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The Alaska boundary tribunal and international law : a review of the decisions Hodgins, Thomas, 1828-1910 1904

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Array 'HE
jj Mr. Seward stated, soon after the cession was perfected, that
his object in acquiring Alaska, was to prevent its purchase by
England, thereby preventing the extension of England's coast
line on the Pacific Ocean."—A Century of American Diplomacy.
The Carswell Company, Limited.
great Britain and Canada claimed that the International Boundary should have been traced
through the "north passage" into Portland Channel.  MAP OF LYNN CANAL.
The International Boundary is now traced north of the figures (1), (2) and (3), which had
previously indicated the Provisional Boundary of 1899.  THE ALASKA BOUNDAEY TEIBUNAL AND INTEB-
{From the Canadian Law Times.)
BEFORE reviewing the decisions of the majority of the
Alaska Boundary Tribunal, the plain and just-minded
people of both nations must admit that both Great
Britain and Canada were disastrously handicapped
when they submitted the international boundary dispute
between Canada and Alaska to a tribunal of six
members, one-half of whom, as American politicians,
had previously given public expression to decidedly hostile
opinions against the then known British-Canadian claims,—
subsequently formulated in the British case,—and had therefore that taint of partiality which, according to the principles
of international justice, and the rules of the common law of
both nations, absolutely disqualified them from sitting
as judges or jurors, and eminently from being ranked as " impartial jurists of repute " which the two great sovereignties of
Great Britain and the United States, as trustees of the national honour, political justice, and good faith of their respective nations, had agreed to appoint to the Tribunal.
Of those appointed by the United States, one had only
three months previously denounced the British claim as "a
preposterous claim set up in complete contradiction of the
Treaty of 1825;" as " a most manufactured and baseless
claim;" as "one which the United States could not accept,
and which no nation with an ounce of self-respect could
have admitted."
Another had voted to reject the Treaty of Reference, alleging that " there was nothing to arbitrate."
The third was a member of the United States Government, who had advised his government to take military possession of the Disputed Territory; had stationed a garrison of 6 THE ALASKA BOUNDARY TRIBUNAL
soldiers in one part of it, and erected military storehouses on
another portion of it. By such acts, and as a member of the
Executive Government, he was a litigant party in the case, and
so came within the common law maxim: " No man should be
a judge in his own cause; for it is not allowable for him to
be both judge and party." And all were within an old rule of
the common law that "no man shall be allowed to be,of a jury
in any case who has treated of the matter in dispute, or has
declared his opinion on the matter beforehand."
With such prejudiced and therefore disqualified members
it was judicially, politically, and humanly impossible that impartial justice could be administered, or the recognized doctrines of International Law could be given effect to. And it
would have been appropriate that a diplomatic protest should
have been made against appointments which dishonoured the
real impartiality of Tribunals of International Arbitration,
and were a breach of the Treaty-contract to refer the international dispute to " impartial jurists of repute." But in any
event it might have prevented the alleged miscarriage of justice had the British jurists declined to join in any decision,
as a judicial protest on their part against the violations of the
maxims of the common law, and the public faith in international justice and moral principles which should govern
nations; for it has been well said by an American author on
International Law: "A State is a moral person capable of
obligations as well as rights. No acts of its own can annihilate its obligations to another State."
It was within the privilege of Lord Alverstone, as President of the Tribunal, to have followed the course of his British predecessors in former Arbitrations between Great Britain and the United States, and to have refrained from disclosing how he had arrived at his decision on the questions
submitted. He might have adopted the late Sir George Jes-
se?s opinion, that it was within the right of a judge, when
sitting as a jury, to assume the privilege of jurors and give a
verdict without disclosing his reasons. But as the President
of the Tribunal has published his reasons, they are open to
public review, but only in so far as that review is appropriate
to what he has made public. AND INTERNATIONAL LAW.
In considering the answer given by the majority of the
Tribunal to the second question proposed by the Treaty of
Reference: " What channel is. the Portland Channel ?" it is
regrettable to notice that one of the majority of the Tribunal
is charged by two of his fellow jurists with being a party to
* a grotesque travesty of justice " by altering the unanimous
vote of the British members of the Tribunal, which had declared that " as to Portland Channel the case of Great Britain
had been demonstrated to be unanswerable;" and then by " a
compromise with the plain facts of the case, while awarding
Pearse and Wales Islands to Great Britain, determined to
make these islands valueless to Great Britain, or to Canada,
by giving to the United States the islands called Sitklan and
Before passing judgment, let the charge be tested by the
findings which the learned President, on behalf of that majority, has published as to Portland Channel, and by his
reasons therefor.
