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

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Array  The University of British Columbia Library
— _, ,—
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
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 Portland
Fourth Question—56th parallel: Point to be drawn from Head of Portland Channel, &c..
Fifth and Sixth Questions—The LisUre     ... ... ... ... ... 21,22
Seventh Question—What are the Mountains parallel to the Coast? ... ... ... 56
U.S. Negotiations with Russia for Renewal of Trading Privileges ... .. ... 65
Acts of Occupation—
I. Russian Occupation      ...           ...           ...           ... ... ... ... 66
H. United States'Occupation          ...            ...            ... ... ... ... 74 BOUNDARY BETWEEN THE DOMINION OF CANADA
- -%-r 4-* m^-w-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
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.
if in their opinion such extension becomes necessary Owing to special circumstances. The Tribunal
not having assembled, no application can be roade
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 such supplementary statement and evidence
as tbe justice of the case may caU for.
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 „, ... ... ... ... ... ...      2
Protest by His Majesty's Government, and
Reservation of Rights.
HIS MAJESTYS GOVERNMENT must accompany the delivery of this Counter-Case with
the foUowing 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 such supplementary statement and evidence
as the justice of the case may caU for.
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 questions in
dispute by the United States and Great
the question of the construction of the words of
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
in some cases not even passing between the
Parties, what was the arrangement in fact 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 meaning1 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
1 "searing,   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 accordingly directed—
and no arguments can be legitimate which are
not directed—to ascertaining by an examination
of the negotiations, and bv reference to the geo-
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 ;
Britain contrasted. U.S. Case, p. 62.
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
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
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 tbe 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 bad 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.
Li 1
v f I
i Canning's version of the Treaty.    This report is
quoted in the Case, with the following comments:—
I 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
lisikre 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 dis-
appear 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, immediatelv after the British App.
conclusion of the Treaty of 1825, in which, dealing rj.g. App., r.
with both that Instrument and the Treaty of
1824, he writes as follows :—
" 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. British App. I,
p. 3.
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
"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."
Agreement as to Point.
British Case,
p. 46.
U.S. Case, p.
Agreement that Geographical description
The first question to be answered by the
Tribunal is—
"What is intended as the point of commencement OF THE LINE ? "
The Case of the United States agrees with that
of Great Britain in the conclusion that Cape
Muzon, " which at the time 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 Une.
Thus it seems agreed that the geographical
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."
ill 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 Case,
against the astronomical description, as determina- P- 47,
tive of the point of commencement, or to discuss
further the reasons against the adoption of the
parallel as such point.
The second  question to be answered  by the
Tribunal is—
British Contention.
United States' Contention
"What channel is the Portland Channel?"
The British Case contends that the Portland British Case,
Channel is that which was described bv Van-
couver, 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, n(!n 1A.
J '   U.d. Lase, p. 104.
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
1 Observatory Inlet," instead of that comprised in
Vancouver's I Portland Canal," as demonstrated British Case,
d 54
in the British Case.
The process by which that lower part of Obser- Names "Portland Inlet" and
vatory Inlet came, at a later date, to be sometimes called " Portland Inlet " has been alluded lb. p. 59
to in the British Case. But it is denied by
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
Needless to add, that it is denied that any such"
subsequent    nomenclature,   if   established,    can
affect the question at issue.
Its effect as to Observatory Inlet.
Agreement that Vancouver Charts were
those used. 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.
United   States'  admission   that   "Portland      Jt maybe further observed that the same Case,
Canal" was the same as that now called 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:—
" Pearse" and " Portland" Canals.
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
United States' Documents as to  Tongass      For example, the British view gives Tongass
Maud indicating that it was Frontier; Jsland M j •      immediately to the north and west
North   and West Entrance  of   Portland J    & J
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] I
British Case,
pp. 66-68.
Effect of matter brought forward by
United States. Now, in 1835, after the expiration of the ten
years' trading privileges, the Russian-American
Company took steps to prevent the continuance
of trading by foreigners; and to that end, in
March 1835, despatched a vessel to Tongass
under the following instructions to the Commander :—
Russian-American Company in 1835.
" 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.
Shortly after the cession to the United States,
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 :—
United States' Establishment in 1867 of Port
Tongass on North side of Portland Canal.
U.S. App., p. 346.
lb., p. 347.
"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:— "For reasons appearing hereafter, I extended my
journey to the north side of Portland Channel—in our
new territory."
U.S. App., p. 349.      Further on he says :-
General Thomas's Report, 1869; Tongass
on Boundary.
U.S. App., p. 358.
School and Mission.
lb., p. 480.
• "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 m ost 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
The military post was accordingly established.
Again, in 1869, General Thomas was despatched
to the region, and on the 27th September, 1869,
reported as follows :—
" After touching at Victoria, Vancouver Island, for
coal, 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
boundary between Alaska and British Columbia.
