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

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Array       BOUNDARY   BETWEEN   THE   DOMINION   OP   CANADA
AND  THE   TERRITORY  OP  ALASKA.
COUNTER-CASE
PRESENTED  ON THE  PART  OF THE
GOVERNMENT OF HIS BRITANNIC MAJESTY
TRIBUNAL  CONSTITUTED UNDER ARTICLE I OF THE
CONVENTION
SIGNED AT WASHINGTON, JANUARY 24, 1903,
HIS BRITANNIC MAJESTY AND THE UNITED
STATES OF AMERICA.
LONDON:
PRINTED  AT   THE   FOREIGN   OFFICE,
BY HARRISON AND SONS, PRINTERS IN ORDINARY TO HIS MAJESTY.
1903. TABLE OF CONTENTS.
Protest by His Majesty's Government and Reservation of Rights
Preliminary—Methods of Treatment of Questions in Dispute by United States
Britain Contrasted
Arrangement of Counter-Case
First Question—Point of Commencement of the Line
Second Question—What Channel is the Portland Channel ?    ...
Third Question—Course of Line from Point of Commencement to Entrance of Por
Channel ...
Fourth Question—56th parallel: Point to be drawn from Head of Portland Channel, 6
Fifth and Sixth Questions—The Listtre
Seventh Question—What are the Mountains parallel to the Coast ?
U.S. Negotiations with Russia for Renewal of Trading Privileges
Acts of Occupation—
I. Russian Occupation
II. United States'Occupation
Page
1
17
,22
56
65
66
74 BOUNDARY BETWEEN THE DOMINION OE CANADA
AND THE TERRITORY OE ALASKA.
THE   COUNTER-CASE
PRESENTED ON THE TART OE THE GOVERNMENT OE HIS BRITANNIC
MAJESTY TO THE TRIBUNAL CONSTITUTED UNDER ARTICLE I
SINCE this Counter-Case went to press, some evidence by affidavit has been
received in London, transmitted by cable, which qualifies the evidence presented in
the Case for the United States. In order to lay it before the Tribunal at the
earliest possible moment, a print of these affidavits as cabled has been added to the
Appendix.
Comment upon this further evidence is necessarily reserved to the Argument, and
the printing of this evidence is not to be understood as waiving or qualifying the
protest and reservations made by Great Britain in this Counter-Case.
templates an extension of time by the Tribunal,
if in their opinion such extension becomes necessary owing to special circumstances. The Tribunal
not having assembled, no application can be made
to it.
His Majesty's Government requested the
Government of the United States to consent to
an extension, but the request "was refused.
Under these circumstances His Majesty's Government have, in compliance with the terms of the
Treaty, prepared this Counter-Case, but have
reserved, their right to apply to the Tribunal,
ySieii it shall assemble, for permission to put
in &_ucb supplementary statement and evidence
ap'the jasbjee of tbe,«.iajse may call for.
[769] B 2 TABLE OE CONTENTS.
Protest by His Majesty's Government and Reservation of Rights
Preliminary—Methods of Treatment of Questions in Dispute by United States and Great
 Britain Contrasted
I. Russian Occupation
II. United States' Occupation
4 A BOUNDARY BETWEEN THE DOMINION OE CANADA
AND THE TERRITORY OF ALASKA.
THE  COUNTER-CASE
PRESENTED ON THE TART OE THE GOVERNMENT OE HIS BRITANNIC
MAJESTY TO THE TRIBUNAL CONSTITUTED UNDER ARTICLE I
OE THE CONVENTION SIGNED AT WASHINGTON ON THE 24<th
DAY OE JANUARY, 1903, BETWEEN HIS BRITANNIC MAJESTY
AND THE UNITED STATES OE AMERICA.
f His Majesty's Government, and        HIS MAJESTYS  GOVERNMENT must j
Reservation of Rights.
company the delivery of this Counter-Case with
the following protest:—
In the judgment of His Majesty's Government
there has not been adequate time to examine and
deal with the documents and evidence put forward in the American Case. The Treaty contemplates an extension of time by the Tribunal,
if in their opinion such extension becomes necessary owing to special circumstances. The Tribunal
not having assembled, no application can be made
to it.
His Majesty's Government requested the
Government of the United States to consent to
an extension, but the request was refused.
Under these circumstances His Majesty's Government have, in compliance with the terms of the
Treaty, prepared this Counter-Case, but have
reserved, their right to apply to the Tribunal,
when it shall, assemble, for permission to put
in &.uch supplementary statement and evidence
ap'ihe j"a£fciGe'0f'tbse;<}ape may call for.
[769] B 2 PRELIMINARY.
BEFORE   presenting   the   answer   of .Great
Britain to the Case of the United States, it is   •
desired to make a preliminary observation upon
the  manner  in which  the questions  in  dispute
have been there dealt with.
The Case for the United States rather avoids Methods of treatment of the H
the question of the construction of the words of     m^in contrasted.
the Treaty in which the High Contracting Parties 	
recorded the arrangement come to between them.
The Case is mainly devoted either to a search for
some general and controlling principle which the
Negotiating Powers might be assumed to have
had in view ; or to an endeavour to show, from
communications other than the Treaty itself, and ifek*-'
in some cases not even passing between the
Parties, what was the arrangement in feet arrived
at. No attempt is made to show that the conclusions reached are even consistent with the
language of the Treaty as applied to the geography
of the country with which it deals.
It is respectfully submitted on behalf of Great
Britain that the function of tbe Tribunal is to
interpret   the   Articles  of   the   Convention   by
ascertaining the intention and meaning thereof,
and not to re-cast it. Any considerations showing that the words of the Treaty must have been
intended to bear a particular meaning, being a
meaning which they are in themselves capable of
bearing, may, of course, be legitimately presented.     With regard to  the  character  of the
lisiere, it is plain, from the words of the Treaty,
that this question must depend upon the meaning
to be attached to the words " coast" and " Ocean.'
There is no possible escape from  this   position.
The   lisiere   cannot,   without   disregarding   the
affirmative provisions of the Treaty, be extended
more than 10 marine leagues from the " coast " and
from the " Ocean."    The arguments put forward
in the British Case were accordjjagly :dirfe<ited-A»;   ..
and no arguments can be legitimate which*:are:'"' *: ••"
not directed—to ascertaining by an exetontfation
of the negotiations, and by*f&£er§5*sev|<}-jfche:eei-:   • }'\:
graphy, in what sense those   words  were  used.
In the Case for the United States, however, no
argument at all has been directed to this question ; but the whole case on this point is given up to
an. attempt to establish a controlling principle
which the Tribunal is asked to give effect to, not
by putting on the language employed any construction of which it is shown to be capable in
itself, but rather by disregarding such language
altogether.
Great Britain denies that, even apart from the
Treaty, the Parties can in fact be shown to have
had in contemplation the intention which, upon
the process of reasoning above adverted to, the
United States attribute to them; and she protests that proof of such intentions, even if established, would be inadmissible to contradict the
language of the Treaty.
The course into which it is sought on behalf of
the United States to divert the inquiry is not
justified either by sound principle or by the provisions of the present Treaty of Arbitration.
According to the contentions in the Case of the
United States it is frequently some expression
used by one or another from time to time in the
course of the protracted negotiations, rather than
the language in which their ultimate and deliberate
agreement is expressed, that should govern the
result.
And to this end resort is attempted to such
expressions; and, even further, to accounts given
by the Representative of one of the Contracting
Parties to another Representative of the same
Party ; to negotiations between the United States
and Russia; to reports of a Representative of
the United States, descriptive of the effect of the
Russo-British Treaty, as .verbally communicated
to him by the Representative of one of the
Contracting Parties; to maps compiled, and
names given, and descriptions prepared under
various circumstances long after the Treaty; to
almost everything rather than the words of the
Treaty itself.
One of many striking examples of this proposed
method of reaching the meaning of the Treaty
may be cited here.
The United States' Ambassador at St. Peters-
burgh, who had had nothing to do with the
negotiations between Russia and Britain, reports
to his Secretary of State that after the Treaty
was signed, the British Ambassador saw him, did
not show him the Treaty, but explained its
contents verbally.
Mr. Middleton reports his recollection of Mr. S. "1
Canning's version of the Treaty. This report is
quoted in the Case, with the following comments:—
( " The interpretation placed upon this article by its
negotiator shows clearly the course of the line intended
by the terms of the treaty, as well as the extent of the
lisiere which it established     This explanation
of the article, fixing the boundary, while it differs in
language from the treaty, agrees with it if it is interpreted naturally and with knowledge of the discussions
which had preceded its signature, and were explanatory
of the protective character of Russia's possessions on
the continent."
It is submitted that all certainty would disappear under the proposed method of interpretation, which is inadmissible and misleading; and
that the true solution of the question is to be
found in the words of the Treaty, taken in
connection with the relevant and admissible
extrinsic facts.
Great Britain desires to adopt and apply to
this question the language of the British Ambassador to the British Foreign Secretary, in a letter
of the 3rd April, 1825, immediately after the &
conclusion of the Treaty of 1825, in which, dealing xj.i
with both that Instrument and the Treaty of
1824, he writes as follows :—
o Referring to the American treaty, I am assured, as
well by Count Nesselrode as by Mr. Middleton, that the
ratification of that instrument was not accompanied by
any explanations calculated to modify or affect in any
way the force and meaning of its articles. But I
understand that, at the close of the negotiation of that
treaty, a protocol, intended by the Russians to fix more
specifically the limitations of the right of trading with
their possessions, and understood by the American
envoy as having no such effect, was drawn up and
signed by both parties. No reference whatever was
made to this paper by the Russian plenipotentiaries in
the course of my negotiation with them; and you are
aware, sir, that the articles of the convention which I
concluded depend for their force entirely on the general
acceptation of the terms in which they are expressed."
With the reservation above indicated, it is
proposed to examine the facts and arguments put
forward in the Case for the United States. ARRANGEMENT OF COUNTER-
CASE.
IT is thought convenient in dealing with the
United States' Case to consider separately, in the
first place, the facts and arguments put forward
as they bear upon the first four questions to be
answered by the Tribunal. This part of the subject being disposed of, the Fifth and Sixth questions to be answered by the Tribunal—which
concern the lisiere, and to the discussion of which
the United States' Case is chiefly devoted—will
be dealt with together, taking up the facts and
arguments in the order in which they have been
presented by the United States. The Seventh
Question will be discussed in turn. The last
branch of the Counter-Case, following the order
of the Case, will be devoted to a consideration of
British App. I, " 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."
FIRST QUESTION.
The first question to be answered by the
Tribunal is—
"What is intended as the point op com-
'•:  l .-. i i mencement of the line ? "
Agreement as to Point.
British Case, The Case of the United States agrees with that
?;£6V, mo   of Great  Britain in the  conclusion  that  Cape
U.S. Case, p. 103. . [ r
Muzon, I which at the tune of the negotiation of
the treaty of 1825, and long after, was believed to
.  be one of the southern points* of Prince of Wales
Island, and so appeared upon the maps and charts
of the period," is the point of commencement of
the line.
Agreement that Geographical description Thus it seems   agreed   that   the   geographical
governs. description governs;   and no contention is raised
* Note.—On page 46 of the British Case the following
errata:—15th line, for " below " read " between," 17th line,
for " discrepancy " read " dependency." with regard to the parallel of 54° 40' as affecting
the point of commencement.
Consequently, it is not deemed needful to
enlarge here on the position already taken in the
British Case in favour of the geographical, and British (
against the astronomical description, as determina- P* '
tive of the point of commencement, or to discuss
further the reasons against the adoption of the
parallel as such point.
SECOND QUESTION.
The second question to be answered  by the
Tribunal is—
"What channel is the Portland Channel?"
The British Case contends that the Portland
Channel is that which was described by Vancouver, and which extends from the Ocean,
between Kannaghunut, Sitklan, Wales and
Pearse Islands, and the interior peninsula on the
east and south, and Tongass and Fillmore Islands
and the continental shore on the west and north,
to the head.
The Case of the United States contends that
Portland Channel " is the same body of water,
now commonly known and described as Portland
Canal, which, passing from the north between
Ramsden Point on the mainland and Pearse
Island, and thence southward of said island and
Wales Island, enters Dixon Entrance between
the island last mentioned and Compton Island."
Thus, the United States' contention is that the
lower part of the Portland Canal of the Treaty is
the body of water comprised in Vancouver's
" Observatory Inlet," instead of that comprised in
Vancouver's " Portland Canal," as demonstrated
in the British Case.
The process by which that lower part of Observatory Inlet came, at a later date, to be sometimes called " Portland Inlet " has been alluded
to in the British Case. But it is denied bv
Britain that this lower part is even now, still
more that it has for any length of time been,
commonly included in the name " Portland
Canal."
Needless-to add, that it is denied that any such
subsequent nomenclature, if established, can
affect the question at issue.
United States' Contentic
Its effect as to Obs
Na:
lb. p. I
es "Portland Inlet" United {
Canal"
" Pears
' Canals.
It may be observed that the Case of the United
U.S. Case, p. 44.   States agrees that the Vancouver maps and their
reproductions are to be taken as those used by
the negotiators,
that  " Portland      ^ may be further observed that the same Case,
(ailed dealing with the condition of the territorial controversy  as  it stood on  the suspension of the
negotiations after the Russian rejection of Sir
Charles Bagot's fourth proposal, states that it:—
U.S. Case p. 51. " Had shrunk to a dispute over the possession
of an irregularly shaped portion of the continent
bounded on the east by Pearse and Portland Canals
and a presumptive chain of mountains, on the north by
aline extending from a point on the coast, about latitude
56° 30', to the mountain range, and on the west by the
indented continental shore line, together with the
islands lying between Clarence Strait and the mainland
from 54° 40' to 56° 30' and thus situated north and
west of Portland Canal and between it and the continent."
It will be noticed that the eastern boundary of
the section described is given as " Pearse and
Portland Canals." But " Pearse Canal," which is
the name subsequently given by the United States
to the lower part of Vancouver's Portland Canal,
and " Portland Canal," which name was later
limited by the United States to the upper part
of Vancouver's Portland Canal, make together
the " Portland Canal" of Vancouver as claimed
by Britain.
And there is thus here an express admission
that,, at this stage of the negotiation, it was that
canal, and no other, which the Parties meant by
Portland Canal.
There is not any, and there could be no successful attempt to show the least change of
understanding on this head; and thus the Case
of the United States itself sustains the British view.
Objection is taken in another part of this
Counter-Case to the attempt to construe the
Treaty by the introduction of irrelevant matter.
But, in truth, there is, in the matter brought
forward by the United States, no reasonable
proof contradictory of the interpretation of the
Treaty here advanced by Great Britain. On the
contrary, there is much confirmatory of the British
view.
I United States' Documents as to Tongass For example, the British view gives Tongass
H&h £3"wS ShJL™ Po°5£i Wand - %** Mediately to the north and west
Canal, and South and East Boundary of of the entrance  to Portland Canal; and conse-
Russian Territory.  quently as the extreme  south and   east   point
of Russian-America, since called Alaska.
[769] C
British Case
pp. 66-68.
Effect of matter brought forward by
United States. "T
Now, in 1835, after the expiration of the ten
years' trading privileges, the Russian-American Russian-American Company in 1835.
Company took steps to prevent the continuance
lof trading by foreigners; and to that end, in
March 1835, despatched a vessel to Tongass
under the following instructions to the Commander :—
" After having prepared your vessel for the expe- U.S. App., p. 233
dition,  I recommend you   to   set   sail   at   the   first
opportunity, and direct your course by the most convenient route to Tumbaz [Tongas].
" The aim of your expedition is two fold: 1. The
occupation of a station on the frontiers of our straits for
the purpose of preventing the foreigners to enter them
and to trade with the natives, as they have lost the
right to do so on account of the expiration of the ten
years' term  of the  Convention     I  deem it
necessary to  observe the following with regard to
these two points.
" I. Occupation of a station.
" As we may say that the only place in our straits,
visited by the foreigners is Tongas, you must select
this bay as the place of your sojourn. Here you may
always hear from the Kolosh about the appearance of
some vessel and consequently having your brig always
ready to set sail, you will always be able to proceed to
where the foreigner will show himself."
Thus Tongass is described, and is to be occupied
as "a station " "on the frontiers of our straits."
These instructions were carried out, and similar
steps were taken in other years. „ .   , % i,
i,     ^      -,      ,, .     _,     ^.     tt -j.  -i «.,   ,       Umted States'Establishment m 1867 of Fort
Shortly after the cession to the United States,     Tongass on North side of Portland Canal.
they established the military post at Fort Tongass, 	
which was maintained for several years.
In September, 1867, Major-General Halleck,
Commanding, instructed Colonel Scott to proceed
to Victoria and New Westminster to collect information as to the Indians on or near the boundary.
The instructions proceed as follows :— *' P"
" It is said that Indians living near the boundary line
between northern British Columbia and the ceded
Russian-American possessions have made several hostile
incursions into the settlements in British Columbia and
Washington Territory, which hostile incursions might
have been checked or prevented by proper military
force in the vicinity of Fort Simpson or Portland Canal.
To accomplish this object it may be necessary for the
United States to establish a military post within their
own territory, on the north side of Portland Canal. You
will carefully inquire into this matter."
Colonel  Scott,  on  the   4th  November,   1867, lb., p. 347.
reported on his expedition, saying :—
U.S. App., p. 346. ms appearing hereafter, I  extended my
3 north' side of Portland Channel—in our
U.S. App., p. 349.      Further on he says :—
«Portland Channel is an important inlet for trade
with the interior tribes. It is desirable, as a means for
developing the country, and for the purpose of affording
protection to our traders and revenue officers, as well as
to preserve peace between our own and the British
Indians, to establish a small military post on or near the
channel. Such an establishment would also have a good
moral effect upon the tribes living or trading for many
miles around the vicinity. Impressed with these reasons,
and in view of the importance of the trade upon the
channel and adjacent inlets, I crossed over from Fort.
Simpson to our own territory in search of a site suitable
for a military station.  I believe the most suitable place to
be Tongass Island     The accompanying sketch'
will give a very accurate idea of its locality, and
the various channels in the immediate vicinity. (In-
closure C.)"
This inclosure is not produced, but it will be
observed that the instructions were to establish
a military post on the north side of Portland
Canal, and that Colonel Scott reports that he
went to the north side of Portland Canal, and
that he searched for and found the most suitable
place for a station on Tongass Island, which is
thus identified as being on the north side of the
canal.
The military post was accordingly established.
General Thomas's Report, 1869; Tongass        Again, in 1869, General Thomas was despatched
on Boundary. to the region, and on the 27th September, 1869,
reported as follows :—
" After touching at Victoria, Vancouver Island, for
U.S. App., p. 358. coaj; i proceeded direct to Alaska; reached Fort
Tongass 18th July. This post is on one of the small
islands of the Tongass group, at the southern end of
Alaska Archipelago, and is occupied by one company of
artillery. As it has been useful in checking illicit
trade with Tongass, Cape Fox, and other Indians,
and is on the boundary between Alaska and British
Columbia, I have not thought it wise to discontinue it
at present."
Thus Tongass Island  is identified as on the I
boundary between Alaska and British Columbia,    j
School and Mission.     * Again,   on   the   15th   September,   1898,   the
       „       w '  Commissioner of Education reported to the Secre-
Ib., p. 480.
tary of the Interior as follows :—
"In 1885 a school was opened at Fort Tongass, on
Tlekhonsiti Harbor, in about latitude 54° 45' north
and longitude 130° 45' west."