He finds: " That one entrance of Portland Channel was
between the islands now known as Kannagunut and Tongas
Islands." This admittedly was the " north passage" into
Portland Channel, directly south of Tongas Island, as shewn
on the map.    Then he adds:
"The narrative of Vancouver refers to the channel between Wales Island and Sitklan Island, known as Tongas
Passage, as a passage leading south-south-east towards the
ocean,—which he passed in hope of finding a more northern
and westerly communication to the sea; and describes his subsequently finding the passage between Tongas Island on the
north, and Sitklan and Kannagunut on the south. The narrative and the maps leave some doubt on the question whether
he intended to name Portland Channel to include Tongas
Passage as well as the passage between Tongas Island on the
north and Kannagunut  Island  on  the  south.    In view of
this doubt, I think, having regard to the language, that Van
couver may have intended to include Tongas Passage in that
name, and looking to the relative size of the two passages, I 8 THE ALASKA BOUNDARY TRIBUNAL
think that the negotiators may well have thought that the
Portland Channel, after passing north of Pearse and Wales
Islands, issued into the sea by the two passages above described."
The two passages into Portland Channel here referred to
are the curved or southern passage between Wales and Sitklan
Islands (adopted by the Tribunal), and the straight or northern passage between Tongas and Kannagunut Islands, which
was the passage claimed by Great Britain.
After some further observations, the President finds that
" the references to Tongas Island in 1835, as being on the
frontier of the Russian straits; and in 1863, as being on the
north side of the Portland Canal; and in 1869, as to Tongas
Island being on the boundary between Alaska and British
Columbia, are strongly confirmatory of the view at which I
have arrived upon the consideration of the materials which
were in existence at the date of the Treaty."
Bearing in mind that " Tongas Island," mentioned in
these confirmatory findings, is situated immediately over the
north entrance of Portland Channel; and then applying the
above findings to the plain and imperative direction in the
Treaty-contract of 1825, that the course of the international
boundary line, after leaving the Prince of Wales Island,
" shall ascend to the north along the channel called Portland
Channel," i.e., shall pass upward in an ascending line toward
the north along Portland Channel, the question is: why was
not the imperative direction and mandate of the Treaty
obeyed, and the international boundary line traced through
the north entrance of Portland Channel, instead of, as the
Tribunal has deflected it, first south-east and then northwest through the southern entrance of Portland Channel?
By so tracing the boundary line, the President appears to
have reversed the verdict-result of his findings, and to have
ignored the imperative mandate of the Treaty-contract. Had
the findings of the learned President been applied to the
'' north " course of the line directed by the Treaty, the boundary should have been traced through what was found on the
evidence to be the north entrance into Portland Channel. AND  INTERNATIONAL LAW. V
How the reversal of these findings was brought about
has been unrevealed. But by the signed decision of a
majority of the Tribunal, two islands, Sitklan and Kannagunut, which, on the confirmatory findings and the mandate
of the Treaty of 1825, were legally within the territorial
sovereignty of Great Britain, as part of the Dominion of
Canada, have been ceded to the United States.
The learned President clears away some of the difficulties
as to the word " coast," suggested during the arguments.
He says: "The coast mentioned in Article III. is, in my
opinion, the coast of the continent; and the coast referred to
in the second paragraph of Article IV. is also the coast of
the continent."    Inserting these terms, the Articles read:
"III. The line of demarcation between the possessions
of the High Contracting Parties, upon the coast of the continent, and the islands of North America to the north-west,
shall be drawn in the manner following: Commencing from
the southernmost part of the island called Prince of Wales
Island, which point lies in the parallel of 54° 40', north latitude, and between the 131st and the 133rd degrees of west
longitude (meridian of Greenwich), the said line shall ascend
to the north along the channel called Portland Channel, as
far as the point of the continent where it strikes the 56th
degree of north latitude; from the last mentioned point the
line of demarcation shall follow the summit of the mountains situated parallel to the coast [of the continent] as far
as the point of intersection of the 141st degree of west longitude (of the same meridian) ; and finally, from the same
point of intersection, the said meridian line of the 141st
degree, in its prolongation as far as the Frozen Ocean, shall
form the limit between the Russian and British possessions
on the continent of America to the north-west.
