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Boundary between the Dominion of Canada and the territory of Alaska : case presented on the part of the… Alaskan Boundary Tribunal; Great Britain. Foreign Office 1903

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Array  r
Terms of Convention  ...
"f. H^t
Introduction   ...
The Negotiations on Boundary Question (1821-25),
Treaty of 1825
and the
Diplomatic Action since 1825
Character of Topography
The Questions to be Answered   ...
Acts subsequent to the Treaty   ...
Cartography  ...
vention, 24th January, 1903. ON the 24th day of January, 1903, a Con
vention was concluded between Great Britain
and the United States of America in order to
provide for a friendly and final adjustment of
the differences which exist between them in
respect to the true meaning and application of
certain clauses of the Convention between Great
Britain and Russia, signed under date of the
28th (16th) Pebruary, a.d. 1825, which clauses
relate to the delimitation of the boundary-line
between the territory of Alaska, now a possession
of the United States, and the British possessions
in North America.
Article I of the Convention provides that the
Tribunal shall consist of six impartial jurists
of repute, who shall consider judiciaUy the
questions submitted to them.
The other principal Articles of the Convention
are the following :—
"Article III. It is agreed by the High Contracting Parties that the Tribunal shaU consider,
in the settlement of the questions submitted to
its decision, the Treaties respectively concluded
between His Britannic Majesty and the Emperor
of All the Russias under date of the 28th (16th)
Pebruary, a.d. 1825, and between the United
States of America and the Emperor of All the
Russias, concluded under date of the 18th (30th)
March, a.d. 1867, and particularly the Articles
[541] B 2 Ill, IV, and V of the first-mentioned Treaty,
which in the original text are, word for word,
as follows :—
" ' III. La ligne de démarcation entre les possessions des
Hautes Parties Contractantes sur la côte du Continent et
les Iles de l'Amérique Nord-ouest sera tracée ainsi qu'il
'"A partir du point le plus méridional de l'île dite
Prince of Wales, lequel point se trouve sous la parallèle du
54° 40' de latitude nord, et entre le 131e et le 133e degré
de longitude ouest (méridien de Greenwich), la dite ligne
remontera au nord le long de la passe dite Portland, Channel,
jusqu'au point de la terre ferme où elle atteint le 56e degré
latitude nord ; de ce dernier point la ligne de démarca- .
tion suivra la crête des montagnes situées parallèlement à
la côte, jusqu'au point ■ d'intersection du 141e degré de
longitude ouest (même méridien); et, finalement, du dit
point" d'intersection, la même ligne méridienne du 141e
degré formera, dans son prolongement jusqu'à la Mer
Glaciale, la limite entre les possessions Russes et Britanniques sur le Continent de l'Amérique Nord-ouest.
" ' TV. Il est entendu, par rapport à la ligne de démarcation déterminée dans l'Article précédent—
"'1. Que l'île dite Prince of Wales appartiendra toute
entière à la Russie ;
" ' 2. Que partout où la crête des montagnes qui s'étendent
dans une direction parallèle à la côte depuis le 56e degré
de latitude nord au point d'intersection du 141e degré de
longitude ouest se trouverait à la distance de plus de
10 lieues marines de l'Océan, la limite entre les possessions
Britanniques et la lisière de côte mentionnée ci-dessus
comme devant appartenir à la Russie sera formée par une
ligne parallèle aux sinuosités de la côte, et qui ne pourra
jamais en être éloignée que de 10 lieues marines.
" ' V. Il est convenu, en outre, que nul établissement
ne sera formé par l'une des deux Parties dans les limites
que les deux Articles précédents assignent aux possessions
de l'autre. En conséquence, les sujets Britanniques ne
formeront aucun établissement soit sur la côte, soit sur la
lisière de terre ferme comprise dans les limites des posses-
• sions Russes, telles qu'elles sont désignées dans les deux
Articles précédents ; et, de même, nul établissement ne sera
formé par des sujets Russes au delà des dites limites.'
" 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. Questions. " Article ]
and V of t
Tribunal sha
questions :—
"1. What is intended as the point of commencement of the line ?
" 2. What channel is the Portland Channel ?
" 3. What course should the line take from the
point of commencement to the entrance to
Portland Channel ?
" 4. To what point on the 56th parallel is the
line to be drawn from the head of the Portland
Channel, and what course should it follow between these points ?
"5. 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 until its intersection with the ] 41st degree
of longitude west of Greenwich, subject to the
condition that if- such line should anywhere
exceed the distance of 10 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 10 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 10 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 141st degree of longitude west of
the meridian of Greenwich ?
"6. 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 10marine leagues from the coast, should
the width of the lisière, which was to belong to
Russia, be measured (1) from the mainland
coast of the ocean, strictly so-caUed, 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 territorial waters
of Russia, the width of the lisière was to be
measured  (a)  from   the   line   of   the   general direction of the mainland coast, or (6) from
the line separating the waters of the Ocean
from the territorial waters of Russia, or (c) from
the heads of the aforesaid inlets ?
" 7. What, if any exist, are the mountains
referred to as situated paraUel to the coast,
which mountains, when within 10 marine
leagues from the coast, are declared to form the
eastern boundary ? "
The Convention was ratified on the 3rd March,
The full text of the Convention is set out in App. I, p. l.
the Appendix to this Case.
The accompanying Case, together with the
documents, official correspondence, maps, and
other evidence, on which the Government of
Great Britain relies, contained in Appendices I,
II, and III to the Case, is deHvered pursuant to
Article II of the Convention. INTRODUCTION.
Treaty of 1825.
App. I, p. 37.
The Convention between Great Britain and
Russia to be interpreted by the Tribunal was
concluded on the 16th (28th) Pebruary, 1825.
57- By a Treaty between the United States and
Russia concluded on the   18th  (30th) March,,
lb., p. 136. 1867, Russia ceded to the United States all the
territory and dominion then possessed by her on
the Continent of America and in the adjacent
islands within geographical limits therein
described. In fixing the eastern limits the line
of demarcation between the Russian and the
British possessions in North America, as established by the Convention between Russia and
Great Britain of the 16th (28th) Pebruary, 1825,
and as described in Articles III and IV of that
Convention, was adopted word for word. An
interpretation of the Treaty which will fix the
Hne of demarcation between the British and
Russian possessions in North America, as it was
laid down in the Treaty of 1825, will delimit the
boundary-line between those territories adopted by
the Treaty of 1867, and as it continues to be at
the present time.
On the cession of the territory to the United
States, the name " Alaska " was substituted fo
" Russian America.''
Province of British Columbia.
Throughout almost its entire length, that is
to say, up .to latitude 60°, the disputed territory
adjoins the Province of British Columbia
on its westward side. The boundaries of this
portion of the British possessions in America
were fixed by an Imperial Act of 1863, which
specifies the western boundary to be the Pacific
Ocean and the frontier of the Russian territories
in North America, the north to be the 60th
parallel of latitude, the east the 120th meridian
of west longitude and tbe summit of the Rocky
Yukon Territory. The remaining portion in dispute adjoins the
  Yukon   territory,   and   includes   the    easterly
boundary of the coast strip from the vicinity of
Yakutat Bay to the 141st meridian. British Columbia did not enter the Canadian
Confederation until July 20th, 1871, when its
territory became a part "of the Dominion of
The Yukon territory was created by an Act
of the Federal Parliament June 13th, 1898, out
of territory added to Canada on June 23rd, 1870.
Only a portion of the international boundary Portion of Line in Dispute
is in dispute.
With that part beginning at or near Demarcation Point on the Arctic Ocean at longitude
141° west, and following that meridian southwards a distance of about 450 marine miles
until it strikes the summit of the mountains
near Mount St. Elias—which is just within
Canadian territory—the present enquiry has
nothing to do. Por that distance the boundary
is a purely geodetic one, and a meridian of
longitude can be ascertained with scientific
The disputed part of the boundary-Hne is that
which runs from the 14lst meridian to the
commencement of the line according to the
Treaty, at the southernmost point of Prince of
Wales Island. It may be said to be, roughly
speaking, about 550 marine miles in length.
Inasmuch as in the Treaty the line is described
commencing from the south, that order wiU, as a
matter of convenience, be observed in this Case.
The general  geographical character   of   the
territory in dispute wiU be appreciated by looking at the map No. 37 in the Atlas, which will App. II, Atlas
also show the lines drawn in accordance with
varying interpretations of the Treaty.
I.—Maritime Discoveries, 1741-1821.
The history of the various voyages of discovery        I.   Maritime Discoveries, 1741-1821.
in the Northern Pacific and Behring Sea forms 	
a considerable literature by itself. During the
negotiations resulting in the Treaty between
Great Britain and Russia in 1825, and afterwards, in the course of the presentation of the
Behring Sea Case under the Treaty of the
29th Pebruary, 1892, an exhaustive examination
was made of all sources of information under
this head, but for present purposes a short summary is deemed sufficient.
The part of the New World washed by the
North Pacific Ocean was discovered much later Russian Discovers
Ed. 1886,
3ries by Co:
Hudson's Bay
Company to Mr.
George Canning,
25th September,
1822, inclosure,
see No. 13 in
App. I, pp. 24-2*
Extract from a
letter from Mr.
Middleton to Mr.
Adams, 1st (13th;
December, 1823,
note (d) to inclosed Confidential
American State
Papers, Foreign
Relations, vol. v,
pp. 449-455.
Alaska, p. 141.
lb., pp. 157,158.
lb., p. 174.
than any other part of the North American torrid
and temperate zones. The evident reason for this
is its greater remoteness from Europe and the
fact that it could only be reached by doubling
Cape Horn or the Cape of Good Hope.
The Russians had crossed Siberia and reached
Kamtschatka in 1697. In 1728-29 Behring
practically proved the separation of the continent as high as 67° on the coast of Asia. In
the following year, according to Coxe, he made
another attempt to reach land to the east, but,
after sailing 50 leagues from the Asiatic coast
without seeing anything, returned to Okhotsk
and afterwards to St. Petersburgh. Nothing
more was done until 1741. In June of that
year two vessels set sail, the one commanded by
Behring, the other by his lieutenant Tchirikoff.
According to Millier, the historian of the expedition, Behring came in sight of land in 58° 28'
■ north latitude, and Tchirikoff in latitude 56°.
Behring did not reach the mainland, but sent
a boat on shore for water on a large island.
He named Cape St. Elias, at the southern end
of Kayak Island, but did not land or take
possession. It is not clear that Behring ever
reached the mainland. Tchirikoff, according to
M tiller, reached the mainland in 56°, and sent
ten men in a boat for water.   As they never
) returned they were probably massacred. Six
more sent after them never came back to the
ship, and probably met the same fate. On' the
27th July Tchirikoff returned to Kamtschatka.
As Muller in his map shows no islands on the
coast where Tchirikoff landed, it is believed that
he landed on one of the large islands and mistook it for the mainland. A number of Russian
voyages are outlined by the historian Coxe,
extending from 1741 to 1748, to the Aleutian
Islands, Pox Islands, Andreanorski Islands, and
other territories comprehended in the Alaskan
peninsula and islands to the north. In 1763,
Glottof, on a trading voyage, reached Kadiak
Island. In 1764 to 1768, Synd, a lieutenant of
the Russian navy, made an expedition along the
coast to Behring Strait. Prom this time to the
visit of Captain Cook, according to Bancroft,
single traders and small companies continued to
traffic with the islands in much the same manner
as before.
* Referred to hereafter as « Alaska."
[541] C Upon these discoveries Russia based in part
her claims to maritime and territorial jurisdiction
over the northern part of the Pacific Ocean and
the north-west coast of America, which will be
referred to hereafter. Her later discoveries were
along the tracks of Cook and other modem
The Spanish Government sent three exploring
expeditions along the west coast of North
America between 1774 and 1779. These expeditions visited certain points on the west coast, up
to the 60th degree of latitude.
In 1786, La Perouse, on his voyages round the
world,under instructions from the Prench Government, first made the mainland of North America
near Mount St. Elias. Thence he sailed eastward
and southward, following the outer shores of the
Alaskan and British Columbia Archipelagos to the
coast of California.
United States' vessels first traded on the northwest coast in 1788.
Spanish Discoveries.
Alaska, pp. 194- 1774-1779.
197; 211-221.
French Discoveries.
American Traders.
North-west coast,
vol. i, p. 185.
.plored the S"o^84>
No survey of the north-western coast w
made until 1778, when Captain Cook, who had
been sent out by the English Government, the Pacific "Ocean,
reached the American coast,
north-west coast from about 44° north latitude
as far as Prince William Sound and Cook's Inlet,
and took possession of the coast territory. He
was the first to lay down the main outlines of the
north-western part of the continent. His surveys
were until very recently considered in some parts
the most reliable in existence. They did not,
however, extend inside the islands.
Captain  Cook's expedition was followed  by North-west coast,
those of Captain James Hanna in 1785, Captain Sater'sPaJIm7nt74'
Peters in the same year, Portlock and Dixon in of Billing's ex-
1786,  Meares in   1787,  1788,- and 1789,  and 1802^27^1.
ritish Explorations and Surveys.
Vancouver in 1792-94.
«A Voyage
Around the
World," &c,
London, 1789
Post-Captain George Vancouver, R.N., had
been instructed by the British Admiralty in
1791 to make an exploration of the north-west
coast of America, between latitudes 30° and 60°
north, to acquire accurate information as to
whether there was any water communication
from the north-west coast towards the eastern
coast of North America ; to ascertain the number,
extent, and situation of European settlements on
said   north-west coast ;   and,   further, to  visit
Vancouver's Voyages. Nootka (on the west coast of Vancouver Island)
and receive from the Spanish Commandant there
restitution of the lands and buildings the property of British subjects which had been seized
by the Spaniards in 1789, but which Spain, by
Convention of 28th October, 1790, had agreed to
He set out from England in 1791, and, in
accordance with his instructions, wintered at the
Sandwich Islands in the winter of 1791-92.
In the spring of 1792 he crossed to the
continental coast, and examined northward, that
year, as far as Pitz Hugh Sound, returning to the
Sandwich Islands again for the winter.
Early in 1793 he sailed again to the west
coast of America, reaching it near Cape Mendocino. He then proceeded north to Nootka,
and thence went to Pitz Hugh Sound, where he
resumed his examination of the continental
shore. His explorations .thence forward for
some time referred to the southern portion of
the territory in dispute. They are of the utmost
importance for the determination of the true
construction of the Treaty, and a detailed examination of this survey will be found in a later
portion of the Case.
The examination of the northern portion of
the territory now in dispute was made on his
return to the coast in July, 1794.
This completed Vancouver's survey of the
north-west coast and adjacent archipelago. He
then returned to Nootka, thence to the Sandwich
Islands, and thence to England, via Cape of
Good Hope, reaching home in September, 1795.
Captain Vancouver died in May, 1798, before
his "Voyages" appeared. In the course of the
same year, however, they were published in
London by his brother, who explained in a note
that Captain Vancouver himself had revised the
whole up to p. 408 of the third volume. The
portion thus revised covers the whole of his geographical discoveries on the coast of America.
App. II. Maps With this edition was published a volume of
'  ' charts, three of which, relating to the portion of
the coast now in question, are reproduced in the
Atlas accompanying this Case.
APrench translation of Vancouver's "Voyages"
was published in Paris in 1801, and in the same
year a second English edition appeared in London.
No survey of that part of the continental
coast material to the present question, except
[541] C 2 10
Vancouver's, was made before 1825, nor, indeed,
for a long time afterwards. After the publication of his " Voyages," with their accompanying
volume of charts, several maps of this region App. II, Atlas,
were published, namely, a Russian map in 1802, 12* aud'id. ' '
Langdorff's (1803-1805), Arrowsmith's (1822),
Arrowsmith's (1824), Paden's (1823). These are
reproduced in the Atlas. All follow Vancouver's
It is practically certain that the negotiators of
the Convention of 1825 had Vancouver's maps
before them, because they not only adopt the
latitudes and longitudes assigned by him to the
various points referred to, but also his nomenclature. A reference to the names used in the
diplomatic correspondence—Mount St. Elias,
Cross Sound, Lynn Channel or Harbour, Chatham
Strait, Norfolk Sound, Cook's Inlet, Admiralty
Island, Novo - Archangelsk and Sitka, King
George's Archipelago, King George's Island,
Stephen's Passage, Duke of York's Island, Duke • ,^
of Clarence's Strait or Sound, Prince of Wales's
Island, Portland Channel or Canal, Observatory
Inlet—will show that Vancouver's charts were
It is to be observed that Vancouver did not
attempt any exploration or survey on land;
nor had any one else attempted it before 1825.
Vancouver's charts do not even show the existence of rivers ; his surveys stopped at the
Vancouver published in his atlas a chart of
the southern part of the region now under consideration, and another of the northern part.
On the former is shown an interior continuous
range of mountains, and smaller mountains
closely following the shore lines. The intervening space is entirely covered by a conventional (and very regular) representation of
mountains, less heavily shaded.
On the chart of the northern part the interior Differences
range is also shown boldly, but less elaborately,
than  on the other chart.    The shore range is
entirely absent, and in the intervening space the
mountains are very lightly dotted in.
These differences between the charts are such
that they at once strike the eye, and cannot
escape notice.
A few- miles of the mainland, with the interior
range, is shown on both of the charts. This
range on one of them is not more than 2 or 3
Mountains   on Vancouver's
Charts. 11
miles back from the head of Houghton Bay.
On the other it is about 20 miles.
Vancouver has also a chart showing the whole
coast on a smaller scale than the other two.
This differs considerably from both the others.
The shore range is considerably emphasized, so as
to equal, or nearly so, the interior range.
The representation of mountains on Vancouver's charts was, therefore, purely conventional. They are differently depicted by him on
his own several charts, and also by the map-
makers who followed him. In no case could
it have been supposed by any one in 1825 that
these representations of mountains accorded with
ascertained geographical features.
II. Settlements on the islands and mainland __   I
previous to 1825. H- Settlements on the Islands and
  Mainland to 1825.
1778. Cook, Voyage to       In 1778, at Cook's Inlet, Captain Cook found
m^-1780 0cean' evidences of Russian trade, but no Russians.   At
London, 1874.      Unalaska, one of the Aleutian Islands, he again
heard of the Russians, and on a second visit met
Russian traders.
1783. Alaska, p. 186. In 1783 the first attempt was made, following
Cook's discoveries, to establish a Russian trading
post   on   the   American   mainland   at   Prince
William Sound.    It ended disastrously,
lb., p. 191. F01* some years after this, only one small vessel
was  dispatched  from Siberia  for trading pur-
lb., p. 224. poses;   but in 1784 Shelikof visited Unalaska,
and reached Kadiak Island, intending to effect a
permanent settlement there.
1786.                                   A Voyage round       Portlock and Dixon, in 1786, visited Cook's
the World, &c,     Inlet and found a partv of Russians encamped
London, 1789. x       * r
there, but no fixed establishment:
Meares'Voyages,      Meares in the same year met Russians and
«Annual66aIS°    natives at Amlia Island>  one of the Aleutian
Eegister," 1790,    chain.     He   proceeded    eastward    along   the
xxxu, p.     . ^eu^ans^ an(j was piloted by a Russian into
Unalaska.     The   only   Russian   establishments
were underground huts of the native pattern.
1788. Alaska, pp. 270-       In 1788 a Spanish expedition found a Eussian
2'2' colony at Three Saints,  on Kadiak Island, but
there were no Russians at Prince William Sound.
Three Saints was the easternmost point which up
to that time had a permanent Russian Settlement.
1790. lb., p. 285. In 1790, Russia and Sweden being at war, a
Swedish cruiser visited the Aleutian Islands, but 12
found no  Government   establishment,  and   no
Russians except traders " in abject poverty."
In 1794 Vancouver ascertained  the eastern- Vancouver's
most Russian Settlement at that time to be at Londonf'i798,
Port Etches   in Prince William   Sound.     He vol Hi, p. 199.'
"clearly understood that the  Russian Government had little to do with these Settlements ;
that they were  solely under  the  direction of
independent mercantile Companies."
In 1799 the " Caroline," Captain Cleveland,
from Boston, arrived at Sitka shortly after a
Russian post had been established there.
Of the enterprises of Baranoff, Governor of
Sitka, Bancroft says :—
''' At every point eastward of   Kadiak where he had Alaska, p. 384.
endeavoured to open trade he had found himself forestalled
by English and American ships, which had raised the
priées of skins almost beyond his limited means."
Even up to the 28th (16th) Pebruary, 1825, Hudson's Bay
no Russian Settlement had been formed on the (jeore.e Canning
continent  or in the vicinity  of   the  strip   in 25th September,
dispute.    This was pointed out on the part of App. I, p. 24.
Great  Britain at the beginning  of the nego- The Duke of
tiations in 1823, and insisted on ever afterwards. ^Vm q. Canning
At no time was this contention controverted by 28th November,
Russia, and towards the close of the negotiations Memorandum
its truth was franklv admitted. *? Count
" Nesselrode of
The relation of the British fur traders and the 17th October,
Hudson's  Bay Company towards  tbe disputed Ib   ' 2g#
strip were, however, of a most intimate character, Count Nesselrode
as shown by the various letters of J. H. Pelly, 17th April, 1824^
Deputy   Governor   of   the   Company,   to   Mr.
Canning and others.    The following extracts are
made from a letter by Mr. Pelly to Mr. George    Settlement of the Hudson's Bay Company.
Canning, the 25th September, 1822 :— ^udson B?y
r Company to Mr.
George Canning,
" In the year 1793, Sir Alexander McKenzie crossed the 25th September,
Eocky Mountains in 56° 30' north latitude, and penetrated /)DS 1 D 24
to the Pacific Ocean in latitude 52° 20'. Immediately
after his return the British fur traders sent expeditions
and established trading posts in the country to the westward of the Eocky Mountains. New trading stations
have been gradually formed as the country was more
fully explored, and until 1821 the whole trade of an
extensive district named New Caledonia, and extending
from the mouth of Fraser's Eiver, situated about 49° north
latitude to about 60° north latitude, was carried on by the
British North-west Company.
"The partnership of the British North-west Company
being then about to expire, arrangements were made in
1821 by which the Hudson's Bay Company acquired
possession of all the forts and trading stations  of that epr
stations in New Caledonia, now occupied by the traders
and servants of this Company, are situated at the Eocky
Mountain Portage in 56° north latitude and 121° west
longitude ; on Stewart's Lake, in 54° 30' north latitude and
125° west longitude; on McLeod's Lake, in 55° north
latitude and 124° west longitude, and on Fraser's Lake, in
55° north latitude and about 127° west longitude ; and
there are several minor trading posts, the situations of
which are occasionally changed according to local circumstances. 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 Eiver, which is in about 49° north latitude,
and between the Eocky 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 Eussia or of any other foreign Power	
" This Company has trading estabhshments also in
Mackenzie's Eiver, which falls into the Frozen Ocean as far
north as 66° 30' north latitude, which carry on a trade
with those Indians who inhabit the country to the west of
that river and to the north of 60° of north latitude, and
who, from the nature of the country, can communicate
more easily with Mackenzie's Eiver than with the trading
posts in New Caledonia." CHAPTER I.
OP 1825.
Ukase of 4th September, 1821.
On the 4th September, 1821, the Emperor of App. I, p.
Russia published an Ukase, expressed to be for
the protection of Russian trade with the Aleutian
Islands and tbe part of the north-west coast of
America subject to Russia. Certain rules were
annexed to the Ukase, of which the first two
were as follows :—
" 1. The pursuits of commerce, whaling, and fishery,
and of all other industry on all islands, posts, and gulfs,
including the whole of the north-west coast of America
beginning from Behring's 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's Straits to the south cape of the Island of Urup,
viz., to the 45° 50' north latitude, is exclusively granted
to Eussian subjects.
" 2. It is therefore prohibited to all foreign vessels, not
only to land on the coasts and islands belonging to Eussia,
as stated above, but, also to approach them within less
than 100 Italian miles. The transgressors' vessel is
subject to confiscation along with the whole cargo."
