CONTENTdm
British Columbia Historical Books Collection
Proceedings of the Alaskan Boundary Tribunal
Alaskan Boundary Tribunal
Great Britain
United States
"([United States] 58th Cong., 2d sess. Senate. Doc no. 162) Binder's titles v. 1: Report of the agent of the United States [John W. Foster]; protocols, decision, and opinions ... case of the United States. - v. 2. Appendix to the case of the United States. - v. 3. Case of Great Britain, and appendix. - v. 4. Counter case of the United States, and appendix; counter case of Great Britain, and appendix. - v. 5. Printed argument of the United States; printed argument of Great Britain; correspondence since the treaty of January 24,1903; extracts from British Parliamentary papers, 1904.v. 6. Minutes of proceedings at London; oral argument of Sir Robert Finlay, David J. Watson. -v. 7. Minutes of proceedings at London; oral argument of Christopher Robinson, Hannis Taylor, Sir Edward Carson, J acob M. Dickinson." -- Lowther, B. J., & Laing, M. (1968). A bibliography of British Columbia: Laying the foundations, 1849-1899. Victoria, BC: University of Victoria, p. 163. "(U .S. 58th Cong., 2nd sess. Senate. Doc. 162; 4600-05). Contents: v. l, pt.1. Final report of the Honorable John W. Foster, agent of the United States. Protocols of the proceedings of the tribunal, decision of the tribunal. and opinions of the members of the tribunal. pt.II. The case of the United States before the tribunal [also published separately (see no. 26)]- v.2. Appendix to the case of the United States [also published with The case of the United States (see no. 26)]- v.3. pt.1. Case presented on the part of the government of His Britannic Majesty to the tribunal [see no. 1586] pt.II. Appendix to the case of His Majesty's government [see no. 1583]- v4. pt.I. The counter-case of the United States before the tribunal [also published separately (see no. 27)] pt.II. Appendix to the counter-case of the United States [also published with The counter case of the United States (see no. 27)] pt.III. Counter-case presented on the part of the government of His Britannic Majesty to the tribunal [see no. 1587] pt.IV. Appendix to the countercase of His Majesty's government [see no. 1584]- v.5. pt.1. The argument of the United States [also published separately (see no. 25)] pt.II. Argument presented on the part of the government of His Britannic Majesty [see no. 1585] pt.III. Correspondence between the governments of the United States and Great Britain since the ratification of the treaty of January 24, 1903. pt.IV. Extracts from correspondence printed in British parliamentary papers, 1904, respecting the Alaskan boundary.- v.6-7. Minutes of proceedings of the Alaskan bounrJary tribuna\.- Atlas. v.I. United States atlas; maps and charts accompanying the case and counter-case of the United States. v.2. British atlas; maps and charts accompanying the case of Great Britain. v.3. Atlas of award; twenty-five sectional maps and index map showing the line fixed by the tribunal." -- Edwards, M. H., Lort, J. C. R., & Carmichael, W. J. (1975). A bibliography of British Columbia: Years of growth, 1900-1950. Victoria, BC: University of Victoria, p. 3.
vi, 204, 18, 128, 67, 27 pages : maps ; 48 cm
application/pdf
58th Congress, %d Session. SENATE Document No. 162. ALASKAN BOUNDARY TRIBUNAL. PROCEEDINGS OP THE ALASKAN BOUNDARY TRIBUNAL, CONVENED AT LONDON, UNDER THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN, CONCLUDED AT WASHINGTON JANUARY 24, 1903, FOR THE SETTLEMENT OF QUESTIONS BETWEEN THE TWO COUNTRIES WITH RESPECT TO THE BOUNDARY LINE BETWEEN THE TERRITORY OF ALASKA AND THE BRITISH POSSESSIONS IN NORTH AMERICA. CONTENTS. FIRST. Page. Statement 3 SECOND. Rules of construction and interpretation ........ 6 THIRD. Evidence to be considered f —.. 11 FOURTH. Territorial waters in international law: Distinction between the outer and inner coast line 14 Distinction between the coast line of physical geography for the purposes of boundary and the political coast line for the purposes of jurisdiction 16 The political coast line not involved in this case 17 FIFTH. First question submitted for decision 19 SIXTH. Second question submitted for decision: The intention of the negotiators 19 Baron Tuyll's letter 27 Physical geography of Portland Channel 29 Evidence of cartographers 33 Maps and charts published since 1825 37 Presumption to be overcome by Great Britain that the thalweg is the boundary 39 The thalweg as the boundary of coterminous states 41 Southern line of Russia as denned in the treaty of 1824 between Russia and the United States 45 Identity of Portland Channel as understood by the parties after the treaty . 49 Tongas Island station 52 Alleged admission in the United States Case 53 seventh. Third question submitted for decision 54 EIGHTH. Fourth question submitted for decision 56 hi IV contents. NINTH. Page. Fifth, sixth, and seventh questions submitted for decision 61 The "coast" referred to in the treaty, to which the mountains were to be parallel, and to the sinuosities of which, if the mountains failed, the line was to be drawn parallel, was the coast of all the interior waters, such as Taku Inlet and Lynn Channel 65 The meaning of the word "cote" as understood by the parties prior to the negotiation of the treaty of 1825 66 The meaning of "coast" as denned in the ukase of September 4,1821.. 66 The understanding of the United States and Great Britain that the ukase applied to the entire coast | 68 Claim of Great Britain to northwest coast 70 Claim of United States to northwest coast 71 Beginning of the negotiations ; — 72 Negotiations of the treaty of 1825 did not proceed upon strict right, but upon considerations of mutual expediency 72 The motives which actuated the parties were the advantages to be secured from controlling the rights of fishing and hunting and of trade with the natives along the coast, and the question of territorial sovereignty was directed toward securing these rights and not merely dominion over an extent of land 73 Certainty was desired in the treaty and the prevention of any disagreeable discussion in the future 75 The meaning of -' cdte " as shown by the negotiations 76 The first suggestion as to a line 76 The second suggestion as to a line f. 76 The third suggestion as to a line 77 The first formal proposal of Sir Charles Bagot 78 Contre-projet by Russia 78 Amended proposal by Sir Charles Bagot 79 Final proposition of Sir Charles Bagot 82 Final decision of Russian plenipotentiaries 82 Analysis as to the use of the word "coast" in the draft convention submitted by Mr. Canning 85 The final negotiations 92 The meaning of '' coast'' in Article VII of the treaty of 1825 94 Conclusion of the negotiations 95 Crete des montagnes 99 The contention of the United States is that the negotiations did not mean "the mountains next the sea," but mountains other than those next the sea, and which constituted a chain separated from the sea by intervening mountains which they intentionally rejected, and that they did not contemplate individual mountains whose summits were to be connected together, or even short ranges, which have a trend across the line of coast of such waters as Taku Inlet and Lynn Canal, but a generally continuous range of mountains supposed to begin near the head of Portland Canal and to continue with a general trend parallel with the coast, around the head of Lynn Canal, and that the assumption of the existence of such a range and the agreement in refer- , ence to it was subordinate to and in harmony with the fundamental postulate that "coast" meant all of what could be included by that term and not anything less, to wit, all of the northwest coast of America north of 54° 4CK over which Russia had claimed jurisdiction.. 