" IV. With reference to the line of demarcation laid
down in the preceding article, it is understood: 1. That the
island called Prince of Wales Island shall belong wholly to
Russia; 2. That wherever the summit of the mountains,
which extend in a direction parallel to the coast [of the continent] from the 56th degree of north latitude to the point 10 THE ALASKA BOUNDARY TRIBUNAL
of intersection of the 141st degree of west longitude, shall
prove to be of a distance of more than ten marine leagues
from the Ocean, the limit between the British possessions and
the strip of coast [of the continent], which is to belong to
Russia as above mentioned, shall be formed by a line parallel
to the windings of the coast [of the continent], and which
shall never exceed the distance of ten marine leagues therefrom."
This construction is the only intelligible one the term is
capable of; and its equivalent expression may be found in
"coast on the mainland^ in question fLye; and "mainland
coast on the ocean," in question six.
Questions five and six formulated the main crux of the
dispute; whether the international boundary line crossed the
bays and inlets indenting this "coast of the continent."
The fifth question asked: "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 10
marine leagues in width, separating the British possessions
from the bays, ports, inlets, havens, and waters of the
Ocean?" The majority of the Tribunal answered this in the
The sixth question was only to become necessary in case
the fifth was answered in the negative; and as to the bays
and inlets it asked: "Was it the intention and meaning of
the said Convention that, where the mainland coast is indented by deep inlets forming part of the territorial 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 (&) from the line separating the waters of the Ocean
from the territorial waters of Russia; or (c) from the heads
of the aforesaid inlets?"
And here may be noted the loose and unscientific drafting
of the Treaty of Reference of 1903, as instanced in the above
expression "territorial waters of Russia;" but more especially in clause (b) " from the line separating the waters of
the Ocean from the territorial waters of Russia." The expression "territorial waters" includes not only the bays,
V 11
inlets, and rivers indenting the coast, and designated " arms
of the sea," but also the three marine mile belt of sea along
the coast, which is subject to the territorial sovereign of the
adjoining land. The question should have been limited to
whether the inland territorial waters indenting the mainland
coast were Russian, or part Russian and part British.
In considering these questions, it should be borne in
mind—in addition to other points, hereinafter referred to—-
that a recognized uniform distance of three marine miles from
the low-water mark of the tidal sea, determines where the
Ocean begins. And as the majority of the Tribunal holds
that tidal bays and inlets, being " sinuosities of the coast,"
are "ocean" within the Treaty expression "ten marine leagues
from the Ocean;" then their low-water mark should also
determine where the Tribunal's " ocean " begins.
But the mouths of tidal rivers are also " sinuosities of the
coast;" and the influent sea in such tidal rivers has also its
low-water mark, which should similarly determine where
they become "ocean" according to the above decision. Yet
International Law, because the channels of bays, inlets, and
rivers are filled to the ocean's tidal level, classes them under
the generic term of " arms of the sea," and considers them in
regard to sovereignty as if they were land. But the action
of the influent sea in perpetually, or occasionally (as in the
case of shoals or strands), submerging their lands, precludes
them, it is submitted, apart from authority, from being imported into the definition " Ocean;" as that term is understood in International Law.
Here it may be said the Tribunal has only partially disposed of the paradoxical claim of the United States, pointed
out in the Contemporary Review last year: "By a strange
discordance, the United States concede that the international
boundary line crosses at ten marine leagues from the Ocean,
certain territorial waters, geographically designated (rivers;'
but deny that it crosses certain other territorial waters, geographically designated \inlets, bays, and canals;' although, as
to their territorial sovereignty, international law declares that
both classes of territorial waters are arms of the sea, and
treats them as though they were land.      The existence of 12 THE ALASKA BOUNDARY TRIBUNAL
such bays and canals cannot, therefore, alter the recognized
doctrine of International Law, or authorize variations in the
inland measurement of the Alaskan lisiere."
Passing from these considerations, but keeping in mind
the President's appropriate interpretation of the Treaty-
term, "coast," as meaning "coast of the continent," we find
that, iaastead of reviewing the authorities cited by the distinguished counsel for Great Britain, the learned President,
after a comment on the term " ocean" (hereinafter considered), said:
" This still leaves open the interpretation of the word
*coast' to which the mountains were to be parallel. There
is, as far as I know, no recognized rule of International
Law which would, by implication, give a recognized meaning
to the word c coast,' as applied to such sinuosities, and such
waters, different from the coast itself."
This seems a regrettable admission, for by not indicating
the inapplicability of the cases cited in argument, the President admits that he had no precedents in International Law
to guide him; and he thereby allows the public of the disappointed nation to suggest (as will ordinary litigants occasionally — often unjustly) that other influences than the
doctrines of International Law had guided him, judicially or
diplomatically, in "making the law" under which he has
decided against the territorial rights of Great Britain and
Canada in .their boundary dispute with the United States.