By a previous Ukase, published the 27th The
December, 1799, the Emperor Paul had created
the Russian- American Company, and had granted
to it extensive privileges in this region. It was lb., p. 5.
this Company that would reap the benefit sought
to be conferred on Russian subjects by the Ukase
of 1821.
The Ukase of 1821 was communicated by
Baron Nieolay to the Marquess of Londonderry
by a despatch of the 12th November, 1821, in lb, p. 14.
answer to which Lord Londonderry, writing on
the 18th January, 1822, stated that as to the lb., p. 20.
exclusive sovereignty alleged to belong to Russia
over the territories described in the Ukase, as
also the exclusive right of navigating and trading
within tbe maritime limits therein set forth,
His Britannic Majesty must be understood as
reserving all his rights. The United States also
In the course of the discussions which arose
out of   the   Russian   pretensions,  that   Power
t December, 1799.
The Russian-American Company 15
receded from the claim to exclusive dominion
upon the seas in  question.    That part of the
controversy is not now material.    Suffice it to
say that it was ultimately set at rest by the
Award of the Arbitral Tribunal created by a
Treaty between Great Britain and the United
Behring Sea        States,   signed   at   Washington   on   the   29th
States ' Pebruary, 1892, to settle the differences which
No. 10 (1893)"     bad arisen between these two Powers respecting
the seal fishery in Behring Sea.
As regards the territorial boundary on land,
the negotiations for a settlement originated in a
suggestion made by Count Lieven to the Duke
App. I, p. 24. of Wellington in September, 1S22, and recorded
by the Duke in a Memorandum of the 16th of
that month. On this occasion Count Lieven
suggested that if Great Britain had any claim to
territory on the north-west coast of America,
such claim should now be brought forward.
These negotiations, which will be summarized
below, resulted in the Treaty of 1825, the construction of which is now in question.
The Main Points in Difference. It will be convenient, before going into detail,
to indicate broadly the points now in difference
between the parties before this Tribunal.
Atlas. App. II. In the accompanying Atlas will be found  a
map showing the different lines which have
been suggested as giving effect to the Treaty
applied to the topography as now understood.
Prom this it will be observed that at the southern
end of the line there is a dispute as to the channel
along which the boundary ought to be drawn, in
obedience to the provision which requires that it
should follow » la passe dite Portland Channel."
On the side of Great Britain it is contended
that Portland Channel means the channel which
Vancouver can be shown to have so named, that
is to say, the narrow channel north of Wales
Island and Pearse Island, and extending into the
interior for 82 miles.
The United States, on the other hand, maintain
that the wider channel to the south of these
islands must be taken to be denoted as the commencement of the channel referred to by the
expression "la passe dite Portland Channel," the
identity of which, so far as its upper part is
concerned, is not in dispute...
Great Britain, however, further contends that
if there is to be any departure from the clear
nomenclature of Vancouver, there are, as will be
hereafter explained, other channels up which the
[541] D 16
line should be drawn in preference to that suggested by the United States.
With regard to the rest of the line, the dispute
is of a somewhat different character. According App. I, p. 37.
to Article III of the Treaty, the line is to follow
the crest of the mountains situated " parallèlement à la côte " to the point of its intersection
with the 141st degree of west longitude. By
Article IV it is provided that wherever the crest
of these mountains is at a distance of more than
10 marine leagues from the ocean, the limit
between British possessions and the lisière of
coast which is to belong to Russia shall be
formed by a line parallel to the coast, and which
shall never be more distant therefrom than 10
marine leagues.
It is  to be  observed that the provision in
Article IV, just mentioned, operates  only in a
given event, and then only as a corrective of the
line primarily laid down, namely, that of  the
mountains.    The event in which it is to operate
is if the crest of tbe mountains, which extend in
a direction parallel to the coast, is at a distance
of mere than 10 leagues from the ocean.    It will
be seen from the map already referred to, and
more in detail from the large maps inclosed in the
portfolio which accompanies this Case, that, in App. ill.
•j.jî^ij.1        it i        ■       ■ i     Portfolio, British
point of fact, the whole coast region is extremely Commission Map.
mountainous,  and  that  the mountains supply,
speaking generally, the boundary stipulated for
by the Treaty.
It is contended on behalf of Great Britain
that the coast (" côte") with regard to which the
mountains are contemplated as running in a
parallel direction is the general line of coast of
tbe Ocean (referred to in Article IV), and not the
shore line of narrow inlets breaking that line ;
and, further, that the expression " montagnes
situées parallèlement à la côte" and "montagnes
qui s'étendent dans une direction parallèle à la
côte" do not necessarily denote mountain chains,
but include the case of separate mountains in the
vicinity of the coast, a line drawn through the
summits of which would, roughly speaking, be
parallel to the general line of the coast.
The contention of the United States, on the
other hand, is that there is no defined range of
mountains running parallel to the coast in this
region, but that the whole region is a " sea of
mountains,'' and that, therefore, the provisions of
Article IV become applicable, and that the
boundary is to follow, at a distance of 10 marine 17
leagues, and, even through this sea of mountains,
the sinuosities of the coast. The latter phrase
is, moreover, interpreted as requiring the line to
be deflected inland on the occurrence of every
inlet, so that it shall in no place be less than 10
marine leagues from salt water.
The above, in broad outline, are the matters in
difference, though a subordinate point may arise
as to the manner in which the termination of the
water boundary at the head of the Portland
Channel is to be connected with the point at which
the boundary commences to run by reference to
the mountains, or the 10-marine-league limit, as
the case may be.
Negotiations at Verona. A statement of the British territorial claims
App. I p. 28. having   been   invited    as    already   mentioned,
written instructions were, on the 27th September, 1822, given by Mr. Canning to the
Duke of Wellington for his guidance in connection with this question in any discussion
which he might have upon the subject with
Count Lieven at Verona. These instructions
were of a general character, and merely stated
that tbe information with which the Duke had
been furnished would enable him sufficiently
to prove to the Russian Ministers that Great
Britain, through the Hudson's Bay Company,
had an equal, if not a superior, claim to that
of Russia, and that the British claim extended
to many degrees of higher latitude than the
51st parallel. The Duke of Wellington had
several discussions with Count Lieven upon the
point, in which the extent to which occupation
had gone on either side was discussed in general
terms ; but it was afterwards agreed, as recorded
in a despatch of the Duke of Wellington to Mr.
lb., p. 32. Canning of the 29th November, 1822, that the
Memoranda recording these discussions should be
considered as "non avenus," and that the
Russian Ambassador in London should address
to Mr. Canning a note in answer to that which
Lord Londonderry had addressed to Count Lieven
on the Ukase of 1821 being communicated to him.
lb., p. 33. Accordingly, on the 31st January, 1823, Count
Lieven wrote to Mr. Canning proposing that on
both sides the question of strict right should
be provisionally put aside, and that all the
differences to which the Ukase had given rise
should be adjusted by a friendly arrangement,
founded only on the principle of mutual con-
[541' D2 18
venience, and that such arrangement should be
negotiated at St. Petersburg.
Tn pursuance of this proposal, Mr. Canning, Negotiations at St. Petersburg,
by a despatch of the 5th Pebruary, 1823, desired App | p 34
Sir Charles Bagot, the British Ambassador at
St. Petersburg, to proceed to open the discussion with the j Russian Minister upon the
basis of the instructions given to the Duke of
Owing, however, to a doubt as to the position
taken by the United States with regard to this
territory, negotiations were not actually commenced till tbe following year. Sir Charles
Bagot stated verbally to Count Nesselrode in
August 1823,. that he believed the British pre- lb., p. 45.
tensions had always extended to the 59th parallel,
but that a line of demarcation drawn at the 57th
would be quite satisfactory. In two conversations which he had later with M. Poletica, who,
in tbe absence of Count Nesselrode, was empowered to represent the Russian Government,
Sir Charles Bagot gave him to understand that
the British Government would be satisfied to take
Cross Sound,, lying about latitude 57è°> as the lb., p. 48. .
boundary between the two Powers on the coast,
and a meridian drawn from the head of Lynn
Canal as the boundary in the interior of the
continent. In reply, Sir Charles Bagot under- Ibid,
stood M. Poletica to suggest the 55th degree as
that which Russia would desire to obtain as her"
boundary, and to intimate that it would be with
extreme reluctance that Russia would consent
to any demarcation which would deprive her of
her establishment at Novo-Arcbangelsk (Sitka).
In January 1824, Sir Charles Bagot received lb., p. 59.
new instructions to proceed with the negotiations,
and on the 16th Pebruary bad his first conference
upon this question with the Russian Plenipotentiaries, Count Nesselrode and M. Poletica. He
then proposed as the boundary a line drawn ib., p. 66.
through Chatham Straits to the head of Lynn
Canal, thence north-west to the 140th degree of
longitude, and thence along that degree of
longitude to the Polar Sea.
In reply, the Russian Plenipotentiaries at the ib., p. 69.
next meeting offered a counter-proposal, which
was. afterwards, at Sir Charles Bagot's request,
reduced into writing. By this counter-proposal,
the Russian Plenipotentiaries proposed the 55th
degree of north latitude as the line of demarcation
on the north-west coast of America, being tbe 19
limit which the Emperor Paul had assigned to
the Russian possessions by his Charter to the
Russian-American Company. Purther, as that
parallel cut Prince of Wales Island in its
southern extremity leaving out of the Russian
dominions two points of land, it was proposed
that these two points should be comprised within
the Russian limit, in order to avoid an inconvenient division. To complete the line and
make it as distinct as possible, the Russian
Plenipotentiaries expressed a desire to make it,
follow the Portland Channel as far as the mountains which skirt the coast (" jusqu'aux montagnes
qui bordent la côte"). Prom that point they
suggested that the boundary should run along
those mountains in a direction parallel ("parallèlement ") to tbe sinuosities of the coast as far as
tbe 139th degree of longitude. It was explained
that the principal motive which forced Russia to
insist on the sovereignty of this fringe (îisère)
on the continent from the Portland Channel
«!?.<j.- .. northwards was that without that territory the
Russian-American Company would have no
means of maintaining their establishments, which
would be thenceforth without a " point d'appui."
and which would have no solidity. In return
Russia offered the free navigation of all rivers
which emptied themselves into the ocean within
that fringe.
There are certain observations which have to
be made upon the terms of this proposaL In the
first place, it is clear that the limit in point of
latitude which Russia was claiming in principle
was the 55th parallel, and that it was only put
further south so far as necessary to include two,
promontories on Prince of Wales Island, and to
reach on the mainland a boundary marked by a
channel. In the second place, it is clear that
the island which they understood as Prince of
Wales Island was the large island so marked on
the map, the two southern extremities of which
would be cut off by the 55th parallel of latitude.
In the third place, the extent and the function
assigned to the Iisère which Russia desired
to possess, are worthy of note. It was to be a
mere fringe, as a protection and a " point
d'appui." It will be found that this conception
of the Iisère was not departed from.
App. I, p. 70. In reply to this counter-proposal, Sir Charles
Bagot delivered an amended proposal in which
he expanded the description which the Russian 20
Plenipotentiaries had given of their proposed
line. He described this line as being traced
from the southern extremity of Prince of Wales
Island to the embouchure of the Portland Canal,
thence by the middle of that canal until it (the
line) touched " la terre ferme," thence to the
mountains which skirt the coast, and so on.   .
Sir Charles Bagot continued his despatch by
pointing out that the adoption of this line would
deprive His Britannic Majesty of the sovereignty
of all those coves and little bays which lie
between latitudes 56° and 54° 45'. On this
it is to be observed that tbe embouchure of Portland Canal as contended for by Great Britain
was ascertained by Vancouver to lie in latitude
54° 45£'. It is further to be remarked that
Sir Charles Bagot does not appear to have considered that the concession of the boundary
proposed by the Russians would have deprived
the British of all the inlets above the 56th degree
of latitude.
In this amended proposal Sir Charles Bagot App. I, p. 71.
suggested a line drawn along the middle of the
channel which separates Prince of Wales Island
and what was then known as the Duke of
York's Island from the islands to the north of
them, until it touched the mainland ; thence in
the same direction 10 marine leagues inland ;
thence northerly parallel to the sinuosity of the
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 Ibid.
(" sur la côte du continent au sud ") the Portland Canal, the 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 of the coast. They
observed that this would leave for British expansion (1) all that part of the coast (" de la côte ")
situated between the embouchure of the Portland Canal and the 51st parallel, contemplated as
the boundary in the Ukase of 1821 ; and (2) all
the territory situated between the English establishments at the 54th parallel and the origin of
tbe Portland Canal.-
Prom the language held by the Russian
Plenipotentiaries in making this proposal, it is
perfectly clear that they did  not regard   the coast ("la côte"),
as the word was used by thei
in   these   negotia
tions   as   extending   up   th
waters of Portlan
i Canal.    Had they done sc
it would have be
en impossible to describe th
Portland Canal as
the boundary on the coast c
the continent to 1
he south, nor would they hav
described their pro
posais as leaving free to Britis
expansion all the pi
irt of the coast (" toute la parti
de la côte") whic
h lay between the embouchui
of Portland Canal
and the 51st parallel.   No
again, would they
have described the Portlan
Canal as having
its  origin   inland ("dans It
Sir Charles Ba
got did not give way to th
App. I, p. 7
arguments of the Russian negotiators, but repeated his amended proposal (modified so as to
give Prince of Wales Island to Russia). This
the Russian Plenipotentiaries declined to accept,
repeating that the possession of Prince of Wales
lb., p. 74. Island without a portion of territory on the coast
situated opposite that island (" sur la côte située
vis-à-vis de cette île ") would be of no use to
At this point Sir Charles Bagot suspended the
negotiations, and by a despatch dated the 29th
lb., p. 66. March, 1824, reported to Mr. Canning the com
munications which had tab en place.    A despatch
lb., p. 75. dated the 17th April, 1824, was also addressed by
Count Nesselrode to Count Lieven, in which
he summarized and repeated the views he had
pressed upon Sir Charles Bagot. He speaks
of his proposal to make the southern frontier
of the Russian dominions terminate upon the
continent (" aboutir sur le continent ") at Portland
Canal, of which he says "l'embouchure dans
l'Ocean " is in the latitude of Prince of Wales
Island and the origin inland between the 55th and
56th degrees of latitude. Prom his language here
it is again obvious that in his view the shore at
Portland Canal is not " coast " and its waters
are not " ocean."
In the same despatch Count Nesselrode
emphasizes again and again the slender character
of the lisière which it was desired that Russia
should possess. He describes it as merely " une
étroite lisière sur la côte même," " une simple
lisière du continent," " un médiocre espace de
terre ferme " only required to enable Russia to
make use of—nay, to avoid losing—the neighbouring islands ("le moyen de faire valoir—nous dirons
plus, de ne pas perdre—les îles environnantes "). Russia, he says in conclusion, only reserves to
herself a "point d'appui," without, which it
would not be possible for her to preserve half her
The Russian proposals were laid by Mr. Canning
before the Hudson's Bay Company, and on receipt App. I, pp. 78,80.
of their Renort Mr. Canning wrote to Count
Lieven on the 29th May, 1824, announcing that lb., p. 81.
Sir Charles Bagot's discretion would be so far
enlarged as to enable him to admit with some
qualifications the terms last proposed by the
Russian Government. The qualifications would
consist chiefly in a more definite description of
the limit to which the strip of land required by
Russia on the continent was to be restricted, in
the selection of a somewhat more western degree
of longitude, as tbe boundary to the northward of
Mount Elias, and in precise and positive stipulations for the free use of rivers, &c.
On   the   12th  July,   1824,  the  instructions jb#) « 35
referred to were sent to Sir Charles Bagot, with
a draft Convention to which he was authorized to
consent.    Articles II and III of this draft Convention were as follows :—
". La ligne separative entre  les possessions  des  deux ib., p. 87.
Hautes Parties Contractantes sur le continent et les Iles
de l'Amérique du Nord-ouest sera tracée de la manière
suivante :—
"En commençant des deux points de l'isle dite du
Prince de Galles, qui en forment l'extrémité méridionale,
lesquels points sont situés sous le parallèle de 54° 40' et
entre le 131e et le 133e degré de longitude ouest (méridien
de Greenwich), la ligne de la frontière, entre les possessions Britanniques et Eusses remontera, au nord, par la
passe dite le Portland Channel jusqu'à ce qu'elle touche à
la côte de la terre ferme située au 56e degré de latitude
nord. De ce point elle suivra cette côte, parallèlement à
ses sinuosités, et sous ou dans la base vers la mer des
montagnes qui la bordent jusqu'au 139e degré de longitude
ouest du dit méridien. Et de là, la susdite ligne méridionale du 139e degré de longitude ouest en sa prolongation
jusqu'à la Mer Glaciale formera la limite des possessions
Britanniques et Eusses sur le dit Continent de l'Amérique
du Nord-Ouest.
" Il est convenu, néanmoins, par rapport aux stipulations
de l'Article précédent—
" 1. Que la susdite lisière de côte sur le Continent de
1 Amérique formant la limite des possessions Eusses ne
doit, en aucun cas, s'étendre en largeur depuis la mer vers 23
l'intérieur, au delà de la distance de lieues maritime;
à -quelque distance que seront les susdites montagnes..
" 2. Que les sujets Britanniques navigueront et commerceront librement à perpétuité sur la dite lisière de
App. I, p. 85. By the covering despatch it was left to Sir
Charles Bagot to agree to a distance (left blank in
Article III of the draft) to which the breadth of
the lisière was to. be limited, provided that he
w"as not authorized to agree to a greater distance
than 10 marine leagues. The covering despatch
also shows that this provision was due to the
uncertainty as to the real position of the
mountains which appeared almost to border
the coast.
The   Russian    Plenipotentiaries   delivered   a
counter-draft, in which Articles I and II were as
follows :-
Ib., p. 94. « La ligne de démarcation entre les possessions des deux
Hautes Parties Contractantes sur la côte nord-ouest de
l'Amérique et les îles adjacentes sera tracée ainsi qu'il
suit :—
"A partir des deux points qui forment l'extrémité
méridionale de l'île dite du Prince de Galles, laquelle
appartiendra tonte entière à la Eussie, points situés sous
le parallèle du 54° 40' de latitude nord et entre les 131e
et 133e degrés de longitude ouest (méridien de Greenwich),
là ligne de la frontière entre les possessions Eusses et les
possessions Britanniques remontera au nord par la passe
dite le Portland Channel, jusqu'au point où cette passe se
termine dans l'intérieur de la terre ferme au 56e degré de
latitude nord. De ce point, elle suivra cette côte parallèlement à ses sinuosités jusqu'au 139e degré de longitude ouest
(même méridien) et de là, la frontière entre les possessions
respectives sur le Continent Américain sera formée par la
ligne du susdit degré de longitude dans sa prolongation
jusqu'à la Mer Glaciale.
"La lisière de la côte nord-ouest appartenante à la
Eussie depuis le Portland Channel- jusqu'au point d'intersection du 139e degré de longitude ouest (méridien de
Greenwich) n'aura point en largeur sur le continent plus
de: 10 lieues marines àpartir du bord de la mer."
[541] E It-will
tracting J
west coas
3e noticed that, at the commencement
icle, the possessions of the High Con-
arties'are described as "on the north-
instead of " on the continent and islands of northwest America," as in Mr. Canning's draft; and in
the body of tbe Article, Portland Channel is
described as terminating " dans l'intérieur de la
terre ferme." It seems clear that, in the whole
course of these negotiations, Count Nesselrode
used the term "côte" as meaning the general line
of the continent.
The draft  Convention above examined was App. I, p. 92.
declined by Sir Charles Bagot.
In tbe meantime, Mr. Canning's draft had
been submitted to Count Lieven in London, upon
which he suggested that tbe line would be more
conveniently drawn along" the top (" la cime ")
than along the base of the mountains. He made
this suggestion in view of the difficulty which
there might be in defining tbe base of the
mountains and of the possibility, having regard
to the uncertainty of topographical information
with respect to the region in question, that the
mountains named might extend to the very
edge of the coast. The Memorandum in which
Count Lieven embodied this suggestion was
enclosed in a despatch from Mr. Canning to Sir
Charles Bagot of the 24th July, 1824, in which lb., p. 90.
Sir Charles Bagot was instructed to accept the
alteration (if pressed), provided always the
stipulation as to tbe maximum width of the
lisière was adopted. Before, however, the
despatch reached Sir Charles Bagot the negotiations had been suspended by his rejection, as
before mentioned, of the Russian draft Convention. At this juncture, Sir Charles Bagot ceased
to be tbe British Ambassador at St. Petersburgh,
and Mr. Stratford Canning was named by His
Britannic Majesty as Plenipotentiary to conclude
and sign the Convention desired.
On   the   8th   December   1824   Mr   George Tbe Knal îfegotàaJîoi
Stratford lb., p. 112. Ib., p. 125.
uncertainty as to
he exact p<
>sition o
tains, had been
adopted as
the g
Mr. Stratford Can
ning was i
could not be assen
ted to ; but
he was
where the moun
ains were
the   be
accept the sum mi
the line of demar
cation.    A
draft "
inclosed to serve
as a guide
m draw
Article III of the draft accordingly
to the Russian Plenipotentiaries ran as
App. I,p 122. "La  lig
Hautes Pa
les Isles de l'Amérique nord-ouest sera tracée ainsi qu'il
suit :—
" Commençant du point le plus méridional de l'Isle dite
Prince of Wales, lequel point se trouve sous le parallèle
de 54 degrés 40 minutes, et entre le 131™ et le 133me
degré de longitude ouest (méridien de Greenwich), la dite
ligne remontera au nord (l'Isle Prince of Wales appartenant en entier à la Eussie) le long de la passe dite Portland
Channel, jusqu'à ce qu'elle touche à la côte de terre ferme
au 56me degré de latitude Nord ; depuis ce point-ci, où la
ligne de démarcation touche au 56me degré, elle suivra la
crête des montagnes dans une direction parallèle à la côte
jusqu'au 141me degré de longitude (même Méridien).
" Pourvu néanmoins, que si la crête des susdites montagnes, dans quelque partie que ce soit, de leur étendue se
trouvera située à plus de dix lieues maritimes de la Mer
Pacifique, la ligne de démarcation pour cet espace sera
une ligne parallèle aux sinuosités de la cote, de manière
que la dite ligne de démarcation ne sera en aucune partie,
à plus de dix lieues de la côte.
" Il est, de plus, convenu que nul établissement ne sera
formé par l'une des deux parties dans les limites assignées
par cet Article à l'autre; les sujets Britanniques ne
. formeront aucun établissement, soit sur la côte, soit sur
la lisière de terre ferme comprise dans les limites des
possessions Eusses, telles qu'elles sont désignées par cet
Article ; et, de même, nul établissement pareil ne sera
formé par des sujets Eusses' au delà des dites limites."
The Russian negotiators amended the language
of Mr. Stratford Canning's draft, which, as recast
by them, read as follows :—
"La li*ne de dém
arcation entre les possessions
Hautes Parties Contra
étantes sur le continent et les
de l'Amérique Nord-0
uest sera'traeée ainsi qu'il suit
"A partir du poin
t le plus méridional de l'Isle
Prince of Wales, leque
1 point se trouve sous la pan
du 54 degrés 40 minut
es de latitude nord et entre le 1
[541] 26
et le 133me degré ' de longitude ouest (méridien .de
Greenwich), la dite ligne remontera au nord le long jcle
a passe dite Portland Channel jusqu'à l'endroit où cette
passe se termine dans l'intérieur de la terre ferme au 56me
degré de latitude nord—depuis ce dernier point la ligne de
démarcation suivra la crête des montagnes dans une
direction parallèle à la côte, jusqu'au point d'intersection
de 141me degré de longitude ouest (même méridien).
" Il est entendu—
11. Que l'île dite Prince of Wales appartiendra tout
entière à la Eussie.