99 CONTENTS. Fifth, sixth, and seventh questions—Continued. Page. Crete des montagnes—Continued. The maps accessible to the negotiators showed a well-defined mountain chain - 101 The character and identity of the mountains as shown by the negotiations and treaty 106 The evidence of the maps issued after the treaty as to what mountains were meant by the treaty - 120 The Stikine River: Dryad affair 123 • Surveys of the Stikine 125 Hunter survey and Peter Martin affair 129 Such mountains as those contemplated by the treaty do not exist within ten marine leagues of the ocean 134 It was never the intention under the treaty to draw the line along the summits of disconnected peaks, and it is impossible, on the British theory, for any tribunal to determine which of such peaks shall be chosen 135 From the treaty of 1825 to the treaty of 1867, the understanding manifested by Great Britain, Russia, and the civilized world at large was, that it was "the intention and meaning of said convention of 1825 that there should remain in the exclusive possession of Russia a continuous fringe or strip of coast on the mainland, not exceeding ten marine leagues in width, separating the British possessions from the bays, ports, inlets, havens, and waters on the ocean and extending from the said point on the 56th degree of latitude north to a point where such line of demarcation should intersect the 141st degree of longitude west of the meridian of Greenwich" 139 Assertion of claim by Russia by its official maps to all interior waters and their coasts 139 The official maps of Great Britain and Canada showed their understanding that Russia owned all of the interior waters and coasts now in controversy 141 The understanding as shown by the maps of Russia and of Great Britain was of general acceptation by all cartographers, and the declarations of the official maps of Great Britain were continued with the knowledge of this understanding 142 Russia showed by her occupation and exercise of sovereignty over the waters and coasts in dispute that she claimed them as within her territory, and Great Britain never, down to the sale by Russia to the United States, attempted to assert any jurisdiction over such waters or coast or to occupy them in any way or to question the sovereignty of Russia over them 144 From 1840 to the American purchase the Hudson's Bay Company held all of the waters and coasts in dispute for Russia. This holding was begun and continued with the knowledge and consent of Great Britain, which thereby indicated that she understood that under the treaty of 1825 they were to belong to Russia 146 The United States purchased Alaska with the understanding on its part and with a knowledge of the understanding indicated by the conduct of Great Britain that Russia under the treaty of 1825 owned all of the waters and coasts now in dispute, and has held them with that understanding without any protest from Great Britain down to the beginning of the present controversy 150 The American purchase 150 American occupation 151 VI CONTENTS. Fifth, sixth, and seventh questions—Continued. Page. American occupation—Continued. By Army and Navy .. 151 Under revenue officers 156 Under civil government 157 Schools and missions 159 Reports of governors of Alaska 159 United States census 161 Post-office 162 United States maps 162 British and Canadian maps after 1867 162 The Dawson map of 1887 163 Nothing was done on the part of Great Britain until 1898 indicating a claim contrary to the understanding which she had prior to that time manifested that Russia, under the treaty of 1825, was owner of all the waters and coasts now in dispute and that the United States had, under the treaty of 1867, acquired all of them from Russia, and nothing has ever been done by the United States indicating a contrary understanding 165 Propositions to survey 165 Negotiations for delimitation of boundary begun in November, 1872 166 Survey of Stikine River by Hunter and adoption of provisional line in 1878 173 The Dall-Dawson conference, 1888 175 Attention called in 1887 to Schwatka's reconnaissance of 1883 186 White Pass Trail, 1888 1 187 So-called protest of 1891 190 The convention of July 22, 1892 192 The instructions of Dr. Mendenhall, 1893 193 Dyea and Skagway, and alleged protest 196 Acquiescence 201 ARGUMENT OF THE UNITED STATES. FIRST STATEMENT. In 1799 the Czar of Russia issued an Ukase granting to the Russian American Company certain privileges, and jurisdiction over the northwest coast of America, down to the 55th degree of north latitude. On September 4, 1821, an Ukase was issued by which Russia claimed exclusive sovereignty over the northwest coast of America down to the 51st degree of north latitude, and also over one hundred miles of the Pacific Ocean, which washed the islands, and the mainland of the northwestern coasts of America. This Ukase was intended to protect and enlarge the privileges of the Russian American Company, which had been granted by the Ukase of 1799, the chief of which was the exclusive right of hunting and trading for the pelts of animals in that territory. The Ukase of September 4, 1821 extended the limits to the 51st degree, and in addition, prohibited the navigation of the Pacific Ocean to the subjects of all other nations, within one hundred miles of such islands and coasts. Protests were promptly made by the United States and Great Britain. Negotiations were begun in 1821, which terminated in a treaty between Russia and the United States in 1824 and a treaty between Russia and Great Britain in 1825. The treaty of 1825 between Great Britain and Russia, among other things, defined a line separating the Russian from the British possessions as follows: III. La ligne de demarcation entre les Possessions des Hautes Parties Contractantes sur la c6te du continent et les lies de l'Amerique Nord-ouest, sera traced ainsi qu'il suit: A partir du point le plus meridional de Pile dite Prince of Wales, lequel Point se trouve sous la parall&le du 54me degr6 40 minutes de latitude Nord, et entre le 131me 3 4 AL4SKAN BOUNDARY TRIBUNAL. et le 133me degre* de longitude Ouest (Meridien de Greenwich), la dite ligne remon- tera au Nord de long de la passe dite Portland Channel, jusqu'au Point de la terre ferme ou elle atteint le 56me degre* de latitude Nord: de ce dernier point la ligne de demarcation suivra la crete des montagnes situ^es parallelement a la C6te, jusqu'au point d'intersection du 141me degre* de longitude Ouest (m£me Meridien); et finale- ment, du dit point d'intersection, la me^me ligne metidienne du 141me degre for- mera, dans son prolongement jusqu'a la mer Glaciale, la limite entre les Possessions Russes et Britanniques sur le Continent de PAmerique Nord-ouest. IV. II est entendu, par rapport a la ligne de demarcation determined dans 1'Article pr6c6dent: 1. Que Pile dite Prince of Wales appartiendra toute entire a la Russie. 2. Que partout ou la cr6te des montagnes qui s'etendent dans une direction paral- lele a la C6te depuis le 56me degre de latitude Nord au point d'intersetion du 141me degr6 de longitude Ouest, se trouverait a la distance de plus de dix lieues marines de POc6an, la limite entre les Possessions Britanniques et la lisiere de C6te mentionnee ci-dessus comme devant appartenir a, la Russie, sera formed par une ligne parallele aux sinuosites de la C6te, et qui ne pourra jamais en etre eloigned que de dix lieues marines. In 1867 a treaty was entered into between the United States and Russia, by which the United States purchased from Russia all of its possessions upon the Northwest coast of America, to which was given the name of Alaska. In this treaty the cession by Russia was described in the identical language used in the treaty of 1825 between Russia and Great Britain, to define the boundary line between their respective territories. The country from the 56th parallel to Mount St. Elias, through which the boundary line was to be drawn, had not been explored, but it was known to be mostly barren, and composed generally of snow capped mountains with many large glaciers intervening. This strip of territory was washed by the Pacific Ocean, which indented the coast with many bays and. inlets, in which the tide ebbed and flowed. The boundary line was never surveyed and marked by Great Britain and Russia. Russia claimed and exercised sovereignty over all of the interior waters and their coasts. Great Britain never questioned such claim or jurisdiction, and never in any way indicated that she claimed any rights to anj^ of them. The United States in 1867, entered into possession of, and has exercised jurisdiction over, all of these interior waters and coasts to the present time. Propositions have been made by Great Britain at different times, prior to 1898, to survey and determine the line in the interior, but these propositions in no way suggested any question as to the sovereignty ARGUMENT OF THE UNITED STATES. over the bays and inlets and the coasts bordering them, all of which were in the undisputed possession of the United States. In 1892 the United States and Great Britain entered into a treaty, providing for a joint survey, for'the purpose of marking the bound- arv. Thev oblisrated themselves in this treaty, to proceed as soon a • <* %J ■ JL as practicable after the report, or reports, of the commissioners, to consider and establish the boundary line in question. It was provided that a report should be made within two years after the first meeting of the commissioners. By a supplemental treaty of February 3. 