and was understood by
Sir Charles to be about 56°, and this was the boundary proposed by
him in answer to Russia's first suggestion of Portland Channel. In
making this proposal he stated in objecting to the line through Portland Channel that it " would deprive His Britannic Majesty of sovereignty over all the inlets and small ba37s tying between latitudes 56°
and 54° 45'."6
This expression is quoted in the British Case (p. 56) as authority
for the statement that "the British understanding, communicated to
and not questioned b}7 Russia, was that Portland Channel entered the
ocean in 54° 45'."
A less superficial examination of the statement will disclose, however, that it does not have the significance claimed for it b}7 Great
Britain. In the first place the language is used in refusing to consent
to Portland Channel as a boundary, and its exact location was therefore of no immediate importance, and the reference to its location
does not carry an}7 presumption that it is used with special care or
precision on the part of Great Britain. Neither, on the other hand,
was Russia called upon under the circumstances to give any opinion
as to the accuracy of the reference,  and her silence on the subject
«U. S. C. App., 155.
& U. S. C. App., 159. 22 ARGUMENT   OF   THE   UNITED   STATES.
raises no presumption of consent. That Count Nesselrode did not
assent to 54° 45' as fixing the point at which the line was to enter
Portland Channel, is shown in his report of the proceedings above
quoted, that "we proposed to carry the southern frontier of our
domains to latitude 54° 40' and to make it abut upon the continent at
Portland Canal, of which the opening into the ocean is at the same
latitude as Prince of Wales Island. "
This statement is contained in his letter" to Count Lieven reporting
the conclusion on that same da}7 "of the treaty with the United States,
fixing the line at 54c 40', so that his reference to that line, in connection with the British negotiations, has special significance.
In the second place the reference to 54° 45' in Sir C. Bagot's statement was not necessarily intended to refer to the mouth of Portland
Channel, and from the context it appears that an entirely different
meaning is the more probable one. The reference to 54° 45' is made
in connection with the exclusion of British sovereignty over the inlets
and small bays between that point and 56°, and one of the reasons
assigned for objecting to this is that the Russian-American Company
possessed no establishments on the mainland between those parallels.
It will be observed, therefore, that the latitudes 56° and 54° 45' are
mentioned as fixing two points on the mainland between which the
Russian-American Company possessed no establishments, and therefore 54° 45' was necessarily not intended to be the point at which the
proposed Russian line should enter Portland^jhannel, which was not
to be at the point of the mainland, but through the channel itself.
Sir C. Bagot had distinctly so interpreted Russia's proposal in his
amended proposal offered during these negotiations "in answer to
the proposal made by the Russian plenipotentiaries, that the line of
demarcation drawn from the southern extremity of Prince of Wales
Island to the mouth of Portland Channel, timer „p the middle of
this Channel  nntil  it tonehes the mainland, etc."b
In this connection it is important to note that the Russian proposal
did not fix the exact location of the proposed line by astronomical
locations, but simply that it should "follow Portland Channel to the
mountains," etc., so that Sir Charles Bagot's reference to 54° 45' was
not intended as a correction of the Russian line.
. C. App., 172.
&U. S. C. App., p. 159. ARGUMENT   OF   THE   UNITED   STATES.
23
The reference is of no value, therefore, for the purpose for which
it is cited in the British Case, and the intention of neither the British
nor the Russian negotiators as to what channel is Portland Channel
can be predicated upon it.
During this period of the negotiations no further progress was made
toward an agreement upon the line through Portland Channel. Sir
C. Bagot, as above stated, was limited by his instructions to the 56°
on the outer mainland coast for the southern limit, and sought to
induce Russia .to accept a line there by offering to carry it down on
the islands to the lowest point of Prince of Wales Island, which was
understood to be about 5*4 40', thereby meeting the Russian requirements so far as the islands were concerned and which he hoped "while
it saved this point of dignity to Russia by giving to her the fifty-fifth
degree of latitude as her boundary upon the islands, might preserve
also uninterrupted our access to the Pacific Ocean, and secure to His
Majesty the fifty-sixth degree of north latitude as the British boundary upon the coast." "
Russia's position throughout the negotiations was unchanged, however, and as pointed out in the observations submitted to Sir C. Bagot,
was based upon the fact that the English establishments had a tendency
to advance westward along the 53° and 54° and the Russian establishments to descend southward toward the 55° and beyond. Therefore
it ^al "to the mutual advantage of the two Empires to assign just
limits to this advance on both sides," before they conflicted, and "it
was also to their mutual advantage to fix these limits according to natural partitions, which always constitute the most distinct and certain
frontiers,"6 and "For these reasons the plenipotentiaries of Russia
have proposed as limits upon the coast of the continent, to the south,
Portland Channel, the head of which lies about (par) the fifty-sixth
degree of north latitude, and to the east the chain of mountains which
follows at a very short distance the sinuosities of the coast."6
The boundary thus proposed was based on broad principles and followed natural partitions, and the question of what point on the coast
54° 45' touched, which Great Britain seeks to determine by this negotiation, clearly had no place or consideration in the discussion. Certainly
no distinction had been drawn between 54rc 45' and 54° 40', because the 24
ARGUMENT   OF   THE   UNITED   STATES.
latter point had not yet been mentioned in the discussion, so far as the
record shows. It is first mentioned in Count Nesselrode's report of
the negotiations quoted above.
After showing these general advantages of Portland Channel as
forming a natural partition fulfilling the requirements of the boundary,
Russia further pointed out that on the other hand, unless the line was
carried through Portland Channel, "the Russian establishments on the
islands in the vicinity would have no support {'point d'appui)', that
they would be at the mercy of the establishments which strangers
might form upon the mainland, and that any such arrangement, far
from being founded upon the principle of mutual accommodations,
would but offer dangers for one of the parties and exclusive advantages
for the other.""
In Russia's final decision the British propositions were rejected on
these grounds, and on the further ground "that besides, according
to the testimony of the most recent maps published in England, no
English establishment exists either on the coast of the continent itself
or north of the 54th degree of north latitude." b
The negotiations therefore closed at this point for lack of authority
on the part of the British Ambassador to comply with the requirements
of Russia below 56° on the mainland.
In the British case the observation is made on these negotiations
that the fifty-fifth parallel was the limit of the Russian claim and that
any suggestion of carrying the line further south to 54° 40', was but
local to the Prince of Wales Island/
It is true that 55° was the line insisted upon by Russia but it must
be remembered that this was insisted on, not as the most she claimed,
but as the least she would take. She took occasion to point out and
emphasize the fact during the negotiations that her claim to *V> could
not be questioned, that she had at least equal rights with Great Britain
below 55°, that there were no English establishments approaching
the coast above 53° or 54°, and that those situated there had not yet
reached the coast. There was, therefore, no question of encroaching
upon British territory below 55°, which is the presumption suggested
by the statement in the British Case above quoted. On the contrary,
Russia regarded her attitude as a withdrawal northward from 51°
rather than an extension southward from 55°.    As Count Nesselrode
& U. S. C. App., 165.
^B. C., 57. ARGUMENT   OF   THE   UNITED   STATES
25
expressed it, "Thus, we wish to keep, and the English companies wish
to obtain." a
Furthermore, there was another factor in the negotiations which had
a controlling influence both on Russia and Great Britain in the final
determination of the location of the southern line of the lisiere, and
which in itself interprets the intention of the negotiators on that
point, and that was the Russian-American treaty.
Concurrently with the British" negotiations, Count Nesselrode had
carried on the negotiations with Mr. Middleton, the United States
Minister, and within three weeks after the suspension of the British
negotiations, the treaty with the United States was concluded.
It appears from Sir C. Bagot's letter of Apr. 5 17. 1824, to Mr.
Canning,6 enclosing a copy of the convention with the United States,
that Mr. Canning was aware of its terms prior to sending his next
instructions to Sir C. Bagot on the negotiations. Mr. Canning's next
instructions, therefore, must be read in the light of this knowledge
that Russia and the United States had agreed upon a line at 54° 40'.
The fact that the line Was not a delimitation of possessions but only of
settlements does not alter its importance as a recognition by the
United States of the Russian authority down to 54° 40' north latitude.
In reporting the situation to Count Lieven, with instructions to lay
the matter before the British Government, Count Nesselrode, in his
letter of Apr. 17, 1824, after showing that by his interpretation of the
effects of the treaty of 1818 the titles of the United States to the
possession of the territory of the northwest coast were as valid as those
of England, says:
Nevertheless, the Cabinet of 'Washington has admitted that our boundary should
come down as far as 54° 40e This has been admitted in a formal agreement that we
have just signed with its plenipotentiary,^and the strengthening of our arguments is
far from being the only result of this admission. c
The preceding negotiations having been suspended as above shown,
because Sir C. Bagot was not permitted by his instructions to carry
the boundary below 56° on the mainland, Mr. Canning opened his
instructions at that point and authorized Sir Charles Bagot "to take
as the line of demarcation, a line drawn from the southernmost point
of Prince of Wales Island from south to north through Portland
Channel, till it strikes the mainland in latitude 56c."''
«U. S. C. App., 173.
&B. C. App., 80.
cXJ. S. C. App., 174.
^U. S. C. App., 181. 26
ARGUMENT   OF   THE   UNITED  STATES.
These instructions were sent as stated by him, "after full consideration of the motives which are alleged by the Russian government for
adhering to their last proposition."
Air. Canning had also read Count Nesselrode's letter to Count
Lieven from which the extract quoted above is taken, as appears by
his letter of May 29, 1824, to Count Lieven.
In consenting to the line up Portland Channel, Mr. Canning had
before him, therefore, Russia's final decision and arguments in support
of it. in which Portland Channel was proposed by name and without
a single reference to astronomical locations, about which no questions
had arisen, it being merely described generally as offering a suitable
natural partition selected on the broad grounds of the mutual convenience of both sides; the United States-Russian Treaty fixing the
line at 54° 40' and Count Nesselrode's statement that this admission by
the United States that the Russian " boundary should come down as
far as 54c 4<>' " was regarded as strengthening their arguments. By
this he meant, of course, the arguments for the same boundary at
54° 40' on the mainland with Great Britain, for the boundary on the
islands at that latitude had already been agreed to.
It can hardly be questioned that under such circumstances Mr.
Canning's assent to the line through Portland Channel contemplated
carrying the line, to its entrance at least, along the 54° 40' parallel,
and that there was in his mind no doubt that its entrance would be
found to coincide with that parallel.
The boundary line through Portland Channel was not thereafter
the subject of discussion in the negotiations; but the references to the
Channel and the part that it plays in the boundary in the later
negotiations settle beyond dispute the understanding of the parties
that a line at 54° 40' would run approximately through the center of
the entrance of Portland Channel.
Sir C. Bagot in reporting the later negotiations to Mr. G. Canning,
Aug. 12, 1824,a says that one of the points of difference was the perpetual liberty of navigation and trade along the coasts of the lisiere.
The lisie/'e referred to was described in the proposed conventions
before the negotiators in which the line started on Prince of Wales
Island at 54   40' and was then carried as follows:
th«
ascend northerty along the channel called Portland
" U. S. C. App., 190. ARGUMENT   OF   THE   UNITED   STATES. Zi
Sir C. Bagot therefore understood the lisiere to be bounded on the
south by Portland Channel.
Count Nesselrode, m reporting the same negotiations to Count
Lieven in his letter of August 31, ] 824, referring to exactly the same
subject, described the lisiere as the coast "which extends from 59° of
north latitude to 54° 40'."" Later in the same letter he refers to
this same latitude of 54: 40' as that to which the United States
was confined by its treaty, and again later he says, "our counter
draft carries our boundary from the 51° to 54° 40'. It leaves to
the establishments which the English companies may form hereafter on the northwest coast all the territory situated to the south of
Portland Channel."6 In this counter draft the southern boundary
of the lisiere is carried through Portland Channel exactly as in
the one referred to by Sir C. Bagot. Grouping these references
together, they serve to emphasize the fact that the Portland Channel
of the negotiations, which afterwards was carried into the treaty without change, was understood by Sir C. Bagot to be the same Portland
Channel which was fixed by Count Nesselrode as carrying at its
entrance the line 54° 40' and as the boundary to which Russia had
receded from 51° in the United States treaty.- It further appears that
this letter of Count Nesselrode, in which this identification of Portland
Channel with 54° 40' is made, was submitted to Mr. Canning and
annotated by him, and so far as the references to Portland Channel
are concerned, it was accepted by him without criticism or comment.
BABON TUYLL'S LETTEB.
The British Case on page 56 quotes a suggestion from Baron Tuyll
to Count Nesselrode, that the'frontiers should be fixed at the 55th
degree, "or better still at the southern point of the archipelago of the
Prince of Wales and the Observatory Inlet, situated [plural] almost
under this parallel."
This is relied on to show that the body of water whose mouth was
opposite Prince of Wales Island was understood to be Observatory
Inlet, and that consequently they could not have meant that body of
water when they designated that the line should run along Portland
Channel.
The argument seems to assume that Baron Tuyll meant to say that
the body of water designated as Observatory Inlet was opposite the
« U. S. C. App., 200. &U. S. C. App., 2C4. 28
ARGUMENT   OF   THE   UNITED   STATES.
southern point of Prince of Wales Island, and on the same latitude,
and that because the southernmost point of the island is about on the
same latitude as the mouth of the body of water which the United
States contends was designated by the name Portland Channel in the
Treaty, it follows that such body of water could not have been meant,
and that the contention of the United States is thereby overthrown.
The contrary inference is to be drawn from what Baron Tuyll said.
He was correct in stating that the mouth of Observatory Inlet was
about at the 55th parallel. Observatory Inlet was indicated on the
maps of Vancouver and Arrowsmith, according to the method of lettering used by cartographers, as a minor body of water flowing into
Portland Channel at Ramsdens Point. This mouth falls directly under
the 55th parallel. The end of the archipelago of Prince of Wales was
shown on these maps to be at about 54° 40'.
He made a clear error when he said that the point of this archipelago was almost under the 55th parallel. When the parallel, given by
him as being the one at which Observatory Inlet was situated, is shown
by the maps to coincide with the mouth of the body of water indicated
on them as Observatory Inlet, why should we ignore his correct state-'
ment, and take his incorrect statement, as a basis for designating a
body of water, which was not marked Observatory Inlet, on the maps,
and which even a cursory examination of the maps would have shown
to be a number of miles south of the mouth of the body which, according to the name on the map and the latitude, he had correctly located?.
Therefore, his suggestion, so far from demonstrating that the Russian plenipotentiaries understood Observatory Inlet to extend to Dixon
Entrance,, indicates just the contrary. At most, however, the statement could only show that Baron Tuyll understood that the body of
water whose mouth was nearest opposite to the southernmost point of
Prince of Wales Island was Observatory Inlet. If this was his idea,
it does not follow that Count Nesselrode concurred in it. If he had
concurred in it and had meant that body of water, he would have called
it Observatory Inlet instead of Portland Channel, for 54° 40' was the
latitude along which he certainly expected the boundary to" run. Russia first suggested Portland Channel, and it is not likely that he would
have carried the line to a body of water further north without any
pressure on the part of Great Britain (and none such appears to have
been brought on this question), if Baron Tuyll had suggested Observatory Inlet as a proper body of water, and he had understood that ARGUMENT   OF  THE   UNITED   STATES. 29
Observatory Inlet was that body which debouches nearly opposite the
southernmost point of Prince of Wales Island. The better reasoning
is that he understood that Baron Tuyll meant by Observatory Inlet
the Observatory Inlet marked on the map whose mouth was under the
55th parallel, and that this body of water was not acceptable to him,
first, because it was not on 54° 40', and, second, because it did not
debouch on the high seas, it being desirable to have the line proceed
up such a body of water.
Whatever Baron Tuyll's idea was, it is evident that his letter was
not sufficient to charge Count Nesselrode with any different understanding of Portland Channel from the one consistently followed by
him in the negotiations; and the date of the letter, which is October
21, 1822, and prior to the commencement of the negotiations, shows
that it is of no relative importance in interpreting the later understanding of the parties.
PHYSICAL GEOGRAPHY OF PORTLAND CHANNEL.
The contention of the British Case is that "The only canal known
by the name of Portland at the time of the treaty, had been surveyed,
chartered, described and named by Vancouver as Portland Canal, and
is so called in the first edition of his book, but changed in the second
edition to Portland Channel.    The variation seems immaterial."01
This contention is based upon the statement in the British Case,
p. 50, that Vancouver's Narrative was known to have been before the
negotiators. In view of the fact that Vancouver's Narrative is not
referred to anywhere in the negotiations by any of the negotiators,
this statement calls for affirmative proof, but no evidence is offered in
its support. On the contrary it appears in the negotiations as shown
below that Vancouver's Narrative was not followed by the negotiators
in the astronomical locations or in the geographical references, and it
further appears that Vancouver's charts rather than his Narrative were
the final expression of his conclusions and were so regarded by the
cartographers who followed him.
In the geography of Alaska the word "canal" has a local and
special meaning. It signifies not an artificial channel, but a great
arm of the sea, a fjord, or estuary. "Along the coast of Southern
Alaska and British Columbia, submergence has led the sea far into
«B. C, p. 49.
4574r—03 3
1 30 ARGUMENT   OF   THE   UNITED   STATES.
the valleys of the mountainous highlands. Some of the inner longitudinal valleys, beyond the outer ranges, are now under water,
forming 'canals' of great value for coastwise navigation."a
Viewed as a whole the coast has a general trend in a northwesterly
direction, but in detail it is very irregular, reaching back into deep,
narrow fjords, and fringed by a mass of islands of all sizes. The
fjords and straits are submerged valleys, both in line with and transverse to the general direction of the mountain ranges. Of the fjords*
Dr. G. M. Dawson writes: "Their width is usually from one to three
miles, their shores rocky and abrupt, and rising towards the heads of
the longer fjords into mountains from 6,000 to 8,000 feet in height."
As an illustration reference may be made to Lynn Canal, named and
charted by Vancouver, which is a fjord, or estuary, embracing about
388 square nautical miles, and terminating in the two inlets named
respectively Chilkat and Chilkoot.
When viewed from the standpoint of its geological origin and
formation, the term Portland Canal should likewise be applied to the
entire body of water embraced within the continental shores between
Point Ramsden and the open sea, and terminating in the two inlets
generally known as Portland Canal and Observatory Inlet; such entire
body of water embracing about 287 square nautical miles, being
dotted by many islands, the larger of which are Pearse, Wales,
Somerville, Fillmore, Sitklan, Kannaghunut, Compton, Truro, and
Tongass. That Vancouver regarded the* entire "arm of the sea," or
estuary, as above described, as Portland Canal is plainly indicated by
the following: "In the forenoon we reached that arm of the sea whose
examination had occupied our time from the 27th of the preceding to
the 2nd of this month. The distance from its entrance to its source
is about 70 miles, which, in honor of the noble family of Bentinck, I
named Portland's Canal.6
Here is a clear and exact statement that the \ \ arm of the sea " named
"Portland's Canal" was the body of water traversed between the 27th
of July,—on the morning of which he was in Observatory Inlet,
"about twelve miles to the southward of the ships" (which were then
in Salmon Cove)—and the 2nd of August, in the evening of which he
was in Nakat Inlet where, to use his own words "our hopes vanished
a From Prof. Wm. M. Davis, in the International Geography, p. 667.
&B. C. App., 145. ARGUMENT   OF   THE   UNITED   STATES.
31
by our arriving at the head of the arm where it terminated in a small
fresh water brook flowing from low marshy ground in latitude 54° 56',
longitude 229° 28'." It thus appears that the journey, during which
Vancouver traversed a body of water named by him Portland's Canal,
began at least thirteen miles from the passage so entitled in the British Case and ended at Nakat Inlet, at least iO miles therefrom.
That Vancouver regarded " Observatory Inlet" merely as a "branch "
of this "arm of the sea," is made clear by the following: "Nothing
of any note having occurred during my absence, I shall conclude this
chapter by the insertion of the astronomical and nautical observations
made at this place, and in consequence of our having been so fortunate
as to be able to obtain those that were essential for correcting our
former survey, and for future regulation in that respect, this branch
obtained the name of Observatory Inlet and the cove where the vessels were stationed that of Salmon Cove, from the abundance of that
kind of fish that were there taken." a
The British Case, p. 50, correctly states that "As to the greater
part of the length of the Portland Channel above shortly described,
there is not. and could not be, any dispute. Reference to the
charts will show that, at any rate, that portion of the westerly
water which extends inland from the upper end of Pearse Island
to the head of the channel marked 'Portland Canal' must be
comprised in Vancouver's Portland Canal. And this is the common
case of both sides. The dispute is as to the remainder of the
channel." That is to say, the matter which remains in dispute is
this: Is Portland Channel, below the point of agreement, that body
of water which goes "seaward between Pearse, Wales, Sitklan, and
Kannaghunut Islands on the east and south, and the continental shore,
Fillmore and Tongass Islands on the west and north;" or is it that
body of water which goes seaward "between Pearse Island and the
peninsula, passes Ramsden Point, in (or at the entrance of) Observatory Inlet, and reaches the ocean by the channel between Pearse and
Wales Island on the west, and the easternly continental shore, entering the ocean between Point Wales on the west and Point Maskelyne
On the east."
At this stage~of the argument it will be helpful to contrast, with
the aid of physical geography, the relative volume of the two bodies
«B. C. App., 146. 32 ARGUMENT   OF   THE   UNITED   STATES.
of water competing for the title of Portland Channel, from the point
of agreement to the open sea. The channel contended for by Great
Britain is in length twenty-eight nautical miles; of an average width
of 0.76 of a nautical mile; and of an average depth of sixty-four
fathoms. This channel is at two points narrowed to a width of about
two hundred and^fifty metres (about an eighth of a mile), the result
of which is a choking of the waters passing through it, in its tidal
action, to such an extent that about ninety per cent of the tidal flow
is through the channel contended for by the United States.
The channel contended for by Great Britain, between Wales
passage and Tongass passage, is foul ground, and the most ordinary
prudence would forbid its navigation. The best evidence of that
fact is to be drawn from Vancouver himself who tells us in his
narrative that eyen when he was making his way to the sea by the
channel in question he passed to the northward and westward of
Fillmore Island instead of proceeding directly across the foul ground,
thus avoiding five miles of the channel now embraced in the British
contention.a Vancouver puts it beyond all doubt that at no time,
either before or after his boat exploration, did he ever venture to
enter with his ships into the channel in question. Certainly he
was but little impressed with either the value or importance of the
smaller channel, because after he had completed his exploration of
it, he said, in the evening of August 2,
' This disappointment occasioned us no small degree of mortification, since we had
already been absent from the ships a whole week, with the finest weather the season had yet afforded; and though our utmost exertions had been called forth in
tracing the continent through this labyrinth of rocks we had not advanced more
than thirteen leagues in a right line from the ships to the entrance of this inlet, and
that in a southwest direction; very different from the course we could have wished
to have pursued. It was also now evident that we had the exterior coast to contend
with and from the length of time we had been indulged with fine weather, we could
not reasonably expect its continuing much longer; indeed the appearance of the
evening indicated an unfavorable alteration which made me apprehensive that
probably the finest part of the season had been devoted, in our late pursuit, to a
very perplexing object of no great value or consideration.
The channel contended for by the United States is likewise twenty-
eight nautical miles in length; of an average width of 2.58 nautical miles;
and of an average depth of two hundred and eighteen fathoms. The
volume of water contained in that channel is therefore about eleven
a Vancouver's Narrative, Vol. II, pp. 343-345. ARGUMENT   OF  THE   UNITED   STATES.
33
and a half times as great as that contained in the channel advocated in
the British contention. According to the statement of Vancouver,
made when he entered the larger channel, "its entrance is not more
than two miles and a half across"; and later on he says "no bottom
was however gained after passing that point (speaking of Point
Maskelyne), with sixty and seventy fathoms of line." It appears not
only from his narrative but from the charts of Vancouver that he
navigated with his ships the larger channel, up to the junction with
Observatory Inlet, both in and out.
The reason is thus stated by Vancouver himself: "The route by
which the vessels had advanced to Salmon Cove, being infinitely
better for them to pursue towards Cape Caamano, than the intricate
channel through which I had passed in the boats, we weighed with the
intention of directing our course thus about six in the morning of
Saturday the 17th; but having a strong gale from the southward, we
made little progress windward."05 And yet despite the natural and
cogent presumption that a trained navigator and cartographer would
have given the name of the channel to the real and navigable one,
in preference to an almost unnavigable one. which he described as
"of no great value or consideration," the British Case assumes the
burden of proving the contrary by means of the Narrative and maps
of Vancouver himself.
EVIDENCE OF THE CARTOGRAPHERS.
During the progress of the negotiations specific references were
made to the following maps and charts. Sir Charles Bagot in his
letter of August 19 (31), 1823, to Mr. G. Canning said:
I am not, however, quite sure that I am right in this last assertion, as the Russian Settlement of Sitka, to which I am told that the Russian Government pretends to attach great importance, is not laid down very precisely in the Map
published in 1802 in the Quartermaster-General's Department here, or laid down
at all in that of Arrowsmith, which has been furnished to me from the Foreign
Office.
Sir Charles Bagot in his letter of October 17 (29), 1823, to Mr.
G. Canning*, said:
I then gave him to understand that the British Government would, I thought,
be satisfied to take Cross Sound, lying about the latitude of 57J° as the boundary
between the two Powers on the coast, and a meridian line drawn from the head
# Vancouver's Narrative, vol. IV, p. 202. 34 ARGUMENT   OF  THE   UNITED   STATES.
of Lynn Canal, as it is laid down in Arrowsmith's last map, or about the one
hundred and thirty-fifth degree of west longitude, as the boundary in the interior of the continent.
Mr. <3r. Canning in his letter of January 15, 1824, to Sir C. Bagot
said:
The most southern establishment of Russia on the northwest coast of America is
Sitka, which is not laid down in oar latest maps with sufficient exactness, but which
appears by the Russian map published in 1802 to be situated, as the inclosed copy of
a letter from Mr. Pelly, chairman'of the Hudson's Bay Company, also represents it,
in latitude 57°, and not (as the map of which a copy was inclosed to your Excellency
indicates) on the continent, but on a small island of the same name at the mouth of
Norfolk Sound; the larger islands contiguous thereto, forming (what is called by
Vancouver) Kinge George's Archipelago, are separated from each other by a strait
called Chatham Strait, and from the mainland by another strait, called Stephen's
Strait or passage.a
Mr. Canning will perceive by the inclosed Russian Chart (copied from Vancouver's
survey) that the Russian settlement of Sitka is on a small island they have so named
in the mouth of Norfolk Sound and in latitude 57° 5' N. The great island contiguous to hvis named by Vancouver "King George's Archipelago," and the strait which
separates it from another island (Admiralty Island) is named "Chatham Strait." &
In the Hudson's Bay Company's letter to Mr. G. Canning (No.
40), dated London, January 16, 1824,
Mr. Pelly presents his compliments to Mr. Secretary Canning, and, as in the
conversation he had with Mr. Canning he seemed to consider Mr. Faden's map
as the most authentic (an opinion which in so important a question as that of
settling a natural boundary it may, perhaps; be dangerous hastily to admit),
Mr. Pelly has had the posts of the Hudson's Bay Company, in that part of the
territory under consideration, marked on it; he has likewise had coloured the
proposed line from Lynn Canal, the northern extremity of Chatham Strait, as
well as the less objectional one from Mount Elias.c
The Faden map here referred to is undoubtedly that published
in London June 1, 1823 (No. 10 of the British Atlas), about seven
months before the letter in question was written. In that letter
also occurs the following: "The map is sent herewith, and likewise
a copy of G. H. von Langsdorff's account of his voyage to the
northwest coast of America, in the fourth chapter of which is a
full description of Sitcha." Langsdorff's map, illustrating his voyage, is No. 7 of the British Atlas.     No other  specific  references
«U. S. C. App., 144.
& Memorandum, January 13,1824, App. British Case, p. 59.
oB. C., App., p. 65.  American AHas N? 4,~~Reproducing
Vancouver's Map. N? 7, Atlas 7738.
4#
.Vancouver's Map, Mo. I
M\ fc?0,bservatorY
rrowsmltr's Map, /822
Corrected -fo 1823.
Geologica/ Corps Map, 7842 ^ 1882,
(From the British Case.) ARGUMENT OF THE UNITED STATES.
35
are known to have been made, during the negotiations, to any
other map or chart whatsoever.
The statement heretofore made that Vancouver's Narrative clearly
indicates the fact that he regarded Observatory Inlet only as a
"branch " of the main body of water or " arm of the sea" to which he
applied the name of Portland's Canal is confirmed by his chart outlining "Part of the Coast of North America," which appears as No.
2 in the British Atlas, and as No. 4 in the American. No minute
examination is necessary to perceive that the name "Portland Canal"
is so printed along one entire side in large letters as to indicate that
it is given to the "arm of the sea" or fiord as a whole, while the
name "Observatory Inlet" is printed in smaller type along that
" branch" in such a way as to preclude the idea that it was intended
to apply to any water below Point Ramsden. The accompanying
reproduction  demonstrates the relative size of the type employed.
It thus appears that the name "Portland Canal," consisting of only
thirteen letters, occupies a space just twice as long as. that occupied
by the name " Observatory Inlet" with sixteen letters. And to this
must be added the consideration that it is a general rule with cartographers to place the name of the object designated as nearly opposite
the centre of that object as possible. Applying that rule to the matter
before us it appears that the names in question have been placed on
that principle,—the name "Portland Canal" being placed as near as
possible opposite the centre of the entire body of water, and the name
"Observatory Inlet" being placed as near as possible opposite the
centre of the "branch" beginning at Point Ramsden, although, according to the admission of the British Case, p. 55, "it was physically
possible that they should extend southward as far as Pearse Island."
If any confusion has resulted from the statement made by Vancouver that "The west point of Observatory Inlet I distinguished by
calling it Point Wales, after my much esteemed friend Mr. Wales, of
Christ's Hospital," the plain answer is that such confusion was swept
away when, through the plotting of his field notes, Vancouver saw
clearly the relations of the several parts of his explorations to each
other. It is hardly necessary to state that Vancouver's maps or
charts embody the final and revised form of his work. On the map
in question is the statement that it was "prepared under his immediate inspection."    Map No. 1 of the British Atlas, dealing with the 36
ARGUMENT   OF   THE   D#€TED   STATES.
same subject on a smaller scale, likewise designates the entire body
of water by placing the name "Portland Canal" as nearly as possible
opposite the centre in larger type, while the name "Observatory
Inlet,*' is placed along the entire "branch" terminating at Point
Ramsden, in smaller type.
Nothing on this subject can be drawn from the Russian Map of 1802,
inclosed in Sir C. Bagot's No. 56, for the reason that the names in
question were not reproduced. And the same may be said of Langsdorff's map of 1803-4-5 (No. 7 of the British Atlas) because the scale
is so small that the inlets cannot be identified. While the scale of
Walch's map, Augsburg, 1807, is also too small to be decisive one way
or the other, Pinkerton's Modern Atlas, "from Mr. Arrowsmith's
map" of 1818, fortifies the American contention based on the manner
in which the names were originally printed. The printing of the
names on Brue's map of 1815-19 indicates nothing material in favor of
either party. Before commenting upon the Arrowsmitb map of 1822,
with additions to 1823 (No. 10 of the United States Atlas), a map known
to have been before the negotiators, the fact should be emphasized
that its author, " Hydrographer to His Majesty," produced, during a
Jong period of years a series of official or semi-official maps of the
highest character and authority. In the Arrowsmith map just referred
to, the name "Portland Canal" is so printed as unquestionably to refer
to the entire "arm of the sea" or fiord, while the name of "Observatory Inlet" is so printed as unquestionably to refer only to the
"branch" ending at Point Ramsden.
The maps of Faden (Nos. 10 and 11 of the British Atlas, the first of
which is known to have been before the negotiators), published by his
successor James Wyld, "Geographer to His Majesty," after citing
the authorities on which they are based, including Vancouver, tell
the same story so far as the printing of the names is concerned.
If it is to be assumed that the negotiators of the treaty of 1825 had
before them every map or chart published before that time, it cannot
be denied that the dominant and central fact that confronted them, on
every one of importance, including those of Vancouver, was that the
name "Portland Canal" was so placed and printed as unmistakably
to extend its application to the entire "arm of the sea" in question,
while the name "Observatory Inlet" was so placed and printed as
unmistakably to limit its application to the " branch " ending at Point
Ramsden. ARGUMENT   OF   THE   UNITED   STATES.
MAPS  AND  CHARTS PUBLISHED  SINCE  1825.
37
Nothing could be more emphatic than the confirmation given to the
statement just made in the map (Am. Atlas No. 12), which appears to
be the first British map published after the making of the treaty of
1825. That such map was intended to be an interpretation of that
treaty is made certain by the following printed on its face: "Note.
Wherever the summit of the mountains (which are supposed to extend
in direction parallel to the coast) from the £#&i degree of N. Lat. to
the point of intellection of the 141st degree of W. Long, shall prove
to be at the distance of more than 10 marine leagues from the Ocean,
the limit between the British Possessions and the line of coast which
is to belong to Russia, shall be formed by a line parallel to the windings of the coast and which shall never exceed 10 marine leagues therefrom.    See Article 4th Treaty 1825."
On the face of that map, the two islands, Wales and Pearse, which
are correctly located, are distinctly colored as Russian in yellow, that
color being used throughout to designate the territory confirmed to
Russia by the treaty; while the three islands on the east side of the
canal, Somerville, Compton and Tuiro, are as distinctly colored in
pink, that color being used throughout to designate the territory confirmed to Great Britain by the treaty. As evidence of the fact that
the construction thus put upon the treaty of 1825 by Arrowsmith was
identical with that put upon it by the French geographers, reference
is made to the map of Brue, published at Paris, 1833 (Am. Atlas,
No. 13), in which the dividing line between British and Russian territory is thus described: " Limite entre les possessions Anglaises et
Musses, oVapres le traite de 18*25." The line in question is a distinct
dotted line, following the contention of the United States, and therefore including Wales and Pearse Islands in Russian territory.
But more conclusive still is the Admiralty chart (No. 25 of the British
Atlas) entitled "Port Simpson to Nass Village," of 1868, issued by the
highest geographical authority known to the British Empire—the
British Admiralty. It is hard to understand why the following caveat
should have been inscribed on the face of this chart: " The name Portland Canal on this sheet was inserted by the Surveyors without authority. The name Portland Inlet as applied to the southernmost part of
what Vancouver called Observatory Inlet, was copied from an Admiralty Chart of 1853.    By whose authority this name was applied in 38
ARGUMENT   OF   THE   UNITED   STATES.
drawing that chart is not known." As the chart was put forth as
an official document by the British Admiralty the outside world has
no right to go behind its imprimatur in order to inquire into the method
of its construction. Suffice it to say that it emphatically upholds the
American Case, affirmatively, by giving to the body of water contended for therein the names of Portland Inlet and Portland Canal;
negatively, by ignoring, as unworthy even of a name or survey, the
body of water contended for in the British Case.
In that respect it perfectly agrees with the Narrative'of Vancouver
who said, after he had finished his boat exploration of it: "that probably the finest part of the season had been devoted in our late pursuit
to a very perplexing object of no great value or consideration. "a Just
as Vancouver, in 1793, gave the name of Portland to the entire "arm
of the sea" so in 1868 the British Admiralty gave the name of Portland to the only channel in that "arm" which was really navigable.
If by any possibility the fact could be established that the names
"Portland Inlet" and "Portland Canal" were introduced without
authority into the Admiralty Chart of 1868, just referred to, how can
the fact be explained away that these names were repeated in substantially the same form on the "British Admiralty Chart No. 2431,
Cardova Bay to Cross Sound, 1865, corrections to 1884" (British
Atlas No. 33) ? Certainly the explanation now prnted on the face of
that chart does not contest the fact that it was actually issued in its
present form.
That the Canadian geographers understood the matter in the same
way is manifest from the map (No. 42, Atlas Am. Counter Case) published in 1881 in the "Geological and Natural History Survey of Canada; Report of Progress for 1879-80." On that map the "presumed
boundary" is distinctly drawn so as to include Wales and Pearse
Islands in American territory. Another confirmation coming from
a Canadian source, is contained in a map (No. 31 of the British Atlas)
of " British Colombia compiled and drawn by Edward Mohun, C. E.
by direction of the Honorable W. Smithe, Chief Commissioner of
Lands and Works, Victoria, B. C. 1884." On that map the line entitled "Approximate international boundary by convention between
Great Britain and Russia, 1825," boldly and distinctly drawn, includes
both Wales and Pearse Islands within American territory.    On a map
« Vol. II, p. 345. ARGUMENT   OF  THE   UNITED   STATES.
39
of the Dominion of Canada, by the " Geological and Natural History
Survey of Canada," 1842 to 1882, (No. 32 of the British Atlas) the
names "Portland Inlet" and "Portland Chan." are printed in capital
letters along the entire course of the channel contended for by the
United States, while the name " Observatory Inlet" is printed in much
smaller letters a,long the " branch" ending with Point Ramsden. On
this map Wales and Pearse Islands are also so tinted as to indicate
that they are American Territory.
PRESUMPTION TO  BE  OVERCOME   BY  GREAT   BRITAIN   THAT   THE  THALWEG IS  THE  BOUNDARY.