" 2. Que la lisière de côte mentionnée ci-dessus, qui
doit appartenir à cette même Puissance et remonter de
la parallèle du 56° de latitude nord au point d'intersection du 141° de longitude ouest aura pour- limites
la crête des montagnes ainsi qu'il a été dit plus
haut, mais que partout où la distance entre la crête des
montagnes et la mer se trouverait de plus de dix lieues
marines, la limite de cette même lisière sera formée par
une ligne parallèle aux sinuosités de la côte, et qui ne
pourra jamais s'éloigner de la mer que de dix lieues
" 3. Qu'à partir du point d'intersection du 141e degré
de longitude ouest, la ligne de ce même degré formera
dans son prolongement vers la Mer Glaciale la frontière
entre les possessions respectives des Hautes Parties Con-
It is to be observed that tbe lisière in this
draft is treated as commencing not at the mouth
of Portland Channel but at tbe 56th parallel.
On the 1st March Mr. Stratford Canning App. I, p. 13a.
Avrote that be had signed the Convention. He
described the line of demarcation as laid down
agreeably to Mr. George Cannings directions,
notwithstanding some difficulties raised by the
Russian Plenipotentiaries. The communications
which passed between Mr. Stratford Canning and
the Russian Plenipotentiaries do not seem to
have been recorded further than appears by the
drafts above-mentioned.
On the 13th March Count Nesselrode addressed
a despatch to Count Lieven transmitting the lb., p. 13K
ratification of the Convention concluded with
Mr. Stratford Canning. Count Lieven was
instructed, when exchanging this instrument for
that to be delivered by tbe British Government,
to observe to Mr. G. Canning that it would, in
the opinion of His Imperial Majesty, have been
more in accordance with the principles of mutual
justice and reciprocal convenience to give as a • 27
frontier to the lisière of coast which Bussia was
to possess from the 56th degree of north latitude
to the point of intersection of the 141st meridian
of west longitude the crest of the mountains
which follow the sinuosities of the coast. This
stipulation would have assured to the two Powers
a perfect equality of advantages and a natural
limit. England would have profited wherever
the mountains were less than 10 marine leagues
from tbe sea, and Russia wherever the distance
separating them from it was greater. It appeared
to Russia, Count Nesselrode said, that in the case
of countries the geography of which was still
little known it was impossible to propose a more
equitable arrangement.
It is clear from this despatch that it was well
understood that in no event would the boundary
run further from the sea than the summit of the
mountains, tKat tbe 10-league limit was inserted
to provide for the contingency that these
summits might be more than 10 leagues inland,
and that the summits were selected instead of
the base as giving the dividing line—to provide
for the contingency that the base might run
down to the sea itself.
In reporting to Count Nesselrode the exchange
of tbe ratifications, Count Lieven stated that he
had made a point of observing to the Secretary
of State how rigorous the limitations insisted
on by Great Britain appeared to the Imperial
Government, CHAPTER   II.
During   the period for   which    the   country
■ ;!       mown as   Alaska  remained  part  of  the
Russian dominions—that is to say, till 1867—
nothing occurred to bring up tbe question of the
application, upon the spot, of the boundary prescribed by the Treaty of 1825, except a difficulty
as to passage up the Stikine River (dealt with
hereafter), which concerned rather the right of
navigation than the location of the boundary.
In 1871 British Columbia was .incorporated
into Canada. No survey of the boundary-line
between that province and Alaska had ever been
made, and the whole region was then unknown
and practically inaccessible. The Dominion
Government, however, at once took steps in the
direction of getting the boundary ascertained.
On the 11th July, 1872, the Lieutenant-Governor
of British Columbia forwarded to the Dominion App. I, p. 163.
Government the copy of an address to him from
the provincial Legislative Assembly reciting that
the boundary-line between the adjoining territories of Alaska and the Province of British
Columbia had never been properly defined, and
requesting, especially in view of the probable
development of mining operations in the northern
part of that province, that the Dominion Government should take some action at an early date to
have the boundary properly laid down.
Tbe  Dominion  Government  acceded to  this
request in a Report of a Committee of the Privy
Council approved by the Governor-General on the
20th September, 1872. This Report was forwarded lb., p. 163.
to Her Majesty's Government, and Sir Edward
Thornton,  British  Ambassador at Washington, Negotiations for Delimitate
was instructed to approach the  United States' begun November
Government upon the subject. A despatch
from Sir Edward Thornton to Earl Granville
of the 18th November, 1872, shows that he
had mentioned the matter to Mr. Pish. The lb-, p. 164.
result of this communication was that the
President, in his annual Message to Congress
on the 2nd December, 1872, recommended the
of Boundary, 29
ire of United States' Cong
provide for Survey.
Ib., p. 168.
Mr. Fish suggests Delimitation at River
Major Camero
s Report.
Ib., p. 179.
appointment of a Commission " to act jointly
with one that may be appointed on the part of
Great Britain to determine the line between
the territory of Alaska and the co-terminous
* possessions of Great Britain." On the 17th
December, 1872, a Bill to provide for the
determination of tbe boundary-line was laid
before Congress and read a second time. The
proposal, however, fell through on account of
the unwillingness of the United States to incur
the necessary expense.
On the 12th Pebruary, 1873, Mr. Pish
informed Sir Edward Thornton that the cost
of the survey would be about 1,500,000 dollars
for the United States alone, and tbat it could
not be completed in less than nine years in
the field and one in the office. He suggested
that it would be sufficient to decide upon some
particular point, such as the head of Portland
Canal, the points where the boundary crosses the
Rivers Shoot, Stakeen, Taku, Iselcatt and Chel-
kaht, Mount St. Elias, and the points where the
141st meridian crosses the Rivers Yukon and
Sir Edward Thornton's despatch referring to
Mr. Pish's statement was communicated to the
Canadian Government ; and by a despatch of the
27th November, 1873, the Governor-General requested Major Cameron, Her Majesty's Boundary
Commissioner, to furnish an approximate estimate
of the cost and of the time required for carrying
out the objects of any Commission, that might
be appointed to determine and define the
boundary-line between British Columbia and
Alaska. Major Cameron was supplied with a
copy of Sir Edward Thornton's despatch, and later
with a Memorandum made by Mr. J. S. Dennis»
the Surveyor-General of the Dominion, in which
the cost of a survey, limited in the sense suggested,
by Mr. Pish, was discussed.
On the 18th Pebruary, 1875, Major Cameron
sent in his Report, in which he exhaustively'
discusses the relative difficulty and cost of the
proposed survey, whether limited as proposed by
the United States or carried along the whole
boundary. With reference to the scope of the
survey, he makes the following observations :—-
" While the United States' Government ha
cated a definite plan of procedure, and nar
points of the boundary which they consider it* 30
should be marked', theGovernment of Canada make no
rofrrence to such details, and, therefore, leave it to be
assumed that they expect the terms of the Treaty to be
fully and strictly carried out.
" The cost of marking the line -will be seriously
affected by the view which may prevail on this
Settlers on Stikine River-
No action was taken on Mr. Pisb's suggestion
or. upon the reports of Mr. Dennis and Major
In 1875, a question having arisen as to whether
certain settlers on the  Stikine River were in
British or United States' territory, the boundary
again formed tbe subject of discussion between
Sir Edward Thornton and Mr. Pish.   A despatch
from Sir Edward Thornton to Lord Derby, dated App. I, p. 183.
the 27th September, 1875, records that Mr. Pish
had  communicated to him a couple of letters
received from the United  States' Collector of
Customs at Sitka, in which it was alleged that
the point where the settlement was established
was   below the  British   custom-house   on  the
Stikine, which custom-house was also supposed
to  be within United   States' territory,  that is
within 10 marine leagues from the coast.    Mr.
Pish then asked Sir Edward Thornton what he
thought could be done to settle the question of
jurisdiction.    Sir Edward Thornton replied that     Sir Edward Thornton presses
the occurrence went to prove the wisdom of the
recommendation of Her Majesty's Government
that no time should be lost in laying down tbe
boundary between the two territories.   As it was,
he. said   he could see no way of deciding the
question except by sending officers on behalf ot
each country to take observations and determine
on,whose territory the new settlers had established
themselves.   He observed that when the question
of. laying  clown  the boundary was   discussed
about two years before, it was suggested that if
the whole survey could not be made the points
where the territory met could be fixed on the
rivers which run through both of them.    Mr.
Pish replied that even for this partial survey he
feared it would be difficult to obtain the necessary i
J   lb., p. 183.
grant during the next session of Congress,, but he
suggested that as the weight of evidence seemed
at present to be in favour of the point in question
being in United   States'  territory, the  settlers
should be called upon to suspend operations for
the  present and until the question of territory
could be decided.
Ib., p. 183.
Unwillingness of United State
to provide for even partial
s' Cong
Survey. The Case of Peter Martin.
Canadian Government sends Engineer to
locate approximate boundary on
Stikine River.
App. I, p. 224.
This despatch was laid before a Committee of
the Privy Council of Canada, who reported that,
in view of the circumstances represented by Mr.
Pish, the Government deemed it desirable that
an officer should be sent by the Government of
Canada or of British Columbia to ascertain
whether the settlement alluded to and the British
custom-house were within British territory. The
Report points out that by the terms of the Treaty
that portion of the boundary extending from
the 56th degree of north latitude to the intersection of the 141st degree of west longitude followed the summits of the mountains which
extended in a direction parallel to the coast, and
should these summits prove to be more than 10
marine leagues from the ocean the line should be
drawn parallel to the windings of the coast, and
should never exceed a distance of 10 marine
leagues therefrom. The Report further points
out that, as the line rested on so intricate a basis,
a satisfactory solution could only be arrived at by
accurately defining the point where the boundary
intersects the Stikine River, and concludes with
a recommendation that this point, if no other,
should at once be settled.
In 1876 attention was again drawn to the
Stikine River by the case of a convict named
Peter Martin, in charge of Canadian constables,
who had committed an assault upon one of them,
for which he was tried and convicted in the. British
Columbian Court, at a point upon the Stikine
alleged to be upon the United States' territory.
A question also arose as to whether an establishment kept by a Canadian named Choquette on
the same river was situated on British or United
States' territory.
Under these circumstances, the Canadian
Government, in March, 1877, sent Mr. Joseph
Hunter, an engineer, to the Stikine River with
instructions to ascertain with approximate accuracy the boundary on the said river between
Canada and Alaska. His instructions, which
were signed by Mr. Dennis, the Surveyor-General
of the Dominion already mentioned, required
him to lay down with approximate accuracy the
crossing of the river (should the • same occur
within 10 marine leagues of the coast) by a line,
in the words of the Treaty, "following the
summit of the mountains parallel to the coast."
The instructions further stated that it was
assumed that the point on the river where the
[541] P 32
line would cross, connecting the two highest
peaks of the mountains situate parallel to the
coast adjoining on either side of the river (if
within the distance of 10 marine leagues from
the coast, measured and estimated on a course
at right angles to the general bearing thereof
opposite), would give the crossing of the river
by the international boundary at that point.
A tracing was inclosed showing, such general
direction, and embracing 30 miles on each side
of the Stikine, such general direction being
taken as north 32° west, or south 32° east true.
Mr. Hunter was required, therefore, " to lay off
or estimate the 10 marine leagues on a course at
right angles thereto, or north 58° east."
In his Report, dated June 1877, Mr. Hunter     Engineer's Report on Survey at Stikine.
stated that the crossing of tbe river by a line A     j     226. 1877.
following the summit of the mountains parallel
to the coast was situated at 1913 miles from the
coast, in a direction at right angles thereto.
Peter Martin had, in any view, been conveyed
in custody through United States' territory, and
he was therefore set at liberty.
The above facts and documents are referred to
as showing that, when there was a question of
applying the Treaty boundary on the spot, the
Canadian Government put forward their view in Isaaci
strict accordance with the Treaty, working from
the general direction of the coast-line, and acting
on the principle that the 10 marine leagues line
was to be applied only in the absence of mountains within that limit.
By a note dated the 15th January, 1877, Sir      Sir Edward Thornton again presses for
-oj„jmiA             c-         j.zi                    j;                 definition of the Boundary.
Edward   Thornton,   referring   to   the   case   of   J
Mr.  Choquette,   above   mentioned,   had   again l| p- 202. 1877»
drawn the attention of Mr. Pish to the expediency of defining the boundary. In this note
Sir Edward Thornton makes use of the following
language :—
| The general impression with regard to the
boundary seems to be as follows: The Russian Convention of 1825 places it on the summit of the coast
range of mountains when within 10 marine leagues, and
when that range is not within 10 marine leagues then
at the 10 marine leagues from the coast, but under no
circumstances further in the interior. The coast range
rises immediately from tide waters, and the summit of
that range appears to be within 15 miles of the sea.
This is shown by the fact that in the following up
the valley of the Stikine, the axis of the range is
passed at 15 miles from the coast; to this distance
from the sea the course of the river bears easterly; 33
thence rounding the range in
receiving four or five glaciers whic
direction from the summit of the r
the Stikine.
question   noi
Sir Edward Thornton then proceeds to point
out that these were facts which could not be
positively decided without an actual survey. He
stated that he had been instructed to urge upon
the Government of the United States to unite in
a joint Commission to determine the point
where the boundary intersected the Stikine River
and on such other points on the boundary-line as
might be considered advisable. In the meantime the status quo should be maintained. In
conclusion, he added that if there were reasons
which prevented the Government of the United
States from agreeing to steps being taken for
settling the boundary-line, Her Majesty's Government hoped that at least it would agree to some
arrangement or modus vivendi by which no fresh
claim injurious to either could be raised or
In reply to this note, Mr. Pish, on the 20th
Pebruary, 1877, informed Sir Edward Thornton
that the attention of Congress had been requested
Congress again fails^top-ovide for Survey.   to   t]ie   subject.    Congress,  however,  separated
without any action having been taken.
On the 1st October, 1877, Mr. Plunkett, the
British Chargé d'Affaires at Washington, wrote
to Mr. Evarts, who had succeeded Mr. Eisb,
again asking to have the matter brought to the
notice of the United States' Government. Mr.
Evarts, on the 10th October, 1877, replied that
the subject would again be brought to the
attention of Congress upon its reassembling.
On the 13th December, 1877, Sir Edward
Thornton called at the State Department in
Washington for the purpose of again urging on
Mr. Evarts the expediency of taking measures to
settle the boundary. Not finding Mr. Evarts, he
spoke to Mr. Seward, who suggested that, with
regard to the Stikine, a provisional boundary
might be arranged by »n engineer on each side.
Upon this suggestion being brought to the attention of the Canadian Government, it was recommended by a Committee of the Privy Council
that Sir Edward Thornton be informed that the
Canadian Government hade already sent Mr.
Hunter to the spot, and that copies of his Report
had been sent to the British Legation and for
the Eepartment of State at Washington.
[541] P 2
App. I, p; 219.
Great Britain again presses for délimitât
of Boundary.
Ib., p. 235.
Ib., p. 236.
Sir Edward Thornton again n
Mr. Seward suggests provisional line.
Ib., p. 238. •  34
On   tbe   19th   January,   1878,   Sir   Edward App. I, p. 241. 1878.
Thornton transmitted to Mr. Evarts a copy of
Mr. Hunter's Report, accompanied by a map
showing the points where the boundary crossed
the river, and inquired whether the Government
of the United States would accept the boundary
so ascertained until tbe exact line could be
regularly determined.    By a note of  the 20th
Pebruary, 1878, Mr. Evarts accepted this tern- Hunter's line on Stikine accepted
porary arrangement, provided it was understood provisionally,
that it was not to be construed as affecting in jb., p. 242.
any manner tbe rights under the Treaty to be
determined whenever a joint survey should be
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.
No further communications of importance with Mr. Dall's letter to Mr. Dawson,
respect to this subject took place between tbe
two Governments until 1884, when the question
entered on a new phase. On the 24th April in
that year Mr. Dall, an officer of the United
States' Survey, writing semi - officially to ib#) p. 248.
Mr. Dawson, the Director of the Geological
Survey of Canada, advanced the theory that a
boundary according to the Treaty was impossible. " There being," he wrote, " no natural
boundary, and the continuous range of mountains parallel to the coast shown on Vancouver's
Charts having no existence as such, the United
States would undoubtedly wish to fall back on
the line parallel to the windings of the coast,
and which shall never exceed the distance of
10 marine leagues therefrom of the Treaty. It
would, of course, be impracticable to trace any
such winding line over that ' sea of mountains.' "
The idea put forward by Mr. Dall was adopted Mr. Dall's idea adopted by United
by the Government of the United States.    In a States' Government,
despatch addressed to Mr. Phelps, the  United ib., p. 251. 1885
States' Ambassador in London, on the 20th
November, 1885, Mr. Bayard, the United States'
Secretary of State, referred to the question of the
Alaskan   boundary.    He   said    the   boundary
agreed upon by the Treaty of 1825 was then, and                     Mr> Bayard's views
still was, a theoretical one, based on the charts 	 35
the negotiators had before them. He stated that
he was not aware that any question had arisen,
with regard to it between Great Britain and
Russia before 1867, and that it was certain that
none had arisen since between the Governments
of Great Britain and the United States. Dealing
with the water boundary at the south of the line,
he treated Portland Channel as lying to the
south of Wales Island—a conclusion which he
apparently based on the assumption that the
Prince of Wales Island referred to in the Treaty
Was the island now (but not in 1825) known as
Wales Island.
With regard to the eastern boundary Mr.
Bayard wrote as follows :—
" There is, however, ample ground for believing'
that the erroneous premises upon which the negotiators
apparently based their fixation of the inland boundary-
line along the coast render its true determination and
demarcation by monuments a matter of doubt and
difficulty in carrying it into practical effect ; and that, in
prevision of the embarrassments which may follow delay
in the establishment of a positive frontier line it is the
interest and the duty of the two Governments to reach
a good understanding which shall forthwith remove all
chance for future disagreement."
of United States' Government On the 19th January, 18S6, Mr. Phelps, in
municated to Great Britain. "- -,, ... .    ■ .i       -»«- •        n
  formally   communicating   to   the   Marquis   or
App. I, p. 254.       Salisbury the views of his Government, observed
that the boundary indicated by the Treaty had
no apparent ambiguity, but that it was described
and established when the region through which
it ran was entirely unexplored.    With reference
to  the   10-marine league   line,  he   writes   as
follows :—-
" The only other indication of this part of the boundary
contained in the Treaties, the limit of 10 marine leagues
from the ocean, equally fails of practicable location.
The coast proves, upon survey, to be so extremely
irregular, and indented with such and so many projections and inlets, that it is not possible, except at immense
expense of time and money, to run a fine that shall be
parallel with it, and if such a line should be surveyed,
it would be so confused, irregular, and inconsistent, that
it would be impossible of practical recognition, and
would differ most materially from the clear and substantially straight line contemplated in the Treaties."
Mr. Phelps added, as the result of the whole
matter, that
"These Treaties ***** really give no boundary
at all so far as this portion of the territory is concerned." 36
The despatch concluded by suggesting that a
Commission be agreed on to acquire materials to
serve as a basis for the establishment of a
boundary-line by Convention.
In the note above referred to, Mr. Phelps had Geological Map of Canada,
asked to be furnished with a copy of a certain
map of the Dominion of Canada geologically
coloured, which had been referred to by
Mr. Bayard. In forwarding this map on the
27th August, 1886, the Earl of Jddeslekh draws App. I, p. 255.
Mr. Phelps' attention to tbe fact that the Alaska
boundary shown therein was merely an indication of the occurrence of a dividing-line
somewhere in that region. It would, wrote his
Lordship, be clearly understood that no weight
could attach to the map location of the line
denoted, inasmuch as the Convention between
Great Britain and Russia made its location
dependent on alternative circumstances, the
occurrence or non-occurrence of mountains, and,
as was well known to all concerned, the country
had never been topographically surveyed. The
note ended by a distinct disavowal on the part of
Her Majesty's Government of the correctness of
the line shown.
In view of the importance which has been
attached in the present controversy to the
location of the line in a number of maps (to be
referred to elsewhere in this Case), it is important
to direct' attention to the language held by Lord
Iddesleigh on this, the first occasion, when such
a map was handed by a Representative of the
British to a Representative of the United States'
Government, and immediately after the problems
presented by the topography had attracted attention. In fact, the line depicted upon this map
was of the character which had been recently
described by Mr. Bayard as conjectural and
No survey was made as suggested by
Mr. Phelps.
In   1887   the   attention    of   Her    Majesty's       Lieutenant Schwatka's Reconnaissance.
Government was drawn to the report made by 	
Lieutenant Schwatka, of the United States' army,
of a military reconnaissance conducted by him
in Alaska in 1883, in which he stated that he
had traversed Perrier Pass, and used language
implying that it defined the boundary. Acting
on instructions from his Government, Sir Lionel
West, the British Ambassador at .Washington,
"by a note dated the 14th September, IS87, pointed lb., p. 257. 37
The Da
rson-D all Conferences.
Report of Conferences laid before Cong
Propoèed trail over White Pas
out to Mr. Bayard that this was not admitted hj
Great Britain.
During the Pisheries negotiations between
Great Britain and the United States, held at
Washington in 1887-88, several informal Conferences took place, at the request of the British
Commissioners, between Messrs. Dall and Dawson,
at which the possibility of agreement upon certain
conventional lines was discussed, but no result
was reached from the report of these experts, the
United States' Commissioners taking the ground
that their powers did not authorize them to treat
for an adjustment of the Alaska boundary.
The  Report of these   Conferences  was laid
before Congress by the President of the United
States, and this document included a letter from
50tii Congress,     j)r> Dawson, jn which the Canadian contention
2nd Sess., Sen.
Ex. Doc, No. 146. as to the line crossing inlets is clearly put forward,
and a letter in which this contention is combated
with vigour by Mr. Dall, the American expert.
This Beport contained a map showing how the
boundary would run in accordance with the views
presented by Dr. Dawson. On it the line is
clearly marked as crossing the Lynn Canal in the
vicinity of Berner's Bay.
This was the first occasion on which the boundary question had been discussed from the point
of view of strict right since the topographical
questions had emerged.
In June, 1888, information reached the Canadian
Government to the effect that certain persons
were about to receive a charter from the
Alaskan authorities to construct a trail from.
Lynn Canal by way of the White Pass to the
interior of Alaska. In bringing this rumour to
the attention of Sir John Macdonald, the
then deputy of the Minister of the Interior
observed :—
App. II.
Map. No. 34.
App. I, p. 264. " In view of the well-based contention on our part
that the heads of the larger inlets which penetrate that
portion of Alaska which consists of the coast-line from
> Mount St. Elias to Portland Channel, and more particularly the head of Lynn Canal, are within our
territory, it would appear to be important to protest
against the granting of any rights by the United States
or Alaskan Governments at the heads of these inlets."
Canada's Protest.
Ib., p. 265.
The attention of Lord Salisbury was at
once called to this matter, "and Her Majesty's
Minister at Washington instructed to inform the
United States' Government that this Report had -reached Her Majesty's Government, by whom it
was presumed to be unfounded, " as the territory in question is part of Her Majesty's
Sir Lionel West, in communicating upon this App. b P- 2
matter with the United States' Government,
omitted to specify precisely the locality to which
the report had reference, and Mr. Bayard replied Ibid,
that neither his Department nor, as he stated in
a subsequent note, the Department of the Interior had any information as to any proposed
action of the character described.
In April, 1891, the attention of the Canadian
Government was drawn to a Keport of the United
States' Coast and Geodetic Survey, in which it
was stated that a survey was about to be made
under the authority of Congress, which would
involve the marking by monuments of a line
through tbe Portland Canal to the 56th degree
of latitude, thence north-westerly following
as nearly as might be practicable the general
trend of the coast at a distance of about 35
miles from it to the 141st degree of west
longitude, thence due north to the Arctic
Upon this Sir Julian Pauncefote was instructed
to remind the United States' Government that
tbe boundary at this point was at that present lb., p. 268.
time the subject of some difference of opinion
and of considerable correspondence, and that the
actual boundary-line could only be properly
determined by an International Commission.
Sir Julian Pauncefote accordingly, on the 5th
June, 1891, addressed a note to Mr. Blaine in
conformity with these instructions.
In Pebruary 1892 a Conference took place
between Delegates from the Canadian Government and the United States' Secretary of State,
relating primarily to the extension and development of trade between the United States and the
Dominion. At this Conference an agreement
was reached respecting the Alaska boundary,
which was embodied in a Convention signed at
Washington on the 22nd July, 1892.