Again, on the 15th September, 1898, the
Commissioner of Education reported to the Secretary of the Interior as follows :—
I In 1885 a school was opened at Fort Tongass, on
TIekhonsiti Harbor, in about latitude 54° 45' north
and longitude 130° 45' west."
[769] C 2
Sil 10
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 :—
"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, Avhere they remained for
several vears."
Thus Tongass Island and Fort are again identi-
fied 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 British Ann
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 R. 40th
Message on the Acquisition of Russian America, j^ iioc^o. 177
including Sumner's Speech, 1868. P- 265.
The United States' Case makes some miscellaneous citations, to which a few words may be
De Mofra's " Exploration of tbe Oregon Territory " (Paris, 1844), attempts some description of jjg_ ^p 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 :—
" 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 th
east toward Portland Canal, which it ascends."
U.S. App., p. 481.
Tonerass extreme South-eastern Point
of Alaska.
De Mofra's Work. Findlay's Directory.
U.S. App., p. 521.
lb., p. 522.
British Case,
p. 100.
App., p. 45.
U.S. Atlas.
U.S. Atlas, Nos. 7,
9, 12, 13. 14, 16,
17,18, 24
Secretary Bayard's Despatch.
British App.,
p. 249.
It does not appear that this in any way advances
the position of the United States.
Findlay's " Directory for the Navigation of the
Pacific Ocean" (London, 1851) speaks of Portland Canal as named from the noble family of
Bentinck (see Vancouver's work), and as diverging
from Point Ramsden, and refers to a principal
inlet and to Portland Canal as bearing thence
northerly and terminating 70 miles (Vancouv€r's
figure) from its entrance into Chatham Sound.
He speaks 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 water boundary fine, from the southernmost
point of Prince of Wales Island to the fifty-sixth degree
of north latitude, is not found uniformly located on the
charts of different modern geographers." 12
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.
The third question is—
U.S. Case,
p. 103.
" What course should the line take from
the point of commencement to the entrance
of Portland Channel?"
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,
the possessor of the rest of Prince of Wales
Island) is the most direct between the two
The United States concludes " that the line ran
thence " (from the point of commencement) " in
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 lb., p,
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.
British Case,
p. 64.
United States' Contention.
No difference of View as to Principle that
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.
Territorial Claims
of United States.
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
claims of the United States to territorial dominion
were substantially based on discovery, followed
$;; il
by continued occupation; that its claims of this U-S. App.,
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; lb.,p. 120.
and that thus  it did not claim any territorial ^•^* ^ase' 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 wulingness 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
Great Britain, the result of long-protracted, distinct, and independent negotiations, based on
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.
Inapplicability to Treaty of 1825.
lb., p. 36. 15
Examination of Argument of United States
on their Quotation from Count Nesselrode.
U.S. Case, p. 52.
As to tbe 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.
The United States' Case (carrying out the view
already objected to, that the terms of the Treaty
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."
lb., p. 53.
And the United States' Case avers that:-
.  -  : i
" This statement locates definitely and beyond
controversy the line of demarcation between the
British and Russian possessions until it reaches the
lb., p. 54.
The United States' Case, proceeding, uses these
words :—
" Mr. Canning, after conceding the southern boundary at 54° 40' |
lb., p. 67.
In 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 :—
I 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 fine 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
U; w
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
" 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 lb., p. 182.
-.•     i     j       m •       ,i     r       •     1 ,-,  British Case,   •
accordingly, describmg the line m terms quoted «. 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  tbe 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 tj g ^     « 65
of the objects of Russia in the negotiation, points
out that the object was to prevent Settlements
interfering with the fur trade, and proceeds as
follows:— 17
True Views.
U.S. Case, p. 66.
lb., p. 68.
I 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
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—
"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
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.
British Contention as to First Part. 1
II \
I !
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 p"
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
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 coincidence, 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,
pp. 69, 70.
United States' Contention.
U.S. 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 it>., 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 as to
Coast Mountains.
British Submission thereon. 19
United States' reliance on Mr. Middleton's
version of Mr. Canning's version of Treaty.
U.S. Case, p. 62.
lb., p. 63.
be different, depending on the conditions as to
mountains existent on the ground at or near the
part in question.
And this subject, therefore, has been in the
British Case reserved for the discussion of the
general questions of the boundary of the lisiere.
As to the course of the line, the United States
relies, as has been already pointed out in other
aspects, on Mr. Middleton's report of Mr.
Canning's verbal description of the third Article,
and avers that—
" The interpretation placed upon the 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
lisie're which it established. The actable features of
Mr. Canning's statement are, that the line from the head
of Portland Canal turns eastward to the range of
mountains "
The United States' Case adds :—
" 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."