[769] C 2 ~T
Tongass extreme South-eastern Point
of Alaska.
Davidson's Report.
U.S. App., p. 341.
The school was opened in the United States'
military barracks, which had been erected in 1867.
On the 15th September, 1898. the General
Agent of the Department of the Interior reported
to the Secretary of State on the subject of the
establishment of Mission Stations as follows :—     U.S. App., p. 481.
"In 1885 I sent Mr. and Mrs. Lewis Paul as
missionaries of the American Presbyterian Church to
Fort Tongass, on Tlekhonsiti Harbor, on the extreme
southeastern point of Alaska-, where they remained for
several years."
Thus Tongass Island and Fort are again identified as the extreme south-eastern point of Alaska.
The United States' Case quotes a Report of
Assistant Davidson, of the United States' Coast
Survey, dated the 30th November, 1867, in which
Mr. Davidson describes Portland Canal as an
extensive arm of Dixon's Sound, and as having
its entrance between Point Wales and Point
Maskelyne, and as receiving Observatory Inlet at
Point Ramsden.
Mr. Davidson makes reference to Vancouver's
map and book as his authority.
But the British Case having already dealt with British Case,
this phase of the subject, it is not necessary here t^j'^ *_„
to repeat the facts which escaped Mr. Davidson's p. 139.
notice.    It is submitted that his mistakes cannot
affect the conclusion.
It must be added that the extract given in the U.S. App., p. 342.
United   States'   Appendix   does   not   seem   an
adequate representation of Mr. Davidson's statements, which are open to serious  comment, and
the full  text  of which  is  to be  found  in  the H. of B. 40th
Message on the Acquisition of Russian America, e™ fjo<f}foSei77
including Sumner's Speech, 1868. p. 265.
The United States' Case makes some miscellaneous citations, to which a few words may be
devoted.
De Mofra's " Exploration of the Oregon Terri- De Mofra's Work,
tory " (Paris, 1844), attempts some description of ug  . 521
the boundary. He says, at p. 148, "Cape Chacon,
or Point Wales," at the south-west extremity of
Prince of Wales' Archipelago, forms the south
boundary of Russian America. And he adds that
the line runs thence west to east " as far as the
coast inlet, where it meets the Portland Canal,
the right bank of which it follows."
At p. 273 he says :—
I The dividing line begins at Cape Chacon, the
southern extremity of the large island of the Prince of
Wales Archipelago, in latitude 54° 40', and runs to the,
east toward Portland Canal, which it ascends." Pacifi
land
lb., p. 522.
Cartography.
British Case,
p. 100.
App., p. 45.
U.S. Atlas.
Secretary Baya
U.S. Atlas, Nos. 7
9, 12, 13. 14, 16,
17,18, 24
■d's Despatch.
British App.,
id i
P(
ai
north
figure]
He
id 1
I Canal as bearing thence
itiug 70 miles {Vancouver's
n its entrance into Chatham Sound,
ks of " the inlet between Point Wales
and Point Ramsden," which, from his references
in describing Observatory Inlet, he treats as part
of the latter inlet, so bringing Observatory Inlet
to the Ocean between Point Maskelyne and
Point Wales.
He speaks of a channel running " parallel with
the direction of the main inlet" behind the islands
between Point Wales and Point Ramsden. It
is submitted that his account throws no light
upon the construction of the Treaty, and it will
be observed that he in no way supports the
United States' contention that the entrance to
Portland Canal is to be found between Point
Wales and Point Maskelyne, as he attributes all
this portion of the Channel to Observatory Inlet.
He gives no authority; and it is submitted
that his account cannot affect the construction of
the Treaty.
On the subject of the cartography, reference is
made to what is already said in the British Case,
and also to the statement of the British Admiralty
in the Appendix.
It may be remarked, with regard to the various
maps reproduced in the Atlas of the United
States, that it will be found, on examination,
that the way in which the names are printed on
a large proportion of the earlier maps favours the
view that Observatory Inlet and Portland Canal
extend to the Ocean, each in its own channel, past
the branch which runs between Point Ramsden
and Pearse Island, and thus, so far, aids the
British Contention as to the entrance of Portland
Canal and Observatory Inlet respectively.
Mr. Secretary Bayard, in the despatch to
Mr. Phelps of the 20th November, 1885, communicated to the British Foreign Secretary,
admits that—
" The a
point of P
of nortl
charts of different mode It is submitted that, after all, the question must British Case,
be governed by the considerations stated in the
British Case, and should be decided accordingly.
THIRD QUESTION.
The third question is—
" What course should the line take erom
the point oe commencement to the entrance
of Portland Channel?"
U.S. Case,
p. 103.
This question, of course, presupposes the determination, by the answers to the first and second
questions, of the two points to be connected by
the line.
The British contention is that the line takes
such a course as (saving Cape Chacon to Russia, g^^ 0ase
the possessor of the rest of Prince  of Wales p. 64.
Island)   is  the   most direct between   the   two
points.
The United States concludes " that the Km
thence " (from the point of commencement)
an easterly direction to Portland Canal. . . .
Of course it proposes an entrance to that Canal
between Wales and Compton Islands.
But obviously the course it proposes between
the two points is, like the British proposal, the
shortest line.
And it is to be observed that the course given
is in " an easterly direction." It is not " east,"
or "on the parallel of 54° 40'," but a line
(obviously direct) between the two points.
And to the same effect is the formal answer
suggested by the United States to the question :
"The United States requests the Tribunal to
answer and decide that the line from Cape Muzon
should be drawn in an easterly direction until it
intersects the center of Portland Channel at its
opening into Dixon Entrance."
It would thus appear that there is no divergence of view between the two Powers as to
the principle on which the line should be drawn
between the two points; and that, given the
points, they agree that the connecting line should
be drawn as direct as may be.
And Great Britain requests that the decision of
the Tribunal should be in accordance with this
view, both as to the nature of the contentions of
British Contention.
United States' Contentioi
lb., p. 104.
No difference of View as to Principle that  I
Line should be direct between the two Points., 13
U.S. expressions as to Parallel 54° 40'.
Treatment in British Case.
British Case,
pp. 47, 65-68.
Summary of Arguments against Parallel.
United States' Introduction of Southern
Boundary in Treaty of 1824.
the Parties, and as to the merits of the question.
But it is proper to observe that there are
expressions in different parts of the United States'
Case which seem to indicate some variation of
intention, and some setting up of the parallel of
54° 40' as the course of the line.
This notion has been already, by anticipation,
dealt with briefly in the British Case, and its
treatment here will be supplementary.
It must be remembered that, the point of
commencement being the southernmost point of
Prince of Wales Island, no part of that island
could by possibility be cut by a line drawn thence
on a due west and east course ; that, accordingly,
had such a course been intended, there would
have been no sense in the provision for saving
the whole of the island to Russia, which provision thus affords a negative indication
It must be remembered, further, that the
starting-point is not on the parallel of 54° 40',
which parallel, therefore, must be attained (without any Treaty indications, or any reasonable
purpose) by a curve in the line, to the intent
that (still without any Treaty indications or any
reasonable purpose) the parallel may be followed
for an indefinite distance.
It must be remembered, lastly, that, in the
end, the line is to reach the entrance of Portland
Channel irrespective of the parallel; and that,
even supposing the parallel were to be for some
distance followed, yet, just as it is to be reached
at the beginning by a curve, it may be left at the
end by a curve, as may be needed, in order to
connect the two governing points.
Thus there seems no substance in this controversy. Its issue cannot affect the results on
the only material point, namely, the true entrance
of Portland Canal.
The United States seems to lay stress on the
circumstance that the Treaty of 1824 between
that Power and Russia states a limit at 54° 40'.
And not content with the introduction of all the
correspondence as to the Treaty to be interpreted,
the United States brings in nearly all the correspondence as to this Treaty of 1824.
Without   entering  into   full  details,   it   may
suffice to point out here that, apart from trading
and navigation rights set up, the real and serious
Territorial Claims claims of the United States to territorial dominion
of United States.   were substantially based on discovery,  followed by continued occupation; that its claims of this U-S. App.,
J . . pp. 52-o6.
nature related to the Columbia River region ; that n,,, pp, 74, 84.
the   United    States    asserted    the   watersheds
of the  Columbia and its  affluents  reached the
51st parallel;   that   it  informed  Great  Britain
of   its   willingness   to    agree   to   that   parallel
as  the  line  of demarcation   between   the   two
Powers, as indicating the points within which each
might establish and should limit its future settlements ; that it instructed its Ambassador, in case
Great Britain pressed for a lower line, to accept
the 49th parallel in lieu of the 51st as the limit; ib.,p. 120.
and .that  thus  it did not claim any territorial B.S. Case, p. 22.
dominion over any of the territories north of the
51st parallel at furthest.
Obviously, its action in agreeing with Russia lb., p. 39.
on the parallel of 54° 40', and quickly concluding
its Treaty, was dictated by other considerations ;
and could not, even had there been concert in the
negotiations, have affected the construction of the
Treaty of 1825 ; but there was no such concert.
It is tolerably clear how this particular parallel
came to be inserted in the Treaty of 1824. To lb., p. 78.
the United States the precise line was a matter of
- indifference, but Russia, which was in the middle
of her negotiations with Great Britain, having
expressed her willingness to accept the 55th
parallel, was bargaining with the latter Power for
the inclusion of the whole of Prince of Wales
Island, which would require at that point, but
there only, an extension to about 54° 40'. Great
Britain, not unwilling to concede the whole of
Prince of Wales Island, was yet insisting on a line
as to the other southern islands and the Continent,
very much higher. The issue of the negotiation
was quite uncertain.
And in that condition the United States, per- lb., p. 50.
haps not unwilling to strengthen the hands of
Russia in the negotiation by a term which cost
herself nothing, and anxious at the same time to
secure some participation in the trade, which was
her real object, agreed to 54° 40'.
It seems impossible to conclude from this that
the   subsequent   bargain  between   Russia    and Inapplicability to Treaty of 1825.
Great Britain, the result of long-protracted, dis- 	
tinct, and independent negotiations, based on "'p'
different considerations, dealing with the matter
on other lines, and couched in different language,
should be affected by the terms of the Treaty of
1824, to which, moreover, Great Britain was
not a party. As  to  the negotiations between  Russia and
Great Britain, these were, about the date of the
Treaty of 1824, actually suspended by the British
Ambassador, in consequence of differences on the
subject of the southern and eastern boundaries,
and the question was referred to London.
[Examination of Argument of United States       The United States' Case (carrying out the view
on their Quotation from Count Nesselrode,    already objected to, that the terms of the Treaty
U.S. Case, p. 52.    are   to be  gleaned  from  phrases  used   in   the
course of the negotiations, which are to control
the   meaning  of the  documents,  as  ultimately
settled) quotes a sentence in a despatch of Count
Nesselrode  to  Count Lieven  of the 5th April,
1824, in which, recapitulating what had occurred,
he says :—
" We proposed to carry the southern frontier of our
domains to latitude 54° 40' and to make it abut upon
the continent at the Portland Canal, of which the
opening into the ocean is at the same latitude as [' a la
hauteur de'] Prince of Wales Island, and which has
its origin inland between 55° and 56° of latitude."
Ib„ p. 53. - And the United States' Case avers that:—
" This statement locates definitely and beyond
controversy the line of demarcation between the
British and Russian possessions until it reaches the
mainland."
lb., p. 54. The United States' Case, proceeding, uses these
words :—
" Mr. Canning, after conceding the southern boundary at 54° 40' "
lb., p. 67. Ln a subsequent passage, the United  States'
Case recurs to this part of the negotiation, and
repeats the extract already quoted from Count
Nesselrode's despatch. The Case goes on to
say :—
" This dispatch was read by Mr. Canning, and he
authorized Sir Charles Bagot to agree to this portion
of the boundary without qualification. Russia had
completed a treaty with the United States by which
her southern boundary ran east and west along the
parallel of 54° 40'. This was the line of demarcation
that she insisted upon Great Britain accepting, and this
was the line that power did accept."
Now this  despatch of Count  Nesselrode's  is
the  statement of  the  proposal of one  of the
Parties disagreed to by the other.    Besides, it is
[769] D brief and indefinite on the question now specially
under discussion. Its main purpose was to claim
Prince of Wales Island and a strip of the continent opposite that island.
But the only question of any possible importance is, How was Count Nesselrode's statement dealt with ?'
The view of the United States on this question U.S. App., p. 180.
is, it is submitted, erroneous. Mr. Canning's
communication to Count Lieven indicates qualifications, is general in tone, and refers to the
instructions to be sent to the British Ambassador
These were sent in the despatch of the 12th lb., p. 181.
July, 1824. by which Sir Charles Bagot was
authorized—
" To consent to include the south points of Prince of
Wales Island within the Russian frontiers, and to take
as the line of demarcation, a line drawn from the
southernmost point of Prince of Wales Island from ~
south to north through Portland Channel, till it strikes
the mainland in latitude 56 "
Mr. Canning inclosed the draft of a Convention !b., p. 182.
accordingly, describing the line in terms quoted p. 67.
in the British Case, which draft was presented to
the Russian negotiators.
This is the authentic exposition of the British
Counter-Proposal. In the British Case is also to
be found an extract from the Russian Contre-
Projet and a resume" of the subsequent negotiations.
These documents speak for themselves. They lb., p. 67.
do not concede the southern boundary of 54° 40';
they do concede the southernmost point of
Prince of Wales Island and Portland Canal, and
a line connecting these two points, and extending
up the canal.
There   was  a  subsequent   suspension  of   the lb., p. 67.
negotiations  on  other  points;   and  upon  their
renewal  other  drafts  were  submitted, and the
Treaty was eventually agreed on.
It is submitted to be quite impossible to interpolate into the instrument, by virtue of anything
said in Count Nesselrode's quoted despatch, a
southern water boundary along the parallel of
54° 40'.
The United States, resorting, with a view to       U.S. Argument from Objects of Russia.
the construction of the Treaty, to a. consideration „„„ „ 	
n _,,       ,. r-T,      ..      , . C-S. Case, p. 65.
of the objects ol Kussia in the negotiation, points
out that the object was to prevent Settlements
interfering with the fur trade, and proceeds as
follows:— 17
"To avoid this danger, it was necessary to obtain a
boundary south of the Archipelago and coast where
the Russian American Company carried on its operations, to the north of which no foreign Settlements
should be established, either on the islands or mainland."
But in prosecuting this object, Russia did not
require,  and at any rate she did not obtain, a
water boundary along the parallel of 54° 40'.
The   United  States'    Case   more   accurately
U.S. Case, p. 66.   describes the Russian attitude when it says :—
"The Russian representatives insisted upon a line
beginning at the two southern points of Prince of
Wales Island, and running up Portland Canal "
The report of Mr. Middleton as to Mr. S.
Canning's version of the Treaty has been already
dealt with in this Counter-Case.
Whatever weight it may have is clearly, in
respect of this issue, on the British side.
It is submitted that, under these circumstances,
so far as the parallel of 54° 40' is concerned, there
is not the slightest foundation for the statement
made in the United States' Case that—
lb., p. 68. "Russia  secured  by the  treaty of 1825  complete
sovereignty over the islands north of 54° 40' and over
a strip of coast extending in a north-westerly direction
from that parallel, bounded on the east by a line which
followed up Portland Canal."
But  the   relative unimportance of this claim
of the  United  States is  shown at page 70 of
lb., p. 70. their Case,  where Tongass, which  is, as  Great
Britain claims, at the entrance of Portland Canal,
is described as " near the southern boundary line
of 54° 40'." That boundary-line cannot be introduced into the Treaty for the purpose of carrying
the entrance of Portland Canal to Observatory
Inlet ; nor, if it were so introduced, could it have
any such effect.
FOURTH QUESTION.
British Contention as to First Part.
British Case
p. 68.
The fourth question is—
"To what point of the 56th parallel is
the line to be drawn from the head oe the
Portland Channel, and what course should
it follow between these points!"
The  British contention as to the first part is
that the point on the 56th parallel, to which the
[769] D 2 p. 70.
line should be drawn, is the point from which it
is possible to continue the line along the crest of
■the mountains situate parallel to the coast, and
is, therefore, the point at which the 56th
parallel and the crest of the coast mountains
coincide ; and that, in case it should (contrary to British Case,
the British contention) be found that the coast
mountains are, at their point of intersection with
the 56th parallel, more than 10 leagues from the
coast, then the point must be such as answers
the language of the alternative provision in the
Treaty; and must accordingly be not more
(though it may be less) than 10 leagues from the
coast.
The actual situation of the point on the ground
(which is necessarily dependent on the facts on
the ground, as to be found by the Tribunal) is
treated in connection with the answers to subsequent questions as to the lisiere.
\ The British contention as to the second part is
that the course to be followed is the most direct
course between the head and the point of coinci- pp.
dence, and that a course due north to the parallel,
and thence along the parallel to that point, should
be rejected as less direct, and a course in the
general direction of the Canal to the parallel, and
thence as before, should, a fortiori, be rejected as
still less direct, and that, therefore, the first of the
three courses should be preferred.
The contention of the United States is that the
line ran—
British Contention as to Second Part.
British Case,
United States' Contention.
Case, p. 103.
"Northerly along the center of Portland Canal
until the line touched the mainland at the head of
Portland Canal," and proceeding " thence upon the
same course continued to the 56th parallel of north
latitude; thence north-westerly," &c.
The  formal  answer  proposed  by the United lb., p. 104.
States is that—
" The line should be drawn from the head of Portland Channel, north-easterly along the same course on
which the said line touches the mainland at the head
of Portland Channel until it intersects the 56th
parallel of north latitude."
Obviously, the answers of the United States
discard the coast mountains as applicable to any
of the questions, and proceed on the basis that the
alternative and limitary provision is that which
applies throughout the whole extent of the lisiere.
It is submitted that the effect, on different
parts of the ground, of the limitary provision may
Effect of United States' Contention i
Coast Mountains.
British Submission thereon. British Case reserved for the discussion of the
general questions of the boundary of the lisiere.
United States' reliance on Mr. Middleton's        As to the course of the line, the United States
version of Mr. Canning's version of Treaty,   relies, as has been already pointed out in other
U.S. Case, p. 62.    aspects,   on   Mr.   Middleton's   report   of   Mr.
lb., p. 63. Canning's verbal description of the third Article,
negotiator
bytheter
y, as well as the e
lisiere wh
ed.   The notable
Mr. Cannii
ig's statement i
ire, that the line fi
p. the bead
of  Portland  Canal   turns eastward to the range of
while it differs in languag
with it if it is interpreted m
of the discussions which 1
and were explanatory of
Russia's possessions on the <
This attempt to inte
of which were not coram'
by means of the report
in his mind by the verl
Indeed, the
Mr. Middleton's
of the Treaty a
f the danger attenc
true documents by th
Mr. Middled
follows the stra
to the 56th deg
ree.    The natural im
sentence is tha
degree; but, in
on the inform
appeared to b
parallel.
Mr.   Middlet
on's   statement   may
States oi
ig's version
appear, an
nt on the
ie methods. —r
it does not fit Portland Canal, either as it is in
fact, or as it was understood to be.
, Mr. Middleton's statement proceeds to say that
the line then (that is, after having followed Portland Canal up to the 56th degree) turns eastward
upon that latitude until it touches the highest
ridge of the chain of mountains lying contiguous
to, and nearly parallel with, the coast.