The preamble of this Convention recited that
the parties were equally desirous of providing for
the removal of all possible causes of difference
between the respective Governments thereafter in
regard to the delimitation of the existing boundary between their possessions in America in
respect  to such portions of  said boundary as
Proposed United States' Survey of
Through Portland Canal.
The general trend of the Coast.
Great Britain's Protest.
Convention, 22:
lb., p. 269. 39
might not, in fact, have been permanently;
marked in virtue of Treaties theretofore concluded.
Article I provided as follows -.:—
App. I, p. 269. «The   High   Contracting   Parties   agree   that   a
coincident or joint survey (as may be found in practice
most convenient) shall be made of the territorv adjacent
to that part of the boundary-line of the Dominion of
Canada and the United States of America, dividing the
Province of British Columbia and theNorth-westTerritory
of Canada from the territory of Alaska from the latitude
of 54° 40' north to the point where the said boundary-
line encounters the 141st degree of longitude westward
from the meridian of Greenwich by Commissions to be
appointed severally by the High Contracting Parties,
with a view to the ascertainment of the facts and data
necessary to the permanent delimitation of said
boundary-line in accordance with the spirit and intent
of the existing Treaties in regard to it between Great
Britain and Russia and between the United States and
"Application will be made without delay to the
respective Legislative Bodies for the appropriations
necessary for the prosecution of the survey, and the
Commissions to be appointed by the two Governments
shall meet at Ottawa within two months after said
appropriations shall have been made, and shall proceed
as soon as practicable thereafter to the active discharge
of their duties.
"The respective Commissions shall complete the
survey and submit their final Reports thereof within
two years from the date of their first meeting.
" The Commissions shall, so far as they may be able:
to agree, make a Joint Report to each of the two
Governments, and they shall also report, either jointly
or severally, to .each Government on any points upon
which they may be unable to agree.
i Each Government shall pay the expenses of the
Commission appointed by it.
"Each Government engages to facilitate in every
possible way any operations which, in pursuance of the
plan to be agreed upon by the Commissions, may be
conducted within its territory by the Commission of the
" The High Contracting Parties agree that, as soon
as practicable after the Report or Reports of the Commissions shall have been received, they will proceed to-
consider and establish the boimdary-line in question."
Mr. W. P. King was appointed Her Majesty's
Commissioner, and the United States appointed
Dr. T. C. Mendenhall, afterwards succeeded by
General William Ward Duffield.   The period for
[541] G 40
making this Report was afterwards enlarged to        Period for making Report extended.
the 31st December, 1895, by a Supplementary App ^ p 27L
Convention1 signed in Pebruary 1894.
It is to be observed that the Convention of the
22nd July, 1892, has reference to an existing
boundary, and that it provided for the ascertainment of tbe facts and data necessary to its
permanent delimitation in accordance with the
spirit and intent of the existing Treaties. In
view of contentions which have since been put
forward in the course of this controversy, that
the claim of the United States receives support
from effect having before this date been given to
their interpretation of the Treaty of 1825 by
maps published or acts done with the acquiescence
of Great Britain, it is important to observe that
by this Convention the rights of the two Governments concerned are by agreement referred back
to the Treaties. The facts and data to be ascertained were to be so ascertained by a joint survey.
Previous cartography or acts of settlement were
not embraced in the work authorized by the
Convention, nor did the Commissioners, who
properly confined themselves to the Convention
under which they were appointed, report upon
such cartography or acts of settlement, if any
Tne    Commissioners    presented    their    Joint    Report of Commissioners, 31st December,
Report on the  31st December, 1895, followed ib., p. 282.   1895
in March, 1896, by   elaborate maps,   a  repro- App. in.   Portfolio.
duction of which accompanies this Case.    The
topographical results  of   their  survey are  examined elsewhere.
Gold having been discovered in the Valley of Discovery of gold in the Klondike,
the Yukon beyond the passes lying at the head 1896.
of Lynn  Canal, great traffic was attracted to
that region in the year 1897.   The circumstances Rush to the Gold-fields.
of   settlement   of   the   disputed  territory,  and 1897,
claims based thereon, arising out of this movement, are treated elsewhere.      Pollowing these        Sir Julian Pauncefote proposes determents,   Sir   Julian   Pauncefote,   on   the   23rd mination of Boundary.
Pebruary, 1898, proposed to Mr. Sherman that -,898
the determination of the  boundary should be App. I, p. 291.
referred   to   three   Commissioners,   one  to   be
appointed by each Government and the third by
an independent Power.    He also expressed the
hope that,  pending  such  settlement,  a  modus
vivendi could be amicably arranged.
The latter proposal was  acted upon,  and by Provisional Boundary,
exchange   of   notes,  it   was   provided  that   a 1899-
provisional   boundary  should   be   established. App. I, p. 305.
Joint High Commission,
lb., p. 297.
Ib., p. 298.
Reference to this instrument will show that it
was therein expressly provided that it should not
affect the rights of either party in reference to
the permanent delimitation of the boundary.
A provisional boundary was subsequently
arranged on this basis, which is still being acted
In the autumn of 1898 a Joint High Commission, comprising Representatives of Great
Britain and the United States, met at Quebec,
and afterwards adjourned to Washington, where
it sat till Pebruary, 1899. The Commission was
constituted with a view to the discussion and
adjustment of a number of matters then in
question between the two Governments. The
business which -was to occupy the Commission
was arranged at a series of Conferences held at
Washington in May, 1898. The Protocol of
these Conferences recorded that it was expedient
to come to an agreement upon (among other
subjects) " provisions for the delimitation and
establishment of the Alaskan-Canadian boundary by legal and scientific experts, if the Commission should so decide, or otherwise."
The Protocol further provided that each
Government should communicate to the other,
in advance of the meeting of the Commission, a
Memorandum of its views on each of the subjects
to be discussed.
In accordance with the above provision, Sir
Julian Pauncefote was instructed to deliver to
the Secretary of State at Washington a copy of a
despatch of the 19th July, 1898, addressed by
the Marquis of Salisbury to the British Commissioner, setting forth the views of Her
Majesty's Government. This despatch, after
adverting to tho existing arrangement at the
head of Lynn Canal, pointed out that, as the
line there adopted was more than 100 miles from
the ocean, Her Majesty's Government could not
reasonably be expected to continue to accord it
provisional recognition for an indefinite period ;
and, pending a definite settlement of the question,
a provisional line more in accordance with the
Treaty stipulations should be adopted, which
would allow the occupation by Canada of one
of tbe ports on these inlets.
The despatch referred to the special reasons
for an early delimitation of this part of the
boundary, and stated that Her Majesty's Government thought it desirable that, if possible, the
[541] G 2 42
Joint  Commission, should   in .any  case   agree
on   some  provisional  arrangement for fixing, a.
temporary line on the various inlets and rivers
traversing the strip, and also at any other point
at which disputes might arise pending a final
settlement of the question.    It was added that
the boundary-line must, in the first instance, be
sought in the mountains which border the coast,
and   that   the   important   condition   that   the *
line is nowhere to exceed 10 marine leagues from
the coast governed throughout.
The  Government  of   the  United  States,  on
Lord Salisbury's despatch being communicated
to. them,  handed to  Sir Julian  Pauncefote   a
Memorandum setting forth the views held by App. I, p. 299-
This Memorandum pointed out that the
Alaskan boundary had already been the subject
of conventional arrangements, and that the
Report of the Joint Commission was now available, and had made it possible for the Governments to carry out the stipulation in the last
clause of Article I of the Treaty of the 22nd
July, 1892, to proceed to consider and establish
the boundary in question. It was stated that
the Government of the United States would
expect the Joint High Commission to seek to
execute this stipulation by an agreement as to
the boundary as fixed by the Anglo-Russian
Treaty of 1825 and by the American-Russian
Treaty of 1867. The United States' Government, it was added, had no reason to anticipate any other than a definite and satisfactory settlement of this important question by the
joint High Commission.
The Joint High Commission embarked upon
its labours under the provision of the two documents just reverted to. The discussions and negotiations which took place were understood to be
confidential, and will therefore not be here adverted to. The Commission separated without
any settlement being made either upon the basis
Of right or of convention.
The adjournment of the Commission was
followed by proposals to refer the matters in
dispute to arbitration, and after a long correspondence the Treaty under which this Tribunal
sits was signed at Washington on the 24th
Januarv, 1903. CHAPTER III.
Report of Messrs.
The surveys made by the Commissioners appointed under the Convention of the 22nd July,
1892, disclose the following facts relative to the
orography of the region bordering the coast :—
In general character this region is wholly
mountainous; though narrow borders of flat land
are to be found in the valleys of the rivers and
inlets, and occasionally on the ocean front. As
• a rule, the land rises from the water's edge in
steep wooded slopes, forming the frontal foot
hills of high mountain ridges, which are surmounted by peaks 3,000 feet or more in
height.   The summits  of these mountains are
Duffield and King   bare, the timber line not rising to that elevation
under Convention ,    „   .. ,   . .. ,       .
of 1892. on anv Part °f the coast m  question, and not
App. I, p. 282.       averaging more than 2,500 feet.
Purther inland the mountains rise to greater
heights—to 6,000 or 7,000 feet and upwards—
along the southern part of the coast, while to the
west of Cape Spencer the very lofty mountains
of the Pairweather Range are found rising immediately from the coast. Between Portland Canal
and Cape Spencer the mountain barrier is penetrated by the valleys of rivers, streams, and inlets.
These valleys run back in a direction nearly perpendicular to the general direction of the coast,
and are usually nearly straight for a considerable
distance.   ■
Opening into these valleys on either side are
subsidiary valleys, also in general approximately
straight, andrunningapproximatelyperpendicular
to the directions of the main valleys, and in
parallelism to the coast.
The heads of these side valleys thus extending
from adjacent main valleys inosculate with one
another and so furnish well-defined depressions,
which separate the mountain masses adjacent to
the coast from those lying further back.
Thus appears a number of short ranges, or
elongated mountain masses, of length considerably exceeding their breadth, and lying with
their lengths parallel to the general trend of the
coast which fronts them. 44
To an observer passing along the channels
which separate the mainland from the adjacent
archipelago, these mountains present the appearance of a range, parallel to the coast, which in
general hides from his view the mountains
behind, which are seen only where the coast
mountains are cut across by the valleys above
referred to.
At the northern end of Glacier Bay, the Muir
Glacier discharges into the sea. The southeastern corner of this glacier also discharges into
the Endicott River, which on a very direct
eastern course, with very little descent, discharges
into Lynn Canal.
Extending in the opposite direction, the northwest arm of Glacier Bay penetrates far inland,
and separates the massive range of the.Pair-
weather Mountains, lying north of Cape Spencer,
from the mountains of the interior lying between
Glacier Bay and the Chilkat River.
Continuing north-westerly from Cape Spencer,
the mountains above mentioned rise almost
immediately from the ocean, until Alsek River
is crossed.
- This range is now commonly known as the
St. Elias Alps. They lie well back from the
shore, leaving a considerable margin of low-lying
land between them and the ocean, until Yakutat
Bay, and its continuation, Disenchantment Bay,
are reached. West of Yakutat Bay lie Mount
St. Elias and the mountain ridges between it
and the ocean, which are almost submerged in
.the great Malaspina Glacier. CHAPTER IV.
Ph-st Question. The first question   to   be   answered by the
Tribunal is—
The description in the Treaty of 1825 is—
App. I, p. 38. "A partir du point le plus méridional de l'île dite Prince
of Wales, lequel point se trouve sous la parallèle du
54° 40' de latitude nord et entre le 131e et le 133e degré
de longitude ouest (méridien de Greenwich)."
The British Case on this head, proceeding, as
it is believed, on admitted or indisputable facts,
may be stated briefly and in general terms,
supported by some references to the overwhelming evidence on which it is based.
Article IV of the Treaty provides—
Ibid. " H est entendu, par rapport à la ligne de démarcation
déterminée dans l'Article précédent—
" 1. Que l'île dite Prince of Wales appartiendra toute
entière à la Russie."
ince of Wales Island. It is true that an attempt was once made by
the United States to apply this language to the
island latterly named Wales Island, the southeasterly point of which Vancouver had named
Point Wales after a friend.
But it is understood that this contention is no
longer pressed, and it will be so treated at
There can, indeed, be no doubt that " Prince
App. II. Maps of Wales Island," wherever it occurs, refers to
Nos. 1 and 2.        ^ large island to the north of X)iXOn's Entrance
shown in Vancouver's charts and described in
his book, the main sources of information
available to the negotiators. This land was
App. I, p. 147. rightly surmised by him to be " much broken
and divided by water," but he did not verify his
supposition, and,, while calling what was in fact a group by the name of " Prince of Wales
Archipelago," he showed it in the chart, un-
surveyed, as one island. Nor did he fix
astronomically the situation of the southern
points. It was thus naturally called Prince of
Wales Island during the negotiations and in the
There are two southern points on this land, British View.
, ,,        t     ,     r, n, „   j   /-.   The Southernmost Point.
shown  on the chart—Cape  Chacon and  Cape 	
Muzon—both within the limits of longitude, and
both very near the latitude mentioned in the
clause. And, indeed, there is also on Bean
Island a small island lying close on the west side
of Cape Chacon, a point called Cape Nunez, the
latitude of which is now ascertained to be below
those of the two Capes Chacon and Muzon.
This island may be treated as a discrepancy, and
need not be separately noticed hereafter.
Obviously the negotiators, ignorant of the
precise latitude, and therefore uncertain of the
precise situation, desired to describe whatever
point should turn out to be the most southerly.
Recent investigations have shown that while
Cape Chacon, the more easterly, is in latitude
54° 41' 25", Cape Muzon, the more westerly, is App. I, p. 285.
in latitude 54° 39' 50", being thus slightly the
more southerly.
Cape Chacon is, in fact, on Prince of Wales
Island, the great island of the archipelago, and
later formally distinguished by that name ; while
Cape Muzon, though represented, as from a
distance it appeared to Vancouver to be, on a
peninsula of that same island, is, in truth, on a
separate island close adjoining.
Thus, Cape Chacon is the most southerly
point of Prince of Wales Island as now known,
and is the point in this sense answering the
description. And it might be from one point of
view rather more favourable to Great Britain
than Cape Muzon.
But Great Britain concedes that it sufficiently
appears that Cape Muzon, the more southerly
point, fulfils the essential conditions of the
Treaty, and should be held to be the point of
And the result is, after all, substantially the
same for the purposes in hand, whichever Cape
is chosen. For the point under discussion is, in
truth, important only as the stavting-point of a
line which was to leave the whole of Prince of
Wales   Island   to  Russia, and which   was   to 47
ascend to the north along the " passe " called
App. I, p. 38.        Portland Channel.    (See Article III : << La dite
ligne remontera au nord le long de la passe dite
' Portland Channel.' ")
It thus appears (as will be elaborated on the
subsequent questions) that if the starting-point
should be held to be Cape Muzon, the line
should yet, in order that Russia may possess the
whole of Prince of Wales Island, hug or be
deflected round Cape Chacon, which would thus
become a fresh, and the only important, point of
The United. States' Contention. what has been said would suffice as a state
ment of the British view. But it is understood
to be the contention of the United States that
the point in question is absolutely governed by
the parallel of latitude mentioned later in the
description, namely, 54° 40'.
The point so fixed being slightly north of the
extremity of Cape Muzon would, of course, but
for the later provision that the whole of Prince
of Wales Island should belong to Russia, cut off
a small part of that cape, but the use of this
geographical description avoids all question.
It is not proposed here to anticipate in detail
the case of the United States, and Great Britain
reserves her right to deal later fully therewith as
it may be presented. But it may be proper and
convenient that the construction of the Treaty
advanced by Great Britain should be at once
fortified by a brief summary of the case for
Geographical Definition governs. taking the geographical, rather than the astro-
nomical, as the governing definition.
The order and the terms of the clause
of themselves would produce this result; if
there be any conflict between the parts, the
reading of the sentence shows which part
Other considerations are these : On the language of the Treaty, tbe whole of Prince of
Wales Island was to belong to Russia. It was
intended to define a starting-point, and a line of
demarcation was to be drawn therefrom which
would leave that island on the Russian side of
the boundary.
Accordingly, the southernmost point of Prince
of Wales Island was designated as such point.
It had not yet been ascertained which was such
southernmost point. Therefore, it could be, and
was, defined only, but also adequately, by the
general geographical description. That descrip-
[541] H
I' tion was certain ; for astronomical observations,
when taken, would make it so, and id cerium est
quod cerium reddi potest. But the ascertainment
not having, as yet, taken place, a doubt remained
whether the point was to the westward at Cape
Muzon, or to the eastward at Cape Chacon.
The result of the determination by observation
of one or the other of these points as the more
southerly might obviously change the incidence
of the line to be drawn thence to the Portland
Canal as regards Prince of Wales Island.
The line, if running from the westerly point on
a course sensibly to the north of east, might (as,
indeed, so running from Cape Muzon it would) •
cut off some part of Cape Chacon. This result
was obviated by the provision with regard to the
line of demarcation that the whole of the island
should belong to Russia,
Everything thus confirms the view, clearly
indicated, by the words of the clause, that the
geographical description was intended to be, and,
in fact, was the true description.
To this description, complete in itself, are
added some astronomical indications. These,
however, are in form, as necessarily they must
have been, general and incomplete. On their
face, they do not even profess to fix any point at.
all. The definition of a point by astronomical
co-ordinates demands definite parallels both of
longitude and latitude, the intersection of which
gives the point. Here the latitude is given as
" sous la parallèle du 54° 40' de latitude nord," App* ' '
which tells us whereabouts the latitude of the
southernmost point was assumed to be.
It tells us in this case no more than whereabouts ; for the words all taken together show
that (as the fact was) the exact latitudes of the
points were unknown. Had they been known,
the southernmost point could and would have
been fixed in the Treaty.
So much as to the latitude. But (just because
the latitudes being unknown the southernmost
point might be either Cape Muzon or Cape
Chacon} there could be no attempt even to
approximate the longitude, which depended on
the unascertained fact. Accordingly, no such
attempt, was made, and the longitude is stated to
be " entre le 131e et le 133e degré de longitude Ib-> P- 3
ouest (méridien de Greenwich)."
Thus there is no attempt to fix the point
astronomically, for there is no fixed point of Second Question.
intersection. That point may occur anywhere
along about 70 miles of longitude. Where ? To
answer that question, it would be necessary to
revert to the geographical description ; and that
brings us once again away from the parallel down
to the southernmost point of Cape Muzon. The
astronomical description is thus fatally defective,
and cannot be substituted for or control the complete geographical description.
The astronomical indications thus appear to
have been added merely for easier identification
of the locality at which the geographical point
appeared to be situate, and not, in intent any
more than in form, as co-ordinates by which that
point could, with the existing knowledge, be at
the moment fixed.
Reference to the course of the negotiations, so
far as permissible, would confirm this view.
It may be added that, on the mere question of
starting - point, there appears, on the theory
already suggested when dealing with the
geographical description, no substantial difference
in practical results between the geographical and
the astronomical indications. It is, however,
understood that the contention of the United
States is raised in order to secure a starting-point
on the parallel 54° 40', with a view to setting up
the contention that the line should run for no
less than 74 miles along that parallel. This,
however, arises on a subsequent question, and,
therefore, is here left untouched.
Case, p. 3.
The second" question to be  answered by the
Tribunal is—
"What channel is the Portland Chan-
General Statement
Portland Channel.
British View.
The words of the Treaty are—
i La dite ligne remontera au nord le long de la passe
dite Portland Channel!'
The only canal known by the name of Portland at the time of the Treaty had been surveyed,
charted, 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.
[541] H 2 Reference is made to Vancouver's charts in Ag>-11.^ Maps
the Atlas, Nos. 1,  2, and  3,  and also  to the it,., Map'
compiled map,  No.  37, in which  the various
different contentions are shown.
Great Britain contends that "la passe dite
' Portland Channel ' " means the channel which
Vancouver named Portland Canal, and which
enters from the ocean between Tongass Island
and Kannaghunut Island, leaving Sitklan, Wales,
and Pearse Islands on the south and east, and
extending northerly 82 miles to its head. Great
Britain further contends that if, contrary to
the British view, there is to be any departure
from the nomenclature and descriptions of Van-
. couver as the controlling element of decision,
then the line should be determined to run up
Clarence Strait and Ernest Sound, or up Behm's
Canal, on one or other side of Re villa Gigedo,
any of which courses would fit the other particulars of description in the Treaty more closely
than does Portland Canal.
Postponing the discussion of this alternative
suggestion, it is proposed now to state the case
on the inquiry as to what was Vancouver's
Portland Canal. The answer must depend on
the evidence to be found in Vancouver's book
and charts, known to have been before the
negotiators, and the sole, or, at any rate, the
main and best sources of information on this
head. To which has to be added whatever
evidence may be supplied by the negotiations
themselves and a few other then existent maps.
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.
Great Britain contends that this remainder, as
surveyed, charted, described, and named by
Vancouver himself, is the continued passage
seaward between Pearse, Wales, Sitklan, and
Kannaghunut Islands on the east and south, and
the continental shore, Pillmore and Tongass
Islands on the west and north.
The United States contend that Vancouver's               The United States' Contention.
Portland Canal, commencing at the head, turns 	 51
along the branch between Pearse Island and the
peninsula, passes Ramsden Point, in Observatory
Inlet, and reaches the ocean by the channel
between Pearse and Wales Islands on the west,
and the easterly continental shore, entering the
ocean between Point Wales on the west and
Point Maskelyne on the east. This contention
involves the question, "What was Vancouver's
Observatory Inlet?" Por if, as Great Britain
contends, that inlet comprised the channel just
mentioned, then it can hardly be part of Portland
Now, it is common ground that the easterly
channel inland from Point Ramsden to its head
is comprised in Observatory Inlet.
But Great Britain contends, while the United
States deny, that the continuation of this channel,
from Point Ramsden to the ocean between Point
Maskelyne and Point Wales, is part of Observatory Inlet, as surveyed, charted, described, and
named by Vancouver himself, at the same time
at which he dealt with Portland Channel.
It will thus be important to ascertain whether
Observatory Inlet extended from the ocean to its
head, or was only an inlet of an inlet ; beginning
at Point Ramsden at the head of another inlet,
either unnamed or being part of Portland Canal.
In this view, and also because the order of
Vancouver's explorations and nomenclature
naturally lends itself to the treatment, it will be
found most convenient to begin, where Vancouver
began, with the approach to Observatory Inlet,
and to sketch his progress and work as shown in
his charts and book, of which the relevant
passages are to be found in the Appendix.
Vancouver's Survey. Vancouver's object was to find and trace the
Observatory Inlet. continental shore,.a task rendered difficult by the
multitude of large and mountainous islands off
the main coast, and by the long and narrow
indentations or fiords cutting into that coast.
He was often disappointed, finding what he
thought mainland to be island and what he
thought island to be mainland.
App. I, p. 139. On the 21st July, 1798, Vancouver took his
ships through Brown's Passage eastward, naming
the Passage and Dundas Island as he passed,
and reaching the entrance of an arm, up
which he expected from the report of Mr. Brown
to find an extensive inland navigation. To
the south-east point of entrance of this arm
(which is according to the British contention
l>« 52
Observatory Inlet) he gave as he passed it the
name of Point Maskelyne.
He proceeded up the arm, exploring the App. I, p. 140.
indentations, and passing on the 22nd July a
channel or branch to the west, extending north-
north-westerly, so large that he doubted whether
it might not be the main channel. This was the
branch between Pearse Island and the Peninsula,
off Ramsden Point, which he, as will appear,
explored later. But at that time he decided to
continue his pursuit of the north-north-east arm.
in which he wras, and he eventually gained
Salmon Cove far up the inlet. There he established an Observatory, and left the ships in
charge of his officers, with instructions to take a
.series of observations.
He himself, set out up the inlet in boats, and
completed the exploration to the head, without
finding the supposed extensive inland navigation, lb., p. 142.
and returned disappointed to the ships at Salmon
He now believed that the continental shore
extended far up the branch already mentioned
between Pearse Island and the Peninsula ; and
accordingly proceeded to explore up that branch.