British Contention thereon.
Pp.3, 4.
British Case,
pp. 61-63.
This attempt to interpret a Treaty, the terms
of which were not communicated to Mr. Middleton,
by means of the report of the impression created
in his mind by the verbal explanations given by
Mr. S. Canning, has been already dealt with in
the preliminary observations to this Counter-Case.
But it may be proper to point out its results in
the present aspect.
Indeed, the version by the United States oi
Mr. Middleton's version of Mr. Canning's version
of the Treaty affords, as will presently appear, an
object lesson of the danger attendant on the
attempt to construe documents by these methods.
Mr. Middleton's statement says that the line
follows the strait called, " Portland Passage," up
to the 56th degree. The natural import of that
sentence is that the canal extended to the 56th
degree; but, in fact, the canal does not reach, and,
on the information before the Negotiators it
appeared to be about 15 miles short of, the
Mr. Middleton's statement may indeed be
applicable to the other water boundary-lines
suggested alternatively in the British Case ; but Brit 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 turns U.S. Case, p. 63.
eastward to the range of mountains. "
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. t|£
It is submitted that, even if the Treaty be, as
applied to the facts, obscure, yet to construe it by
United States' version of Mr. Middleton's
British Conclusion. P. 4.
British Case,
p. 68.
these methods would be to interpret obscurum per
obscurius, and that the only true plan of construction 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."
Reference is made to the British Case for a
summary of the arguments by which the British
conclusion is supported.
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 latttude, following the crest of the mountains situated
parallel to the coast until its intersection
with the 141st degree of longitude west of
Greenwich, subject to the condition that if
such line should anywhere exceed the distance of 10 marine leagues from the ocean,
then the boundary between the british and
the Russian Territory should be formed by
a line parallel to the sinuosities of the
coast and distant therefrom not more than
10   marine  leagues,  was  it   the   intention
and meaning   of   said   convention of   1825
that there should remain in the exclusive
possession of russsia a continuous   fringe,
or   strip,  of   coast   on   the   mainland, not
exceeding    10    marine   leagues   in   width
separating the british possessions from the
bays,  ports, inlets, havens, and waters of
the Ocean, and   extending  from  the  said
point on the 56th degree of latitude north
to a point where such line of demarcation
should intersect the 141st degree of longitude west oe the meridian of greenwich ? " El
Sixth question—
lisiere which was to belong to Russia be
measured (l) 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?"
ifjf jrj
The paramount object which Russia had in view
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,
The "Barrier" theory.
, . .'!.«
mm lb., p. 29.
Position of Great Britain with relation to
the "Barrier" theory.
U.S. Case, p. 22. it is 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
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.
It will be convenient to state at once the
position taken by Great Britain with regard to
the contention above referred to.
Assuming that the Russian purpose was a
" 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
r M Hi
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
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
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
fact that in the Case for the United States it
seems to be assumed that the establishment of
a belt of territory would necessarily involve
drawing the line round the heads of the inlets, it
is thought necessary now to deal with the subject
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-
Territorial Wateis in International Law. 25
tbe breadth of the
siderable in proportion to
opening intra fauces terra*
The reason why, in spite of the general doctrine
of mare liberum, gulfs and bays up to a certain
size are treated as territorial waters, is, of
course, because the State which owns both headlands is in fact able to control the entrance. It
is a reason of the same kind which explains and
justifies territorial jurisdiction over a belt of water
adjoining even unindented coasts. " Videtur
autem imperium in  maris  portionem .... ac-
2 Exch. Div. 63 at
p. 73.
5 C. Rob. 385.
Maine's " International Law,"
p. 39.
Grotius, " de Jure
Belli .et Pacis,"
Bk. ii, c. 3, s. 13,
de Dom. Maris,
c. 2.
Systema dei
Principii del Dir.
Mar. i, 67-68,
referred to in Sir
^dgmSS6" The ffSl • • • • ratione territorii, quatenus ex terra
Qneen vJteyn," cogi possunt, qui in proxima maris parte ver-
santur," says Grotius. Bynkershoek enshrined
this principle in the famous dictum "Potestas
terrse 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
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
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
* Gf. 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 ait pars
maris, ut non cum terris comparata portio eaeum videri
■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
[769] E 2 HI
twice the marine league which is the limit of its
dominion oceanwards.
Thus Chancellor Kent wrote :— Kenf a
" Commentary on
"It is difficult to  draw any precise or determinate ^T^T^L
. . J * Law" (ed. Abdy,
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 their coasts an extent into the sea
beyond the reach of cannon shot."
Wheaton says :— Wheaton's
I " Elements "(ed.