If it be true, as heretofore contended, that the upper part of the
body of water, admitted by both parties to be Portland Canal above
Pearse Island, goes to the sea through two channels, is it not a violent
presumption to suppose that Vancouver would have limited the name
"in honor of the noble family of Bentihck" to that practically
unnavigable and narrow channel, to which he referred as " a very perplexing object of no great value or consideration," to the exclusion of
the broad and navigable channel of which he said: "The route by
which the vessels had advanced to Salmon Cove, being infinitely better
for them to pursue towards Cape Caamana than the intricate channel
through which 1 passed in the boats." Such presumption is overborne
by the overwhelming testimony of the numerous maps and charts,
heretofore referred to, existing prior to and after the making of the
treaty of 1825.
The British Case relies mainly upon two passages from Vancouver's
Narrative, as follows:
Nothing of any note having occurred during my absence, I shall conclude this
chapter by the insertion of the astronomical and nautical observations made at this
place, and, in consequence of our having been so fortunate as to be able to obtain
those that were essential for correcting our former survey, and for our future regulation in that respect, this branch obtained the name of Observatory Inlet, and the
cove, where the vessels were stationed, that of Salmon Cove, from the abundance of
that kind of fish that were there taken.«
The west point of Observatory Inlet I distinguished by calling it Point Wales,,
after my much-esteemed friend Mr. Wales of Christ's Hospital, to whose kind
instruction in the early part of my life I am indebted for that information which has
enabled me to traverse and delineate these lonely regions.a
«B. C. App., 146. 40 ARGUMENT   OF   THE   UNITED   STATES.
As has been shown, looking to the entire narrative, it is in doubt as
to what waters" he applied the name of Portland Canal.
There is no affirmative evidence tending to show that the negotiators of the Treaty of 1825 ever had any knowledge of Vancouver's
narrative, entitled "A Voyage of Discovery to the North Pacific
Ocean." Upon the contrary there is conclusive evidence of the fact
that Sir Charles Bagot, who for the greater period of time carried on
the British negotiations, was ignorant of it,—certainly of that part of
it relating to Portland Canal.
This statement is borne out by the following. Vancouver, in rebutting the idea that Portland Canal was the outlet of an interior river
system, said: "From hence it took a more northerly direction, and
then trended a little to the eastward of north, where, by ten of the
forenoon of the following day, it was found to terminate in low marshy
land in latitude 55° 45', longitude 230° 6'." In March, 1824, Sir
Charles Bagot, in his reply "to observations of Russian plenipotentiaries," said: "The head of Portland Channel may be, as there is
reason to believe, the mouth of some river flowing through the midst
of the country occupied by the Hudson's JBay Company, and it is,
consequently, of great importance to Great Britain to possess the
sovereignty of the two shores thereof."01 Furthermore it should be
noted that throughout the correspondence between the negotiators
the astronomical locations are given in longitude west of Greenwich,
while in the narrative of Vancouver the longitude given is east. On
all the English maps referred to in the negotiations the longitude
appears as west of Greenwich.
Is it to be presumed that the negotiators generally were better
informed as to Vancouver's narrative than the experienced .representative of Great Britain who, for some years, had been charged with
her interests at St. Petersburg, and who contradicted Vancouver in a
vital particular. That the Russian negotiators were either ignorant
of, or in conflict with the narrative as to the latitude of the termination of Portland Canal, which Vancouver had determined to be "in
latitude 55° 45'," is established by the British Case (p. 20) where the
following averment is made: "In their reply to Sir Charles Bagot's
amended proposal, the Russian Plenipotentiaries re-stated their reasons for proposing as the boundary on the coast of the continent to
the south ('sur la cote du continent au .sud') the Portland Canal, the
flU. S. C, App., p. 163. ARGUMENT OF THE UNITED STATES
41
origin of which inland ('dans les terres') they said was at the 56th
degree of north latitude, and to the east the chain of mountains which
followed at a very little distance the sinuosities." The divergence
between the two statements is fifteen nautical miles.
In the second place, admitting for the sake of the argument, despite
the affirmative evidence to the contrary, that the negotiators, or some
of them, were familiar with Vancouver's narrative, they must have
known that it could only be considered in connection with his charts
which were the final, adjusted and authoritative statements of his
explorations. When the entire body of evidence accessible to the
negotiators is taken together,—that is to say the narrative and charts
of Vancouver and the maps and ctrarts of all the other cartographers
published before 1825,—can it be held that the foregoing passages from
the narrative, should be held to maintain a conclusion so improbable,
looking to the character of the two channels. If any doubt could
remain in the mind as to the intention of the negotiators, certainly
that doubt must be removed by the consensus of the cartographers
who have spoken since 1825 to the effect that Portland Channel is
really that one described in the American contention.
In reference to the map of Greenhow referred to .in the British
Case, p. 59, where the statement is made that " he shows the water
boundary running to the north of the islands, in accordance with the
British contention," suffice it to say that while the line drawn by him
appears to run in that way, yet by reason of his very defective cartography the mind remains in complete doubt as to the identity of the
three islands, north of which his line is run! In answer to the further
statement made at this point in the British Case,a that "it is believed
that no map has been found showing any contrary indication till a
comparatively late date," reference is made to the Arrowsmith map
of 1833 (No. 12, American Atlas) in which this famous "Hydrogra-
pher to His Majesty," within eight years after the treaty was made,
distinctly colored Wales and Pearce Islands as Russian territory, and
to maps 14, 20 and 24 of the U. S. Atlas.
THE  THALWEG  AS THE  BOUNDARY  OF  CONTERMINOUS  STATES.
If the maps and narrative of Vancouver shall both be looked to, and
if, on the whole evidence, there shall be a doubt as to what the negotiators meant, then the result should be controlled by the rule of inter-
«B. C, p. 59. 42
ARGUMENT   OF   THE   UNITED   STATES.
national law which declares, that, if there be more than one channel in a
body of water dividing conterminous states, the deepest channel is the
mid-channel or thalweg for the purposes of territorial demarcation.
According to Grotius: "A river that separates two empires is not to
be considered barely as water, but as water confined within such and
such banks and running in such and such channel."a According to
Vattel: "If, of two nations inhabiting the opposite banks of the
river, neither party can prove that they themselves, or those whose
rights they inherit, were the first settlers in those tracts, it is to be
supposed that both nations came there at the same time, since neither
of them can give any reason for claiming the preference; and in this
case the dominion of each will extend to the middle of the river."5
Sir Travers Twiss has well said that "Grotius and Vattel speak of
the middle of the river as the line of demarcation between two jurisdictions, but modern publicists and statesmen prefer the more accurate
and more equitable boundary of the midchannel. If there be more
than one channel of a river, the deepest channel is the midchannel for
the purposes of territorial demarcation; and the boundary line will
be the line drawn along the surface of the stream corresponding
to the line of-deepest depression of its bed. Thus we find in the
Treaty.of Angovie (17 Sept. 1808) concluded between the Grand
Duchy of Baden and the Helvetic Canton of Angovie, that the
thalioeg, or water frontier line, is defined to be ' the line drawn
along the greatest depth of the stream,' and as far as bridges
are concerned, ' the line across the middle of each bridge.' The
islands on either side of the midchannel are regarded as appendages to either bank; and if they have once been taken possession
of by the nation to whose bank they are appendant, a change in
the midchannel of the river will not operate to deprive that nation of
its possession, although the water frontier line will follow the changes
of the midchannel."0 See also Bluntschli, Sec. 298, Lardy's trans.;
Rivier, vol. 1. pp. 142,168. Hall says that where the boundary "follows a river, and it is not proved that either of the riparian states
possess a good title to the whole bed, their territories are separated by
a line running down the middle, except where the stream is navigable,
in which case the centre of the deepest channel, or, as it is usually
« De Jure Belli ac Pads, 11, c. 3, Sec. 17.
6 Droit des Gens, Bk. 1. c, XXII, Sec. 26.
cThe Law of Nations, 1 pp. 207-8. ARGUMENT  OF  THE  UNITED   STATES.
43
called, the Thalweg is taken as boundary."0 The rule is not limited
however to cases in which rivers are boundaries between conterminous
states; it extends as well to the thalweg of " a strait, sound, or arm of
the sea." That view is thus stated in Field's International Code, p. 16:
''''Boundary by a stream or channel. 30. The limits of national territory, bounded by a river or other stream, or by a strait, sound, or
arm of the sea, the other shore of which is the territory of another
nation, extend outward to a point equidistant from the territory of
the nation occupying the opposite shore; or if there be a stream or
navigable channel, to the thread of the stream, that is to say, to the
midchannel; or, if there be several channels, to the middle of the
principal one." To the same effect is Halleck, who says: "But where
the river not only separates the conterminous states, but also their
territorial jurisdictions, the Thalweg, or middle channel, forms the
line of separation through the bays and estuaries through which the
waters of the river flow into the sea.
"As a general rule, this line runs through the middle of the deepest
channel, although it may divide the river and its estuaries into very
unequal parts. But the deeper channel may be less suited, or totally
unfit, for the purposes of navigation, in which case the dividing line
would be in the middle of the one which is best suited and ordinarily
used for that object. The division of the islands in the river and its
bays would follow the same rule."6
In this case it is proven that the channel contended for by the
United States is the deepest, broadest and by far the most important
because it is in fact the only really navigable and safe one/ Vancouver,
if his narrative shall be regarded as admissible evidence, put that
fact at rest by describing the narrow, rocky and really unnavigable
channel contended for by Great Britain as an "object of no great
value or consideration." In describing his boat exploration to the sea,
partly through this channel, he says, " and though our utmost exertions
had been called forth in tracing the continent through this labyrinth
«Int. Law, p. 127.
l>Int. Law (Baker ed.), vol. 1, p. 171, citing Griindling, Jus Nat, p. 248; Wolfius,
Jus Gentium, Sees. 106-109; Stypmannus, Jus Marit., etc., cap. V, N. 476-552; Merlin,
Repertoire, voc. 'alluvium;' Rayneval, Droit de la Nature, torn. I, p. 307; De Cussy,
Droit Maritime, liv. I, tit. II, Sec. 57.
cU. S.C. C. App., 237-238.
4574—03 4
J 44
ARGUMENT   OF   THE   UNITED   STATES.
of rocks we had not advanced more than thirteen leagues in a right
line from the ships to the entrance of this inlet." He never dared to
traverse that part of it, heretofore designated as the "foul ground,"
even in open boats.
At no time, either before or after his boat excursion, did he ever
venture to enter the smaller channel with his ships. His charts fix
the fact that he navigated with his ships the larger channel, into the
junction with Observatory Inlet, both in and out. The reason he
gives in his narrative for this preference is that "The route by which
the vessels had advanced to Salmon Cove, being infinitely better for
them to pursue towards Cape Caamano, than the intricate channel
through which I had passed in the boats." As hitherto pointed out,
the smaller channel, is of an average depth of sixty-four fathoms, and
of an average width of only three quarters of a nautical mile, at two
points, narrowed to a width of about an eighth of a mile, while the
greater channel, of an average depth of two hundred & eighteen
fathoms is of an average width of 2.58 nautical miles. As stated heretofore the volume of water contained in the larger channel is about
eleven and a half times as great as that contained in the smaller;
while the narrowness of the smaller produces a choking of the waters
passing through it, in its tidal action, to such an extent that about
ninety per cent of the tidal flow is through the channel contended for
by the United States.
Is it, therefore, a matter of wonder that the British Admiralty chart
of 1868 should have entirely ignored the smaller channel as unworthy
even of a name or survey, while the larger was carefully designated as
"Portland Inlet." There is no question here of weighing evidence in
order to determine which one of two channels running through "an arm
of the sea " is the deepest, widest and most navigable. The proof does
not leave any room for doubt. It is simply a question of substituting
for the general rule of international law, designating such thalweg as
the boundary a special and conventional rule declaring a smaller, narrower and "shallower" "labyrinth of rocks" as the boundary. The
only possible way in which Great Britain could work out that result
would be to establish affirmatively that such was the special contract
and agreement entered into with Russia in the treaty of 1825, the
effect of which would be the suspension of the general rule of international law declaring the deepest and most navigable channel the ARGUMENT   OF   THE   UNITED   STATES.
45
midchannel, and the substitution in its place of a special and conventional rule declaring the contrary. See Grotius, De Jure Belli ac
Pads, lib. II, c. Ill; Bluntschli XV, 2; Martens, Precis, § 119, p. 320;
Bluntschli, Volkerrecht. % 402, Lardy's trans.; Calvo, Droit Int., 1,
§ 19,p. 109; Phillimore, Int. Law, 1,pp. 44r-45 (2d ed., London); Twiss,
Law of Nations, 1, pp. 130-131: Lawrence's Wheat., p. 28; Halleck,
Int. Law, 1 (Baker ed.), p. 50; Lorimer, Ins. of Int. Law, 1, p. 43.
Reference in this connection is made to the rule of construction
No. 6 set forth above, which provides that it is not to be presumed
without very strong reasons that one of the contracting parties
intended to favor the other to his own prejudice. It is not to be presumed, therefore, that the Russian Government intended to abandon
the use of the only channel leading to its possessions along the
southern boundary of the lisiere, which it knew to be navigable and
safe, and to confine itself to the use of a channel which was not of
sufficient importance to be clearly shown on some of the charts and on
others was shown to be so broken and tortuous that its dangerous and
undesirable character both for navigation and as a boundary is evident
at a p'lance.
SOUTHERN  LINE OF RUSSIA AS  DEFINED  IN TREATY  OF 1824 BETWEEN
RUSSIA AND  THE   UNITED  STATES.
It was claimed by the United States that the territorial claims of
Great Britain and the United States were coextensive and concurrent
on the northwest coast of North America. The idea that the United
States had "no territorial pretensions so high as the fifty-first degree
of north latitude and no territorial interest in the demarcation of the
boundary between His Majesty and the Emperor of Russia to the
north of that degree" was dissipated by the note of Sir C. Bagot
to Mr. Canning of October 17/29, 1823, in which he said:
Although Mr. Middleton has not communicated to me the instructions which he
had received, I have collected from him, with certainty what I have long had
reason to suspect, that the United States, so far from admitting that they have no
territorial pretensions so high as the fifty-first degree of north latitude and no territorial interest in the demarcation of boundary between His Majesty and the Emperor
of Russia to the north of that degree, are fully prepared to assert that they have at
least an equal pretension with those powers to the whole coast as high as the sixty-
first degree, and an absolute right to be parties to any subdivision of it which may
now_l>e_.niade. Ilnlesa Jegreatly.jnisconceiv£.. tha argument of Mr. Middleton, it is 46
ARGUMENT   OF  THE   UNITED   STATES.
contended by the American Government that, in virtue of the Treaty of Washington, by which the Floridas were ceded by Spain to the United States, the latter are
become possessed of all claims, whatever they might be, which Spain had to the
northwest coasts of America, north to the forty-second degree of north latitude, and
that when Great Britain, in the year 1790, disputed the exclusive right of Spain to
this coast, the court of Russia (as, indeed, appears by the declaration of Count
Florida Blanca, and as it would, perhaps, yet more clearly appear by reference to
the archives of the foreign department here) disclaimed all intention of interfering
With the pretensions of Spain, and, consequently, all pretensions to territory south
of the sixty-first degree, and that, therefore, any division of the coast lying between
the forty-second and sixty-first degrees ought in strictness to be made between the
United States and Great Britain alone. a
When during the negotiations of 1824 Mr. Middleton was notified
that Great Britain would treat separately, he at once notified the Russian Minister of Foreign Affairs and Sir Charles Bagot that if any
attempt was made to negotiate upon the territorial question without
the participation of the United States, it would be his duty to protest
in the strongest terms. He stated to the British Minister that, as
Great Britain had "no settlement or possession upon any part of the
north-west coast of America," she had no "claims" to convey except
such as she derived from the Nootka Sound convention with Spain,
signed October 28, 1790; that the United States had succeeded to all
the Spanish rights by the treaty of February 22,1819, which gave the
latter concurrent claims with Great Britain whatever her pretensions
might be; and that for these reasons any treaty between Great Britain
and Russia in which the United States was not a party would be nugatory as to it and could not divest it of the right to enjoy the coast.
After having made a like declaration to Count Nesselrode, Mr.
Middleton secured an interview with him on February 23, 1824, at
which he submitted a brief paper entitled, "State of the Question,"
in which the territorial claims of the United States were thus formally
defined:
The United States, by their discovery of the mouth of the Columbia river and
by their subsequent real occupation and continued possession of a district on the
same part of the Northwest Coast of America, have perfected their right of sovereignty to that territory.
By the third article of a convention with Great Britain, concluded October 20,
1818, they stipulated "that any country that might be claimed by either party on
the Northwest Coast of America westward of the Stony mountains should, together
with its harbors, bays and creeks, and the navigation of all rivers within the same,
«TJ. S. C, App., pp. 129-130. ARGUMENT   OF  THE   UNITED   STATES
47
mb]e
! the two powers, wit]
ars from that date
issels, citizens, and
ler party or of any
spj
February 20, 1819, the United States acquired all
the rights, claims, and pretentions, of that power to all the Northwest Coast lying
discovery can constitute a foundation of right, the Northwest Coast as far as the 59th
degree north belongs to the United States by the transfer of the rights of Spain.
Great Britain has no establishment or possession on any part of the Northwest
Coast. She has, therefore, no right, claim, or pretension to any portion thereof,
except sueh as may result from the convention with Spain concluded October 28,
1790. It is, then, evident that her claim is concurrent with those of the United
States, and can only reach to whatever point these last may be considered to extend.
It appears, then, that Russia and England can not make a definite arrangement
without the participation of the United States, or at least going to their exclusion.
Any agreement which these two powers may make will be binding upon themselves,
but can not effect the rights of a third power.«
The outcome .of the separate negotiation between Russia and the
United States was the treaty signed 5/17 April, 1824, which provided
(Article III) that "It is moreover agreed that, hereafter, there shall
not be formed by the citizens of the United States, or under the
authority of the said States, any establishment upon the Northwest
coast of America, nor in any of the islands adjacent, to the north of
fifty-four degrees and forty minutes of north latitude; and that, in
the same manner, there shall be none formed by Russian subjects, or
under the authority of Russia, south of the same parallel."
The outcome of the separate negotiation between Russia and Great
Britain was the Treaty signed February 16'28,1825, which provided in
Art. Ill, that the line should commence at the southernmost point of
the island called Prince of Wales Island, which point lies in the parallel
of 5Jj degrees Ifi minutes, north latitude. It thus appears that in the
respective treaties the parallel of 54° 40' was the common line of
demarcation separating the jurisdiction of Russia on the south from
that of Great Britain and the United States. In a note written on
the very day the treaty between Russia and the United States was
signed, April 5 17, 1824,-Count Nesselrode wrote to Count Lieven,
concerning the southern line to be settled with Great Britain as
follows:
,In order not to cut Prince of Wales island, which, according to this arrangement,
would remain to Russia, we proposed to carry the southern frontier of our domains
■«U. S. C, App., pp. 81-82, 48
ARGUMENT   OF   THE   UNITED   STATES.
to latitude 54° 40/ and to make it abut upon the continent at the Portland Canal, of
which the opening into the ocean is at the same latitude as Prince of Wales Island,
and which has its origin inland between 55° and 56° of latitude. * * * If Prince
of Wales Island remains to us, it is necessary that it can be of some utility to us.
Now, according to the plan of the British ambassador, it would be for us only a
burden, and perhaps an inconvenient one. That island, in fact, and the establishments which we might set up thereon, would find themselves entirely isolated,
deprived of all support, surrounded by the domains of Great Britain, and at the
mercy of the English establishments of the coast. We would exhaust ourselves in
the cost of guarding and watching our part without any compensation to alleviate
the burden. Would such an arrangement be founded on the principle of mutual
expediency?
We have all the more right to appeal to this principle, since England herself has
proved by an authentic act that she regarded her rights to the territory, the surrender of which she demands, as doubtful. The convention of October 20, 1818,
between the Court of London and the United States, declares that all the extent of
country between the Rocky Mountains, the Pacific Ocean, and the Russian possessions shall be the common property of the two powers for ten years. The titles of
the United States to the possession of this territory are, therefore, as valid as those
of England. Nevertheless, the Cabinet of Washington has admitted that our
boundary should come down as far as 54° 40'. Thisjias been admitted in a formal
agreement that we have just signed with its plenipotentiary, and the strengthening
of our arguments is far from being the only result of this admission; it has other
consequences to which we rightly attach the greatest importance.a
On August 31, 1824, Count Nesselrode, in writing to Count Lieven
to the effect that there were three of the then pending proposals of
Great Britain which it was impossible to accept, said: "I reserve to
myself the duty of making, in this dispatch, the most important observations, those concerning clauses which it is utterly impossible for us
to accept. They are three in number: 1. Liberty to English subjects
to hunt, to fish, and to trade with the natives of the country, perpetually, on the whole of that part of the coast which constitutes the
subject of the discussion, and which extends from 59° of north latitude
to 54° 40'." b It thus appears that no matter whether Count Nesselrode was negotiating with the United States or Great Britain his one
idea was that Russia's southern boundary, on the coast, as to each,
was to be 54° 40'.
There is therefore no warrant for the following statement in the
British Case (p. 56): "This shows that the British understanding,
communicated to and not questioned by Russia, was that Portland
J. S. C, App., pp. 173-174.
6U. S. C, App., p. 201. ARGUMENT   OF   THE   UNITED   STATES.
49
Channel entered the ocean in 54° 45'". It should be remembered
that that statement, based on Sir C. Bagot's proposal of "February-
March, 1824," was followed by the two communications quoted above
from Count Nesselrode to Count Lieven, dated respectively April
5/17, 1824, and August 31, 1824, in both of which Russia, combating
the British suggestion, insisted upon the line of 54c 40'. Notably in
the first communication above quoted Count Nesselrode said:
We proposed to carry the southern frontier of our dominions to latitude 54° 40'
and to make it abut upon the continent at the Portland Canal, of which the opening
into the ocean is at the same latitude as Prince of Wales Island.
lt is hardly necessary to add that the phrase "the same latitude as
Prince of Wales Island" necessarily referred to the southern part of
that island. If that be true, Russia's southern line could only enter
Portland Channel at the point contended for by the United States.
In the light of the foregoing does it not violate all human probability to assume that Russia intended to fix her southern boundary
at one point, as to the United States, and. at another point, as to
Great Britain, leaving between the two a wedge-shaped expanse of
water forming a triangle with a base of less than six miles and a
height of about seventv?
IDENTITY OF PORTLAND CHANNEL AS UNDERSTOOD BY THE PARTIES
AFTER THE TREATY.
The lease of the lisiere to the Hudson's Bay Company recited
that it included the " Coast, exclusive of the Islands, and the Interior
Country belonging to His Majesty the Emperor of Russia, situated
between Cape Spencer forming the North West Headland of the
entrance of Cross Sound and Latitude 54° 40' or thereabouts, say the
whole mainland coast and Interior country belonging to Russia" ete.a
It is to be noted that the. words "or thereabouts" used to
qualify 54° 40' as the location of the southern extremity of the
territory leased, do not signify any doubt as to the location of the
boundary line at that parallel, but on the contrary show that it
was well understood that the leased territory was not to extend
fully to the boundary at that point. The lease was limited expressly to the mainland coast and all the islands were in terms
excluded. 50
ARGUMENT   OF   THE   UNITED   STATES.
An examination of the maps will show that the mainland coast was
some distance above 54° 40' at that point, and that in the intervening
space were Wales Island, Pearse Island and several other smaller
islands. The significance of the expression "54° 40' or thereabouts"
as the southern limit of the lease therefore, is that it was recognized
that if the description was carried to the boundary at 54° 40' without
qualification it would extend beyond the mainland and include these
islands which would have conflicted with the other provisions of the
lease. The only escape from this conclusion would be in the assumption that the lease was not prepared with care and precision. The
character of the lease forbids such an assumption, however, and it
appears upon the record that the reverse is true. Mr. Simpson, who
negotiated the lease with Baron Wrangell, in writing to him in
preparation for it says that it had been understood that the islands
would be included within the leased area but on the understanding
that they were to be excluded he continues:
But such being the new state of affairs, it is necessary to enter into the minutest
considerations and details .... in order to guarantee that we shall be protected
from all direct or indirect rivalry in trading in the leased territory.a
The fact that care was taken to describe the southern end of the
leased territory so that it would not extend to the line of the boundary on the water at the entrance of Portland Channel, therefore
indicates that it was done in order that there should be no question
of its extending beyond the mainland and including the islands
lying between the mainland and the boundary at .54° 40'. This
was a mutual recognition that such islands above 54° 40' belonged
to Russia and consequently that the Portland Channel of the treaty
was not limited to the channel wholly separated from 54° 40' and j
lying between the islands and the mainland.
The translation of the lease as given in the United States Counter
Case Appendix, p. 6, differs from the translation in the British Case
Appendix at p. 150, and omits the words "or thereabouts," in connection with the reference to 54° 40'. It is immaterial, however,
which translation is relied upon, for in either case the proof is complete on the point that there was* a mutual recognition that the islands
above 54° 40' belonged to Russia, and consequently that the Portland
Channel of the boundary was not above such islands.
«U. S. C. O. App., 4. ARGUMENT   OF  THE   UNITED   STATES.                             51
<v
Thr
lent
OUgh
refei
out
;he proceedings leading up to this lease and iiv subsets to it, the understanding on both sides is uniformly
tl
iowd
at t
to
heP(
have
)rtla
i been that the boundary extended to  54° 40'  and
nd Channel of the boundary was the channel, through
tl
e er
itranc
;e of
which that parallel is found.    The following extracts
le
ave
Our
no d
Compj
oubt
my t
on that point:
>elieves that    *    *    *    it would  be advisable to cede to the
H
udsor
nt be
In 1
i's Ba
tween
,he le
y Co
latit
itter
mpany the exclusive right of  trade on the shore of the conti-
ude 54° 40/ and the Cross Strait.«    [Report of Count Nesselrode.]
of the Directors of the Russian-American Company
tc
re
the
ierr
Mir
ed tc
istei
: of Foreign Affairs, January 25, 1859, the lease is
"of a part of  our possessions on the North West
cc
>ast
rect
of A
mer
ica, a strip of land extending in a North Westerly
latitude 54° 40' north, etc."6
ffi
mn f
rom
Int
hem
emo
L'andum submitted by the Russian Minister of Finance
tc
the
Vice
, Ch
ancellor in his letter of March   16, 1867, he says of
tl
ie les
iseth
at il
; related to "that part of the mainland belonging to
R
ussis
rio"
l whi
ch 1
es between Cape Spencer and  54° 40' northern lati-
ti
ue
He
etc.
3ays
that the United States Minister on behalf of certain
m
le
erch
ants
to t
in C
he I
alifornia has offered to lease exactly the same territory
[udson's Bay Company, together with the islands, and
th
is t(
irritc
ry h
e describes as running part of the way "southward
al
ai
ong
idE
the a
uglisl
bove
ipo
j mentioned boundary (the boundary between Russian
^sessions) to latitude 54° 40'" etc.c
In t
hete
stim
ony of Sir George Simpson' before the Committee of
'th
eH<
Duse
of C
Dmmons, 1857, he says:
Then
3 is a
marg
in of coast marked yellow in the map from 54° 40/ up to Cross
So
und,
which
we
have rented from the Russian-American Company for a term of
Sir George Simpson also says in his Narrative of his Journey Round
the World, 1841-2, speaking of the lease:
Russia, as the reader is, of course, aware, possesses on the mainland, between'
lat. 54° 40' and lat. 60°, a strip, etc.e
\. C. C. App., 3.
. C. C. App., 21.
, C. C. App 34.
iv. s. c. c.App.,:
»U.S. C. App., 318 52
ARGUMENT   OF   THE   UNITED   STATES.
ftussia was fully informed of the terms of this lease and sanctioned |
it, as appears from the recital in Art. I of the lease, and also from
the reports of the Russian officials printed in the record. There can
be no doubt, therefore, as to the Russian understanding that the
southern boundary of her possessions on the coast extended to 54c 40'
and her intention to express that understanding in this lease.
It is equally clear that the attention of the British Government wasj
directed to the making of the lease and to its terms. The lease was
the direct outcome of the Dryad claim, for the settlement of which the
British Government was vigorously pressing, and it is not to be
presumed that the settlement, through the medium of this lease, was
agreed to without a full understanding and approval of the circumstances on the part of Great Britain. Furthermore, the Hudson's
Bay Company had full knowledge of how the lease was understood
by Russia and the testimony of Sir G. Simpson, the Governor of that
company, quoted above is itself sufficient to show that that company
acquiesced in such understanding and that knowledge of the lease, and
its bearing on the question of the boundary at 54° 40' was brought
home to the British Government. Further evidence of official knowledge of this lease on the part of Great Britain is furnished by the
neutrality agreement with Russia, which was made expressly because
of the existence of this lease.
In view of these considerations, therefore, even if Great Britain j
should plead official ignorance of the lease prior to the definite information brought home to her as shown above, there certainly can be
no doubt as to her notice at that time, and her acquiescence in the
lease and her action with respect to it impute to her full knowledge
of all that it involved.
Reference is also made to the numerous other specific instances!
referred to elsewhere in the argument and in the United States Casjj
and Counter Case in connection with the lease of the lisiere which show
that this mutual understanding as to the coincidence of 54° 40' and the
Portland Channel of the treaty received general acceptation and confirmation in the maps and the public and private writings emanating
. from British sources.
SS ISLAND STATION.
On page 8 of the British Counter Case stress is laid on the location!
in 1835 by the Russian-American Company of a station on TongassJ ARGUMENT   OF   THE   UNITED   STATES. 53
Island, which lies north and west of the entrance to what is denominated in the United States Case "Pearse Canal," and in the British
Case "Portland Canal." It is claimed that inasmuch as the direction
was to locate a station "on the frontiers of our straits," the fact that
the location was made on Tongass Island proves that it Was regarded
by the Russian-American Company as being the extreme frontier of
Russian territory. This is an over strained conclusion. The instructions said:
As we may say that the only place in our straits, visited by the foreigners is Tongas, you must select this bay as the place of your sojourn.
The selection was not made with any object of fixing a boundary
point. It was only chosen as a convenient station near the frontier
for protecting the trade with the natives. It appeared as stated that
it was the only place visited by the foreigners. As the object was
to police the frontier against foreigners and not to fix an extreme
boundary point, that point was chosen to which foreigners resorted
rather than a point nearest the water up which the boundary line
passed to which foreigners had not resorted. The instructions which
are only partially quoted in the British Counter Case, go on to say
that the most important influx of furs is at Tongass. That was a
sufficient reason for establishing the station there/*
ALLEGED ADMISSION IN THE UNITED STATES CASE.
In the British Counter Case (p. 7) a passage is quoted from the Case
of the United States as follows:
The condition of the territorial controversy "Had shrunk to a dispute over the
possession of an irregularly shaped portion of the continent bounded on the east
by Pearse and Portland Canals and a presumptive chain of mountains, on the
north by a line extending from a point on the coast, about latitude 56° 30', to
the mountain range, and on the west by the indented continental shore line,
together with the islands lying between Clarence Strait and the mainland from
54° 40' to 56° 30/ and thus situated north and west of Portland Canal and between
it and the continent.
The British Counter Case proceeds:
It will be noticed that the eastern boundary of the section described is given
as "Pearse and Portland Canals". But "Pearse Canal", which is the name subsequently given by the United States to the lower part of Vancouver's Portland
Canal, and "Portland Canal", which name was later limited by the United States
«U. S. C. App., 233-234. ARGUMENT   OF   THE   UNITED   STATES.
to the upper part of Vancouver's Portland Canal, make together the "Portland
Canal" of Vancouver as claimed by Britain.
And there is thus here an express admission that, at this stage of the negotiation, it was that canal, and no other, which the Parties meant by Portland
Canal.
This is based on a misunderstanding of the passage quoted. The
effect of the words j' together with the islands lying between Clarence Strait" etc. is overlooked. They are intended to be taken with
the words, "an irregularly shaped portion of the continent" etc.
It was meant to say that it had shrunk to a dispute over the portion of continent, within the bounds designated, together with the
islands described. This is plain from the concluding words which
say, that they- (meaning the islands) are situated north and west of
Portland Canal and between it and the continent. No such admission as that stated was made by the United States.
It is submitted on behalf of the United States therefore that the
Portland Channel of the treaty, when tested by the intention of the
negotiators, by the language of the treaty, and by the understanding of the parties as shown by their subsequent actions is clearly
identified with that body of water commonly known as Portland
Channel in accordance with the answer proposed by the United
States in answer to the second question.
SEVENTH.
Third Question. " What course should the line take, from the point
of commencement to the entrance of Portland Channel?
Answer Proposed by the United States:
The United States requests the Tribunal to answer and decide that the line
from Cape Muzon should be drawn in an easterly direction until it intersects
the center of Portland Channel at its opening into .Dixon Entrance. «
The British Case says:
The question rightly assumes that the course of the line must be from the point
of commencement to the entrance of Portland Channel.&
The view of the United States can be more definitely stated by
saying that the line should be drawn along the parallel of latitude
«U. S. C, 104.
&B. C, 64. ARGUMENT   OF  THE   UNITED   STATES.
54° 40', through Dixon Entrance until it intersects the center of
Portland Channel, at its opening into Dixon Entrance. Fixing the
latitude of 54° 40' as the boundary was a dominant idea in the
negotiations. The boundary was to be carried below 54° 40' on
Prince of Wales Island, only for the purpose of giving all of that
island to Russia, and it would be in harmony with the plain intent
which the parties had in view by this departure, to accomplish this
particular purpose, and then carry out the general intent of the
"Treaty, by running the line along the parallel 54° 40'.
The language of the treaty is:
A partir du Point le plus meridional de Pile dite Prince of Wales, lequel Point se
trouve sous la parallele du 54me degre" 40 minutes de latitude Nord, et entre le
131me et 133me degre" de longitude Ouest (Mendien de Greenwich), la dite ligne
remontera au Nord le long de la passe dite Portland'Channel.a
It further provides:
Que Pile dite Prince of Wales appartiendra toute entiSre a la Russie. &
This would seem to indicate that in the description the parallel
was regarded as the real point of departure, and so to guard against
the result that, Prince of Wales Island might be divided, the express
provision was inserted so that, notwithstanding the designation of
the parallel, the whole of the island should belong to Russia. This
shows the significance given by them to the parallel and the necessity they felt for adding the special provision to guard against the
possible effects of running the line from the commencement along
that parallel. This view is reinforced when taken in connection
with the discussion of the question as to what channel was meant
by Portland Channel, in which it was endeavored to show that the
parallel 54° 40', as it was considered and treated by the negotiators,
is demonstrative of what they meant by Portland Channel.
Different lines are proposed by the United States and by Great
Britain, but the difference arises out of the controversy as to what
constitutes the entrance to Portland Channel.
If the Tribunal shall agree upon an answer to the second question, then from the positions assumed by both parties in respect to
the third question, the answer to that question involves no difficulty. If it be decided that Portland Channel is the body of water
which enters Dixon Entrance between Wales Island and Compton
«U. S. C. App., 3. &TJ. S. C. App., 4. 56
ARGUMENT   OF   THE   UNITED   STATES.
Island, as is contended for in the United States Case,a then the line
should be drawn from the southernmost point of Cape Muzon to the
parallel 54° 40', and along this parallel to the channel, until it
strikes its center.
The line does not, as Great Britain claims, go north from the
beginning, except so far as may be necessary to gain the latitude
of 54° 40', if it shall be determined from all that appears that it
was the intention that it should proceed along that parallel. In
this event it will go north from the southernmost point of Prince
of Wales Island only in obedience to this controlling intent and
on account of the relative positions of the end of the island and
the parallel, and not on account of the words "au Nord" in the
text. They apply only to the direction of the line as it proceeds
up Portland Channel to the 56°. This is not only the fair grammatical construction, but it is demonstrated by the physical situation. The mouth of neither of the channels claimed by the contestants to be Portland Channel is so located in respect to the
southernmost point of Prince of Wales Island as to make it at all
probable that the negotiators would have described a line connecting them as proceeding "au Nord."' Both mouths are almost due
east from the southernmost point of the island.
Fourth Question. "To what point of the fiifty-sixth parallel is
the Une to be drawn 'from the head of the Portland Channel, and
what course should it follow between these points?"
Answer proposed by the United States:
The United States requests the Tribunal to answer and decide that the line
should be drawn from the head of Portland Channel northeasterly along the same
course on which said line touches the mainland at the head of Portland Channel
until it intersects the 56th parallelof north latitude.6
The language of  the  Treaty between Great  Britain  and Russia I
of February 16-28, 1825, has been given on page 3.
It is questioned in the British Case whether "elle""in the words
"ou elle atteint le 56me degre de latitude Nord," refers to the line,
the channel, or the main land/
«U. S. C, 104.
&U. S. C, 104.
?B. C, pp. 68-69. ARGUMENT   OF  THE   UNITED   STATES. 57
The subject of the" discourse is "la ligne," and unquestionably
4' elle " grammatically refers to it.
The provision is that " de ce dernier point," the line shall follow
the crest of the mountains. It was a physical impossibility for Portland Channel to reach the crest of the mountains.
The negotiations show very clearly that it was the line that was
to proceed along Portland Canal, and that it was the line that was
to reach the 56th degree north latitude. In the amended proposal
made by Sir Charles Bagot, he says:
As it has been agreed to recognize as basis of negotiation the mutual conveniences
of both countries, it is to be noted, in answer to the proposal offered by the Russian
Plenipotentiaries, that a dividing line, starting from the southernmost extremity of
i the Prince of Wales' Island and extending to the mouth of the Portland Channel,
thence, by the middle of this channel until it reaches the mainland, thence to the
mountains bordering the coast, etc.a
He makes it plain that the line was to continue from the point
where the channel reached the mainland to the mountains bordering
the coast.