Qn the 27th July he turned the easterly point of
the    entrance,   which   he   then   named   Point
Ramsden.     Passing   through   the   branch,   he Vancouver's Survey,
turned the other point of the Peninsula, and,
proceeding inland, explored to its head the long Ib-, p. 143.
and narrow water which is on both sides agreed
to be embraced in Vancouver's Portland Canal.
Once more disappointed, he retraced his course
as far as the branch between Pearse Island and
the Peninsula. He did not re-enter that branch,
but continued down the western channel along
the western or continental shore, leaving Pearse
and Wales Islands to the east and south.
On the 1st August, "in order to keep the
continental shore on board," he quitted the main
channel, there about a mile wide, "and whose
shores appeared to be most broken, as if admitting several passages to the sea," for a narrow
channel by which he passed round the greater lb-> P- 144-
part of an island (Fillmore Island), so regaining
+he main channel at its other end.
On the -2nd August he observed " the southeastern side of the canal to be much broken,
through which was a passage leading S.S.E. towards the ocean" (Tongass Passage). IWd#
- In the hope of gaining a more northerly and
westerly communication with the sea, he did not take this passage, and soon found that the
channel he was then pursuing also communicated with the ocean, making the land to the
southward one or more islands (Sitklan and.
Kannaghunut Islands). He found that from
the  north-west. point of this land, situate in
App. I, p. 144. latitude 54° 45|', longitude 229° 28' (this, it may
be remarked, was on Kannaghunut Island, and.
indicates the entrance of the channel), the Pacific,
was evidently visible. He had thus been still
pursuing the westerly channel, keeping Sitklan
and Kannaghunut Islands to the south, and.
Tongass Island to the north.
This ended the exploration ;  and, on the fol-
Ibid. lowing day, the 3rd August, he turned northward,,
and, after exploring Nakat Inlet, turned westward,,
reaching a point on the continental coast which
he then named Cape Pox, and took shelter for
the night in a cove close by. His journey had
thus comprised the ascent of the canal from the
point at which he entered it by the branch to its
head, and its descent past that point by the
westerly and northerly channel, to the ocean
between Tongass and Kannaghunut Islands, in
latitude 54° 45|', longitude 229° 28'. This
examination occupied from the 27th July to the
2nd August.
Vancouver then proceeded to explore Revilla
Gigedo and other neighbouring islands.
On the 14th August, on his return to the ships,
he passed across the south-east entrance of the
canal of Revilla Gigedo, taking shelter for the
night in the same cove near Cape Pox. And his
book proceeds to say : —
lb., p. 145. I In the forenoon (that is of tJie next day, 15th August)
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 honour of the
Naming Portland's Canal. noble family of Bentinck, I named Portland's Canal."
Now the distance as measured by Vancouver's
chart from the ocean to the head is about
72 miles, and this naturally accounts for his
figure ; but the true distance, as modern charts
show, is 82 miles. Thus, Vancouver was 10
miles short. This is accounted for by the fact
that on his chart the head of the canal is
erroneously placed in latitude 55° 45', while the
true latitude is 55° 55', a difference of ten minutes,
or 10 miles. The probable explanation is that his
observation for latitude near the head of the canal
taken at noon on the 29th July was erroneous. Naming Observatory Inlet,
App. I, p. 146.
,, p. 146.
Thus the whole canal from the sea to the head,
keeping" the course already described, is shown to
be Vancouver's Portland Canal, identified and
named by him on the 15th August; and the
British contention is clearly established.
Prom  the  point   last   described,  Vancouver,   Return to and Departure from Observatory
half starved, made for his ships in Salmon Cove ;  ^j
where, in view of the good results attained in
astronomical and nautical observations, he named
the water Observatory Inlet.
On the 17th August he set out in the ships
on his return to the ocean by the same route
by which tbey had entered. As his book
describes this return, they " did not reach the
entrance of Observatory Inlet until two o'clock in
the morning of Tuesday, the 20th, a distance of not
more than 13 leagues from Salmon Cove." The Ib->
distance, according to a modern chart, from
Salmon Cove to the entrance between Point
Maskelyne and Point Wales, is about 40 miles.
The words quoted,.without more, show to demonstration that the entrance of Vancouver's Obser- Identification of Observatory Inlet,
tory Inlet was there, at the ocean.
An additional and final demonstration of this
fact is given by the immediately following passage,
"The west point of Observatory Inlet I distinguished by calling it Point Wales." Ib-> P- U6
It thus appears that when entering, the arm
which has been described, Vancouver named its
easterly point of entrance Point Maskelyne ; that
when setting out from Salmon Cove on his
return he. named Observatory Inlet ; that he
closely estimated the distance from Salmon Cove
to the ocean entrance of that same Observatory
Inlet at 13 leagues ; and that as he passed what he
calls " the west point of Observatory Inlet "
he named it, as such, "Point Wales," which is
shown just opposite Point Maskelyne.
The general result then is a conclusive demon- General Result,
stration that Vancouver's Observatory Inlet was
the Channel extending from Point Maskelyne
and Point Wales at the ocean, past Salmon Cove,
to the head; and that his Portland Canal was
the channel between Tongass and Kannaghunut
Islands at the ocean, past Sitklan, Wales, and
PeErse Islands on the south and east to the head ;
and that this latter is "la passe dite Portland
Canal " of the Treaty.
The correctness of these views of Vancouver's Confirmation of Result,
action is, indeed, acknowledged in the Report of -oth Oon
Mr! Dall, a United States' Officer, presented by 2nd Seas., Sen! Ex.
Doc. No. 146, p. 20. the President to Congress, and printed amongst
its documents. Mr. Dall concludes his résumé
of Vancouver's account by saying that " if the
treaty is to be tried by Vancouver's text, it will
result in giving to Great Britain the above-
mentioned islands (meaning Wales and Pearse
Islands), and some other small ones " (doubtless
referring to Sitklan and Kannaghunut Islands).
The only opposing argument he makes is that
there is " a certain discrepancy between his
charts and his text."
And the alleged discrepancy is that on two of
his charts the places alongside the waters at
which are printed the names " Portland Canal "
and " Observatory Inlet" do not (though it was
physically possible that they should) extend
southward as far as Pearse Island, and are thus,
as he suggests, attached to the two upper parts
alone. He admits that on a third chart the
names do extend past the head of Pearse Island,
but he says the larger charts would produce the
stronger impression.
Other Facts and Action before the Treaty. It is thus that Vancouver's text is to be contradicted and overborne ! The printed names,
of which the location is criticized, do not
extend to either end of the channel alongside
which they are placed. They are, notwithstanding, to reach to one end, but not to the other.
They were probably so placed because those parts
of the map afforded clearer spaces for printing.
But it is needless to continue; the statement
of his proposition is its sufficient réfutation.
It remains to deal under this head with the other
relevant facts and action preceding tbe conclusion of the Treaty, of which there are but
few. There are, however, some other maps
which appear to have been used by one or both
of the negotiators, as to which it is convenient to
point out here that the maps of Arrowsmith and
Paden both show the name " Portland Canal "
extending beyond the head of Pearse Island, and
that the Russian charts of 1802 and 1826 show
the latitude of the mouth of Portland Canal as
54° 451'.
The only preliminary action, if such it can be
called, consists of the references during the negotiations to Portland Canal and Observatory Inlet.
As to these, the various proposals and counterproposals affecting this branche are summarized
in the answer on the tbird question.
It is submitted that these negotiations contain
[611] î 56
nothing which can adversely affect the conclusions already drawn.
There are, however, at any rate two papers so
clearly confirmatory of those conclusions as to
justify special notice here.
The first is Baron Tuyll's suggestion to Count
Nesselrode, so early as the 21st October, 1822, in
which he says :—
"Mais dans la supposition que l'on ne pût réussir à App. I, ]
étendre les frontières de la Russie beaucoup plus vers
le nud, il serait, ce semble, indispensable de les voir au
moins fixées au 55e degré de latitude nord, ou, mieux
encore, à la pointe méridionale de l'Archipel du Prince
de Galles et V Observatory Inlet, situés à peu près sous
ce parallèle. Tout voisinage plus rapproché des établissements Anglais ne pourrait manquer d'être préjudiciable à celui de Novo-Archangelsk, qui se trouve sous
les 57° 3'.''
This shows that Russia knew that Observatory
Inlet entered the ocean at a point substantially
as far south as the southernmost point of Prince
of Wales Island, and thus that she read Vancouver's book and charts in accordance with the
present British contention.
Russia, however, did not at any time propose
Observatory Inlet.
And it cannot be supposed that when, later on,
after tedious negotiations, she proposed Portland
Channel, she meant the enhance of Observatory
The second notable document is Sir Charles
Bagot's proposal to Russia of Pebruary-March,
1824, made in amendment of the Russian proposal of that period to adopt Portland Channel.
In this he says :—
" Comme il a été convenu de prendre pour base de Ib., p. 7(
négociation les convenances mutuelles des deux pays,
il est à remarquer, en réponse à la proposition faite par
les Plénipotentiaires Russes, qu'une ligne de démarcation tracée de l'extrémité méridionale de l'île du
Prince de Galles jusqu'à l'embouchure du Canal de
Portland, de là par le milieu de ce canal jusqu'à ce
qu'elle toucbe la terre ferme, de là jusqu'aux montagnes qui bordent la côte, et de là le long de ces
montagnes jusqu'à la longitude du 139e degré, &c,
ôteroit à Sa Majesté Britannique la souveraineté de
toutes ces anses et de ces petites baies qui se trouvent
entre les latitudes 56° et 54° 45'."
This shows that the British understanding,
communicated to and not questioned by Russia, Va
àt Portland Channel entered the ocean in
>, which is a very close approximation
acou'ver's observation, already given, of
•o4° 45£' for Kannaghunut Island, and is identical, with the position given on the Russian
-charts of 1802 and 1826 to the entrance of Port-
-land'.Canal. It does not fit Point Wales, which
-was plainly in a lower latitude, and is now ascertained to be in 54° 42' 15". Sir Charles Bagot's
statement, therefore, shows the view taken at the
time as to tbe entrance of Portland Canal,
. coinciding with tbe British Case now presented.
Thus, that affirmatively appears which, even in
the absence of any such evidence, would yet be
the clear and indubitable presumption, namely,
that there was not, on the one hand or the other,
any mistake as to either Portland Channel or
Observatory Inlet, and that both sides correctly
understood the entrances and courses of those
channels to be according to the facts already
demonstrated, and dealt with each other on that
It is possible that the comparative facility of
navigation of Observatory Inlet over Portland
Channel may be urged as an argument for the
adoption of the former as the Portland Channel
mentioned in the Treaty. Any such argument
must be dissipated by the precise and unmistakable description of Portland Channel already
given ; to overbear which, on any such ground,
would be to refuse all respect for, or adherence
to, the terms of the Treaty.
To this view may be added these observations.
The 55th parallel was the limit of the Russian
claim; any suggested further extension southward to about 54° 40' being but local, for the
express purpose of giving Russia the whole of
Prince of Wales Island, which appeared to extend to about that parallel.
Poitland Channel, as described, was the first
natural continental boundary beginning below
85°, and was presumably proposed on this ground.
Portland Channel was proposed, not on any claim
or contention for inland navigation, but solely as
a convenient natural boundary to the suggested
continental possessions of Russia. These possessions were claimed only as essential to the beneficial enjoyment of the isiands_and their trade.
The appellation, given in the Treaty to the
canal, of "passe," is in itself indicative of a
narrow channel, and fits the true Portland
[5411 I 2 58
Canal far better than it does the broad waters
suggested in substitution.
If convenience is to be considered, there are
infinitely stronger arguments against the admission of the United States as successors in title
of Russia to the navigation of Observatory
Inlet and the sovereignty of Wales and Pearse
Islands. Por such admission would give domination of the continental coast opposite, and
the important point of Port Simpson, to the
great prejudice of Great Britain. Indeed, this is
the consideration, and not that of the value of
Wales and Pearse Islands in themselves, which
really makes the question of Portland Canal of
substantial interest to either nation. Great
Britain is naturally desirous of safety against
attack, which has, as she conceives, been secured
by the true construction of the Treaty. These
islands are valuable to her for defence ; they can
be valuable to any other Power only for attack.
But, in truth, neither ground can be justly
urged as affecting the interpretation of the
Reference must now be made to matters sub- Action subsequent to the Treaty,
sequent to the Treaty which may, under the
terms of the Convention, be assumed to affect its
It is submitted that there is, in regard to this
question at any rate, no ground for changing, by
any subsequent matter which can be set up, the
plain and clear conclusion to be reached on tbe
contemporaneous evidence as to the meaning of
| la passe dite Portland Channel."
And any suggestions to a contrary effect will
be just touched on here, in the same spirit
and under the same reserves as apply to some
suggestions so touched on in dealing with the
first question.
It is submitted that (whatever weight might
be given to matters of the nature referred to,
were the question one of the interpretation to be
assigned to a document fairly susceptible of more
than one meaning, on the ground that both
Parties had by their acts clearly given to it the
interpretation claimed) such matters should not
be used here to overbear a meaning so conclusively established.
There seems, indeed, to be little or nothing of
any adverse significance in early years. Cartograj.
r* The practice of some cartographers, prior to
the Treaty, was to treat as the more important
water Observatory Inlet, which had been the
scene of the astronomical observations by which
the survey of the region generally was corrected ;
and sometimes, accordingly, it alone is named,
Portland Channel being delineated without
But in the years following the Convention,
Portland Channel, presumably by reason of the
importance it had acquired through that transaction, appears named, while Observatory Inlet
is sometimes left without a name.
" The Ilistory of       As to the lines  laid down by cartographers,
Oregon and Cali-        » . -,    ,    ,. ,      „* -, v     -S       -,
forma &c. " 2nd   reference is made to the work of Mr. Greenhow,
Edition, Boston,    Translator and Librarian of the Department of
State of tbe United States, and a man of high
repute.    In the map in his history of Oregon and
other regions, published in Britain in 1844, and
in the United States in 1845, he shows the water
boundary running to the north of the islands, in
accordance with the British contention;
And it is believed that no map has been found
showing any contrary indication till a comparatively late date.
Indeed, upon the cession by Russia to the
United States, they dispatched troops to occupy
the territory, and stations were established at
various points, one of which was at Tongass, just
north of the Portland Channel. The fair presumption is that this was because that was the
limit ; for had Wales Island been the limit,
surely an occupying force would have been
stationed there, or on Pearse Island, instead of
at Tongass.
App. II.   Map It would seem that the first departure from
Vancouver's nomenclature was in 1853, when
the Hydrographie Department of the British
Admiralty, on the occasion of a fresh survey of
Queen Charlotte Island and adjacent coasts,
applied to that part of Observatory Inlet, which
extends from Pearse Island to the sea, the name
of Portland Inlet.
No authority has been traced for bestowing
this name ; but it seems not to have been unusual
for those engaged in surveys or in cartography
from time to time to distinguish named regions
more minutely or to give names to unnamed
points. And it seems to be a common practice
when, for example, an  island   point has been named, for later surveyors or cartographers to
assign the name of the point to the island also.
So it happened that Wales Island was, in 1853, App. II. Map
named by the British Admiralty. Pearse Island-
was first named in 1868, and then by the British
Admiralty Surveyor. The name Pearse Canal
was first applied to the lower part of Portland
Channel in a United States' chart so late as
1885. Whatever complication or confusion has
arisen is 'perhaps traceable to the application of
the name Portland Inlet as described.
There seems to have been a system of communication of their charts between the Admiralty
Departments of the different Powers, under which
the later charts of one country were used in the
preparation of succeeding charts in the other.
And such, of course, was the habit of private
cartographers. Thus, there would be a natural
tendency to the reproduction of a fresh name or
line on all later charts.
In the absence of any question raised as to
the boundary which would attract attention to
the matter, such matters are, it is submitted, of -
no importance.    And, at any rate, they do not
destroy, or even weaken, clear existent rights.
There is one remaining transaction of late
date which is more fully dealt with hereafter, to
which a short allusion should now be made.
After the question of the boundary had become        United States' Store
urgent, and a joint survey under the Commission an(^ Pearse
of 1892 had proceeded, the United States, in
1896, caused small storehouses of about 15 feet APP- b P- 300.
by 20 feet dimensions, never used or occupied, to
be built, one on Wales Island, a second on Pearse
Island, a third on Halibut Bay higher up on
Portland Canal, and a fourth on Salmon River,
near the head of the canal. 'Ibese erections
were indicated in a United States' coast survey
chart, whereupon in 1902 Great Britain called lb., p. 294.
attention to the fact, and asked explanations.
In reply, it was stated by the Secretary of State
that on examination of the charts of the region Ibid.
he found no indication of storehouses at the
points named, and that he was not aware that
Great Britain had advanced any claim to the
region before the signature of the Protocol of
30th May, 1898.
On  reference   being   given  to   the   number
of the chart, the Secretary of State explained Ib      295
that the omission of the storehouses on the later    ' P"
issues was caused by an oversight of the draughts- 61
man,   and that they would appear on the later
charts to be issued.
It is submitted that no transaction of this
nature, accomplished at that juncture under
those circumstances and with such obvious intent, could, even bad it passed unnoticed, avail to
strengthen the claim of the United States or to
weaken that of Great Britain.
ies alternative to Portland Allusion was made at the commencement of
 ' the  discussion   of this  question to  alternative
water routes.
As then stated, tbe British view is that the
language of tbe Treaty, applied to the relevant
extrinsic evidence, so inevitably fixes Vancouver's
Portland Canal as being " la passe dite Portland
Channel," that it is hopeless to contend for any
other route—hopeless, for example, to propose, as
do the United States, the substitution of the
lower part of Observatory Inlet for the lower
part of Portland Canal.
This view is maintained by Britain, in spite of
the fact that there are, with reference to the
other parts of the description of the line—both of
that part which runs from Prince of Wales Island
into and up the canal, and that part which strikes
the 56th parallel, and thence follows the crest of
the mountains situated parallel to the coast—
some difficulties as to its adoption. These
difficulties will crop up again in the discussion of
the subsequent questions. They may, for the
present purpose, be adequately summarized as
follows :—
Pirst ; the line from Prince of Wales Island to
the channel is, under the Treaty, to start from a
point, from which it is to ascend to the north,
along the passage called Portland Canal.
Reference is made to the map for better comprehension of the statement.
It is obvious that instead of ascending to the
north from Prince of Wales Island, the course,
if the contention of the United States were
adopted, would be due east for 74 miles ;
while, if the British view be taken, it will be a
course north 85° east for 66 miles, there being in
the latter case but little northing, while in the
former there is absolutely none, for these considerable distances.
Though the British contention does give some
northing, and so far inflicts less violence on the
language than that of the United States, yet
neither of these results can be   said to accord
J 62
with the more Obvious import of tbe description,
which points to a northward line from Prince of
Wales Island.
Next, the line is to ascend north along the
channel up to the point of the mainland where
it reaches the 56th parallel. There is a moot
point not now to be debated : What is " it " ?
Is it the line, the channel, or the land ?
Prom the 56th parallel the line is to follow the
crest of the mountains parallel to the coast, being
by subsequent provisions those lying within not
more than 30 miles of the Ocean.
The natural construction of the language seems
to contemplate a point on the channel where the
parallel and the coast-mountains meet.
But Portland Canal does not fulfil these conditions. According to Vancouver's work, the
only source of knowledge then available, it ends
about 15 miles, and, according to recent surveys,
about 6 miles south of the parallel. And the
required mountains do not approach any part of
the channel ; nor do they coincide with the 56th
parallel short of a point near the coast on a
course north 85° west from the head of the
It thus becomes necessary, in order to reach
the separated points assumed to be coincident,
either (1) to run the line from the head of
the channel along the course just mentioned,
which is the shortest way of reaching the
point of coincidence of the coast-mountains
and the parallel, or (2) to run it north to
the parallel and thence along the parallel to
the same point, or (3) to run it in the general
direction of the course of the canal to the
parallel and then along the parallel as before.
The general result is that the description does
not fit the facts, and it is necessary to project
lines not specifically designated in the Treaty, and
to take courses easterly, northerly, and westerly
along three sides of a great square in order to
bring Portland Canal into the line of demarcation.
These are results so extraordinary that they
can be accepted only on the hypothesis that,
under the specific words of the Treaty, it is
imperative to find and follow Vancouver's Portland Canal.
And be it remembered that to get into that
canal by Observatory Inlet would only make bad
worse, 63
But if this hypothesis were discarded, it is clear
that there are other channels which so well meet
the difficulties, and, in all but name, fit the description, that—only looking over the ground and
applying to it the words of the Treaty-there
could be no hesitation in concluding that one or
other of these, and not Portland Channel, is what
the words import.
Taking these routes for convenience in their
order of proximity to Prince of Wales Island,
and of conformity to the indicated line, the first
is by Clarence Straits and its continuation,
Ernest Sound ; through which channel a line can
be drawn ascending north all the way from
Prince of Wales Island, and striking (as nearly
as can in the nature of things be expected when
water is to meet a mountain crest) a point coincident at once with the channel, the parallel, and
the mountains.
The next route is through Clarence Straits
and Behm's Canal, on the west of Revilla
Gigedo, past Bell Island at its head, to Burroughs
Bay, on which route a line can be drawn
achieving substantially the same results.
The last is past the south-easterly point of
Revilla Gigedo Island, through Behm's Canal on
the east of that island, past Bell Island to
Burroughs Bay, on which route again, though less
directly than by the others, a line can be drawn
with like results.
It cannot be denied that reference to the
course of the negotiations raises difficulties in
the way of the adoption of any of these lines.
But it is only by applying the course of the
negotiations, and drawing from them both negative conclusions as to these lines and affirmative
conclusions as to Portland Canal, and by holding
that the Treaty words f dite Portland Channel "
absolutely control, that a case can be made for
that route against other suggested lines.
Great Britain then, agreeing to Portland Canal,
claims that it is the Portland Canal of Vancouver,
and is not to be at all departed from.
But she claims also that, if departed from, it is
not the entrance of Observatory Inlet (which
would aggravate some and diminish none of the
difficulties), but one of the other routes above
indicated that should be preferred, as most nearly
answering the language of the Treaty.
The third question to be answered  by  tbe Third Question
Tribunal is—
" What course should the line take from Case, p. 3.
the point oe commencement to the entrance
to Portland Channel ? "
The words of the Treaty are—
"A partir du point le plus méridional de l'île dite Prince App., p. 38.
of Wales, lequel point se trouve sous la parallèle du
54° 40' de latitude nord, et entre la 131e et le 133e degré
de longitude ouest (méridien de Greenwich), la dite ligne
remontera au nord le long de la passe dite Portland
Channel," &c.
The question rightly assumes that tbe course
of the line must be from the point of commencement to the entrance of Portland Channel.
The British view as to these two points has British View,
been already stated, and, it is submitted, estab-
lished ; and the contention of the United States,
so far as at present appears, has also been indicated and briefly challenged by anticipation and
under reserve.
Whatever the two points may be, it is submitted that the general principle and universal
rule, where a line is to be drawn from point to
point without further definition, should govern,
namely, that the most direct line between the
points should be taken.
Accordingly, the British contention is that,
subject to the question as to Cape Chacon to be
presently treated, the course should be on the
shortest line from the southernmost point of
Cape Muzon to the centre of the channel between
Tongass and Kannaghunut Islands.
Such a line would be an arc of a great circle
and would follow a course north 85° east, thus
running a little northerly, and so, to some
extent, conforming to the direction to the north
indicated in the Treaty.
But such a line would cut off a small part of
Cape Chacon ; while, under the IVth Article
of the Treaty, it was agreed, " par rapport à la
ligne de démarcation .... que l'île dite Prince
of Wales appartiendra toute entière à la Russie."
To accomplish this result, the line thus described must receive some modification.