1 The maritime territory of every State extends to g y*~ 055
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 :—
•' Tout ce que nous avons dit des parties de la mer Vattel " Droit des
voisines des c6tes " [i.e., that they " sont comprises dans Gens," livre i,
son territoire " (§ 288)] "se dit plus particulierement et a -^ap. xxm'
plus forte raison des rades, des baies et des detroits,
comme plus capables  encore d'etre occupes, et plus
importants a la surety du pays.    Mais je parle des baies
et detroits de peu d'etendue, 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," § 81.
1 Hautefeuille's
" Droits des
Nations Neutres,"
p. 240.
noms, tels que la Baie de Hudson et le Detroit de
Magellen, sur lesquels l'empire ne saurait s'etendre, et
moins encore la propriete. Une baie dont on pent
defendre l'entree pent £tre occupee et soumise aux lois
du Souverain; il importe qu'elle le soit, puisque le pays
pourrait etre beaucoup plus aisement insulte en cet
endroit que sur les cotes ouvertes aux vents et a
l'impetuosite des flots."
Hautefeuille says :—
"Les cotes de la mer ne presentent pas une^ligne
droite et reguliere; elles sont, au contraire, presque
toujours coupees de baies, de caps, etc; si le domaine
maritime devait toujours etre mesure de chacun des
points du rivage, il en resulterait de graves inconveniens.
Aussi est-on convenu, dans l'usage, de tirer une ligne
fictive d'un promontoire a l'autre, et prendre cette Hgne
pour point de depart de la portee du canon. Ce mode,
adopte par presque tons 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 reahte de grandes parties de mer,
completement ouvertes, et dont il est impossible de nier
1'assimilation complete avec la haute mer."
Similarly BluntschH 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-mUe-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 savs :—
Ortolan " On doit ranger sur la me"me hgne que les rades et
" Diplomatic de la   les ports les golfes et les baies et tous les enfoncements
Mer,    ome i, connus sous d'autres denominations, lorsque ces enfonce-
hvre n, ch. vni. '       ^
ments, formes par les   terres   d'un   meme   Etat,  ne
depassent pas en largeur la double portee du canon, ou
lorsque l'entree pent en etre gouvernee par l'artillerie,
ou qu'elle est defendue naturellement par les iles, par
des bancs ou par des roches."
" Droit International Codifie,"
§ 809, cf. § 302.
Puffendorf, " Law
of Nature and of
Nations," Bk. iv,
c. 5, § S, as quoted
by Twiss.
Khmer, "Droit
des Gens
Modernes de
l'Europe," § 130.
Shnilarly Kliiber treats as territorial "les
parties de l'ocean qui s'e'tendent dans le terri-
toire continental de l'Etat, si elles peuvent e*tre
dominees par le canon des deux bords, ou que p
l'entree seulement  puisse en etre deTendue  aux
vaisseaux."    And he instances the Zuyder Zee.
Finally, a very recent American writer, Taylor, Taylor's
I ,,        ,   .     (, j, ,,       . f. "International
may be referred to for a summary of the views ot put,iic Law,"
§ 229, p. 278,
text-writers.    He adds:
" Germany and France are inclined to limit their
claims to such bays, gulf's, 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."
published 1902.
See opinion of
U.S. Attorney
General, dated
May 14, 1793,
and letter of U.S.
Secretary of State
to the French
Minister, of May
15, 1793, printed
in " American
State Papers "
vol. i, pp. 72-76.
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
In 1793 the French frigate " l'Embuscade"
seized the British ship "Grange" in Delaware
Bay, and the United States demanded and
secured the release of the latter on the ground
that the capture was a violation of neutral waters.
Similarly, Chesapeake Bay has been consistently
claimed by the United States as a part of their
territorial waters. Both these bays are more
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 g™^1**"
France and Great Britain of the 2nd August, 1839, in Fisheries 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'
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.' "
ill 29
L.E., 2 Ex..
Div. 63.
Per Sir R.
Phillimore at
p. 71.
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.
" 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."
41 and 42 Vict,
c. 73.
Bell's Crown
Cases, p. 72
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."
In Cunningham's case, where the question was
whether an indictment would- he 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
States Cable Co. v.
Cable Co.,"
2 AC, 394.
Loc. cit., p. 419.
The only reported English case in which the
headlands question in its international aspect was
really discussed came before the Privy Council
in 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 :—
"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 of occupation; some suggesting, therefore, a
width of one cannon shot from each shore, or 6 miles ;
some an arbitrary distance of 10 miles."
ff r5j
Lord Blackburn then   goes on   to say that
Conception Bay would not satisfy any of these
& II
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
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 G* ajso the
Convention of 1818   provided  that the United Anglo-French
_. -i    n    t   •      ,      ,   i        i Convention of
States renounced all claim to take, dry, or cure 1839.
fish I 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 Casej    78
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 part j| YiL 1
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 of ^ass*      aws
exceed two marine leagues in width between its headlands, a straight line drawn from one headland to the
other is equivalent to the shore line." Q1
The appHcation 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 thev lead to other
waters not the territory of the Power owning
their shores.