A short review of the recognized French, United States,
and British, authorities on International Law will, it is submitted, furnish a recognized meaning of the term " coast" as
used in the Treaty, wherever such coast is indented by the
sinuosities and waters above mentioned.
And here Tt may be assumed that International Law being
a science, has, like all other sciences, terms of art, or technical
terms, which have acquired clear and well-recognized meanings, especially the terms "ocean," "sea," "bay," "river,"
"territorial waters," "continent," "coast," "shore," "nation/5
" sovereignty," etc.
Hautefeuille, in his " Droits et Devoirs des Nations Neu-
tres," gives the following: "The coasts of the sea do not
present a straight and regular line; they are, on the contrary, almost always indented by bays, capes, etc, etc. If
the maritime domain must always be measured from each
of their banks, or beaches, or strands, or shores (de chacun
des points du rivage), it would result in great inconvenience.
It has therefore been agreed by the usage of nations to draw
an imaginary line (une ligne Active) from one promontory
{headland] to another, for the place of the departure of the
cannon shot;"—i.e., over the three mile belt of territorial
•water,    (torn. 1, p. 59).
The " great inconvenience " referred to by Hautefeuille,
has been graphically and (as to this Alaska boundary line),
most aptly illustrated by the Judge of a State Supreme
Court in construing a similar expression to that used in the
Treaty of 1825—"ten leagues from the coast." He said:
" The contracts require the upper line to be drawn parallel
with the coast. How can this line be drawn parallel to the
natural one, which has every imaginable curvature and
sinuosity? After the whole country is surveyed, it may not
be an entire impossibility to trace, upon a map at least, the
counterpart of the coast line, however irregular and diversified. But can anyone imagine that a Government would require, or attempt, such a line in a wilderness, for either
political purposes, or for fixing the boundaries of property?
It would require more numerous monuments and landmarks to ascertain its position than perhaps any other line
ever drawn upon the face of the globe. Could any officer,
or citizen, ever know with precision when he had passed the
boundary; or could not an offender, by dodging from post
to pillar, or if he took a straight course, be in and out of the
boundary one hundred times a day? Suppose every league
of land was to have on its inland side curves corresponding
to its curved coast boundary, the confusion and uncertainty
of boundaries would be intolerable, and, of course, would
never be permitted. The surveyors had no time for an
operation almost impracticable in itself, and which, if completed, would have been preposterous as a line of boundary."
Several surveyors were examined before the Judge; but the 14 THE ALASKA BOUNDARY TRIBUNAL
line which the Court held to be the only practicable compli-
liance with the direction "ten leagues from the coast," was
(1) a perpendicular line ten leagues inland from the mouth
of one of the main rivers (arm of the sea), and (2) another perpendicular line ten leagues inland from the mouth
of another main river (arm of the sea), then (3) a straight
line joining the two inland perpendicular points. (11 Texas
This illustration of the " great inconvenience," and how
"a preposterous boundary line" had been judicially disposed of,
may recall to mind the maxim, "Lex neminem cogit ad vana
sen inutilia." But a puzzling and costly labyrinth of zigzag
and curved lines over 500 miles of a strip of mountainous coast
apparently never before drawn on the face of the globe, is the
judicial, or diplomatic, offspring of the Tribunal's labours.
This international doctrine of the ligne fictive had
been recognized by the Government of the United States as
early as 1793, in the case of the capture of the British ship
Grange by a French frigate in Delaware Bay, "within its
capes before she had reached the sea." The Government
held that such capture was a "violation of the territory of
the United States;" and it ordered the restoration of the
ship to her British owners. The capes or headlands of Delaware Bay are 10.5 miles apart.
A few years later Chief Justice Marshall held in a case
where the admiralty or territorial jurisdiction was in issue,
that a " bay " was an enclosed part of the sea, and not subject
to the Admiralty Court; but was part of the territorial
domain of the state, and therefore within the territorial jurisdiction of its state court. (3 Wheat. 336).
The doctrine has also been approved by the
American author Wheaton, who, in his work on International Law, comments Hautefeuille as "the author of the
ablest Treatises on International Law that have appeared in
France;" and he translates, and copies approvingly, his dictum. He also defines the term "coast" as including "the
natural appendages of the territory which rise out of the
water;" but that'it does not properly comprehend bays and
harbours.   And in a note he adds that " coast is properly not
the sea, but the land which bounds the sea. It is the limit
of the land jurisdiction," which land jurisdiction, he says,
" extends to the ports, harbours, bays, mouths of rivers, and
adjacent arms of the sea, enclosed by headlands belonging to
the same State." (pp. 320-1).