The language used by Mr. G. Canning in the draft convention prepared by him has in the second article the following:
Along the channel called Portland Channel, till it strikes the coast of the continent lying in the 56th degree of north latitude. From this point it shall be carried
along that coast, etc.&
. That is  to say,   the line from  the point where  it strikes this
degree shall be carried along the summit of the mountains.
In Article three of the contre-projet, submitted by Stratford
Canning, it is provided, that:
The said line shall ascend to the north (Prince of Wales Island belonging entirely
to Russia) along the passage called Portland Channel until it touches the coast of
the mainland at the fifty-sixth degree of north latitude. From the point at which
the line of demarcation touches the fifty-sixth degree, it shall follow, etc.G
The draft in French submitted by Stratford Canning, Art. 3,
contained this language:
La dite ligne remontera au Nord (l'lsle Prince of Wales appartenant en entier
& la Russie) le long de la Passe dite Portland Channel, jusqu'a ce qu'elle
touche a la Cote de terre ferme au 56me degre de Latitude Nord, depuis ce point-
ci, ou la ligne de demarcation touche au 56me degre, elle suivra la cr£te, etc.^
«B. C. App., 70; U. S. C. App., 159. <'U. S. C. App., 216."
. &U. S. C. App., 183; B. C. App., 87. «U. S. C. App., 213. 58 ARGUMENT   OF   THE   UNITED   STATES.
This language was altered by Matusevich to read as follows:
La dite ligne remontra, au Nord le long de la Passe, dite Portland Channelt
jusqu'a l'endroit ou cette passe se termine dans l'int£rieur de la terre ferme au
56me degre de Latitude Nord—depuis ce dernier point la ligne de demarcation
suivra la cr6te, etc.«
It will be noted that he substituted "passe" for "ligne." In the
final draft, however, it will be noted that in this respect the language followed more closely the draft of Mr. Canning. It is quite
apparent that it was supposed that the channel reached to about
the fifty-sixth degree.
The line is to run "au Nord," that is, northwardly along Portland Channel, and to continue northwardly to that point on the
land where it reaches the fifty-sixth degree.
It is to run "au Nord," not only "le long de la passe dite Portland Channel," but northwardly to the point where the line touches
the fifty-sixth degree. The words "au Nord," qualify the entire
distance along the channel and to the fifty-sixth degree, and not
merely the length of Portland Channel. The line shall run northwardly until it reaches the said degree.
As will be shown under the discussion of the Fifth Question, the
treaty was made with reference to certain maps, and to a chain of
mountains which was depicted on them. It was admitted by the
negotiators that there was great uncertainty as to the actual location
of these mountains. The summit of the mountains is represented on
Vancouver's chart seven, as existing in this vicinity in about latitude
55° 50', and on his general chart in latitude about 56° 10'. Stapleton
says:
The line . . . was ... to ascend to the north along Portland Channel as far as the point of the continent where it would strike the 56° of north
latitude, etc.&
The Russian map of 1802, shows the mountains approximately at-
the same point, as Vancouver's Chart Seven.c
Faden's map shows the mountains to be about 56° 07'.
If it shall be made clear. that the negotiators contracted, with
reference to a chain of mountains supposed to be near the head of
Portland Channel, and near the 56th degree at its nearest approach
«U. S. C. App., 218.
& Memorandum by Dall, U. S. C. C. App., 106.
c British Atlas, No. 5. ARGUMENT   OF   THE   UNITED   STATES.
59
to the head of the channel, then it would seem to follow that,
whether the mountains exist or not, that point on the degree nearest
the supposed mountains was intended to be the point northwardly
of the head of the Channel, to which the line should run, and that
such point is to be determined by the apparent locality of the
mountains which it is demonstrated they had in mind, and not by
some other mountains which they clearly did not have in mind.
The line was to be drawn "au Nord" to the degree, and "de ce
dernier point la ligne de demarcation suivra la crete des montagnes."
The maps showed that the crest of the mountains, the head of the
channel, and the fifty-sixth degree, did not exactly coincide. There
was uncertainty as to the mountains, but none as to the fifty-sixth
degree, and none as to where a line running up the channel prolonged
would reach it. This point was, therefore, to be determined by the
intersection of the prolonged line with the parallel, and " dece dernier
point," the line was to follow the crest of the mountains. Manifestly,
the situation of the mountains being uncertain, the line was to be
drawn from the determined point to the crest, and thence along the
crest.
In the British Case is the following :
It is submitted that the point in the 56th parallel to which the line should be
drawn is the point from which it is possible to continue the line along the crest of
the mountains situated parallel to the coast, and, accordingly, that the point at
which the 56th parallel and the crest of the coast mountains coincide is the point in
question.«
This proposition entirely ignores the fact that the point was fixed
northwardly, and on the fifty-sixth parallel with reference to the
supposed existence of a chain of mountains near where the head of
the channel is nearest to the fifty-sixth degree.
The fact that no such chain exists in that vicinity, does not affect
the location of the point. For the purpose of such fixation of this
point by the negotiators, mountains assumed to exist and approximately located by the parties, were just as potential as if they had
been real mountains.
But the unsoundness of the proposition put forward in the British
Case becomes manifest by one simple test.
If we must seek the point where " it is possible to continue the line
along the crest of the mountains," how will the point be fixed if it
«B. C, p. 69.
4574—03 5 mm
60
ARGUMENT   OF  THE   UNITED   STATES.
shall be determined that the mountains contended for in the British
Case do not fulfill the conditions of. the treaty ? If it shall be determined that there are no such mountains within ten marine leagues of
the coast, how can the point on the fifty-sixth parallel be fixed? ManT
ifestly according to the proposition laid down, the point can never be
determined, unless mountains such as are contemplated by the treaty
shall be found within ten marine leagues of the coast, with a crest
coincident with the fifty-sixth degree of latitude.
But the point was to be determined, whether or not, there was a
mountain crest within ten marine leagues of the coast. The second
paragraph of the fourth Article provides:
Que partout ou la crete des montagnes qui s'etendent dans une direction parallele
a la C6te depuis le 56me degre" de latitude Nord au point d'intersection du 141me
degre" de longitude Ouest, se trouverait a la distance de plus de dix lieues marines de
1'Ocean, etca
This provided for the contemplated condition that, from the point
fixed on the 56th degree, there might be no mountains along the crest
of which the line should be drawn. In such event the point was
none the less to be fixed, and from it the line was to be drawn
parallel to the coast. The boundary delimitation was not to fail if
there was no crest of mountains parallel to the sinuosities of the
coast, and within ten marine leagues of the ocean. The treaty was
to be capable of being carried into effect, whether such mountains
as those contemplated by it existed within the ten marine leagues
or not, and also whether or not any mountains whatever existed in
that region.
If the tribunal, from the language of the treaty can determine
where the point on the 56th degree should be, in the event that they
shall find against the British contention as to the crest along the
coast mountains being west of the head of Portland Channel, it is
manifest that finding "the point from which it is possible to continue the line along the crest of the mountains" from the 56th parallel, is not a condition precedent to determining where the line
drawn from the head of Portland Channel shall meet the fifty-sixth
parallel, and that it has nothing whatever to do with fixing that
point.
The proposition when tested by the result, as worked out in the
British Case, is wholly inadmissible.    The line as drawn cuts off a
«U. S. C. App., 13. ARGUMENT   OF   THE   UNITED   STATES.
61
point on Bell Island, and gives a portion of the mainland coast to
Great Britain. Any theory that so eventuates cannot stand under
the treaty, for there is no possible construction of the treaty which
will enable Great Britain to claim any part of any island opposite the
mainland coast or any part of the mainland coasts
NINTH.
Fifth Question. "In extending the line of demarcation
northward  from   said   point   on ..the   parallel   of  the   56th
DEGREE    OF     NORTH     LATITUDE,    FOLLOWING     THE     CREST    OF     THE
mountains situated parallel to the coast untdl its intersection with the 141st degree of longitude west of greenwich, subject to the condition that if such line should
anywhere exceed the distance of ten marine leagues
from the ocean, then the boundary between the british
and the Russian territory should be formed by a line parallel TO the sinuosities of the coast and distant therefrom NOT MORE THAN TEN MARINE LEAGUES, WAS IT THE INTENTION AND MEANING OF SAID CONVENTION OF 1825 THAT THERE
SHOULD REMAIN IN THE EXCLUSIVE POSSESSION OF RUSSIA A CONTINUOUS FRINGE OR STRIP OF COAST ON THE MAINLAND, NOT EXCEEDING TEN MARINE LEAGUES IN WIDTH, SEPARATING THE BRITISH   Possessions   from   the   bays,   ports,   inlets,  havens,  and
WATERS OF THE OCEAN, AND EXTENDING FROM THE SAID POINT ON
THE 56TH DEGREE OF LATITUDE NORTH TO A POINT WHERE SUCH
LINE OF DEMARCATION SHOULD INTERSECT THE 141 ST DEGREE OF
LONGITUDE  WEST  OF THE  MERIDIAN  OF  GREENWICH?"
The discussion of the fifth question necessarily involves a consideration of the essential features of the sixth and seventh questions, which
are as follows:   .
Sixth Question. "If the foregoing question should be
answered in the negative, and in the event of the summit
of such mountains proving to be in places more than ten
marine leagues from the coast, should the width of the
lisiere which was to belong to russia be measured (1) from
the mainland coast of the ocean, strictly so-called, along a
line perpendicular thereto, or (2) was it the intention and
meaning of the said convention that where the mainland
coast is indented by deep inlets forming part of the terri-
a British Atlas, No. 37. 62
ARGUMENT   OF   THE   UNITED   STATES.
torial waters of russia, the width of the lisiere was to be
measured (a) from the line of the general direction of the
mainland coast, or (b) from the line separating the waters
of the ocean from the territorial waters of russia, or (c)
from the heads of the aforesaid inlets?"
Seventh Question. "What, if any exist, are the mountains
referred to as situated parallel to the coast, which mountains, when within  ten marine leagues from the  coast, are
DECLARED  TO  FORM  THE  EASTERN  BOUNDARY?"
The United States contends that the answer to the Fifth Question
should be in the affirmative, and Great Britain contends that it should
be in the negative.
Question Five is, whether or not, looking to all that is admissible
under the Treaty, there is a demonstration that, according to the
"original and effective understanding of the parties," it was "the
intention and meaning of said Convention of 1825, that there should
remain in the exclusive possession of Russia a continuous fringe or
strip of coast," as above indicated.
The "Parties" meant are, Russia, Great Britain and the United
States, for the reference in the paragraph is to the " Parties to "
said Treaties of 1825 and 1867. By " original and effective understanding of the parties," must be meant not only the interpretation
of the treaty by reading the text in the light of all the facts surrounding and known to the negotiators and the contemporaneous exposition
given by them, but also the practical interpretation put upon the
Treaty by the parties, that is Russia, Great Britain and the United
States, as shown by their affirmative acts respectively, and also by
the inaction of any of the parties indicating acquiescence in an interpretation.
The expression in the treaty is, "original and effective understanding." It must be assumed that significance was intended to be given
to both words "original" and "effective," and that both were deemed
necessary to fully express the idea had in view, which seems to be
that, not only the language of the treaty and of the negotiations leading up to it must be looked to for the purpose of finding out the
meaning, but that what the parties did in pursuance of the treaty
must also be looked to, and that from all of this the meaning must be
evolved. ARGUMENT   OF   THE   UNITED   STATES
63
The Fifth Question does not involve any understanding as to the
actual location of the line on the ground in the interior, but only its
relevancy to the entire coast line of the bays and inlets. The question can be answered independently that the understanding was that
the line should be drawn around all the heads of such waters. This
can be done without fixing where it shall actually be located.
The question does not involve the answer to the question as to
whether or not the- line, in the absence of mountains responding to
the conditions of the Treaty within ten marine leagues of the coast,
shall be drawn the full distance of ten marine leagues.
That answer is dependent upon considerations that do not necessarily affect the answer to the Fifth Question. The Fifth Question
can be fully answered without touching either of these propositions.
The British Case seems to concede that, if the line is to be drawn,
not along the mountains, but parallel to the coast, it shall be drawn
ten marine leagues from the coast.    It says:
It is to be observed that this. Treaty contemplates a shore-line such as admits
of another line being drawn parallel to its sinuosities at a distance of 10 marine
It may appear, either from a construction of the Treaty alone, or
from such construction taken in connection with the subsequent
conduct of the parties, that it was the intent of the Treaty that
Russia was to have, at all events, a continuous strip of the coast,
and that this was such a clear and dominating feature of the treaty,
that all doubtful language is to be regarded as subordinate to it, and
to be construed so as to carry out this intent.
If such intent shall be demonstrated, it must prevail, and the
actual location of the territorial boundary line must be a subordinate
consideration.
It is contended for the United States:
1. That when the Treaty was made between Russia and Great
Britain, both understood that from the fifty-sixth degree of North
latitude to the 141st degree of longitude west of Greenwich, Russia
was to have a continuous strip of coast separating the British possessions from all the waters of the ocean.
2. That this understanding was made manifest by them, as shown
by their subsequent conduct.
«B. C, 72. iriniiiir
64
ARGUMENT   OF  THE   UNITED   STATES
3. That through their conduct such was the common understanding of the civilized world.
4.. That with such understanding, and relying on it, the United States
purchased this territory of Russia in good faith, and paid for it.
5. That the United States entered into possession of the territory so
purchased, and exercised jurisdiction over itv from 1867, down to the
present time; that there was such possession and exercise of jurisdiction over the inland waters now in dispute and the coasts thereof, as
to show at all times that, they were claimed by the United States, as
having passed to it by the said treaties of 1825 and 1867, and that
Great Britain had no sovereignty over such waters and coasts; that
Great Britain never in any way set up any claim to any part of such
waters or coasts until 1898, and that this course of conduct on her part"
demonstrates that it was her original and effective understanding of
the treaty of 1825, that the lisiere should continue unbroken around
the heads of all the bays and inlets.
The present controversy arises out of conflicting views as to what
the parties meant by "cote," "la crete des montagnes," "l'Ocean,"
"lisiere" and "sinuosities."
There is also a controversy as to whether or not there are mountains, such as are referred to in the treaty, situated within ten marine
leagues of the coast. With much labored technical skill, sustained by
a lively imagination, it is claimed that a mountain crest can be segregated from the jumble of mountain peaks, in disarray, in proximity
to the coast, conformable in all essential qualities to the conditions of
the treaty.
This line on a mountain crest, thus created by an arbitrary selection of disconnected peaks, is drawn on the British map so as to be
parallel to a part of the coast, that is, what is styled in the British
Case the general coast, or the mainland coast. Mountain summits are
selected and connected with reference to this coast. The coast as an
entirety, is cut up to match the mountains, and so by connecting peaks
together, and denominating this a mountain crest, and disconnecting
the natural coast into broken strips, a very happy combination is
thought to be brought about, by which an original and effective understanding of the treaty of 1825 that no one ever dreamed of until
more than fifty years after the treaty was made, is claimed to be
demonstrated. ARGUMENT   OF   THE   UNITED   STATES.
65
The "coast" referred to in the treaty, to which the mountains WERE  TO  BE PARALLEL, AND TO  THE  SINUOSITIES  OF WHICH,
if the mountains fadled, the line was to be drawn parallel,
was the coast of all of the interior waters, such as taku
Inlet and Lynn Canal.
The United States claims that the coast is an unbroken coast, and
that this is the dominating factor, that the coast, as meant by the
treaty, must first be determined, and that there can be no mountains
parallel to the coast, as called for by the treaty, which are perpendicular to or trend across the coast leading around the heads of the bays
and inlets, and that all mountains which so trend are to be rejected
from consideration. If the coast, or as the treaty expressed it "lisiere
de cote," is the controlling feature, then there will be no difficulty as
to the meaning of "sinuosity." The line must be parallel to the coast
that is meant and must follow the sinuosities of that coast. No inoun-
ains and no crest of mountains can divide such coast so as to deprive
the United States of any part of it.
When the meaning of "coast" shall be determined, the actual
location of the line will be a secondary proposition. Just where it
will be situated with reference to the heads of- the bays and inlets,
is entirely subordinate to the proposition that it must, at all events,
be situated somewhere to the interior of the heads of such bays and
inlets.
The Treaty of 1825, in the third Article, provides that "la ligne
de demarcation suivra la crete des montagnes situees parallelement
a la cote." The fourth Article, paragraph two, provides that,
"partout ou la crete des montagnes qui s'etendent dans une direction
parallele a la cote * * * une ligne parallele aux sinuosites de la
cote," etc.
It is contended by the United States that the word "cote" thus
used means all the land bounding bays and inlets as well as that
bounding the more open waters.
It is contended by Great Britain that the negotiators in using the
word "cote" intended it to apply only to what in the British Case is
styled in one place as "coast outside of narrow inlets," in another
place, the "general coast," and in another "the general trend of
coast" and in another "the mainland coast of the ocean," and that it 66
ARGUMENT   OF   THE   UNITED . STATES.
was intended that it should not apply to the shores of such waters as
penetrate farther to the interior than a boundary line, drawn from
headland to headland, under the law of Nations fixing the jurisdiction
of a country over territorial waters.a
The language of the treaty is:
Se trouverait a la distance de plus de dix lieues marines de 1'Ocean.
The United States contends that the word "ocean" as here used is
synonymous with "cote."
Great Britain says in its case:
It is clear that " cdte " and " ocean " refer to the same thing. &
Thus the controlling word is "coast." When that meaning as
understood by the parties is fixed, the meaning of "ocean," by the
claims of both parties becomes coincident with it. Its sinuosities
must be conformed to by the line.
THE MEANING OF THE WORD "COTE" AS UNDERSTOOD BY THE PARTIES PRIOR   TO
THE NEGOTIATIONS OF THE TREATY OF 1825.
The meaning has its foundations in the Ukase of September 4,
1821, which was the irritant that brought about the controversy
that was concluded by the treaty.
THE MEANING OF COAST AS DEFINED IN THE UKASE OF SEPTEMBER U, 1821.
In 1821 the Emperor Alexander issued an Ukase addressed "unto
all Men" for the purpose of establishing rules in respect of the
northwest coast of America.
The first rule was as follows:
The pursuits of commerce, whaling, and fishery, and of all other industry on
islands, posts, and gulfs, including the whole of the northwest coast of America,
beginning from Behring Straits to the 51° of northern latitude, also from the
Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands
from Behring Straits to the South cape of the Island of Urup, viz., to the 45° 50'
north latitude, is exclusively granted to Russian subjects. °
This in terms includes " the whole of the northwest coast of
America, beginning from Behring Straits to the 51st degree of
northern latitude."
«B. C.,,.72.
&B. C, 72
74, '
>U.S.C. App.,! ARGUMENT   OF  THE   UNITED   STATES.
The second rule was as follows:
67
It is therefore prohibited to all foreign vessels not only to land on the coasts
and  islands  belonging to Russia, as stated above, but  also, to approach  them
within less than 100 Italian miles.    The transgressor's vessel is subject to confis-
' cation along with the whole cargo. a
Thus all foreign vessels were by this rule forbidden to land upon
any of the coasts described in the first rule.
The fourteenth rule was as follows:
It is likewise interdicted to foreign ships to carry on any traffic or barter with
the natives of the islands, and of the north-west coast of America, in the whole
extent here above mentioned.    A ship convicted of this trade shall be confiscated.a
This is an interdiction of trade with the natives "of the northwest coast of America in the whole extent" from Behring Sea to
the 51st degree north latitude.
Russia thus asserted jurisdiction over every part of the northwest coast down to the 51st degree and forbade trade with the
natives of this coast throughout "the whole extent."
No one would have the hardihood to deny that, by "cote", Russia
here meant the entire shore line, including that of bays, inlets, and
all interior salt waters. It cannot be said that Russia only intended
to interdict trade on the mainland coast, or on the interior waters
up to a point where the headlands were not more than six miles
apart, or that she wanted to control the trade with the natives living
on the coast bordering the open sea, but not with the natives living
far up the Lynn Canal, Taku Inlet, and other like waters. If it
be conceded that Russia intended that this ukase should apply as
in terms it is expressed, to "the whole extent of the coast," and "the
natives of the islands and of the north-west coast of America in the
whole extent here above mentioned," then we start the inquiry before
us with a full understanding of the meaning attached by Russia to
the term "cote" as applied to such waters as those above indicated,
when she provoked the controversy that was closed by the treaty.
When Russia made a treaty in respect of these very rules, and of
this very territory, and of these very coasts, it is inferable, unless
the contrary shall be shown, that she did not intend to use the word
"cote" in the treaty in a different sense from that in which she had
used it in the ukase.
«U. S. C. App., 25-26. 68
ARGUMENT   OF  THE   UNITED   STATES.
THE   UNDERSTANDING   OF   THE   UNITED  STATES  AND   GREAT BRITAIN THAT THE
UKASE APPLIED TO THE ENTIRE COAST.
This ukase was officially communicated to the governments at Washington and London.a
Sir Charles Bagot, in transmitting an English translation of it to the
Marquis of Londonderry, also sent as he himself expresses it, "a map
of the northwest coasts of America," published by Russia.6
This map is No. 5 of the Atlas of Great Britain, and shows all the
coasts of the bays, inlets, etc., now in controversy. The Marquis of
Londonderry understood that, by the description used in the ukase,
of the "whole of the northwest coast of America," Russia asserted
"exclusive sovereignty over the territories therein described." In
his letter to Count Lieven of January 18, 1822, he says:
In the meantime, upon the subject of this Ukase generally, and especially upon
the two main principles of claim laid down therein, viz., an exclusive sovereignty
alleged to belong to Russia over the territories therein described, as also the exclusive right of navigating and trading within the maritime limits therein set forth, his
Britannic Majesty must be understood as hereby reserving all his rights, not being
prepared to admit that the intercourse which is allowed on the face of this instrument to have hitherto subsisted on those coasts, and in those seas, can be deemed
to be illicit, or that the ships of friendly Powers, even supposing an unqualified sov-
. ereignty was proved to appertain to the Imperial Crown in these vast and very
imperfectly occupied territories, could, by the acknowledged law of nations, be
excluded from navigating within the distance of 100 Italian miles as therein laid
down from the coast, the exclusive dominion of which is assumed (but, as His
Majesty's Government conceive, in error) to belong to His Imperial Majesty the
Emperor of all the Russias.c
The effect of the meaning of "cote," as used in the Ukase, was set
forth by Pelly, Deputy Governor of the Hudson's Bay Company,
whose judgment was stimulated by the keenest interest to protect
that company's trade. In a letter to the Marquis of Londonderry
March 27, 1822, he said:
The fur trade of Great Britain, by an Act of last Session and grant from His
Majesty, is vested in the Hudson's Bay Company; I cannot, therefore, refrain
from calling your Lordship's attention to this matter as of considerable importance at the present moment, and not unlikely to lead to very unpleasant occurrences at some future period, if no notice is taken of these proceedings of the
«U. S. C. App., 31, 95.
&U. S. C. App., 101-102.
cJJ. S. C. App., 105. ARGUMENT   OF  THE   UNITED   STATES. 69
Russian and American Governments, the effect of which would be to exclude
British subjects from the northwest coast of America, and a valuable trade in the
interior. a>
Mr. Stratford Canning understood it likewise. In a letter of February 19, 1822, addressed to the Marquis of Londonderry, he said:
I was informed this morning by Mr. Adams that the Russian Envoy, has, within
the last few days, communicated officially to the American Government, an Ukase
of the Emperor of Russia, which has lately appeared in the public prints, appropriating to the sovereignty and exclusive use of His Imperial Majesty the 'northwest
coast of America down to the 51st parallel of latitude, etc. &
To the same effect was the understanding of the Duke of Wellington. In a memorandum enclosed by him under cover of a letter of
November 28,. 1822, addressed to Mr. G. Canning, he says:
In the month of September, 1821, His Imperial Majesty, the Emperor of Russia,
issued an Ukase, asserting the existence in the Crown of Russia of an exclusive
right of sovereignty in the countries extending from Behring's Straits to the 51st
degree of north latitude on the west coast of America, etc.c
John Quincy Adams, Secretary of State of the United States,
understood at that time that Russia's claim to the coast embraced the
entire coast, including the sinuosities of the inlets.
In a letter to Mr. Middleton, American Minister at St. Petersburg,
July 22, 1823, he said:
From the tenor of the Ukase, the pretentions of the Imperial Government extend
to an exclusive territorial jurisdiction from the forty-fifth degree of north latitude on
the Asiatic coast to the latitude of fifty-one north on the western coast of the American continent; and they assume the right -of interdicting the navigation and the
fishery of all other nations to the extent of 100 miles from the whole of that
coast.    .    . d
His understanding that the claim of Russia embraced the entire
coast is very important, when considered in connection with the fact
hereinafter brought out, that the United States acquired rights of
trade with the natives inhabiting those portions of the coast now in
controversy, by the Treaty of 1824, which rights Great Britain
expressly insisted upon securing for herself in identically the same
form, in the Treaty of 1825.
These rights are in direct conflict with the pretension that Great
Britain, by the Treaty of 1825, acquired territorial sovereignty over
«U. S. C. App., 107. <>u. S. C. App., 113.
&U. S. C. App., 106. djj. S. C. App., 48-49. 70
ARGUMENT   OF   THE   UNITED   STATES.
any part of these interior coasts above 54° 40' north latitude. Thus
it is perfectly plain that by the claim of Russia to sovereignty over
all the northwest coast of America above 51 degrees north latitude
up to Bering Strait, and by interdicting trade with the natives of
that coast throughout its whole length, Russia, Great Britain and
the United States understood distinctly that by "coast" was meant
the entire boundary of all of the waters of the bays and inlets in
controversy.
CLAIM  OF  GREAT BRITAIN  TO  NORTHWEST  COAST.
Great Britain set up a vague, indefinite claim in conflict with the
claim of Russia. It is indicated by Mr. Pelly, Deputy Governor of
the Hudson's Bay Company to Mr. George Canning in a letter of
September 25, 1822. It is based upon the occupancy by the Hudson's Bay Company of trading stations in the interior of the country then known as New Caledonia, which he describes as being west
of the Rocky Mountains and extending from about 49° latitude north
to about 60° north latitude. He indicates the location of these stations, but none of them are near any part of the coast.    He adds:
By these means an extensive trade is carried on with all those Indian tribes which
* inhabit the country from about 60° north latitude as far south as the mouth of
Fraser's River, which is in about 49° north latitude, and between the Rocky
- Mountains and the sea.
The British fur traders have never met with the traders of any other nation in
that country, and it does not appear that any part of it has ever been occupied
by the subjects of Russia or of any other foreign Power. '
All the considerable rivers which fall into the Pacific Ocean in this extent of
coast have not yet been sufficiently explored to ascertain whether any of them
are navigable with large boats*- and have safe harbours at their discharge into
the sea; the furs procured in that country have therefore been brought to England down the Peace River and through the Hudson's Bay Company's territories.
But it is probable that, in such an extent of coast, some practicable communication with the sea will be discovered which would save the expensive transport
of goods and furs through the interior of America.    .    .    .
I have thus given a brief outline of the British trading stations on the northwest
coast of America, etc.«
Although he designates these stations as being '' on the north west
coast of America," not one of them is situated west of the 127th
degree of west longitude.    The nearest one indicated is about the
« U. S. C. App., 109-110. ARGUMENT   OF   THE   UNITED   STATES.
71
127th degree, which is nearly four degrees east of the head of Portland Channel.
He speaks of trade carried on with all those Indian tribes inhabiting that country and of the "rivers which fall into the Pacific Ocean
on this extent of coast."
It is manifest from his letter that he understood that " this extent
of coast" included all those waters into which "all the considerable
rivers debouched," such as Taku Inlet and Lynn Canal, and that he
regarded these waters as part of the Pacific Ocean.
On the basis of this letter the Duke of Wellington in the memorandum enclosed with his letter of November 28, 1822, to Mr.
Canning, said:
Now we can prove that the English Northwest Company and the Hudson's Bay
Company have for many years established forts and other trading stations in a
country called New Caledonia, situated to the west of a range of mountains called
Rocky Mountains, and extending along the shores of the Pacific Ocean from latitude
49° to latitude 60°. a
He adds:
Thus, in opposition to the claim founded on discovery, the priority of which,
however, we conceive we might fairly dispute, we have the indisputable claim of
occupancy and use for a series of years, which all the best writers on the laws
of Nations admit is the best founded claim to a territory of this description.
Objecting as we do to this claim of exclusive sovereignty on the part of Russia,
I might save myself the trouble of discussing the particular mode of its exercise as
set forth in this Ukase, but we object to the mode in which the sovereignty is
proposed to be exercised under this Ukase, not less than we do the claim of it.ffl
CLAIM  OF  THE  UNITED  STATES  TO  NORTHWEST  COAST.
The United States likewise preferred a claim "to the whole coast
as high as the 61st degree." Sir Charles Bagot, in a letter to Mr.
G. Canning, of October 17, 1823, wrote:
Although Mr. Middleton has not communicated to me the instructions which
he had received, I have collected from him, with certainty what I had long had
reason to suspect, that the United States, so far from admitting that they have
no territorial pretensions so high as the fifty-first degree of north latitude and no
territorial interest in the demarcation of boundary between His Majesty and the
Emperor of Russia to the north of that degree, are fully prepared to assert that they
have at least an equal pretension with those powers to the whole coast as high as the
sixty-first degree, and an absolute right to be parties to any subdivision of it which
may now be made.&
*U. S. C. App.,113.
&U. S. C. App., 129. ARGUMENT   OF   THE   UNITED   STATES.
THE  BEGINNING  OF  THE  NEGOTIATIONS.
With the issues thus made up, and the subject matter of controversy
fully understood, in exactly the same sense, by all three of the parties,
the negotiations began. It would not be profitable to devote any
time to an examination of the relative strength of the several claims
to the coast in question. Doubtless, for the purpose of driving a
better bargain, the claim of Great Britain was put forward with conscious extravagance; but this is comparatively unimportant in this
discussion, as the Treaty of 1825 does not purport to express a settlement of conflicting rights, in any sense, in accordance with the
way such rights were respectively stated or urged. On the contrary, all questions of right were expressly waived. It is, however,
important to observe that while this was avowed by both Great
Britain and Russia, Russia at no time, receded from, but always,
down to the conclusion of the negotiations, asserted her claim of
actual and undisputed sovereignty over all of the coast north of the
55th degree. This is significant in connection with determining
whether or not Russia ever understood that she was abandoning
to Great Britain any part of the coast over which she had always
asserted sovereignty.
A declaration of sovereignty made, and never departed from at
any stage of the negotiations, cannot fail to be a strong exponent
of the understanding by the parties, of the language used for the
purpose of finally determining their controversy.
THE NEGOTIATIONS OF THE TREATY OF 1825 DID NOT PROCEED UPON STRICT RIGHT,
BUT UPON CONSIDERATIONS OF MUTUAL EXPEDIENCY.
Count Lieven said to Mr. George Canning in a
19, 1823:
etter of January
Before leaving Verona the undersigned was ordered to present to the Government of His Britannic Majesty a new proof of the Emperor's well known feelings
by proposing to His Excellency, Mr. Canning, Chief Secretary of State for Foreign
Affairs of His Britannic Majesty (without permitting this proposition to prejudics
the rights of His Imperial Majesty should it not be accepted), that the question
of strict right be temporarily set aside on the part of both and that all the differences to which the regulation in question has given rise be adjusted by an
amicable arrangement founded on the sole principle of mutual expediency, to be
negotiated at St. Petersburg.a
aU. S. C. App.
118. ARGUMENT   OF  THE   UNITED   STATES.
73
On this basis the negotiations were taken up by Great Britain.
Mr. George Canning communicated to Sir Charles Bagot, February
5, 1823, a copy of the note of Count Lieven and requested him to
proceed to open the discussion. °
In a letter from M. Poletica to Count Nesselrode of November 3,
1823, it is said:
In the midst of this argument the British Embassador suddenly suspended the discussion in order to tell me that his Government had, after all, no intention of discussing the territorial question according to the abstract principles of public law or
of international law; that that would have the effect of rendering the discussion
interminable; that the cabinet of London expected a more satisfactory result
for the two parties interested, from an amicable arrangement which would be
based only upon mutual consent, and that his instructions had been drawn up in
that spirit.
I replied to Sir Charles Bagot that in the matter in question, so far as I could
foresee the views of the Imperial Government, I believed that I could take upon
myself boldly to assure him that they were in perfect agreement with those of
the cabinet of London. I then asked him to tell me the point of demarcation,
which, in the opinion of his Government, ought to divide the respective possessions on the northwest coast of America. &
In a letter of March 17, 1824, from Sir Charles Bagot to Mr.
Canning, he said:
I then laid before them [Count Nesselrode and M. Poletica] Count Lieven's
note to you of the 31st January, 1823, proposing that the question of strict right
should be provisionally waived on both sides, and that the adjustment of our
mutual pretensions should be made upon the sole principle of the respective
convenience of both countries.
This basis  of negotiation being willingly  accepted by all   parties,   I stated
THE MOTIVES WHICH ACTUATED THE PARTIES WERE THE ADVANTAGES TO BE
SECURED FROM CONTROLLING THE RIGHTS OF FISHING AND HUNTING AND OF
TRADE WITH THE NATIVES ALONG THE COAST, AND THE QUESTION OF TERRITORIAL SOVEREIGNTY WAS DIRECTED TOWARD SECURING THESE RIGHTS AND
NOT MERELY DOMINION OVER AN EXTENT OF LAND.
At that time no gold had been discovered in that region, and no
question of mineral values was ever mooted in any way by any of
the negotiators, or by the representatives of the trading companies
of Russia, and Great Britain, which were rivals in that part of the
«U. S. C. App., 119.
&U. S. C. App., 140.
*U. S. C. App., 154. 74
ARGUMENT   OF  THE   UNITED   STATES
world. The country along the whole of the northwest coast of
America was known to be bleak, inhospitable, mountainous and
inaccessible, offering then no inducements for the acquisition of
land for anything that might be gotten out of it, or produced by
it. It was trading in furs, and the development of fisheries that
induced the adventurous spirits of that age to exploit that remote
region. The particular advantage that could arise from sovereignty
over the coast in question was, from control of,, and exclusive
enjoyment of, the fur trade with the Indians inhabiting it.
It was known to all parties during the pendency of the negotiations for the treaty that the natives, with whom such trade was
carried on, lived along the rivers, bays and inlets. Thus with a
full understanding as to what was meant, by all the parties, by the
expression "the whole of the northwest coast," and also with a full
understanding of the advantages that were to be secured through
the exercise of territorial sovereignty, in appropriating exclusively
the trade with the inhabitants, they proceeded to frame the treaty
upon the sole principle of the "respective convenience of both
countries."05
There are two important and controlling ideas which must be kept
in view in interpreting the language of the parties. Great Britain
had as her main object the disavowal by Russia of her claim of
control over the waters within 100 Italian miles of the coast, while
Russia, having at the very outset.privately declared her purpose of
making such disavowal, sought to secure by the treaty the rights
which she had asserted over the whole extent of the coast, at least
from the 55th degree northward. It being understood by both
parties that, in any event as to the territorial boundaries, the
objectionable features of the Ukase as to the 100 mile limit would
be withdrawn, Sir Charles Bagot, in his letter to Mr. George Canning of March 17, 1824, stated the object had in view by the
respective parties as follows:
This basis of negotiation being willingly accepted by all parties, I stated that,
so far' as I understood the wishes and interests of Russia, her principal object
must be to secure to herself her fisheries upon the islands and shores of the
northwest coasts of North America, and the posts which she might have already
established upon them; that, on the other hand, our chief objects were to secure
«U. S. C. App., 154. ARGUMENT   OF  THE   UNITED   STATES
75
the posts upon the continent belonging to the Hudson Bay Company, the
embouchures of such rivers as might afford an outlet for our fur trade into the
Pacific, and the two banks of the Mackenzie River; that, in the belief that such
were our respective objects, I would propose .as our boundary a line drawn
through Chatham Straits to the head of Lynn Canal, "thence northwest to the
140th degree of longitude west of Greenwich, and then along that degree of
longitude to the Polar Sea. a
He shows that he communicated to the Russian representative
this understanding that, the wishes and interests of Russia were
to secure herself in respect of the "shores of the northwest coast
of North America." He stated some of the objects very clearly,
but he made no reference to the trade with the Indians inhabiting
the coast, which was expressly and exclusively reserved in the
Ukase. It. was made manifest then, and in the outcome of the
treaty, that his proposition by no means secured to Russia, her
fisheries upon the islands and shores upon the northwest coast of
America, and that it was by no means sufficient to protect the
trade, which was one of the main objects she had in view.
CERTAINTY WAS DESIRED IN THE  TREATY AND  THE PREVENTION OF ANY
DISAGREEABLE DISCUSSION IN THE FUTURE.
It was apparent throughout that both parties were desirous that
the controversy should be definitely settled and that the boundary
should be fixed with certainty. In a letter of Sir Charles Bagot to
Mr. George Canning August 19, 1823, he says:
I have suggested to him [Count Nesselrode] that this settlement may perhaps be best made by convention, and I have declared our readiness to accede
to one framed either upon the principle of joint occupancy or demarcation of
boundary as the Russian Government may itself prefer, intimating, however,
that in our view, the latter is by far the most convenient. Count Nesselrode
immediately and without hesitation declared himself to be entirely of that
opinion, and he assured me that the chief if not the only object of the Imperial
Government, was to be upon some certainty in this respect.*
Count Lieven wrote to Count Nesselrode that Air. Canning, when
he gave him a copy of the dispatch accompanying the ratification
of the convention, and called his attention to the insistence of the
English government that the line should be fixed by a distance
limit, and not merely bv the mountain  crest, assured him that it
«U. S. C. App., 154.