But it is perfectly obvious, on reference to the
only source of information, Vancouver's chart,
that this could not have been truly said by anyone acquainted with the Treaty, the map, or the
negotiations; and the plain inference is that
Mr. Middleton carried away from the interview a
mistaken impression.
A moment's glance at the chart will show that
at the head of the Canal it was impossible to
touch, and therefore impossible to turn either
eastward or westward on, the parallel; and that
a line produced in the direction of the Canal from
its head to the parallel would reach the parallel
at a point beyond all the mountains shown. A line
drawn eastward from this point would, therefore,
run straight inland, away from both mountains and
coast, and so render impossible of attainment the
declared aim, namely, " the mountains lying contiguous to, and nearly parallel to, the coast."
Mr. Middleton was thus palpably mistaken.
And. be it remembered that it was recognized
by the Parties that the position of the mountains
had not been definitely ascertained, and that
alternative provision was made by the Treaty in
that regard.
Now, what is the version of the United States
of Mr. Middleton's version of Mr. Canning's
version ?
It is this :—
"The line from the head of Portland Canal turn
eastward to the range of mountains. "
United States' version of Mr. Middleton's
statement.
U.S. Case, p. 63.
This last version assumes that the turn of the
line is from the head of Portland Canal; it thus
seems to assume the coincidence of the head of the
Canal with the parallel; it, however, ignores the
parallel altogether, both as a point to be reached
and as a line to be followed, and it propounds a
line which turns eastward from the head of the
Canal to the mountains.
It is submitted that, even if the Treaty be, as
applied to the facts, obscure, yet to construe it by
British Conclusion. these methods would be to interpret obscurum per
obscurius, and that the only true plan of construe--
P. 4. tion is that which Mr. S. Canning himself stated
in the passage already quoted, to recognize that
" the Articles depend for their force entirely on
the general acceptation, of the terms in which they
are expressed."
British Case, Reference  is  made to the British Case for a
p. 68.
summary of the arguments by which the British
conclusion is supported.
FIFTH AND   SIXTH  QUESTIONS
It is now proposed to deal with questions five
and six together, and to examine the contentions
of the United States' Case in the order in which
they are presented so far as possible. These
questions are as follows :—
Fifth question—
"In extending the line of demarcation
northward from said point on the parallel
of the 56th degree of north latitude, following the crest of the mountains situated
parallel to the coast until its intersection
with the 141st degree of longitude west oe
Greenwich, subject to the condition that if
such line should anywhere exceed the dls-
l tance 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 russsia a continuous fringe,
or strip, of coast on the mainland, not
exceeding 10 marine leagues in width
separating the british possessions prom 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 oe the meridian of greenwich ? " 1
Sixth question—
i " If   the   foregoing . question   should   be
ANSWERED IN THE NEGATIVE, AND IN THE EVENT
OF THE SUMMIT OP SUCH MOUNTAINS' PROVING TO
BE IN PLACES MOEE THAN 10 MARINE LEAGUES
FROM   THE   COAST,    SHOULD   THE    WIDTH   OF   THE
lisiere which was to   belong  to   Russia  be
MEASURED    (1)    FROM   THE   MAINLAND    COAST   OF
the Ocean, strictly so called, along a line
perpendicular thereto, or (2) was it the
intention and meaning of the said convention that where the mainland coast is
indented by deep inlets forming part of the
territorial waters of russia, the width of
THE   lisiere  WAS   TO   BE   MEASURED   (a)   FROM  THE
line of the general direction of the mainland coast, or (b) from the line separating
the waters of the ocean from the territorial
waters of Russia, or (c) from the heads of
the aforesaid inlets ? "
The paramount object which Russia had in view The "Barrier" theory,
was, according to the contention of the United
States, " to erect a territorial ' barrier ' between U.S. Case, p. 30.
her coasts and the inland possessions of Great
Britain ;" and again it is stated that the purpose
of establishing the lisiere upon the continent was lb., p. 52.
| to create an unbroken barrier along the entire
water front of the continent."
To establish that the general purpose of the
Parties was as above stated, the United States'
Case passes in review, first, the negotiations
between the United States and Russia, and then
those between Great Britain and Russia.
In examining the negotiations first above
mentioned the compilers of the Case for the
United States have laboured to show that the
question between that Power and Russia involved
territorial sovereignty, and that the Convention
of 1824 was a recognition on the part of the
United States of the sovereignty of Russia over
the territory north of latitude 54° 40'. On pp.
13 and 14 of the United States' Case it is observed lb., pp. 13-14.
that, in order to support " the right of the independent American fur traders to the unrestricted
intercourse which they then enjoyed with the
natives of the shores, claimed by Russia," it was
necessary for Mr. Adams " to deny the sovereignty
of Russia over those regions."    Again, on p. 22, 23
U.S. Case, p. 22. it i» stated to be " evident that the opposition of
the United States to the territorial claims of
Russia was because the right to restrict trade and
to exercise jurisdiction over the neighbouring seas
depended solely upon territorial dominion."
The bearing of this conclusion upon the
questions now at issue is not very clearly enunciated in the United States' Case. It is conceived,
however, that the suggestion intended is that
Russia having succeeded in securing as against
the United States, whose traders approached by
sea, undisputed dominion over all the territory
north of latitude 54° 40', to which access was
gained from the sea, must be assumed in her
subsequent arrangement with Great Britain to
have insisted similarly on an inland boundary
which gave to that Power, whose trade was
advancing from the interior, no access to the sea.
Coming to  the negotiations   between   Great
Britain and Russia, the Case for the United States,
in the first instance, lays hold of an expression
reported to have been used before the negotiations .
lb., p. 29. begun by Count de Lambert to M. Poletica, in
which the word " barrier " occurs. This expression is presented to the Tribunal as formulating
the Russian conception of what her policy
demanded, and the subsequent negotiations are
examined with a view to showing that she adhered
to it.
Position of Great Britain with relation to It  will be   convenient   to   state   at   once   the
the « Barrier "theory. position taken by Great Britain with regard to
the contention above referred to.
Assuming that the Russian purpose was a
* I barrier," that such purpose is legitimately
proved, and that it can be made out that it was
adhered to by Russia and recognized by Great
Britain, the point is what sort of a " barrier" it
was. The exigencies of the case from the United
States' point of view are not satisfied by establishing a barrier in the sense of an intervening strip
of territory in which Great Britain could not
settle, trade, or fish. Such a strip would be
provided if there was reserved to Russia a belt of
territory running along the land and crossing the
mouths of inlets, being the territorial waters of
the Power owning the shore on either side. But
the existence of such a strip would be consistent
with the possibility that the territorial waters of
inlets or estuaries might, if such inlets were long
enough, penetrate through such strip and have
their termination beyond in British territory. If
[769] E
J V
that were so in the case of any inlet, the commercial vessels of Great Britain would, upon the
general principles of international law, have the
right of innocent passage over the territorial
waters of Russia forming part of her strip of
territory and situate in the mouth of the inlet,
but they would have no right to use such waters
for trading or fishing, and the belt of territorial
separation of the British possessions from the
coast facing the Russian islands would be
complete.
Great Britain affirms that the establishment of
the lisiere had nothing to do with the use of the
sea. She submits that the passages from the
negotiations cited in the United States' Case do
not show that it did, and she will hereafter refer
to passages which show that it did not.
In order to make clear the British contention Territorial Waters in International Law.
in this respect, it is proposed to state the International Law upon the subject of territorial
♦waters. The subject was touched upon at pp. 78
. and 79 of the British Case; but, in view of the
Vrfafet that in the Case for the United States it
/eema to be assumed that the establishment of
belt of territory would necessarily involve
drawing the line round tbe heads of the inlets, it
is thought necessary now to deal with the subject
fully.
In the first place it is undoubted law, which it
is unnecessary to support by detailed argument,
that a State has territorial sovereignty over a belt
of sea, usually taken as 3 miles in width, adjoining
its coasts. The waters of such belt are, however,
subject to the right of innocent passage by the
commercial vessels of other nations.
There is further a consensus of opinion among
writers on International Law that every State
has territorial sovereignty over certain arms of
the sea included within its territory by headlands
or promontories. But there is not a universal
agreement as to the limits of size and shape
within which arms of the sea may be treated as
territorial waters. It is generally considered that
the crucial measurement is the width at the
entrance of the inlet; but the depth inland is not
unimportant, because a claim that the waters of
an inlet of some size are territorial is more readily
admitted if the length of its shore-line is con-
//
\iiWd siderable  in  proportion  to  the  breadth  of the
opening intra fauces terrce.*
Maine's " Inter- The reason why, in spite of the general doctrine
national Law," _ -,„-,-,
p. 39. ot mare hberum, gulfs and bays up to a certain
Grotius," de Jure size   are   treated   as   territorial   waters,   is,   of
Bk. ii c. 3 s.'l3 course, because the State which owns both head-
§2- lands is in fact able to control the entrance.    It
ce2- om' x ans' is a reason of the same kind which explains and
Systema dei justifies territorial jurisdiction over a belt of water
^mci.pgi*fgP™' adjoining   even   unindented  coasts.      " Videtur
referred to in Sir autem imperium in   maris   portionem . . . . ac-
ju'dgmeEe«The (luiri • • • • ratione territorii, quatenus ex terra
Queen v. Keyn," cogi possunt, qui in proxima   maris   parte ver-
2 Exch. Div. 63 at .      „             S<     ..            -r,     ,       JHHL l. •    A
p. 73, santur,    says Grotius.      Bynkershoek enshrmed
this principle in the famous dictum " Potestas
terrae finitur ubi finitur armorum vis," or, as he
says elsewhere, " quousque tormenta exploduntur."
When Azuni wrote in 1796, he complained that
the width of this belt of territorial water was still
5 C. Rob. 385. undecided. But in giving judgment in " The ,
Anna," in 1805, Lord Stowell said : " Since the
introduction of fire-arms that distance has been
usually recognized to be 3 miles from the shore."
During the last 100 years the 3-mile limit has
been repeatedly affirmed, t though in view of the
greatly increased range of modern ordnance it has"
been urged that the limit should be yet further
extended.
A minimum of 3 miles from low-water mark
being conceded as territorial water, even where
the coast-line is not broken by bays, it follows
that an opening which is not more than 6 miles
across is necessarily within the territorial limits.
Some authorities contend that if the opening is
more than twice the width of the ordinary belt of
territorial waters, the outside line of that belt
must follow the indentations and so may come
within the opening. But on the other hand many
authorities refuse to treat inlets as part of the open
sea, merely because the distance from headland to
headland exceeds 6 miles, and recognizes that a
State which controls an entrance from both sides
can effectively exert its authority over more than
* Cf. Grotius, " De Jure Belli et Pacis," lib. ii, cap. iii, § 8,
who admits " mare occupari potuisse abeo, qui terras ad latus
utrumque possideat dummodo non ita magna sit pars
maris, ut non cum terris comparata foetio eaeum videri
QO^K-jj       possit"
f The earliest mention of 3 miles as the limit seems to
occur in Jefferson's despatch to the British Minister dated the
8th November, 1793, announcing its adoption by the United
States.
[769] E 2 twice the marine league which is the limit of its
dominion oceanward s.
Thus Chancellor Kent wrote :— Kent's
| Commentary on
| It is difficult to draw any precise or determinate Law „ ,Q^ ffljgjfti
conclusion, amidst the variety of opinions, as to the 1877), p. 100.
distance to which a- State may lawfully extend its
exclusive dominion over the sea adjoining its territories
and beyond those portions of the sea which are embraced by harbours, gulfs, bays, and estuaries, and over
which its jurisdiction unquestionably extends.* All
that can be reasonably asserted is, that the dominion of
the Sovereign of the shore over the contiguous sea
extends as far as is requisite for his safety and for some
lawful end The executive authority [of the p. 101.
United States] in 1793 considered the whole of Delaware
Bay to be within its territorial jurisdiction ; resting its
claims upon those authorities which admit that gulfs,
channels, and arms of the sea belong to the people with
whose lands they are encompassed; and it was intimated
that the law of nations would justify the United States
in attaching to then: coasts an extent into the sea
beyond the reach of cannon shot."
Wheaton says :— Wheaton's
"Elements" (ed.
" The maritime territory of every State extends to g ,™y 255
the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands belonging
to the same State. The general usage of nations
superadds to this extent of territorial jurisdiction a
distance of a marine league, or as far as a cannon shot
will reach from the shore along all the coasts of the
State. Within these limits its right of property and
territorial jurisdiction are absolute, and exclude those
of every other nation."
Halleck (ed. Baker, 1878), i, 134, uses almost
identical language in affirming a State's right of
property to inlets inclosed between headlands.
The views of Kent and Wheaton are quite consistent with, and are really founded upon, the
opinions of earlier European writers. Thus
Vattel had written :—
I Tout ce que nous avons dit des parties de la mer Vattel «D   "t d
voisines des c6tes " [i.e., that they " sont comprises dans Gens," livre i,
son territoire " (§ 288)] " se dit plus particulierement et a -^ap. xxiii,
plus forte raison des rades, des baies et des detroits,
comme plus  capables  encore  d'etre occupes, et plus
importants a la silrete du pays.   Mais je parle des baies
et  detroits de peu  d'6tendue, et non de ces grands
espaces de mer auxquels on  donne quelquefois ces
* Referring to Azuni's " Maritime Law of Europe," i, 206;
Wheaton's " Elements," i, pt. 2, ch. 4, § 6 ; Marten's " Precis
du Droit des Gens," § 31. 27
noms, tels que la Baie de Hudson et le Detroit de
Magellen, sur lesquels 1'empire ne saurait s'etendre, et
moins encore la propriety. Une baie dont on peut
defendre 1'entree peut e"tre occupde et soumise aux lois
du Souverain ; il importe qu'elle le soit, puisque le pays
pourrait etre beaucoup plus ais&nent insulte en cet
endroit que sur les c6tes ouvertes aux vents et a
l'impetuositd des flots."
Hautefeuille's
" Droits des
Nations Neutres,"
p. 240.
Bluntschli's
" Droit International Codifie-,"
§ 309, cf. § 302.
Puffendorf, " Law
of Nature and of
Nations," Bk. iv,
c. 5, § 8, as quoted
by Twiss.
Ortolan,
" Diplomatie de 1
Mer," tome i,
livre ii, ch. viii.
Hautefeuille says :—
" Les c6tes de la mer ne presentent pas une^ligne
droite et regulifere; elles sont, au contraire, presque
toujours coupees de baies, de caps, etc.; si le domaine
maritime devait toujours e"tre mesure de chacun des
points du rivage, il en resulterait de graves inconveniens.
Aussi est-on convenu, dans l'usage, de tirer une Hgne
Active d'un promontoire a l'autre, et prendre cette ligne
pour point de depart de la portee du canon. Ce mode,
adopte par presque tous les peuples, ne s'applique
qu'aux petites baies, et non aux golfes d'une grande
etendue, comme le Golfe de Gascogne, comme celui de
Lyon, qui sont en r£alit6 de grandes parties de mer,
completement ouvertes, et dont il est impossible de nier
l'assimilation complete avec la haute mer."
Similarly Bluntschli recognizes " gulfs," within
certain limits of size, as forming a division of
maritime territory distinct from the ordinary belt
of territorial water.
Puffendorf, to the same effect, says " gulfs and
channels or arms of the sea are, according to the
regular course, supposed to belong to the people
with whose lands they are encompassed."
Even those authorities who, at first sight,
appear to treat the territoriality of inlets as
depending merely on the 3-mile-limit rule,
recognize that a State may sometimes so command the entrance between two promontories,
though these are more than 6 miles apart, as to
justify a claim to the whole of the inclosed water.
Thus Ortolan says :—
| On doit ranger sur la m^me ligne que les rades et
les ports les golfes et les baies et tous les enfoncements
connus sous d'autres denominations, lorsque ces enfoncements, formfe par les terres d'un m6me £tat, ne
depassent pas en largeur la double portee du canon, ou
lorsque 1'entree peut en e~tre gouvern^e par l'artillerie,
ou qu'elle est defendue naturellement par les iles, par
des bancs ou par des roches."
Kliiber,"Droit Similarly   Kliiber   treats   as   territorial   "les
des Gens parties de l'ocean qui  s'e'tendent dans  le  terri-
l'Europe," § 130.     toire continental de l'lStat, si elles peuvent e'tre
domine'es  par le canon des deux bords, ou que l'entree seulement puisse en etre deTendue  aux
vaisseaux."    And he instances the Zuyder Zee.
Finally, a very recent American writer, Taylor, Taylor's
, n        ,\    r, n ,, n "International
may be referred to for a summary ot the views ol pubiic Law,"
text-writers.    He adds : § 212,.'P-,2™k0
published 1902.
" Germany and France are inclined to limit their
claims to such bays, gulfs, and recesses as are not
more than 10 miles wide at their entrance, measured in
a straight line from headland to headland. The latter
claims, however, the whole of the oyster-beds in the
Bay of Cancale, the entrance to which is 17 miles wide,
the cultivation of such beds by local French fishermen
making the case exceptional."
Turning from the opinions of writers to the
controversies of diplomatists, it is noteworthy
that the United States have more than once
argued for the territoriality of the gulfs of much
greater width than twice the 3-mile limit would
cover.
In 1793 the French frigate "l'Embuscade" See opinion of
seized the British ship " Grange" in Delaware General dated
Bay,   ahd   the   United   States   demanded   and Ma<y U, 1793,
nil an" letter of U.S.
secured the release of the latter on the ground Secretary of State
that the capture was a violation of neutral waters, jyr • t      nvr
Similarly, Chesapeake Bay has been consistently 15, 1793, printed
claimed by the United States as a part of their gtate papers»
territorial  waters.     Both  these  bays  are  more (1789-1794),
than 10 miles wide at their entrance.
There is nothing in the long controversy over
British-American fisheries and the interpretation of the Treaties of 1783 and 1818 which
throws any light on the international status,
apart from special Conventions, of arms of
the sea. In 1853 the Halifax Fisheries Commission decided that the Bay of Fundy (65 to
75 miles wide and 130 to 140 miles long) was
not a "bay" within the meaning of the Treaties.
In any case, the headlands doctrine could hardly
be applied to it, for one of its headlands was
British and the other American. In giving his
decision the Umpire (Mr. Joshua Bates) said :—
" This doctrine of the headlands is new, and has Quoted in the
received a proper limit in the Convention between proceedings before
France and Great Britain of the 2nd August, 1839, in MshSes^Com-
which ' it is agreed that the distance of 3 miles, fixed mission, 1877,
as the general limit for the exclusive right of fishery p'152'
upon the coasts of the two countries shall, with respect
to bays, the mouths of which do not exceed 10 miles in
width, be measured from a straight line drawn from
headland to headland.' " 29
There is very little judicial authority bearing
on this question. In Regina v. Keyn, though the
3-mile limit was examined and discussed from
every point of view, the headlands question was
not considered.
Sir R. " The question as to dominion over portions of the
seas inclosed within headlands or contiguous shores,
such as the King's chambers, is not now under consideration."
L.R., 2 Ex.
Div. 63.
p. 71
Cases, p.
(1859).
41 and 42 Vict., Neither is the headlands question affected by
"The Territorial Waters Jurisdiction Act, 1878,"
for both the preamble and the enacting clauses
refer solely to the " open sea."
Bell's Crown In Cunningham's case, where the question was
whether an indictment would lie at the Glamorganshire Assizes for an offence committed below
low-water mark in the Penarth Roads, the Court
said of the Bristol Channel:
" The whole of this inland sea between the counties
of Somerset and Glamorgan is to be considered as
within the counties by the shores of which its several
parts are respectively bounded."