Halleck, another American author on International Law,
concurs as to "the exclusive right of territorial domain
over bays or portions of the sea, cut off by lines drawn from
one promontory to another, along the coast;" i.e., cut off
from the ocean by the ligne fictive.
Daniel Webster had previously expressed the opinion that
" ports and harbours, and other navigable arms of the sea, were
no parts of the high sea or unenclosed and open ocean, outside the fauces terrse." And when Secretary of State he confirmed this by saying: " A bay, as is usually understood, is an
arm or recess of the sea, entering from the ocean between
capes, or headlands."
This doctrine received later confirmation by the Supreme Court of the United States, which, in 1890, held that
a Statute of Massachusetts was an affirmation of the law of
nations, which declared that: "where an inlet or arm of the
sea does not exceed two marine leagues in width between its
headlands, a straight line," [i.e., Hautefeuille's ligne fictive] " from one headland to the other, is equivalent to the
shore-line"   (139 U. S. 240).
These American authorities, it is submitted, shew that
the term " coast" in International Law, means not only the
elevated land which rises out of the ocean, but also the
imaginary straight line (ligne fictive) across the submerged land at the mouths of bays, inlets, rivers, and other
arms of the sea, of six miles' width from headland to headland, which in law becomes the territorial continuation of
the "coast of the continent," and the territorial limit of the
sovereignty to which the submerged land belongs, and the
dividing line between such territorial waters and the Ocean.
For the bay, inlet, river, or other arm of the sea, with its
submerged land within cannon shot of the ligne fictive,.
is held in international law to be occupied by the sovereign
of the nation, by virtue of his occupation of the adjoining
headlands and coast. 16 THE ALASKA BOUNDARY TRIBUNAL
This reasoning is in harmony with the earlier doctrines
of Pufendorf and Grotius, the former stating that " gulfs
and channels, or arms of the sea, are, according to the regular
course of nations, supposed to belong to the people within
whose lands they are encompassed."
This doctrine of ligne fictive is further recognized in
the Anglo-French Treaties of 1839 and 1867, the latter providing that the distance of three miles fixed as the general
limit of fishing upon the "coasts" of Great Britain and
France " shall, with respect to bays the mouths of which do
not exceed ten miles in width, be measured from a straight
line drawn from headland to headland."
This same term "coast" has appeared in the British
Hovering Acts since 1736, and in many other Acts of Great
Britain and the United States; and has, therefore, a recognized statutory meaning consistent with that given to it by
International Law.
An English authority (Willcock on "The Ocean, the River,
and the Shore") quoted before the Alaska Tribunal, thus interprets the term "coast:" "In general the coast line
follows the shore of the sea, but it crosses" [as ligne fictive] " each inlet." He adds: " The rest of the sea is the
ocean, the high or open sea; it is common to all nations, and
the people of all nations." And he distinguishes the coast
from the sea-shore by defining the latter as being the beach,
or land, which lies under the influent sea, as the tide rises to
its mark at ordinary high water.
Such are the recognized rules of International Law which
might have been appealed to by the learned President to
assist him in defining the meaning of the term " coast;" and
also how, under the international doctrine of ligne fictive, the
windings (sinuosites) caused by bays, inlets, and other arms
of the sea, indenting a coast, are bridged over by a universally recognized coast line from headland to headland.
The decision of the Tribunal that the inland waters and
shores of Lynn Canal are within the Treaty terms " ocean "
and " coast," conflicts with the cited authorities, and also with
the judgment of Mr. Justice Story, delivered in 1829, (also
cited   to   the   Tribunal),   in   which   he   held   that   Bos-
ton Harbour, having a broad open sea-mouth of about thirty
miles, intersected by several islands, was an " arm of the sea,"
and not part of the high sea or open Ocean, adding:
" An arm of the sea may include various subordinate descriptions of inland waters, where the tide ebbs and flows, such as
a river, harbour, creek, basin, or bay; and it is sometimes used
to designate very extensive waters within the projecting capes
of a country." And he also held that islands, at the mouths
of such arms of the sea, are opposite shores, or headlands,
I in the sense of a line running across." (5 Mason C. C. 301).
The widest sea-channel of Boston Harbour is between ^Ye and
six miles in width; the widest sea-channel of Lynn Canal is
four and three-quarter miles in width; while Taku Inlet is
-only one-fifth of a mile wide, and Glacier Bay three and one-
half miles wide at their ocean mouths—each of them less than
the recognized width of six marine miles.