1894. the time was extended to December 31, 1895. Joint surveys were made, and a joint report was submitted December 31, 1895, but it contained no recommendation for a settlement. The discoverv of gfold in 1896 in the Yukon territorv attracted many persons to the Klondike District. The natural pathway for them was from the Pacific Ocean up through Lynn Canal over the Chilkat and Chilkoot passes and thence into the territory of Great Britain. Along this route thousands of miners passed. The ports at the head of Lynn Canal at once assumed large commercial importance. It was not until after this that any question was officially raised as to the boundary line between Alaska and Canada extending around the heads of the bays and inlets. Although individual citizens of Canada had, at times, advanced the theory that the treaty of 1825 should be so interpreted, as to run the boundary line along the summits of mountains claimed to be parallel to the general or mainland coast, and so as to leave the heads of the bays and inlets in British territory, such a claim was never put forward by Great Britain until 1898. After the failure to ae;ree under the treaty of 1892, a Joint High Commission was constituted, for the adjustment of the boundary differences, which met in 1898 and 1899. The Marquis of Salisbury, in his instructions to the British High CommissioDers July 19, 1898, said: From Portland Channel to Glacier Bay there is no such continuous range of mountains running parallel to the coast as the terms of the Treaty of 1825 appear to contemplate. That Treaty, again, provides that the line should be parallel to the sinuosities of the coast, and that it should never exceed the distance of ten leagues from the Pacific Ocean. Considering the number and size of the projections and indentations along the coast, it would be difficult to trace the boundary according to the Treaty.a «B. C. App., 298. 6 ALASKAN BOUNDARY TRIBUNAL. Thus he stated specifically that, there "is no such continuous range of mountains running parallel to the coast as the terms of the Treaty of 1825 appear to contemplate," and that "considering the number and size of the projections, and indentations along the coast, it would be difficult to trace the boundary according to the Treaty." Notwithstanding these official declarations, as to the mountains and the coast, a position was assumed by Great Britain, in direct conflict with them. A line was claimed, as shown by map 28 of the United States Atlas, which put in British territory all of the inlets and almost all of the harbors and safe anchorages. It included much of the mining territory in the Porcupine, Berbers Bay, Juneau, Snettisham, Sumdum, Windham Bay and Unuk River districts, whose mineral wealth for twenty years has been, without any question, exploited by citizens of the United States. It also included the towns of Pyramid Harbor, Haines, Dyea, and Skagway, all of them situated where the United States had exercised undisputed sovereignty since 1867. An even more astounding feature of the claim was that the line was not laid down along any part of Portland Canal, but was drawn up Clarence Strait and thence through Ernest Sound to the continent. The character of the contention put forward by Great Britain precluded all possibility of a settlement by the Joint High Commission, and the two governments, by a treaty of March 3, 1903, have, for the purpose of settling all differences, constituted this Tribunal, to whose decision seven questions are submitted. These questions will be discussed in their order, and the provisions of the treaty of 1893, which are thought to bear upon their solution, will be referred to in the course of the argument. SECOND. RULES OF CONSTRUCTION AND INTERPRETATION TO BE APPLIED TO THE TREATY OF 1825 BETWEEN GREAT BRITAIN AND RUSSIA. 5? In the general principles by which treaties are to be interpre tated is embodied the important distinction between "; construction, the process through which the general sense of a treaty is derived by the application of the rules of logic to what appears upon its face, and "interpretation," the process through which the meaning ARGUMENT OF THE UNITED STATES. 7 of particular terms is explained by reference to local circumstances and conditions the framers had in mind at the time. Jurists are generally agreed in laying down certain rules of construction and interpretation as being applicable when disagreement takes place between the parties to a treaty as to the meaning or intention of its stipulations. Some of these rules are either unsafe in their application or are of doubtful applicability; and rules tainted by any shade of doubt, from whatever source it may be derived, are unfit for use in international controversy.a Since the time of Grotius, who devoted an entire chapter to the construction and interpretation of difficult and ambiguous terms, {De Jure Belli ac Pads, ii. c, XVI.), the system of rules which he founded has been revised and reproduced by Puffendorf (V. c. XII), by Domat (Cushing's Ed. 1, p. 108), by Vattel (ii, c. XVH.), and by Rutherforth (II, c. 7). The best parts of the work of each are embodied in Potter's Dwarris on Statutes and Constitutions, pp. 121-146, and also in Wildman's Institutes of Int. Law, 1, pp. 176-186. These should be supplemented by the expositions of Heffter, Sec. 95; Phillimore, II, c. VIII; Calvo, Sees. 713-77; Fiore, Sees. 1117-31; Hall, Sees. Ill, 112, and Savigny's exposition of "fundamental rules of interpretation" in his System des Heutigen Rdmischen Bechts (Yol. I, ch. IV., Sec. XXXHI). No publicist of recent times is more often quoted throughout the English-speaking world than William Edward Hall, who, after rejecting all rules of interpretation of doubtful authority, says: "1.—When the language of a treaty, taken in the ordinary meaning of the words, yields a plain and reasonable sense, it must be taken as intended to be read in that sense, subject to the qualifications, that any words which may have a customary meaning in treaties, differing from their common signification, must be understood to have that meaning, and that a sense cannot be adopted which leads to an absurdity, or to incompatibility of the contract with an accepted fundamental principle of law. * * 3.—When the words of a treaty fail to yield a plain and reasonable sense they should be interpretated in such one of the following ways as may be appropriate: (a) By recourse to the general sense and spirit of the treaty as shown by the context of the incomplete, 8 ALASKAN BOUNDARY TRIBUNAL. improper, ambiguous or obscure passages, or by the provisions of the instrument as a whole. This is so far an exclusive, or rather a controlling method, that if the result afforded by it is incompatible with that obtained by any other means except proof of the intention of the parties, such other means must necessarily be discarded; there being so strong a presumption that the provisions of a treaty are intended to be harmonious, that nothing short of clear proof of intention can justify any interpretation of a single provision which brings it into collision with the undoubted intention of the remainder."05 According to Calvo, Sec. 600 * * "The ambiguity of clauses is sometimes removed by keeping in mind the end which the parties had in view at the moment of the beginning of the negotiations, or by consulting the usages observed in the country most interested in the engagement entered into. You may also, in order to arrive at a harmonious conclusion, examine the facts, the circumstances which immediately preceded the signature of the agreement, referring to the protocols, the pro- ces-verbal, or to other writings addressed by the negotiators, examining the motives or the causes which have brought about the treaty,—in a word, the reason of the transaction {ratio legis)\ finally by comparing the text with other treaties, anterior, posterior or contemporary, concluded by the same parties in analogous cases. Sec. 601. All the articles of the treaty form an indivisible whole, which loses its consistency and value if one alters one-of its parts; one should not separate the clauses, nor look at one of them in particular, on its own merits, without taking into account its correlation with those which follow or precede it. One stipulation may appear doubtful, ambiguous when each expression is taken by itself, which will appear clear, precise, altogether justifiable when you consider the accord of all the agreements of which it makes a part.6 The Supreme Court of the United States in the Market Co. v. Hoffman, 101 XI. S., 115, has said: "We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that its significance and effect shall, if possible, be accorded to every word. As early as in Bacon's Abridgement, Section 2, it was said a statute ought, « Hall,.Int. Law, pp. 350-355. & Droit Int., 1, pp. 727-729. ARGUMENT OF THE UNITED STATES. 