4574—03 6
&U. S. C. App., 126-127 76
ARGUMENT   OF   THE   UNITED   STATES.
arose "solely from a sincere desire to prevent the recurrence of
any disagreeable discussion in future."
The Russian view is made entirely clear in the letter from M.
Poletica to Count Nesselrode of November 23, 1823. He says that
he had conferred with Count de Lambert, the representative of the
interests and wishes of the Russian-American Company, and that:
In fixing the longitude Count de Lambert had mainly in view the establishment
of a barrier at which would be stopped, .once for all, to the north as to the Avest
of the coast allotted to our American Company, the encroachments of the English
agents of the amalgamated Hudson Bay and Northwest English Company, whom
a more intimate acquaintance with the country traversed by the Mackenzie River
might easily bring in the course of time into the neighborhood of our establishments.a
With this desire on both sides to secure certainty, and to prevent disagreeable differences in the future, it is not to be accepted
without the strongest proof, that they intended to give to the word
"coast," which was the most important feature of the territorial
branch of the treaty, a new, or unusual, meaning.
THE  MEANING  OF   " COTE"   AS  SHOWN  BY  THE   NEGOTIATIONS.
THE FIRST sl'trfrESTlON AS TO A LINE.
Sir Charles Bagot, in a letter to Mr. George Canning of August
19, 1823, says that, in an interview with Count Nesselrode, he told
' him that, the British pretensions had, he believed, always extended
to the 59th degree of north latitude, but that a line of demarcation
drawn at the 57th degree would be entirely satisfactory to Great
Britain.5
So far as the record shows, this is the first definite suggestion in
regard to a division line. It does not appear that any indication was
given as to how he proposed the line should be drawn northwardly
on the continent.
THE SECOND SUGGESTION AS TO A L1XE.
The second suggestion appears to have been made by M. Poletica
to Sir Charles Bagot. In a letter from him to Count Nesselrode
of October 17. 1823, he says:
This point having been explained, Chevalier Bagot requested me to inform him
what, in the opinion of the Imperial Government, should be the line of separa-
«U. S. C. App., 137-138..
&U. S. C. App., 12', ARGUMENT   OF   THE   UNITED   STATES. i i
tion between our possessions on the northwest coast of America and those which
England thought herself entitled to claim. I thought that it would be better to
meet the question frankly. Consequently, avoiding circumlocutions [I said], that
the Imperial Government would think that it had made all the concessions
required by its moderation and its earnest desire to maintain a good understanding with all foreign powers by fixing the boundary between the Russian and
English possessions at the fifty-fourth degree of latitude, and by giving for the
longitude such a line as in its prolongation in a straight line toward the pole
would leave the Mackenzie River outside of the Russian frontier.
Chevalier Bagot, after a moment's reflection, replied, that the point of demarcation which I had just designated was very far from being that which his Government would have wished to fix. a
THE THIRD SUGGESTION AS  TO A LINE.
The third suggestion was made by Sir Charles Bagot. This was
communicated to M. Poletica in October, 1823. Sir Charles says
•in a letter to Mr. Canning:
And I then gave, him to understand that the British Government would, I
thought, be satisfied to take Cross Sound, lying about the latitude of 57£°, as the
the head of Lynn Canal, as it is laid down in Arrowsmith's last map, or about
the 135th degree of west longitude, as the boundary in the interior of the
continent. &
This undoubtedly put all of the west coast of Lynn Canal in
Russian territory.
Mr. Canning understood Sir Charles Bagot to mean the 135th
degree of longitude, for he says in his letter to him of January 15,
1824:
suggested by Your Excellency, northward from the head of Lynns Harbour
might suffice.
It would, however, in that case be expedient to assign, with respect to the
mainland southward of that point, a limit, say, of 50 or 100 miles from the
coast, beyond which the Russian posts should not be extended to the eastward.
to the Rocky Mountains.^
This would put both shores of Lynn Canal, throughout its whole
extent, in Russian territory.
J. S. C. App., 139.
J. S. C. App., 131.
C. App., 148. |Hf|iBKHfeH;
78
ARGUMENT   OF   THE   UNITED   STATES.
This suggestion was made verbally, and there is a difference in
the accounts given in regard to it by Sir Charles Bagot and M.
Poletica. M. Poletica, in a letter to Count Nesselrode of November 3, 1823, said:
Chevalier Bagot then placed himself before the geographical map which wTas
at hand, and traced upon it with his finger a line beginning at the 57th degree
of latitude, the intersection of which designated the 135th degree of longitude
west of Greenwich, precisely at the point where our establishment of Novo-
Archangelsk appears to be.«
Thus his understanding, as to the 135th meridian, was the same as
Mr. Canning's. According to his understanding, the suggestion put
both shores of Lynn Canal, throughout its whole extent, in Russian
territory.
THE FIRST FORMAL PROPOSAL OF SIR CHARLES BAGOT.
In the first formal proposition made by Sir Charles Bagot he
proposed as the boundary:
a line drawn through Chatham Straits to the head of Lynn Canal, thence northwest to the 140th degree of longitude west of Greenwich, and then along that
degree of longitude to the Polar Sea.&
This likewise assigned the entire coast, on the west side of Lynn
Canal, to Russia.
CONTRE-PROJET BY RUSSIA.
In the counter proposition of the Russian plenipotentiaries, the
proposition made by Sir Charles Bagot was not even entertained.
The proposal was to begin at the southern extremity of Prince of
Wales Island, and "follow Portland Channel up to the mountains
which border the coast. "^ That is, follow the channel to the end,
and thence to the mountains. This meant continuity in that direction, until the line should reach the mountains. The mountains
meant are those " which border the coast"; that is to say, the coast
of that channel. It seems to have been understood that the Portland Chatfnel reached about the 56th degree, for in the observations
on the amended proposal of Sir Charles Bagot, the plenipotentiaries of Russia say:
■ C. App., 140.
C. App., 154.
5U.-S. C. Ar ARGUMENT   OF   THE   UNITED   STATES.                            79
For
these reasons the plenipotentiaries of Russia have proposed as limits upon
the cc
>ast of the continent to the south, Portland Channel, the head of  which
lies al
Dout (par) the 56th degree of north latitude.0
It
is important to  note that this is the first time  in the nego-
tiatic
ns that any reference is made to mountains,  and coast, and
to th
e sinuosities  of  the   coast.    None of these words had before
been
used.       The  reference  is  distinctly to the mountains which
bord
5Y  the  coast  at   Portland  Channel, and from  this  point "la
limit
3  remonteroit  le  long  de   ces   montagnes   parallelement aux
sinuo
sites de la cote."*
It
was  thus plainly indicated to Great Britain that the head of
Port!
and Channel was  regarded  by them as " coast."    From that
point
the boundary would "ascend along those mountains  parallel
to th
3 sinuosities of the coast."    Unquestionably this meant parallel
to al
. the coast throughout its extent, which had been  claimed by
Russ
ia, parallel to the coast of waters similar to Portland Channel,
and
parallel, hot to a mainland or general  coast, but to a sinuous
This proposition was never materially departed from by Russia.
It was, in all of its essential qualities, embodied in the treaty. The
purpose and significance of the words "coast" and "mountains"
were never modified.
AMENDED PROPOSAL BY SIR CHARLES BAGOT.
In his amended proposal Sir Charles Bagot offered to accept a
line "along the middle of the channel which separates Prince of
Wales and Duke of York Islands from all the islands situated to
the north of the said islands until it touches the mainland {terre
ferine)', thence extending in the same direction on the mainland to
a point ten marine leagues from the coast the line would run from
this point toward the north and northwest parallel with the sinuosities of the coast, and always at a distance of ten marine leagues
from the shore, as far as the 140th degree of longitude (Greenwich),
the prolongation of which it would then follow to the Polar Sea."c
Thus after reaching a point in the interior ten marine leagues
from the coast the line was to run "parallel with  the sinuosities
«U. S. C. App., 161.
b\J. S. C. App., 158.
'U. S. C. App., 159. 80
ARGUMENT   OF   THE   UNITED   STATES.
of the coast and always at a distance of ten marine leagues from
the shore."
It is here plain that, the sinuous coast referred to was identical
with "shore," for he uses these words as equivalents, and that
neither Sir Charles Bagot, nor any one else understood that he
meant, by following a line "parallel with the sinuosities of the
coast, and always at a distance of ten marine leagues from the
shore," to indicate a coast line drawn from headland to headland,
and that he meant to throw, by the line indicated, into English
territory any portion of the bays and inlets here in controversy.
He, however, explains his own meaning in indubitable terms.
The Russian plenipotentiaries explained in their observations upon
his amended proposal, that the most important advantage was "to
prevent the respective establishments on the northwest coast from
injuring each other and entering into collision." They added: "It
was also to their mutual advantage to fix these limits according to
natural partitions, which always constitute the most distinct and
certain frontiers."a
In reply to this Sir Charles Bagot said:
Any argument founded on the consideration of the practical advantage of
Russia could not fail to have the greatest weight, and the Plenipotentiary of His
Britannic Majesty did not.hesitate to give up, in consequence of this observation
of the Russian Plenipotentiaries, the line of demarcation which he had first ^proposed, to wit: one passing along the middle of Chatham Straits as far as the
northern extremity of Lynn Channel, and thence to Mount Elias, or to the
intersection^ of the 140th degree of longitude; and to offer another which would
secure to Russia, not only a strip on the continent, opposite the southernmost
establishment which she possesses on the islands, but also the possession of all
the islands and waters in its vicinity or which are situated between that establishment and the mainland (terre ferme); in short, possession of all that could
in future be of any service, either to its stability or its prosperity.&
Thus he explained that he proposes to give, "not only a strip
on the continent," but also the possession "of all the islands and
waters in its vicinity" and, in short, "possession of all that could
in future be of any service, either to its stability or its prosperity." All the waters in its vicinity did not mean a division of
the waters, so that Great Britain would own waters actually touch-
«U. S. C. App., 161.
&U. S. C. App., 163. ARGUMENT   OF   THE   UNITED   STATES
81
ing the boundary line, and stability could not be secured by a
broken strip on the continent, penetrated by inlets, lying partly
within the jurisdiction of one country and partly within that of the
other. Is it at all compatible with this representation on his part,
that he expected the line to be so drawn, and parallel to such a
coast, that there would be a division of jurisdiction over inland
waters, and that Great Britain might maintain establishments on
the coasts of these waters, in absolute contact with the establishments that Russia might wish to maintain for trading with the
Indians upon adjoining parts of such coasts?
It is to be observed that he makes no reference to mountains,
but fixes a constant distance of ten marine leagues from the shore,
and parallel with the sinuosities of the coast, which term up to
that time had never admitted of any doubt or dispute.
In explaining his amended proposal to Mr. Canning in his letter
of March 17. 1824, he said:
I entertained sanguine expectations that such a proposal,' coupled with the
concession of a line of coast extending 10 marine leagues into the interior of
the continent, would have been considered as amply sufficient for all the legitimate objects which Russia could have in viewx, and quite as much as she could
pretend to with any shadow of real claim or justice.«
When he was speaking of conceding "a line of coast extending
ten marine leagues into the interior of the continent," can it be
for a moment imputed to him, that by such "line of coast," he
meant that kind of coast line, which under the law of nations, was
authorized for the purpose of determining territorial waters? If
he had ever had such an idea, would he not, in view of the well
understood interests of Russia, which she was seeking to protect
by the treaty, and of the previous well understood meaning of the
word "coast," have been bound in frankness to disclose this new
meaning which he proposed to attach to the word? Can it be
assumed that, when he had made two propositions to Russia, by
which she got the entire western coast of Lynn Canal, and they
had been rejected by her as unsatisfactory, he meant by this proposition to go thirty miles into the interior away from the coast, and
then to run the line so as to deprive Russia of a large part of the
coast of Lynn Canal, for which he had never contended?
«U. S. C. App., ARGUMENT   OF   THE   UNITED   STATES.
FINAL PROPOSITION OF SIR CHARLES BAGOT.
His last proposition, proposed March 1:2. 1824, was, so far as
the coast line is concerned, exactly like his third proposition.0
FINAL DECISION OF RUSSIAN PLENIPOTENTIARIES IN THE NEGOTIATIONS WITH SIR
CHARLES BAGOT.
The final decision of the Russian plenipotentiaries was directed
to that part of the coast opposite the Island of Prince of Wales,
which island was conceded to Russia by Sir Charles Bagot's last
proposition. There was then no controversy as to that portion of
the coast, north of Prince of Wales Island. It was for this reason
that the Russian plenipotentiaries said "That the possession of
Prince of Wales Island without a slice (portion) of territory upon
the coast situated in front of that island could be of no utility
whatever to Russia. "&
Negotiations were broken off, not on account of any difference
of meaning attached to the word "cote," not upon any question
as to its embracing inland waters, but as to how the coast should be
divided on an east and west line. Thus Russia never departed from
the original line dividing the coast, suggested by her, and showed
that she would not yield her right to any of the coast north of 54°
40'. In a letter of April 11, 1824, written to Mordvinof, after the
negotiations had come to an end, Count Nesselrode, in explaining
the Russian attitude, said:
By rights of first discovery, and by that which is still more real, the first
establishment of habitations and human activity our cabinet demands possession both of the islands and the western coast of America from the furthest
north to the 55th degree of latitude.c
Referring to the differences that might arise, he says:
For this only one expedient presents itself; to establish at some distance from
the coast a frontier line which shall not be infringed by our establishments and
trappers, as also by the hunters of the Hudson's Bay Company.c
In his letter to Count Lieven of April 17. 1824, he reviews the
negotiations and sums up the situation. He states that the Ukase
of September 4, 1821, carries "the domains of Russia on the northwest coast of the American Continent down to the 51st degree of
" V. S.  C. App., 163..
&U. S. C. App., 164.
'U. S. C. App., 167. ARGUMENT   OF  THE   UNITED   STATES.                            88
north 1
atitude,"a and that, in the spirit of  conciliation, they were
willing
to yield their claims below the 55th degree, excepting that
it was
desired to extend the line far enough south  to include the
whole (
)f Prince of Wales Island.    He adds:
This
proposal will assure to us merely a narrow lisiere [strip] upon the coast
itself anc
I will leave to the English establishments all the needful space for increase
By the word "coast," as here used, it cannot be believed that he
meant anything else than sovereignty over the entire coast, which
they had insisted upon from the first and had never in the least
degree departed from.    He then proceeds:
In the first place, no nation has protested against the charter of the Emperor Paul, and this universal silence may and should be regarded as- a
recognition of our rights. The objection is raised that we have not made
establishments on the northwest coast below the 57th degree of latitude. This
is true, but during the season of hunting and fishing the coast and the neighboring wraters are exploited by our American Company far beyond the 55th
degree and 54th degree parallels. This is the only manner of occupation of
which these localities admit, or, at least, the only one that is necessary, with
colonies founded and organized a little farther north.    .    .    .
Thus,  we wish to keep and the English companies wish to obtain.   This cir-
As Russia stood immovable in regard to the coast, Great Britain
acceded to her well understood demands on this vital point, and on
May 29, 1824, Mr. George Canning wrote to Count Lieven that,
after mature consideration of the dispatches from Count Nesselrode, he had the satisfaction of saying that he would send such
instructions, as would meet in a great degree the wishes of Russia,
as to the line of demarcation to be drawn between Russian and
British occupation on the northwest coast of America, and to admit,
with certain qualifications, the terms last proposed by the Russian
Government. These qualifications were to consist chiefly, of a
more definite description of the limit of the land desired by Russia
on the continent, and the selection of a somewhat more western
degree of longitude above Mt. St. Elias, and a precise stipulation
for "the free use of all rivers which may be found to empty
themselves  into  the  sea within   the  Russian  frontier, and  of  all
*U. S. C. App., 172-T 84
ARGUMENT   OF   THE   UNITED . STATES.
seas, straits and waters which  the  limits assigned  to Russia may
comprehend. "a
On July 12, 1824, Mr. Canning wrote to Sir Charles Bagot, that:
After full consideration of the motives which are alleged by the Russian Government for adhering to their last propositions respecting the line of demarcation,
etc., * * * it was resolved to consent to take as the line a line drawn from
the southernmost point of Prince of Wales Island from south to north through
Portland Channel, till it strikes the mainland in latitude 56 degrees; thence following the sinuosities of the coast, along the base of the mountains nearest the
sea to Mount Elias, and thence along the 139th degree of longitude to the
Polar Sea. &
Thus it was conceded that the motives alleged by the Russian
Government should control. It was fully understood that these
motives were to secure a strip of jthe coast over which Russia
had for so long a time claimed sovereignty, and that this strip was to
be of such a nature, as to be a barrier, except through navigation
of rivers, from the British side, and that it was to preserve their
commerce, through the establishment of sovereignty over the coasts,
as they had always been defined. There is no pretext for claiming
that Russia ever had in mind a political coast, from which, under
the laws of nations, the sovereign right was to be projected beyond
the actual coast, but on the contrary, everything showed that
Russia contemplated only, an actual and sinuous coast, forming an
unbroken strip.
With this letter Air. Canning transmitted a "draft convention"
in French and English, which was submitted to Russia.
The line to the south was as yet unsettled, but as to some
things there was perfect accord. The most important of these, in
view of the present controversy, was what all parties understood
by the word "coast."
It is therefore of the utmost significance to consider the language
in which he set forth in his draft, what he knew to be the understanding of the parties on this point. Note should be taken that
there had not only never been any controversy as to what the
parties understood the term "coast" to mean, but that no such
controversy ever arose at any time, from the beginning of the
negotiations  to  the  execution  of the  treaty, and that, in  respect
"l". s. C. App., 180.
&U. S. C. App., 181 ARGUMENT   OF  THE   UNITED   STATES. 85
of the manifest use of this word, there was never any substantial
departure from the original draft made by Mr. Canning.
ANALYSIS AS TO THE USE OF THE WORD " COAST" IN THE DRAFT CONVENTION
S UBMITTED B Y MR. CANNING.a
In the preamble he says that the desire is to proceed "sur le
principe d'une convenance reciproque." Russia had already explained that this meant to it an absolute barrier. This explanation
had been accepted by Mr. Canning, and in his letter submitting
the draft, he stated that Great Britain had consented, "after full
consideration of the motives which are alleged by the Russian
Government for adhering to their last propositions."6 These motives
were not left to conjecture,, but were specifically stated. In the
counter draft by the Russian plenipotentiaries they said:
The principal motive which constrains Russia to insist upon sovereignty over
the above indicated lisiere (strip 'of territory) upon the mainland (terre firme)
from Portland Channel to the point of intersection of 60 degrees latitude with
the 139th degree longitude is that, deprived of this territory, the Russian-American
Company would have no means of sustaining its establishments, which would
therefore be without any support (point d'appui) and could have ho solidity.0
Again, in their observations on Sir C. Bagot's amended proposal,
they said:
On the other hand, the Russian Plenipotentiaries have the honor to remind
him, once more, that without a strip of land on the coast of the continent from
Portland Channel, the Russian Establishments on the adjoining islands would be
left unsupported, that they would be left at the mercy of those Establishments
which foreigners might form on the mainland, and that all settlements of this
nature, from being grounded upon the principle of mutual conveniences, would
offer only dangers to one of the parties and exclusive gains to the other, d
It would need no argument to show that everything sought here
to be guarded against would have resulted, if Russia had agreed
that the lisiere of coast, instead of being continuous around all of
the waters of the sea, had been a lisiere of different parts of coasts
divided by inland waters, with the sovereignty of them to the east
and north of such dividing lines vested in England. Her motives
were somewhat elaborated in argument, in respect to that portion
«U. S. C. App., 182, etseq. «U. S. C. App,, 158.
&U. S. C. App., 181. djj. S. C. App., 161.    B. C. App., 72. 86
ARGUMENT   OF   THE   UNITED   STATES.
of the coast opposite Prince  of  Wales  Island in regard to which
the dispute was then hinging.    It is said in Russia's final decision:
That the possession of Prince of Wales Island without a slice (portion) of territory upon the coast situated in front of that island could be of no utility whatever
to Russia. That any establishment formed upon said island or upon the surrounding islands would find itself, as it were, flanked by the English establishments on the mainland and completely at the mercy of these latter. a
The same argument brought forward here, in respect to the portion
of the coast then in dispute, was equally applicable to that portion
north of it, about which there was no dispute, and it is manifest from
what was said in regard to tJhe coast opposite Prince of Wales Island,
that Russia would not have for a moment tolerated any discussion of
such a broken lisiere as is now contended for by Great Britain, opposite any of the islands north of Prince of Wales Island.
As expressed by Mr. Canning in his draft convention, it was to
determine "les limites de leurs possessions et etablissemens sur la
c6te nord-ouest de l'Amerique." b
Mr. Canning, who knew full well that Russia had claimed the
entire coast down to parallel 51 degrees north, and that the expression "la cote nord-ouest de l'Amerique" was never understood by
the parties as meaning merely the mainland coast, or to exclude the
coast bounding interior waters, could not possibly have answered
the question in the affirmative, if he had then been asked, if he
meant by the use of this term to exclude from consideration all of
the land bordering interior waters, inlets and bays, which were not
more than ten miles wide from headland to headland. And yet that
is what this tribunal is now asked to say that he and the other
parties meant when they solemnly introduced this expression into
the treaty. It is not to be imputed to him that he used the word
with a covert meaning. Therefore the purpose was, as he expressed
it, to determine their respective possessions along the coast, meaning
by coast, the entire shores of all the bays and inlets, which
Russia claimed in the Ukase of 1821, without any modification,
except that in this adjustment she proposed to recede to the foot
of Prince of Wales Island.
That he meant all the coast is conclusively demonstrated by his
use of the word "cote," in Article two of his draft:
<U. S. C. App., 164.
oTJ. S. C. App., 182. •ARGUMENT   OF   THE   UNITED   STATES.
He provides that the line,
87
remontera, au nord, par la passe dite le Portland Channel, jusqu'a ce qu'elle touche
a la cote de la terre ferme situee au 56° degre" de latitude nord.a
It is to go north until it reaches the coast of the continent.
Portland Channel appeared on the maps the negotiators had, to
be much narrower, as it. is in fact, than either Taku Inlet or Lynn
Canal.
Mr. Canning denominated the border of the head of Portland
Channel as "la cote de la terre ferme situee au 56° degre de latitude
nord."
In the English counterpart he said: " Shall ascend northerly along
the channel called Portland Channel till it strikes the coast of the
continent lying in the 56th degree of north latitude."
The border of the extreme interior part of Portland Channel was,
' in this Draft Convention, which he made after the negotiations had
been pending for more than a year, and which had grown partly out
of a cl im of Russia to own the entire northwest coast of America
throughout its whole extent, expressly declared to be "coast of the
continent." and yet this tribunal is asked to decide that, under the
same treaty, the same word "coast" is not applicable to the borders
of other much wider interior waters, and that, upon a mere technical and judicial meaning attributed to the word "coast" by
nations for jurisdictional purposes, the sinuous coast contemplated
by the treaty was what is generally understood, as a political coast
line, drawn from headland to headland.
Article two proceeds:
ou dans la base vers la
de longitude ouest du di
ette   cote parallelement  a  ses sinuosites, et   sous
ss  montagnes  qui la bordent, jusqu'au 139e degre
It was to follow "along that coast" and "parallel to its windings."fC
This did not mean that the line was to go straight away from
" that point" southwardly along the coast of Portland Canal. Such
a construction would be wholly unreasonable. It would be like
marching up the hill and then down again. The line had proceeded up Portland Canal to this coast on Portland Canal, and it
would do violence to common  sense to  suppose that he intended
«U. S. C. App., 183. 88
ARGUMENT   OF   THE   UNITED   STATES.
that, it should be retraced on the land down this coast to the \
exterior coast. The meaning becomes absolutely clear, when we
take into view the mountain range depicted on the map, which went 1
straight away to the northwest. The line was to follow this coast, |
and parallel to its sinuosities, and along the seaward base of the I
mountains which bordered this coast, and the trend was toward the
139th degree of longitude. After having fixed unmistakably the !
meaning of " cote" it is clear that he intended the line to proceed, so
as to follow the sinuosities of the coast so defined, that is, the coast
extending around the heads of all salt waters. This was the coast
.demonstrated by the mountains with reference to which the entire
negotiations proceeded.
In the third article he says:
Que la susdite lisiere de cote sur le Continent de FAnierique formant la limite
des possessions Russes, ne doit, en aucun cas, s'£tendre en largeur depuis la mer
vers l'interieur, au dela de la distance de lieues maritimes, a quelque distance    J
que seront les susdites montagnes.a
Thus he defines the lisiere as "a strip" and not as "strips" of
coast. The coast, is "on the continent" and not partly a fiction
consisting of water. The width of the strip is not to be more
than a certain distance "depuis la mer."
In determining what the coast was in respect to the water, he
did not have in mind the Grand Ocean, but the word "sea" was |
used to designate the water bounded by what he had already des- I
ignated as "coast.'" In this sense Portland Channel was "mer."
He had defined its upper border expressly as "coast." For the
same reason, other like waters constituted a part of the sea, and
their borders constituted a part of the coast, and consequently the
width of the "lisiere de cote" was to be measured from the coast
at their heads, just as the line took its initial point on the lands
on the coast at the head of Portland Channel. And from these
coasts the lisiere was to be measured "vers l'interieur."
As appears from th*e letter of Count Lieven to Count Nesselrode
of July 13, 1824. Mr. Canning submitted his draft to Count Lieven.
Count Lieven understood that the word "cote" in this draft could
not have been used in the unusual and special sense now contended
for, because.in this letter he says that Mr. Canning makes the line
*U. S. C. App., 183. ARGUMENT   OF  THE   UNITED   STATES
89
run, "le long de la base des montagnes qui suivent les sinuosites
du rivage.""
He thus used the word "rivage" as equivalent to the word "cote,"
as used in this draft, and that fully accords with the understanding
of the word "cote" from the beginning of the controversy down to
that time. "Rivage" means the part of the earth which serves as
a limit to any kind of body of water. It is applied indifferently to
the border of a sea, or a lake, or a river. The word "rivage" is
translated "coast" in the rendition'of this letter by Great Britain.6
Mr. Canning, in his letter to Sir Charles Bagot of July 24, 1824,
states that he has communicated this draft to Count Lieven with the
request " that His Excellency would note any points in it upon which
he conceived any difficulty likely to arise or any explanation likely
to be necessary." He further states that he has received the memorandum and that,"there are but two points which had struck
Count Lieven as susceptible of any question."c
It is hardly necessary to say that the meaning of the word " cote"
was not one of the two points which had struck Count Lieven as
susceptible of any question.
It may well be imagined that, at that stage of the proceedings,
Mr. Canning would have been amazed, if Count Lieven had asked
him to explain what he meant by the use of the word "cote," and
whether or .not, he meant to confine it to such a line of coast as that
to which it is now sought to be confined in the British Case.
Mr. Canning said in that letter:
The protection given by the convention to the American coasts of each power
may (if it is thought necessary), be extended in terms to the coasts of the Russian Asiatic territory.
The measure of protection given by the convention to the American coasts of Russia was certainly a snare and a delusion, if it
involved their dismemberment and the destruction of the commerce
with the natives, in the manner that is now urged. Instead of protecting what was, as was from the first insisted, its undisputed
coast, it would be transferring the sovereignty over parts of it to
a nation that had never seriously set up any claim to it. The protection given  to  the American  coasts  of  Russia would  be  quite
«U. S. C. App., 18
&B. C. App., 90.
^U. S. C. App., 187. 90 ARGUMENT   OF   THE   UNITED   STATES.
different from that given to the coasts of Great Britain. Great
Britain unquestionably got the entire lower coast, but it is contended
that Russia got only patches of coast. The Russians did make
pronounced objections on three points. Indeed, Sir Charles Bagot
in a letter to Air. Canning, August 12, 1824, pronounced their differences almost, if not altogether, irreconcilable. The second objection was "as to the liberty to be granted to British subjects to
navigate and trade forever along the coast of the lisiere which it is
proposed to cede to Russia, from the Portland Channel to the 60th
degree of north latitude, and the islands adjacent. "a
He speaks of "the coast of the lisiere." The lisiere is the
dominating feature which was to be secured. It was to be such a
lisiere as Russia had indicated would give protection, and the trade
spoken of was along the coast of this lisiere, which meant where
it touched the water, and the word "coast" is used in the same
sense in which he had previously used the word "rivage."
In further explanation of Russia's objection he says:
As  to  the  second point: the  Russian  Plenipotentiaries  declare  that they ai
ready to grant to His Majesty's subjects for ten years, but for no longer period,
the liberty to navigate and trade along the coast of the lisiere proposed to be
ceded to Russia from the Portland Channel to the 60th degree of north latitude. &
Thus again he speaks of "trade along the coast of  the  lisiere."
The lisiere was to extend from the Portland Channel to the 60th
degree.    This  border  or  strip was  the  main security sought for,
and  the privilege to trade was to be given along the coast of this,
strip.
Sir Charles informed Mr. Canning that it was the determination
of Russia, rather to leave the controversy between the two governments unsettled for an indefinite time, than to recede from their
three objections specified, the second of which was the refusal tc
grant to British subjects the right "to navigate and trade forever
along the coasts of the lisiere."'
Count Nesselrode, in his letter to Count Lieven of August 31,
1824, gives substantially the sanie account of these differences.    Of
«U. S. C. App., 190.
&U. S. C. App., 190-191.
*U. S. C. App., 191. ARGUMENT   OF   THE   UNITED   STATES
91
those clauses which he says it was "utterly impossible to accept"
he puts, as first, the following:
1. Liberty to English subjects to hunt, to fish, and to trade with the natives
of the country, perpetually, on the whole of that part of the coast which constitutes the subject of the discussion, and
to 54° 40'. a
. extends from 59° of north latitude
He then speaks of Russia as having granted these very rights to
the United States for ten years, and of the impossibility of discriminating in favor of Great Britain, by granting them to her perpetually. He shows plainly that by coasts he meant the whole extent
of the coast where Russia's  rights  have been disputed.     He says:
We have been willing to suppose that, in spite of a formal taking possession,
a long occupation of the principal points, and a peaceful exploitation of the
sources of revenue and wealth presented by the countries in question. Russia's
rights of sovereignty to the fifty-first degree of north latitude might be the subject of a doubt. We have, consequently, confined them to the 54° 40', and, to
prevent any new dispute from arising on this point, we have permitted one of
the powers with which we were in litigation to share for ten years, on the
whole extent of the coast where our rights had been disputed, the profits of
hunting, fishing, and trading with the natives. We offer the same advantages
to England, but to grant them forever would be to obtain the recognition of our
rights of sovereignty only to abandon the exercise of them. It would be consenting to possess hereafter only in name what we now possess in fact.&
He further says:
Russia's rights of sovereignty over the northwest coast, beginning at 59° of
north latitude, have been disputed. Hence, between that degree and the parallel
which would form our southern boundary, we hastened to offer special advantages to the powers with which we were in "dispute. We granted to the Americans for ten years the right to fish, to hunt, and to trade with the natives of
the country, and we will make the same concession in favor of the subjects of
His Britannic Majesty, but it must be well understood that this concession will
only comprise the space inclosed between latitude 59° and the southern boundary of  our territory, to wit: latitude 54° 40', for to the north  of the fifty-ninth
not only in no official document, but in none of  the articles which the English
and American newspapers have published on this subject.c
Our counterdraft carries our boundary from the fifty-first degree of north latitude to 54° 40'.    It leaves to the establishments which the English  companies
«U. S. C. App., 201.
*>U. S. C. App., 202.
"U. S. C. App., 202-203. 92 ARGUMENT   OF   THE   UNITED   STATES.
may form hereafter on the northwest coast all the territory situated to the south
of Portland Channel.a
Can it, with even a show of plausibility be contended that he
understood the word "cote" in the treaty to mean less than the
whole extent, less than what had been in dispute; that it left to the
absolute sovereignty of Great Britain hundreds of miles of inland
coasts and surrendered the right to fish, to hunt and to trade with
the natives along them ? And yet it is seriously contended for Great
Britain that he understood and used the word in this sense, and
with this effect. The explanation in regard to the contre-projet
of Russia says:
England persists in demanding from Russia the following concessions:
1. The free navigation of the bays, gulfs, etc., and the right to fish, to hunt
and to trade directly with the natives of the country forever, on all that part
of the northwest coast constituting the disputed territory, from latitude 54° 30/
to 60°, subject to the restrictions mentioned in our convention of April 5 (17),
with the United States concerning arms, gunpowTder and spirituous liquors. &
This designates expressly "all that part of the northwest coast
constituting the disputed territory.*1 Great Britain certainly cannot
say that the treaty ever contemplated giving her any territory that
was not in dispute. Here it expressly appears that Russia was to
have all of the coast in dispute, and that Great Britain only sought
certain rights along it.
THE FINAL NEGOTIATIONS.
Mr. G. Canning, in his letter to Mr. S. Canning of December 8,
1824, explains the status of the negotiations, and gives instructions
for concluding the treaty. In the most explicit terms he sets forth
the demand that Great Britain shall secure the same rights as those
secured to the United States by the treaty of 1824.    He says:
Russia can not mean to give to the United States of America what she withholds
from us; nor to withhold from us anything that she has consented to give to the
United States.
The uniformity of stipulations in pari materia gives clearness and force to both
arrangements, and will establish that footing of equality between the several contracting parties which it is most desirable should exist between three powers whose interests come so nearly in contact with each other in a part of the globe in which no
other power is concerned. c
«U. S. C. App., 204. cu. S. C. App., 210.
&U. S. C. App., 205.
mm ARGUMENT   OF   THE   UNITED   STATES. 93
Count Nesselrode himself has frankly admitted that it was natural that we should
expect, and reasonable that we should receive, at the hands of Russia, equal measure,
in all respects, with the United States of America.a
The contre-projet drawn up and submitted by Mr. G. Canning set
forth in Article V. almost the identical language of Art. IV. of the
treaty of 1824.b Now it is contended that he did not get for Great
Britain what he said he was asking, viz., the same rights on the coast
that the United States had secured, but that by the treaty of 1825, the
rights of the United States were cut down, and that Great Britain, by
the use of the word "coast" in the treaty, acquired exclusive sovereignty over a part of the coasts, in respect of which the United States
had been granted trading privileges for ten years.
Article IV. of the treaty of 1824 appeared without any substantial
variation as Article VII. in the treaty of 1825.
If the word " coast," as used in Art. III. of this draft, and in Arts. III.
and IV. of the treaty as signed, meant a coast line drawn from headland to headland^ then it must be admitted that it meant the same
thing in Art. I. of this draft, and in the same article of the treaty of
1824 and that of 1825. It will not be asserted that one kind of
a coast line was meant by the word in one article of a treaty, and
that, without even a word of explanation in the negotiations, the same
word had a far different meaning in other articles. What is the consequence of this contention, if "coast" means what in this controversy
it is claimed to mean? In that case, by Art. I. of the treaties of 1824
and 1825, neither of the contracting parties acquired any right to
resort to any coasts, not already unoccupied within the territory of
the other, where such coasts were within a line drawn from headland
to head, not more than ten miles apart.
They had been treating about the whole extent of this northwest
coast,, a most sinuous coast, full of indentations and bordered by
various islands so situated, as to make a territorial coast line drawn
for jurisdictional purposes, embrace large areas of islands and waters.
Such a line would have excluded each contracting party, for the
purpose of trading with the natives, from resorting to any of the
coasts so included, though not already occupied by the other.
«U. S. C. App., 211. &U. S. C. App., 217. 94 ARGUMENT   OF  THE   UNITED. STATES.
THE  MEANING  OF   " COAST"  IN  ART. VII. OF  TREATY OF  1825.
In this connection attention is called to an argument, presented in
the British Case based on Art. VII. of the treaty of 1825. It
proceeds as follows:
A further argument in support of the British contention can be based upon Article
VII of the treaty. The liberty to frequent the inland seas, gulfs, havens, and creeks
on the coast mentioned in Article III is reserved mutually by both powers. This
contemplates the possibility, at least, that some of these waters may be British.05
The statement that "this contemplates the possibility at least that
some of these waters may be British," shows that it is meant to claim
that Art. III. could not apply to any British waters south of 54° 40',
that it meant only the coast and waters north of that latitude; and that
as Art. VII. contemplates a use by Russia of some British waters, consequently it must have been understood that such waters might exist
under Art. III. north of 54° 40'. The argument concludes by saying
that the article " of course only postulates that there should be some
Russian waters to which it may apply. It equally postulates that there
should be some British waters to which it may apply."
This is absolutely without force, in its bearing on the Fifth Question.
The meaning intended is that taking Articles III. and VII. together,
there can possibly be no British waters to which Art. VII. can apply,
unless they be found north of 54° 40', and that this being true, it
follows that, to give any meaning to the reciprocity provided for in
that Article, the negotiators contemplated that, in drawing the inner
line of the lisiere, some of the bays and inlets or parts of some of
them, might go to Great Britain.
Article III. is not by its terms confined to the coast north of 54° 40'.
The coast assigned to Russia is, but the Article deals with the whole
northwest coast, and then particularly defines that part which is to go
to Russia.    It says:
The line of demarcation between the possessions of the high contracting parties
upon the coast of the continent and the islands of America to the northwest shall be
drawn in the manner following.