If its general course is to remain, then, at the
point where it reaches the shore of Cape Chacon, ape
it str
United States' Cc
re, wiiere, were it con-
would have left the
>roceed on the original
ii must be deflecte
the point on its o
tinued across the
land ; and it must
If its general course is to be so far modified as
to exclude Cape Chacon,' then that course should
be on the arc of a great circle from the point
of commencement to the southernmost point of
Cape Chacon ; and thence, again, on the arc of a
great circle, to the entrance of Portland Channel,
as above described.
The latter may be the simpler, but there is no
substantial difference in the result.
Touching briefly, in the sense and with the
reserves already indicated, on the understood
contention of the United States, reference has
been already made, in dealing with the Pirst
Question, to the notion that the parallel of
54° 40' is the point of commencement.
Por the moment treating that notion as
exploded, there remains no visible connection
whatever between the line and the parallel.
It is to begin south of the parallel, and is to
ascend north along Portland Channel, the very
entrance of which is itself further north than
the point of commencement.
How, then, or why is it to be curved so
as to attain the parallel, in order that it may
thence proceed due east along a parallel which
did not even govern the point of departure, and
has nothing at all to do with the course ?
This would be to violate, not to fulfil, the
But even if the point of commencement be on
the parallel, this affords not the smallest ground
for the contention that the course is to be
along it.-
The point is one of commencement of a line
which is to depart thence, and the route by
which it is to travel must be traced by its
description, which does not take it along the
parallel, but gives it a northward direction.
It may also be remarked that the frame of
the Treaty is quite opposed to the introduction,
by interpretation, of parallels of latitude or
When these are required, as_in the case of the
meridian of 141° W. longitude, the intersection
with the parallel of  56° N. latitude, and the
point of termination at the meridian of 141° W.
K 66
longitude, the intention is ; stated clearly and
It is submitted that nothing in the course of Preliminary Action bearing on the Questic
the negotiations damages, but everything confirms, the British view as to the effect of the
Treaty on this point.
A résumé of the various proposals may be
useful as showing the process by, and the .basis
on which, the Parties in the end agreed :—
1. Great Britain, in 1823, suggested the 57th App: I, p. 45.
parallel as a line satisfactory to her.
2. Subsequently she  suggested Cross Sound, lb., p. 48.
as lying in about latitude 57-g-.
3. Thereon Russia suggested the 55th parallel. Ibid.
4. Great Britain, in Pebruary 1824, proposed lb., p. 66.
a line drawn through Chatham  Straits to the
head of Lynn Canal.
5. As a counter-proposal, Russia, in Pebruary
(March) 1824, once more suggested the 55th
parallel, adding these words :—
" Comme le parallèle du 55e degré coupe l'île du.Prince 1b., p. 70.
de GaUes dans son extrémité méridionale, laissant en
dehors deux pointes de terre, les Plénipotentiaires de
Russie ont proposé que ces deux pointes fussent comprises
dans les limites Russes, voulant éviter par là une division
de territoire également incommode aux deux parties
" Pour compléter la ligne de démarcation et la rendre
aussi distincte que possible, les Plénipotentiaires de Russie
ont exprimé le désir de lui faire suivre le Portland Canal
jusqu'aux montagnes qui bordent la côte."
6. Great Britain made an amended proposal, Ibid,
which  stated the  Russian  plan  as  one for a
boundary-line drawn from the southern extremity
of Prince of Wales Island to the entrance of
Portland Canal, and thence along tbe canal, &c,
and pointed out that this line would deprive
Britain of all the little bays between.66° and
54° 45'.
And she offered to take as the boundary a line
drawn from the  west,  eastward   through   the
channel separating Prince of Wales Island and lb., p. 71.
Duke .of York's Island from all the more northerly
islands, till the line should reach the mainland.
7. Russia, thereon, acknowledging that the
Russian Company had not fixed establishments
on the 65th parallel, yet pointed out the conditions as to its trade as reasons for the Russian
proposals, and proceeded as follows :—
"Il étoit donc de la  convenance mutuelle des  deux lbid.
Empires  d'assigner de justes limites à des progrès ré- oiproques qui ne pouvaient qu'occasionner avec le temps
les plus fâcheuses complications.
"Il étoit aussi de leur convenance mutuelle de déterminer ces limites d'après les séparations naturelles qui
forment toujours les frontières les plus distinctes et les
plus certaines.
"C'est par ces raisons que les Plénipotentiaires de
Russie ont proposé pour limites sur la côte du continent
au sud le Portland Channel, dont l'origine dans les terres
est par le 56e degré de latitude nord, et, à l'est, la chaîne de
montagnes, qui suit à une très petite distance les sinuosités
de la côte ....
" On ne parlera point ici des deux pointes de l'île du
Prince de Galles, qui sont situées au-dessous de la ligne
du 55e degré de latitude nord. Ces deux pointes ne.
pourroient être d'aucune utilité à la Grande-Bretagne, et
si les neuf-dixièmes de l'île du. Prince de Galles appar-^
tiennent à la Russie, il est évidemment d'un intérêt
réciproque que l'île lui appartienne tout entière."
App. I, p. 74. 8. Great Britain, objecting to concede Portland
Canal, proposed a line from tbe end of Duke of
Clarence Straits through that channel to the
middle of the channel separating Prince of Wales
and Duke of York's Islands from all the islands
to the north, and then through that channel to
the mainland.
Ib., p. 66. 9. Bussia declined ; and tbe negotiations were
suspended, pending a reference to the British
Ib., P. 85. 10. On the 12th July, Great Britain authorized
her Plenipotentiary 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 Canal, &c.
And the despatch enclosed a draft Convention
describing the line thus :  | Commencing from
lb., p. 87. the two points of the island called 'Prince of
Wales Island,' which form the southern
extremity thereof, which points lie in the parallel
of 54° 40', and between the 131st and 133rd
degree of west longitude (meridian of Greenwich), the line of frontier between the British
and Russian possessions shall ascend northerly
along the channel called Portland Channel."
11. The Bussian Ambassador made no objection to this line. And Russia later presented
a counter-draft, the line proposed by which was,
as to this part, as follows :—
lb   p. 94. " A partir des  deux points  qui forment l'extrémité
méridionale de l'île dite du Prince de GaUes, laquelle appartiendra toivt entière à la Russie, points situés sous la
parallèle du 54° 40' de latitude nord, et entre les 131e et-
133e de longitude ouest (méridien de Greenwich), la ligne
de la frontière entre les possessions Russes et les possessions Britanniques remontera au nord par la passe dite le-
Portland Channel."
12. Owing to differences on other points, the App. I, p. 9:
negotiations were again suspended.
13. Upon their renewal, no question was
raised as to this branch of the subject. Great
Britain proposed a draft, which thus stated the
line: " Commencing from the southernmost point lb., p. 115.
of the island called 'Prince of Wales Island,'
which point lies in the parallel of 54° 40', and
between the 131st and 133rd degree of west
longitude (meridian of Greenwich), the line of
frontier between the British and Russian possessions shall ascend northerly (the whole of Prince
of Wales Island belonging to Russia) along the
channel called ' Portland Channel.' "
14. After discussion, the Treaty was concluded,
on the basis of that draft, in the words already
It is submitted that everything that passed
during the negotiations confirms the British Case
in favour of the direct line between the described
The fourth question  to be answered by the                      Fourth Questio
Tribunal is— 	
" TO   WHAT   POINT    ON    THE    56lH    PARALLEL  Case. p. 3.
is the line to be drawn prom the head oe
the   Portland   Channel,  and what  course
The words of the Treaty are :—
"La dite ligne remontera au nord le long de la passeSipp. I, p. 38.
dite Portland Channel jusqu'au point de la terre ferme où
elle atteint le 56e degré latitude nord; de ce dernier point
la ligne de démarcation  suivra  la crête des montagnes
situées parallèlement à la côte."
The line is to ascend to the north along the
" Passe " called Portland Channel, to the point in
the mainland at which "it " (referring to either 69
the line, the channel, or the mainland) reaches
the 56th parallel of north latitude, and from that
same last-mentioned point the line is to follow
the crest of the mountains situated parallel to
the coast.
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
The question as to what is meant by " elle "
seems to present more room for subtle disputation than for profitable argument.
As suggested in the prior reference, tbe description rather assumes a coincidence of the
channel, the parallel, and the mountains, in
which case it would be of no consequence
whether | elle " refers to the line, the land,
or the channel. But in fact there is no such
coincidence. It is the bridging of the gap which
-makes the difficulty.
Whether " elle " denotes la passe, la ligne, or
la terre ferme, it is submitted that the point to be
attained is the point on the 56th parallel, whence
the Une can, as is directed, follow the crest of
the coast mountains.
Then, recognizing that the gap to be filled is
that between the head of the canal and the point
of coincidence of the parallel with the coast
mountains, and, adopting the general principle
as to lines to be drawn from point to point (a
principle never more solidly based on reason than
when the aim ' is to bridge a gap not obviously
contemplated at all), it is submitted that the line
should be drawn direct on the arc of a great
circle to that point of coincidence which has
already been described.
Two other modes of drawing the line so as ultimately to reach that point are suggested. One is
to draw it due north from the head of the canal
to the parallel, and thence along the parallel to
the point of coincidence with the coast mountains.
This may be argued to be the shortest way of
reaching the parallel ; and so it is ; but taking
the whole description together^it is the parallel
at the point of coincidence that is to be attained ;
and to that point this is not the shortest route ;
it takes two sides of a triangle. 70
The other is to extend the line on the general
direction of the can:! till it reaches the parallel,
thence continuing as before. To this plan
similar observations apply.
Each of these alternative plans would transfer
to the United States the triangle enclosed
between the line first proposed and the others ;
but this, though of consequence, is not the most
important subject of contention ; which is rather
the point to be attained on the parallel than the
route by which that point is to be reached ; and,
of course, any of these routes would reach the
point for which Great Britain contends.
As to the point on the ground which answers
the suggested definition, that subject falls Avithin
the general question of the lisière boundary, of
which the point is the commencement, and is
therefore reserved for the general discussion
under the subsequent questions.
It is now proper to add a brief reference
(subject to tbe limitations already indicated) to
the result in case it should be found that the
coast mountains are, at their intersection with
the 56° north latitude, more than 10 leagues from
the Ocean, in which case the boundary-line is to
be formed by a line parallel to the windings of
the coast, from which it is never to be more
(though it may be less) distant than 10 leagues.
It is submitted that the effect of this alternative provision, if it be held that the facts on the
ground bring it into operation, would be to
substitute, for the already described point of
coincidence on the parallel, that point on the
parallel which answers the language of the provision, and which must accordingly be not more
(though it may be less) than 10 leagues from
the coast. It is submitted that to that point (to
be ascertained according to tbe rules of decision
which may be laid down in answer to the general
questions to be later discussed) the observations
made would apply, and that the line should be
drawn to it on the principle stated.
It is submitted that there is nothing in the
negotiations which impairs the force of the
arguments presented as to the effect of the
Treaty on this point.
And as to subsequent action there is nothing
suggested, apart from the alleged effect of the
maps tracing the boundary-line, indicating the
10-league limit and not the coast mountains
as the boundary.    The discussion of this point, 71
already touched on in the Case, falls with
general question, and, therefore, is not
Fifth Question. The fifth question fe ag foUows .__
Case, p. 3. « TN   EXTENDING   THE    L[NE    OP   DEMARCATION
northward erom said point on the parallel
of the 56th degree of north latitude, following the crest off the mountains situated
parallel to the coast until 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 10 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
10 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
bays, ports, inlets, havens, and waters of
the Ocean, and extending fkom "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 ? "
Great Britain contends that the answer to this
question should be in the negative.
The material phrases in the Treaty are as
follows :—
App. I, p. S
" La ligne dé démarcation suivra la crête des montagnes situées parallèlement à la côte (Article III).
" Que partout où la crête des montagnes qui s'étendent
• dans une direction .parallèle à la côte .... se trouverait
à la distance de plus de 10 lieues marines de l'Océan, la
limite entre les possessions Britanniques et la lisière de
côte .... sera formée par une ligne parallèle aux
sinuosités de la côte et qui ne pourra jamais en être
éloignée que de 10 lieues marines (Article IV).'
|M1] L   -
J 72
It is clear that "côte" and "Océan" refer to
the same thing. If the mountains are more than
10 marine leagues from the | Océan," the line
must be drawn nearer the " côte." If the mountains are within 10 marine leagues of the "Océan,"
the 10 marine leagues from the " côte " have not
to be measured.
Upon the meaning of the two words " côte "
and I Océan " in these Articles the answer to this
question depends.
It is submitted upon the language of the
Russian negotiators that the words " la côte "
and " l'Océan," as used by them, referred to coast
and water outside the narrow inlets. With
respect to Portland Canal, it is demonstrable that
they did not consider this either " côte '' or
" océan."
In the Russian reply to Sir Charles Bagot's
amended proposal, Portland Canal is made the App.1 P- <
boundary " sur la côte du continent au sud,"
obviously treating it as running from the coast
inland, because in the same sentence it is
said that its origin " dans les terres est par le
-56e degré."
In the same document the coast left to Great
Britain is described as starting from the " embouchure " of Portland Canal. If Portland Canal
was coast, the British coast should have been
described as commencing at its head.
In Count  Nesselrode's  despatch of the 17th H>-. p 76.
April, 1824, he refers to the entrance to Portland
Canal as its " embouchure dans l'océan," and to
the head of it as its " origine dans les terres.''
In Count Nesselrode's draft Treaty submitted lb., p 94.
to Sir Charles Bagot the head of Portland Channel is spoken of as " dans l'intérieur de la terre
The same conclusion is deducible from a consideration of what must have been present to the
minds of the negotiators.
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 leagues. The negotiators,
though they were consciously ignorant of the
true position of the mountains, had before them
in Vancouver's Map a representation of the
continental shore-line which they knew had
been explored by him. It was as patent
to them as it is to us to-day that it would
be impossible to  trace a line following at  10 7â
marine leagues the convolutions of the line forming the edge of salt water. On the other hand,
it was as patent to them as it is to us to-day that
to draw a line following the waving character of
the general coast, neglecting the deep and narrow
inlets, would be a perfectly feasible and businesslike arrangement.
The British contention is that the possible,
and not the impossible, was contemplated ; and
that whether any particular recess or projection is to be regarded as varying the contour of
the " coast " within the meaning of this Treaty
(i.e., whether or not its shore is "côte" within
Article III, and the convolutions of that shore
" sinuosités de la côte " within Article IV) is a
question of fact depending upon its shape and
size, and the other circumstances of its relation
to the general contour. One test would, in
principle, be analogous to that employed when thé
question is whether inland waters are territorial.
Another test would be furnished by the consideration that the line contemplated was one
capable of having another drawn parallel to it
at a distance of 10 marine leagues ; and convolutions inconsistent with this character could
not be followed in detail.
The line of coast, ascertained on the system
above contended for, supplies the datum line
with reference to. which the boundary (following
the mountains or the 10-marine-league line, as
the case may be) is to be applied. If and where
the inlets penetrate further than the boundary so
ascertained, Great Britain contends that the
Treaty meant they were to be in British territory.
In this connection attention is drawn to the
10-marine-league line drawn as contended for by
the United States. It is apparent that it does
not, and cannot, follow the sinuosities of the
"côte"'as that word is interpreted by the
United States themselves. It is drawn parallel
to an imaginary line running primarily through
the points at the head of the inlets. This must
in any case be wrong. Yet there is no feasible
alternative but that presented by the British
The view above now contended for by the
United States has not always been put forward
by the officers of that Government. In 1893
Dr. T. C. Mendenhall, in issuing instructions to
the surveyors under his direction for the making
[541] I> *
J of the survey under the Convention of 1892,
directed Mr. Tittmann, charged with the duty of
survey of the Stikine River, to continue his
survey to a point on that river, distant " not less
than thirty nautical miles from the coast of the App. I, p. 274
mainland in a direction at right angles to its
general trend." Mr. Tittmann was also informed that, should a range of mountains be
found to exist, it was of the first importance that
its distance from the coast and its general trend
should be. determined unless such distance should
considerably exceed the specified 30 nautical
miles. Mr. J. E. McGrath is directed in the
survey of Taku Inlet and River to continue his
survey to a point " on the inlet or river distant
not less than 30 nautical miles from the coast lb-, p. 276.
of the mainland in a direction at right angles
to its general trend." His iustructions as to the
mountains are in the same words as those given
to Mr. Tittmann.
It is evident that Dr. Mendenhall did not
consider the shore line of an inlet as being part
of the "coast."
• As will be seen from the maps of the United
States' Commission, the survey of the Stikine App. III. Portfolio,
River was carried to a point of the river from CommUioï Map.
which a distance of 30 marine miles, measured
towards the coast, at right angles to its general
direction, indicates the "line of general trend"
to pass at the entrance of Le Conte Bay. The
point taken on the Stikine is less than 30 miles
from the head of that bay.
Again, the point on Taku River is 30 miles
•from Jaw Point, which is within Taku Inlet and
several miles south of its head. Part of the
inlet is, therefore, less than 30 miles from the
point taken..
It is to be observed that Dr. Mendenhall and
his able assistants were engaged under tbe Convention of 1892 in ascertaining " the facts and
data necessary to the permanent delimitation of
the boundary-line in accordance with the spirit
and intent of the existing Treaties." Copies of
Articles III and IV of the Treaty of 1825 were
embodied in the instructions above cited. Yet the
principle followed by them (which is the same as
that applied on the Stikine Biver by Mr. Hunter
in 1877) is inconsistent with the view since contended for by the United States. Por if the line
is properly drawn parallel to the general trend of
the coast when inlets breaking that general trend
I terminate short of the line so drawn, it must also'.
be properly so drawn when the inlets are long
enough to be cut by it. The effect of the
occurrence of the mouth of an inlet upon the
general trend of the coast cannot depend upon
its interior length.
The truth is that the only difficulty is that
caused by reading into the Treaty a controlling
principle that British territory shall nowhere
touch salt water, and by rejecting every application of the Treaty which does not produce
a result in conformity with that assumption. It
is submitted that no vestige of any such principle
is to be found in the Treaty. The question
whether British territory touches salt water was
left by the Treaty to depend upon the application
of the boundary thereafter to be ascertained with
reference to the general line of the coast as a
datum. Any assumption as to how the provisions
of the Treaty would affect particular places would,
therefore, be an assumption, not as to the meaning
of the Treaty, but as to the way it would
operate when practically applied.
It is submitted that the reasons above given
show that this is what the negotiators must have
contemplated, and such conclusion is not inconsistent with any intention that can be attributed
to either party.
It has been said that the Russians wrere
negotiating to exclude Great Britain from the
sea. The Russian description in the course
of the negotiations of the danger they anticipated
to their establishments on the islands, if they did
not obtain a lisière of coast, does not warrant
the assumption that they regarded their safety as
only to be secured by Great Britain being cut off
from salt water.
App. I, p. 75 In   Count   Nesselrode's   despatch   to   Count
Lieven of the 17th April, 1824, in which are
summed up and repeated the views he had
expressed during the negotiations with Sir C.
Bagot,. he described the situation he wished to
guard against. Speaking particularly of Prince
of Wales Island, he said that, according to the
proposal of the English Ambassador (which
offered the Clarence Strait line), Russian estab-
Ib.,p. 77. lishments    of   that   island    "se    trouveraient
entièrement isolés, privés de tout soutien, enveloppés par les domaines de la Grande-Bretagne
et à la merci des établissements Anglais de. la
côte."   To avoid a state of things so described, 76
it was  not necessary to cut Great Britain off
from access to the sea.    Count Nesselrode himself
says so a little lower down in the same despatch.
" Pour  nous,"  he writes,   " nous   bornons   nos App. I, p.
demandes à celle d'une simple lisière du continent,
et afin de lever toute objection, nous garantissons
la libre navigation des fleuves.''   And further on :
" La Russie laisse au développement progressif Ib., p. 78.
des établissements Anglais une vaste étendue de
côte et de territoire ; elle leur assure de libres
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.
This Article has, however, been used to furnish
an argument against the British contention. It
has been said that it shows that Great Britain
was taking for a limited period a licence to frequent waters of this description on this coast
that were ex hypothesi Russian. That is undoubtedly true. But the point is whether they
were necessarily all of them, and in every part,
Russian. This in no way follows from the
licence given by the Article, which, 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
waiters to whidb it may apply.
The sixth question is as follows :—
" If   the   foregoing   question   should   be Case, p. 3.
lisière which was to belong to Russia be
measured (l) from the mainland coast of
ihe Ocean, strictly so called, along a line
perpendicular thereto,  or  (2)  was it the
This question is expressed to arise " if the
foregoing question should be answered in the
negative, and in the event of the summit of the
mountains proving to be in places more than
10 marine leagues from the coast."
This is understood to refer to the event of a
double condition being fulfilled, viz., if—
1. The coast-fringe is held not to be necessarily continuous on the mainland ; and also
2. The summit of mountains prove to be in
places more than 10 marine leagues from the
coast of such (possibly discontinuous) fringe.
The answer which Great Britain contends
should be given to the points raised in this
question appears from what has been said in
dealing with the fifth question. The width of
the lisière should be measured along a line
perpendicular to the general direction locally of
the mainland coast of the ocean, that is to say,
from the line of the " côte " as interpreted in
the answer submitted to the last question, which
line was described as the datum line.
Whether any inlet forms part of the territorial
waters of Russia depends on the question how
far back tbe inlet extends from the line of the
coast of the Ocean, as above explained. If it
extends further than the line of the mountains
parallel to such coast, or, in the absence of mountains, further than 10 leagues from such coast,
the upper part of the inlet is part of the territorial water of Great Britain. It is only in the
event of its not extending beyond those limits
that the whole of the inlet forms part of the
territorial waters of Russia.
Where the mainland coast is indented by deep
inlets forming part of the territorial waters of
Russia, the line would still be measured from
-the line of the general direction of the mainland
coast, which would cross the^ inlet at its mouth
in a path so far coincident with the limit of the
territorial water (that is to say, from headland
to headland) as might be consistent with  the preservation of its character as a general, and not
a detailed, line.
Ihe line would not be measured from the
heads of inlets of the kind referred to. According to the British contention, the continuity
of the fringe is liable to be broken, on the mainland, not only by the mountain boundary (where
found) crossing inlets, but also (where mountains
do not occur) by the 10 - league boundary
doing so.
The British view is that the shore-line of
inlets of the kind in question, whether at their
head or along their sides, does not affect the
datum line furnished by the coast, and therefore does not affect any line ascertained from
that datum.
It is submitted that the line of the coast of
the Ocean cannot be construed as following the
shores of long, narrow, and deep inlets which
occur upon it. So far from forming part of the
coast of the Ocean, such inlets break its continuity. They form in the strictest sense territorial waters of the Power to which the land on
each side of such inlets belongs. They are in no
way wanted for the navigation of the vessels of
other Powers, unless such right of navigation has
been granted by Treaty or is required for the
purpose of lawful access to the shores of such
The British position on this point may be
illustrated by reference to the concrete cases of
the Bradfield Canal, the Endicott and Tracy
Arms, the Snettisham Inlet, the Taku Inlet, and
the Lynn Canal, with its branches Chilkat Inlet,
Chilkoot Inlet, and Taiya Inlet.
On the general question of territorial waters,
reference may be made by way of illustration to
the Convention concerning the fisheries in the
North Sea, to which effect was given by " The Sea
Pisheries' Act, 1883 " (46 and 47 Vict., cap. 22),
the Convention as set out in the first schedule to
the Statute, and the second Article is as
follows :—
" As regards bays, tbe distance of three miles shall be
measured from a straight line drawn across the bay, in the
part nearest the entrance, at the first point where the
width does not exceed ten miles."    .
It will be observed that, as regards bays, the
territorial limit of three miles is to be measured 79
f detei
îs of te
ne to
for th
from a line drawn across the bay at the first poi
where the width does not exceed ten miles.
It is submitted that the principle invoked
this Convention for the purpo
the point from which the three
waters  should   be  measured
regard may properly be had in determii
is to be treated as the line of th
purposes of the present Treaty.
Bradfield Canal, Endicott and Tracy Arms, the
Snettisham Inlet, and Taku Inlet are all landlocked waters, which, for the present purpose, it
is submitted are indistinguishable from the rivers
of which they are the estuaries.