9 upon the whole, to be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant." See to the same effect United States v. Fisher, 109 U. S.,p. 145. In the effort to arrive at the original meaning of the parties to a contract or convention, their subsequent acts under it are of vital significance. In the Attorney General v. Drummond, I Drury and Warrerfs Reports, p. 368, it was said: "Tell me what you have done under such a deed and I will tell you what that deed means." In Insurance Company v. Dutcher, 95 United States, 273, it was said: "There is no surer way to find out what parties meant than to see what they have done." When the rules for the construction and interpretation of treaties, as defined by the leading publicists of the world from. Grotius to Calvo, have been carefully analyzed, it appears that there is certainly a consensus of views as to the following: (1) As all the articles of a treaty constitute an indivisible whole, the primary purpose of construction and interpretation is to extract from them, considered as a whole, the dominant intention or motive of the transaction, "la raison d'etre de Vacte {ratio legis)." (2) While thus seeking for the motive the court will, if necessary, put itself in the place of the parties and read the instrument in the light of the circumstances surrounding them at the time it was made and of the objects which they evidentlv had in view. Thus the court may "examine the facts, the circumstances, which immediately preceded the signature of the agreement, referring to the protocols, the proces-verbal, or to other writings addressed by the negotiators, examining the motives or the causes which have brought about the treaty,—in a word, the reason of the transaction {ratio legis)." (3) In the effort to arrive at the original meaning of the parties to a treaty or convention, great weight should be given to their subsequent acts under it. (4) Since the lawful interpretation of a contract ought to tend only to the discovery of the thoughts of the author or authors of that contract, as soon as we meet with any obscurity, we should seek for what was probably in the thoughts of those who drew it up and to interpret it accordingly. This is the general rule of all interpretations. The contracting powers are obliged to express themselves in such 10 ALASKAN BOUNDARY TRIBUNAL. a manner as they mutuallv understand each other. If then, they ought to speak in such a manner as to be understood, it is necessary that they should employ the words in their proper signification, in the sense which custom has given them, and that they should affix to the terms they use and to all their expressions, the received signification. They are not permitted to deviate with design, and without mentioning it from the common use, and propriety of the expression; and it is presumed that they have conformed to it, while there are no pressing reasons to presume the contrary; for the presumption is in general, that things have been done as they ougrht. From all these incontestable truths results this rule: In the interpretation of treaties, pacts, and promises, we ought not to deviate from the common use of the language, at least, if we have not very strong reasons for it. Words are only designed to express the thoughts; thus the true signification of an expression in common use, is the idea which custom has affixed to that expression. It is then a gross quibble to affix a particular sense to a word in order to elude the true sense of the entire expression. There is not perhaps any language that has not also words which signify two or many different things, or phrases, susceptible of more than one sense. Thence arise mistakes in discourse. To employ them with design in order to elude engagements, is real perfidy, since the faith of treaties obliges the contracting parties to express their intentions clearly. We ought always to give to expressions the sense most suitable to the -subject, or the matter to which they relate, for we endeavor by a true interpretation to discover the thoughts of those who speak, or of the contracting powers in a treaty.' When one can and ought to have made known his intention we may take for true against him what he has sufficiently declared. As good faith ought to preside in conventions, they are always interpreted on the supposition that it actually did preside in them. The rule of interpretation forbids turning the sense of the words contrary to the manifest intention of the contracting powers. The connection and relation of things themselves serve also to discover and establish the true sense of the treaty or of any other piece.a a VattePs Law of Nations, Book II, Ch. 17, Sec. 268-286. ARGUMENT OF THE UNITED STATES. 11 (5) The reason of the law, or, the treaty, that is, the motive which led to the making of it and the view there proposed is, one of the most certain means of establishing the true sense, and great attention ought to be paid to it, whenever it is required to explain an obscure, equivocal and undetermined point, either of a law or of a treaty or to make an application of them to a particular case. As soon as we certainly know the reason which alone has determined the will of him who speaks, we ought to interpret his words and to apply them in a manner suitable to that reason alone.® (6) The voice of equity requires that the conditions between the parties should be equal; this is the general rule of contracts. We do not presume to think, without very strong reasons, that one of the contracting powers has intended to favor the other to his own prejudice, but there is no danger of extending what is for the common advantage. If it then be found, that the contracting powers have not made known their will with sufficient clearness, and with all the precision required, it is certainly more conformable to equity to seek for this will in the sense most favorable to the common advantage and equality, than to suppose it in the contrary sense. THIRD. EVIDENCE TO BE CONSIDERED. Under the title "Russian Occupation" in the British,Counter case, p. QQ, it is said that: A large part of the case of the United States, and of the evidence contained in the Appendix thereto relates to the action of Russia, and subsequently of the United States in the region through which the boundary runs. This matter is, of course, introduced pursuant to the provision at the end of Article III of the Treaty under which the tribunal sits. After quoting from Art. 3, omitting the words "shall also," it proceeds: That clause requires the tribunal to 'take into consideration any action of the several governments, or of their respective representatives preliminary or 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.' aVattel's Law of Nations, Book II, Ch. 17, Sec. 287. S. Doc. 162, 58-2, vol 5 2 6 Ibid., Sec. 301. 12 ALASKAN BOUNDARY TRIBUNAL. It is submitted that the position thus taken is unsound. It is founded upon an incomplete quotation which omits significant words. It ignores altogether the provision in Art. II., and the effect of Art. III., construed in connection with it, and invokes a rule altogether so narrow as not to have possibly been within contemplation. Art. II. provides that: Each party may present to the tribunal all pertinent evidence, documentary, historical, geographical or topographical, including maps and charts, in its possession or control applicable to the rightful decision of the questions submitted.« Here the door is opened wide, with no limitation except that the evidence must be pertinent to the rightful decision of the questions submitted. Art. III. provides: The tribunal shall also take into consideration any action of the several governments or of their respective representatives preliminary or subsequent to the conclusion of said treaties so far as the same tends to show the original and effective understanding of the parties in respect to the limits of their several territorial jurisdictions under and by virtue of the provisions of said treaties.6 This does not limit the provision of Art. II., but whether the Tribunal might consider it pertinent or not makes it obligatory to also take into consideration any such action of the several governments or of their respective representatives. Art. III. in like manner compels the Tribunal to consider the Treaties of 1824, 1825 and 1867. It has a discretion as to determining whether or not all other evidence introduced under Art. II. is pertinent. It has no such discretion as to that specified in the superadded provisions in Art. III. |S The British Counter Case assumes that Art. III. alone must be looked to, and that all of the evidence of the United States is. introduced pursuant to the provisions of that article. Art. III. obligates the Tribunal to consider certain evidence. It does not in any way restrict its discretion as to determining; what other evidence is pertinent. The context shows that it was regarded that other evidence would be pertinent, and that in addition thereto the evidence particularized in Art. III. shall also be taken into consideration. The statement that Art. IH. "excludes all private action «U. S. C. App., p. 3. &U. S. C. App., p. 4. SsasBSSSSOSBSS. ARGUMENT OF THE UNITED STATES. 