Not only, therefore, did the ratio decidendi of these
doctrines of International Law conclusively sustain the British contention that the boundary line crossed Lynn Canal
and the other inlets, and arms of the sea, indenting the
coast of the continent; but the crossing of the boundary line
was specially recognized, and made part of the Treaty in the
following Article:
" VI. It is understood that the subjects of His Britannic
Majesty, from whatever quarter they may arrive, whether
from the Ocean, or from the interior of the Continent, shall
for ever enjoy the right of navigating freely, and without any hindrance whatever, all the rivers, and streams
which, in their course towards the Pacific Ocean, may cross
the line (traverseront la ligne) of demarcation upon the
strip of coast described in Article III. of the present Convention."
This had been preceded by the following offer on the part,
of Russia:
" The plenipotentiaries of His Imperial Majesty, foreseeing the case where on the strip of the coast which would be-
lcng to Russia there should happen to be great courses of
water (fleuves) by means of which the English establishments
should be made to have free intercourse with the Ocean,. 18
were eager to   offer, as   a persuasive   stipulation, the free
navigation of those great courses of water."
Taking all the above expressions together, and especially
that comprehensive one, " all the rivers and streams which
may cross the line of demarcation," they could only be held
to mean all the arms of the sea which cross the line of demarcation ; for there is nothing in the negotiations suggesting
an intention to limit the " persuasive stipulation" of free
intercourse with the Ocean through rivers and streams, and
deny it through inlets and bays.
Mr. Secretary Blaine's comment in 1890, on the Treaty
of 1825, may be cited as practically supporting the British
claim. Referring to Article IV. he said: "Nothing is clearer
than the reason for this. A strip of land at no point wider
than ten marine leagues running along the Pacific Ocean
from 54° 40', was assigned to Russia by the Illrd Article.
Directly to the east of this strip of land, or, as it might be
said, behind it, lay the British possessions. To shut out
the inhabitants of the British possessions from the sea, by
this strip of land, would have been not only unreasonable, but
intolerable, to Great Britain. Russia promptly conceded the
privilege, and gave to Great Britain the right of navigating
all rivers crossing the strip of land from 54° 40' to the point
of intersection with the 141st degree of longitude. Without
this concession the Treaty could not have been made."
But the majority of the Tribunal has not confirmed Mr.
Blaine's opinion, for the inhabitants of the British possessions behind the long strip of the Alaskan coast, are now
practically shut out from the Pacific Ocean by their decision.
Finally, on this question, the modern " barrier " claim of
the United States, which the majority of the Tribunal has
affirmed, seems to have been put forward as a thin veneer
to hide from British eyes one of the historic political motives
of the United States Government in acquiring Alaska, and
which has been thus disclosed by Mr. Ex-Secretary Foster in
his late work, A Century of American Diplomacy:
"Russia indicated a willingness (1845 to 1849) to give
us its American possessions if we would adhere to the claim
of 50° 40' on the Pacific, and exclude Great Britain from AND INTERNATIONAL LAW. 19
that Ocean on the American Continent." . . . Mr.
Seward stated, soon after the cession was perfected, that his
object in acquiring Alaska was to prevent its purchase by
England^ thereby preventing the extension of England's
coast line on the Pacific."
And Senator Sumner, when the Alaska Treaty was before
the Senate, admitted that "the motive of the United States
for the acquisition of Alaska might be found in a desire to
anticipate the imagined schemes, or necessities, of Great Britain, as it had been sometimes said that Great Britain
desired to buy, if Russia would sell."
Dealing next with the term " Ocean," in the Treaty, the
President says that he finds a difficulty in the use of that
term. And he is perhaps warranted in saying that, in ordinary parlance, no one would call the channels or passages between the islands, and between the islands and the coast of
Alaska, " ocean." But, laying aside the preceding references,
its identity as " Pacific Ocean," in other Articles of the
Treaty, and as affirmed in the Behring Sea Arbitration, is
clear. An examination of the historic evolution of that
term in the negotiations which led up to the Treaty, will, it
is submitted, clear away the stated difficulty, and shew how,
after some controversy, the term " Ocean" got into the
Treaty, and what the signatory powers meant by its final
In July, 1824, draft "projets" of treaty were interchanged
between the British and Russian Governments, which provided that the inland width of the Russian strip of coast was
to be measured from the sea (la mer). Each of these pro-
jets was rejected. Another draft was then submitted in
December, by the British proposing " ten marine leagues from
the Pacifick." This was followed on the 1st February, 1825,
by another draft in which they proposed, "ten marine
leagues from the Pacific Sea." The Russian Foreign Office
struck out the words "Pacific Sea" and reinstated their
original " la mer;" but left untouched the expressions "Ocean" and "Pacific Ocean," in the other
Articles.   This change to " la mer " was rejected by the Bri- 20 THE ALASKA BOUNDARY TRIBUNAL
tish; and finally both nations agreed to adopt the expression,
" ten marine leagues from the Ocean," in the Treaty signed
on the 16-28 February, 1825.