South of the line was to belong to Great Britain. Here, then, are
British waters and British coasts to which Art. VII. applies, without
forcing such a remote conclusion as that it must have been intended
to be framed so that it might apply to waters north of 54° 40'.
«B. C, 76. ARGUMENT  OF  THE   UNITED   STATES.
95
CONCLUSION OF THE NEGOTIATIONS.
The treaty was concluded without any further exposition between
the parties as to the points of difference. In his letter to Mr. G.
Canning of February 17, 1825, transmitting the treaty, Mr. S. Canning shows clearly his understanding of the effect of the line which
was to be drawn parallel to the coast. He understood that the line
was drawn, not on territorial waters, but on land.    He says:
The line of demarcation along the strip of land on the northwest coast of America
assigned to Russia is laid down in the convention agreeably to your directions,
notwithstanding some difficulties raised on this point, as well as on that which
regards the order of the articles, by the Russian plenipotentiaries. a
He says "strip of land" and not "strips of land and water."
Mr. Middleton, on that very day, had an interview with Mr.
Canning which he recorded in a letter to Mr. Adams. This contemporaneous record of the views of Mr. Canning ought to have weight.
In the first place it is not contradictory of, but entirely consistent
with, all that had gone before. If Mr. Middleton had been capable
of making a self-serving record for his country, no such motive could
possibly have then existed.    He says:
I have the honor to acquaint you that a convention was signed yesterday between
the Russian and British plenipotentiaries relative to navigation, fisheries, and commerce in the Great Ocean, and to territorial demarcation upon the Northwest Coast
of America. In a conversation held this day with Mr. Stratford Canning I have
learned that this treaty is modeled in a great degree upon that which was signed by
me in the month of April last, and that its provisions are as follows, to wit:
The freedom of navigation and fishery throughout the Great Ocean and upon all
its coasts; the privilege of landing at all unoccupied points; that of trading With the
natives, and the special privileges of reciprocal trade and navigation secured for ten
years upon the northwest coast of America, together with the mutual restrictions
prohibiting the trading in fire-arms or spirituous liquors, are all stipulated in the
British as in the American Treaty, and some new provisions are made for the privilege of refitting vessels in the respective ports, and no higher duties are to be
He understood that by unoccupied "coasts" was meant all the
coasts.
Count Nesselrode, in writing to Count Lieven February 20, 1825,
communicating the fact that the treaty had been signed, said:
The only point that has given rise to any difficulties in our discussions with the
British plenipotentiary related to the limits of the strip of coast which Russia is to
«U. S. C. App., 223.
&U. S. C.App., 224. 96
ARGUMENT   OF   THE   UNITED   STATES.
possess on the American continent from the fifty-sixth degree of north latitude to the
point of intersection of the one hundred and forty-first degree of west longitude.
The Emperor would have found it more mutually just, more equally advantageous,
if the natural frontier formed by the mountains bordering on the coast wrere adopted
by both parties as the invariable line of demarcation. England would have gained
thereby wherever those mountains wrere less than ten marine leagues from the sea;
Russia wherever that distance was greater, and, in view of the want of accuracy of
the geographical notions which we possess as to these countries, such an arrangement
would have offered an entire equality of favorable chances to the two contracting
parties. a
Can it be imagined that when he was contending for an unvarying
mountain boundary for the "limits of the strip of coast which Russia
is to possess," he understood that he had receded so far as to take
stretches of water as such boundary, had given up a continuous strip
for broken strips, and had abandoned the sovereignty of Russia over
hundreds of miles of coast, over which she had always asserted her
claim; and that all of this occurred without any discussion or explanation, and without even the private correspondence of either government giving the remotest hint of it? The idea is on its face incredible.
To hold that such was the effect of the use of the word "coast" is to
convict the plenipotentiaries of Great Britain of the most artful and
veiled duplicity imaginable, or those of Russia of a lack of intelligence that is incomprehensible.
It would not be possible for any one to give a clearer and more
forcible exposition of what Russia, Great Britain and the United
States understood by the "northwest coast" and "the coast,"—as
to which the jurisdiction of these respective powers was settled^by
the treaties of 1824 and 1825,—than that given by the distinguished
counsel for Great Britain in the Fur Seal Arbitration.
Sir Charles Russell discussed the question at great length. He said
that the phrase northwest coast of America "extended to the whole
of the coast line of the possessions claimed by Russia from Behring
Strait down to its most southern boundary."5 He quoted from the
Ukase as follows:
The pursuits of commerce, whaling and fishery, and of all other industry on all
islands, ports and gulfs, including the whole of the northwest coast of America,
beginning from Behrings Strait to the 51st degree of northern latitude; also from
«U. S. C. App., 225-226.
&Fur Seal Arbitration, Vol. 13, p. 128. ARGUMENT   OF   THE   UNITED   STATES.
97
the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile
Islands from Behrings Straits to the south cape of the Island of Urup, namely, to the
45° 50/ northern latitude, is exclusively granted to Russian subjects.
and then added:
Again, the Tribunal wdll see that the wThole line of that coast is indicated by the
general description of Russian assertion of dominion. a
In discussing the treaty of 1824 and the rights secured by the United
States under Article IV of that Treaty, he says:
There it is stated without any qualification whatever; and this is written, as I say,
six days after the Treaty; it extends without any qualification the whole way up;
and the importance of Article four is that it gives a temporary advantage to the
United States—that is to say, it gives to United States subjects rights of access to
interior seas, to gulfs, to harbors, and to creeks, all of which, or the greater part
of which, would be in strictly territorial waters; and, therefore, to which, upon the
general rule of international law, the United States would not have any right of
access at all. &
Thus he shows that the United States and Russia, in treating in
regard to the northwest coast which had been claimed by Russia,
meant by "coast" the shores of interior seas, gulfs, harbors and creeks,
" all of which or the greater part of which would be in strictly territorial waters."
It is the coast of these waters that Great Britain now seeks to
exclude from the meaning of the word "cote" in the treaty of 1825,
and on the ground that they embrace strictly territorial waters.
This is urged as to a treaty in which, for the purpose of getting the
same rights as the United States got in respect of such inland
waters, Great Britain insisted upon inserting Article IV of the
treaty of 1824, adopted almost word for word. This treaty of 1824,
as above expounded by Lord Russell, gave to the United States for
ten years rights in strictly territorial waters along the northwest
coast, rights corresponding to which Great Britain demanded for
herself, but which under the present contention she got as to some of
those waters exclusively and forever as against both Russia and the
United States.
When Sir Charles Russell comes to speak of the right secured to Great
« Fur Seal Arbitration, Vol. 13, 130.
& Fur Seal Arbitration, Vol. 13, 142. 98 ARGUMENT   OF   THE   UNITED   STATES.
Britain under the treaty of 1825, he sets out Article VII, which is
identical with Article IV of the treaty of 1824, and adds:
Therefore under that Article there is for a limited period of .time a right given
(even as to waters which would be according to law territorial waters) of user of
such waters, and that extends along the whole of the coast mentioned in Article III.a
This is the very coast now in dispute.
Referring to these two treaties, Sir Richard Webster said:
It is my contention that*Great Britain intended to get, so far as coast rights were
concerned, and so far as navigation and fishing rights were concerned, what the
United States got, &
In speaking of Article IV. of the treaty of 1824, he says:
It was something which would apply to what may be called interior seas and
waters of the territory in future to be recognized as Russian as distinguished from
the United States.c
In discussing Article VII. of the treaty of 1825 in connection with
Article IV. of the treaty of 1824, he said that the coast mentioned
in Article III. of the treaty of 1825 was "the whole of the coast up
to Behring Straits."^
He further said in the same connection:
1 submit (remembering that the line of demarcation was to be complete with reference to the coast referred to as the northwest coast of the continent, and the Islands
of America to the northwest), that nobody who can take an impartial view of this
matter can come to any other conclusion than that the coast referred to in article
VII is the whole coast; and when we remember that in the United States the expression lisiere does not occur at all, and that Article III of the United States treaty speaks
of the northwest coast of America north of 54° 40/, and that I am justified in saying
that Mr. George Canning believed that he was getting the same for Great Britain as
the United States had got from Russia—there is not any answer, at any rate, apparent
(unless I have made some grave blunder) to the contention that the right of Great
Britain to visit, during ten years, inland creeks, and harbours, and to visit for the
purpose of navigation. and fishing the seas which washed the American coasts
extended right of way from 54° 40/ up to the point to which I have called attention.«
How could Mr. Canning have thought that he was getting the same
rights that the United States got if the present contention of Great
Britain is sound?    If it be sound, then he builded wiser than he knew,
« Fur Seal Arbitration, Vol. 13, 167.
& Fur Seal Arbitration, Vol. 13, 440.
c Fur Seal Arbitration, Vol. 13, 444.
d Fur Seal Arbitration, Vol. 13, 451.
e Fur Seal Arbitration, Vol. 13, 451-452.
SiSSIS ARGUMENT   OF  THE   UNITED   STATES.
99
but to say that, is to say that the treaty means something different from
what he thought it meant.
The Treaty was made to express the understanding at that time of
the parties, and no construction can be put upon it which starts out
with a predicate that Mr. Canning did not understand it.
" Referring to the rights claimed by Russia under the Ukase of 1821
and to the monopoly granted to the Russian Company in the year
1829 after the treaty, Sir Richard Webster said:
In 1799, it was down to the 55°; and, in 1821, it w7as down to 51° in terms; and, in
1829, it is the whole area assigned to Russia. It must have been, and was, the
whole North West Coast of America above 54° 40', which was the part exclusively
assigned to Russia, as compared to that below, which was exclusively assigned to
the United States.    Observe that 54° 40' was to be the dividing line, etc. a
LA  CRETE  DES MONTAGNES.
THE CONTENTION OF THE UNITED STATES IS, THAT THE NEGOTIATORS DID NOT
MEAN" THE MOUNTAINS NEXT THE SEA," NOR ANY OF THE MOUNTAINS CONTENDED
FOR BY GREAT BRITAIN, BUT MOUNTAINS OTHER THAN THOSE, CONSTITUTING A
CHAIN SEPARATED FROM THE SEA BY INTERVENING MOUNTAINS, WHICH THEY
INTENTIONALLY REJECTED; AND THAT THEY DID NOT CONTEMPLATE INDIVIDUAL
MOUNTAINS WHOSE SUMMITS WERE TO BE CONNECTED TOGETHER, OR EVEN SHORT
RANGES HAVING A TREND ACROSS THE LINE OF COAST OF SUCH WATERS AS TAKU
INLET AND LYNN CANAL, BUT A GENERALLY CONTINUOUS RANGE OF MOUNTAINS
SUPPOSED TO BEGIN NEAR THE HEAD OF PORTLAND CANAL, AND TO CONTINUE
WITH A GENERAL TREND PARALLEL WITH THE COAST, AROUND THE HEAD OF
LYNN CANAL; AND THAT THE ASSUMPTION OF THE EXISTENCE OF SUCH A RANGE,
AND THE AGREEMENT IN REFERENCE TO IT. WAS SUBORDINATE TO, AND IN
HARMON)' WITH, THE FUNDAMENTAL POSTULATE THAT "COTE" MEANT ALL OF
WHAT COULD BE INCLUDED BY THAT TERM, AND NOT ANYTHING LESS, TO WIT: ALL
OF THE NORTHWEST COAST OF AMERICA NORTH OF 5k° W OVER WHICH RUSSIA HAD
CLAIMED JURISDICTION.
The discussion of the mountains contemplated by the treaty is necessarily involved in a consideration of the Fifth Question, and carries
with it an answer to the Seventh Question.
It is said in the British Case that, the description of the mountains
in the Treaty, which are situated parallel to the coast, "indicates a
general parallelism only. Mountains being a natural feature could
not, of course, be expected to run uniformly parallel to the coast,
whether straight or windino;."5
Arbitration, Vol. 13, 463.
&B. C, p. 80. 100
ARGUMENT   OF  THE   UNITED   STATES.
This proposition is assented to, and it is agreed that the mountains
which the negotiators contemplated, extended in a general direction
parallel with the coast, and that they did not contemplate a crest of
mountains, winding in and out, along the sinuosities of the coast.
There is a difference between the description of the mountains, and
the description of the line in reference to the coast, in case the mountains fail. They contracted with reference to a crest of mountains
generally parallel to the coast, but if the mountains should fail, then
the line was to be drawn parallel to the sinuosities of the coast.
The British Case gives a very deft, but palpably unfair turn to this.
Referring to the mountains it says:
In this they differ from the arbitrary 10-league line which, especially as it would
only fall to be drawn through a country where mountains failed, might be drawn
with substantial accuracy parallel to the general line of the coast.«
It is a forced construction to say that the treaty only contemplated
that the line should be drawn on the ten-league basis "through a
country where mountains fail." The Treaty provided that, if the
crest of the mountains, with reference to which they contracted, and
which extended apparently in a direction parallel to the coast, should,
at any place, be at a greater distance than ten marine leagues from
the ocean, the line should be drawn parallel to the sinuosities of
the coast. There was no provision that this line should not be
drawn through a mountainous country. There is every reason to
believe that the negotiators knew that the whole country was mountainous, and that, if the crest of the mountains which they had in view
should be further from the coast than ten marine leagues, the line
would nevertheless be drawn through a country where mountains
did not fail. It was not to be drawn "parallel to the general line
of the coast," but parallel to the sinuosities of the coast.
The British Case proceeds to say that:
* * * the mountains in question might vary in distance from the coast,
from its very edge to the extreme-limit of the 10 marine leagues, without sacrificing
their general parallel character.«
It might have been added that it was contemplated that the mountains in question might exceed the extreme limit of ten marine leagues
from the coast.
<B. C, 80. ARGUMENT   OF   THE   UNITED   STATES. 101
There is nothing in this, however, to justify any assumption that
the individuality of the crest of mountains they had in view is to be
ignored, or that any mountains, however haphazard they might be,
answer to what the negotiators contemplated, provided only they are
within ten marine leagues from the coast. It is further observed upon
the same page that the mountains were not to be unbroken, and that
this is made clear from the circumstance that the line was to be
crossed by rivers. The fact that the treaty contemplated that the
mountains were to be crossed by rivers, and expressly provided for
their navigation across the boundary to the ocean, does not justify
the conclusion that such a particularized character of breaks in the
mountains includes breaks six and ten miles wide, not made by
rivers, but by inlets and bays which were not specified. Under the
general rule of construction that the specification of one is the exclusion of others, such an argument is wholly inadmissible.
In the British Case it is said that:
According to the British contention, the phrase " la create des montagnes" signifies
the tops of the mountains adjacent to the sea. It was introduced as a concession
from the line along the base of this slope proposed by Mr. Canning.|
Again it says:
The mountains were to be the mountains next the sea.«
No authority in support of this claim is to be found in the
negotiations.
THE MAPS ACCESSIBLE TO THE NEGOTIATORS SHOWED A WELL DEFINED MOUNTAIN
CHAIN TO THE INTERIOR OF THE MOUNTAINS NEXT TO THE SEA, AND CORRESPONDING TO THE LANGUAGE OF THE TREATY.
It is known that the negotiators had Faden's map of 1823, the map
of 1802 published by the Russian Quarter-Master General's Department, probably Vancouver's charts (a Russian, English or French
edition), one or more maps by Arrowsmith, and possibly the Langs-
dor f map of 1803-1805.b
lt is asserted in the British Case, but is not proven and therefore is
not admitted in the Case of the United States, that Vancouver's Narrative was read by the negotiators.6'
«B. C, 81. «U. S. C. G, 8.
&U. S. C. C, 7-8. 102
ARGUMENT   OF   THE   UNITED   STATES.
Faden's map a shows a well defined, continuous crest of mountains I
which, from the south passes a short distance to the northeast of the
head of Portland Canal, and continues generally parallel with the
coast, turning around the head of Lynn Canal and nearly uniting
with another range of which Mount Fairweather and Mount St. Elias
are parts. Between this range of mountains and the coast of the bays
and inlets all along, other mountains are shown much nearer the coast,
and in some places almost reaching it, but they do not form any
range whatever trending generally parallel with the coast, but are
depicted either as short mountain formations trending toward the
coast, or as spurs.
If the negotiators saw this map they were impressed with the idea
that, there was a generally continuous, and homogeneous range of
mountains, forming one system, extending from near the head of
Portland Canal all the way up to Mount St. Elias. They were also
impressed with the fact that between this range and the coast, there
were other mountains, very much nearer the coast, which constituted
no part of the crest of this range of mountains, and which, if they
belonged to the system at all, were foothills, or offshoots of it, with a
general formation nearly at right angles 1o the trend of the crest.
If they examined the Russian map of 1802b they would have been
impressed in the same way as" by Faden's map, with the difference
that the slopes of the mountains, the crest of which extends from
Portland Canal around Lynn Canal, parallel with the general trend of
the coast of the interior waters, allowing exceptions for some short
arms which make out almost at right angles from such coast, reach
down to the very shore itself, and do not present separate or short
mountains, either independent of, or running at right angles to the
range, as shown on Faden's map.
If they consulted Arrowsmith's map of 1818c they got an impression I
of a crest of a homogenous range, just like that given in the other two
maps, and, at places, would have been impressed with the fact that,
there were lateral, or independent mountains, between this general
range and some portions of the coast.
If they consulted Arrowsmith's map of 1822,^ they were not im-
a British Atlas, No
. 10.
cJJ. S. Atlas,
No. 8.
& U. S. Atlas, No. (
3.
d U. S. Atlas,
No. 10. ARGUMENT   OF  THE   UNITED   STATES
103
pressed with the idea that there were any mountains at all between
the head of Portland Canal, and the head of Lynn Canal.
Arrowsmith's map of the same year as reproduced in the British
Atlas (No. 8) shows a very faint indication of mountains. The same
map uncoloreda is a little more pronounced, but shows nothing like
a continuous crest of mountains. There appear to be mountains
extending in a general direction, just as in the other map, but they
are very much broken up.
Langsdorf's map& is so vague, and inaccurate, that it cannot be
supposed that it was relied on for any purpose, when other maps, so
much superior, were at hand.
Vancouver's maps show a continuous mountain range, or chain,
from northeast of the head of Portland Canal all the way around the
head of Lynn Canal. Between this dominant range, or chain, which
is much higher than any of the other mountains depicted, and the
coast, the whole country is shown to be mountainous down to the
very water, and all along the coast. This is much more pronounced
in the map showing the territory from Portland Canal to Prince Frederick Sound, than on the map showing the territory from Prince
Frederick Sound north.0
In Map No. 1 of the British Atlas the general range is shown and
along a large part of the coast north of Portland Canal mountain
formations are shown extending down to the very water, which
appear to be independent of the general range.
In Map No. 2 of the British Atlas, the mountainous character of
the country to the seaward of this general range, and north of Portland Canal, is shown with very great distinctness. All the way up to
57° 30' north latitude the mountains extend down to the water.
. In Map No. 3 of the British Atlas, which is a duplication of Map
No. 2, from 56° to 57° 30', not showing, however the coast between
56° and about 57° 10', the mountains between the general range and
the coast, are not so numerous, but they distinctly appear.
On part of Vancouver's No. 7, which appears as Map 4 of the
British Atlas, there is a marked distinction between the dominant
chain and the  mountains  near the water's edge, and those at the
'British Atlas, No. 9.        & British Atlas, Nc
>TJ. S. Atlas, Nos. 4 and 5. 104
ARGUMENT   OF  THE   UNITED   STATES.
water's edge are more pronounced than the sea of mountains intervening  between them, and the crest of the dominant chain.
It would have been impossible for these maps to be examined with-
out getting three distinct impressions:
1. That there was a general, continuous, dominant range of
mountains, individualized and distinct from all other mountains
shown.
2. That this range of mountains, except near the heads of some of i
the inlets, was approximately ten marine leagues from, and parallel
to the general trend of the sea waters in that vicinity.
3. That this trend followed the general line of the coast of the
continent as far as the head of Lynn Canal, that it turned, still following the coast of Lynn Canal, and thence proceeded northwardly
following the general line of the continental coast.
This was the picture they had before them. The coast which they
were proposing to divide along the parallel of 54° 40' was all of the
northwest coast of America, and Russia was to have all the coast
north of 54° 40'.
If the negotiators read Vancouver's Narrative, which is not admitted
by the United States, the narrative not being put in as evidence or
relied on by the United States, the impressions made by the maps as
to the mountainous character of the country from the very waters
edge would have been confirmed. (See appendix to this argument,
Title " Extracts from Vancouver's Narrative.")
What the maps sufficiently showed as to the mountainous character
of the country, along the coast and in the interior, between Portland
Channel and Stikine River, and Stikine River and Taku Inlet, and
between Taku Inlet and Lynn Canal, without the narrative of Vancouver, is confirmed by subsequent explorations, and it may confidently be affirmed that the negotiators, desiring to give certainty to
the boundary line, spoke according to what the maps showed, when
they designated a line to be drawn from the point where it would
strike the 56th degree, along the crest of the mountains situated parallel to the coast, and that where the crest of these mountains, which
extend in a direction parallel to the coast, from the 56th degree of
latitude to an intersection with the 141st degree of longitude, should
be at a distance of more than ten marine leagues from the ocean, they
should no longer serve as a boundary. ARGUMENT OF THE UNITED STATES.
105
They saw that there were mountains shown along the coast, and
that there were other mountains between those rising up from the
water line, and the mountains depicted as a continuous chain from
the northeast of the head of Portland Canal around the head of Lynn
Canal.
It also appeared that along these seaward mountains there was not
any crest of mountains parallel to the coast from Portland Canal to
the 141° of longitude. They described a particular crest of mountains that was in their mind's eye, for they said:
" Que partout ou • la crete des montagnes qui s'etendent dans une
direction parallele a la Cote," etc.
It was on the divergence of these particular mountains more than
ten marine leagues from the ocean, that the line was to be fixed by
distance. The negotiators contemplated that these mountains might
be more than ten marine leagues from the coast, a hypothesis which
could not have been possible in respect of the irregular mountains
showyn to be along almost the entire coast, down to the very water's
edge. In further demonstration of what mountains they meant, the
reason for referring the boundary line to the mountains must be considered. 11 had previously been understood that wherever the dividing
line of the coast to be agreed on, should strike the coast, all of the coast
to the north of that line was to belong to Russia, and it was understood
by the negotiators that this was to be a strip on the continent for the protection of Russian establishments from encroachments by the subjects
of Great Britain from the interior. The mountains, therefore, were
not a primary, but a secondary consideration. They were a subsidiary
and not a dominant feature of the Treaty. They-were to strengthen
and not to weaken. They were introduced to more certainly define
the lisiere and not as a factor to disintegrate and destroy it. The mountains were not invoked by the Russians to be a Frankenstein, to destroy
that which had been already conceded, and which they were called on
to protect. 106
ARGUMENT   OF   THE   UNITED   STATES.
THE CHARACTER AND IDENTITY OF THE MOUNTAINS
TIONS AND THE TREATY.
iS SHOWN BY THE NEGOTIA-
Let us see how the question as to mountains arose, progressed and
culminated. Mr. Canning, in his instructions to Sir C. Bagot of
Jany. 15, 1824, said:
If your excellency can obtain the strait which separates the islands from the mainland as the boundary, the prolongation of the line drawn through that strait would
strike the mainland near Mount Elias—the lowest point of unquestioned Russian
discovery. But if that were too much to insist upon, the one hundred and thirty-
fifth degree of longitude, as suggested by your excellency, northward from the head
of Lynns Harbor, might suffice.
It would, however, in that case be expedient to assign, with respect to the mainland
southward of that point, a limit, say, of 50 or 100 miles from the coast, beyond which
the Russian posts shoald not be extended to the eastward. We must not on any
account admit the Russian territory to extend at any point to the Rocky Mountains.05
Thus he expected Russia to have a substantial strip of land on the
continent. In this he followed the suggestion of the Hudson's Bay
Company.b
The earlier propositions of Sir Charles Bagot made no reference
whatever to mountains. Their first introduction was in the Russian
counterdraft as follows:
To complete the line of demarcation and render it as distinct as possible, the
plenipotentiaries of Russia have expressed the desire to make it follow Portland
Channel up to the mountains which border the coast.
From this point the boundary would ascend along those mountains, parallel to the
sinuosities of the coast, as far as the one hundred and thirty-ninth degree of longitude (meridian of London), the line of which degree, prolonged northward, would
form the ulterior limit between the Russian and English possessions, to the north as
well as to the east.c
This language is a clear demonstration as to the mountains had in
view:
1st. They were " to complete the line of demarcation and render it
as distinct as possible."
2nd. The line was '' to follow Portland Channel up to the mountains, "e
3rd. It was to ascend along the mountains parallel to the sinuosities
of the coast.
«U. S. C. App., 148.
&U.'S. C. App., 150.
'U. S. C. App., 158. ARGUMENT   OF  THE   UNITED  STATES
107
This showed the direction the line was expected to take, to attain
the mountains referred to, and that it was to be prolonged in the same
direction up to the mountains. To reach the mountains proposed by
Great Britain the line runs almost at right angles to this. The
British proposal does not complete the line of demarcation and render
it as distinct as possible. On the contrary, it constantly disrupts the
line and is so uncertain that it depends for the identification of mountains fulfilling the terms of the treaty, upon the most labored, intricate and elusive demonstration.
The only mountains on the map that in any way fill these conditions, are those which are depicted as a continuous chain extending
from the northeast of the head of Portland Canal, parallel with the
coast, around Taku Inlet and Lynn Canal, to the 139th degree of
longitude. The language exactly describes the picture shown by the
maps, the word "sinuosities" being used to denote a general and not
a minute conformation. It was a most attractive and natural boundary,
and this is a persuasive argument in favor of the conclusion that it
alone was meant.
The reason given by the Russian .plenipotentiaries for running the
line along the mountains appears in the succeeding paragraph of the
contre-projet as follows:
The principal motive which constrains Russia to insist upon sovereignty over the
above-indicated lisi&re (strip of territory) upon the mainland (terre ferme) from
Portland Channel to the point of intersection of 60° latitude with 139° longitude is
that, deprived of this territory, the Russian-American Company would have no
means of sustaining its establishments, which would therefore be without any support (point d'appui) and could have no solidity.a
That Sir Charles Bagot understood exactly what the Russian negotiators had in mind in referring to the mountains is plain, for, in his
amended proposal, he says:
Since it has been decided to take as a basis of negotiation the mutual advantage of
the two countries, it should be noted, in answer to the proposal made by the
Russian plenipotentiaries, that a line of demarcation drawn from the southern
extremity of Prince of Wales Island to the mouth of Portland Channel, thence up
the middle of this channel until it touches the mainland (terre ferme), thence to
the mountains bordering the coast, and thence along the mountains as far as the
139° degree longitude, etc. &
«U. S. C. Api
4574—03 8
»U. S. C. App., 159.
V 108 ARGUMENT   OF   THE   UNITED   STATES.'
He manifestly looked at the map and saw the mountains proposed
by Russia which would be reached by a line that would follow
Portland Channel up to the mountains.which border the coast, "and
thence would proceed as far as 139° longitude." He made no objection to the particular mountains clearly indicated, but in his amended
proposal ignored the suggestion of Russia as to the mountains and
proposed to run the line "parallel with the sinuosities of the coast,
and always at a distance of ten marine leagues from the shore. "a
In their observations upon his amended proposal, the Russian plenipotentiaries set forth distinctly their reasons for a mountain boundary
as follows:
The motive which caused the adoption of the principle of mutual expediency to
be proposed, and the most important advantage of this principle, is to prevent the
respective establishments on the northwest coast from injuring each other and
entering into collision.
The English establishments of the Hudson's Bay and Northwest companies have
a tendency to advance westward along the 53° and 54° of north latitude.
The Russian establishments of the American Company have a tendency to descend
southward toward the fifty-fifth parallel and beyond, for it should be noted that, if
the American Company has not yet made permanent establishments on the mathematical line of the fifty-fifth degree, it is nevertheless true that, by virtue of its privilege of 1799, against which privilege no power has ever protested, it is exploiting
the hunting and the fishing in these regions, and that it regularly occupies the
islands and the neighboring coasts during the season which allows it to send its
hunters and fishermen there.
It was, then, to the mutual advantage of the two Empires to assign just limits to
this advance on both sides, which, in time, could not fail to cause most unfortunate
complications.
It was also to their mutual advantage to fix these limits according to natural
partitions, which always constitute the most distinct and certain frontiers.
For these reasons the plenipotentiaries of Russia have proposed as limits upon the
coast of the continent, to the south, Portland Channel, the head of which lies about
(par) the fifty-sixth degree of north latitude, and to the east the chain of mountains
which follows at a very short distance the sinuosities of the coast.&
Thus they wanted a natural partition, and distinct and certain
frontiers. For this reason they proposed Portland Channel, a body
of water doubtless supposed to be sufficiently certain, whose head was
known to end about the 56°, as the limit to the south (using the term
in a general sense and not to give the direction with exactness), and
i «U. S. C. App., 159. " - b u. S. C. App., 161. ARGUMENT   OF   THE   UNITED   STATES.
109
"to the east the chain of mountains which follows at a very short
distance the sinuosities of the coast."
Here, then, is a still more accurate designation of the mountains
had in view. It had already been indicated that the line running up
Portland Channel was to be carried on up to the mountains which
were meant. Here is a further specification. It was a "chain of
mountains which follows at a very short distance the sinuosities of the
coa^jt."
■ This chain was to be the boundary on the east. Could anyone
propose a general southern boundary with a fixed termination, and
then describe from that point a general eastern boundary, fixed
by a chain of mountains as a natural monument, and expect that
in drawing the eastern boundary the line would run almost west to
reach distant mountains instead of starting north along the nearest
mountains for such eastern boundary, and this, too, with nothing
to show that such a remarkable method was to be pursued?
How much less is such a hypothesis to be accepted when it is shown
that, whether it actually existed or not, the mountains referred to had
for the negotiators and to their minds a location on an eastern line,
beginning approximately at the point which had been fixed as the termination of the southern line. The inquiry is whether or not they
could have meant the mountains now claimed by Great Britain as the
line. It can be shown that they did not mean them, if it be shown
that they meant other mountains situated in a different place and with
characteristics essentially different, so far as their relation to the main,
and accepted theory of the treaty, was concerned. If they contracted
with reference to mountains, supposed to exist at a certain locality,
and if they attributed to these ideal mountains characteristics which
were essential, and controlling considerations in their selection, then
if on inquiry they do not exist, other mountains totally different in
these respects can not be substituted for them. If these other mountains are located far from the vicinity where the ideal mountains were
supposed to exist, if they are not such mountains as were contemplated, if they bring about a result in conflict with that sought to be
attained, by an agreement made with reference to the ideal mountains,
then upon what principle of reason or justice can it be claimed that
they should be so substituted?
If the line, to reach them must run, a great many miles from where 110
ARGUMENT   OF   THE   UNITED   STATES.
it would have run, to reach the ideal mountains, if, instead of being a
chain such as these ideal mountains were supposed to be, they are
sporadic, disconnected peaks, or even formations of some extent, with
some semblance of continuity, if, instead of forming a generally uniform barrier, which was continued around, and generally parallel with
all of the coast, they, except for comparatively short stretches, are
discontinued, and, instead of being parallel to, are perpendicular to
large extents of the coast, then merely because they are mountains,
and the other mountains do not exist, they cannot be substituted for
them.
The negotiations were broken off without anything further being
said as to the mountains.
In a letter of April 11,1824, to Mordvinof, Count Nesselrode makes
plain what character of protection Russia demanded.    He said:
For this only one expedient presents itself: to establish at some distance from the
coast a frontier-line which shall not be infringed by our establishments and trappers,
as also by the hunters of the Hudson's Bay Company. . The Plenipotentiaries on
both sides equally recognized the necessity of this measure; but the width of the
coast-line necessary for the safe existence and consolidation of our Colonies, the
direction of the frontier, and even its starting point on the Continent of America,
still form subjects of negotiation, and the British Ambassador has declared that for
.continuing them he must seek new instructions from his Court. I shall not repeat
that in these negotiations with England we took, and will continue to take, into
equal consideration on the one side the requirements and interests of the establishments of the Russian-American Company, and, on the other, the degree of its rights
of possession in the interior of the Continent of America, and the measure of the
methods for firmly securing to the Company the possession of these territories.
As I have said above, for the peaceful existence of our Colonies more than all is it
necessary to determine with accuracy the frontier, the extent of the country between
the coast, and this frontier must be sufficient and be in correspondence with the
condition to what these establishments will, in all probability, in time attain, and
be their means of own defence. a
He says, it is necessary to determine the frontier with accuracy, and
that it must be a sufficient defence not only for present, but for future
establishments.
We now advance the next step, as shown by the record, toward a
definite designation as to what the Russians had in view in their pro-
posalas to the mountains, and how Mr. Canning understood it.
aU. S. C. App., 167.
V ARGUMENT   OF   THE   UNITED   STATES. Ill
On May 20, 1824, in a letter from Count Lieven to Count Nesselrode, he said:
Your excellency will notice by Mr. Canning's dispatch that the English Government agrees to accept the terms last proposed by our court, and that Sir Charles
Bagot is about to receive authority to sign, upon these bases, the convention which
will permanently settle the state of our frontiers in America. The conditions placed
at the discretion of the British ambassador on this point will probably not appear to
the imperial ministry of a nature to diminish the value of this concession.
They consist:
(a) Of a more definite description of the limits within which the portion of territory obtained by Russia on the continent is to be inclosed.
The proposition of our court was to make this frontier run along the mountains
which follow the windings of the coast to Mount Elias. The English Government
fully accepts this line as it is laid off on the maps; but, as it thinks that the maps
are defective and that the mountains which are to serve as a frontier might, by leaving the coast beyond the line designated, inclose a considerable extent of territory,
it wishes the line claimed by us to be described with more exactness, so as.not to
cede, in reality, more than our court asks and more than England is disposed to
grant.«
The English government agreed to accept the terms last proposed
by Russia. These terms were, in order to render the line as distinct
as possible, to make it "follow Portland Channel up to the mountains,
which border the coast," and thence to "ascend along those mountains
parallel to the sinuosities of the coast, as far as the one hundred and
thirty-ninth degree of longitude."6
They had explained in their observations that they meant by mountains, "the chain of mountains which follows at a very short distance
the sinuosities of the coast." Therefore the English Government
understood it was a chain of mountains, and that it followed the
windings of the coast. It has been shown that by coast they all
understood the coast claimed by Russia, the whole extent of the
northwest coast, north of 54° 40'. It was a particular chain which
was to fix the "line as it is laid off on the maps." The chain as laid
down on the maps meets all of the conditions had in view. There is
only one chain shown.c
This chain runs generally parallel to the sinuosities of the coast, as
they understand that word. It formed a complete and continuous
natural barrier, except where there might be passes or rivers.    Can
«U. S. C. App., 178. &U. S. C. App., 158. cjj. s. C. App., 161. 112 ARGUMENT   OF   THE   UNITED   STATES.
there be a doubt that these are the mountains, and that they were
understood to run to the interior of the heads of all bays and inlets?
Can it be said that the negotiators meant, any mountains in the
region of the coast although they did not form a chain, mountains
that ran perpendicular to any of the coast, mountains that did not
form a substantially continuous barrier?
They knew that there were mountain cliffs depicted as rising right
up from the coast, that there appeared a mountain elevation, and
mountain peaks far to the seaward of this supposed chain. They
knew that this chain did not purport to represent any such mountains.
Then how can it be said that they contracted with reference to
such mountains, or that, if what they contracted with reference to
does not exist, we must perforce go to what does exist, although it is
plain that they did not contract with reference to it, and although it
would bring about a result essentially irreconcilable with what they
had in mind, which in its essential feature that Russia should get
all of the coast, was already understood and agreed to?
The mountains were a mere incident. They were to serve as a con-e
venience to give security and definiteness to what was fully agreed to.
Misled by maps they thought that these mountains would serve their
purpose. They never intended them to defeat it, and they never contracted in reference to any mountains that could defeat it. The fact
that they contracted with reference to these mountains, which ran
around all of the coasts, is, whether such mountains existed or not, a
proof of the contention that by coast they meant that coast running
around all interior waters, and that the line was to be drawn parallel
to the sinuosities of such coast.