13 and, a fortiori, all private expression of opinion, whether by map makers or others," is not supported. The pertinency and weight of such testimony are to be determined by the Tribunal. It may be of remote relevancy and of slight importance. The British Counter Case makes no specification except as to maps published by private map makers. Private map makers are historians of their times. Their work is accepted or rejected according to its intrinsic merit and their reputation. If all of the map makers of the world throughout a long period of time agree to an interpretation of a treaty, and if it be assumed that such concensus was known to all enlightened governments, then such governments are affected with knowledge of the common understanding of the world. If with such knowledge of a common belief in respect of a matter of sovereignty over the arms and inlets of the sea and their coasts in which all maritime nations and all powers having navies are directly interested, a government publicly acts through a long period of time so as to confirm such understanding, then such acts become more solemn than if they were made without the existence of an understanding. Such understanding shows that the mind of the world was on the question and that it deemed it of importance. If it had no thought about it, then the acts of a government in regard to it, might be of no special interest and might escape notice. Such common understanding joined in by the government most interested, becomes a universally accredited historical fact. It cannot be said that such common understanding, not dissented from, but confirmed, is not pertinent in considering the weight that should be given to the official maps of Great Britain. The British Counter Case further concludes that the action of the respective governments that can be looked to is limited to those immediately preliminary to the treaty.a What has been said about the admissibility of evidence under Art. II. applies to this proposition. The Treaty should be interpreted in the light of the respective attitudes of the parties when they began their negotiations. Their relations to the subject-matter of controversy should be known by the Tribunal in order to better understand the language used by them in settling the controversy. The rule invoked in the British Case is narrower than that which in the courts of Great Britain « B. C. C, p. 66. SSsSSSSS&SHS 14 ALASKAN BOUNDARY TRIBUNAL. and the United States would apply to private litigants. Any court would admit evidence showing the attitude in which the parties stood toward the subject matter of contract. It is further said that: In addition, the understanding which the action must tend to show is that of 'the Parties,' that is to say, of both Parties. Action by one Party not known to the other Party will not tend to shtfw this.* If one party took action which showed that it understood that the Treaty meant a certain thing, and if the other party took action which showed that such party had the same understanding, and if proof of such actions be made to the Tribunal it does not make a particle of difference whether or not these separate acts of the several parties were known to the other party. If Great Britain had passed an Act of Parliament reciting that by the Treaty Russia owned all of the interior waters and coasts in question, and had penalized any trespass upon them by British subjects, would it have made any difference as to the understanding of Great Britain of the Treaty that this Act was never known to Russia? If there were such an act would the United States have to show that Russia knew of it, and assented to it before it could be admitted in evidence? All separate acts of the parties tending to show their respective understandings are admissible. If they show the same understanding they are conclusive. It is only necessary to show knowledge upon the part of the other party where it is sought to set up assent or acquiescence. In such cases knowledge must be shown or the act must have such characteristics that knowledge of it must be assumed. FOURTH. TERRITORIAL WATERS IN INTERNATIONAL LAW. DISTINCTION BETWEEN THE OUTER AND INNER COAST LINE. An eminent English publicist has said that ' i certain physical peculiarities of coasts in various parts of the world, where land impinges on the sea in an unusual manner, require to be noticed as affecting the territorial boundary. Off the coast of Florida, among the Bahamas, along the shores of Cuba, and in the Pacific, -are to be found groups of numerous islands and islets rising out of vast banks, which are covered with very shoal water, and either «B. C. C, p. 66. %mM ARGUMENT OF THE UNITED STATES. 15 form a line more or less parallel with land or compose systems of their own, in both cases enclosing considerable sheets of water, which are sometimes also shoal and sometimes relatively deep. The entrance to these interior bays or lagoons may be wide in breadth of surface water, but it is narrow in navigable water. To take a specific case, on the south coast of Cuba the Archipielago de los Canarios stretches from sixty to eighty miles from the mainland to La Isla de Pinos, its length from the Jardines bank to Cape Frances is over a hundred miles. * * * In cases of this sort the question whether the interior waters are, or are not, lakes enclosed within the territory, must always depend upon the depth upon the banks, and the width of the entrances. Each must be judged upon its own merits. But in the instance cited, there can be little doubt that the whole Archipielago de los Canarios is a mere salt-water lake, and that the boundary of the land of Cuba runs along the exterior edge of the banks. a In the famous case of the Anna (56 Rob. Adm. 373) Lord Stowell held that the extent of territorial waters must be estimated from the outer edge of the land represented in that case by certain low mud islands formed from the alluvial wash and debris of the Mississippi river, more than three miles from the Belize, the extreme point of the main land. "It is argued," said Lord Stowell, "that the line of territory is,to be taken only from the Belize, which is a fort raised on made land by the former Spanish possessors. I am of a different opinion. I think that the protection of territory is to be reckoned from these islands, and that they are the natural appendages of the coast on which they border, and from which, indeed, they are formed." It thus appears that from the outer coast line of a maritime state, as defined in physical geography, is invariably measured under international law, the limit of that zone of territorial water srener- ally known as the marine league. The boundary of Alaska,—that is, the exterior boundary from which the marine league is measured,—runs along the outer edsre of the Alaskan or Alexander Archipelago, embracing a group composed of hundreds of islands. When "measured in a straight line from headland to headland" at their entrances, Chatham Strait. Cross Sound, Sumner Strait and Clarence Strait, by which this exterior coast line is pierced, meas- aHall, Int. Law, p. 129-130. -fefes- 16 ALASKAN BOUNDARY TRIBUNAL. ure less than ten miles. That fact, according to the authorities quoted in the British Counter Case, pp. 24-28, places them within the category of territorial waters. All of the interior waters touching upon the lisiere, such as Behm Canal, Taku Inlet and Lynn Canal are, in the language of Hall, "lakes enclosed within the territory", and as such are territorial waters, regardless of their width at their entrances when measured from headland to headland. DISTINCTION BETWEEN THE COAST LINE OF PHYSICAL GEOGRAPHY FOR THE purposes of boundary;, AND THE POLITICAL COAST LINE, FOR THE PURPOSES OF JURISDICTION. Physical geography simply reproduces the actual coast lines of maritime states, as they are defined by nature at the point of contact of the sea with the land. The following description of the coast of Maine, from an eminent geographical authority, may be taken as an apt illustration: * On the Atlantic coast Maine presents an uninterrupted succession of peniniulas, islands, and bays; and all these bays are the mouths of rivers—outlets of valleys having their origin far in the interior. Nothing similar is seen on all the territory of the Union. One must come to Norway or go to the extreme point of South America to find so long a part of the coast—400 kilometers in a straight line from the southwest to the northeast—so deeply cut up that we measure on it more than 4,000 kilometers of contact with the deep sea. All these bays of Maine are also fiords, but spacious, and which in spite of their equally rocky banks, of comparatively little elevation, receive the morning and afternoon sun, as well as that of noon, and open to mariners more ports, more anchorages, and safe shelters than all the other coasts upon the three seas of the Union.a It thus appears that the actual coast line of Maine, as known to physical geography, following as it must the sinuosities defined by the contact of the sea with the land, is about 4,000 kilometers, while the political coast line, superimposed upon it by operation of international law, is vastly shorter by reason of the fact that the artificial and imaginary line cuts across the heads of bays and inlets. The natural coast line, as known to physical geography, exists primarily for the purposes of boundary. The artificial coast line, as known to international law, exists only for the purposes of jurisdiction. That obvious distinction is well illustrated by Riyier aSee Maine, in Nouveau Dictionnaire de Giographie Universelle, Saint Martin, Vol. Ill, p. 559. ARGUMENT OF THE UNITED STATES. 