" Direct United The only reported English case in which the
States Cable Co. v. ,      ,.       " -       "S      SS-X >\        ''.      ,
Anglo-American     headlands question m its mternational aspect was
Cable Co.," . really discussed came before the  Privy Council
2 A.C., 394. J J
m  1877 on appeal from the Supreme Court of
Newfoundland. It was there decided that Conception Bay, on the east coast of Newfoundland,
was part of the local territory, although the
entrance to the bay is more than 20 miles wide.
Lord Blackburn, in delivering the Judgment,
discusses both the English common law and the
law of nations as to territorial dominion over such
a bay.    As regards the latter, he says :—
Loc. cit., p. 419. " We  find  an  universal agreement  that harbours,
estuaries, and bays land-locked belong to the territory
of the nation which possesses the shores round them,
but no agreement as to what is the rule to determine
what is ' bay' for this purpose. It seems generally
agreed that where the configuration and dimensions of
the bay are such as to show that the nation occupying
the adjoining coasts also occupies the bay it is part
of the territory; and with this idea most of the writers
on the subject refer to defensibility from the shore as
the test ot occupation; some suggesting, therefore, a
width of one cannon shot from each shore, or 6 miles;
some an arbitrary distance of 10 miles."
Lord Blackburn then goes on to say that
Conception Bay would not satisfy any of these tests of width, but then neither would the Bristol
Channel or the American bays claimed in 1793 or
referred to by Chancellor Kent. But it became
unnecessary to lay down a general rule, because
Lord Blackburn held that the territoriality of Loc. tit., p. 420.
Conception Bay was established by prescription
and acquiescence. - Hence it is still the case that
the question "what are the rules as to dimensions and configuration which, apart from other
considerations, would lead to the conclusion that
a bay is or is not a part of the territory of the
State possessing the adjoining coasts .... has
never .... been made the ground of any judicial
determination."
It is submitted that the result of the authorities
is as follows :—
1. The precise limits within which international
law regards bays as territorial waters have never
been determined.
2. There is much authority for the opinion that
a bay is not necessarily part of the high seas
because its opening is wider than twice the
breadth of the ordinary belt of territorial water,
and that the territorial dominion over the larger
gulfs must be settled by a consideration of each
individual case. The possession of islands blocking or guarding the inlet, the prominence of the *
headlands, and the actual exercise of national
authority over the waters claimed, are evidence
going to justify the claim.
3. If the size and configuration of an opening
is such that the line may rightly be drawn from
headland to headland, the belt of territorial water
is to be measured from the line outwards.
It is to be remarked that the Anglo-American Cf a,    tl
Convention of 1818   provided  that the United Anglo-French
States renounced all claim to take, dry, or cure 1839.
fish " on or within 3 marine miles of any of the
coasts, bays, creeks, or harbours" of certain parts
of British territory.
The provisions of the North Sea Convention, Br c
which adopts the same principle, have been referred to in the British Case.
The legislature of the State of Massachusetts
has also adopted it, by enacting as follows :—
" The territorial limits of the Commonwealth extend parf i  xjt <
one marine league from its sea-shore  at low water Cap. 1, Sec. 1, of
mark.    Where an inlet or arm of the sea does not *H£evised ^aws
of Massr
exceed two marine leagues m width between its headlands, a straight line drawn from one headland to the
other is equivalent to the shore line." The application of these principles of international law in the present controversy must not
be misunderstood. It is not contended that the
words "coast" and "Ocean" in the Convention of
1825 refer to the outside line of territorial waters.
The zone of territorial waters along a coast is
ocean, and is part of the highway of nations. It
is territory for the purposes of uses other than
that of a highway ; for instance, for the purposes
of fishing and of belligerent operations.
The use made by Great Britain of the doctrine
relating to gulfs and arms of the sea is twofold.
In the first place, it appears that in measuring
the zone of territorial water fronting the coast
of the ocean, the line of coast to be measured from
is taken across the entrances of narrow inlets,
which are treated therefore as not breaking that
line. This throws light on the meaning which
the word coast should bear in this Treaty.
In the second place, Great Britain's contention
is that the lisiere was not established with
reference to and was not intended to affect, either
one way or the other, any marine rights. It was
intended to interpose only a strip of " territory"
free from British trade, fishery, or settlement.
If, therefore, the waters between the headlands of
the inlets are " territory," the strip of territory is
not broken by being carried across such inlets.
In addition, Great Britain desires to make it
clear that her proposition is that the territorial
character of parts of the sea does not affect the
right of passage to places not in the territory of
the Power to which these parts of the sea belong.
The zone of territorial waters on the open ocean
is part of the highway of nations. So are straits,
or the mouths of inlets, if they lead to other
waters not the territory of the Power owning
their shores.
Hall's International " In all cases," writes Mr. Hall, " in which territorial
Law (4th edition), waterg are s0 placed that passage over them is either
necessary or convenient to the navigation of open seas,
as in that of marginal waters, or of an appropriated
strait connecting unappropriated waters, they are
subject to a right of innocent use by all mankind for
the purpose of commercial navigation. The general
consent of nations, which was seen to be wanting to
the alleged right of navigation of rivers, may fairly be
said to have been given to that of tbs~sea."
• Great Britain's contention, therefore,  is that
assuming it was the purpose and effect of the
[769] F Treaty to give to Russia a belt of " territory," it
doesnotfollowthat such belt mightnot be traversed
' by inlets ; and further, that the omission to insert a
provision for free ingress and egress through the
mouths of such inlets as on the British contention
might penetrate through the lisiere. while such
liberty is expressly reserved in the case of rivers
does not support the conclusion that Great Britain
was regarded as in no event to be entitled to any
territory on any such inlets. But Russia's territorial right gave her the power to see that they
were only used for this purpose, and to prevent
landing, trading, fishing, or smuggling.
As has'already been stated, the conclusion which, The Negotiations
in the Case of the United States, it is sought ,l!
to draw from the negotiations between that
Power and Russia and the Treaty which resulted
therefrom, is that the United States recognized
the sovereignty of Russia over the coasts north of
latitude 5-4° 40'.
.. Assuming this to be so, it is, in the first place,
to be observed that no argument can be drawn
from that circumstance affecting the construction
of the subsequent Convention with Great Britain.
In the negotiations between the United States
and Russia there was no question of any boundary
except a line.of latitude upon the coast. An
interior boundary, to be drawn parallel to the
coast, was not discussed, nor could the effect of
any such boundary, with reference to the headwaters of the inlets, have been in any way in
contemplation. After the conclusion of the Convention with the United States, Russia remained
perfectly free to agree with Great Britain upon
an inland boundary running across the inlets.
It is now proposed to go further and show from
the negotiations and the Treaty that they contain nothing which indicates an a priori improbability (for that is all that is or can be attempted
to be deduced from them) that Russia would
make such an arrangement with Great Britain.
It may be conceded that in effect, though it
was not'expressed, the Convention of 1824 secured
to Russia as between that Power and the United
States the sovereignty over the coast north of
latitude 54° 40'. Russia acquired as against the
United States exclusive liberty to settle that
coast. There is nothing, however, to show that
she acquired or desired to acquire in respect of
.the seas adjoining any further right than such as
,nd Treaty between the
and Russia. is annexed by international law to the sovereignty
over the land, or that she obtained or desired to
obtain any power to limit their use for the
ordinary purposes of innocent navigation. On
the contrary, there is much to • suggest that,
whether it was realized by her negotiators or not,
Russia was regarded by the United States as
submitting to a material modification of the usual
rights of sovereignty by permitting a right not
only of navigation, but of navigation for the purpose of fishery, and for the purpose of local
trading on all parts of the coasts assigned to her
while they remained unsettled, that is, without
Russian establishments.
The contention of the United States-was that
until there was settlement Russia had not the
right to exclude the United States' traders from
the coast. This position, it will be shown, the
United States regarded as confirmed by the Convention of 1824, and the express provisions of
Article IV giving reciprocal access for trade and
fishery to internal territorial waters for ten years
conferred a special privilege in extension of the
general privileges conferred by Article I.
It is now proposed to examine the negotiations
to show that this is so.
U.S. App. p. 47 In the despatch of Mr. Adams to Mr. Middleton
of the 22nd July, 1823, it was stated that the
United States' right of navigation and of fishing
was perfect, and had been in constant exercise
from the earliest times after the peace of 1783
throughout the whole of the Southern Ocean,
subject only to the ordinary exceptions and exclusions of the territorial jurisdictions, which so far
as Russian .rights were concerned were, confined
to certain islands north of the 55th degree of
latitude, and had no existence on the continent of
America. After examining the correspondence
which had passed, Mr. Adams states, as the
correct view of the Russian Charter of 1799, that
the Emperor Paul had granted to the Russian -
American Company certain exclusive privileges of
commerce—exclusive with reference to other
Russian subjects; but that Russia had never
before asserted a right of sovereignty over any
part of the North American continent, and in
1799 the people of the United States had been for
at least twelve years in constant and uninterrupted enjoyment of a profitable trade with the
natives of that very coast of which the Ukase of
the Emperor Paul could not deprive them. Mr.
SI
F : Adams was, however, ready to settle the territorial
claim provided trade access was not prevented on
■ parts of the coast where there were no settlements.    He says in the same despatch—
" With regard to the territorial claim, separate from U.S. App., p. SL
the right of traffic with the natives and from any system
of colonial exclusions, we are willing to agree to the
boundary line within which the Emperor Paul had
granted exclusive privileges to the Russian-American
Company, that is to say, latitude 55°.
" If the Russian Government apprehend serious inconvenience from the illicit traffic of foreigners with their
settlements on the northwest coast, it may be effectually
guarded against by stipulations similar to those, a draft
of which is herewith subjoined, and to which you are
authorized, on the part of the United States, to agree."
Articles I and II of the draft inclosed were
practically in the same form as Articles I and II
of the Convention as finally agreed.
Article III laid down the limit of the future
right of settlement at latitude 5 5°. The illicit trade
guarded against by Article II was, as shown by
the words of this draft, illicit trade in the Russian
Settlements. The words " with the Russian
Settlements" were changed in the first Projet
and Contre-Projet into "with their respective
Settlements," and disappeared altogether from the
Article in its later forms, obviously because the
Settlements are referred to almost immediately
afterwards in the same sentence. This phrase
was not the subject of any discussion, and it is
clear that no alteration of meaning was intended
by the change.
Mr. Adams' contemporaneous despatch to Mr.
Rush puts forward exactly the same view—
" The right of carrying on trade with the natives lb., p. 56.
throughout the northwest coast they" [the United
States] " can not renounce. With the Russian settlements at Kodiac, or at New Archangel, they may
fairly claim the advantage of a free trade, having so
long enjoyed it unmolested, and because it has been
and would continue to be as advantageous at least to
those settlements as to them. But they will not contest
the right of Russia to prohibit the traffic, as strictly
confined to the Russian settlement itself, and not
extending to the original natives of the coast."
Mr. Rush entirely appreciated the contention
of his Government, and in a despatch of the
19th December, 1823, reported that he had
explained to Mr. Canning that  in  fixing upon
1 35
latitude 55° as the southern limit of Russia, it
was not the intention of the United States to
deprive themselves of the right of traffic with the
natives above it, and still less to concede to
Russia any system of colonial exclusion above it.
In a subsequent despatch of the 19th January,
1824, he reported that he understood Great
Britain would claim to a point northwards above
55° and southwards as low down as 49°, and that
she would be chiefly tenacious of the right which
she would allege to settle or colonize after her
own plans, then or in future, all such parts of that
coast, outside of the admitted boundaries of other
nations, as she could make good her title to.
U.S. App., On the 9th February, 1824, Mr. Middleton duly
pp" ,an " submitted to the Russian Government the draft
forwarded to him by Mr. Adams, and, on the
20th February, received a Centre - Projet. In
this Contre - Projet, Articles II and III ran as
follows:—
lb., p. 83. | Article 2.    With the view of preventing the rights
of navigation and of fishing, exercised upon the great
ocean by the citizens and subjects of the high contracting powers, from becoming the pretext for an
illicit trade with their respective establishments, it is
agreed that the citizens of the United States shall not
resort to any part of the coast already occupied by
Russian establishments, or belonging to Mussia, from the.
line of demarkation pointed out in the arliclt below,
without the permission of the governor or commander
of said establishments; and that, reciprocally, the
subjects of Russia shall not resort, without permission,
to any establishment of the United States upon the
Northwest Coast, from the same line of demarkation.
"Article 3. It is, moreover, agreed that, in the
respective possessions of the two high powers on the
Northwest Coast of America, or in any of the adjacent
islands, there shall not be formed by the citizens of the
United States, or under the authority of the said States,
any establishment to the north of 54° 40' of north
latitude: and that, in the same manner, there shall he
none formed by Russian subjects, or under the authority
of Russia, to the south of the same parallel."
Mr. Middleton at once observed that the insertion in the second Article was utterly inadmissible,
as repugnant to the stipulations of the former
lb p. 73. Article.    Accordingly, at a third Conference, on
the 23rd February, 1824, he insisted on restoring
his own phraseology, explaining to Count Nesselrode that the United States could not admit for
Russia or claim for themselves " possessions"
except where there were actual establishments. At this third Conference the line was changed
to latitude 54° 40' instead of 55°, Mr. Middleton
taking advantage of this concession on his part to
introduce the stipulation which, in the concluded
Treaty, forms the IVth Article. At subsequent
Conferences the exact form of this stipulation was
much discussed, and Mr. Middleton attached
gfeat importance to the point that the termination of the ten years' privilege should not be
couched hi language suggesting a substantive
agreement, for fear that it would prejudice the
rights acknowledged by Article I.
On the 7th (19th) April, 1824, Mr. Middleton U.S. App., p. 69.
■wrote to Mr. Adams announcing the conclusion of
the Convention and giving an account of the
negotiations. Dealing with the relation of the
provisions of Article IV to those of Article I, he ■
observed that, with regard to trade in unoccupied
places as permitted by the permanent Articles, he
was of opinion that all the shores of the great
ocean upon which the Parties to the Contract had
any claim would continue open to them respectively
for its pursuit under those stipulations. The
specific and particular privileges granted by
Article IV, which, upon examination, would be
found to contain an extension of the general
privileges embraced by the preceding Articles,
would, of course,
renewed by mutual
It is submitted
given, the course
terms of the Coi
between the Unite
suggest the probabi
ten years, unless
that, for the reasons above
of the negotiations and the
vention resulting therefrom
d States and Russia do not
lity that Russia entered upon
her discussions with Great Britain upon the basis
that navigation through the seas adjoining all
territory north of the boundary she would propose
upon the coast was to be withheld from all but
Russian subjects.
The conduct of the Parties after the expiry of
the ten years referred to in Article IV is also
important in this connection.
On the 19th May, 1835, the Russian Ambassa- lb.,
dor at Washington called attention " to the fact
that the IVth Article of the Treaty of 1824 by
which indefinite and indiscriminate liberty of
frequenting the respective possessions of each
Party on the north-west coast was granted to the
vessels of each had expired."
The   United   States'   Government   thereupon lb-, p. 240.
published  an  informal  notice  in  the   "Globe"
p. 236. newspaper of the 22nd July, 1835. This stated
that American captains had been warned by
Russia "that they could no longer claim under
the Convention the right of landing at all the
landing-places, without distinction, belonging to
Russia on that coast," and that " those interested
in the trade would not fail to observe that under
the second Article of the Convention it was
necessary for all American vessels resorting, to
any point on that coast where there was a Russian
establishment, to obtain the permission of the
governor or commander."
U.S., App., 246. On the 11th December, 1835, Mr. Wilkins, the
.American Minister at St. Petersburgh, reported
to his Government a conversation he had held
with Count Nesselrode with reference to the
renewal of the privilege secured by Article IV.
In this despatch he says that he did not feel
himself authorized to call the attention of the
Imperial Minister to what might or probably
would be the construction put by the United
States upon the Treaty with the IVth Article
extinct; nor what rule of the law of nations-
would be considered as applicable to the case r.nd
controlling the trade upon a wild and extensive
American coast of a great and open ocean, and
still with the exception of a very few ports at a
vast distance from each other in the rightful
occupancy of the natives, and to which he believed
the sovereignty of Russia had not yet in any
Treaty or Convention been admitted.
As stated, in the American Case the Russian
Government in the end refused to continue the
provisions of this Article, and on the 26th Septem-
Ib., p. 250. ber,    1845,   the   United   States,  accepting  this
decision, gave official notice warning American
vessels against the violation of Treaty stipulations
by resorting to any point on the Russian-American
coast, where there was a Russian establishment,
without the permission of the Government or Com':
mander, or by frequenting the interior seas, gulfs,
harbours, and creeks on that coast at any point
north of latitude 54° 40S
The foregoing resume shows that what Russia
was understood by the United States to have
secured by the Convention of 1824 was not
freedom from the access of foreign traders to the
natives, still less freedom from mere navigation
by way of innocent passage, but freedom from
access to Russian settlements and from the
encroachment of American settlements. T
The IVtb Article gave for a limited time access
for trade and fishery to the internal territorial
waters of Russia. Mr. Middleton, who negotiated
the Convention, and subsequently Mr. Wilkins,
appear to have held the view that, even when
Article IV expired, the United States would, in
the absence of Russian settlement, still have, by
virtue of Article I, the same right to frequent the
inland waters for trade and fishery. The Russian
Government would probably have been surprised
at this contention, but the United States did not
then put it forward. The point to be observed
with reference to Article IV of the United States'
Treaty, as well as to Article VII of the British
Treaty, is that it deals with navigation for trade
and fishery, that is to say, for purposes involving
acts which primd facie the territorial Sovereign
would be entitled to prevent. It had nothing to
do with the right of innocent passage, which the
commercial vessels of all nations might have if
the waters in question could be used for that
purpose.
As already pointed out, the Case of the United     Tte Negotiations between Great I
States seeks to extract from the negotiations and 	
even from the uncommunicated statements of the
Russian negotiators the conclusion that a barrier
was intended to be established cutting off Great
Britain from tidal water.    With this object the
Case  for  the  United  States  refers in the first U.S. Case, p. 29.
place to an expression reported to have been used
by Count de Lambert to M. Poletica.
The particular phrases used by the Russian
officials concerned with the negotiations in communicating among themselves, would not appear
to have much impoitance as affording a clue to
the interpretation of a Convention arrived at after
long negotiations not even commenced at the date
when the language in question was employed.
When Count de Lambert used the words referred
to, the lisiere had not been proposed, and the
problems to be raised by it could not have been in
contemplation. In any event, however, it does
not appear that Count de Lambert referred to a
barrier in any sense inconsistent with the British
contention, which is, that the lisiere was designed
without any reference to access to the sea by way
of passage, but merely in order to keep British
territory, whether on land or on interior water, at a distance from the Settlements of Russia on
the islands; and to give Russia the necessary
control, for fiscal or other administrative purposes,
of the passage of British vessels through the
interior seas and straits, which by the Treaty
became part of her territorial waters. It will be
found that not only the language" of Count de
Lambert, but the whole course of the negotiations
supports the British view.
The language used by Count de Lambert is
reported by M. Poletica as follows :—
U.S. Case, p. 29. « In fixing the longitude, Count de Lambert had
mainly in view the establishment .of a barrier at which
would be stopped, once for all, to the uorth as to the
west of the coast allotted to our American company,
the encroachments of the English agents of the Amalgamated Hudson Bay and Northwest English Company,
whom a more intimate acquaintance with the country
traversed by the Mackenzie River might easily bring
in the course of time into the neighbourhood of our
establishments."