Hall's International
Law (4th edition),
p. 164.
" In all cases," writes Mr. Hall, ""in which territorial
waters are so 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 the sea."
Great Britain's contention, therefore,  is that
assuming it was the purpose and effect of the
[769] F 32
United States and Russia.
Treaty to give to Russia a belt of " territory." it
doesnotfollowthat such belt might not 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 terri-
torial 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 and Treaty between the
in the Case of the United States, it is sought
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 54° 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 CO
UJ3. App. p. 47
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 bv 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 Con-
vention of 1824, and the express provisions of
Article IV giving reciprocal access for trade and
fisherv 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.
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.
[769] F 2 34
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 rjg. App. p. gjr,
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
<M 35
U.S. App,
pp. 71 and 72.
lb., p. 83.
lb., p. 73.
latitude 55° as the southern limit of Russia, if;
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° aud southwards as low down as 49°, and that
she would be chiefly tenacious of the right which
J o
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.
On the 9th February, 1824, Mr. Middleton duly
submitted to the Russian Government the draft
forwarded to him by Mr. Adams, and, on the
20th February, received a Contre - Projet. In
this Contre - Projet, Articles II and III ran as
I 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 Russia, from, the
line of demarcation pointed out in the article 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 demarcation.
"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 be
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
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 far
Russia or claim far themselves " possessions '*
except where there were actual establishments.
S:- 36
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
great importance to the point that the termination of the ten years' privilege should not be
couched in 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.
Tvrote 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, cease after ten years, unless
renewed by mutual consent.
It is submitted that, for the reasons above
given, the course of the negotiations and the
terms of the Convention resulting therefrom
between the United States' and Russia do not
suggest the probability 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., p. 236.
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" 37
U.S., App, 246.
lb., p. 250.
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."
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 and
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 September, 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 Commander, or by frequenting the interior seas, gulfe,
harbours, and creeks on that coast at any point
north of latitude 54° 40'.
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.
I: fi
The IVth 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 TV 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  Vll of the British
Treaty, is that it deals with navigation for trade
and fishery, that is to say, for purposes involving
•acts which prima 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
As already pointed out, the Case of the United
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 com-
municating among themselves, would not appear
to have much importance as affording a clue to
the interpretation of a Convention arrived at after
long negotiations not even commenced at the date
when tbe 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,
Phe Negotiations between Great Britain
and Russia. 39
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 north 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
British App. I,
p. 55.
lb, p. 62
lb., p 67.
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 neigh-
bourhood 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.
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
By Mr. Canning's despatch of the 15th January,
1824, Sir Charles Bagot was authorized, if it were
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 negotiations. 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 ■W
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 Pj
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.
"As a compensation" [en revanche], "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 41
British App I,
p. 77.
lb., pi 7a
the principle of the lisiere.    In his despatch to
Count Lieven of the 17th April,1824, he writes :—
| As for us we restrict our demands to a small strip
(lisidre) 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—
" 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 " [dibouches];
" 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 fine farther
to the south and east, and that this must have
[769] G 2
Hi 42
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 lisiere, 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 as the word
has been used in this controversy.
I 43
British App. I,
p. 71.
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
" The motive which has prompted the adoption of
the principle of mutual conveniences and the first
advantage of this principle is to prevent the respective
Establishments on the northwest coast from injuring
each other and coining 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."
lb., p. 74.
The language of their final decision is to the
same effect:—
" 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.
«p 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 ^"
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 con
o «
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—
1 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
elf 45
British App. I,
p. 28.
lb., p. 31.
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 thev 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 the 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.
In his despatch of the 27th September, 1822,
Mr. Canning pointed out to the Duke of Wellington, 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.
In the Confidential Memorandum which the
Russian Representatives handed to the Duke of
Wellington  at Verona  on  the 11th November,
I 5sK
18 2*2, 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 ib., p. 53.
Bagot 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 lb., 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 :—
I 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
could not be demanded as a right by any other Power."
m British App. I,
pp. 59-63.
lb, p. 62.
lb., p. 81.
lb., p. 84.
lb., pp. 96-100.
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.
In his despatch to Sir Charles Bagot of the
15th January, 1824, preliminary to the actual
opening of negotiations, Mr. Canning observes
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.
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.
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
4th 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
ml IP
put forward in the Ukase as withdrawn, Count
Nesselrode writes as follows:—
" Quand on compare ces deux demandes qui se British App. I,
suivent de si pres et qui s'expliquent et se completent
pour ainsi dire l'une par l'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 montres
pr&ts 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. il3.