This is made clear by the objection made by Mr. Canning.' He
thought the maps defective, and that " the mountains which are to serve
as a frontier might by leaving the coast beyond the line designated,
inclose a considerable extent of territory," and more than w7as
intended. The mountains were those shown on the maps running
around all the coast, but they might leave "the coast beyond the
line designated," that is on the maps, and so he wanted to guard
against it. He then sought to make a change to the seaward base
of the mountains. In his letter to Sir C. Bagot of July 12, 1824,
he said:
After full consideration of the motives which are alleged by the Russian Government for adhering to their last propositions respecting the line of demarcation to ARGUMENT   OF   THE   UNITED   STATES.                          113
be drawn  between  British  and  Russian occupancy on the northwest coast of
America, and of the comparative inconvenience of admitting some relaxation in the
terms of your excellency's last instructions, or of having the question between the
two governments unsettled for an indefinite time, His Majesty's Government have
resolved to authorize your excellency to consent to include the south points of
Prince of Wales Island within the Russian frontiers, and to take as the line of
demarcation, a line drawn from the southernmost point of Prince of Wales Island
from south to north through Portland Channel, till it strikes the mainland in
latitude 56; thence following the sinuosities of the coast, along the base of the
mountains nearest the sea to Mount Elias, and thence along the one hundred and
thirty-ninth degree of longitude to the Polar Sea. a
The line is still to follow " the sinuosities of the coast" from where,
drawn through Portland Channel, it strikes the mainland in latitude
56°, but "along the base of the mountains nearest the sea." He does
not speak of a mountain chain, but of mountains and the "base of the
mountains nearest the sea." If this means the mountains nearest the
sea and not the base nearest the sea, then these mountains were not
the chain referred to by Russia. They could not be, for Vancouver
showed in his maps and his narrative that there were mountains to the
seaward of this chain. The mountains were not to run parallel to the
coast. The line was to be drawn " following the sinuosities of the
coast, along the base of the mountains." There is nothing to show
that he ever intended to depart from the hitherto accepted meaning
of the word coast. This line would, if he meant the mountains nearest the sea, have been drawn practically right at the coast, and all of
the way around, and the lisiere would have been a mere fringe with
no substantial footing.    But he further says:
Jn fixing the course of the eastern boundary of the strip of land to be occupied by
Russia on the coast, the seaward base of the mountains is assumed as that limit, but
we have experience that other mountains on the other side of the American continent, which have been assumed in former treaties as lines of boundary, are incorrectly laid down in the maps, and this inaccuracy has given rise to very.troublesome
discussions. It is, therefore, necessary that some other security should be taken that
the line of demarcation to be drawn parallel with the coast, as far as Mount St.
Elias, is not carried too far inland.
This is done by a proviso that that line should in no case (i. e., not in that of the
mountains, which appear by the map almost to border the coast, turning out to be
far removed from it), be carried further to the east than a specified number of leagues
from the sea. The utmost extent which His Majesty's Government would be disposed to concede would be a distance of ten leagues, but it would be desirable if
your excellency were enabled to obtain a still more narrow limitation, a
a U. S. C. App., 181. 114
ARGUMENT   OF  THE   UNITED   STATES.
This more specific instruction shows that he probably had not meant
in the first part of the letter to suggest different mountains from those
before considered, but that he probably meant the seaward base of the
chain depicted, and not the base of those broken mountains nearest
the sea. His reference to the map shows that he must have referred
to this chain. He was not seeking to get nearer the coast or to obtain
any part of the coast, but to guard against going too far into the interior. He feared that "the line of demarcation to be drawn parallel
with the coast" if drawn on those mountains, which, as shown on the
maps, satisfied the condition as to parallelism to the coast, might on
account of the mistake in location, be further from the coast than they
appeared. He wanted other security, and provided that "the line
should in no case (i. e-., not in that of the mountains, which appear by
the map almost to border the coast, turning out to be far removed
from it) be carried further to the east than a specified number of
leagues from the sea." He referred to the chain of mountains which
Russia meant and said that these mountains appeared almost to
border the coast. He shows that he was willing to give, if necessary,
a lisiere ten leagues wide. His draft convention shows the kind of
mountains he meant.    It says:
* * * the line of frontier between the British and Russian possessions shall
ascend northerly along the channel called Portland Channel, till it strikes the coast
of the continent lying in the 56th degree of north latitude. From this point it
shall be carried along that coast in a direction parallel to its windings, and at or
within the seaward "base of the mountains by which it is bounded, as far as the 139th
degree of longitude west of the said meridian.«
The line is to be drawn "till it strikes the coast of the continent
lying in the 56th degree." It "shall be carried along that coast parallel to its windings, and at or within the seaward base of the mountains by which it is bounded." That is, the mountains which bound
that coast. The line must first be parallel to the windings of the
coast and at the base of the boundary mountains, whether they are
parallel to the coast or not. The mountains are not to control the
parallelism. Nothing but the coast is to control it. If mountains
trend across the coast line, yet the line is to follow the windings of
the coast and along the base of the mountains and is not to follow the
mountains across the coast and interior waters. Doubtless he meant
the mountains already referred to which, as shown by the map, in
«U. S. C. App., 183. ARGUMENT   OF   THE   UNITED   STATES.
115
their general trend bounded all of the coast, including in coast, such
coast as that at the head of Portland Channel, which he in that connection expressly designated as coast.
If he meant the mountains nearest the sea, or those bounding the
sea, he never sought in any way to press the idea, and clearly abandoned it when it was rejected by Russia and he agreed to the language embodied in the treaty.
It appears from a letter from Mr. Canning to Sir Charles Bagot
of July 24, 1824, that he had communicated to Count Lieven a draft
convention made by him, with a request that he would note any points
in it upon which he conceived any difficulty likely to arise, or any
explanation likely to be necessary. He enclosed to Sir Charles a
memorandum made by Count Lieven, and said:
Your excellency will observe that there are but two points which have struck
Count Lieven as susceptible of any question. The first, the assumption of the base
of the mountains instead of the summit as the line of boundary; the second, the
extension of the right of the navigation of the Pacific to the sea beyond Behring's
Straits.
As to the first, no great inconvenience can arise, from your excellency (if pressed
for that alteration) consenting to substitute the summit of the mountains instead of
the seaward base, provided always that the stipulation as to the extreme distance
from the coast to which the lisiere is in any case to run be adopted (which distance
I have to repeat to your excellency should be made as short as possible), and provided a stipulation be added that no forts shall be established or fortifications
erected by either party on the summit or in the passes of the mountains. a
There is not the least intimation here that Mr. Canning was talking about any different mountains from those proposed by Russia.
If he had proposed different mountains Count Lieven would certainly have been struck by it, and he says expressly that only two
points struck him. He shows that he knew that Count Lieven
understood his proposition as simply "the assumption of the base
of the mountains instead of the summit as the line of boundary,"
and that he was not proposing any mountains different from those
previously indicated by Russia.
Count Lieven certainly understood that he referred to the "chain
of mountains" already designated and not to some different mountains.    In a letter to Count Nesselrode, July 13, 1823, he says:
As regards the frontier of the respective possessions to the south of Mount Elias,
Mr. Canning makes it run along the base of the mountains which follow the sinu-
«U. S. C. App., 187-188. 116
ARGUMENT   OF   THE   UNITED   STATES.
osities of the coast. I thought it my duty to represent to him that when a chain
of mountains is made to serve for the establishment of any boundary whatever, it
is always the crest of those mountains that forms the line of demarcation, and that,
in this case, the word "base," from the vague meaning attached to it, and the
greater or less extension which may be given to it, did not appear to me adapted to
protecting the delimitation in question from all controversy, a
This is further shown by his memorandum on the North-West
Coast Convention, as follows:
The plan of the agreement drawn up by the English cabinet makes the boundary
line of the Russian and English possessions on the northwest coast of America, south
of Mount Elias, run along the base of the mountains which follow the sinuosities of the
coast. It is to be observed that, as a general rule, when a chain of mountains serves
to fix any boundary line, it is always the summit of the mountains which constitutes the line of demarcation. In the case now under consideration, the word basef
because of its indefinite meaning and the greater or less expansion that can be given
to it, seems hardly of a nature to fix the boundary line beyond all further question,
for it is certainly not among the impossibilities, in view of the uncertain ideas yet
prevalent in regard to the geography of these regions, that mountains chosen for
boundary lines should extend, by an imperceptible declivity, to the very edge of
the coast. &
In this memorandum he says, that according to the plan of the
English Cabinet the line is "to run along the base of the mountains
which follow the sinuosities of the coast." If he had understood
that this was a different set of mountains, he certainly would have
commented on it.    He proceeds in the next sentence *to  say that,
When a chain of mountains serve to fix any boundary line it is. always the
summits of the mountains which constitute the line of demarcation.
He has in mind the same "chain of mountains" which Russia had
proposed, and the only question considered is whether or not the
base shall be substituted for "la cirne." He says further, it is not
among "the impossibilities" in view of the uncertain geographical
knowledge, "that mountains chosen for boundary lines should extend,
by imperceptible declivity, to the very edge of the coast." This is
seized on in the British Case, as a strong argument to show that,
he understood that the coast mountains were meant. It proves just
the contrary. If the mountains nearest the sea were understood,
certainly their extending to the very edge of the water would not
have been spoken of as something, "not among the impossibilities."
Such language was entirely applicable to the chain  of mountains
«TJ. S. C. App., 186-187.
&U. S. C. App., 189. ARGUMENT   OF  THE   UNITED   STATES.
117
running from the head of Portland Canal northward, and to the
interior of all the waters. They might well so descend near the heads
of inlets, and might be expected there to approach by an imperceptible declivity to the very edge of the coast. The mountains
nearest to the sea would not be expected to do anything else. What
would be one of the possibilities in one case, would be the rule in
the other case.
In his letter of explanation to Mr. Canning of Aug. 12, 1824, Sir
Charles Bagot, in discussing the negotiations, differences, propositions
and counter-proposition, never made any allusion whatever to the
mountains, although in the "Contre Draft of the Russian Plenipotentiaries," which he transmitted, all reference to the mountains had
been eliminated, and they went back to his original proposition of
a line following from its intersection with the 56° of latitude, "cette
cote parallelement a ses sinuosites." They were unwilling to risk
the base of the mountains, and hence professed to abandon the
mountains altogether, in order to secure a strip of uniform width,
as England had proposed. a
Count Nesselrode, in his letter to Count Lieven of Aug. 31, 1824,
referring to his counterdraft, says:
It abolishes the establishment of the mountains as the boundary of the strip
of mainland which Russia would possess on the American Continent, and limits
the width of this strip to ten marine leagues, in accordance with the wishes of
The third explanation with regard to the contre projet is as follows:
In the first paragraph of this article, as in Article II, wTe have suppressed all
mention of the mountains which follow the sinuosities of the coast. It became
useless from the moment that one (of the articles) fixed the width of the strip of
mainland which would belong to Russia in marine leagues.G
This explanation is not entirely consistent with the previous
contention of Russia, as to the desire for a natural mountain barrier,
and manifestly they wanted then, to get away from the demand of
Great Britain, for the line to run along the base of the mountains,
fearing that it might come at points too near the coast.
*U. S. C. App., 190-192. &U..S. C. App., 204. crj. s. C. App., 206. 118
ARGUMENT   OF   THE   UNITED   STATES.
Mr. G. Canning, in his letter to Mr. S. Canning of Dec. 8, 1824,
called attention to this change, as follows:
The Russian plenipotentiaries propose to withdraw entirely the limit of the lisiere
on the coast, wrhich they were themselves the first to propose, viz.: the summit of
the mountains which run parallel to the coast, and which appear, according to the
map, to follow- all its sinuosities, and to substitute generally that which we only
suggested as a corrective of their first proposition.
We cannot agree to this change. It is quite obvious that the boundary of mountains, where they exist, is the most natural and effectual boundary. The inconvenience against which we wished to guard was that which you know and, can
thoroughly explain to the Russian plenipotentiaries to have existed on the other
side of the American continent, wrhen mountains laid down in a map as in a certain
given position, and assumed in faith of the accuracy of that map as a boundary
between the possessions of England and the United States turned out to be quite
differently situated, a discovery which has given rise to the most perplexing discussions. Should the maps be no more accurate as to the western than as to the eastern
mountains, we might be assigning to Russia immense tracts of inland territory,
where we only intended to give, and they only intended to ask, a strip of seacoast.
To avoid the chance of this inconvenience we proposed to qualify the general
proposition "that the mountains should be the boundary, with the condition if those
mountains should not be found to extend beyond ten leagues from the coast." The
Russian plenipotentiaries now propose to take the distance invariably as the rule.
But we can not consent to this change. The mountains, as I have said, are a more
eligible boundary than any imaginary line of demarcation, and this being their own
original proposition, the Russian Plenipotentiaries cannot reasonably refuse to
adhere to it.
Where the mountains are the boundary, we are content to take the summit instead
of the "seaward base" as the line of demarcation, a
Thus he brought Russia back to her original proposition, and
acceded to it, and the reasoning on which it was based. He abandoned the seaward base of the mountains bounding the strip of
coast. He shows that he accepted the original chain, comprehending the entire coast as shown on the maps, that he intended
to give "a strip of seacoast," and that he put the limit against
recession from this coast, not that he ever contemplated getting
any of the coast by adhering to the mountains, but because he
feared that, without this limitation, he might be assigning "immense
tracts of inland territory." It is impossible to predicate any such
fear, if he had contemplated such a mountain line as Great Britain
now contends for, for those peaks were visible from the waters
which had been navigated by Vancouver and had not been depicted
aU.S.C.App., 210-212. ARGUMENT   OF. THE   UNITED   STATES.
119
as a mountain chain. If the coast meant, was the one now contended
for, then such a fear as that expressed by Mr. Canning was a patent
impossibility to him, and all the other negotiators.
The contre-projet submitted in accordance with these instructions by Mr. Stratford Canning provided that:
* * * la dite ligne remontera au Nord (l'Isle Prince of Wales appartenant en
entier a la Russie), le long de la Passe, dite Portland Channel, jusqu'a ce qu' elle
touche a la C6te de terre ferme au 56me degre" de Latitude Nord, depuis ce point ci,
ou la ligne de demarcation touche au 56me degr6, elle suivra le crete des Montagnes
dans une direction parallele a la C6te, jusqu'au 141me degre" de Longitude Ouest
(Melne M6ridien).a
Thus he designates it as "la crete des Montagnes dans une direction parallele a la Cote." The treaty has it, "la crete des montagnes
situees parallelement a la C6te."&
Russia, while not willing to take the seaward base of the mountains as the boundary, was willing to take the crest without any distance limitation, and complained of the insistence of Great Britain.
In his letter to Count Lieven of March 13, 1825, Count Nesselrode
said:
Upon exchanging this instrument for that which is to be delivered to you by the
Court of London, the Emperor wishes you, Monsieur le Comte, to remark to Mr.
Canning that it would have been more in conformity, in the opinion of his Imperial
Majesty, both with the principles of mutual justice and with those of reciprocal
accommodations, to give as a frontier to the strip of coast which Russia is to possess
from the fifty-sixth degree of north latitude to the point of intersection of the one
hundred and forty-first degree of west longitude the crest of the mountains which
follow the sinuosities of the coast.
This stipulation, in fact, would have secured to the two powers a perfect equality
of advantages and a natural boundary. England would have found her profit in it
wherever the mountains are less than ten marine leagues from the sea, and Russia
wherever the distance separating them from it is greater. It seems to us that, in
the case of countries whose geography is still little known, no more equitable stipulation could be proposed.c
Count Lieven reported the reply as follows:
Mr. Canning, while rendering full justice to the intentions which determined the
concessions granted by our court, whose conduct on. this occasion has borne indisputably the stamp of the friendly feelings of His Majesty, the Emperor, toward
England, attempted to justify the persistence of the British Government by assuring
me that it arose solely from a sincere desire to prevent the recurrence of any disagreeable discussion in future, and not from any intention of acquiring an increase
aU. S. C. App., 213.
&U. S. C. App., 3.
. C. App., 22 120 ARGUMENT OF THE UNITED STATES.
of territory or of limiting the extension of the Russian possessions; that the disputes
in which the English Government finds itself engaged at this moment with the
United States Government, on account of a stipulation of the treaty of Ghent similar
to the one proposed by our court, and which likewise fixed a chain of mountains as
the frontier between the possessions of the two States, had shown it all the inexpediency of a delimitation established on this principle, the mountains having been
found to deviate very considerably from the direction given them on the maps which
were thought to be the most correct and the most detailed; that this inexpediency
having presented itself in the case of countries whose geography is much better
known than that of the regions to which the stipulations of the convention of
February 16 (28), last relate, the English Government, in now insisting upon the
fixing of a less vague boundary, thought that it gave a proof of the value which it
attaches to the prevention of even the possibility of a discussion as to the tenor of
the transaction concluded between the two cabinets.a
Thus it appears that all the time they negotiated and contracted I
with reference to a chain of mountains, that the crest of this chain
was to be followed, that the chain was one that was depicted on. the
maps as running around all the coasts, from the head of Portland
Channel to Mount St. Elias, and that the mountains were not insisted
on, with any intention of, acquiring an increase of territory, or limiting the extension of the Russian possessions.
If it appear that no such chain exists, or that, if it may exist, it
lies at no point within ten marine leagues of the coast, is that any
reason for forcing the line to other mountains, which manifestly were
not meant, and which defeat the very reasons which plainly controlled in selecting the chain which, in reference to the coast,
appeared to be suitably located? The correspondence has been
appealed to by both sides and the language of the treaty has been
scrutinized. It will be helpful to inquire what interpretation was
put upon this particular feature of the treaty.
THE EVIDENCE OF THE MAPS ISSUED AFTER THE TREATY AS TO WHAT MOUNTAINS
WERE MEANT BY THE TREATY.
In 1826 Russia issued an Admiralty Chart showing the boundary
line.5 This line is laid down about ten marine leagues from the
general trend of the interior coast. The map does not show any
mountains where the line falls. It shows distinctly mountains right
at the coast, following all of its sinuosities, and other mountains
covering a large part of the territory, situated back of those next to
the sea, with an absolutely clear space between the boundary line,
o-U. S. C. App., 230, 231. & U. S. Atlas, No. 11. ARGUMENT   OF  THE   UNITED   STATES.
121
and all mountains from the head of Portland Channel all the way
round to Mt. St. Elias.
This was an official map issued the year after the Treaty, when
everything was fresh in the mind. The most striking thing on it,
looking to the long negotiations just terminated,. was the boundary
line. The next most striking thing is, that the line is drawn exactly
where the chain of mountains depicted on Vancouver's and other maps,
which were before the negotiators, was located. The next most striking thing is that this chain of mountains is not shown at all on the
map. The next most striking thing is that other mountains are shown
to the seaward of the boundary line, and that the line nowhere
touches them, and cannot, on account of the clear intervening space,
possibly be correlated with them. The declaration of the map, put
into words, is "The mountains next to the sea were not the mountains
meant by the Treaty, and the boundary line is not to be drawn along
the crest or from summit to summit of these mountains or in any way
with reference to them."
The map of ^Arrowsmith issued in 1833, speaks exactly the same
message.a The most conspicuous thing in this map is a note as
follows:
"Note.—Wherever the summit of the Mountains (which are supposed to extend in direction parallel to the Coast) from the 56th
degree of N. Lat. to the point of intersection of the 141st degree of
W. Long, shall prove to be at the distance of more than 10 marine
leagues from the Ocean the limit between the British Possessions and
the line of coast which is to belong to Russia, shall be formed by a
line parallel to the windings of the Coast 'and which shall never
exceed 10 marine leagues therefrom.    See Art. 4th, Treaty 1825."
The line is put back of the "mountains next to the coast" because
they were not "the mountains which are supposed to extend in direction parallel to the coast from the 56th degree of N. Lat. to the point
of intersection of the 141st degree of W. Long."
The map of Brue of 1833 shows a chain of mountains, just as did
the maps which the negotiators used. It also shows mountains to the
seaward of this chain. The boundary is made coincident with the
chain and is entirely disassociated from these other mountains.6
a U. S. Atlas, No. 12
& U. S. Atlas, No. 13. 122
ARGUMENT   OF   THE   UNITED   STATES.
Greenhow's map of 1844 shows the boundary drawn just as in the
Russian Admiralty map and Arrowsmith's map, on a clear space.
It also shows mountains to the seaward of the line, but not so
continuous or so pronounced as the others. The line is drawn back
of all of these mountains.01
The map of De Mofras of 1844b shows the same as that of Brue.
The Russian map of 1861c is to the same effect as that of 1826.
That of Berghaus (1863)d is to the same effect as the Russian map
and that of Vancouver.
The Russian map of 1844 revised to 1864 is the same.*
We have seen what Russia understood, and what disinterested
cartographers understood. Look at the British Admiralty Map
published in 1856 and corrected to 1865.^ It shows a line marked
"Boundarybetween the British and Russian Territory" drawn without
touching a mountain from the time it leaves the mountains at the
head of Portland Channel until it reaches Mt. Fairweather. It also
shows continuous mountains all the way around the coast, and down
to the very water. Between these mountains and the boundary there
is an intervening clear space of many miles in width all the way
around. This map says unmistakably that "The mountains next
to the sea are not the mountains meant by the Treaty. They have
nothing to do with it, and the line must be drawn just as if they
did not exist."
The map of Arrowsmith, printed by order of the House of Commons in 1857,^ shows the boundary line drawn in an absolutely clear
space, about ten marine leagues from salt water, and it also shows
mountains parallel to almost all the extent of the coast of the interior
waters, and other mountains between them and the line, but it does
not touch any of them until it reaches Mt. Fairweather, and moreover
it is separated from them by an absolutely clear space of many miles
in width.
The United States understood all these messages of the maps,'just
as Mr. Middleton understood from Mr. Canning what the Treaty
provided, and so when the first official map was made, under the
direction. of Mr. Sumner, it showed mountains next to the sea all
aU. I
6U, I
cU. !
a-U. !
Atlas, No. 15.
Atlas, No. 16.
Atlas, No. 20.
Atlas, No. 21.
e U. S. Atlas, No. 22.
/ U. S. Atlas, No. 23.
. 0 British Atlas, No. 21. ARGUMENT   OF  THE   UNITED   STATES. 123
the way round, but it also showTed the boundary line far to the
interior of all of these mountains.^
This was the" interpretation of the United States as to what
mountains were meant by the Treaty and, what is even more, significant in the present argument, it is an affirmative and positive
declaration that the mountains next to the sea were not those
meant by the Treaty.
To the same effect, varying only in immaterial details, is the
official map of British Columbia of 1884, and that of the Dominion
of Canada corrected to 1882.*
Here are Russian, Canadian, English, American, and private maps
of well known cartographers, from the year after the Treaty to the
year of the American purchase, and American and Canadian maps
after the purchase, all of them showing the boundary line as it was
understood under the terms of the Treaty, all of them showing mountains next to the sea, and not one of them drawing the line along the
summits of these mountains, but segregating them in such a pronounced and conspicuous way by laying it down with an interval of
clear space of many miles that the line could not possibly be associated
with them.
From the time of the treaty of 1825 down to 1895, a period of 70
years, no official map was ever issued, showing the boundary line
drawn along the summits of the mountains next to the sea, and of the
scores of maps issued during that period by cartographers not one has
been produced that so depicts the line.
If the uniform conduct of the parties most interested, during a
period of seventy years, and the general consensus of the educated
world, publicly declared, could conclude a matter, then there would
be no room for argument on the question'.
THE  STIKINE  RIVER.
DRYAD AFFAIR.
Nine years after the Treaty of 1825, what is known as the Dryad
Affair occurred. The Dryad was a vessel of the Hudson's Bay Company which in 1834 appeared off St. Dionysius, a redoubt constructed
by the Russians near the mouth of the Stikine River. The avowed
purpose of the vessel was to establish a trading post up the Stikine on
aU. S. Atlas, No. 24. & British Atlas, Nos. 31, 32.
4574—03 9 124
ARGUMENT   OF  THE   UNITED   STATES
English territory. Mr. Ogden, who was in charge of the expedition
said in a letter of June 20, 1834, to the Governor of the Russian
Territory:
My.instructions from the Governor of the Honorable Hudson's Bay Co., residing
in Columbia River, are to trade and form an establishment ten marine leagues inland,
in accordance with clause 2nd, art. 4 of Convention entered into between Great
Britain and Russia, &c.a
The Hudson's Bay Company had the privilege, under the Treaty,
of trading in all that country for ten years, and its representatives
certainly knew then, as well as it is known now, that there were
mountains along the Stikine River nearer the sea than ten marine
leagues. They understood, as everybody else had understood, that
the mountains referred to in the Treaty, were not those mountains.
They assumed that they were ten leagues or more from the coast, and
so proposed to make their establishment ten marine leagues from the
coast. If they had believed that the mountains referred to in the
Treaty, were those nearest the sea, then they never would have said
that they were going to "form an establishment ten marine leagues
inland in accordance with clause 2nd art. 4 of Convention".
Mr. Ogden had, during the year 1833, gone up the Stikine River
and had selected the spot where the post was to be established.6
The Russian representatives, acting from motives with which we
are not concerned, prevented the vessel from entering the river. On
account of this action the British Government demanded of the Russian Government indemnity on behalf of the Hudson's Bay Company.
The occasion for this demand was a letter from Pelly, Deputy Governor of the Hudson's Bay Company, addressed to the representative
of Great Britain, in which he stated that, the object of the expedition
was, "to form a trading establishment within the British Territories
at a distance from the ocean exceeding ten marine leagues."6
Lord Durham, in a communication of Dec. 11,1835, to Count Nessel-
rod'e, making claim for damages, refers to the letter of the Governor
of the Hudson's Bay Company, and the complaint that the "Russian
Authorities on the N, W. Coast of America have interfered with an
expedition fitted out under the direction of that Co. for the purpose
of forming a settlement ten leagues up the Stikine River."    He fur-
«U. S. C. App., 269.
b U. S. C. App., 272, 283, 313
'U.S.C. App. ARGUMENT   OF   THE   UNITED   STATES.
125
ther says that "the ultimate object of the expedition was to forma
settlement within the British Territory."a
Other articles of the Treaty were referred to in the correspondence,
but they are not material to the present discussion. It is made clear
that, Russia and Great Britain both understood that, the purpose of
the expedition was to go ten marine leagues up the Stikine, in order
to get to British Territory. This shows that both governments under
stood that, the mountains near the sea were not meant by the Treaty,
for everybody with even the slightest knowledge about that country
knew that the mountains nearest the sea were not ten marine leagues
from the sea. Russia disavowed the acts of its representatives, but
the affair hung on, until it was merged in the lease of the lisiere to
the Hudson's Bay Company.
SURVEYS OF THE STIKINE.
The Stikine River was surveyed by Russia in 1837 and the boundary
was located on a map at a point where it was regarded that under the
Treaty the line would run, and this point was about ten marine leagues
from the coast, certainly far east of the summit of the mountains
nearest to the sea.& This line was located after actual knowledge had
been gained of the mountains within ten marine leagues of the sea,
and in the light of this knowledge, taken in connection with the
provisions of the Treaty, the mountains next to the sea were disregarded. This was an explicit and deliberate interpretation put by
Russia upon the Treaty, so far as the summit of the mountains next
to the sea, and the summits of mountains within ten marine leagues
from the ocean were concerned.
The Russian Government in 1863, on account of a report that gold
had been discovered on the Stikine about the boundary line, had the
river surveyed. A report and map of this expedition was made by
Professor Blake of Yale University, both of which were published by
the United States in 1868/ This map shows mountains on both sides
of the Stikine River from the very mouth of the river all the way up,
above the boundary line as claimed by the United States.
In 1868 Professor Leach, formerly of the English Sappers and
Miners, was employed by the Hudson's Bay Company, to survey
thirty miles inland from the coast on a salt water line, that the Com-
«U. S. C. App., 285, 286.
&U. S. C. App., 514, No. 28.
, S." Atlas, No. 29. 126
ARGUMENT   OF  THE   UNITED   STATES.
pany might be able to build their trading post in British Columbia.a
This shows that the Hudson's Bay Company ignored the mountains
to the seaward of the ten marine leagues.
From 1872 to 1876 on account of the development of gold deposits
in the Cassiar region the trade on the Stikine had grown to such
proportions as to impress both governments with the great importance of establishing the boundary line. As shown, there had been
various surveys, all proceeding upon a plan which completely ignored
the mountains next to the sea, as in any way controlling the location
of the line.    There had been no point fixed by convention.
In 1874 a British Custom House was established on the Stikine River
about where the boundary was supposed to be.
On March 14, 1874, public notice was given by the Collector of
Customs that duty would be collected ""at the boundary post or at
Buck's Bar."6 This location wps not made with reference to the
mountains next to the sea but with reference alone to the ten league
limit.
The Secretary of State, Mr. Fish, understood that this Custom House
was intended to be located on the boundary line, for in a letter to Mr.
Watson, the British Charge, dated May 18, 1874, he speaks of "the
location of a British Customs officer at the boundary line between the
two countries on that river." c
The occasion of this was a remonstrance from citizens of the United
States, on account of "the action of the Canadian officer of the Customs stationed on the boundary line at Stikine River." d
Mr. Watson, on Sept. 29, 1874, at the request of the Earl of Duf-
ferin, forwarded to the Secretary of State, a copy of a minute of
Council in regard to instructions given to the "Collector of Customs
at the Boundary line on the Stikine River."6
The fixing of this boundary line was an independent and deliberate
act of Great Britain. No such line could have been selected on the
theory now advanced as to the mountains next to the sea being those
meant by the Treaty. This was not a conventional line or a provisional line, f
In his letter of Oct. 16, 1876, to Hon. A. Mackenzie, Mr. Justice
Gray spoke of this as a "conventional line" and "a conventional
a U.S. C. C. App., 73.
6.U. S. C. C. App., 61.
cU. S. C. C. App., 64.
au. S. C. C. App., 64.
«U. S. a C. App., 65.
/B. 0. App., 191, 192. ARGUMENT   OF  THE   UNITED   STATES.
127
boundary". The Privy Council, having this letter under consideration, said that there was no such conventional line.a
Sir Edward Thornton followed the error from Justice Gray, in his
letter to Mr. Fish of Jan'y 15, 1877.6 The mistake is clearly shown
by Sir Edward Blake, and the Earl of Carnarvon. Sir Edward
Blake said:
No mention is made in the Memorandum of any agreement or understanding, formal or informal, as to a conventional boundary line pending the ascertainment of
the true line. No such agreement or understanding has ever been made by this
Government or by any one with its knowledge or authority.
There was not, and, indeed, under the circumstances which I have mentioned,
there could not have been any intention to assert the existence, or to suggest the
continuance of any such agreement or understanding.c
Mr. Fish, on September 13, 1875, called the attention of Great
Britain to a report that a site for a town was about to be located by
British subjects on the Stikine, within the territory of the United
States, and on Oct. 22, 1875, the Earl of Carnarvon wrote to the Earl
of Dufferin saying:
I have the honor to transmit to Your Lordship a copy of a despatch from Her
Majesty's Minister at Washington, reporting a conversation with Mr. Fish respecting the settlement of some British subjects at a point near the Stikine River, alleged
by American officers to be within the United States territory and below the British
Custom House, which is also stated to be within the United States boundary.
In view of the circumstances represented byJVEr. Fish it appears to Her Majesty's
Government desirable that an officer should be sent by your Government or by the
Provincial Government $i British Columbia to ascertain whether the settlement
alluded to and the British Custom House are within British Territory, a
This letter of Sir E. Thornton said;
The point was stated to be below the British Custom House on the Stikine, which
Custom House was also supposed to be within the United States territory, that is,
within the ten marine leagues from the coast at which the boundary should be in
accordance with the provisions of the 4th Article of the Convention of February .
28th, 1825, between Great Britain and Russia. e
On the 23rd day of November, 1875, the Committee of the Privy
Council reported that:
In the discussion.of this subject between Sir Edward Thornton and Mr. Fish, the
latter suggested that as the weight of the evidence seemed at present to be in favor
of the point in question being in United States territory, the settlers should be called
tB. C. App., 197
>B. C. App., 202
'B. C. App., 222.
au. S. C. C. App., 67.
«U. S. C. C. App., 68. 128
ARGUMENT   OF   THE   UNITED   STATES.
upon to suspend operations for the present and until the question of territory could
be decided, a
The report further said:
The Stikine River intersects the international boundary, in the vicinity of the 57th
degree of north latitude, with so intricate a basis for determining the true line, it
appears to the Committee that a satisfactory solution of the question can only be
arrived at by accurately defining the point where the boundary intersects the Stikine
River, and as settlements are likely to increase along the banks of that river, it seems
to be obviously in the interests of both countries that the true line should be defined
at this point without further delay.&
The Privy Council recited the boundary provisions of the Treaty in
the report, and then stated that "The Stikine River intersects the
international boundary in the vicinity of the 57th degree of north latitude.11 The summits of the mountains nearest the sea are not in the
vicinity of where the 57th degree crosses the river, and could not have
been regarded as the mountains meant by the Treaty, for if they had,
then no such crossing could have possibly been indicated.
A British trader by the name of A. Choquette was, Sept. 19, 1876,
notified by the United States authorities that he was within United
States territory,0' and this, together with the Peter Martin case, led to
a survey by the Canadian authorities for the purpose of determining
the boundary line.
The order against Choquette was suspended pending the survey.
On Jan'y 15,. 1877, Assistant Adjutant General Wood, in a letter to
General Howard said:
As a matter of fact, there is no well defined range of mountains extending in direction parallel to the coast.
A rugged, broken region extends back from salt water a considerable distance; the
mountain peaks visible seeming to stand in groups or clusters; a confused mass of
hills of varying altitudes "from three thousand to six thousand feet, the highest
being, perhaps, in the vicinity of the point marked Grand Canon, in latitude about
57° 207 N."
It would appear that the Russian Government had caused a monument to be set
up on the Stickeen, marking a point ten marine leagues from the coast, and that
this monument was, or is located some one hundred and thirty-five (135) miles from
the mouth of the river, in the vicinity of a point called Shakerville.a
This letter enclosed one from Captain Jocelyn of Oct. 1, lsll
which he said:
Attention is respectfully invited to the map herewith enclosed, and to the p
siohs of the treaty between the United States and Russia proclaimed June 20, ]
. in
rovi-
«U. S. C. C. App., 68.                             <?U. S. C. C. App., 70.
»U. S. C. C. App., 69.                            au. S. C. C. App., 79. ARGUMENT   OF   THE   UNITED   STATES.
129
A line ten leagues from the ocean, running parallel to the windings of the coast,
would cross the Stickeen River nearly at the point indicated. I have personally
examined the country near the river from its mouth to the head of steam navigation
and was impressed with the difficulty that would arise in determining a continuous
summit of the Coast mountains. There is no range or chain, but rather for the entire
distance of over one hundred miles, and to the right and left as far as the eye can
reach, a confused mass of mountain peaks with elevations from three thousand to
six thousand feet, the highest being perhaps in vicinity of the point marked "Grand
Canon" in latitude about 57° 20'.«
So far as the record shows this comment was the first ever made
upon the irregular character of the mountain formation, showing
no chain or range, but "a confused mass of mountain peaks." This
description thus made is entirely sustained by the evidence hereinafter
referred to. The character, of the mountains accounts for the fact
that, all efforts made up to that time to locate the boundary line, ignore
those mountains, as not affecting the location.
HUNTER SURVEY AND PETER MARTIN AFFAIR.
The facts in the Peter Martin case have been fully set forth in the
case of the United States. The effect of the Hunter survey is sought
to be avoided in the British Case. Mr. Hunter was instructed by Mr.
Dennis, the Surveyor General, to proceed to the Stikine River to
make a survey of it and " such a reconnaissance of the country embracing the coast range of mountains in the immediate vicinity as will
enable you to ascertain, with approximate accuracy, the boundary on
the said river between the Dominion and the territory of Alaska."6
He was furnished with an extract of the treaty describing the boundary, and other data.    Mr. Dennis certainlv did not mean by "the
coast
range of
mountains"
my such irteg
ular pea
ks as ar<
3 now
con-
tende
d for, or
the s
ummits
of the mount
ains nex
t to the
sea, fo
r he
proce
eds, in g
Lying
his spec
ific directions,
after ca
dling att
Bntion
to a
tracin
g made 1
ry Chief Justi
ce Begbie, to
say:
You
will make
it you
r duty to
verify this sketel
as to the
dotted reo
line si
iown,
andge
nerally tab
e such
observati
ons as will enabl
e you to
ay dowm, with ap;
>roxi-
mate a
ccuracy, tl
ie cros
sing of th
e river (should 1
he same c
ccur within ten n
arine
leagues of the co
ast) b
y a line, in the words of the Treaty,
"folio win
g the summit
of the
mountains
paral
el to the
3oast." &
He
was dire
cting
his attention to the i
iscertainment of
whether or
not tl
lere wer(
i SUCt
i mount?
lins as the tre
aty prov
ided for
withir
ten
« V. s.
C. C.
App., 80.
&B
C. App. 2
24. 130
ARGUMENT   OF   THE   UNITED   STATES.
marine leagues, but did not assume that these were the mountains
nearest the sea from which a line could be drawn from summit to
summit. . If he had made any such assumption, then these instructions
would have been superfluous.
On the same day Mr. Dennis gave him supplemental instructions
to locate the exact spot where Peter Martin was taken ashore and
where he committed an assault.
Mr. Hunter made his report in June, 1877.a
Mr. Dennis, in the opening of his instructions, referred specifically
to the Coast Range. Mr. Hunter shows that the Coast Range was to
the east of Portland Channel. After showing the location of this
range, he says:
Another range is supposed to originate somewhere in the neighborhood of- Portland Channel, in latitude 55° N. and running apparently about parallel to the coast.
Its axis crosses the Stikine River, 24f miles from its mouth; Mount Whipple, the
highest peak on the River lies on this axis. It will be more particularly referred to
hereafter.
From latitude 58° 40/ N., or 150 miles to the north of the Stickeen, the coast line
for 200 miles farther northward has been accurately surveyed by the United States
coast survey, and the position of the adjacent mountain range determined and laid
down on the charts.
The summit of this range is showm to run parallel to the coast, distant from it 13
to 20 miles.
The position and altitude of five of the highest peaks were accurately determined. &
The mountains surveyed by the United States Coast Survey which
he calls a range "parallel to the coast distant from it 13 to 20 miles"
are the mountains which are parallel to the coasts of the bays and
inlets and the distance given is from such coasts. He says of these
mountains:
There is reason to believe that the range from the southward, crossing the Stikine River, as above described, runs northward along the coast till merged in the
St. Elias range. Its snowy summits can be seen stretching for many miles along
the seaboard to the north. It is undoubtedly the range of "mountains parallel to
the coast" referred to in the Convention. c
He further says:
From the junction of the Iskoot with the Stikine, looking nearly due south, down
the valley of the latter can be seen, distant 12 miles, a range of high snowy summits stretching across the bearing of the river.    These mountains appear rounded,
«B..C. App., 225.