It is to be observed that what was to be guarded
against was the encroachments of the English
agents who might in time come " into the neighbourhood of our establishments." It is further to
be observed that a boundary by longitude was
suggested which might or might not cut across
any inlets penetrating the interior, and could not
be made subservient to any such principle as that
which it is suggested on behalf of the United States
controls the essential character of the " barrier."
In the same despatch in which he records the
views expressed by Count de Lambert, M. Poletica
gives an account of a conversation with Sir C.
British App. I, Bagot, in which the latter indicated a line formed
by the 57th degree of latitude and the 135th
of longitude as that which Great Britain would
propose.
By Mr. Canning's despatch of the 15th January,
1824, Sir Charles Bagot was authorized, if it were
lb., p. 62 too much to insist on a line striking the mainland
near Mount Elias, to agree to the 135th meridian
of longitude northward from the head of Lynn
Canal. Acting on this authority Sir Charles
Bagot made his first proposal to the Russian
Plenipotentiaries in opening the formal negotia-
Ib., p 67. tions.     He   stated   to   Count   Nesselrode   and
M. Poletica that the principal object of Russia., as
he understood her wishes and interests, must be
to secure to herself her fisheries upon the islands
[769] G 40
and shores of the north-west coast of North
America, and the posts which she might have
already established upon them ; and on the other
hand,' the chief object of Great Britain was to
secure the posts upon the continent belonging to
the Hudson's Bay Company, the embouchures of
such rivers as" might afford an outlet for her fur
trade into the Pacific, and the two banks of the
Mackenzie River. He then proposed a boundary
through Chatham Straits to the head of Lynn
' Canal, thence north-west to the 140th degree of
longitude west of Greenwich, and thence along
that degree of longitude to the polar sea.
The terms in which this proposal was made
show that while he understood Russia to desire
to keep her fisheries and her posts, he explained
that Great Britain desired an outlet for her fur
trade into the Pacific.
It was in the Contre-Projet to this proposal
that the lisiere was first suggested, and it is
important to observe the terms in which the
proposal was explained. The explanation, as
reduced into writing by the Russian Plenipotentiaries, was as follows :—
" The principal motive which forces Russia to insist British App. I,
upon retaining the sovereignty over the strip of land P*
described previously on the mainland from the Portland
Canal as far as the point of intersection of the 60th
degree of latitude with the 139th degree of the same,
is that, if deprived of this territory, the Russian-
American Company would be left without any means
of supporting the Establishments, which would thereby
be left without any support and could not have any
strength nor solidity.
"Asa compensation" [enrevanche'],"Russia would consider it a duty to open to the subjects of His British
Majesty the free navigation of all the rivers which
empty into the Ocean within the said strip of land."
This passage has often been quoted, but it is
important in connection with the topic at present
under discussion, because it shows that Russia, in
asking for a lisiere to protect her establishments,
offered at the same moment the free navigation of
the rivers crossing it. The intention clearly was
that though Russia'desired the sovereignty over
a strip of territory facing her islands, the proposal
was not to prejudice the relation of the British
territory inland to the sea. This is made still
more apparent if, anticipating slightly the chronological order, reference is made to the subsequent
despatch of Count Nesselrode, in which he justifies
***** the principle of the lisiere. In his despatch to
Count Lieven of the 17th April, 1824, he writes :—
British App. I, « ^s for ug we x-estrict our demands to a small strip
(lisiere) of coast on the continent, and in order to
dispel all objections whatsoever, we guarantee the free
navigation of the rivers, we proclaim the opening up
of the port of Novo-Archangelsk; "
and again in the same despatch—
lb., p. 78. I If   the   principle   of  reciprocal   conveniences   is
advocated, Russia gives up for the progressive extension
of the English Establishments a vast extent of coast and
of territory;. she guarantees free markets " [debouches] ;
" she makes provision for the interests of their trade, and
as a compensation for so many offers inspired by the
sincerest spirit of conciliation, she reserves for herself
only a point of support without which it would not be
possible for her to keep one half of her dominions."
The free navigation of the rivers involved the
free navigation (though not for the purpose of
. settling or trading therein) of the waters between
the islands and the lisiere, and this state of affairs
being once contemplated, it is difficult to apprehend how Russia could have regarded it as a
settled principle of policy to obtain a lisiere, the
necessary and essential characteristic of which
should be a depth sufficient to prevent any inlet
passing beyond it into British territory.
The rivers had not been laid down, even by
way of conjecture, on Vancouver's Charts. He
had failed to notice even the mouth of the Stikeen.
For all that the negotiators on either side knew,
any one of the inlets might prove to be the
estuary of a navigable river. When, therefore,
free ingress and egress by way of the rivers had
once been offered, it would seem futile to have
stipulated, for the purpose of preventing access to
the sea, that the boundary should in any event
run round the head of every inlet. Yet it is only
to attain the assumed object of preventing access
to the sea that the United States insist that the
parties must be taken to have intended that
boundary should always so run.
It is, however, urged in the case for the United
States that the fact of the line inland from Lynn
Canal having been proposed tends to negative the
British contention, on the ground that every
subsequent proposal was a further concession by
the British Government moving the line farther
to the south and east, and that this must have
[769] G 2 left both shores of Lynn Canal right up to its
head in Russian territory, as Sir Charles Bagot's
' proposal would have left the western shore.
In answer to this, it must be pointed out that
at the time of the proposal of Sir Charles Bagot
the idea of.a lisiere had not yet taken shape. He
had been instructed by Mr. Canning to offer, British App. I,
between Mount St. Elias and the head of Lynn
Canal, a block of country extending inland 50 or
100 miles from the sea, and that proposal would
have shut off no access for the fur trade to the
sea. The lisiere was proposed in answer to this.
The suggestion removed further south the point
where the Russian boundary touched the coast;
but, at the same time, it greatly attenuated the
character of the strip of territory which Russia
was to have. In making the proposal, the Russian
negotiators, by offering the free navigation of
rivers crossing the lisiere, acknowledged frankly
that it was not intended to affect access to the
sea. At one period of the negotiations it was
contemplated that the lisiere itself should not
extend beyond the base of the mountains. It is
submitted that it is impossible to read the
description by the Russian negotiators of the
lisiere desired by them, which was to be no more
than a point d'appui, without realizing that their
proposal contemplated a strip of territory of an
entirely different character from that block which .
Sir C. Bagot had been authorized to offer between
Lynn Canal and Mount St. Elias. It is quite
inadmissible to regard the lisiere as a mere
extension southward of that block.
In answer to the proposal which first carried
the Russian boundary southward to Portland
Canal, Sir Charles Bagot represented that such
line would deprive His Britannic Majesty of those
coves* and small bays which are to be found
between 56° and 54° 45' of latitude. This
has been laid hold of as showing that Sir
Charles Bagot appreciated that all tidal water
north of Portland Canal would be exclusively
Russian. It is to be observed, however, that the
mountain boundary, limited to 10 marine leagues
from the sea, which gives its essential character
to the lisi.ere, and causes it, in the British view, to
cross the deeper inlets, would not operate south
of latitude  56°.     To that latitude  the line is
* " Anses" is not accurately translated inlets
8 been used in this controversy. conducted arbitrarily along the Portland Canal,
and therefore Sir Charles Bagot's observation
was, and still is, accurate even on the assumption
that the British contention is correct.
An examination of the rest of the negotiations
brings out clearly that it was not access to the
sea but the liberty of settlement and trade in the
immediate neighbourhood of her own Settlements
on the islands that Russia desired to prevent
Great Britain from obtaining.
It is clear that the "establishments" which,
in first proposing the lisiere, the Russian negotiators said would, without it, be left sans point
d'appui, were the establishments on the islands,
and that what they deprecated was the proximity
to them of British establishments.
In their next communication with Sir Charles
Bagot they commence by using the following
language:—
British App. I, « The motive which has prompted the adoption of
' the  principle  of mutual  conveniences and  the   fir&t
advantage of this principle is to prevent the respective
Establishments on the northwest coast from injuring
each other and coming into conflict."
In the same despatch they repeat the language
of their original proposal with the addition, however, of words which show more precisely what
establishments of their own they referred to, and
what was the source of the danger against which
they wished to guard.   The passage is as follows :—-
lb. p. 72. " On the other hand, the Russian Plenipotentiaries
have the honour to remind him, once more, that without a strip of land on the coast of the continent from
Portland Channel, the Russian Establishments on the
adjoining, islands would be left unsupported, that they
would be left at the mercy of those Establishments
which foreigners might form on the mainland, and that
all settlement of this nature, from being grounded
upon the principle of mutual conveniences, would offer
only dangers to one of the parties and exclusive gains
to the other."
The language of their final decision is to the
same effect:—
lb., p. 74. " The   Emperor  instructs  his Plenipotentiaries to'
declare once again to the Ambassador of England:
" That the possession of Prince of Wales' Island,
without a portion of territory on the coast opposite
this island, could not be of any use to Russia. 44
" That any Establishment formed on the said island,
or on those around it, would, in some manner, be turned
by the English Establishments of the mainland, and be
completely at the mercy of the latter."
So also Count Nesselrode in his explanatory
despatch to Count Lieven :—
" If the Prince of Wales' Island remains ours, it must British App. I,
be of some utility to us. Now, according to the view p'
of the English Ambassador it would be only a burden
to us and almost an inconvenience. Indeed, this
Island and the Establishments which would be founded
by us, would become altogether isolated, deprived of all
support, surrounded by the possessions of Great Britain,
and at the mercy of the English Establishments on the
coast. The cost of maintenance and of supervision
would be ruinous, the burden of which would not be
relieved by any compensation. Would an agreement
of this nature rest upon the principle of mutual conveniences ? "
About the same time Count Nesselrode, writing
to Admiral Mordvinof, says that, while Russia
claims both the islands and the western coast of
America to the 55th degree—
" Great Britain, on her part, represents the rights of U.S. App., p. 167.
the Hudson's Bay Company, whose trading posts or
refuges, penetrating further and further into the interior
of the lands, have nearly reached the north-western coast
on about the same parallel," and that, to reconcile both
interests, " only one expedient presents itself; to
establish at some distance from the coast a frontier-
line, which shall not be infringed by our establishments and trappers, as also by the hunters of the
Hudson's Bay Company."
Both sides, he added, "equally recognized the
necessity of this measure ; but the width of the coastline necessary for the safe existence and consolidation
of our Colonies still form subjects of negotiation," and the extent of the country between the coast
and the frontier must correspond "with the condition to
what these establishments will, in all probability, in
time attain, and by their means of own defence."
This plainly means a frontier-line, east of which
the Russians and west of which the British should
not form establishments or engage in hunting,
It is submitted that these extracts show conclusively that all that Russia wanted was to keep
the area on which Great Britain could settle and
trade fish and trap, at a certain distance from the
Russian islands. They show that the possibility
that British vessels might pass the mouths of some
of the inlets on their way to and from the upper parts thereof would not have been considered a
danger to be guarded against at all, inasmuch as
such passage through Russia's territorial waters
would be subject to any reasonable control to
prevent its being abused for the purposes of
trading, trapping, or fishing in Russian territory.
Great Britain is not, however, driven to rely affirmatively on these considerations. All she contends
for is that they negative the contention of the
United States, a contention which amounts to
this; that the negotiations disclose an intention
that the boundary should run in places further
inland from the "coast" than the distance expressly laid down by the Treaty assigns.
It is suggested by several passages in the Case
for the United States that the operations of the
Hudson's Bay Company threatened Russia with
competition from the landward side only, and that
Great Britain had no interest in the navigation of
the waters of this coast. This argument rests on
a confusion between navigation for -che purposes
of local trading or fishery and navigation for the
mere purpose of passage. It has already been
shown that the mere fact that Russia offered the
free navigation of rivers crossing the lisiere proves
that it was assumed on both sides that for the
purpose of innocent passage the sea itself, whether
within or without territorial limits, was free to the
vessels of Great Britain. The same conclusion
can be reached affirmatively by the examination
of the negotiations.
The Ukase of 1821 purported to prohibit foreign
vessels approaching within 100 miles of the coast
claimed by Russia. This Ukase was officially
communicated to the Government of Great Britain
as a Power whose vessels were in the habit of
navigating those waters.
British App. I, In his despatch of the 27th September, 1822,
P- 28- Mr. Canning pointed out to the Duke of Wel
lington, for the purpose of its being communicated
to the Representatives of Russia, that common
usage which had obtained the force of law had,
indeed, assigned to coasts and shores an occasional
boundary to a short limited distance for purposes
of protection and general convenience, in no
manner interfering with the rights of others and
not obstructing the freedom of general commerce
and navigation.
jk p# 31, In  the Confidential  Memorandum  which the
Russian Representatives handed to the Duke of
Wellington  at Verona  on  the  11th November, 46
1822, it was stated that Russia did not insist as
a general principle of maritime law upon the
regulations that a purely local necessity had
obliged her to impose upon foreign navigation in
the neighbourhood of the part of this coast which
belonged to her.    In a despatch of the 26th June, British App. I,
1823, Count Nesselrode informs Count Lieven of
the instructions which had been given to the
officers of the Russian navy serving in the regions
affected by the Ukase. Those officers were to
confine their exercise of jurisdiction to within
gunshot from the shore, and were to limit their
surveillance to repress all fraudulent commerce
and all attempts to injure the Russian Company
by disturbing the waters frequented by its
hunters and fishermen, and to prevent the sale
of arms to the natives.
It is apparent from this that the Russian
Government had in June, 1823, waived any pretension to interfere with vessels engaged in
innocent navigation along their coast.
In writing to Sir Charles Bagot on the 12th lb., p. 40.
July, 1823, Mr. Canning observed that Russia
had waived the practical exercise of the maritime
right that she had so unadvisedly claimed, and
that the only question would be as to the mode
and degree of disavowal with which Great Britain
and the United States might respectively be
satisfied. With regard to the territorial claim
and boundary, Mr. Canning observed that it was
perhaps susceptible of a separate settlement. A
study of the subsequent negotiations will show
that the territorial question was never considered
as affecting the use of the sea for the mere
purpose of navigation.
In the preliminary conversation of Sir Charles n>., p, 53.
' got with M. Poletica, reported in the latter's
despatch to Count Nesselrode of the 3rd November, 1823, Sir Charles Bagot admitted that when
the boundary of Russian territory was settled,
Great Britain would not question the right of ib., p. 57.
Russia to make whatever commercial regulations
she thought fit.
On p. 33 of the United States' Case this
declaration of the British Minister is relied upon
as a recognition by Great Britain :—
" That Russia had a complete and unlimited
sovereignty over her American domain, and that to
navigate her territorial waters, or to trade along her
coasts, must be granted by her as a privilege, and
5 be demanded as a right by any other Power." It is obvious that Sir Charles Bagot's remark had
no reference to the mere right of navigation, but
was intended only to acknowledge the undoubted
right of Russia to make what laws she thought
fit as to commerce within her territory. What
Sir Charles Bagot said can throw no light upon
the only question now involved, namely, what
was the extent of territory which the subsequent
Convention in fact assigned to Russia, and in
which she could make such Regulations.
British App. I, In  bis despatch to Sir Charles Bagot of the
15th January, 1824, preliminary to the actual
opening of negotiations,   Mr.   Canning  observes
lb., p. 62. that as to the extravagant assumption of maritime
supremacy the disavowal of Russia was, in substance, all that could be desired. The territorial
question remained for settlement. It is clear
from what followed that on both sides the right
of innocent navigation was not regarded as in
dispute, although there was acute controversy as
to the territorial boundary, and as to navigation
for the purposes of trade and fishery.
lb., p. 81. In writing to Count Lieven on the 29th May,
1824, after the negotiations in St. Petersburgh had
been suspended by Sir Charles Bagot, Mr. Canning asks for precise and positive stipulations for
the free use of all rivers which might be found to
empty themselves into the sea within the Russian
frontier, and of all seas, straits, and waters which
the limits assigned to Russia might comprehend.
lb., p. 84. From   Count    Lieven's    despatch   to   Count
Nesselrode of the 20th May, 1824, it appears that
Count Lieven told Mr. Canning that he regarded
this as already conceded. When, however, Mr.
Canning's communication came before Count
Nesselrode, the latter required from Sir Charles
Bagot an explanation as to the meaning of the
Convention proposed by Great Britain. Sir
Charles Bagot told him that liberty to trade and
fish in Russian waters was what Great Britain
demanded.    Upon this Count Nesselrode, on the
lb., pp. 96-100. 4tk September, 1824, wrote a long despatch to
Count Lieven, in which he expressly pointed out
the distinction between the right of mere navigation, which Russia did not dispute, and the licence
to trade and fish which she could never, except
subject to great limitations, concede. After
referring to the demand of Mr. Canning for the
free use of the rivers and of all the seas, straits,
bays, &c, in Russian territory, .and to his statement that he regarded the maritime pretensions
[769] H T
put forward in the Ukase as withdrawn, Count
Nesselrode writes as follows :—
I Quand on compare ces deux demandes qui se Br^sl1 ^PP* *»
suivent de si pres et qui s'expliquent et se completent
pour ainsi due l'une par 1'autre, il est difficile d'y
trouver autre chose que la libre navigation des eaux et
des mers qui baigneraient les possessions de la Russie,
or cette liberty nous nous sommes toujours montr^s
prlts a la garantir."
On having this despatch communicated to him,
Mr. Canning solved the difficulty as to navigation
for the purposes of trading and fishing by instructing Mr. Stratford Canning on the 8th lb., p. 113.
December, 1824, to substitute for all that part
of the "projet" and "contre-projet" which related to maritime rights and to navigation the
first two Articles of the Convention of 1824
between the United States and Russia.
On this basis the Treaty was concluded. It is
impossible to say that navigation by the subjects
of Great Britain in these waters was not contemplated, or that it was not to take place on the
usual footing recognized by international law to
and from any territory which might be assigned
to Great Britain. The territorial question was
settled by a completely independent set of
provisions, and there is nothing in any of the
stipulations with reference to navigation that
affords an indication that the territory of Great
Britain was to be more confined than the words
of the Treaty dealing with that part of the
arrangement would upon their natural construction suggest.
Article VII of the Treaty of 1825, it  is   sub- Arguments based on Article VII.
mitted, affords a conclusive answer to the claim
by the United States to all the inlets.
By it each Power gives for ten years to the
other liberty to frequent all the inland seas,
gulfs, havens, and creeks on the coast mentioned
in Article III, for the purpose of fishing and
trading with the natives. Russia therefore accepts
from Great Britain this privilege, and grants to her
the same. This provision, applied to the coast of
the lisiere, is consistent only with the assumption,
on the part of each Power, that there might be
found waters extending" inland beyond the limits
assigned to Russia, part of which would therefore
belong to each Power ;  and  in order to insure their free use by both for the term mentioned,
the privilege was made reciprocal.
The lisiere being the strip of coast the eastern
boundary of which is defined by Articles III
and IV, would belong wholly to Russia, and as to
waters within it, i.e., in the absence of a mountain
boundary, within 10 marine leagues of the ocean,
Great Britain had no rights to give. But upon
the coast, of which the lisiere was the border,
there might be and were, as the maps showed,
inlets penetrating more than that distance from
the ocean. When they crossed the boundary
of the lisiere they were British, and it was reasonable that Russia, giving the right to Great
Britain to trade and fish in such inlets while
within her territory, should ask a reciprocal right
from Great Britain when they passed out of it
into British territory. This right up to that
time had been in dispute on that coast, and the
exercise of it had been asserted by both. It was
continued therefore to both for a definite term of
ten years, leaving its future duration to be matter
of arrangement.