17 in his Principes du Droit des Gens. Speaking of "Za mer litto- rale" he says: "The name territorial sea is applied to all the seas or portions of the sea which belong to the territory: to the littoral sea, to the interior sea, in the various acceptations of this word, to gulfs and straits. It is the general and juridical term {le terme general et juridique), while the others are rather physical or geographical {physiques ou geographiques). The term littoral sea has the advantage of a special meaning. They say also jurisdictional sea, after one of the elements of the juridical situation of that part of the sea. The principle that the littoral sea forms a part of the territory is justified by the necessities of the preservation and security of the state, from the point of view, military, sanitary, fiscal, as well as the point of view of the interests of industry, specially of the right of fishing. The result is, for the coast and for terra frma, the littoral sea has the character of an accessory {le caractere d'un accessoire) and it cannot be taken independently of the coast {independamment de la cdte). Speaking of "ZesFrontteres" he says: "I have spoken already of the frontier on the sea, and of that of the land. There exists also special limits for the wants of administration because the* geographical and political frontier {la frontiere politique et geographique) do not always answer in a sufficient manner."a The distinction thus clearly recognized between a geographical and political frontier is too obvious to require further illustration. If the geographical frontier happens to be on the sea or ocean, it is known as the coast, the point of contact between the sea water and the land, upon which the political frontier is superimposed as an accessory that can not be taken independently of the coast {et qv) on ne saurait V acquerir independamment de la cdte). That dependent and accessorial frontier created by international law, solely for the purposes of jurisdiction, is annexed only to the outer coast of a maritime state which it shortens by cutting across the heads of bays and inlets, thus following what is called the general trend of the coast. THE POLITICAL COAST LINE NOT INVOLVED IN THIS CASE. The artificial coast line created by international law for the purposes of jurisdiction only, which, following the general trend of the coast, a Vol. I, pp. 145-146, 170. -»w^** 18 ALASKAN BOUNDARY TRIBUNAL. cuts across the heads of bays and inlets is not involved in this case in any form, for the simple reason that the outer coast, to which it is exclusively an accessory, is not involved. The entire British Case rests upon the admission that the eastern boundary of the lisiere is to be determined with reference to the inner coast only, and on the contention that a political coast line can be predicated of this coast. In the language of the British Case (p. 24), "It seems clear that, in the whole course of these negotiations, Count Nesselrode used the term ccote' as meaning the general line of the continent." The eastern line of the lisiere as now contended for by Great Britain is drawn in reference to "the general line of the con tinent," that is, of the inner coast. The heart of that contention is that such inner coast is not the entire natural coast of physical geography, but that it is to be ignored at places and that for it shall be substituted an artificial coast line which under international law is a mere accessory to a physical coast. Such an artificial coast line relates to the outer coast only, and can have no reference whatever to the inner coast line in question. The only coast with which we are dealing is the inner coast, the physical coast, the coast defined by the contact of the sea with the land. The result of the British claim that the line shall be drawn from headland to headland is that a principle which became established in international law for the purpose of giving additional rights as incident to the ownership is perverted to the purpose of determining what shall be considered coast. It could only apply where there was admitted sovereignty over a coast line, and then only for the purpose of giving, by enlarging the jurisdiction beyond the actual coast, accessorial rights. It was never adopted and has never before been applied for the purpose of determining the sovereignty over coasts. What was adopted as a shield for the protection of the coast is turned into an instrument for dissevering it. The British Counter Case (p. 28) quotes from Mr. Joshua Bates who in 1853 says : "This doctrine of the headlands is new." And yet it is sought to make it appear that the negotiators of the Treaty of 1825 must have intended to apply it, for the purpose of determining what was "coast" as that word was used by them. ARGUMENT OF THE UNITED STATES. 19 FIFTH. First Question. ' j What is intended as the point of commencement of the line?" On this question there is no controversy. The United States requests the tribunal to decide that Cape Muzon is the point of commencement.05 In the British Case occurs the following: But Great Britain concedes that it sufficiently appears that Cape Muzon, the more southerly point, fulfills the essential conditions of the Treaty, and should be held to be the point of departure. & SIXTH. Second Question: What channel is the Portland Channel? Answer proposed by the United States: The United States requests the Tribunal to answer and decide that Portland Channel is the same body of water now commonly known and described as Portland Canal, which, passing from the north between Ramsden Point on the mainland and Pearse Island, and thence southward of said island and Wales Island, enters Dixon Entrance between the island last mentioned and Compton Island. THE INTENTION OF THE NEGOTIATORS. Portland Channel, as the course of the boundary, first appears in the discussion in Russia's proposal of Feb. 12/24, 1824. The line of demarcation starting from Prince of Wales Island was to •\ follow Portland Channel up to the mountains which border the coast."c Russia had previously, on Oct. 2, 1823, proposed the 54° of latitude (Poletica to Nesselrode, Nov. 3, 1823).tf Sir C. Bagot had understood him to offer the 55° (Bagot to Canning, Oct. 17, 1823),e but the question had not been seriously discussed between them because, as stated by Sir C. Bagot, \ \ M. Poletica was not empowered to treat or, indeed to pledge his government to any precise point," and Sir Charles "abstained from entering with him as fully into the matter" as he otherwise would have done. He also assigned as an additional reason for not advancing the negotiations that, in view of the position of the United States, he did not "think it safe to venture further into the question': until he had learned the opinion of His Majesty's Government upon the pretensions advanced by the United States. a U. S. Case, p. 104. &B. C, p. 46. «U. S. C. App., 158. dV. S. C. App., 139. «TJ. S. C. App., 131. 20 ALASKAN BOUNDARY TRIBUNAL. The pretensions of the United States, as stated by Mr. Middleton to Sir C. Bagot are reported in the latter's letter to Mr. Canning, Oct. 17/29, 1823/ to be that the United States had succeeded to all claims which Spain had to the northwest coast, and that as Russia had disclaimed all intention of interfering with Spanish claims south of 61°, "any claim of the coast lying between 42° and 61° ought in strictness to be made between the United States and Great Britain alone;" but that the United States was ready to acknowledge that no country had any absolute and exclusive claim to those coasts, and only intended to claim, as the heirs of the Spanish claims, that the United States had the best pretensions as between Russia, Great Britain and itself. An argument based on this claim was advanced by Sir C. Bagot, to show that Russia had recognized the superior claim of the United States to the whole coast; but this argument reacted and was turned against Great Britain later in the negotiations, when the United States withdrew below 54° 40' in favor of Russia under their treaty. Pending the resumption of the negotiations after the preliminary proposals of Sir C. Bagot and M. Poletica, the position of the United States had been more clearly defined and had given the territorial question 'j a new and complicated character."b The Monroe doctrine had been announced and had furnished Great Britain "a conclusive reason for our not mixing ourselves in the negotiations" between Russia and the United States. The treaty of 1818, which was still in force, made it unnecessary for Great Britain to settle the boundary question at once with the United States, and an independent negotiation with Russia on the territorial question was therefore determined upon. Such was the situation when Russia's proposal of the line through Portland Channel was first offered. Count Nesselrode, in reporting the negotiation to Count Lieven, said of this proposal that— In order not to cut Prince of Wales Island, which, according to this arrangement, would remain to Russia, we proposed to carry the southern frontier of our domains to latitude 54° 40' and to make it abut upon the continent at Portland Canal, of which the opening into the ocean is at the same latitude as Prince of Wales Island.c «U. S. C. App., 129. &U. S. C. App., 144. «U. S. C. App., 173. &&& ARGUMENT OF THE UNITED STATES. 