»B. C. App., 227.
cB. C. App., 227—228. ARGUMENT   OF  THE   UNITED  STATE!
131
massive and higher th
valley, which here ope
bv high mountains anc
; met with, and seem to form a barrier across th(
> a wide basin, enclosed on the east and west sid(
This basin lies near the general axis of the range which has been before referred
to as the mountains parallel to the coast.
The line marked on the river as the boundary between the Dominion and the territory of the Alaska crosses the lower end of the basin above described, and will
be more particularly noticed below, a
Thus he fixes the general axis of the " range of mountains parallel
to the coast referred to in the Convention" at 24.74: miles from the
coast by the river and at 19.13 at right angles. The line now insisted
on is 6 miles from Point Rothesay and is 18.74 miles below the line
indicated by him as in the words of the Treaty " following the summit of the mountains parallel to the coast."6
He fixed the ten marine league line 53.99 miles up the river from the
coast. He located the point where Martin committed the assault on
the shore thirteen miles from the mouth of the Stikine and eight and
a half miles within Alaska.
The British Case says of the survey:
Having regard to the proviso subject to which this arrangement was accepted by
the United States' Government, Mr. Hunter's survey has no binding effect. The
incident is, however, of importance in that it brought to the attention of the United
States' Government the manner, in which it was considered on the side of Great
Britain the Treaty ought to be applied, c
It has a very different import. It did not indicate in the remotest
way that Great Britain was then putting forward a contention that
the coast meant in the Treaty was the general coast and not the coast
of all of the interior waters. No such conception could be formed
from anything suggested by Hunter's report. His report, if it is to
be taken as indicative of the views of Great Britain, clearly shows.
that, with a full knowledge of the mountains along the Stikine, from
the mouth up to the very mountains now taken for fixing the line
across the Stikine in the British Case, these mountains were deliberately discarded as not being those meant by the Treaty, and a range
far to the interior was taken as the one parallel to the coast meant by
the Treaty.
'B. C. App., 229.
'B.C. App., 230.
cB. C, 34. 132
ARGUMENT   OF. THE   UNITED   STATES.
The Government of the United States had demanded the release of
Martin.    The communication stated that—
On the 12th of September they .made a landing at a point on that river, only a few
miles from its mouth, within the territory of Alaska, for the purpose of cooking
food."
and that thereafter the assault was committed. It was represented
that he should not be tried for the offense, it having been committed
within the jurisdiction of the United States. The release was never
demanded on the ground that he was conveyed through United States
territory by being carried down the river.
In a letter of Dec. 6, 1876, from Mr. Fish to Sir E. Thornton, he
refers particularly to the "presence of the prisoner upon American
soil".6
Again in his letter of January 10, 1877, Mr. Fish said to Sir E.
Thornton that the testimony showed that "the assault occurred in
what is considered to be Alaska territory"/
Lord Dufferin, in a letter of Feb. 12, 1877, to the Earl of Carnarvon,
referred to the correspondence of Mr. Fish."   He also said:
It is alleged in the prisoner's behalf that the spot at which the assault was made
is not within Canadian territory, but is part of the soil of Alaska, a
As shown, Mr. Hunte~r was requested to fix and did fix the precise
spot where the landing was made. The British" authorities among
themselves discussed the right to transport Martin down that part of
the Stikine within Alaska, and came to the conclusion that their right
of navigation was limited to commercial purposes.6
Mr. Edward Blake, Minister of Justice, in his report of Feby. 5,
1877, said:
I do not understand Mr. Fish to assert that the transport of Martin via the Stikine
River was a violation of the sovereignty of the United States. On the contrary, he
seems to make no complaint of this, and impliedly, if not expressly, admits the propriety of this act. His position is, that the sovereignty of his country was violated
by what took place on the shore of the river, in case the locality should turn out to
be within the limits of the United States.
In this view, I think it the more prudent course, in replying to Mr. Fish, to deal j
only with the affair on the shore; assuming, without any special reference to the
matter, the legality of the transport by the river./
«B. C." App., 186.
&B.'C. App., 194.-
cB. C. App., 198.
d B. C. App., 203.
«B. C. App., 201.
/B. C. App., 210. ARGUMENT   OF   THE   UNITED   STATES.
133
The Earl of Carnavon, in a communication of August 16, 1877, to
the Earl of Dufferin, said:
In communicating with the United States authorities, it should be stated that
Peter Martin is surrendered on the ground that he was a prisoner conveyed through
United States territory. a
But the Minister of Justice of Canada, in a report of September 19,
1877, said:
■ I recommend, however, that, in communicating the result to Her Majesty's Min-
.ister at Washington for the information of the Government of the United States, it
>' be stated that the ground of the action is that after enquiry it appears that Martin
.was a prisoner conveyed through United States territory, without stating whether
the territory referred to is the river or the shore, so that the very important general
questions involved may be left as far as possible still at large. &
The communication notifying the Government of the United States
simply said:
With reference to the note which Sir Edward Thornton addressed to Mr  Fish
on the 11th of .last January, I have the  honor to inform you that I have just
■ learned from the deputy governor of Canada that the Dominion Government has
concluded the inquiry into the circumstances of the case, and has decided upon
I setting Peter Martin at liberty without further delay. P
- So it stands that the demand for release was made on the ground
■that the offense for which he was tried was committed in Alaska.
The exact spot was determined by survey, and the Government of
the United States was notified simply of the release without any
explanation or qualification.
In the way the issue was made and the incident was closed, there
clearly was an interpretation; we may go further and say a solemn
adjudication, by these two governments that the spot where Martin
committed the assault, which was far above the mountain summit line
now proposed to be drawn, was within the jurisdiction of the United
States. This makes the prqposed line at the Stikine an impossible
line, and those mountains selected out of the general congeries impossible boundary mountains. After this proceeding the line Cannot be
moved belowT that point, and the mountains selected below it must be
discarded.
The Hunter line was agreed to as a provisional boundary by the
United States.
Sir Edward Thornton, in a letter to Mr. Evarts of January 19,
«B. C. App., 231.
»B. C. App., 233.
'U. S. C. C. App., 87, 134 ARGUMENT   OF  THE   UNITED  STATES.
1878, enclosed a copy of Hunter's map, and asked whether or not the
Government of the United States would accept it, until some exact
line could be determined. This was agreed to as a temporary
arrangement, provided that it be not construed as affecting in any
manner the rights under the Treaty, whenever a joint survey should
be made.a
The British Case is right in saying that the proviso leaves Mr.
Hunter's survey without effect, so far as permanently fixing the
boundary line; but the survey and the action on it are of effect as
showing the interpretation put by the parties upon the treaty so far
as rejecting the mountains nearest the sea are concerned, and as establishing that the point where the assault was committed was clearly
within Alaska.
SUCH   MOUNTAINS   AS   THOSE   CONTEMPLATED   IN   THE   TREATT   DO   NOT
EXIST  WITHIN  TEN  MARINE  LEAGUES  OF  THE  OCEAN.
Reference has just, been made to the information given in regard
to them in the letter of Asst. Adjutant General Wood of January
15, 1877.
Mr. Dall, in his letter to Dr. Dawson of April 24. 1884, states
that the chain of mountains shown on Vancouver's chart has no
existence.6 The Marquis of Salisbury, in instructions to the British
commissioners in 1898, said:
From Portland Channel to Glacier Bay there is no such continuous range of
mountains running parallel to the coast as the terms of the Treaty of 1825 appear to
contemplate. c
Mr. Selwyn, Director of the Geological and Natural History Survey of Canada, says that—
so far as has been observed, there is no single culminating or dominant range, which
which can be traced for any considerable distance, d
The testimony of eight of the United States civil engineers, who I
have repeatedly been in Alaska on surveying and exploring expeditions, shows that such a chain of mountains within ten marine leagues
from the sea does not exist. They show that the peaks and hills on
the shores of the inlets are in the nature of detached groups, and
that as one goes into the interior there are higher mountains always
to be seen in the interior beyond where actual explorations and sur-
«B. C. App., 241-2. cB. C. App., 298.
^B. C. App., 248. au. S. C. C. App., 257 ARGUMENT   OF   THE   UNITED   STATES. 135
veys have been made. The country is a plateau of ice and snow
from which rise numerous peaks. It is carved into many short
ridges separated by deep valleys, many of which are occupied by
glaciers. The whole region is full of mountains, and is a network
"of short, steep-sided ridges, generally lying at right angles to the
nearest shore, and connected by short saddles. The general appearance is that of a heterogeneous jumble of irregular mountain masses.
In general, the mountains rise abruptly from the sea, and the peaks
increase in height as they recede from the coast. See depositions
of O. H. Tittmann, H. G. Ogden, W. C. Hodgkins, A. L. Baldwin,
J. A. Flemer, H. P. Ritter, J. F. Pratt, and P. A. Welker.«
The affidavits of these civil engineers are in entire accord with the
topographical maps, and photographs of survey of the International
Commission of 1892, and they but elaborate and supplement those
maps and photographs. They also describe the mountainous area
for some distance inland beyond the limits delineated on the maps.
They show that no such chain of mountains as that referred to in
the treaty of 1825 as "la crete des montagnes situees parallelement
a la cote" exists within ten marine leagues of the coast, between
the 56th degree of north latitude and the 141st degree of longitude.
And this is equally true, however you define the word "cote", and
whether it means the shores of the bays and inlets, or whether it
means the general trend of what may be termed the main shore, or
whether it means the actual contact of the great body of the ocean
washing the main portions of the continent.
IT W7AS NEVER THE INTENTION UNDER THE TREATY TO DRAW THE
LINE ALONG THE SUMMITS OF DISCONNECTED PEAKS, AND IT IS
IMPOSSIBLE, ON THE BRITISH THEORY, FOR ANY TRIBUNAL TO
DETERMINE WHICH  OF  SUCH  PEAKS  SHALL  BE  CHOSEN.
If a departure be made from the understanding of the negotiators,
that the line was to be run along the crest of a mountain chain
which was supposed to run from about the head of Portland Channel parallel with the coast, then there is absolutely no guide for
selecting the line from mountain summit to mountain summit. If it
be adjudicated that the line can be run along mountain summits
within the ten marine league limit, then it must be affirmed of it
that it will run from the point of the continent where proceeding
«U. S. C. App., 530-538; U. S. C. C. App., 262-264. 136
ARGUMENT   OF   THE   UNITED   STATES.
up Portland Channel it reaches the 56°, along the crest of the
mountains situated parallel to the coast, to the point of intersection
of the 141° of longitude, and it must further be affirmed that this
line will run along the mountains which the negotiators contemplated.
The negotiators showed that the base of the mountains, along whose '
crest the line must run, might at places extend even to the sea.
Under the British contention a line is to be run along summits of
mountains which almost everywhere come down to the sea, and yet
it must be maintained that these are the mountains that the negotiators had in view.
The negotiators meant the crest of some particular mountains,
and not the summits of mountains generally, that might be situated
over that entire region, with liberty to select arbitrarily here or
there according to individual fancy. If the line is going to be run
from summit to summit, then the side assuming the burden of
selecting, must be able to say which are the summits, with reference
to which the contract was made. If there are many summits situated over that territory, within the ten marine leagues, and the
line can with just as much show of reason be run in a dozen or
more different ways by an arbitrary selection, then it is manifest
that it cannot be said that any particular ones were those meant
by the Treaty, for when the country presents such a formation as
to permit so many conflicting results, it is a demonstration that
there is no such chain, or crest, or parallel mountains, as the
negotiators meant, capable of identification.
The  British  Case,   while  designating   particular   mountains   and I
ridges to be followed, manifests no special predilection for them,
but  admits that they  are  not necessarily  those   contemplated   by
the treaty, and that the field presents a further variety for choice
It says:
The particular mountains and ridges followed with the reasons for selecting them
are set forth in a declaration to be found in the Appendix by Mr. W. F. King, the
British Commissioner upon the Survey under the Convention of 1892. It will, of
course, be understood that this is not put forward as showing throughout the only
possible way of giving effect to the British contentions, but that it is susceptible of
any variations in detail which may commend themselves to the Tribunal in examining the topographical conditions met with in tracing the line, a
The line as suggested by Great Britain skips from mountain top to
mountain top, from  highland to highland, across many inlets  and
«B. C, 83. ARGUMENT   OF   THE   UNITED   STATES.                          137
bays, and bears no resemblance whatever to the crest of mountains
depicted on the maps that were before the negotiators.    An examina
tion of the line proposed, with a criticism of it, will be found in the
Appendix to this argument, p. 3.
Where demonstration fails and the line is left to arbitrary selection,
the whole mountain provision is absolutely void for uncertainty.    It
is incapable of application, and no tribunal can assume to make a
selection out of a variety offered.    The Treaty did not say anything
in reference to the ocean, except that where the crest receded more
than ten marine leagues from the ocean, the mountains should not
control.    It did not say crests, or summits, next to the sea, or two, or
five, or eight, or any other number of leagues, from the sea.    It was
plainly manifest that the negotiators had in mind a crest about ten
marine leagues from the sea that might in places go farther or come
nearer.    If there were distinct crests running parallel with the coast,
one,  say,  two  leagues,  and  one  ten   leagues   from  the  sea,  then
undoubtedly it would have to be, said that the negotiators meant the
one ten marine leagues  from the sea, for everything demonstrates
that this was the distance they had in mind and that the lisiere was to
be of a substantial character.
If from what we know, it is taken to be shown that  there is no
crest of a chain of  mountains within ten marine leagues from the
sea, and if it be concluded that summits of mountains can be taken,
then the question is, which summits are to be taken, those nearest the
sea or those about midway or those nearest the ten marine league
limit?    Who is to choose?    If there were a well defined chain leading
from about the head of Portland Channel parallel generally with the
coast to the 131st degree, surely that would be said to be the crest,
rather than one of mountains which everywhere came down to the sea.
If this would be so as to several crests, then why should not the
same be the case as to several sets of peaks?    If the Tribunal can
roam all over that sea of mountains for a choice, then why should
they select those most remote from the ten league limit rather than
those nearest?    If Mr. Hunter made one selection, and Justice Gray
another, and  Mr.  Dawson   another, and  the present British Case
still another, what rule is there for guidance?   The absurdity is still
more manifest when it is borne in mind that in each case an appeal is
made to the language of the Treaty.    There could not be a clearer
proof that the Treaty meant no such mountains.    It has not been 138
ARGUMENT   OF  THE   UNITED   STATES.
shown that a crest of a chain of mountains does not exist somewhere
east of the head of Portland Channel and just beyond the ten-
marine league limit, corresponding with the mountain crest of the
Treaty. The country is unsurveyed and unknown. The record is
practically blank on that point. If there be such a crest, it is just as
potential for fulfilling the condition for drawing the line by measurement, as if the crest in some places came within ten marine leagues of
the ocean.
Can the Tribunal say that no such crest exists ? If it had been
shown that such a crest exists just beyond the ten marine leagues,
would the suggestion be entertained for a moment that it should be
ignored, and that the line should be drawn somewhere within the ten
marine leagues along the summits of such mountains as have been
designated? If so, then it would first have to be determined that
such crest was not contemplated by the Treaty, and that it must be
excluded from consideration. It would have to be held that the Treaty
did not mean a crest of a chain of mountains, but that a crest might be
made in some way out of the array of summits in that region. Such
a theory is not consistent with the negotiations and the Treaty. If
it be not admissible, if it were shown that such a crest exists just
beyond the ten marine league limit, then why should it be admissible
when the record fails to show whether or not such crest exists? Non
constat but it does exist. In either event, whether it be shown to
exist, or not, in order to take the summits contended for, it must be
held that they were "the mountains meant.
The Treaty meant some mountains, and it must be that these shore
mountains are the ones if they are to be taken. If this be shown, then
it is immaterial whether a mountain chain outside of the limit exists or
not. If the summits are. what was meant, then such a chain could not
have been meant. The identification of the summits does not depend
on the absence of the chain. If they do not answer to the requirements
of the Treaty, they cannot be taken whether the chain fails or not, for
something that was not meant cannot be taken to supply the nonexistence of what was meant. If they do answer the requirements of
the Treaty, and it can be shown from all that transpired that they are
the mountains parallel to the coast, whose crest was to be followed,
then the fact that there is or is not a crest, of a dominant chain of ARGUMENT   OF   THE   UNITED   STATES.
139
mountains more than ten leagues from the ocean and parallel to the
coast is an immaterial inquiry.
But as has been said, this still leaves the dilemma of choice, and if
the Treaty fails to demonstrate a selection and is so vague and uncertain, or rather if it describes what may fit, on account of the formation
of the country, a number of different lines, then no court can
arbitrarily select, and the provision fails for uncertainty, and the line
must be determined by the distance provision.
FROM THE TREATY OF 1825 TO THE TREATY OF 1867, THE UNDERSTANDING MANIFESTED BY GREAT BRITAIN, RUSSIA, AND THE CIVILIZED
WORLD AT LARGP WAS THAT IT WAS " THE INTENTION AND MEANING
OF SAID CONVENTION OF 1825, THAT THERE SHOULD REMAIN IN THE
EXCLUSIVE POSSESSION OF RUSSIA, A CONTINUOUS FRINGE OR STRIP
OF COAST ON THE MAINLAND, NOT EXCEEDING TEN MARINE LEAGUES
IN WIDTH, SEPARATING THE BRITISH POSSESSIONS FROM THE BAYS,
PORTS, INLETS, HAVENS, AND WATERS ON THE OCEAN, AND EXTENDING FROM THE SAID POINT ON THE 56TH DEGREE OF LATITUDE
NORTH TO A POINT WHERE SUCH LINE OF DEMARCATION SHOULD
INTERSECT THE lllST DEGREE OF LONGITUDE WEST OF THE MERIDIAN   OF  GREENWICH."
ASSERTION OF CLAIM BY RUSSIA BY ITS OFFICIAL MAPS TO ALL INTERIOR WATERS
AND   THEIR COASTS.
In 1826 Russia issued an official map showing the boundary line
drawn from Portland Channel to Ait. Saint Elias, about ten marine
leagues from the coast of all the interior waters, and substantially
where the crest of the mountains is depicted on the Faden map.
This map had an inscription on the line reciting that is was the
boundary established by the treaty of 1825. It is not contended
that the map shows the actual location of the treaty line applied
upon ascertained topography. It shows a clear claim to all waters
and coasts in dispute. Their boundaries were well known and all of
them were included in Russian territory05.
5 U. S. Atlas, No. 11.
4574—03-
-10 140
ARGUMENT   OF   THE   UNITED   STATES.
Russia published another map in 1827 and an admiralty chart in
1844. which was revised to 1864, both showing the boundary laid
down in the same wTay. The last named map has an inscription on
the boundary line that it was the one fixed by the Treaty of 1825a.
Another map was published in Russia in 1861 showing the line
drawn in the same way, and described as a boundary line under
the Treaty of 1825b.
It is fair to presume that these maps or some of them were known
to Great Britain. It is admitted generally in the British Case that
maps showing the lines so drawn were known to that government,
but their effect is questioned on the ground that cartographers did
not know the topography e
It is said in the British Case that no disavowal of the correctness
of such maps was called for before the question arose. The question distinctly arose when Russia, showed a public claim to all of
the interior waters and their coasts. If Great Britain understood
that under the treaty "coast" did not include the coast of narrow
inlets, she was thus called on to make this contention known. The
inlets and their coasts were known as well then as now, and if the
treaty meant only wrhat is now styled "general coast" or "mainland
coast" and did not include the coasts of narrow inlets, Great Britain
knew then as well as now that the line could not possibly run
around the head of Lynn Canal, wThich was then known to be more
than twenty-live marine leagues from such general or mainland
coastd.
If "coast" was confined to exterior or general coast, then no
possible arrangement of the mountains could have carried the line
around the head of Lynn Canal. A distinct claim was promulgated
and maintained by Russia for forty-two years that certain known
waters were within her territory. No claim was made as to precisely
where the line should be located actually on the ground, but a
continuous lisih-c around all of the sea water was, in accordance
with Russia's understanding of the treaty, distinctly claimed. The
maps of the period showed sufficiently the w7idth of the interior
waters to make the coast line theory now advanced just as applicable
then. £*ft&-
flU. S. C. App., 513, Xo. 18; U, S. Atlas, No. 22; British Atlas, No. 15.
l> U. 'S. Atlas, No. 20.
(■British Case, 100-101.
a British Case, 101. ARGUMENT   OF   THE   UNITED   STATES.
141
THE OFFICIAL MAPS OF GREAT BRITAIN AND CANADA SHOWED THE UNDERSTANDING THAT RUSSIA OWNED ALL OF THE INTERIOR WATERS AND COASTS NOW IN
CONTROVERSY.
Great Britain not only did not protest against the claim of
Russia, but announced to the world a like interpretation and maintained such attitude without variation down to the American purchase and to the time immediately preceding this controversy,
covering a period of over sixty years.
; In 1831 an official map was published, entitled, "Part of Colonial
Office Manuscript Map," which showed the line drawn substantially
like that laid down on the Russian maps."
In the same year there was published another official map, by
Bouchette, entitled, "The British Dominions in North America,"b
and showing the line drawn in the same way.
In 1833 a map was published by Arrowsmith. which was inscribed,
by permission, to the Hudson's Bay Company. A note on its face
refers to the specifications of' the Treaty of 1825, and the map
shows the line drawn substantially as the Russian Government had
drawn it/
Other official maps showing the line drawn in the same way wTere
issued in 1850, in 1853, and m 1857.^ The 1850 map was published
by order of the House of Commons.
In 1857 another map was published by order of t/o- House of
Commons, entitled, " Map of North America." It has the line drawn
as in the other maps referred to.e
In 1856 a British Admiralty Chart, No. 2461, which is shown in
the record to be corrected down to 1866. was published. This chart
shows the line laid, down as in all the other maps, and designates
it " Boundary between the British and Russian Territory."/
Thus from 1831 down to 1866, the year immediately preceding
the American purchase, the understanding of Great Britain of the
Treaty as to the sovereignty over all of the waters in dispute, was
a British Atlas, No. 13.
t> British Atlas, No. 14.
cU. S. Atlas, No. 12.
a British Atlas. No. 19; U. S. Atlas, No. 17 and No. 19.
* British Atlas, No. 21; U. S. Atlas, No. 35.
/U. S. Atlas, No. 23. 142 ARGUMENT   OF   THE   UNITED   STATES.
shown to be in complete accord with the understanding shown by
Russia.
In 1877, ten years after the American purchase, Great Britain
published Admiralty Chart No. 787, showing the boundary line
drawn in the same way and lettered, "Boundary between British
and American Territory." She thus changed the lettering from
"Boundary between the British and Russian Territory" to "Boundary between British and American Territory. "a
That boundary line has continued ever since to be shown on
Chart 787.b
THE UNDERSTANDING AS SHOWN BY THE MAPS OF RUSSIA AND OF GREAT BRITAIN
RECEIVED GENERAL ACCEPTATION BY ALL CARTOGRAPHERS, AND THE DECLARATIONS OF THE OFFICIAL MAPS OF GREAT BRITAIN WERE CONTINUED WITH THE
KNOWLEDGE OF THIS UNDERSTANDING.
A great many maps are shown in the atlases and in the lists,
which were published at different periods from 1826 to 1896 in the
United States, England, France, Germany and Spain, showing the
boundary line between Russia and Great Britain and afterwards
between the United States and Great Britain, substantially as it
had been drawn upon the Russian and British mapsc.
This proved the general understanding of the enlightened world
as to the sovereignty established by the treaty of 1825 over all of
the waters and coasts now in dispute.
Great Britain could not have been ignorant of this general understanding. She continued her declarations with a knowledge of it
and additional weight is thereby given to such declarations. She
understood the way in which her declarations were accepted, and
with this understanding reiterated them. Other countries were not
disinterested parties, but had a direct interest in knowing and determining the sovereignty over waters which they might navigate and
«U. S. Atlas, No. 38.
&B. C. C. App., 50.
t'U; S. Atlas, Maps Nos. 13, 14, 15, 16, 18, 21, 33, 34, 37, 40, 44, 45, 46, 47;
British Atlas, Maps Nos. 14, 16, 17, 22; Maps and Charts U. S. C. Appendix,
pp. 512-520, Nos. 16, 18, 19, 20, 22 to 27, inclusive, 29 to 40, inclusive, 42, 43, 46,
to 51, inclusive, 53 to 67, inclusive, 69, 71, 72, 74, 75, 77 to 84, inclusive, 86, 87;
U. S. C. C. App., pp. 243-250, Nos. 90, 91, 96, 99, 101, 106, 107, 108, 109, 110,
112 to 117, incfusive, 119 to 126, inclusive, 128, 129. ARGUMENT   OF  THE   UNITED  STATES.
143
coasts upon which they might land. Every nation had a duty and
a right in respect of the interpretation of the treaty, and the common
understanding of all nations cannot be set aside as irrelevant, especially when it is coupled with representations continued in the light
of a knowledge of such common understanding.
The particular inquiry of the fifth question is whether or not it
was understood that Russia was to have an unbroken lisiere around
the heads of all the bays and inlets. This inquiry is not concerned
with whether or not the line as shown on the maps is accurately laid
down with a topographical knowledge of the country. The line
must be laid down on the land to meet the conditions which shall be
developed, but if the contracting parties understood coast to mean
all of the coast, then the line, no matter what the difficulties may be
in making it as sinuous as the coast, can never cross it. The evidence of the maps is in harmony with this understanding as to the
coast being all of the coast, and they give a uniform expression of
such understanding of the two governments.
The maps relied on were the official, concurrent and harmonious
utterances of both contracting parties, made after the treaty, and as
an expression of their understanding of it. They had all of the
information necessary for arriving at such understanding, so far as
the question of there being a continuous lisiere around the heads of
the bays and inlets was involved. They knew when they contracted
where these waters were, and they also knew where they were when
they promulgated the maps. Each government knew what it meant
in the treaty by the word "coast," and a line drawn parallel to the
coast. If either country did not include the shores of narrow bays
and inlets as "coasts," and understood that the line was to be drawn
not parallel to the coast of inlets, but to what has been termed in
this case "the general mainland coast," it certainly knew that such
a line would cut across such a long inlet as Lynn Canal, which is
fully eighty miles from head to mouth. Knowing all this, then it
follows that a claim made by an official map to all of such inlets
was a claim that the party making it understood the word "coast" to
mean all of the coast, including the coasts of such inlet, and that
the line was not to cross such waters.    The following; of such a 144
ARGUMENT   OF   THE   UNITED   STATES.
declaration by a like declaration was a proclamation of an acquiescence in such understanding.
Such an understanding as to the coasts of Lynn Canal, which is
far longer than any of the other inlets or bays, necessarily fixes the
meaning of "coast" as to all of the interior waters. There could not
be one meaning of "coast" which would include all of the shores of
Lynn Canal and a different one which would exclude any part of
the coasts of the other waters in dispute.
If there Was any room for doubt as to the meaning of "coast"
on the part of Great Britain, such doubt was resolved by its public
declaration of its understanding of the treaty.
RUSSIA SHOWED BY HER OCCUPATION AND EXERCISE OF SOVEREIGNTY OVER THE
WATERS. AND COASTS IN DISPUTE THAT SHE CLAIMED THEM AS WITHIN HER TERRITORY, AND GREAT BRITAIN NEVER, DOWN TO THE SALE BY RUSSIA TO THE
UNITED STATES, ATTEMPTED TO ASSERT ANY JURISDICTION OVER SUCH WATERS
OR COAST OR TO OCCUPY THEM IN ANY WAY, OR TO QUESTION THE SOVEREIGNTY
OF RUSSIA OVER THEM.
It has been shown that those regions at the time of the treaty and
for a long period subsequent thereto were valuable only for fishing
and hunting and the control of trade with the Indians. This determined the character of occupation sought and exercised. Russian
occupation was partly direct and partly through the natives of the
country. Their possession and sovereignty were undisputed by any
other government. Neither Great Britain nor any other government
ever attempted, so far as shown, in any way after the treaty of 1825
to establish any relations of sovereignty over the natives. Citizens of
other governments traded with them, but no other government ever
in any official way came in contact with them. It is not contended
that any of the natives of that territory held in recognition of the
sovereignty of any other power. The relations between them and
•Russia were as close as were generally maintained at that day by other
governments in such remote possessions, offering so little inducement
to actual settlement, affording exploitation of such limited variety,
and inhabited by a people of such turbulent disposition. ARGUMENT   OF   THE   UNITED   STATES.
145
If there had been a conflict of claims of different governments over
this territory, the case would be different, and stronger proof than is
forthcoming might be demanded to establish the Russian occupation,
but no conflicting claim of any character was ever set up and Russia
was left by all other governments to exploit and develop her territories in her own way. The country offered no inducements to settlers, and the maintenance of garrisons sufficient to maintain constant
authority over all of that territory inhabited by w7arlike Indians,
imposed a heavy burden. Therefore, Russia exercised her authority
from central stations and got on with the natives with as little friction as possible, there being no real necessity for governing them,
but only for maintaining such intercourse as would secure and develop
the trade in furs. Therefore, there was no reason for locating permanent establishments on all of the coasts or upon all of the inlets.
The fact that such establishments were not created does not show any
disposition on the part of Russia not to assert sovereignty, nor is it
any evidence that Russia did not understand that all of those waters
and coasts were within her territory. Her understanding on this
point had been abundantly shown by the maps.which she published
from 1825 down to 1866.
. The evidence does sufficiently establish her understanding in accordance with the expression given to it by the maps. In 1842 Russia
created the dignity of Supreme Chief of the Kolosches. The name of
Kolosches was given generally to the tribes inhabiting the northwestern shore and included those on the Taku and the Chilkat."
During the ten years following the Treaty of 1824 the Russians,
Americans and English all traded with the natives, and the Russians
and English traded with them in common for another year under the
Treaty of 1825. It must be borne in mind that during the period of
this concurrent trading, the Americans and English traded with the
natives, as inhabitants of Russian territory, and by virtue of special
treaty rights given for a limited period. After the expiration of the
trading privileges under the treaty, in 1838, Russia had the Chilkat
River surveyed.b
aU. S. C. App., 316.
& U. S. C. App., 312, 516, No. 45. 146
ARGUMENT   OF   THE   UNITED   STATES.
FROM mo TO THE AMERICAN PURCHASE, THE HUDSON'S BAY COMPANY HELD ALL
OF THE WATERS AND COASTS IN DISPUTE FOR RUSSIA. THIS HOLDING WAS BEGUN
AND CONTINUED WITH THE KNOWLEDGE AND CONSENT OF GREAT BRITAIN,
WHICH THEREBY INDICATED THAT SHE UNDERSTOOD THAT UNDER THE TREATY
OF 1825 THEY WERE TO BELONG TO RUSSIA.
On February 6, 1839, the Russian-American Company, by the consent of Russia, leased to the Hudson's Bay Company, from June 1,
1840, for a term of ten years, for commercial purposes, "the Coast
exclusive of the Islands, and the Interior Country belonging to His
Majesty the Emperor of Russia, situated between Cape Spencer,
forming the North West Headland of the entrance of Cross Sound
and Latitude 54° 40' or thereabouts, say the whole mainland coast
and Interior country belonging to Russia, together with the free navigation and trade of the waters of that Coast and Interior Country."0
The lease is of "the coast and the interior country belonging to
His Majesty the Emperor of Russia." It is " the whole mainland
coast," and "the waters of that coast" and "the free navigation and
trade of the waters of that coast."
The lease further provides that "the Russian-American Company
shall abandon every station and trading establishment on that Coast
and in the Interior Country * * * they now occupy, and shall
not form any station or trading establishment during the said term
of ten years nor send officers, servants, vessels or craft of any
description for the purpose of trade 'into any of the Bays, Inlets,
Estuaries, rivers or lakes in that line of Coast and in that Interior
Country.'" The Russian-American Company had exclusive rights
as to all Russian territory, and for the period named it yielded these
rights to its lessee as to all of that coast and its bays, inlets, etc.
These fresh waters in the strip belonging to Russia were greatly
desired by the Hudson's- Bay Company for controlling the trade in
beaver skins, the most valuable trade then existing in that region.6
There is no doubt as to what coast and interior waters were understood to be embraced in the lease. The lease was negotiated for the
Hudson's Bay Company by George Simpson, who was its chief representative when it went into possession under the lease, and had been
for some time antedating the treaty of 1825, with which he w7as perfectly familiar.
aB.'C. App., 150.
&U. S. C. C., App. 43. ARGUMENT   OF   THE   UNITED   STATES
147
In 1847, in an account of a visit made by him to this territory, and
referring to the lease, he said that Russia possessed on the mainland
between latitude 54° 40' and 60° a strip, and that this strip, in the
absence of a lease,. rendered the interior comparatively useless to
England a. Thus he understood that Russia owned a continuous strip
not separated by inlets, and that the inlets did not belong to Great
Britain.
On September 13, 1849, Sir J. H. Pelly transmitted a map to Earl
Grey, saying:
". . . I have now the honor to forward to you a statement of the rights as to
territory, trade, taxation and government claimed and exercised by the Hudson's
Bay Company on the Continent of North America, accompanied with a map of
North America on which the territories claimed by the Hudson's Bay Company,.
in virtue of the charter granted to them by King Charles II. are coloured green,
the other British territories pink, and those of Russia yellow." &
This was written while the Hudson's Bay Company was in possession of the lisiere under the lease.
This map is No. 19 in the British Atlas, and shows the Russian
possessions, as including all of the bays and inlets. This letter was
published in the parliamentary papers, House of Commons, and the
map shows on its face that it was published by order of the House
of Commons, July 12, 1850.
In 1857, before a committee of the House of Commons, Sir
George Simpson testified that he administered a portion of the
territory which belonged to Russia, which he described as a margin of coast marked yellow on the map from 54° 40' up to Cross
Sound. He said that it was " the whole of that strip which is
included between the British territory and the sea," that is. so
much of the strip as was between Port Simpson and Cross Sound.
He showed also that he had the whole care of it and that .there
were no Russian officers in the territory. This fact, taken in connection with the agreement with the Russian-American Company
not to send officers or vessels into that territory during the term
of the lease, accounts for paucity of evidence of special occupation  by Russia, for the lease was continued  down to the time of
>U. S. C. C. Api 148
ARGUMENT   OF   THE   UNITED   STATES.
the American purchase. The map referred to is No. 35 in the
Atlas of the United States, and shows the boundary line drawn
from near the head of Portland Channel around the heads of all
the bays and inlets. These were the " waters of that coast" which
passed under the lease. The "margin of coast marked yellow on
the map from 54c 40' up to Cross Sound" showed the coast that
passed under the lease.
From the making of the lease to the time he gave his testimony, a
period of seventeen years, the company of which he had all along been
chief representative, held all of these waters and all of these coasts
under the lease which was made by the express authority of the
Russian government. Whatever may be said about the width of the
interior country intended to pass under the lease, however that may
vary, there is no room for doubt or variation as to the coasts and the
bays and inlets. The Hudson's Bay Company attorned to Russia's
lessee and held all of them under Russia from 1840 until they were
surrendered to the United States in 1867. .
There was no holding for Great Britain, and the testimony taken
by the committee of the House of Commons shows that Great
Britain so understood it. James W. Keen, an employe of the Hud
son's Bay Company from 1858 to 1863, shows that all of the. inlets
and bays were always considered by the Hudson's Bay Company's
employees as Russian territory."
Great Britain knew of the lease, had been pressing' for the Hudson's Bay Company a claim for indemnity on account of the Dryad
affair, and ceased to press it when the lease was made. In 1854,
during the Crimean War, on account of the relations brought about
by the lease, Great Britain agreed with Russia to neutralityb on the
Northwest Coast.
Great Britain was advised that the entire coast and all the interior
waters were being held and had been held for seventeen years under
and for the sovereignty of Russia. These were the same waters
and the same coasts claimed by Russia in her maps and shown by
Great Britain in her maps as belonging to Russia.
It is not necessary, to sustain the argument on this question for
the United States, to maintain either that Great Britain approved
the lease or that the Hudson's Bay Company was clothed by her with
C. C. App.
. C. C. App., 14, 18, 44. ARGUMENT   OF   THE ' UNITED   STATES. 149
such agency as would bind her in such a matter. The inquiry pursued is as to the original and effective understanding of the parties
as shown by their acts. Russia expressly sanctioned the lease and
sanctioned its renewal/* She understood that throughout this entire
time and in accordance with the rights secured to her by the Treaty
of 1S25, her sub-tenant was holding for her all of the interior waters
and the coasts now in dispute. This was a holding by Russia,
through her tenant, and was her interpretation of her rights under the
treaty that, wherever the line might actually be located on the
ground in the interior, she had acquired exclusive sovereignty over all
of this coast and all of these waters. This was the understanding of
her tenant, and it is clear that all of the coast and waters were held
for Russia and that no part of any of them was held for Great Britain.
Great Britain was fully advised of all of this ten years before the
purchase by the United States. When the knowledge was brought
home to her in the clear and full way that it was by Sir George
Simpson, that all the coast and all the waters now in controversy
had been held by British subjects for Russia for seventeen years,
she was, if she was not ready to concede that she had no claim to
any of them, called on to speak. She not only did not protest, but
permitted this tenancy to continue until it was terminated by the
American purchase, and^ continued to issue her official maps declaring that all of these waters and coasts were within Russian territory.