Had the construction of the Treaty now contended for by the United States been intended,
every inlet would belong throughout to Russia,
and the grant to her by England of the right
to frequent them would have been meaningless.
There would seem to be no answer to this if
Article VII is confined to the coast of the lisiere,
or applies to it; and upon this point, in another
aspect and from a different point of view, opposing
arguments have been, advanced.
In the Behring Sea controversy the question in
relation to which this Article was considered was,
whether Behring Sea was included in the phrase
" Pacific Ocean," the United States contending
that it was not, and Great Britain that it was;
and as bearing upon this issue the terms | Northwest Coast " and " North-west Coast of America "
as found, not in this Article only, but in the
Treaties, the correspondence, and elsewhere, were
much discussed.
Great Britain contended that they included
the whole coast to Behring Straits, while the
United States argued that they excluded the
Behring Sea.
As to  this Article  VII,  the_ United   States
regarded its language as leaving no room for doubt
that it was confined to the coast of the lisiere, while
Great Britain argued that it applied to the coast
[769] H 2 first mentioned in Article III, and included the
coast of Behring Sea.
Mr. Blaine, in his despatch of the 30th June
1890, to Sir J. Pauncefote, says :—
« The VHth Article is practically a repetition of the ^g^?
IVth Article in the Treaty between  Russia and the Appendix to
United States, and the privilege of fishing and trading British Case,
with the natives is limited to the coast mentioned in       '4Q7_'506
Article III, identically the same line of coast which
they were at liberty to pass through to reach British
America, or to reach the coast from British America.
They are excluded from going north of the prescribed
point  on the coast near  Mount  St.  Elias,  and are,
therefore, kept out of Behring's Sea."
Lord Salisbury, in his answer to this, addressed
to Sir J. Pauncefote on the 2nd August, 1890,
says :—
" I must further dissent from his interpretation of lb., pp. 512-20.
Article VII of ths latter Treaty. That Article gives to
the vessels of the two Powers ' liberty to frequent all
the inland seas, gulfs, havens, and creeks on the coast
mentioned in Article III, for the purpose of fishing and
of trading with the natives.' The expression ' coast
mentioned in Article III can only refer to the first
words of the Article—
" ' The line of demarcation between the possessions
of the High Contracting Parties upon the coast of the
continent and islands of America to the north-west
shall be drawn,' &c.
" That is to say, it included all the possessions of the
two Powers on the north-west coast of America. For
there would have been no sense whatever in stipulating
that Russian vessels should have freedom of access to
the small portion of coast which, by a later part
of the Article, is to belong to Russia. And as bearing
on this point it will be noticed that Article VI, which
has a more restricted bearing, speaks only of 'the
subjects of His Britannic Majesty,' and of ' the line of
coast described in Article in.' "
Mr. Blaine replied to this on the 17th December,
1890, contending that it not only contradicted the
obvious meaning of the VHth and Hlrd Articles,
but destroyed their logical connection with the
other Articles ; and that there could be no possible
distinction between "the line of coast described
in Article III," referred to in Article VI, and
" the coast mentioned in Article III," referred to
in Article VII, both being the coast of the lisiere.
He said :—
" The VHth Article  of the Anglo-Russian  Treaty, " Proceedings oi
p-hose provisions have led to the principal contention the Tribunal of 51
Case of the between the United   States and Great Britain, is as
United States,        follows
Appendix, Vol. I,  IOUUWS f~
pp. 273-5. ' " It is also understood, that for the space of ten years
from the signature of the present Convention the
vessels of the two Powers, or those belonging to their
respective subjects, shall mutually be at liberty to
frequent, without any hindrance whatever, all the
inland seas, the gulfs, havens, and creeks on the coast
mentioned in Article III, for the purposes of fishing
and of trading with the natives.'
" In the judgment of the President the meaning of
this Article is altogether plain and clear. It provides
that for the space of ten years the vessels of the two
Powers should mutually be at liberty to frequent
all the inland seas, &c, 'on the coast mentioned in
Article III for the purposes of fishing and trading with
the natives.' Following out the line of my argument
and the language of the Article, I have already maintained that this privilege could only refer to the coast
from 54° 40' to the point of intersection with the 141st
degree of west longitude, that, therefore, British subjects
were not granted the right of frequenting the Behring
Sea.
. " Denying this construction, Lord Salisbury says :— ■
" ' I must further dissent from Mr. Blaine's interpretation of Article VII of the latter Treaty ("British). That
Article gives to the vessels of the two Powers " liberty
to frequent all the inland seas, gulfs, havens, and creeks
on the coast mentioned in Article III, for the purposes
of fishing and of trading with the natives." The expression " coast mentioned in Article III " can only refer
to the first words of the Article, " the fine of demarcation between the possessions of the High Contracting
°arties upon the coast of the continent and the islands
' America to the north-west shall be drawn," &c, that
to say, it included all the possessions of the two
Powers on the North-west coast of America. For there
would have been no sense whatever in stipulating that
Russian vessels should have freedom of access to the
small portion of coast which, by a later part of the
Article, is to belong to Russia,
this point, it will be noticed that
a more restricted bearing, speaks
And, as bearing on
Article VI, which has
only of " the subjects
3f " the fine of coast
" It is curious to note the emba
rrassing intricacies of
his Lordship's language and the
upon which his argument is basec
erroneous assumption
I.   He admits that the
privileges granted in the Vlth Article to the subjects
of Great Britain are limited to ' the coast described in
Article IU of the Treaty.' But when he reaches the
. VBjA ^ftSde/ whece. the privileges granted are limited
■'W'tie..caast rnitjaoikd in Article III of the Treaty,'
his Ldrdsiip.maintaids that the two references do not
: mean ihe) f£H£ cdas£:at#.iall. The coast described in
'^.•tlcle:ill:an"d*'tfa.e'-eoasi mentioned in Article III are,
therefore, in his Lordship's judgment, entirely different. The 'coast described in Article III' is limited, he
admits, by the intersection of the boundary-line with
the 141st degree of longitude, but the ' coast mentioned
in Article III' stretches to the straits of Behring.
" The Hlrd Article is, indeed, a very plain one, and
its meaning cannot be obscured. Observe that the
' line of demarcation' is between the possessions of
both Parties on the coast of the continent. Great
Britain had no possessions on the coast-line above the
point of junction with the 141st degree, nor had she
any settlements above 60° north latitude. South
of 60° north latitude was the only place where
Great Britain had possessions on the coast-line. North
of that point her territory had no connection whatever
with the coast, either of the Pacific Ocean or the
Behring Sea. It is thus evident that the only coast
referred to in Article III was this strip of land south of
60° or 59° 30'.
" The preamble closes by saying that the line of
demarcation between the possessions on the coast' shall
be drawn in the manner following,' viz., from Prince of
Wales Island, in 54° 40', along Portland Channel, and
the summit of the mountains parallel to the coast as far
as their intersection with the 141st degree of longitude.
After having described this line of demarcation between
the possessions of both Parties on the coast, the remaining sentence of the Article shows that, ' Finally,
from the said point of intersection, the said meridian
hue	
shall form the limit between the Russian and British
possessions on the continent of America.' South of the
point of intersection, the Article describes a fine of
demarcation between possessions oh the coast; north
of that point of intersection, the Article designates a
meridian line as the limit between possessions on the
.continent. The argument of Lord Salisbury appears
to this Government not only to contradict the obvious
meaning of the VHth and nird Articles, but to destroy
their logical connection with the other Articles. In
fact, Lord Salisbury's attempt to make two coasts out
of the one coast referred to in the IHrd Article is not
only out of harmony with the plain provisions of the
Anglo-Russian Treaty, but is inconsistent with the
preceding part of his own argument.
" These five Articles in the British Treaty (the Hlrd,
IVth, Vth, Vlth, and VHth) are expressed with an
exactness of meaning which no argument can change
or pervert."
The United States, again, in their Case in that
controversy, p. 58, say:— _# .... ... .
"With regard to what may be'l&rtned th'e'jteiritorial
dispute, it appears from an examination p£*tne/ca)ye-
spondence and Treaties that --the- eo'uthhin\ tioiun tlaiy M
the Russian territories was fixed at" latitude 54° 40'
north, whereby she relinquished a large. portion of the 53
north-west coast which she had claimed by the Ukase
of 1821; and that the coasts, interior waters, &c, upon
and in which the United States and Great Britain were
allowed to trade for ten years without restrictions, were
limited on the west by Yakutat Bay and Mount St,
Elias; that is to say, that this right was restricted to the
coast-line, concerning the ownership of which there
may have been some possible dispute.
I The specific declarations in the British Treaty of
1825 as to the line of coast and water to which access
and trade were thus granted leave no room for doubt
as to what coast was intended; and that the above
limitation was understood by Russia is expressly stated
by the Minister of Finance in his communication of the
4th September, 1824, already cited (at pp. 54-5)."
British App. I, Count Nesselrode, in his despatch of the 4th
p. 105.
September, 1824, to Count Lieven, says :•
" Russia's rights of sovereignty over the northwest coast beginning at 59° of north latitude have
been disputed. Hence, between that degree and the
parallel which would form our southern boundary, we
hastened to offer special advantages to the Powers
with which we were in dispute. We granted to the
Americans for ten years the right to fish, to hunt, and
to trade with the natives of the country, and we will
make the same concessions in favour of the subjects of
His Britannic Majesty ; but it must be well understood
that this concession will only comprise the space
inclosed between latitude 59° and the southern
boundary of our territory—to wit, latitude 54° 40',
for to the north of the fifty-ninth degree His Imperial
Majesty's rights of sovereignty have never been
questioned, not only in no official document, but in
none of the articles which the English and American
newspapers have published on this subject."
The application and effect of Article VII was
not specifically decided, and Great Britain might
well rest upon the reasoning advanced by the
United States.
That controversy, however, was of a wholly
different character, relating to maritime jurisdiction, and Article VII was referred to only
in that connection. There was no question of
inland boundary ; the width of the lisiere was not
in question ; its possible bearing on the ownership
of or rights in the inlets was not thought of,
and the extent or character of its inlets was not
considered.
The arguments advanced by—either party in
that discussion must be read with reference only
to the subject-matter in dispute. The question
as to the application of Article VII, taken in con- 54
nection with the inland boundary of the lisiere,
vand the present differences with regard to it, was
not presented as it now is, or the considerations
applicable to it in that view discussed, nor can
the arguments on either side be regarded as
dealing with it.
Russia cannot have intended, in view of her
despatch already cited, to accept rights from
Great Britain north of 59°. The reciprocal provision must have been intended, at least by her,
to apply to the coast of the lisiere, to which the
United States argued that it was exclusively
applicable, and it can only be explained in that
view on the construction contended for by Great
Britain.
The territory below 54° 40' was not in question
—having been relinquished by Russia by the
treaty of 1824 with the United States—and she
could not have intended to give to or take from
Great Britain any rights there.
In the United States' Case the sections devoted
to the examination of the negotiations are followed
(p 63) by one entitled " Results of the Negotiations." Most of the arguments contained in that
section have already been dealt with in discussing
the barrier theory. There is, however, one statement which requires further notice.
On pp. 67 and 68 of the United States' Case it
is said that a territorial zone about the water indenting the coast, which would debar the Hudson's
Bay Company from establishing competing posts
along the lines, was believed by the Imperial
Representative to be created by a boundary drawn
along the summit of the chain of mountains shown
on the Vancouver charts and the official Russian
map of 1802. It is said also that an examination
of these maps further shows that the head of
Portland Canal and the mountain range are
approximately 10 marine leagues distant from the
shore-line of the continent. From this it is said
to follow (p. 68) that " when Russia proposed to
. abandon the mountain boundary and fix a line
drawn 10 marine leagues from the shore, and
when she accepted that distance as the extreme
width of the lisiere, she believed that she was
obtaining substantially the same protection as she
would have obtained under her original proposition."
Results of the Negotiations.
The Maps and the Mountain Boundai A comparison of the two Vancouver charts reproduced on pp. 1 and 2 of the Atlas accompanying the British Case, will show that different
positions with reference to the head of Portland
Canal were assigned to the mountains in these
two charts.
A comparison of the two charts of Frederick's
Sound, reproduced on p. 4 of the same Atlas,
shows an even more striking divergence with
respect to the mountains higher up the coast.
In addition to this, the negotiations themselves
show that both Parties had in view the unreliable
character of the maps available with regard to
the mountains.
Under these circumstances, it is submitted that
these maps cannot be used for the purpose of
showing tha,t the negotiations of the Treaty
proceeded on the basis that the mountain
boundary would operate in any particular way.
In any case. Great Britain respectfully protests
against this argument as directly inviting a conclusion, varying' and not construing the actual
agreement come to. It is necessary to observe
that, even assuming that Russia believed she was
obtaining a particular result, it is nevertheless
possible that the geographical conditions on which
the boundary is expressly made to turn make
the problem work out in a different way. The
Case of the United States loses sight of the fact
that in such case there is no jurisdiction in the
Tribunal to alter the effect of the Treaty in order
to make it agree with the Russian anticipation.
Summing-up. The arguments put   forward upon  the   nego-
mg the Words of th.e Treaty tiations have been dealt  with  and the   British
view presented in reply ; but, in reality, all this
discussion is of secondary importance. For the
purpose of answering the fifth and sixth questions
propounded to the Tribunal, the words of the
Treaty of 1825 itself define with precision the
problem to be solved. The line is to be drawn
parallel to the coast—along the mountains, where
there are mountains ; but in any case at a
distance of not more than 10 marine leagues from
the I Ocean." Unless it can be shown that all
the waters of the inlets, and evenjthe channels of
rivers so far as penetrated by the tides, are
"Ocean," the case for the United States fails.
If the inlets are not " Ocean," it is an absolutely
necessary consequence that the line crosses every
[769] I 56
inlet which is more than 10 marine leagues long,
, and may cross inlets which are shorter if the line
of the mountains crosses them. It was pointed
out in the British Case that the Russians themselves in the negotiations described the head of British Case App.,
. . . ,    .      p. 94.
Portland  Canal   as   " m  the  interior,    and  its
entrance as its " embouchure into the Ocean."
This shows to demonstration that the Russians lb., p. 76.
used the word " Ocean " in accordance with what,
apart from any such guide whatever, the ordinary
use of language would assign as its meaning—
namelv, the sea outside these inlets. The United
States' Case has not attempted to show the
contrary ; nor could such a contention be made
good. Yet this is in truth the whole point of
this controversy. It is submitted that it follows
that the answer to the fifth and sixth questions
must be those put forward in the Case on behalf
of Great Britain.
SEVENTH QUESTION.
The seventh question is :—
"What, if any exist, are the mountains
referred to as situated parallel to the
coast, which mountains, when within 10
marine leagues of the coast, are declared
to form the eastern boundary?"
The British Case is that such mountains exist, British Case,
and that the description   is  satisfied  by  those ?,
indicated   on   the   map,   and   referred   to   and British App. JI,
set  forth  in  the declaration  and  statement  of M?P No- 37.
Mr.  W.  F.  King,  British Commissioner on the p. 307, et-seq.'
International  Survey  under  the   Convention  of
1892, subject to the reservation that this  suggested   line   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 on examining
the topographical conditions met with in tracing,
the line.
Xote.—On pp. 82 and 83 of the British Case the following
correction should be made:
Transfer the third paragraph from the bottom of p. 82
(beginning '-Great Britain contends") to p. 83, after the
paragraph ending " as well as jigainst her." pri3?beSj' The British Case ^ts up  the  Convention  ot
lb., pp. 42, 43,       1892, and the subsequent International Survey,
6 seq' and the later action.    But in view of the attitude
P^S85,a86'. taken  in  tte  Case of the United States,, it is
proper  to  make  here  further  reference to this
matter.     The United States' Case, referring to
the International Survey under the Convention of
1892, states—
" The American officers sent out in company with
the Canadians examined the shores, and penetrated
inland at several points for the special purpose of
determining the character of the country. From their
observations the following facts were established:
That the mountains have a tendency to increase in
altitude the farther they are situated from the shore;
that throughout the UsUre the mountains are composed
of numerous isolated peaks and short ridges running in
different directions, and that within 10 marine leagues
of tide water there is no defined and continuous range
such as appears upon the early maps and charts following the sinuosities of the coast."
U.S. App., and in the Appendix are found the several state
ments on which this view is said to be established.
U.S. Case, p. 106. fhe answer and decision requested by the
United States is "that such mountains do not
exist within ten marine leagues from the coast."
Great Britain contends that the elucidation of
the topographical facts on which the answer to the
question depends, is to be found in the Report and
papers, maps and photographs of the International
Commission of 1S92, and not in statements of
opinion such as are put forward by the United
States.
British App. I, By the Convention of 1892 it was agreed that
1 a coincident or joint survey should be made of
the territory adjacent to the part of the boundary-
line in question, "with a view to the ascertainment of the facts and data necessary to the
permanent deHmitation of such 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 Russia."
It was further agreed by the High Contracting
Parties that " as soon as practicable after the
Report or Reports of the Commissions shall have
been received, they will proceed to consider and
lb., p. 282. establish the boundary-line in question."      The
Commissioners were appointed, performed their
work, and presented their Joint Report.
[769] I 2 They reported that—
" With a view, to the performance of the duty
lo'sed upon the Commissioners under the Conventic
scertaining the facts and data necessary to the
aanent delimitation of the boundary line,"
they had
added—
l upon a pi
of joint survey ; they
te United. States Commissioner undertook to
surveys of as precise a nature as practicable of
incipal water courses which traverse the coast
and the British Commissioner undertook to make
to-topographical survey of the mountainous
s lying between these various water courses
They further reported as follows :— B
P
" The results of all these surveys are exhibited in the
accompanying Maps, namely, sheets Nos. .1 to 24, made
on a scale of -nnnnnj- with contour lines of elevation 250
feet apart, from the surveys of the British Commission ;
and in Maps Nos. 1 to 12 of the United States Commission, made on the same scale.
" These Maps have been agreed to by us, subject to
the limitations hereinafter set forth, as correct representations of the topographical features, and have been
signed by us to testify thereto."
And they reported their agreement as to the
mode of interpreting any difference which might
occur between maps dealing with the same
locality.
They further reported as follows :— I
I To show the topographical features of the country
in another way, we herewith submit photographic
views, being contact prints from the photographic
negatives of the officers of the British Commission,
whose work was largely executed as to the detail or
' filling in ' by means of these views, according to the
method known as photo-topography, the framework
being laid out by triangulations which are shown
in sheets Nos. 25, 26, 27, and 28 of the British Commission. These views will also serve as a permanent record
of the field work. Plans of the triangulation executed
by the officers of the United States Commission are submitted herewith on sheet No. 13 of the United States
Commission.
"We conceive it unnecessary for us, having prepared Maps showing so much detail, to enter into a
lengthy description of the topography;"
the  timber
ritish App. I,
d. 284, 285 59
British App. Ill,
portfolio.
U.S, App.,
foot-note, p. 528.
British App. I,
p. 269.
British App.,
p. 297.
The maps have been already produced ; and it
is intended to produce the photographs to the
Tribunal on then assembling in London—a course
also contemplated by the United States.