The final substitution of the term "ocean" for "sea,"
shews that the diplomatists adopted the more accurate term.
International Law gives a wider interpretation to the term
" sea," than it gives to the term " ocean;" for it makes the
term " sea " include, not only the high seas, or open ocean,
but also the ports, harbours, bays, and mouths of rivers, and
other arms of the sea, indenting the ocean-coast.
Thus the diplomatic contest of " ocean " and c mer " for a
place in the fourth Article of the Treaty, resulted in the British victory of " ocean " over the Russian " mer." But Great
Britain has been deprived of the fruits of that victory by the
decision of the majority of the Tribunal respecting Lynn
Canal and the other inlets indenting the Alaskan coast.
It is a maxim of legislative interpretation that where
the same expression occurs in various sections of a statute,
it shall receive a uniform interpretation in every part of
the Act. The maxim applies to Treaties which are of the
nature of international laws. And Lord Alverstone, in discussing the term "coast," as used in the Treaty, properly
negatives its "being used in two different meanings in the
same clause." But when discussing the term " Ocean" in
the same Treaty, he seeks to show that it has inconsistent
meanings by saying, "It cannot, I think, be disputed that,
for the purposes of the Treaty, the waters between those
[Wrangell and other] islands and the mainland, were included in the word Ocean." The expression "coast of
the continent"—which the 4th Article makes convertible
with " Ocean,"—was used to indicate the long trend of sea-
coast along that ocean. The term " coast"—instead of " shore,"
—carried into the Treaty the international doctrine of ligne
fictive, and thereby excluded bays and inlets indenting that
coast from the term " Ocean." The President supported this
when he said that no one would describe himself, when reaching "the head of Lynn Canal, or Taku Inlet, as being upon AND  INTERNATIONAL LAW. 21
the Ocean." But his decision negatives the logical result, and
gives to Lynn Canal—which, in International Law, is an
inland territorial water and is treated as land inside the ligne
fictive,—equal dignity in International Law to that of
" Ocean," which, as the common highway of nations, is subject
to no nation or sovereign,—a Tribunal mosaic shewing how
the square pegs of legal science were forced into the sinuous
holes of diplomatic finesse.
Turning now to the words of the Treaty of 1825, it will
appear that the "summits of the mountains parallel to the
coast" were designated as the primary international boundary line, conditional, however, on their inland limit; and it
prescribed what should be the base or datum line of that
governing limit, which may be put in terse phraseology thus:
" Whenever the summit of the mountains which extend in a
direction parallel to the coast . . . shall prove to be of
a distance of more than ten marine leagues from the Ocean,
, . . the line parallel to the windings of the coast shall
never exceed the distance of ten marine leagues therefrom."
There words clearly made the ocean " coast of the continent"
the base or datum line of the inland measurement.
Had the learned President applied Hautefeuille's rule to
his own definition of " coast," he would have found that the
base or datum line should be continued across the mouths of
Lynn Canal and the other inlets, and that the lisiere boundary line would then cross them at ten marine leagues from
the ligne fictive "coast of the continent."
But the learned President again says: "It is difficult to
see how the words e summit of the mountains' could be
applicable if it was contemplated that there might be a gap
oi six miles between summit and summit crossing the water."
His difficulty is clearly removed by the Treaty providing for
the absence of mountain summits for a boundary line, by the
alternative of a substitute boundary line "ten marine leagues
from the Ocean;" and if, instead of " a gap of six miles crossing the water," the gap was caused by crossing a level prairie
of   six   miles   between   summit   and   summit,   would   the 22 THE ALASKA BOUNDARY TRIBUNAL
Tribunal have been warranted in going inland and round
the level prairie until they found mountain summits? The
submerged land of the inlets is as bare of mountain summits
as the level land of the prairie; and, that being so, where is
the suggested difficulty?