With regard to Lynn Canal, if the rule adopted
in the North Sea Convention is followed, the
general line of the" coast must be treated as
crossing the Lynn Canal in latitude 58° 22' and
longitude 134° 53', being the first point from its
entrance, where the width does not exceed ten
miles. Even if a stricter rule were to be applied
in the present case, it would be found that at
latitude 58° 46' and longitude 135° 07' the width
of the Lynn Canal does not exceed 6 miles, and
it is submitted that, by no possibility, can the
general line of the coast be placed higher up the
Lynn Canal than at this point. A glance at the
physical conformation of Chilkat Inlet, Ohilkoot
Inlet, and Taiya Inlet is enough to show that
the shores of these inland waters cannot be
treated as the fine of the Ocean coast, and yet the
contention of the United States appears to be
that the heads of these inlets are to be treated as
the starting-point from which tbe lisière at this
point is to be measured.
It is submitted that all such inlets form, for
the present purpose, no part of the Ocean, that,
for the purposes of the Treaty, they stand on the
same footing as the rivers which flow into the
Ocean either directly or through such estuary,
and it is only the British contention which gives
effect to the scope and to the specific provisions
of the Treaty.
The seventh question is as follows :— Seventh Question.
" What, if any exist, are the mountains Case, p. 4.
COAST,   which   mountains,   when   within   10
Great Britain contends that there are such
mountains, and that they are to be found fronting
the general coast of the mainland along the whole
coast from latitude 56 degrees northwards.
It is to be observed in the first place that the
mountains contemplated by the Treaty were
described as follows :—
" La crête des montagnes situées parallèlement à la App. I, p. 38.
côte (Article III).
" La crête des montagnes qui s'étendent dans une
direction parallèle à la côte depuis le 56e degré
(Article IV)."
This 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 winding. 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. Moreover, the Treaty contemplated 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 is further to be observed that the mountains
were not to be unbroken.    This is clear from the '
circumstance that the line was to be crossed
by rivers. According to the British contention,
if there is a gap in the mountains not amounting
to a discontinuance of the general line traced by
them, this is not to be regarded as interrupting
the mountains for the purpose of the line any
more than the mouth of a narrow inlet, or the
base of a narrow peninsula would be regarded
as interrupting the general line of the coast.
Where a gap of this character is found in the
mountains on the occurrence of a river, a narrow 81
App. I, p. 70.
Ib.,p. 71.
Ib., p. 78.
inlet or a narrow valley, the line should be continued across that gap and should not be suddenly
set back up the gorge of the river or the course
of the inlet or valley to tbe 10-marine-league
point. The 10-marine-league line applies to
supersede the mountain only where the mountains
cease altogether or recede beyond the 10 marine
leagues In the latter case the artificial line
begins where the mountains cross the 10-league
limit and ceases where they recross it.
According to the British contention, the phrase
" la crête 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. The governing
idea was that this slope was to be Russian.
Whether, when the top of the slope had been
attained, it should be found to be backed by a
mass of peaks or to end in a ridge descending on
the other side to a plain did not concern the
Russians, who bargained only for the slope.
The mountains were to be the mountains next
the sea. It will be convenient to collect from
the correspondence recording the negotiations
the passages in which they are described.
A boundary by mountains is first proposed in
the Russian counter-draft delivered to Sir Charles
Bagot in Pebruary 1824. They are described as
" montagnes qui bordent la côte."
The same phrase is used in Sir Charles Bagot's
amended proposal which is the next document.
In the Russian observations on this amended
proposal the words are " la chaîne de montagnes
qui suit à une très petite distance les sinuosités
de la côte."
In Count Nesselrode's despatch of the
17th April, 1824, it is " des montagnes qui suivent
les sinuosités de la côte."
When the suggestion is laid before the Hudson's Bay Company they ask for "some more
definite demarcation on the coast than the supposed chain of mountains contiguous to it";
they speak of the scanty information available as
to " the country in the immediate neighbourhood of the sea " ; and they propose as the
boundary " the nearest chain of mountains, not
exceeding a few leagues of the coast."
In writing to Sir Charles Bagot on the
12th July, 1824, Mr. Canning suggests a line
* * * * # «following the sinuosities of the
coast, along the base of the mountains nearest
'   [541] M 2
MB 82
the sea," and he particularly refers to the point
that it is the " seaward base " that is referred to.
In Count Lieven's Memorandum of July 1824 App. I, p. 91.
he speaks, of " la base des montagnes qui suivent
les sinuosités de cette côte," and he refers to the
possibilities that they slope "jusqu'aux bords
même de cette côte." On the matter again
coming before the Hudson's Bay Company they
once more emphasize the necessity of more accurately defining the eastern boundary " than by ib., p. 80.
the chain of mountains at a ' très petite distance
de la côte.' "
In Mr. Canning's despatch of the 8th December, I b., p. 113.
1824, the phrase is, "the mountains which run
parallel to the coast, and which appear, according
to the map, to follow all its sinuosities."
In Count Nesselrode's despatch of the 13th lb., p. 131.
March, 1825, it is, " la crête des montagnes qui
suivent les sinuosités de la côte."
The same conclusion is indicated by the
expressions as to the character of the lisière.
In the negotiations which took place in
Pebruary and March 1824, the Russian desideratum is thrice described by.them as a "point
d'appui " and once as " un portion de territoire
sur la côte."
In Count Nesselrode's despatch of the 17th lb., p. 75.
April,  1824,  it is,   "ne ... . qu'une   étroite ib'S'77
lisière sur la côte même," " une simple lisière du Ib;, p. 78.
continent,"    "une   médiocre   espace   de    terre
ferme," " uniquement un point d'appui."
Mr. Canning, on the 29th May, 1824, writes ib., p. 81.
of "the strip of land required by Russia."
Prom this point in the correspondence the
word lisière is used without qualification to
denote what the parties now thoroughly understood to be referred to.
Great Britain contends that this view cannot
be sustained with reference to the topography of
this region, and that as the Treaty is to be
followed the line must be drawn according to the
contention of Great Britain.
The identification of the mountains further
depends (as has already been shown in the argument submitted upon Question V) upon the
identification of the " côte " to which their
direction is to be parallel.
.It is to be observed that if " côte " includes the
shore of the inlets, the mountains to be sought
are those parallel to that shore, and a line drawn
on this principle would give to Great Britain 83
the interior not only of the stretches of territory
between the inlets, but also of peninsulas
running out beyond the coast-line, if there are
mountains running parallel to the shore. Great
Britain does not put forward the contention that
this is the true boundary, but if the contention of
the United States that " côte " includes the shore
of inlets is well founded, Great Britain will maintain that it certainly includes also the shore
between the mouths of the inlets and the shore
of peninsulas, and that the principle must be
applied in favour of Great Britain as well as
against her.
App. II.
No. 37.
App. I, ]
et seq.
The 'contention of Great Britain as to the
interpretation to be put upon the word " côte,"
and as to the considerations which are to be
regarded in identifying the mountains parallel
thereto, have now been set forth. The result
upon the ground which the adoption of those
contentions would give must now be indicated.
The point of departure is, as has already been
submitted, the point where the crest of the coast
mountains is found on the 56th parallel. Great
Britain suggests as answering this description the
point shown on the map in the Atlas herewith in
longitude 131° 42'. This is where the mountains
finally leave latitude 56° and run north. The coast
just south of latitude 56° turns, however, suddenly
to the east, and it may be that a point on the crest
of the mountains parallel to the coast may be
found on the 56th parallel more to the eastward.
The adoption of such an alternative would not
affect in principle the British contention.
Prom the point of departure above suggested,
the line proposed by Great Britain follows the
mountains northwards as shown on the map
referred to. 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. P. 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. CHAPTER  V.
THE Tribunal is to consider in the settlement
of the questions submitted to its decision, not
only the original text of the British-Russian
Treaty of 1825, and of the Treaty of cession of
Russian America to the United States in 1867,
but also—
" Any action of the several Governments, Case, p. 2.
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/'
The actions of the parties previous to the
Treaty of 1825 have already been discussed.
The remaining period naturally divides itself into
two, the actions of the parties from 1825 to 1867,
and subsequently from 1867 to the date of the
present Convention, the 24th January, 1903.
It does not appear that even up to the time An
of the cession in 1867 either Great Britain or the
United States had acquired any but a very dim
idea of that remote part of the New World. The
United States, being nearer to Russian-America
than any European country, and closely connected with it by trade, had been considering
the purchase of the territory during the Administration of Mr. Polk and Mr. Buchanan, and had
made a definite suggestion to purchase in
December 1859. If any exact information of the
district from 1859 to 1867 were available, it would
certainly be in the possession of the United
States' public men, and could not have escaped
the Hon. Charles Sumner, Senator for Massachusetts, whose speech advocating the purchase
of Alaska is put forward as the embodiment of
expert knowledge regarding Alaska at that time.
Yet Sumner declared in 1867 that "perhaps no H.R.,40tbBenj
region of equal extent on the globe, unless we ^nd ^ss,'-i/?7 "
except the interior of Africa or possibly Green- pp. 124 et seq. The Eussian-Araerican Compa]
the lisière.
App. I, p  150.
Alaska, p. 591.
land, is as little known," and cites the description
of it given by • the poet Campbell in tbe
" Pleasures of Hope," " While exploring earth's
loneliest bounds and Ocean's wildest shore."
It seems impossible to conceive of any local
act performed in those remote regions by Russia
during that early period of which Great Britain
could be said to have been made aware by any
means except direct communication or correspondence with Russia. It has been shown that no
such posts had been established by the Russians
on the disputed territory previous to the Treaty
of 1825. By the negotiations leading to that
Treaty it appears that the lisière was sought
simply as a "point d'appui," so that it might
not be adversely occupied. The lease to the
Hudson's Bay Company, 6th Pebruary, 1839,
provided for the return of only one Russian post
at the expiry of the lease, that of Highfield.
situated, not on the lisière, but on Wrangel
Island, a part of the Russian possessions, and in
no way in dispute. This seems sufficiently conclusive that there were no other posts. Bancroft,
speaking of the cession of 1867, states that
Russia herself had never occupied and never
wished to occupy this territory—meaning, it
seems, the whole territory of Russian America.
Bay Comp
i Company
any Lease from E.|
of 6th February,
App. I, p. 150.
The lease by the Hudson's Bay Company of
the 6th Pebruary, 1839, from the Russian-
American Company, cannot be put forward as
affecting the boundary question. The lease sets
up no boundary. It is impossible to detect the
recognition of any sovereignty on the part of
Russia, except over that portion of the territory
given her by the Treaty. That Russia possessed
some portion of the mainland could not then be
denied. If the Hudson's Bay Company, for the
purpose of disposing of a disagreeable competitor
in the fur trade, and to avoid a recurrence of the
Stikine incident of 1834, chose to lease " say the
whole mainland, coast, and interior country
belonging to Russia," it cannot be argued that
it thereby leased something that did not belong
to Russia, or that Great Britain thereby gave
Russia something more than she had previously
possessed. The Company. already enjoyed a
monopoly of the territory on the British side of
J the line. By the lease it secured a similar
monopoly on the Russian side. It was a matter
of indifference to it whether its rights were
derived from its British charter or its Russian
lease, and no question as to the true location
could possibly arise.
The  history   of   the lisière from   the  Treaty History of lisière
of 1825 until 1867 is simple enough. As has
been said in the course of the diplomatic correspondence, the only value of the region during
the first ten years after 1825 lay in the fur trade,
and that trade was thrown open on equal terms
to the subjects and citizens of Great Britain
and Russia, by Article VII of the Treaty
between Great Britain and Russia of 1825,
and, before the expiry of the ten years,
events, which resulted finally in the lease to the
Hudson's Bay Company, of the trade of the
whole of a lisière southward and eastward of
a line joining Cape Spencer and Mount Pair-
weather, had occurred.
- The circumstances leading to the lease are well
known as " the Stikine incident." The clause
of the Treaty throwing open the trade in furs
would terminate by effluxion of time in 1835.   In Stikine River Expeditio
1833-34 a Hudson's Bay expedition proceeded to
Stikine River for the purpose of exploring it and
establishing a post on the upper portion of the
river. In June 1834 the expedition was prevented by the Russians from ascending the river.
This was in manifest violation of the Treaty
inasmuch as British subjects had the right to
the free navigation of the river, and the upper
portion was, under any interpretation, in British
On the 24th October, 1835, the Governor of App. I, p. 155.
the Hudson's Bay Company wrote Lord
Palmerston complaining of the infraction of the
VTth and Vllth Articles of the Treaty of 1825,
and Claiming 22,150/. damages. On the 28th
January, 1836, the Hudson's Bay Company was lb., p. 158.
informed that the Russian Government disavowed
the action of its servants, and promised to convey
His Imperial Majesty's displeasure over what
had been done. The damages were not paid,
however, but a negotiation followed, which led to
the leasing by the Hudson's Bay Company of the
territory of its rival. Part of the consideration
of the lease was the damage which had been
1833-1834. 87
suffered by the Hudson's Bay Company through
the stoppage of its expedition up the Stikine.
The lease was not brought about by any dispute
as to the boundary line but by the desire of the
Hudson's Bay Company to avoid unnecessary
friction by illegal acts of the Russians, of which
the above is an example, and by the further
desire to enjoy a monopoly of the trade.
3 Bay Company's Lease and The original Agreement was  made the  6th
enewas. Pebruary, 1839,  the lease to commence tbe 1st
June, 1840, and to last ten years. A supplementary Agreement was entered into tbe 17th
May, 1842. The lease was renewed in 1S49, and
on the 28th December, 18Ô8, the lease between
the two Companies was extended to the 1st
January, 1862. It was further extended till
June, 1865, and in May, 1866, again for one year,
of Lease, 31st May, 1867. terminating on the 31st May, 1867 (see Declaration on p. 306 of Appendix I). As tiie Treaty
of 1867 was concluded on the 30th March, 1867,
App. I, p. 136. it will be seen that, until after the cession of
1867, the lisière was under lease to the Hudson's
Bay Company.
There is no evidence that Great Britain either
approved or disapproved of the lease, nor
was the Hudson's Bay Company, during the
period in question, in any sense a representative
of the British Government, and no action of the
Company could possibly affect the question at
oceedings of Select Committee of British      The proceedings of the Select Committee of
House of Commons of 1857. the xàtiab, House of Commons in 1857, "to
Report from the   consider the state of those possessions in North
Select Committee America wllich are nn([ev the administration of
on the Hudson s
Bay Company,      the Hudson's Bay Company, or over which they
Ho^sfof37 the     Possess a licence to trade,"'lend no countenance
Commons to be     to United States' contention.
and nth Angus!,     In 1838 the Hudson's Bay Company had been
18h7- granted the licence of exclusive trade over that
north-western portion of British America known
as the Indian Territory.    In 1857 this licence
was about to expire, and the Committee met to
consider the conditions of the  territory which
the Hudson's Bay Company had administered
pp. iii et seq. under its licence.    The people of Canada east of
Lake Superior felt that the means of extension
and regular settlement should be afforded  to
N 88
them   over a portion  of   this  great   territory,
particularly, the   Red   River   Valley   and   the
Valley  of   tbe   Saskatchewan.     The  Canadian E      t from tLe
western boundary in 1S57 did not extend much Select Committee
. ,   T   I .        .       ,, i „    ,.      on the Hudson's
beyond  Lake   Superior   in   the centre  ot   tlie gay company,
Continent.    As a matter of fact, the territory in °Idered by the
"        House of
question was not then a part of Canada, and Commons to be
Canada was at that time in no way concerned ^mh August
in that remote part of British North America. 1857, p. 210.
The question of the boundary-line between the
lisière and British territory was in no way the
subject of the inquiry.
In passing from the period extending from
1825 to 1867 to that extending from 1867 to the
date of the present Convention, the 24th January,
1903, the relations of Great Britain and the
United States, become the subject of consideration.
It is, perhaps, not strictly necessary that the
facts bearing on these relations should be taken
up in the original presentation of the British
Case. They might be more properly dealt with
in reply. It is only because it may be more
convenient that the Tribunal should be made
conversant, in the first instance, to some slight
extent, at least, with the contentions of both
sides in this connection, that any effort is made
to deal with them now. Anything that is
advanced at this stage of the Case, dealing with
these subjects, is therefore given with a full
reservation of the right to deal with the same
subjects more fully in reply.
More Recent.Acts.
The facts as to the occupation of the territory
after the acquisition by the United States areas
follows :—
The formal   occupation  of  the newly-ceded Alaska,
territory is described in Bancroft's " History of
Alaska," at pp. 594-600 et seq.    It appears that
with some ceremony the United States' flag was
unfurled at Sitka on the 18th  October, LS67.
Port Tongass appears to have been established Pacific Coast
in  1867,  and was visited   by transports  with Par)tt'IAlaskii,
garrison  supplies.     A  United  States' military second series,
force was sent to Cook's Inlet in 1868.    There ibid.,' citation
were also some troops at Wrangell. trom )vythes'
ci-j-      m .„ Cook Inlet, p. (
Srtlca, longass, and VVraiigell were all situated Alaska, p. 606,
on islands, and Cook's Inlet lies far to the west note 33-
Occupation by the United Statei
pp. 594-600. of the territory in dispute, and on the Russian
side of the 14lst meridian.
by Morris ^ft       In his letteF °f  lhe 23rd M^> 1877' Oaring
45th Congress, 3   the   return   of   the   troops   from   Alaska/-the
Ex! Doc'. 59" Assistant Adjutant-General concludes with these
words : —
" Upon the departure of the troops, Sitka and Fort
Wrangell will be discontinued as military posts," and " all
control of the military department over -affairs in Alaska
will cease."
There is nothing to show that upon the transfer
a detachment was stationed at any time on the
strip of mainland.
Absence of United States' control As to the extent to which legislation and the
throughout the lisière. » ,    » -, -,      ,     1    ,-, , ,
0     entorcement of law and orcier had been developed
in Alaska generally up  to  a recent  day,  the
following   quotations   from   Bancroft   may   he
made :—
Alaska, p. 602. " The  Company  and the Imperial  Government gave
them at least protection, sufficient means of livelihood,
schools, a church ; but in this vast territory, there never
existed, since 1867, other than a semblance even of
military law. There was not in 1883 legal protection for
person or property, nor, apart from a few regulations as to
commerce and navigation, had any important Act been
passed by Congress, save those that relate to the preservation of seals, the collection of revenue, and the sale of
fire-arms and fire-water."
Ib., p. 604.
" As there was no legal title to land in Alaska, there
could be no legal conveyance nor mortgage, though conveyances were made occasionally and recorded by the
Deputy Collectors at Wrangel and Sitka, the parties
concerned taking their own risk as to whether the
transaction might at some distant day be legalized.
" Miners and others whose entire possessions might he
within the territory, and who might have become residents, could not bequeath their property, whether real or
•personal, for there were no Probate Courts nor any
authority whereby estates could be administered. Debts
could not be collected except through the summary
process by which disputes are sometimes settled in
mining camps. In short, there was neither civil nor
criminal jurisdiction in any part-of Alaska."
Establishment of Schools. Schools have not been maintained in Alaska
  from the time of the Treaty of Cession, or to any
[541] N 2
1 Fish
3 of
vol. i
p. 22
1 population,
Special Agent of the United States, in his Industries, and
Report of the 7th August, 1882, to the Superin- S3»Jby Ivan
tendent of the Census, says :— Petroff Special
7      ^ Agent, to
Superintendent of
"At present the only schools in all. western Alaska Census of United
where English is taught are on the Pribilof Islands and States, 7th
Iliuliuk settlement, Unalaska, both being maintained at « g^al and Salmon
the expense of a trading firm."
Later on in the same Report he says :—
" At the location of all parish churches it is supposed lb., p 229.
or expected tha schools will be maintained by the Church
authorities, but as already mentioned, there is much laxity
in this respect, ïnd at least 20,000 natives are entirely
without the remotest influence of church or school—a fact
our Board of Foreign Missions might take into consideration."
This appears, then, to have been the condition
of educational development seventeen years after
the Treaty of Cession.
Presbyterian missionaries, according to Petroff, Petroff, p. 2:
had established schools on several of the outlying islands and at some of the Chilkat villages
on Lynn Canal, but be nowhere claims that
they were recognized by the . United States'
Government or supported by public money.
The  very  slight  nature  of   the  control   oc-  Visits of United States' naval forces to the
casionally exercised by the United States over       head of Lynn CaDal in 1869 and 189°-
the inhabitants of Alaska may be illustrated by
reference to the incidents of 1869 and 1890.
The events of 1869 are described in the Report Petroff, p. 357.
of Ivan  Petroff, Special Agent of the United
States, before referred to :—
" On the 1st January, 1869, the Chief of the Chilkat
tribe was on a visit to Sitka with sixty or seventy
warriors, and paid his respects to General Davis, who
made him a present of a few bottles of whisky."
The Special Agent proceeds to describe the
effects of the whisky on the Chief, the subsequent collision with the military, the shooting
of some Indians and prospectors, the excitement
caused by the news that the crew of the wrecked
schooner " Louisa Downs " had been massacred,
the prompt burning of three deserted villages in which  " not a hostile warrior was  seen," and
adds :—
" Some time later it was discovered that the shipwrecked crew had not been killed, but rescued by these
• savages and treated kindly." .
The only other reference to 1869 is the following :—
" In the month of July of the same year, the Chilkat
Indians, who had still a life to their credit on account
of the trouble in Sitka in the month of January; boarded
a.small trading vessel, and demanded a life or money.
A written guaranty for the settlement of the claim was
given, and the matter reported to the Commanding
Officer at Sitka, who, however, refused to have anything
to do with it. Upon this, the trader who had given
the security paid the claim, thus securing peace to the
country, and after this the Indians submitted to the
General's demands."
It does not appear that any even of these
events occurred on the territory now in dispute.
The United States' trading vessel does, however,
appear to have submitted to tbe Indian demands,
and another United States' trader seems to have
paid the Indian bill.
In 1890, as it has been alleged, some cannery
owners sent to Sitka for aid against some Indians
in Lynn Canal. A vessel arrived, and the Indians were invited on board and feasted. Nothin g
further appears to have been done.
Another passage from Petroff may be quoted
in this connection :—-
"In 1878 the Sitka Indians began to comport themselves in the most insolent manner, defacing the graves
in the Russian cemetery, pulling down the stockade,
separating the town from the Indian Settlement, and
committing other similar outrages At that time not
even a revenue cutter was present in the harbour, and
the inhabitants^ becoming very much alarmed, sent an
appeal for immediate protection to the Commander of
an English man-of-war in the harbour of Victoria. The
assistance was promptly rendered, just in time, it was
claimed, to prevent disaster; opinions on that subject
were, however, divided. In due time the English man-
of-war was relieved by a similar vessel of the United
States' navy, and since that time a vessel of that class
has been constantly stationed in the harbour of Sitka,
affording protection and assisting the inhabitants of
South-Eastern Alaska in various-ways,"
It thus appears that an American ship interfered to save life on Lynn Canal, and a British 92
ship performed the same office for the Americans
at Sitka. , Both England and Canada were
unaware of these events ; nor does Great Britain
lay claim to Sitka because of the timely aid her
vessel was able to afford.
With reference   generally  to  the   claims   of Isolated acts of possession by United States'
occupation set up by the United States because of
certain   isolated   acts  of   her   citizens,  as,  for
instance, the establishment of a mission school
by the Presbyterians at Pyramid Harbour about
18S1, a private store at Taiya Inlet in 1882 or
1883, and of one or two canneries at Pyramid
Harbour about 1883, it cannot be contended that
these   individual  acts of possession are of any
importance as bearing on the Case.    The United
States had officially declared that  "all claims
of pre-emption and settlement in Alaska were h. K, 5
not only without the sanction of law, but were gress>lf
J ' Doc. No.
in direct violation of laws applicable to the public Part iv,
domain."   Individual acts of possession in Alaska
therefore would be in violation of American law.
It cannot be presumed in the absence of proof
that the people who located in the territory now
in dispute did so in assertion of or in reliance on
the sovereignty of the United States.
Citizens treated gem
Up to this point this account has been taken
up with the annals of an unknown region.