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 contem-'
plated, 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 submitted, 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
Arguments based on Article VIL
. 49
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 in
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 con-
tended 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 wThole 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
mi m
Behring Sea
Appendix to
British Case,
Vol. Ill,
pp. 497-506.
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 VUth Article is practically a repetition of the
IVth Article in the Treaty between Russia and the
United States, and the privilege of fishing and trading
with the natives is limited to the coast mentioned in
Article HI, identically the same fine 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 VTI of the 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 HI 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 IH.''
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 IH," 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 of
whose provisions have led to the principal contention ^bi+ration
1893," Vol/ll. Case of the
United States,
Appendix, Vol. I,
pp. 273-5.
between the United  States and Great Britain, is as
' " 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 HI for the puiposes 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
" Denying this construction, Lord Salisbury says:—
"' I must further dissent from Mr. Blame's interpretation of Article VH 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 IH " 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. And, as bearing on
this point, it will be noticed that Article VT, which has
a more restricted bearing, speaks only of " the subjects
of His Britannic Majesty" and of "the fine of coast
described " in Article III.'
" It is curious to note the embarrassing intricacies of
his Lordship's language and the erroneous assumption
upon which his argument is based. He admits that the
privileges granted in the Vlth Article to the subjects
•of Great Britain are limited to ? the coast described in
Article IH of the Treaty.' But when he reaches the
Vnth Article, where the privileges granted are limited
to ' the coast mentioned in Article IH of the Treaty,'
his Lordship maintains that the two references do not
mean the same coast at all. The coast described in
Article HI and the coast mentioned in Article III are,
therefore, in his Lordship's judgment, entirely different.
M  !    i
■w   "
!Pr ■
ft ■    1
■m ?
rat !
If J.
5E I:
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 ni' stretches to the straits of Behring.
" The Illrd 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 fine 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 fine 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 line of
demarcation between possessions on 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 tw© 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 Illrd,
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 termed the territorial,
dispute, it appears from an examination of the correspondence and Treaties that the southern boundary of
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.
" 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,
p. 105.
Count Nesselrode, in his despatch of the 4th
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 Vn 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
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 VH, taken in con-
m *
e 54
nection with the inland boundary of the lisiere,
and 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
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.
A   A
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 Boundarv. oo
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 that 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.
W 1
ml j
Hia- r
Construing the Words of the Treaty
The arguments put forward upon the negotiations 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 1 Ocean." Unless it can be shown that all
the waters of the inlets, and even the 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
If f
18 • I
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  " in  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—
namely, 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.
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 T.    ' 83
indicated   on   the  map,   and   referred   to   and British App. n,
set forth  in  the declaration  and statement of ^faP £°*37-
ttt    i-i    T7- • t> - - i    r* ■    . British App. I,
Mr.  W. F.  King, British Commissioner on the p. 3117, 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. 88, after the
paragraph ending " as well as against her." ".'; I.
British Case,
p. 38, et seq.
lb., pp. 42, 43,
U.S. Case,
pp. 85, 86.
The British Case sets up the Convention ot
1892, and the subsequent International Survey,
and the later action. But in view of the attitude
taken in the 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 lisiere 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."
British App. I,
p. 269.
U.S. Apjx^ and in the Appendix are found the several state-
ments on which this view is said to be established.
U.S. Case, p. 106.      fp^g 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 1892, and not in statements of
opinion such as are put forward by the United
By the Convention of 1892 it was agreed that
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 delimitation 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
establish the boundary-line in question." The
Commissioners were appointed, performed their
work, and presented their Joint Report. gigl
[769] I 2
lb., p. 282.
3 5S
They reported that-
" With a view to the performance of the duty imposed upon the Commissioners under the Convention of
ascertaining the facts and data necessary to the permanent delimitation of the boundary line,"
they had agreed upon a plan of joint survey; they
" The United States Commissioner undertook to
make surveys of as precise a nature as practicable of
the principal water courses which traverse the coast
strip ; and the British Commissioner undertook to make
a photo-topographical survey of the mountainous
regions lying between these various water courses
They further reported as follows :—
" The results of all these surveys are exhibited in the
accompanying Maps, namely, sheets Nos. 1 to 24, made
on a scale of t 60g00 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."
British App I,
pp. 284, 285
And they reported their agreement as to the
mode of interpreting any difference which might
occur between maps dealing with the same
They further reported as follows :— lb.,
" 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
' filhng 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
"We conceive it unnecessary for us, having prepared Maps showing so much detail, to enter into a
lengthy description of the topography;"
and  they added some remarks on   the timber
285 59
British App. IH,
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 their assembling in London—a course
also contemplated by the United States.