21 Russia assumed the position that the boundary as a matter of right should not be above the 55°, because of the lease to that point of the Russian American Company. Sir C. Bagot took exception to the way in which this proposal was offered, in that Count Nesselrode seemed to intimate that it would be asking too much of the imperial dignity to require that pretensions advanced twenty-five years ago by the Emperor Paul should now be renounced, but he later recognized that this was an element in the situation which could not be disregarded; and finally took the responsibility upon himself of exceeding the limit of his instructions by offering to carry the line below 55° on the islands, because he felt that "His Imperial Majesty might jret possibly feel an invincible repugnance to retract from the pretensions advanced by the Emperor Paul in the charter given to the Russian American Company in 1899."a His instructions had been to carry the line to the southward only as far as the point opposite the southern ends of the island upon which Sitka stood, which was fixed upon the charts and was understood by Sir Charles to be about 56°, and this was the boundary proposed by him in answer to Russia's first suggestion of Portland Channel. In making this proposal he stated in objecting to the line through Portland Channel that it "would deprive His Britannic Majesty of sovereignty over ail the inlets and small bays lying between latitudes 56° and 54° 45'."6 This expression is quoted in the British Case (p. 56) as authority for the statement that "the British understanding, communicated to and not questioned by Russia, was that Portland Channel entered the ocean in 54° 45'." A less superficial examination of the statement will disclose, however, that it does not have the significance claimed for it by Great Britain. In the first place the language is used in refusing to consent to Portland Channel as a boundary, and its exact location was therefore of no immediate importance, and the reference to its location does not carry any presumption that it is used with special care or precision on the part of Great Britain. Neither, on the other hand, was Russia called upon under the circumstances to give any opinion as to the accuracy of the reference, and her silence on the subject «TJ. S. C. App., 155. *>U. S. C. App., 159. 22 ALASKAN BOUNDARY TRIBUNAL. raises no presumption of consent. That Count Nesselrode did not assent to 54° 45' as fixing the point at which the line was to enter Portland Channel, is shown in his report of the proceedings above quoted, that "we proposed to carry the southern frontier of our domains to latitude 54° 40' and to make it abut upon the continent at Portland Canal, of which the opening into the ocean is at the same latitude as Prince of Wales Island. " This statement is contained in his letter a to Count Lieven reporting the conclusion on that same day of the treaty with the United States, fixing the line at 54° 40', so that his reference to that line, in connection with the British negotiations, has special significance. In the second place the reference to 54° 45' in Sir C. Bagot's statement was not necessarily intended to refer to the mouth of Portland Channel, and from the context it appears that an entirely different meaning is the more probable one. The reference to 54° 45' is made in connection with the exclusion of British sovereignty over the inlets and small bays between that point and 56°, and one of the reasons assigned for objecting to this is that the Russian-American Company possessed no establishments on the mainland between those parallels. It will be observed, therefore, that the latitudes 56° and 54° 45' are mentioned as fixing two points on the mainland between which the Russian-American Company possessed no establishments, and therefore 54° 45' was necessarily not intended to be the point at which the proposed Russian line should enter Portland Channel, which was not to be at the point of the mainland, but through the channel itself. Sir C. Bagot had distinctly so interpreted Russia's proposal in his amended proposal offered during these negotiations "in answer to the proposal made by the Russian plenipotentiaries, that the line of demarcation drawn from the southern extremity of Prince of Wales Island to the mouth of Portland Channel, thence up the middle of this channel until it touches the mainland, etc."b In this connection it is important to note that the Russian proposal did not fix the exact location of the proposed line by astronomical locations, but simply that it should "follow Portland Channel to the mountains," etc., so that Sir Charles Bagot's reference to 54° 45' was not intended as a correction of the Russian line. U. S. C. App., 172. ">U. S. C. App., p. 159. ARGUMENT OF THE UNITED STATES. 23 The reference is of no value, therefore, for the purpose for which it is cited in the British Case, and the intention of neither the British nor the Russian negotiators as to what channel is Portland Channel can be predicated upon it. During this period of the negotiations no further progress was made toward an agreement upon the line through Portland Channel. Sir C. Bagot, as above stated, was limited by his instructions to the 56° on the outer mainland coast for the southern limit, and sought to induce Russia to accept a line there bj^ offering to carry it down on the islands to the lowest point of Prince of Wales Island, which was understood to be about 54° 40', thereby meeting the Russian requirements so far as the islands were concerned and which he hoped "while it saved this point of dignity to Russia by giving to her the fifty-fifth degree of latitude as her boundary upon the islands, might preserve also uninterrupted our access to the Pacific Ocean, and secure to His Majesty the fifty-sixth degree of north latitude as the British boundary upon the coast." a Russia's position throughout the negotiations was unchanged, however, and as pointed out in the observations submitted to Sir C. Bagot, was based upon the fact that the English establishments had a tendency to advance westward along the 53° and 54° and the Russian establishments to descend southward toward the 55° and beyond. Therefore if it was "to the mutual advantage of the two Empires to assign just limits to this advance on both sides," before they conflicted, and "it was also to their mutual advantage to fix these limits according to natural partitions, which always constitute the most distinct and certain frontiers,"5 and "For these reasons the plenipotentiaries of Russia have proposed as limits upon the coast of the continent, to the south, Portland Channel, the head of which lies about (par) the fifty-sixth degree of north latitude, and to the east the chain of mountains which follows at a very short distance the sinuosities of the coast."5 The boundary thus proposed was based on broad principles and followed natural partitions, and the question of what point on the coast 54° 45' touched, which Great Britain seeks to determine by this nesroti- ation, clearly had no place or consideration in the discussion. Certainly no distinction had been drawn between 54° 45' and 54° 40', because the «U. S. C. App., 155-6. &U. S. C. App., 161. wP"? 