It was not possible for Great Britain, except by an explicit, affirmative, direct declaration to Russia, to indicate in a more unmistakable
way that she concurred in the understanding thus expressed by
Russia, of which notice was brought home to her that, under the
treaty Russia was at all events to have a continuous lisiere around
the heads of all interior waters.
« U. S. C. C, App. 14. 150
ARGUMENT   OF   THE   UNITED   STATES.
THE UNITED STATES PURCHASED ALASKA WITH THE UNDERSTANDING
ON ITS EART AND W7ITH A KNOWLEDGE OF THE UNDERSTANDING
INDICATED BY THE CONDUCT OF GREAT BRITAIN THAT RUSSIA,
UNDER THE TREATY OF 1825, OWNED ALL OF THE WTATERS AND COASTS
NOW IN DISPUTE, AND HAS HELD THEM WITH THAT UNDERSTANDING WITHOUT ANY PROTEST FROM GREAT BRITAIN, DOWN TO THE
BEGINNING  OF  THE  PRESENT  CONTROVERSY.
THE AMERICAN PURCHASE.
The United States Government understood that under, Art. IV
of the Treaty of 1824, its citizens had a right to trade for ten
years along that part of the northwest coast that had been covered by the Russian ukase north of 54° 40' and the interior waters
thereof, and that the subjects of Great Britain acquired exactly
the same rights to exactly the same waters and coasts by the
Treaty of 1825.
They were at the termination of the ten years excluded by Russia
and not by Great Britain. The maps of Russia and Great Britain
delimiting their adjacent territories, repeatedly put forth, were of
common knowledge. They had been uniformly followed by the
leading cartographers of the world. There could not be a doubt
in the mind of any person giving attention to the subject that from
1826 to 1867 Russia openly, notoriously, continuously, and adversely,
without challenge from any government, asserted territorial jurisdiction over all of the interior waters now in dispute and their coasts.
In 1845 the Department of State recommended to American vessels not "to frequent the interior seas, gulfs, harbors and creeks
upon that coast at any point north of latitude 54° 40'."a
This was done on account of an official notification of Russia and
in recognition of her sovereignty over those waters.
The nature of the Russian claim and occupation under the treaty
was a matter of notoriety in Canada. In an editorial in the "Colonist," published in 1863 at Victoria, it was said that the strip of
land stretching from Portland Canal to Mt. Saint Elias, with a
breadth of 30 miles, "must eventually become the property of
Great Britain, either as a direct result of the development of gold,
I U. 1 C. App., 250. ARGUMENT OF THE UNITED STATES.
151
or for reasons which are now yet in the beginning, but whose
results are certain." It was added that this thirty-mile strip should
not "forever control the entrance to our very extensive northern
territory. "a
There is reason to believe that the Russian Minister during the
negotiations for a sale showed to Air. Sumner, Chairman of the
Senate Committee on Foreign Relations, what was proposed to be
sold, by exhibiting to him a map of the Russian Empire, showing
the boundary lines  substantially as now claimed  by America and
'certainly extending around the heads of all bays and inlets with a
continuous lisiere.b
Russia sold in good faith after an undisputed claim of all these
waters and coasts for forty-two years. The United States, relying
upon the terms of the Treaty of 1825, which was expressly referred
to in the cession and upon the interpretation put upon it by Russia,
which was not merely acquiesced in, after full notice shown to have
I been brought directly to the attention of the House of Commons,
but actively affirmed repeatedly by Great Britain in its official maps,
concluded the purchase and paid the consideration in good faith, and
without anything having been done to indicate even the possible
existence of a controversy in regard to the rights to any of those
ewaters.    If Great Britain had any reserved interpretation as to the
I meaning of the word "coast" upon which she could found any claim,
such as is now made, to any of the coasts and waters, then upon every
principle of good faith she was called on to speak. There is not a
fact now known upon which such interpretation is sought, that was
not known just as well at that time. Her silence cannot but be
regarded as another evidence that she then continued to interpret
the treaty exactly as she had always done, so far as her outward acts
had indicated, in respect of the coasts and interior waters.
The United States on this question asks no more than what the
understanding manifested by Great Britain demonstrated.
A MER K 'AN 0 C.C UP A TION.
By Army and Navy.—The Treaty was concluded March 30, 1867.
On October 18, 1867, formal transfer was made at New Archangel.6
. C. API
. C. API mm
152
ARGUMENT   OF   THE   UNITED   STATES.
On the same day Captain Howard, in command of a revenue cutter
at the mouth of the Chilkat, which in his official report he says was
"the terminus of the Hudson Bay Company's trading in Russian
possessions north." hoisted the United States flag and thus took
formal possession of the coast at the head of Lynn Canal, part of the
very coast and interior waters which, by the newly discovered interpretation now advanced by Great Britain, was more than fifty miles
within British territory. He states that he sent for the head chief of
the Chilkats and explained to him the transfer of sovereignty by
Russia to the United States. He also says that there was present
there on October 17th a" pilot and interpreter of the Hudson's Bay
Company, who came to' his ship flying the flag of that company and
Wearing the full uniform of an English officer."
From that day to this the United States has constantly asserted
and exercised jurisdiction over that coast and the adjacent waters.
In 1867 a Coast Survey expedition was sent to Alaska, and in the I
report a description wTas given of "the coast of Alaska" which included  the mouth of  the Taku  River and  the  Chilkat, where an
astronomical station of the United States Coast Survey was fixed.6
In 1869 General Davis arrested the chief of the Chilkats and some
-of his fellows and confined them.e In 1870 General Davis visited, in
person, the Taku and Chilkat Rivers.a
In 1869 the U. S. S. Saginaw made a cruise, stopping at Pyramid *
Harbor at the mouth of Chilkat River, and made plans of it.e
In 1873 Rear Admiral Pennock on his flag-ship Saranac visited the
anchorage off Chilkat village. In the same year he exercised his good
offices to reconcile the chiefs of the Chilkat and Stikine tribes.-^
Rear Admiral Taylor states that in 1873 the Saranac, to which he
was attached, was at the head of Lynn Canal, and that the chief of
the Chilkat tribe visited the ship in company with several sub-chiefs,
accepted the authority of the commander and signified that he considered himself a subject of the United States and recognized the
jurisdiction of the United States over the Chilkat people and the
territory occupied and claimed by them."
In  1875  General  Howard,  commanding  the  Department  of  the
«U. S. C. App., 337, 338, 339.
&U. S. C. App., 343.
«U. S. C. App., 356, 362.
au. S. C. App., 357.
*m S. C. App., 362.
/U. S. C.App., 362, 363.
?U. S. C. App., 407. ARGUMENT   OF   THE   UNITED   STATES. 153
Columbia, inspected the mouth of the Chilkat River and the region
around it."
In 1879 Captain Beardslee, who was instructed to restore and
establish harmonious relations between white settlers and the native
Indians, reported that the chiefs of the Chilkat and Chilkoot tribes
had removed all prohibitions against white men entering that territory.6 In 1880 he fitted out an expedition of miners to that country,
sending one of his officers in.charge, and made a tour among the prominent Indian tribes, visiting the Chilkat and Chilkoot country and
proceeding up Lynn Canal. He arranged a conference in which the
Chilkoot chiefs came in a canoe flying the American flag, and in this
conference reviewed, the relations between, the Indians and whites
and told of the purchase of Alaska by the United States from Russia/
In that year he located the Chilkat villages, finding that they
were beyond doubt in United States territory, and he also obtained
a census of the Chilkats and Chilkoots. Surveys were made of
Taiya Inlet, and river. a
In 1881 Commander Glass, who succeeded Captain Beardslee,
reported a serious outbreak among the Chilkats in which several
Indians had been killed, and that he sent an officer to the principal
village with a party of marines to investigate the affair, directing
him to put a stop to the fighting.e
In 1881, Commander Lull sent for the Chilkat chiefs and reconciled
some differences between them.^
In 1881, Commanders Lull and Nichols gave certificates to
Kluhnnat, Donowock and Klanat by which they were recognized as
Chilkat chiefs."
Admiral Coghlan, who visited the head of Lynn Canal in 1884,
states that he visited both heads of the canal, placed a buoy near
Haines Mission, treated Chilkat and Chilkoot Inlets as part of the
United States territory and that the authority of the United States
was not questioned by any one there.h
In 1885 Commander Nichols wrote to Donnawaak and Clanatt
and the Chilkat Indians saying that he held the chiefs of the tribe
and the  head men of families responsible for the good conduct of
I U. S; C. App., 360. ?TJ; S. C. App., 380.
&U. S. C. App., 365. /U. S. C. App., 382.
I U. S. C. App., 365, 374. f/U. S. C. C. App., 213; U. S. C. App., 429.
au. S. C. App., 374.     . *U. S. C. App., 401-102. 154
ARGUMENT   OF  THE   UNITED   STATES.
their people, and that the white chief who governed the whole
country was angry with them for their ill-treatment of peaceful
people passing through their country. He warned them that thereafter he would punish the offenders to the full extent of the law."
In 1886 U. S. S. Pinta was stationed at Chilkoot Inlet from
April 27th to June 18th. In May and June, 1887, the Pinta was at
Chilkoot Inlet, the head of Taiya Inlet and Chilkat Inlet.b
In 1887 the commanding officer of the Pinta had an interview with
the Chilkats, including two chiefs, took his vessel to the head of Chilkat Inlet and informed the Indians that they could make their own
bargains and work or not work, but that they could not interfere with
or prevent whites from passing through the country over the trail.c
In the same year he. sent an officer to Klukwan, the head village of
the Chilkat Indians.^ In June, 1887, he reported that his vessel went .
to Chilkoot Inlet and Taiya Inlet, where it remained from May 26th
until June 8th.e He shows in this report that he met a Canadian
survey party under Mr. W. Ogilvie and that Mr. Ogilvie, having
previously asked his permission, "worked across the portage to
Portage Cove; thence up Taiya Inlet, intending to follow the Indian
trail over the mountains to the Yukon," etc.6
Mr. Ogilvie, in his report to his government, speaking of the commander of the Pinta who interfered in his behalf in an affair with the
chief of the Chilkoot Indians, said:
Commander Newell told him I had a permit from the Great Father at Washington to pass through his country safely, that he would see that I did so, and if the
Indians interfered with me, they would be punished for doing so. /
The statement that Mr. Ogilvie surveyed at the head of Lynn
Canal by consent of the United States is confirmed by the testimony
of Ripinski."
In a report transmitted in 1887 by Lieutenant Newell, it is shown
that there  was  absolute domination   by the  United  States  of  the
aU. S. C. App., 430.
&U. S. C. App., 383, 391.
c\J. S. C. App., 385.
au. S. C. App., 386, 387.
«U. S. C. App., 391.
/U. S. C. ('. App., 216.
all. S. a C. App., 218.
Note. In the U. S. Count
3r C
)ase,
page 79
it is state(
1 that in 1887 Dr. Dawson
met Mr. Ogilvie at Haines
on
Lvnr
t Canal.
They hot!
l visited the point named in
1887, but at different times. ARGUMENT   OF   THE   UNITED   STATES
155
Indian situation, and that the coast and interior Indians understood
that the respective territories of Great Britain and.the United States
were divided by a line drawn about the Chilkoot Pass, which
Schwatka called Perrier Pass." This report also shows that a chief
of the Chilkoot tribe asked "an opinion from the court as to the
right of his tribe upon the subjects referred to in his statement,"
which statement was as to the ownership of the trail. In March,
1888, the U. S. District Attorney gave an opinion as to these rights.6
The extracts from logs of United States vessels on duty in Alaskan
waters extending from 1873 to 1891 inclusive, show repeated operations
at the head of the Lynn Canal, and that the closest relations were maintained between the commanders of such vessels and the chiefs of the
Chilkat and Chilkoot tribes/
Lieutenant Commander Dombaugh states that from 1884 and 1886
the commanding officer of the Pinta was recognized as in authority
by the Indians residing on the continental shores from Port Simpson
to the head of the Taiya Inlet, and by the Chilkats and Chilkoots
above Lynn Canal.d
Lieutenant Stewart, who was on duty in Alaska from 1884 to 1886,
was personally sent to Taiya several times to preserve order between
Indians and miners.6
Lieutenant Emmons, in an elaborate report, shows in substance
that he was in Southeastern Alaska from 1882 to 1903, with intervals
of absence, and that the men-of-war to which he was attached cruised
continually along the mainland coast of Alaska and the outlying
islands of the Alexander Archipelago, from Portland Channel and
Dixon Entrance, to the head of Lynn Canal, visiting all of the
inlets along the coast, in order to preserve order among both whites
and natives, and to enforce the laws of the United States. He states
that the absolute jurisdiction of the United States over the inlets
and arms of the sea to the head of Lynn Canal and its inlets was
never to his knowledge questioned by the whites of any nationality
or the natives resident within those limits.-^
He further states that during the summer of each year of his
service in Alaska, from 1882 to 1896, it was customary for a naval
vessel to visit the head of Lynn Canal and spend more or less time
aU. S. C. App., 39:
6U. S. C. App., 39:
«U, S. C. App., 39
4574—03 11
au. S. C. App., 400.
*U. S. C. App., 401.
/U.'S. C. App., 402. mgm
156
ARGUMENT   OF   THE   UNITED   STATES.
at anchor in Portage Bay, Pyramid Harbor and Taiya Inlet, and
that in 1886 the Pinta spent thirty-five days in those waters and
maintained an active supervision at the head of Taiya Inlet.
Under Revenue Officers.—In 1868 a statute was passed extending the laws of the United States relating to customs, commerce
and navigation over the lands and waters of territory ceded to the
United States by Russia under the Treaty of 1867."
As has already been shown, the Lincoln hoisted the American
flag at the head of Lynn Canal and took possession of that territory on the same day that the transfer was made at Sitka.
From that time, without the right being questioned until this
controversy arose, the revenue laws of the United States have
been administered in the territory, including all of the waters and
coasts now in dispute. . The steamers of the revenue service have
made annual visits to the coast in question since 1867, entering all
the inlets and arms of the sea to the head of navigation, for the
purpose of protecting the revenue, enforcing the United States laws
and preserving peace and order among the natives/
In 1868 the Revenue Steamer Wayanda cruised through the entire
inland waters of Alaska, stopping at all Indian settlements on
Lynn Canal, including Taiya Inlet, Chilkat Inlet and Berners Bay,
and also cruised in Taku Inlet. At all places it was explained to
the Indians that the country had been purchased from Russia and
that they were under the jurisdiction of the United States. Complaints were heard against chiefs and some of them were removed,
and the people were directed to choose successors, which was done/
In the same year, as stated by Captain M. A. Healy, the United
States exercised the right of searching all vessels engaged in
domestic trade in all waters and bays to the head of Lynn Canal.d
In 1880 all foreign vessels were forbidden to unload at Chilkat/
In 1890 a Collector of Customs was appointed for Chilkat and a
customs office was established there/
In 1891, through the Inspector at Chilkat, that tribe appealed
to the United States government to set aside a reservation for it."
«u. s. c
. App., 510.
i">t
r. S. C.
App.
, 45.
&U. s. c
. App., 447.
fV
. s. c.
App.
45*
>-458.
<Y. S. C
. App., 470-174, 475
, 476.
9-t
. s. c.
App.
, 45S
,
d [J. s.
C. App., 478. ARGUMENT   OF   THE   UNITED   STATES
157
In 1895 illicit liquor was seized and destroyed by a revenue
officer of the United States at a mountain divide above Taiya."
In 1898 a deputy collector was appointed for Taiya, in 1899 one
was appointed for Skagway, and in 1900 one was appointed for
White Pass/
Under Civil Government.—On May 17, 1884, an Act was
passed providing a civil government for Alaska. It authorized
the appointment of a Governor, the establishment of a district
court with the usual officers and the appointment of four commissioners. The temporary seat of government was fixed at Sitka.
The court wras clothed with the civil and criminal jurisdiction of
district courts of the United States, and the civil and criminal
jurisdiction of district courts of the United States exercising the
jurisdiction of circuit courts. It was provided that one term should
be held each year at Sitka and.one at AYrangell, and that special
sessions might be held wrheu necessary. The clerk wras made ex
officio recorder of deeds and mortgages and certificates of location
of mining claims and other contracts relating to real estate. The
commissioners were clothed with the jurisdiction and powers of
commissioners of the United States circuit courts. The marshal
was clothed with the general authority of United States marshals
and was charged with the execution of all process. The general
laws of the State of Oregon, so far as applicable, were extended
over that territory.
By section 8, Alaska was created a land district. Parties who
had located mines or mineral privileges were allowed to perfect
their title. The occupancy of religious societies at missionary stations was confirmed. Commissioners were charged with the duty
of examining into and reporting-upon the condition of the Indians
residing within the territory. The Secretary of the Interior was
directed to provide for education and an appropriation was made
therefor/
Governors were appointed from time to time and the court was
organized and has been continuously maintained. Marshals, clerks,
commissioners and land office officials have been continuously in
office from that time to the present time.    Such  officers have up
«U. S. C. App., 416, 424, 428, 431, and 461.
&U. S. e. App., 448.
cU. S. e.  App., 510; U. S. Stat., Vol. 23, 24-: 158
ARGUMENT   OF   THE   UNITED   STATES.
to the present time continuously exercised and maintained unquestioned jurisdiction over every- part of the coasts and waters now in
dispute.
The United States mineral laws were extended to'Alaska and in
1895 mining regulations were made for the district by the Secretary
of the Interior and approved by the President."
Mineral locations were made in 1885 on Berners Bay and in 1886
on Lynn Canal, twelve miles north of Berners Bay, and were
subsequently patented/
In 1886 Governor Swineford arrested a Chilkat chief for assaulting Archbishop Sagers/
The records in the Department of Justice show particular instances from 1887 to 1894, inclusive, of persons proceeded against
criminally for acts done variously on Berners Bay, at Chilkoot,
Chilkat, on Chilkat River, and at Taiya. Some of the defendants
were Indians, one of them being an Indian chief, and some were
white d.
There are numerous depositions showing the exercise of civil
and criminal jurisdiction in and about the country bordering upon
Lynn Canal, Chilkat Inlet and Chilkoot Inlet, and as far inland as
the summits of the passes of the mountains next to them, from
1884 to the present time/
The natives in and about Haines, commonly known as Portage
Cove, the head of Lynn Canal, Chilkoot Inlet, Chilkat Inlet, and
on the Chilkat River recognized the authority and jurisdiction of
the United States over all that country./
Don-a-wak, a chief of the Chilkats, was appointed by the United
States authorities an Indian policeman in 1892, exercised the duties
of a peace officer among his people, and caused arrests to be made."
There are a number of depositions of those who lived for a long*
period in and about the head of Lynn Canal, who testify that at no
time  did   any government  other   than the   United  States exercise
aU. S. C. App., 493.
»U. S. ('. App., 494.
cU. S. C. App., 483.
au. S. C. App., 407-413.
<?U. S. C. App., 415, 416, 422-428, 432, 434, 436, 438-441, 446; U. S. C. C. App.
/U. S. C. App., 427-8; 436-437; 438; 441-442; 443; 543-550.
aU. S. ('. App., 427-8. ARGUMENT- ©®  THE   UNITED   STATES.
159
any authority or jurisdiction in and about that region, and that they
have never heard any question by Canadian or British authorities
of the sovereignty of the United States over the waters and coasts
about the head of Lynn Canal."
Schools and Missions.—In 1880 a school was opened among the
Chilkats under the auspices of Americans, which in 1882 had
seventy pupils/
In 1881 a Presbyterian Mission School was established on Portage Bay near the head of Lynn Canal, at a place afterwards named
Haines. It was always understood by those engaged in this work
that the place where this school was located was a part of the United
States/
In 1884 the location of this mission was recorded at Juneau.^
In 1885 Rev. Sheldon Jackson was appointed General Agent of the
Department of the Interior for the purpose of establishing schools
m Alaska/
In 1885 a public school was opened at Haines and has continued
in operation until the present time./
In 1888 Gov. Swineford reported that there were thirteen schools
in operation in Alaska, one of them being at Chilkat."
In 1892 Governor Knapp reported that:
The Chilkat district is an important one, containing three canneries, several
mines, a mission and government school, and half a dozen or such a matter of
stores and trading establishments/
Reports of Governors of Alaska.—Much comfort seems to be
taken in the Counter Case of Great- Britain, p. 77, from the reports
of the Governors of Alaska from 1884 to 1902, and a quotation is
made from that of 1888 in which the Governor wrote that "the
civil government of Alaska is little, if any, better than a burlesque,
both in form and substance." For the purposes of this argument
it may be admitted that the government was insufficient, but no one
would have a right to take exceptions to that except a citizen of the
aU. S. C. App., 431, 416-417; 417-422; 425-427; 432-434; 441-442; 446; U. S.  C.
C. App., 217-220; 220-221; 222-227; 230-231.
&U. S. C. App., 488 and 506.
«U. S. C. App., 481; 436-437.
«"U. s. c.
App.
437.
' r. s. c.
App.
, 481.
/u. s. c.
App.
, 480.
<7U. s. c.
App.
484.
*u. s. c.
App.
, 486.    ■ 160
ARGUMENT   OF   THE   UNITED   STATES.
United States. Certainly Great Britain was not affected in its rights
by anything complained of in the messages referred to. Governor
Swineford complained on account of a lack of transportation facilities for governing satisfactorily a territory "with a coast line greater
than that of all the Atlantic, Pacific and Gulf States combiped." " He
was not renouncing, on behalf of the United States, jurisdiction over
any of this coast line. He also complained of the non-enforcement
of the liquor laws and the fact that Alaska was for seventeen years
without any civil government. It will hardly be contended that the
establishment of a civil government was a condition precedent to the
manifestation by the United States, by occupancy, of its understanding as to what waters and coasts it acquired from Russia. He complained of lawlessness upon the part of individuals, but in no
instance of  any encroachments upon the part of  Great Britain.
In his report of 1886 he points out the neglect to educate the
Creoles/
In 1887 he attacks the administration of the Alaska Commercial
Company, and again refers to violations of the criminal law/
In 1888 he points out that proper provision had not been made
for acquiring title to land. In this report he again calls attention
to the abuses by the Alaska Commercial Company. In referring to
the territory under him, he speaks of the Chilkats located on the
Chilkat River at and around the head of Chilkoot Inlet and their
claim of exclusive ownership of the trail leading from the tidewater to the Yukon River. It is from this report that the quota-#
tion in the British Counter Case is made. He is made to say that
"the civil government of Alaska is little, if any, better than a
burlesque, both in form  and  substance "c
The quotation is of a part of a sentence which in its entirety
reads as follows:
Aside from the partial administration of justice by the United States District
Court and before United States commissioners acting principally as justices of the
peace, the civil government of Alaska is little, if any, better than a burlesque
both in form and substance, d
His strictures apply to that part of the civil government under
him.    He does not undertake to  show that the  administration of
«B. C. C. App.
&B. C. C. App.
cB. C. C. App.
dB. C. C. App.
21. ARGUMENT   OF  THE   UNITED   STATES.
161
justice by the courts and the maintenance of jurisdiction by the
United States in and about the head of Lynn Canal was either
partial or ineffective. It is abundantly shown in this record that
such jurisdiction has been constantly exercised from 1884 down to
the present time in all that region. The Governor indulged freely
in the ordinary right of an American citizen to criticise his own
government, which took its rise from criticism, protest and revolution. He would have been very- far from renouncing any of its
jurisdiction.
The extracts from the reports of the other governors which
appear on pages 22 to 36 of the Appendix to the British Counter
Case are of the same character.
Opinions expressed by officials and citizens of the United States
in public prints as to the condition of Alaska since the American
purchase, appear on pages 36 to 44 of the Appendix to the British
Counter Case. They are certainly not flattering to the United
States. While they may afford satisfaction to those exhibiting
them, and giving them such prominence, the deduction to be drawn
from them may not be so pleasing. They apply to territory now
in dispute, or else there would be no shadow7 of excuse for bringing
them forward. They just as certainly prove that all of their authors,
whose writings extend over a period from 1871 to 1898, inclusive,
regarded the territory as belonging to the United States, for the
burden of all of them is the responsibility of the United States for
the deplorable conditions so feelingly depicted.
They did not charge any of the responsibility to Great Britain
and were not speaking of British territory.
As much or even more might be found arraigning Great Britain
for its administration of Canadian affairs at early periods, or the
United States for its administration of the Philippines, but such
arraignments, instead of negativing jurisdiction and sovereignty,
find their raison d? etre in the fact of sovereignty.
United States Census.—In 1880 a census was taken of the
Alaskan Indians, and among those enumerated by the United States
officials were the Chilkats and Chilkoots, the village of Klukwan
beino* included in the census."
m: S. C. App., 489. 162
ARGUMENT   OF   THE   UNITED   STATES.
In 1890 a census was taken which included those living on Berners Bay, at Chilkat, Chilkoot, Klukwan and Pyramid Harbor."
Postoffice.—A postoffice was established at Haines, July 22, 1882/
UNITED  STATES  MAPS.
In 1867 an official map w7as published by the United States, prepared
at the. suggestion and partly under the supervision of Senator Sumner,
showing the boundary line substantially as it had been uniformly
drawn on the official maps of Russia and of Great Britain down to that
time and so as to include all of the coasts and waters now in dispute
in United States territory/' Five hundred copies of this map were
printed at first, and there was a second edition issued in the same
year.6*
There has never been any material change, so far as this boundary
line is concerned, in the official maps of the United States.
BRITISH  AND  CANADIAN  MAPS  AFTER  1867.
In 1868 was published the Journal of the Royal Geographical Society
of London, which contained a map entitled "Map of British Columbia,
reduced from the original Map by Mr. Alfred Waddington." This
map shows the boundary line so drawn as to place all of the waters and
coasts in dispute in United States territory. The high authority
of the society publishing it and the place whence it emanated are
sufficient warrant for mentioning it.
The British Colonial Office List for the years 1869 to 1902, inclusive, contains maps showing the Alaska lisiere substantially as claimed
by the United States. In the issue of 1901 there appeared at the foot
of the title page the following:
"This list, though compiled from official records, is not an official publication."
There does not appear to have been any such disclaimer for any
of the previous years/
Reference is again made to British Admiralty Chart 787, published
in 1877, and already cited on p. 142.
In 1878 there was published by the Dominion Land Office a map
entitled "Tracing of part of 'Alaska,' showing ' Stakeen River,'
from U. S. Coast Survey of 1869." This shows the boundary line
crossing  the  Iskoot and Stikine and Taku rivers.    The map does
«U. S. C. App., 490.
''{'. S. C. App., 496.
c"u. S.- Atlas. No. 24.
au. S. C. App., 541.
e U. S. C. C. App.', 245. ARGUMENT   OF   THE   UNITED   STATE!
163
not show much territory north of Taku River, but it plainly shows
the trend of the boundary line so as to put all of Lynn Canal in
Alaska.".
In 1878 was published an official map of Canada, by the Minister
of the Interior, showing the boundary line laid, down as on the
previous maps/
In 1882 and 1883 official maps were published by the Department
of Railways, of the Dominion of Canada and the Province of Quebec,
respectively, showing a similar boundary line/
In 1884 was published a " Map of the Province of British Columbia," by direction of the Chief Commissioner of Lands and Works,
which shows the line so drawn as to put all of the coasts and waters
in question in Alaska, and lettered-" Approximate International
Boundary by Convention between Great Britain and Russia, 1825.""*
In the same year was published a Canadian geological map laying
down the line in the same way/
In 1894 was published by Johnston, Geographer to the Queen,
a map of the Dominion of Canada, which also laid down a like
boundary line, f
The Dawson Map of 1887.—The first map which showed a
departure from the interpretation as to a continuous lisiere around
the heads of the bays and inlets, manifested by Russia and Great
Britain down to the American purchase in 1867, and by the United
States and Great Britain from that time on, which interpretation
was accepted by the world at large, was what is designated as the
"Dawson Map" of 1887." This map shows a line laid down in
accordance with the contention of the United States. It also shows
a line approximating the line now contended for by Great Britain.
This line is labeled "Line approximately following the summits of
■mountains parallel to coast." These lines were no part of the original publication, and, therefore, even if the map was official as published, the lines constituted no part of such official publication.
Lord Lansdowne, speaking of it, said:
lines were drawr
hed it showed no boundary lines, but upon a few copies
lk by Dr. Dawson/
f British Atlas, No. 27.
'U.S. Atlas, No. 39.
r. s. Atlas, 42, 43.
I British Atlas, No. 31.
? British Atlas, No. 32.
rj3. S. Atlas, No. 45.
1 British Atlas, No. 34.
iU. S. C. C. App., 159. 164
ARGUMENT   OF  THE   UNITED   STATES.
So far as shown, this line, is the result of private enterprise. The
first semblance of official endorsement was when Lord Lahsdowne,
in a letter of August 18, 1902, to Mr. Raikes, guardedly said:
That the line following the mountains parallel to the coast, crossing all the
larger inlets, must at the time have been accepted as embodying the Canadian
view of the meaning of the Treaty of 1825, is shown by the addition by.the
United States authorities to the far *nnil<>. (at the top and outside the border of
the map) of the words "Dawson's Canadian Map, 1887, showing conventional
lines proposed by Canada." a
He does not say that Dawson's contention as to the line crossing
all the larger inlets was the Canadian view, and much less does he
say that it was at any time advanced as the view of Great Britain.
His statement is purely argumentative as to its acceptance as such
by the United States. It is'unsound upon its face. The addition
by the United States authorities specified "conventional lines proposed by Canada." The conventional line marked upon the map
as such is far to the interior of the line drawn by Dawson crossing
all of the larger inlets. Lord Lansdowne shows that the map only
exhibits one of the conventional lines discussed during the conferences, and that it was not possible to draw the second conventional
line, as this depended upon geographical details not determined
at that time. Then how can it be urged that the addition by the
United States, which referred alone to "conventional lines proposed
by Canada," is evidence that at the time " the line following the
mountains parallel to the coast, crossing all of the larger inlets, was
accepted as embodying the Canadian view of the meaning of the
Treaty of 1825 " ? Conventional lines were discussed with a view
of fixing a line which did not correspond to the Treaty and which
was to be adopted by a new agreement. No line spoken of as a
conventional line would have been regarded as putting forward
any theory of interpretation of the treaty. That Canada had not at
that time adopted the Dawson theory is shown by the British Colonial Office List down to and including 1902, which is in direct
conflict with the Dawson theory and in perfect accord with the
theory of the United States.6
In 1893 an official British Columbia map showed a line lettered
"Approximate international boundary by Convention between Great
Britain and Russia, 1825," which  crossed Lynn  Canal above Ber-
S. C. C. App., 159.
>U..S. C. C. App. 245 ARGUMENT   OF  THE   UNITED   STATES.                          165
n
prs Bay, but
did not  adopt  the Dawson   theory, for it  left  the
w
hole of Taku
Inlet in United States territory."
P
li
In 1895 the}
sation  of  th*
r grew a littler bolder and issued a map which appro-
Taku Inlet."   Thus it was eight years after the pub-
i  Dawson   map before  any official  map  was   issued
hi
ised on  a th
eory  like  his.     As   has been  previously shown, no
si
ich  change was  ever made  upon  the  maps  published  by  Great
B
ritain.
N
DTHING   WAS
DONE    ON   THE   PART   OF   GREAT   BRITAIN   UXTIL   1898
INDICATING   j
4.   CLAIM.   CONTRARY   TO    THE    UNDERSTANDING    WHICH
SHE    HAD   PE
IOR   TO  THAT  TIME  MANIFESTED   THAT   RUSSIA,   UNDER
THE    TREATY
OF    1825,    WAS    OWNER    OF    ALL    THE    WATERS    AND
COASTS    NOW
IN    DISPUTE,    AND    THAT    THE    UNITED    STATES    HAD
UNDER    THE
TREATY    OF    1867    ACQUIRED    ALL    OF    THEM    FROM
RUSSIA,    AND
NOTHING    HAS    EVER    BEEN    DONE    BY    THE    UNITED
STATES  INDIC
ATING  A   CONTRARY  UNDERSTANDING.
PROPOSITIONS TO SURVEY.
An effort is
made in the British Case to break the effect of the
in
terpretation
put  upon  the  Treaty by Russia and  Great Britain,
as
displayed I
y  the  conduct of  both, governments, down to   the
ti
ne of the pu
rchase by the United  States, and also  the effect of
th
e understand
ing shown  by Great Britain and the United States
sn
bsequent to
the purchase, by attempting to show that the occu-
P
ition  by the
United  States  of  the  coast and waters in question
w
as against pr
otest, or while the question was sub judice.
It must be \
)orne in mind that the inquiry now is as to the proper
at
tswer to the I
^ifth Question, and that nothing can be relevant unless
it
bears upon t
ae interpretation put by the parties upon the Treaty
in
respect of it
s purpose to give or not to give to Russia a contin-
ll(
)us  lisieri   ;u
•ound  the heads of all of  the bays and  inlets.    The
m
ere fact that 1
.here was an undetermined line is not significant.    The
m
ere fact that
there were negotiations to determine where the line
sh
ould  be  laid
down in the interior has no bearing.    Such things
a V. S. Atlas, No. 28. 166
ARGUMENT   OF  THE   UNITED   STATES.
only are of importance which disclose the \iews of the parties one
way or the other upon the point of inquiry.
The  points  made  in  the  British Case will be considered in  the ^
order in which they are advanced.
NEGOTIATIONS FOR DELIMITATION OF BOUNDARY BEG UN IN NOVEMBER, 1872.
These negotiations began forty-seven years after the Treaty with
Russia and five years after the United States took possession of the
head of Lynn Canal. As shown, the government of the United
States issued an official map in 1867, showing that the boundary ran
somewhere on the land around the heads of all interior waters and
approximately ten marine leagues therefrom. This map was substantially in accord with the British official maps down to the very
year when this correspondence began, and all of these maps were
in this respect like all of the official Russian and British maps
from the time of the Treaty of 1825.
The correspondence was initiated by an address of the Legislative
Assembly of British Columbia to Lieutenant Governor Trutch and
a letter by him- to the Secretary of State for the Provinces, July
11, 1872, in which he said:
The boundary line between the British Possessions in North America and the
present United States Territory of Alaska—formerly Russian America—is laid
down in the Convention of 1825, Articles 3 and 4.,
But the description therein given of this line of demarcation is not so clearly
defined as to render it readily traceable on the ground.
The initial point of this line on the mainland is debatable, and the line of
demarcation thence following the summit of the coast range of mountains to the
141st meridian west, but limited, whenever such summit shall be found to be
more than ten marine leagues from . the ocean, to a line drawn parallel to the
coast, and at a distance of ten marine leagues therefrom, following all the sinuosities thereof, cannot in practice be determined.
I therefore concur with my ministers in thinking that it is desirable that some J
more clearly marked or definitely ascertained line should be substituted for that
described in the Convention above referred to. a
He  thinks  that  the difficulty is that  the  line is not  so clearly j
defined  "as to  render it readily traceable  on  the   ground."   He
understands   that  if  the  mountains  fail, the  line must be drawn
"parallel to  the  coast  and   at  a  distance of  ten  marine  leagues
therefrom, following  all  the  sinuosities  thereof," and  he  further
«B. C. App., 163. ARGUMENT   OF   THE   UNITED   STATES
167
regards such line as impracticable and urges that a substitute shall
be adopted.
I Surely he did not mean any such line or any such coast as is
juow contended for by Great Britain. He understood that "all the
sinuosities" of the coast were to be followed.
It appears that an inquiry was made by Sir Edward Thornton of
-Secretary Fish as to whether or not the United States Government
^'would be willing to agree to an appointment of a Commission
for the purpose of defining the boundary line," and that Mr. Fish
replied that he was satisfied of the expediency of such a measure,-
-but feared that Congress might not be willing to grant the necessary funds."
Mr. Fish, in a subsequent interview of November 16, 1872, said
phat the President was "so impressed with the advantage of having
fine bQundary line laid down at once" that he was disposed to
recommend it to Congress/
The proposition communicated to the United States was to
■appoint a Commission "for the purpose of defining the boundary
■line." Nothing was said by any one about interpretation of the
iTreaty or as to any doubt about what coast or waters were meant.
The President spoke "of having the boundary line laid down."
In   consonance  with   this   view,  in  his  message to  Congress  of
iDecember 2, 1872, he refers to "the actual line" and recommends
phe  appointment of  a  Commission   " to  determine  the line."    He
■jblearly meant the determination upon the ground of the actual line/
I  There   is   not   the  remotest  suggestion   that   any  question   was
mooted, as to the interpretation  of  the Treaty or as  to the right
of .the United States to Lynn Canal, all of which had been entered
upon and  had been   brought  under the jurisdiction of the United
States.
Sir Edward Thornton was advised, and in turn advised Earl
Granville, that the message contemplated a Commission "for the
purpose of laying down the boundary line."6
The bill introduced into Congress was "for the purpose of surveying and marking the line of boundary," and there was no provision except for such practical work. A copy of this bill was
sent to Earl Granville.c
«B. C. App., 164-165.
&B. C. App., 165.
-B. C. App., 166. 168
ARGUMENT   OF   THE   UNITED   STATES.
The British Government agreed to share in the expense of "determining and marking out the boundary line.""
On February 15, 1873, Sir Edward Thornton wrote to Earle
Granville that Mr. Fish informed him that the estimated expense
to the United States alone was about a million and a half of dollars, and that it would require ten years, and that Mr. Fish said
that the Engineer Department had expressed an opinion that,
under the present circumstances of th