But in view 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 neces-
sary, 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 agree-
inent that, as soon as possible after their report,
the High Contracting Parties would proceed to
consider and establish the boundary - line. in
2. By the form of the Protocol of May 1898 of the
Conferees for Great Britain and the United States
preliminary to the meeting of the International
Joint High Commission of 1898-99, which Protocol declares that—
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."
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—
58. I
V  1
MP 1.
I   -
| The Convention with the United States  Government of 1892 provided for the appointment of a Joint
1 il
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 farther 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 p"
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
" III. The Delimitation and Establishment of the Alaska
" 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 any 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 tbe method finally
devised for executing the stipulation of the Con- 61
U.S. App., p. 529.
lb., p. 529.
British App. 1,
p. 307 et seq.
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-Hne 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 :—
" 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 the existence of a mountain
range in Southeast Alaska corresponding to that contemplated as the line of demarcation by Articles 3
and 4 of the treaty of 1825 ? "
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.
The principle of the contour maps is to indicate
elevations by lines, each of which represents an
increasing elevation of 250 feet. Thus, bv finding
the number of lines at any point, and multiplying
by 250, the height of that point is ascertained ;
and by extending these observations to the form
of  the   contour   line   under   examination,   the
i; l
in i
character  and   trend of the  mountains is made
Again, the principle of the phototopographic
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—
" There does not exist any defined or continued
mountain range or chain running generally parallel to
tbe coast, and situated anywhere oceanward from a fine
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 fine which proceeds round the bays and
inlets and not more than ten marine leagues therefrom."
Again, Mr. Ogden says :— lb., 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
56th degree of latitude until it intersects in the northern
direction with the 141st degree of longitude."
U.S. App., p. 530.
Again, Mr. Hodgkins says :
lb., p. 534.
«It is my belief that there is no such continuous
chain of mountains within ten marine leagues of the
■ 63
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. 535.      Again, Mr. Baldwin says
" There does not exist anywhere within those regions"
(those described by him between Ghilkoot Pass and Ishoot
River) " within ten marine leasrues from the coast, any-
thing like a defined mountain range extending in a
general direction north and south parallel with the
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."
lb., p. 537.
He proceeds to negative the existence within
anv 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 individuahzed mountain chain or range."
Again, Mr. Flemer says:—
,!:;■ I
3! I
'si I
"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
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
ir -.II-."*.-.
submitted, correct definitions, and thus the denials
can prove nothing.
App., pp. 57-62.
The correct definitions are, it is submitted, such
as appear in the British Case and in the British
But the grounds on which 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
O J. J
travellers passing along the usual routes to the
north, from Puget Sound and British Columbia.
Among   these   travellers   are   many,   including
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 |$| PP* 52» ®s
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
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. 65
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.
;i I   f
3 1.
•j »
K 2 66
A large part of the Case for the United States,
and of the evidence contained in the Appendix
thereto, relates to the action of Russia, and subsequently of the United States in the region
through which the boundary runs.
This matter is, of course, introduced pursuant
to the provision at the end of Article III of the
Treaty under which this Tribunal sits. That
clause requires the Tribunal to—
Russian occupation.
='■;;. =iy
"Take into consideration any action of the several British App.I,
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 hmits 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
"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 contem-
plated, such as the alleged Russian visits before
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 posses-^
sion 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. 67
The understanding revealed must, moreover, be
as to the limits of their several territorial jurisdictions under and by virtue of the provisions of
the Treaties. It is, of course, admitted by Great
Britain that Russia, and subsequently the United
States, had territorial jurisdiction along all the
face of the coasts, and the dispute is only as to
the upper portion of the inlets. All action on the
face of the coast or at the mouths of the inlets is,
therefore, immaterial.
In dealing with this part of the Case for the
United States, it is necessary on behalf of Great
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 for 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 fol-
lowing 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.
i I-
I e
The first act of Russia after the Treaty is stated U.S. Case, p. 72.
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
bad 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 :
(1) 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
ex-tracts   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
•j'hS 69
U.S. App., p. 254. having " his principal residence on the coast to»
the south-east, much farther than the great river
lb., p. 256. Tschitiskat," and by Dr. Krause as " belonging
on the great river Tschilkat." This Chief is said
to have been presented with the Russian coat-of-
arms in copper, and the portraits of some
members of the Imperial family, as a token of his
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 Bav. One account, moreover,
states that this Chief came from far beyond the
river referred to. The 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 then*, 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.
lb., p. 257. 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, " 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
lb., p. 235. 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
With reference to these allegations as to the
action of Russia in 1788 and 1795, it is to be
remembered that in the controversy aroused by
the Ukase of 1821 the United States consistently
■'! p.
if ii
i 1ft
declared that Russia had no settlement on tbe
continent south of the 59th degree of north lati-
tude, 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
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
have 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 the
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 the
Russians in the inlets before 1835 would be
immaterial, because, under Article VII 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 rj.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
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, 71
US. App., p. 267
lb., p. 276.
lb., p. 273.
lb., p. 274.
lb., p. 291.
lb., p. 303.
lb., p. 312.