But in yiew of the line taken in the Case of the
United States, Great Britain declares her readiness to produce the photographs at once, if
desired by the Tribunal, and also presents as
Appendix II to this Counter-Case, an album
showing a selection, on an enlarged scale, of
certain of these photographs for the greater convenience of examination, as hereinafter detailed.
Descriptions of the salient points in these views,
with attesting declaration of Mr. J. J. McArthur,
will be found in the Appendix I at pp. 63 to 72.
Indeed, the photographs are so numerous, and
both they and the contour maps are on so small
a scale, that it may be a tedious, however necessary, task for the Tribunal to master them.
But it is submitted that upon them depends,
after all, the answer to the question; and that if
any further light is to be thrown upon them or
upon the subject, it is to be obtained only by the
use of the provision in the first Article of the Treaty
of 1903, under which the Tribunal may "employ
scientific experts, if found to be necessary."
It is submitted that this view of the situation
is supported by the following considerations:—
1. By the Convention of 1892 setting up the
International Survey Commission and the agreement that, as soon as possible after their report,
the High Contracting Parties would proceed to
consider and establish the boundary - line in
question.
2. By the form of the Protocol of May 1898 of the
Conferees for Great Britain and the United States
,ry to the meeting of the International
prehmim
Joint High  Commission of 1898-99,
tocol declares that—
vhich Pro-
lb., p. 298.
" It is expedient to come to an agreement upon ....
Provisions for the delimitation and establishment of the
Alaska-Canadian boundary, by legal and scientific
experts, if the Commission shall so decide, or otherwise."
3. By the instructions, of Great Britain to its
Commissioners of the 19th July, 1898, communicated to the United States, which stated as to
the boundary between Alaska and Canada that—
" The Convention with the United States  Government of 1892 provided for the appointment of a Joint n
60
Commission to ascertain the facts and data necessary
for the permanent delimitation of the boundary-line,
and the High Contracting Parties agreed to proceed to
consider and establish the line as soon as practicable
after the Report of the Commission should have been
received. The period fixed for the completion of the
surveys and the presentation of the final Reports was
extended by a supplementary Convention in 1894, and
the Commissioners submitted a Joint Report with
maps on the 31st December, 1895. This Report contained no recommendations for the determination of an
equitable settlement, and no further discussions have
taken place  as  contemplated in  the  Convention  of
1892 Her Majesty's Government are content, to
leave it to the discretion and judgment of the Commissioners to devise some machinery for this purpose "
4. By the Memorandum of the United States British App.,
containing its views on the subjects of the
Protocol of the 30th May, 1898, and representing
the instructions of that Government to their own
Commissioners, communicated to Great Britain,
which Memorandum is on this subject as
follows:—
1 III. The Delimitation and Establishment of the Alaska
Boundary.
"This topic has already been the subject of conventional arrangements, and the Report of the Joint
Commission is now available and has made it possible
for the two Governments to carry out the stipulation
of the last clause of Article I of the Treaty of the
22nd July, 1892, to 'proceed to consider and establish
the boundary in question.' The Government of the
United States will 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,
and, as far as possible, to delineate the same upon proper
maps; and, further, to provide for the fixing of boundary
marks by a Joint Commission to be hereafter appointed.
This Government has no reason to anticipate anjr other
than a definite and satisfactory settlement of this important question by the Joint High Commission."
5. By the circumstance that the Joint High
Commission having, after long discussion, adjourned without being able to reach an agreement
as to the boundary, the adjustment of the question became once more the subject of diplomatic
negotiations, which culminated in the Treaty of
1903, which Treaty was thus the method finally
devised for executing the stipulation of the Con-
i the exis
fence of
a mo
unta
a corres]
f demai
ponding t
cation  bj
o tha
\ Art
t   COl
cles
vention of 1892 that, as soon as possible after the
Report of the Joint Boundary Commission, the
High Contracting Parties would proceed to consider and establish the boundary-line in question.
6. To these considerations may be added the
substantial recognition on the part of the United
States of the view which Great Britain sets up,
shown in the form of the question put by Mr.
Secretary Hay to Mr. Tittmann, in reply to which
the latter gentleman returned his statement and
the other papers to be now discussed.
That question is as follows :—
U.S. App., p. 529. " What are the facts, and especially what is the
evidence presented by the joint surveys and explorations of the International Boundary Commission of
1893-1895 in regard to ■
range in Southeast Alasla
templated as the line of
and 4 of the treaty of 1825 ? "
lb., p. 529. Notwithstanding the very precise terms of this
question, the statement of Mr. Tittmann and the
depositions which he enclosed in response to the
question of Mr. Secretary Hay hardly touch,
while they go far beyond, the special enquiry
made, and they attempt to deal with the subject
on a basis which is submitted to be far wider
than is here open, and which further is in its
nature most unsatisfactory.
Great Britain, taking the view above indicated, has limited her presentation to the Report
of the International Boundary Commission, introduced by the declaration of her Boundary Commissioner, Mr. W. F. King, who (resting on the
material presented by the Report of the Boundary
Commission, to which he was able to add the
statement of his personal knowledge of and concurrence in the facts and results deduced from the
Report), set out such facts and results and the
line and mountains which, as he was satisfied, the
Report established.
And Great Britain now rests on these materials,
as to which it may be convenient at this point to
make some explanation.
British App. I,
The principle oft
he
johtour
maps is to
ndicate
elevations by lines,
ea
jh of *
hich repres
ents an
increasing elevation
of 5
150 feet
.    Thus, by
finding
the number of lines
at
my poi
at, and mul
tiplying
by 250, the height
of that p(
)int is ascei
tained;
and by extending these
observ
ations to t
ie form
of   the   contour   li
ne
under
examination,   the character and trend of the mountains is made
; apparent.
Again, the principle of the phototopograpbic
system is to take from ascertained points views of
areas also ascertained, whereby the details may be
accurately filled up in the maps. These photographs are very numerous, exceeding 3,000. The
selection presented in the album as Appendix II
to the Counter-Case, consists of 150 of these
photographs which have been enlarged, and which
serve to illustrate the appearance presented by
the mountains on the line suggested by the
British Case.
It is, of course, possible to enlarge in like
manner any others of these photographs chosen
on any principle which the Tribunal or any expert
named by it may desire. But in view of the
limitations of time, it was impossible, and in view
of the expense it was inexpedient to carry further
the enlargement until the Tribunal should give
directions in the matter.
Turning now to the statements presented by
the United States, it is not proposed to deal
exhaustively with them at this moment; but
some observations may be made.
It is to be remarked in the first place that they
are, of course, all in response to the enquiry of
Mr. Secretary Hay as to the existence of "a
mountain range," while the Treaty does not speak
of a range; and secondly, that they all better
these instructions by definitions still more remote
from the language of the Treaty.
For example, Mr. Tittmann says that— U.S. App., p. 530.
" There does not exist any defined or continued
mountain range or chain running generally parallel to
the coast, and situated anywhere oceanward from a line
projected from the head of Lynn Canal southward and
drawn to the 56th parallel to a point near the head of
Portland Canal, such line being parallel to the sinuosities
of the coast line which proceeds round the bays and
inlets and not more than ten marine leagues therefrom."
Again, Mr. Ogden says :— jb., p_ 532.
" I am satisfied that there is not, within ten marine
leagues from the coast, any continuous chain of mountains in the form of a summit range running from the
5()th degree of latitude until it intersects in the northern
direction with the 141st degree of longitude/'
Again, Mr. Hodgkins says :— Ib> p- 534o
" It is my belief that there is no such continuous
chain of mountains within ten marine leagues of the coast—that is, from the heads of the inlets and bays,
and running in a direction parallel to the general
direction of the coast between Portland Canal and
Lynn Canal, as seems to be contemplated by the
language of the Anglo-Russian Convention of 1825."
U.S. App., p. 585.      Again, Mr. Baldwin says :—
" There does not exist anywhere within those regions"
(those described by him between Chilkoot Pass and Iskoot
River) " within ten marine leagues from the coast, anything like a defined mountain range extending in a
general direction north and south parallel with the
coast."
He also declares that the mountain formation
is without anything like the continuity of a
mountain range extending north and south ; and
he adds that—
lb., p. 537. " There is no such range   as that above described
and within the territory described, situated to the west
of a line drawn from Chilkoot Pass southerly to Iskoot
River, said line being drawn parallel to the coast
line which bounds the heads of the inlets, bays, and
interior waters, and not more than ten marine leagues
from same."
He proceeds to negative the existence within
any of the territory he describes of—
"Any defined mountain chain running north and
south generally parallel to the coast, which in its
trend goes across the Iskoot, Stikine, and Taku rivers,
or either of them, or across Taku Inlet or Lynn Canal,
and which, but for being pierced by them or either of
them, would constitute what could be (dissociated from
the surrounding peaks or mountains) designated as a
continuous or individualized mountain chain or range."
lb., p. 537. Again, Mr. Flemer says :—
"As far as my observations" (in certain territories
referred to by him) " have taken me, there is no indication of any coastal mountain range, nor are there
mountain formations strung out in a direction north and
south."
And he speaks of—-
" Irregular but bold projections, appearing isolated or
in groups, never in continuous range or chain."
Now these definitions of what mountains the
Treaty demands and where; these definitions of
what the deponents deny to exist, are not, it is
[769] K 64
submitted, correct definitions, and thus the denials
can prove nothing.
The correct definitions are, it is submitted, such
as appear in the British Case and in the British
Appendix.
But the grounds omwhich the denials are made
are quite unsatisfactory. Speaking generally, the
opinions of the deponents are based not on the
Report of the Commission, but on observations
which the deponents say they have made in
certain limited localities, or on general views unsupported by anything in the nature of an observation, properly so-called, of the mountain scenery,
glimpses which they had in common with all
travellers passing along the usual routes to the
north, from Puget Sound and British Columbia.
Among these travellers are many, including APP-> PP- 57-62.
scientific men of standing, who have written
articles descriptive of the topography of'these
regions. Their deductions from what they saw
may be contrasted with those of the United We PP-52,5S
States' deponents. Reference may also be made
in this regard to the " Coast Pilot," and other
official publications of the United States. '
Furthermore, many of the observations and
views upon which those deponents base their conclusions, were obtained, not at all in connection
with the International Survey, but at other times,
and in the course of other work with other ends
in view, and it is obvious that hardly any of these
denials have relation to the results of the Report
of the International Survey.
It is unnecessary to dwell here upon the many
evident inaccuracies in these depositions. One of lb., p. 73.
these is met by the declaration of Mr. McArthur,
which will be found in the Appendix. Further
consideration of the faultiness of the depositions
upon which the United States rest their answer
to the seventh question is reserved for a later
stage.
In concluding this part of the Counter-Case, it
is submitted that it is for the Tribunal to determine what description of " mountains" is
required by the Treaty, whether that for which
Great Britain, or that for which the United
States, contends. U.S. NEGOTIATIONS WITH RUSSIA
FOR RENEWAL OF TRADING
PRIVILEGES.
The next section of the Case for the United
States deals with the negotiations between the
United States and Russia for a renewal of trading
privileges. These negotiations have already been
referred to in this Counter-Case. The purpose
for which they are introduced into the United
States' Case is apparently to show that in 1845
the United States finally recognized Russian
sovereignty over the North-west coast of America
north of latitude 54? 40'. This is not denied ;
and it has already been shown that it does not
affect the British contention.
[769] ACTS OF OCCUPATION.
I.—RUSSIAN OCCUPATION.
A large part of the Case for the United States, Russian occupation.
and of the evidence contained in the Appendix
thereto, relates to the action of Russia, and subsequently of the United States in the region
through which the boundary runs.
This matter is, of course, introduced pursuant
to the provision at the end of Article III of the
Treaty under which this Tribunal sits. That
. clause requires the Tribunal to—
" Take into consideration any action of the several British App. I,
Governments or of their respective Repiesentatives, ^'
preliminary or subsequent to the conclusion of said
Treaties, so far as the same tends to show the original
and effective understanding of the Parties in respect to
the limits of their several territorial jurisdictions under
and by virtue of the provisions of said Treaties."
This states with precision the limits within
which, and the purpose for which, the evidence in
question is admissible. These must be borne in
mind throughout.
In the first place, the evidence must disclose
I action of the several Governments or of their
respective Representatives." This excludes all
private action, and, a fortiori, all private expression of opinion, whether by map makers or others.
Next, this action must be "preliminary or
subsequent to " the Treaties. This excludes any
action before any of the Treaties were contemplated, such as the alleged Russian visits before
1821.
Again, the action must tend to .show " the
original and effective understanding of the
Parties." It is not a question of showing what
view was taken and contended for after the
question was raised, still less who was in possession when the Treaty of Arbitration was entered
into. In addition, the understanding which the
action must tend to show is that of " the Parties,"
that is to say of both Parties. Action by one
Party not known to the other Party will not tend
to show this. as to the limits of their several territorial j
iiris-
dictions under and by virtue of the provisioi
lsof
the Treaties.     It is, of course, admitted by G
reat
Britain that Russia, and subsequently the Un
ited
States, had territorial jurisdiction along all
the
face of the coasts, and the dispute is only t
s to
the upper portion of the inlets.    All action on
tih\
face of the coast or at the mouths of the inle
,s is,\
therefore, immaterial.
v
In dealing with this part of the Case for
the
\
United States, it is necessary on behalf of C
rreat
\
Britain to draw attention to the circumstances
under which this Counter-Case is prepared.
Not only has there been no time to check or
answer much of the evidence, but the documents
themselves, printed in the United States' Appendix, have not been produced lor inspection.
Even where these appear to be printed in full and
in the language of the original, the elementary
principles of justice require that the Party against
whom they are used should, before dealing with
them, have the opportunity of seeing the original.
Where, however, as is frequently the case in the
United States' Appendix, all that appears is an
uncertified translation by an unnamed translator,
or extracts only from documents not accessible to
both Parties, the case is much stronger.
In the following pages Great Britain deals with
these documents on the assumption, for the
moment, that they are correct copies; that all
translations are accurate, and ' that nothing
material has been omitted from documents extracted only. But she admits none of these
things ; and no argument addressed in the following pages to the evidence on the documents,
as they appear printed in the United States'
Appendix, is to be taken as waiving her elementary
right to full inspection and to an opportunity for
challenging, in the case of any document the
original of which is not accessible to her, either
the correctness of the copy printed, the accuracy
of any translation, or the completeness of any
extract. In the case of extracts, she further
expressly claims the right to the benefit of any
evidence which may prove to be contained in the
parts omitted which she may be advised is in her
favour, either as qualifying the effects of the
extracts or as supplying information of importance
in itself. The first act of Russia after the Treaty is stated U.& <
in the Case for the United States to have been
the publication, in 1826, of a map, on which the
boundary is described as being laid down at a
distance of 10 marine leagues round all the inlets
of the sea. As was pointed out in the British
Case, a boundary drawn under these circumstances (and the remark applies to all the maps)
cannot have been intended as a line applied upon
ascertained topography. The Treaty proceeded
' upon the basis that the position of the mountains
on which the boundary depended was unascertained, and they remained unascertained when
this map was published. If it be true that the
line on this map does follow a course running at
10 marine leagues from the shore of the inlets,
that fact alone shows that the boundary indicated
was not an ascertained one, as it was not known
at that date whether the provision as to the
10 marine leagues would come into play.
As Mr. Bayard remarked in 1885, and as the
contention of Great Britain is, the boundary shown
on the maps was only a paper boundary to be
worked out when the application of it upon the
ground should become a practical question. It
had not become a practical question when this map
was published, nor did it become so until recently.
The action of Russia, on which the United lb., pp. 72, 73.
States relies, is treated under five different heads :
(l) Control over the Indian tribes; (2) the conduct
of trade ; (3) the establishment of posts and forts ;
(4) the maintenance of territorial rights against
foreign encroachments ; and (5) the survey of the
straits, inlets, and rivers.
Under the first head reference is made to the
voyages of Ismailof in 1788 and Baranof in 1795.
The United States' Appendix contains certain
Memoranda from the Hydrographic Department U.S. App., p. 251.
of the Ministry of Marine at St. Petersburg, and
extracts    from    Coxe's    " Account   of   Russian lb., p. 254.
• Discoveries," and Dr.  Krause's   " Historical Re- lb., p. 256.
" view," as affording evidence of what took place on
these voyages.    From these sources we learn that .
Ismailof s voyage never  extended beyond   Ltua
Bay.    On his way thither he stopped, however,
■ at Yakutat Bay, where he received a visit from a
Chief, who is described in the Russian Memorandum as " living near a large river, called Chilcate, lb., p. 252.
southwards  from  the   Bay  Ltua;"'   in   Coxe  as south-*
hitiskat
ith th
at-of-
id   the
members of the Imperial family, as a token of hfk
acceptance of .Russian protection.
The River Chilcat is not, in fact, a great river
at all. and it is not correct to describe it as southward from L'tua Bay. One account, moreover,
states that this Chief came from far beyond the
river referred to. Tbe coast at that date had not
been charted. Under these circumstances the
Russians could not have had any definite conception of the territory to which this ceremony
was supposed to give them a title, and in any
view it cannot be said that this incident in 1788
can be regarded as action tending to show the
original and effective understanding of the Parties
to the Treaty of 1825.
The voyage of Baranof is not referred to except
in Dr. Krause's " Historical Review," where it is
stated that in 1795 Baranof sailed to Yakutat
Bay, where, notwithstanding the previous acts of
Ismailof, he claimed the credit of establishing
" amicable relations with the natives," and " with
great eclat planting the Russian flag on the
shore." He is said to have then continued on to
Tschilkat Bay with thirty men, where he in every
possible place had crosses erected with the inscription, I This land is Russian territory."
It does not appear what Baranof regarded as
Tschilkat Bay, and this extract does not show
that Baranof ever penetrated to the head of Lynn
Canal, or that he knew how far that inlet extended into the land. It appears from the documents printed in the United States' Appendix in
connection with the affair of the " Dryad," that as
late as 1835 the Russians spoke of Lynn Canal
as " Chilkat Strait, named Lynn Canal by Vancouver." It is, therefore, quite consistent with
the account given by Dr. Krause that Baranof
never got further than the mouth of Lynn Canal.
The extract in question certainly does not show
that Baranof reached, or even knew of Chilcat
River.
With reference to these allegations as to tbe
action of Russia in 1788 and 1795, it is to be
remembered that in tbe controversy aroused by
the Ukase of 1821 the United States consistently declared that Russia had no settlement on the
continent south of the 59th degree of north latitude, and that she could not even claim the rights
of first discovery. This topic has already been
alluded to in this Counter-Case, and the position
taken by the United States on this point is made "
still clearer by reference to the observations and
accompanying notes communicated with Mr.
Adams' letter to Mr. Middleton of the 22nd July,
1823. These documents were not printed in the
Appendix to the Case for the United States.
They will be found in the Appendix to this
Counter-Case.
For eight years after the Treaty the Russians
cannot be shown to have visited any spot which,
upon the contention of Great Britain, would not
bave been in their territory. It is stated in the
Case for the United States that they sent out U.S. Case, p. 75.
annual expeditions to the head of Lynn Canal,
Taku Inlet, the mouth of the Stikine River, and
then appointed places of rendezvous, where tbe
barter for furs was conducted. So far as concerns
Lynn Canal and Taku Inlet there is no evidence
of this in the Appendix to the United States'
Case. On the contrary, as will be pointed out
hereafter, the evidence is that they were ignorant
of these places at least till 1833 or 1834. It may
be observed, however, that any trading by tbe
Russians in the inlets before 1835 would be
immaterial, because, under Article YII of the
Treaty, they were entitled to trade in British
waters during that period.