The ratio decidendi of the Tribunal's decision makes the
term " coast," synonymous with the term " shore,"—a term
which Wheaton and other American authorities have used as
appropriate to bays, tidal rivers, and inlets;—and it may
enable the United States to raise an influential argument
against the persistent enforcement of the doctrine of " ligne
fictive" by Great Britain against the claims af American
fishermen, under the Treaty of 1818. By that Treaty, the
United States renounced forever any liberty theretofore enjoyed, or claimed by their inhabitants, " to take, dry, or cure
fish on, or within, three marine miles of any of the coasts,
bays, creeks, or harbours, of His Majesty's dominions in
America," other than the localities previously specified.
The argument of Mr. Rush against that enforcement was:
" We inserted the clause of renunciation. In signing it, we
retained the right of fishing in the sea, whether called bay,
gulf, or by whatever name designated, that washed the coast
of the British North American Provinces—with the single
exception that we should not come within a marine league
of its shore." And the American Minister,-Mr. Stevenson,
complained to Lord Palmerston in 1841, that Canada had
"assumed the right to exclude the fishing vessels of the
United States from all bays; and likewise to prohibit their
approach within three miles of a line drawn from headland
to headland—instead of from the indents of the shores of the
It was further contended by the United States that where
the bay widened beyond six miles within its headlands, that
American fishermen could ply their avocation so long as they
kept outside of the three miles from its interior shores. But
the British Government held that the sovereignty over the bay
as a British territorial water could not be questioned where AND INTERNATIONAL LAW. 23
the mouth was six miles wide,—thus giving practical recognition to the international doctrine of the ligne fictive.
Then as to the seventh question: " What are the mountains situated parallel to the coast?" The British originally
proposed the sea-ward base of the mountains as the boundary
line. Russia objected, because the mountains might slope
directly to the ocean, and practically give them no foothold
on the coast, and asked that the line should be on the summit of "the mountains bordering on the coast." This was
conceded in the Treaty by the words: "the summit of the
mountains situated parallel to the coast." But the majority
of the Tribunal has adopted a line which, at a number of
points, rests on mountains lying far inland from the coast,
and separated from it by mountains nearer to the coast, which
came more within the words of the treaty as " situated parallel
to the coast," than those selected by the Tribunal.
It may be fairly claimed that any alleged acquiescence of
Great Britain in the occupation by the United States of Lynn
Canal or other portions of the Disputed Territory, had been
abandoned by the unconditional terms of the Treaty-Conventions of 1892 and 1894, by which the two nations reaffirmed the contract of the Anglo-Russian Treaty of 1825,
and agreed to deliminate the international boundary line "in
accordance with the spirit and intent of the existing Treaties "
of 1825 and 1867. The effect of such unconditional reaffirmation was to free the boundary dispute of any alleged rights or
equities arising out of prior acts of occupation, or prior settlements, by the United States, and of Great Britain's alleged
acquiescence in the same which might have been claimable
against her by the United States. But the conclusive legal
doctrine of the Treaty-Conventions of 1892 and 1894, appears
to have been waived by Great Britain in Article III. of the
Treaty of Reference of 1903, which allowed! the Tribunal
" to take into consideration any action of the several governments preliminary, or subsequent, to the conclusion of the
said Treaties." But there has been no finding that Great Britain, or, Canada, had, by any act or conduct, waived a strict
interpretation of the Treaty of 1825. 24 THE ALASKA BOUNDARY TRIBUNAL
Taking into consideration the taint of partiality, and
the consequent disqualification by the common law, of
the representatives of the United States as "impartial
jurists of repute;" and how the several questions proposed by the Treaty of Reference have been answered, and
te sting the answers by the findings of fact, and the meanings
given by International Law to the political terms " coast"
and " ocean " used in the Treaty, and submitting them to the
clear reasons for the principles and doctrines of International
Law, and also to the more crucial tests of ordinary law as
authoritatively expounded in reported cases, it is unfortunate
that the decisions of the majority of the Alaska Boundary
Tribunal do not seem to carry that legal or logical force and
consistency which would make them acceptable as judicial
authorities, or entitled to be enthroned as unchallengeable
precedents in International Law for the guidance of future
Tribunals of International Arbitration. They partake more of
the flavour and quality of what may be termed the political
compromises which diplomatic exigencies require, or diplomatic finesse approves; and they painfully revive the historic
remembrances of those diplomatic disasters which, in other
days, had ceded portions of the original territorial domain of
Canada, won on the Plains of Abraham, for the territorial
enlargement of the United States, and which have been thus
truly stated by a former Under-Secretary for Foreign Affairs
in Problems of Greater Britain: " It is a fact that in by-gone
days British diplomacy has cost Canada dear."  


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