Apart from the visits of occasional Alaska
tourists, who found their way north to escape
the summer heat and enjoy the novel scenery of
the cloud-drenched coasts, and snow-capped
mountains, and beyond the few engaged in the
canning industries no one came to disturb the
silence of the lisière or the peace of the
aboriginal inhabitants. It was as unknown as
the interior of Africa or possibly Greenland when
Mr. Sumner spoke in 1867. Por years conditions
remained unchanged, and until 1896 the Governments of Great Britain or Canada knew little or
nothing of the movements of the people along
that remote north-west coast.
Reference will now be made to the cases of
Dyea and Skagway, two Settlements at the head '
of the Lynn Canal.    It is understood that it is
claimed, on the part of the United States, that
Dyea and Skagway. 93
their possession of these places arose and continued under circumstances which should influence the Tribunal to so delimit the boundary
as to leave these places within United States'
This contention is wholly disputed.
When in the summer of 1896 rich gold-fields
were discovered in the Canadian-Klondike district upwards of 500 miles in the interior from
the head of Lynn Canal, and the news gradually
reached the outer world during the next six
months, the eyes of the people of North America
were suddenly turned towards this hitherto unknown and almost inaccessible region. Tens of
thousands of people in the early, spring of 1897
started for " The Klondike," as tbe new mining
district was popularly termed. The shortest way
to it was by the Lynn Canal over the Skagway
(White) and Chilcoot Passes and down the Yukon
River. The pilgrims were of various nationalities, but mainly United States' citizens. Many
stopped at Dyea and Skagway, while others
pushed on over the passes to the gold-fields. By
this movement of travel Dyea and Skagway came
into existence. If there had previously been
one or two isolated and temporary squatters at
these points, their presence could not, it is
believed, be shown to be of such a character as
to constitute a settlement by or on behalf of the
United States. It is to be particularly noted
that this movement of population look place as
a movement toward the Canadian Klondike, and
the Settlements of Dyea and Skagway were an
incident thereof, and came into existence wholly
without reference to the question as to whether
the sites of. these Settlements were in British
or United States' territory. In the early
summer of 1897, therefore, tbe position was
that some thousands had got over the passes,
others were camped at Dyea and Skagway,
and the movement was rapidly growing. Pood
and supplies had to be transported from the
cities of the Pacific coast through Lynn Canal
and over the passes.
It will be observed that this traffic had to pass
from the towns and cities of British Columbia
and the Pacific Coast States through the waters
which separate the islands and strip of coast
owned by the United States" to the mouth of
Lynn Canal, and thence over the frontier, wherever it might be, into the Canadian territory. 94
Under these circumstances, the Canadian Government was forced by the imperious necessities
of the case to make provision for the traffic,
and this explains their subsequent action.
British vessels were met by the fact that the
regulations governing the action of the United
States' revenue officers in charge of Alaskan
ports were interpreted by them as forbidding
landing from any British vessel anywhere on tbe
shores of Lynn Canal, Juneau on the Gastineaux
"Channel being the only port of entry iu this part
of the territory.
These regulations were put in force, notwithstanding that Canada's claim to the territories
at the head of Lynn Canal was at the time
well known to the United States' Government. A reconnaissance having been made
by Lieutenant Schwatka, of the United States'
army, in the year 1883, of the passes from
the Lynn Canal to the Yukon, embraced in the
disputed territory, the Canadian Government in
1887, as already stated in this Case, shortly after
they had official notice of his report, caused a
protest to be lodged with the Government at
Washington against the implied claim of Lieutenant Schwatka that this pass, called by him
•Perrier Pass, and now known as the Chilkoot
Pass, was in United States' territory. Again, in
1S88, the Canadian Government forwarded a
further protest to Her Majesty's Government for
communication to the United States' Government
against a rumoured attempt of the United States
to exercise jurisdiction at the White Pass,
claiming it as British territory ; and in the same n
year, during the currency of the Pishery negotiations at Washington, Dr. G. M. Dawson, as
representing Her Majesty's Government, in an \\
informal conference with Mr. Dall, representing
the United States, put forward the contention
that the territories surrounding the head of Lynn
Canal were British. The report of the conference
between Dr. Dawson and Mr. Dall was subsequently laid before Congress by President Cleve- The
land, in his Message dated 2nd March, 1889. IU n
' 50th Congress,
In recommending to the President the publication 2nd Session,
of these documents, the Secretary of State §o. H^ p.°Î7
observed :—
United States' Revenue Regulations.
Canada's Claim well known.
The Chilcoot Pas
App. 1,1
The White Pass.
Canada's Protest.
The Dawson-Dall Corresponde]
, p. 259 et seq.
"These documents are considered of value as bearing
upon a subject of great international importance, and
should be put in shape for public information." Report of Coi
Boundary Question sub judice.
•The United States' Revenue Regulations
Canada's Position.
j1892' Indeed, by the year 1892, such a diplomatic
rapprochement had been arrived at between Great
Britain and the United States with reference to
the ascertainment of the true boundary that on
the 22nd July of that year a Convention, herein-
App. I, p. 269. before referred to, was entered into between the
two countries for a survey, with a view to the delimitation of the line in accordance with the spirit
and intent of the Treaties. By this Convention,
it was agreed that the boundary was to be considered and established as soon as practicable
• after the receipt of the Report of the Commissioners, sioners.    That  Report was signed on the  31st
lb., p. 282. December, 1895, and laid before the Parliament
of Canada and the United States' Congress early
in 1896. The position was, therefore, that the
High Contracting Parties had not had time to
meet to consider the boundary-line, and the
matter was still sub judice
It is obvious that if the Canadian Government
had instructed British, vessels to disregard these
Regulations, there would have been grave danger
of a serious collision. Instead of pursuing a
course thus at variance with sound and prudent
international practice, the Canadian Government
opened communication with the Government of
the United States, and proceeded to make
the best arrangement possible for the protection of her trade with the Yukon, while
at the same time reserving her rights as to tbe
ultimate determination  of   the  boundary.    On
lb., p. 289. the  22nd July, 1897,   the  Canadian  Commis-
Consequent Negotiations. sioner of Customs inquired of the United States'
Treasury Department if Canadian goods could
pass from Juneau, Alaska, to the Yukon frontier
without payment of customs duties if owners
paid for United States'  officers accompanying
Ibid. the   goods.     The   Assistant   Secretary  of   the
Treasury, in reply, inquired if it would facilitate
Ibid. matters to make Dyea a sub-port of entry.    On
the following day the Canadian Commissioner of
Customs replied that it would facilitate matters
f Entry—Canada's if Dyea were made a sub-port of entry " pending
atlon- settlement of boundary question," and requested
that, if this arrangement were agreed to, the
Treasury should issue instructions to allow British
steamers from Canadian ports to land and receive
passengers and goods at Dyea.    This arrangement
Ibid. was approved of on the same day, " merchandise
to  be  accompanied   by  a Customs   officer   at
expense   of   owners."     On   the   19th  August
[541] O
Dvea a Sub-port 96
following the Canadian Acting Minister of
Customs sent the following despatch to the
United States' Treasury Department :—
" Freight and passengers for Yukon are going in by -A-PP- 1
White Pass, and the landing is at Skagway Bay,
three miles south of Dyea. American vessels deposit
freight and passengers at the bay, but privilege refused
to Canadian vessels. Customs officers can as conveniently pass entries at Skagway as at Dyea. Will
you please instruct officials by wire to extend privilege
of landing at Skagway Bay to Canadian vessels as
conceded to American vessels."
On the day following the Canadian Acting
Minister of Customs received the following
reply from the Treasury Department :—
" On the 6th instant, limits of Port of Dyea were ibid,
extended to include Skagway, and deputy in charge
instructed  accordingly.     This   action gave  Canadian
vessels same rights as vessels of United States."
Pour important facts are made evident by
this correspondence :—
1. The objective point referred to in the
first Canadian communication is the "Yukon
frontier," no special locality being mentioned.
2. The reference to Dyea and the proposition
to make it a sub-port of entry came from the
United States' Government.
3. Canada, in accepting this proposition, expressly provided that her acceptance was " pending settlement of boundary question."
4. The necessity of the Case requiring immediate action rendered it quite impossible for
the Canadian Government to adopt any other
course than that which was followed.
Four Important Facts.
A few months later the Canadian Government,
in the early part of the year 1898, formally
protested to the Imperial Government that the
United States had established a sub-port of
customs at Dyea, in territory which they claimed
was rightfully British, and urged the desirability
of establishing the boundary-line as contemplated
by the Convention of 1892. An agreement was lb., p. 305.
subsequently   reached   for establishing' a  pro- '
visional line as a boundary, but without prejudice
to the claim of either Government, and matters
have since remained in statu quo.
It is submitted, therefore, that the claims put
forward by the United States' Government to
hold Dyea and Skagway as Settlements made
without notice of adverse rights, and without
any mutual communication saving the rights of
Canada protests, and tirges Delimitation
of Boundary. Occupation of Wale
Construction of Storehouses in 189i
App. 1, p. 293.
The United States' Reply.
Great Britain, are not claims which are justified
by the facts.
It is necessary to refer to one other alleged act
of possession on the part of the United States—
the construction of certain storehouses on Wales
and Pearse Islands, territory claimed to be
British. These storehouses were constructed by
the United States' Government in the summer of
1896, but nothing was known with regard to
them by the Canadian Government until the
year 1901.
In October 1901, it was discovered that on
Chart No. 3091, published by the United States'
Coast and Geodetic Survey, of part of the Pacific
coast, the following names appeared :—
"St. House No. 1," on the eastern shore of
Wales Island.
" No. 2 Storehouse," on the eastern shore
of Pearse Island.
" United States' Storehouse No. 3," on the
shore of Halibut Bay, which is a small indentation of the western shore of Portland Canal.
"United States' Storehouse No. 4," on the
western shore of Portland Canal, to the north of
the mouth of Salmon River, near the head of
Portland Canal.
The exact point designated by the name was
indicated on the chart in each case by a small
An inquiry was at once directed to the United
States' Government "as to the nature of the
storehouses and the reason for their erection in
this territory, the title to which was and still is
the subject of diplomatic negotiation." In Pebruary 1902, Secretary Hay replied :—
"That the storehouses are upon territory which has
been in the possession of the United States since its
acquisition from Russia, and that the designation of
Portland Canal is such as has been noted on ah the
charts issued by the United States since that acquisition,"
and added—
" I am not aware that the Government of His Britannic
Majesty ever advanced any claim to this territory before
the signature of the Protocol of the 30th May, 1898,
preliminary to the appointment of the Joint High Com-
In his letter, Mr. Hay directed attention to a
certain report of the Bureau of Pngineers of the
lb., p. 300 et seq.   United States' army.   Prom this report, it appears
O 98
that the storehouses in question had been built
in 1896 by parties landed by a United States'
revenue-cutter, which had been sent out for the
purpose.    This report further states that after the
completion of each of the buildings referred to,
tbe " flag was hoisted," " three cheers given," &c.
In    short,    the    usual    formalities    ordinarily .The formaliti
observed in taking possession of newly-acquired
territory were   gone   through with,   and  this,
although all  these  regions  so  formally taken
possession of by the United States are claimed by
them to be part of that territory which they have
held for seventy years of undisputed occupation
by the Russians and themselves.    Wales Island
in particular, upon which one of these storehouses
was  erected,  with  these solemn  formalities, is
within a few miles, across a narrow channel (the
Portland Canal of Vancouver) from Port Tongass,
which was occupied by the United States as a
military post for several years after 1867.
In reply to the above letter of Secretary Hay
of Pebruary 1902, the attention of the Secretary App. I, p. 294.
of State of the United States was directed by
Mr. Baikes, the British Chargé d'Affaires at
Washington, to the note, addressed by Her
Majesty's Minister at Washington to the United
States' Secretary of State on the 5th June, 1891.
Mr. Raikes, in his letter, said :— lb-, p. 295.
" In view of a certain passage in the Report of the
United States Coast and Geodetic Survey, your Government was reminded in this note, at the desire of the
Government of Canada, that the question of the
boundary in the neighbourhood referred to was the
subject of some difference of opinion, and that the
actual line could only be properly determined by an
International Commission.
" The Canadian Government point out that shortly
after that date provision was made in the Convention
of the 22nd July, 1892, for the delimitation of the
boundary-line in accordance with the ' spirit and intent
of the Treaties,' and an agreement was entered into
that the boundary was to be considered and established
as soon as practicable after the receipt of the Report
of the Commissioners.
" That Report was signed on the 31st December,
1895, and laid before the Parliament of Canada and
the United States' Congress early in 1896 ; but in the
same year, before the High Contracting Parties had
met to consider the boundary-line, and while the
matter was still sub judice, the United States erected
the storehouses on part of the ' territory adjacent,'
which was the subject of the operations of the joint
survey and of the diplomatic negotiations.
The British Protest of June, 1891. 99
" The Canadian Government conceive that occupation effected under such circumstances would not, in
international law, have any validity, but they are of the
opinion that, nevertheless, the matter should not be
allowed to pass without protest, and they have,
therefore, expressed the desire that your Government
should be informed of their views on the subject."
App. I, p. 296. On  tbe  16th   September,  1902,  the  Acting
Secretary of State of the United States formally
acknowledged receipt of the above commu-
Summarised, the matter of these storehouses
stands as follows :—
Summary. Wales Island is close to Tongass Island, where
for some years the United States had a military
post, being separated therefrom by a narrow
While the whole question of the boundary was
sub judice under the Treaty of 1892, the United
States formally sent a revenue-cutter to take
possession of Wales and Pearse Islands, and did
so take possession in the year 1896.
Of this action Canada knew nothing until
1901, when it was observed by an examination of
the United States' chart ; Canada then at once
protested, and was informed :
1. That the storehouses were not shown on
the United States' maps.
2. That the islands had been in the possession
of the United States since 1867.
It thereupon transpired that although possession had been taken and reported, and the storehouses marked on one chart, the charts which
followed did not show the storehouses. The
accident of a Canadian official happening to
see the one particular chart upon which the
storehouses were marked, alone brought the
incident to the attention of the Canadian Government five years after it had occurred. CHAPTER   VI.
IN the discussions of this question which have Cartography.
. taken place, a number of maps have been at
different times referred to. Of these maps those
that are in the possession or control of the
Representative of the British Government, so far
as known, are reproduced in the Atlas which
accompanies this Case, except such as are mere
copies or reproductions of those which are so
included in the Atlas.
Many of the maps referred to in the discussions
are in such custody as not to be readily procurable for the purpose of having copies made. In
such cases they have not been included in the
It is believed, however, that sufficient have
been included to make clear the arguments which
are based upon the action of cartographers in
relation to the subject in dispute.
The bearing of the maps, which have been
compiled at various dates, upon the identification
of the Portland Canal mentioned in the Treaty,
has already been alluded to in this Case. It
only remains to comment on such bearing as
they may have on the line which runs from the
head of Portland Channel.
With regard to maps generally, it is to be
observed in the first place that their authority
depends upon the degree of information to be
attributed to their authors.
In considering whether the map makers who
have shown upon their maps lines indicating a
boundary had any adequate information to guide
them, it is to be borne in mind that the question
how the Treaty of 1825 affects the inlets on this
coast has always been a question, not of the
interpretation of the Treaty in the abstract, but of
its application to the topography. Whether the
line crossed any, and~if so, what inlets was a
matter which could not be decided till it was
ascertained what was the true line of the coast,
and what was the relation thereto of the various
inlets and of the mountains bordering the coast.
If this is the correct view of the question it is 101
obvious that the information within reach of the
map makers in question was nil. There had been
no survey, and the country was unfrequented
and unknown.
It is contended that the line shown on these
maps is really a theoretical line drawn to indicate broadly that a boundary existed in that
region. This is not a case where a map maker is
identifying natural features of the country as
answering to any particular name; in which
case the map might be evidence to show
that at that time some persons, at any rate,
understood such name as applying to such
natural features. Nor is it a case where the
map maker purports to depict the sites of settlements, the extent of discovery, or the like ;
in which cases the map might afford evidence
of reputation or tradition. The maps of North-
West America now under discussion simply purport to show the general course of a boundary
existing, as yet, only on the paper of the Treaty
which recorded it, deprived during all the years for
which the lisière was under lease to the Hudson's
Bay Company of any practical importance,
traceable with reference to no local names, and
resting on no facts known to the map maker.
It is submitted that the Government of Great
Britain should not be expected, before the
question arose, to make any disavowal of the
correctness of such maps. It would have been
impossible for any one, whether Government
official or private map maker, to pretend to trace
the exact course of the boundary. As a matter
of fact, everyone in any way brought into contact with the matter knew that the boundary
was undetermined, and was incapable of being
determined except by survey and by joint international action. No one, therefore, regarded the
appearance of conventional and obviously inaccurate lines upon maps as having any significance.
Tbe appearance of these lines seems to be
accounted for by the fact that the known point
of commencement in the continent was the head
of Portland Canal. The line was, therefore,
roughly drawn from the head of Portland Canal
as an indication that there was a boundary somewhere in that neighbourhood, it being impossible
to lay it down exactly by reference to the particular definition in the Treaty owing to complete
lack of information in regard to the ground.
When   one   cartographer   adopted   this   plan, 102
île of
others having no 'knowl
and in the absence of a
of the Treaty, naturally
the first.
That these lines were wholly without authority and that they could not be considered as
drawn in accordance, or even approximately in
Mr. Bayard, United States' Secretary of State, in
his letter to Mr. Phelps, United States' Minister
at St. James', of November 20, 1885, already
referred to in this Case. Mr. Bayard first quotes,
with approval, a letter of Mr. Dall, the United
Suites' Expert Officer, in which Mr. Dall says :—
"We may then fall back on the line parallel with
the windings of the coast. Let any one with a pair of
drawing compasses, having one leg a pencil point, draw
this hue on the United States' Coast Survey Map of Alaska
(No. 960, of 1884-). The result is sufficient to condemn it.
Such a line could not j be surveyed: it crosses itself in
many places, and indulges in myriads of knots and tangles.
The line actually drawn as a boundary on that map omits
the intricacies, and is intended merely as an approxi-
- mation."
Mr. Bayard then says :—
" The line traced upon the Coast Sur
(Kb. 960), of which copies are sent to
evidently conjectural and theoretical as
summit line  traced by  Vancouver,
mountain topography of the country, a
Mr. Bayard expresses United States' Vi.
Mr. Bayard then specifically instructs Mr. T
Phelps to "bring the foregoing considerations
to the attention of the Marquis of Salisbury," lb.,
instructions which were carried out in due course.
It is demonstrated, therefore, that in 1885 the
United States' Government officially disavowed
to the British Government the correctness of this
conventional line, adopted by their own and other
cartographers, and declared that the line was not
The   Earl   of   Iddesleigh   in   his   letter   of lb.,
August 27, 1886, to Mr. Phelps, some months
later, expressed substantially the same view on
behalf of Great Britain.    He said :—
"In the note which you addressed to the Marquis
of Salisbury on the 19th January last, vou requested
lited Stat
the Coj 103
that you might be furnished with a copy of the map of
the Dominion of Canada, geologically coloured, from
surveys made by the Geological Corps, 1842-1882,
alluded to in Mr. Bayard's statement of the 20th
November, 1885, with reference to the question of the
Alaska frontier.
" In forwarding to you a copy of the map in question, I have the honour to invite your attention to the
fact that the Alaska boundary-line shown therein is
merely an indication of the occurrence of such a dividing
line somewhere in that region. It will, of course, be
clearly understood that no weight could attach to the
map location of the line now denoted, inasmuch as the
Convention between Great Britain and Russia of the
28th February, 1825, which defines the line, making its
location dependent on alternative circumstances, the
occurrence, or the non-occurrence, of mountains, and, as
is well known to all concerned, the country has never
been topographically surveyed.
" Her Majesty's Government, therefore, feel that they
are bound distinctly to disavow the recognition of the
correctness of the line shown on the edition of the Map
in question, forwarded herewith, as the boundary-line
" between the Province of British Columbia and Alaska."
British and United States'Views Identical. The positions of the United States and Great
Britain upon this subject are therefore identical.
In view of this fact, it becomes unnecessary to
make any extended statement in reference to
the appearance of this conjectural line on the
various maps reproduced in the Atlas and on
other maps which may be brought forward.
With a view to showing the diversity of the
conventional and unauthorized lines drawn upon
maps by tbe various cartographers, attention is
draWn to the following :—
A map of Alaska and adjoining regions was
compiled hy Ivan Petroff, Special Agent of the
United States, tenth census 1880, published in
App. II. Map united States' Census Report. This map shows a
waving line not following the parallel of latitude,
entering the mouth of Observatory Inlet, and
crossing up into Portland Canal, running from
the head of Portland Canal about 30 miles from
the general line of the coast up to Lynn
Canal, and then running a similar distance
around the head of Lynn Canal. This line in
some places treats tbe inlets as not forming part
of the coast, and it measures the approximate
30 miles from the mouth of the inlets until it
reaches Taku Inlet andeLynn Canal, when it
adopts a different principle and appears to treat
Lynn Canal as part of the Ocean.
[511] P 104
Another map, printed in volume viii, 10th Ap. II. Map
Census, United States, 1880, compiled by the Na 30*
same Ivan Petroff, Special Agent, has a line
indicating the boundary which follows the same
general principle as that immediately preceding,
except that it assumes some point in Lynn Canal
as the point where the coast stops, and shows the
boundary-line apparently crossing the head of
Lynn Canal, leaving a portion of it on the
British side of the boundary-line.
In the library of tbe United States' Congress
at Washington there exist maps opposed to the
United States' contention. The following may
be mentioned :—
A map published by A. Bertrand of Paris in
1826, giving a delineation of the west coast of
America, shows Alaska as a peninsula only.
Again, Sharp's Student's Atlas (Chapman and
Hall of London), 1850, shows the coast strip
about 10 marine leagues wide from Mount St.
Elias to latitude 56° 15', thence south-wrest to
Burrough's Bay. Revillagigedo is coloured as
being British territory.
Another map showing the world on Mercator's
projection in the same Atlas shows Russian
America as confined to the mainland west of the
141st meridian.
A comprehensive Atlas, published by W. G.
Tichnor of Boston, 1835, shows the boundary
between the Russian and British possessions
by a dash line, on the 141st meridian Arctic
Ocean to the Pacific Ocean, marked " boundary
settled in 1825."' Upon this map a coloured
line is drawn, apparently by hand, showing the
boundary from the 141st meridian north of
St. Elias, running along approximately parallel
to the general line of coast to the head
of Portland Canal. Another copy of the same
Atlas, apparently older, shows the same dash
line ; but the coloured line added by hand runs
into Lynn Canal on the west side near the head,
and emerges near Endicott Arm, and from this
point to latitude 56°, where it ends, leaves a .
very narrow strip between line and shore. Prom
56° to 54° 40' the mainland is all shown as
British territory.
In another Atlas published by Chapman and
Hall, of London, 1844, described as an Atlas published by the Society for the discussion of useful
knowledge, is a map of British North America, App. I,
which shows the boundary-line approximately
10 leagues from the shore to Burrough's Bay.
These maps are cited for the purpose of
showing that the boundary-line shown upon the
maps were all hypothetical, and differed greatly
as between themselves.
Pinally, on this subject, reference is made to
the Convention which was concluded between
Great Britain and the United States on the 22nd
July, 1892. This Convention- has been already
referred to, and is set out in the Appendix. It
must be remembered that it was concluded after
the diplomatic correspondence and communications which had taken place from 1825 to 1892,
and followed not long after the letters of Secretary Bayard and the Earl of Iddesleigh, cited
above. It provided for a determination of the
boundary to follow the ascertainment of facts and
data by joint survey, but made no reference to
previous cartography.
In regard to the remarks offered upon the
question of maps, they are made with a reservation of the right to deal with the subject
fully in the British Counter-Case. It is obviously impossible at this stage to know what view
will be presented by the United States, and the
foregoing observations are made at this stage
for the purpose of, putting the Tribunal in possession at the outset of the general view taken by
Great Britain upon the subject.     


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