In 1832 the Russian authorities at Sitka
became alarmed on hearing that the Hudson's
Bay Company were about to establish a settlement up the Stikine.' On the 6th May in that
year the Governor wrote to the Directors of the
Russian Company asking for merchandize to
enable the Russians to visit the straits themselves,
it being impossible to visit the Kolosh empty
handed. A report of the 28th April, 1834, shows u.S. App., p. 265.
that he received these supplies and entered into lb., p. 265.
direct communication with the Kolosh of the
neighbouring straits, sending a vessel to their
settlements and endeavouring to establish a
settlement on an advantageous point for this
trade.
Next year he fitted out the brig " Chichagoff," lb., p. 265.
under Captain Etholine, to navigate all over the
principal   parts  of   the  Russian   straits   to  get
acquainted with the  localities,   the  inhabitants, and the mode of trade with them, and report on
all these points.
From subsequent passages in the same despatch
it appears that this voyage was mainly employed
in exploring the straits between Sitka and the
Stikine, and it does not appear that Lynn Canal
was visited. The Governor announced, however,
that he intended to send next year a schoonerS
then in construction, to trade in Chilkat under
2nd Lieutenant Kuzuetsof. The extract from
this despatch, printed  in the Appendix to the
U.S. App., p. 267. United States' Case, ends with the statement
that until further instructions the Governor
would hinder the British by force from sailing up
the Stikine River.
Two months after this despatch was written—
namely, in June 1834—the British expedition in
the "Dryad" was accordingly stopped by the
Russians at the mouth of the Stikine.
During the same summer, as appears from a
despatch of the 30th April of the next year (1835)
from the Governor to the Board of Directors, the
lb., p. 276. schooner " Chilkat" was at Chilkat for " trading •
purposes ;" and a letter of the 30th. March, in the
same year, discloses that on their way thither the
lb., p. 273. Russians had discovered the River Taku.     Tbe
same letter shows that in 1835 it was intended to
lb., p. 274. visit Chilkat.
lb., p. 291. On   the   12th   March,   1836,   the   Directors,
acknowledging the Governor's despatch above
quoted, noticed with pleasure that the scope of
Russian operations increased through acquaintance
with Chilkat, and that there was hope of obtaining furs from the natives of that bay.
It appears that in 1838 orders were again given
lb., p. 303. to a Russian vessel to visit Chilkat and Taku for
trading purposes with the inhabitants and for the
survey and sounding in a proper manner of the
mouths of these rivers.
lb., p. 312. The survey of the mouth of the River Chilkat
was reported to have been accomplished in a
despatch of the 20th April, 1839.
From the documents above referred to, it
appears that—at least, till 1832—the Russians
were ignorant of Lynn Canal. They had not even
discovered the Taku. It must not be assumed
that when they refer to " the straits" Lynn Canal
is referred to, or that the Kolesh were Indians
from Lynn Canal. In his despatch of the 30th
April, 1835, Baron Wrangell refers to the Stikine
as "the most important point of the straits for
[769] L trade with Kolosh," and in all the documents of
this period printed in the Appendix to the United
States' Case the Stikine Indians are always called
Kolosh. The term translated " straits " in these'
documents is used to denote the narrow seas
adjoining the mainland or between the islands on
the coast.
The action of the Russians in sending to
Chilkat during the period between 1833 and 1838
was taken under somewhat peculiar circumstances. It was part of the effort made by Russia
to meet the competition of the Hudson's Bay
Company. Baron Wrangell had, as already
mentioned, declared his intention of preventing
by force the navigation of the Stikine by the
British. The view on which he acted was in
direct conflict with the provisions of the Treaty,
and was disavowed by the Russian Government.
It is not probable that he was guided in his
determination to send vessels to Chilkat by any
more scrupulous regard for Treaty obligations.
But the whole question of the right of the parties
• in this neighbourhood was no sooner raised than it
was settled until 1867, by the lease of the lisiere
to the Hudson's Bay Company.
Throughout this period the Stikine was considered the most important point for trade, and
in the renewals of the lease the country leased,
which in fact extended to Mount Fairweather,
was always referred to as " the Stikine country."
In the Case of the United States, several
instances are given of the Russians bringing
influences to bear upon the natives. The centre
of these efforts was always at the Stikine. It
can never be shown that anything of this sort
took place in Lynn Canal. The facts referred to
have therefore no significance.
The Russians never exercised dominion in
Chilkat. As stated in the Report of the Governor
of Alaska for 1902, printed in the Appendix, the App., p. 18.
Russians avoided the Chilkats as much as possible,
and according to the depositions of In-da-Yonk,
put in evidence by the United States, the Chilkat U.S. App.,'p. 441.
Indians, among whom he was raised, considered
the Russians merely as traders temporarily in
their country.
The affair of the " Dryad " is said to throw light lb., p. 78.
on the present controversy as illustrating in a
forcible manner why the Russian Company and
its  government  were  so  firm in their position
during the negotiations of 1825 that a strip of esofthe
arrier to
terfering
habiting
tain the
5  of the
territory should be preserved on the sho
continent of sufficient width to act as a
keep the Hudson's Bay Company from ii
with their trade in furs with natives h
those shores. In the view of Great Br
illustration afforded by the incident i
opposite tendency. It shows that the provisions
admittedly made could not have that effect. The
navigation of the rivers was fatal to any barrier,
and the admission of it shows no such idea was
thought of.
In the United States' Case some stress is laid
on the fact that the proposed settlement of the
Hudson's Bay Company on the Stikine was to
have been 10 marine leagues from the sea. It is
obvious that this distance was chosen because at
that spot the territory would be in every possible
event British. It is surely not contended that the
projectors of this settlement are to be taken to
have satisfied themselves that there existed no
mountains, answering the Treaty description,
lower down the course of the river.
[769] II.—UNITED   STATES'  OCCUPATION.
In 1867 the Russian possessions in America
were transferred to the United States. As stated
in the Case for the United States, the Government U.S. Case, p. 84.
of the latter Power were, at the time of the Treaty
for the cession, fully conversant with the negotiations that had taken place in 1824 and 1825, and
with the Treaties concluded in those years, and
bad also the maps and charts which had been
published.
With regard to the maps it is not possible that
the Government of the United States should have
believed that the boundary marked represented a
delimited frontier. They knew that the Russian
possessions had been in the hands of a Fur Company, whose rights on the mainland had, for nearly
thirty years, been leased to a British trading
Company. Nothing can be pointed to calculated
to induce a belief on the part of the United
States' Government that the maps represented
the ascertained boundary upon the ground.
The United States' Government must, under
these circumstances, have had recourse, for the
purpose of ascertaining what they were buying,
to the Treaty of 1825, and they must be taken
for the purpose of any judicial inquiry to have
correctly understood its provisions. In any case
the United States took what Russia had to give,
and no more—what this was depends upon the
true construction of the Treaty of 1825, which is
the question now submitted for the decision of
tbe Tribunal.
In taking possession of their new territory the
United States appear, from the documents printed
in the Appendix to their Case, to have sent a
revenue-cutter to investigate and report upon the
coast territory, and the officer in command
extended his voyage to Chilkat inlet. Here, it
is stated in the United States' Case, he received
in return for presents the professed allegiance of
the Indians, and made certain local investigations.
It ia important to realize the exact situation of
the Parties. The Hudson's Bay Company had
been under their lease trading upon this coast.
The termination of this lease necessarily involved their withdrawal from their station at the mouth
of the Stikine and all their principal trading
grounds. They never had any station upon the
Lynn CanaL and had no interest in asserting tbe
right of the British Government to any part of it.
Indeed it does not appear that they knew anything of what is said to have taken place, and the
British Government itself knew nothing of the
proceedings of the United States' revenue-cutter.
From this point forward it only remains to
consider the action of the United States as set
forth in the Case and Appendix presented on
their behalf. The difficulty in which Great
Britain finds herself with regard to dealing with
the matters of fact alleged under this head have
been already referred to. Even if it could be
assumed that the facts put forward by the United
States are not susceptible of substantial contradiction or qualification, there are still a number of
considerations which must be kept in view in
estimating the weight of the arguments founded
upon them.
The question here has not reference to an unoccupied region not affected by Treaty, and even
if it were conceded that the action of the United
States might be sufficient, in the absence of any
determination by Treaty, to give a primd facie
title to the waters of the inlets, it must be remembered that the test to be satisfied in this
case is of a totally different kind. The dispute
turns on the construction of the Treaty, and
subsequent action can be referred to only in as far
as it throws fight upon this question.
A.s has already been pointed out, the action
relied upon must be such as to show the understanding of both Parties. This is necessary to
the admissibility of such evidence at all. It will
be important, therefore, while following the course
of United States' action locally to have regard
concurrently to the diplomatic position existing
between the two countries from time to time, with
reference to the boundary.
From 1867 to 1877 the Government of Alaska
was committed to the military authorities.
During  this  period  the  Case  of the United
States reveals three visits to the head of Lynn
1 Canal by General Davis, one bysMr. Seward, and
one by General Howard.    There were also five or
six occasions when United States' revenue-cutters or vessels belonging to the navy visited this spot.
- There was no military station nearer than Fort
Wrangell, and on the occasions of the visits above
referred to, although there were the usual interviews with the Chiefs, nothing was done on land ;
and the Chilkat country remained closed to white
men till 1879.
In 1877 the duty of administering the Government of Alaska was transferred to the navy. In
1879, by means of the influence of certain Chilkat
Indians who had come to Sitka and there taken
service with the United States' Government,
Captain Beardslee succeeded in obtaining what
he himself describes as the removal by the Chiefs
of the Chilcat and Chilcoot tribes of all prohibition
to the white men from entering their territory
which prohibition had always been strictly main- U.S App. p. ;
tained.
It is to be noticed that Captain Beardslee
instructed the officer who was charged with this
mission that he was to inform the Indians that if
they did not keep their promises, no Chilcat
Indians would in future be allowed to land at
Sitka. His instructions expressly stated that lb., p. 368
there was " no governing power or code of laws in
existence in the Territory," and authorized him to
use his own discretion in all emergencies that lb., p. 365
might arise."
The Secretary of the Navy in acknowledging
the services rendered by Captain Beardslee, noted
the fact that "no law existed in Alaska." Captain lb., p. 364.
Beardslee's report states also that his position
with regard to the Indians would have been very
complicated had he made effort to control them in
accordance with the provisions of the revised
Statutes bearing upon Indian affairs ; for nearly
all of the sections presupposed " a verv different
condition of affairs than prevailed in Alaska." As
up to this date there were none but Indians in
Chilcat, it follows that there was no government
there under the laws of the United States.
By virtue of the permission obtained under
Captain Beardslee's auspices, a pioneer party of
miners entered the Chilcat country ; and a salmon
cannery, a trading store, and a Presbyterian
Mission were shortly afterwards established by
private persons. There was, however, no provision for acquiring title to land or even to mining
claims.
In 1884 an Act was passed providing Civil
Government    for   Alaska.     The   territory   was U.S. App, p. 495
lb., p. 494.
lb., p. 495.
App., p. 23.
lb., p. 31.
British App. I,
lb., p. 254.
created a land district, a land office being located
at Sitka. The United States' mineral laws were
extended to the district, subject to regulations
to be made by the Secretary of the Interior,
approved by' the President. These regulations
were made on the 28th July, 1885. The earliest
mineral location in the vicinity of Lynn Canal
was at Berner's Bay, and was made on the
30th May, 1885, and registered on the 3rd June,
1885. The Patent was not obtained till the
16th February, 1900. The date of the earliest
Patent disclosed in tbe United States' Appendix
is the 1st August, 1894.
Although Civil Government had been introduced in 1884, it is shown by the Reports of tbe
Governors from 1884 to 1902, extracts from which
are printed in the Appendix hereto, that it was
merely nominal. In 1888 tbe then Governor
wrote, "the Civil Government of Alaska is little,
if any, better than a burlesque, both in form
and substance." This no doubt applied, d fortiori,
to the district at the head of Lynn Canal, and on
the other inlets. Each successive report makes
the same complaints, dwelling especially upon the
withholding of land laws. The report for 1902
states that legislation extending the homestead
laws to Alaska bad passed in 1898. It is added,
however, that as these laws applied only to surveyed land, of which there was none, not a single
homestead entry had been allowed.
At this point it is convenient to refer to what
had passed between the Governments of Great
Britain and the United States with reference to
the Alaskan boundary up to the date of the
introduction of Civil Government. Reference
is made for this purpose to the Summary contained in Chapter II (pp. 28 and following) of the
British Case. It will be seen that the delimitation of the boundary had been suggested by
Sir Edward Thornton to Mr. Fish in 1872.
Between 1875 and lb78 there had been frequent
interchange of views with reference to the Stikine,
from which it clearly appears that the boundary
remained to be applied when the topography
should be ascertained. In 1884 Mr. Dall put
forward the theory that the mountain boundary
was inapplicable. In 1885 Mr. Bayard declared
the boundary shown on the maps to be conjectural
and theoretical, and in 1886 Mr. Phelps stated
that the Treaties really gave no boundary at all.
This was the position of affairs at the moment 78
when the action of the United States, relied upon
in the United States' Case as showing the understanding of the Parties, becomes the subject of
more frequent reference.
From 1884 Lieutenant John Stewart, under
Lieutenant-Commander Nichols, was on duty in
the waters of South-East Alaska. A letter from
Lieutenant Stewart, dated the 14th March, 1903, v-s- App., p. 401.
states that he was on duty on board the " Pinta "
from September, 1884, to October, 1886, and that
during these two years he was several times sent
to Dyea to preserve order between the Indians
and miners, with discretionary orders as to how to
act in case of trouble. He states there were a
few arrests of Indians for witchcraft and illicit
distilling, but these arrests are not mentioned in
the log of tbe " Pinta," and Lieutenant Stewart lb., p. 398.
states that he does not know whether or not they
were made by the order of the civil authorities.
The first arrest, followed by a trial, disclosed by
the United States' Appendix, was that of Klannot,
in 1887. The United States' Appendix prints a
number of memoranda of cases tried, arising on
Lynn Canal, the first of which is in 1887.    In lb., p. 407.
887   exclusive  use  of the  trail   over Chilcoot
Pass was still being claimed by tbe Indians.    A ib., p. 393.
Customs station was not established at Chilcat j^  p 447
till 1890.
Returning for a moment to the diplomatic correspondence, it is to be remembered that in 1887
the United States had notice, through Mr.
Dawson's letter referred to in a Message of the
President, that, according to the Canadian contention, the boundary crossed inlets, and tbe map
contained in the Report showed it as crossing
Lynn Canal near Berner's Bay.
Great Britain contends that the whole of the
facts must be looked at together, and that, even
assuming that those who represented the United
States in Alaska were taking the view that the
whole of Lynn Canal was in United States'
territory, still, inasmuch as it appears that as
between the two Governments the true location
of the boundary was treated as undetermined, the
view acted on locally becomes of no importance.
Such then was the position of affairs when, in
1892, the Parties, each with full knowledge of
the contentions of the other, agreed to have a
coincident or joint survey of the territory, with a
view to the ascertainment of the facts and data
necessary to  the permanent delimitation of the 79
From a despatch
of Secretary
of State,
Frelinghuyson,
to Mr. Romero,
July 10, 1884,
found in
boundary line in accordance with the spirit and
intent of the existing Treaties between Great.,
Britain and Russia, and between the United
States and Russia. This was a plain Agreement
that the boundary was then uncertain, and a
matter as to which there was cause of difference;
but there was then no suggestion that Articles III
and IY had been already interpreted by the
United States with the acquiescence of Great
Britain in such a way as to bring these inlets
within the line to be drawn in the absence of a
mountain boundary, or establish the principle that
no such boundary existed.
These were both questions to be settled by the
facts and data to be ascertained, and it is out of
the question now to argue that they had been
already settled by the conduct of the Parties, or
that they could be prejudiced by future action
taken while the inquiry was proceeding.
So far as Great Britain was concerned, there is
no reason to suppose that she was aware of any
of the occurrences in Lynn Canal now disclosed
by the Case for the United States. As to the
action relied upon ^between 1867 and 1880, consisting as it did merely of occasional visits by
officers in United States' vessels, leaving no
impression of government upon the country, and
not affecting any white man, it is in the nature of
things almost impossible that the British Government should have knowledge of it. But all these
things were within the knowledge of the United
States when they entered into the Convention of
1892.
The ignorance and absence of action by Great
Britain with respect to this territory cannot be
relied upon as showing acquiescence in the actions
of the United States. The question was at that
time of no practical importance, the territory was-
remote, and as the Treaty of 1825 stood as a
record of the rights of the Parties, there was
no obligation upon either nation to watch for any
dealings by the other with the subject-matter of
that arrangement.
No nation has expressed this general view more
plainly or forcibly than the United States, as the
following extracts show :—
" The Government must deny the implication conveyed
hi your note of the 12th June, and its accompaniments,
that the United States have tacitly acquiesced in th©
jurisdictional rights from time to time assumed by the
Mexican local authorities over the territory covered by
[769]
M 80
the islands in question. No case in point has arisen to Wharton's
call the attention of this Government to the question. °!tional La
The owners of the land were Mexican citizens, as it the United
appears, and then- acquiescence in the Mexican claims *^?on i? *•
of jurisdiction over their land, although natural under pp- S7-S9.
the circumstances, was wholly devoid of any confirma-
rpc
It
authorities at Mier developed
i the United States' bank of
does,  the
the
ownership of the island claimed to have been enlarged
by the accretion of United States' territory. The
rights of the United States in the premises remained,
perhaps, dormant, but without laches on then' part, and,
on the issue being revived those righto revive, too, in
all then force."
" The right of Great Britain to the territory had never .
been called in question by the United States before the *"*?"!
negotiations at Ghent in 1814, because it was then for the iJ
the first time made known to them that Great Britain
intended to set up such a claim. # And her right to the
possession of the Madawaska Settlement was not called
into question, or even alude«| to at Ghent, beeause it
had not been ascertained at that .time whether that
settlement lay east or Avest of the line drawn due north
from the source of the St, Croix.
'; That line was not surveyed till the years 1817-18 ;
and this is also the reason why the inhabitants of
Madawasta were included in the American Census of
the year 1820 and not in that of the year 1810.
" The remoteness of the territory* on the waters of
the Biver St. John from the American Settlements,
which did not extend far up the Penobscot, had
rendered other acts of jurisdiction o* the part of the
United States unnecessary prior to the war, which was
terminated by the Treaty of Ghent.    And their subse-
Netherlands of
usurpati
tory, is
ofNe
' Reference might also be made to the attitude
of the United States, with regard to the position
of the international boundary line near Pembina,
Minn., and also at the St. Clair Flats. App
Before leaving this part of the subject, reference
■must be made to. the two towns oi Dyea and
• Skagway. These sprang up in consequence of the
rush of miners to the Klondike in 1897, as stated in the British Case.    Nothing tha
t occurred at
that date could, however, affect the
question.   As
a matter of fact it appears from th
; deposition of
Mr. Wickett, printed in the Append
x hereto, that
Dyea has already fallen into decay
and Skagway
is rapidly declining.    In the case
of Dyea, the
population, which  during the rus
h was  12,000
souls, has dwindled to a single inc
ividual.    The
district at the head of Lynn Canal 1
las, in fact, no
importance as part of Alaska.    Its
whole value
lies in its connection with the Ca
nadian Yukon.
It is an
the Yu     University of British Columbia Library
DUE DATE
1  

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