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 wTas 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 schooner,
then in construction, to trade in Chilkat under
2nd Lieutenant Kuzuetsof. The extract from
this despatch, printed in the Appendix to the
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 tbe Board of Directors, the
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
Russians had discovered the River Taku. Tbe
same letter shows that in 1835 it was intended to
visit Chilkat.
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
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.
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 Kolosh 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 k1
trade with Kolosh," and in all tbe 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 Fair weather,
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 U.S. Case,
pp. 78-80.
territory should be preserved on the shores of the
continent of sufficient width to act as a barrier to
keep the Hudson's Bay Company from interfering
with their trade in furs with natives inhabiting
those shores. In the view of Great Britain the
illustration afforded by the incident is of the
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.
L 2 m
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 inter-
views 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. 365.
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 very 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
In 1884 an Act was passed providing Civil
Government   for   Alaska.     The   territory   was
:;■ m
App., pp. 19-36.
App., p. 23.
created a land district, a land office being located
U.S. App, p. 493.   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
lb., p. 494. i6th February, 1900.    The date of the earliest
lb., p. 495. Patent disclosed in the United States' Appendix
is the 1st August, 1894.
Although Civil Government had been introduced in 1884, it is shown by the Reports of the
Governors from 1884 to 1902, extracts from which
are printed in the Appendix hereto, that it was
merely nominal. In 1888 the 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, a 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. Tbe report for 1902
states that legislation extending the homestead
laws to Alaska had 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 Is78 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 inappHcable. 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
lb., p. 34.
lb., p. 35.
British App.
p. 248.
lb., p. 249.
lb., p. 254
I, m
when the action of the United States, relied upon
in the United States' Case as showing the under-
standing 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, u-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 the " 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 the Indians.    A ib., p. 393.
Customs station was not established at Chilcat jb 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 the 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,
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 IH
and IV 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
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 tbe 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
in your note of the 12th June, and its accompaniments,
that the United States have tacitly acquiesced in the
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
call the attention, of this Government to the question.
The owners of the land were Mexican citizens, as it
appears, and their acquiescence in the Mexican claims
of jurisdiction over their land, although natural under
the circumstances, was wholly devoid of any confirmatory power as against the rights of the United States
under the Treaty. It was not until very recently, when
the action of the Mexican authorities at Mier developed
a wholly untenable claim to jurisdiction over a broad
tract of low-lying land on the United States' bank of
"the river, which land it was pretended had at some
time become united with one of the islands through the
filling up of the waterway between them, that a case
calling for investigation and action was presented,
involving also, as it does, the question of the true
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 their part, and,
on the issue being revived those rights revive, too, in
all their 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 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 alluded to at Ghent, because- it
had not been ascertained at that time whether that
settlement lay east or west of the line drawn due north
from the source of the St. Croix.
'■ That line was not surveyed till the years 1817-18 ;
%,' *t
and this is also the reason why the inhabitants of
Madawaska 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 River St. John from the American Settlements,
which did not extend far up the Penobscot, had
rendered other acts of jurisdiction on the part of the
United States unnecessary grior to the war, which was
terminated by the Treaty of Ghent. And their subsequent, forbearance since that question has become a
subject for discussion, notwithstanding the continued
usurpation of New Brunswick over the contested territory, is very improperly converted into an assertion of
exclusive and undisturbed possession by-Great Britain."
Wharton's Digest
of the International Law of
the United States,
section 30, 2nd
edition, Vol. I,
pp. 87-89.
From the definitive
statement of the
Uaited States on
the reference to
the King of the
Netherlands of
the Maine
Boundary, p. 59.
Reference might also be made to the attitude
of the United States, with regard to the position
of the international boundary line near Pern" ma,
Minn., and also at the St Clair Flats.
Before leaving this part of the subject reference
must be made to the two towns of Dyea and
Skagway. These- sprang up in consequence of the
rush of miners to the Klondike m 1897, as stated
App., p. 85. 81
in the British Case. Nothing that occurred at
that date could, however, affect the question. As
a matter of fact it appears from the deposition of
Mr. Wickett, printed in the Appendix hereto, that
Dyea has already fallen into decay and Skagway
is rapidly declining. In the case of Dyea, the
population, which during the rush was 12,000
souls, has dwindled to a single individual. The
district at the head of Lynn Canal has, in fact, no
importance as part of Alaska. Its whole value
lies in its connection with the Canadian Yukon.
It is an economic unit with British Columbia and
the Yukon Territory.


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