24 ALASKAN BOUNDARY TRIBUNAL. latter point had not yet been mentioned in the discussion, so far as the record shows. It is first mentioned in Count Nesselrode's report of the negotiations quoted above. After showing these general advantages of Portland Channel as forming a natural partition fulfilling the requirements of the boundary, Russia further pointed out that on the other hand, unless the line was carried through Portland Channel, "the Russian establishments on the islands in the vicinity would have no support {point o7appui); that they would be at the mercy of the establishments which strangers might form upon the mainland, and that any such arrangement, far from being founded upon the principle of mutual accommodations, would but offer dangers for one of the parties and exclusive advantages for the other." a In Russia's final decision the British propositions were rejected on these grounds, and on the further ground "that besides, according to the testimony of the most recent maps published in England, no English establishment exists either on the coast of the continent itself or north of the 54th degree of north latitude." b The negotiations therefore closed at this point for lack of authority on the part of the British Ambassador to comply with the requirements of Russia below 56° on the mainland. In the British case the observation is made on these negotiations that the fifty-fifth parallel was the limit of the Russian claim and that any suggestion of carrying the line further south to 54° 40', was but local to the Prince of Wales Island/ It is true that 55° was the line insisted upon by Russia but it must be remembered that this was insisted on, not as the most she claimed, but as the least she would take. She took occasion to point out and emphasize the fact during the negotiations that her claim to 55° could not be questioned, that she had at least equal rights with Great Britain below 55°, that there were no English establishments approaching the coast above 53° or 54°, and that those situated there had not yet reached the coast. There was, therefore, no question of encroaching upon British territory below 55°, which is the presumption suggested by the statement in the British Case above quoted. On the contrary, Russia regarded her attitude as a withdrawal northward from 51 o rather than an extension southward from 55°. As Count Nesselrode a U. S. C. App., 161. & U. S. C. App., 165. «B. C, 57. ARGUMENT OF THE UNITED STATES. 25 expressed it, "Thus, we wish to keep, and the English companies wish to obtain." a Furthermore, there was another factor in the negotiations which had a controlling influence both on Russia and Great Britain in the final determination of the location of the southern line of the lisiere, and which in itself interprets the intention of the negotiators on that point, and that was the Russian-American treaty. Concurrently with the British negotiations, Count Nesselrode had carried on the negotiations with Mr. Middleton, the United States Minister, and within three weeks after the suspension of the British negotiations, the treaty with the United States was concluded. It appears from Sir C. Bagot's letter of Apr. 5/17, 1824, to Mr. Canning,6 enclosing a copy of the convention with the United States, that Mr. Canning was aware of its terms prior to sending his next instructions to Sir C. Bagot on the negotiations. Mr. Canning's next instructions, therefore, must be read in the light of this knowledge that Russia and the United States had agreed upon a line at 54° 40'. The fact that the line was not a delimitation of possessions but only of settlements does not alter its importance as a recognition by the United States of the Russian authority down to 54° 40' north latitude. In reporting the situation to Count Lieven, with instructions to lay the matter before the British Government, Count Nesselrode, in his letter of Apr. 17, 1824, after showing that by his interpretation of the effects of the treaty of 1818 the titles of the United States to the possession of the territory of the northwest coast were as valid as those of England, says: Nevertheless, the Cabinet of Washington has admitted that our boundary should come down as far as 54° 40/. This has been admitted in a formal agreement that we have just signed with its plenipotentiary, and the strengthening of our arguments is far from being the only result of this admission.c The preceding negotiations having been suspended as above shown, because Sir C. Bagot was not permitted by his instructions to carry the boundary below 56° on the mainland, Mr. Canning opened his instructions at that point and authorized Sir Charles Bagot "to take as the line of demarcation, a line drawn from the southernmost point of Prince of Wales Island from south to north through Portland Channel, till it strikes the mainland in latitude 56°."^ «U. S. C. App., 173. &B. C. App., 80. «U. S. C. App., 174. «"U. S. C. App., 181. 26 ALASKAN BOUNDARY TRIBUNAL. These instructions were sent as stated by him, "after full consideration of the motives which are alleged by the Russian government for adhering to their last proposition." Mr. Canning had also read Count Nesselrode's letter to Count Lieven from which the extract quoted above, is taken, as appears by his letter of May 29, 1824, to Count Lieven. In consenting to the line up Portland Channel, Mr. Canning had before him, therefore, Russia's final decision and arguments in support of it, in which Portland Channel was proposed by name and without a single reference to astronomical locations, about which no questions had arisen, it being merely described generally as offering a suitable natural partition selected on the broad grounds of the mutual convenience of both sides; the United States-Russian Treaty fixing the line at 54° 40' and Count Nesselrode's statement that this admission by the United States that the Russian " boundary should come down as far as 54° 40'" was regarded as strengthening their arguments. By this he meant, of course, the arguments for the same boundary at 54° 40' on the mainland with Great Britain, for the boundary on the islands at that latitude had already been agreed to. It can hardly be questioned that under such circumstances Mr. Canning's assent to the line through Portland Channel contemplated carrying the line, to its entrance at least, along the 54° 40' parallel, and that there was in his mind no doubt that its entrance would be found to coincide with that parallel. The boundary line through Portland Channel was not thereafter the subject of discussion in the negotiations; but the references to the Channel and the part that it plays in the boundary in the later negotiations settle beyond dispute the understanding of the parties that a line at 54° 40' would run approximately through the center of the entrance of Portland Channel. Sir C. Bagot in reporting the later negotiations to Mr. G. Canning, Aug. 12, 1824,a says that one of the points of difference was the perpetual liberty of navigation and trade along the coasts of the lisiere. The lisiere referred to was described in the proposed conventions before the negotiators in which the line started on Prince of Wales Island at 54° 40' and was then carried as follows: the line of frontier Channel, etc. shall ascend northerly along the channel called Portland «U. S. C. App., 190. ARGUMENT OF THE UNITED STATES. 27 Sir C. Bagot therefore understood the lisiere to be bounded on the south by Portland Channel. Count Nesselrode, m reporting the same negotiations to Count Lieven in his letter of August 31, 1824, referring to exactly the same subject, described the lisiere as the coast "which extends from 59° of north latitude to 54° 40'."a Later in the same letter he refers to this same latitude of 54° 40' as that to which the United States was confined by its treaty, and again later he says, "our counter draft carries our boundary from the 51° to 54° 40'. It leaves to the establishments which the English companies may form hereafter on the northwest coast all the territory situated to the south of Portland Channel."6 In this counter draft the southern boundary of the lisiere is carried through Portland Channel exactly as in the one referred to by Sir C. Bagot. Grouping these references together, they serve to emphasize the fact that the Portland Channel of the negotiations, which afterwards was carried into the treaty without change, was understood by Sir C. Bagot to be the same Portland Channel which was fixed by Count Nesselrode as carrying at its entrance the line 54° 40' and as the boundary to which Russia had receded from 51° in the United States treaty. It further appears that this letter of Count Nesselrode, in which this identification of Portland Channel with 54° 40' is made, was submitted to Mr. Canning and annotated by him, and so far as the references to Portland Channel are concerned, it was accepted by him without criticism or comment. BARON TUYLL'S LETTER. The British Case on page 56 quotes a suggestion from Baron Tuyll to Count Nesselrode, that the frontiers should be fixed at the 55th degree, "or better still at the southern point of the archipelago of the Prince of Wales and the Observatory Inlet, situated [plural] almost under this parallel." This is relied on to show that the body of water whose mouth was opposite Prince of Wales Island was understood to be Observatory Inlet, and that consequently they could not have meant that body of water when they designated that the line should run along Portland Channel. The argument seems to assume that Baron Tuyll meant to say that the body of water designated as Observatory Inlet was opposite the «U. S. C. App., 200. S. Doc. 162, 58-2, vol 5 -3' &U. S. C. App., 204. ALASKAN BOUNDARY TRIBUNAL. 1 southern point of Prince of Wales Island, and on the same latitude, and that because the southernmost point of the island is about on the same latitude as the mouth of the body of water which the United States contends was designated by the name Portland Channel in the Treaty, it follows that such body of water could not have been meant, and that the contention of the United States is thereby overthrown. The contrary inference is to be drawn from what Baron Tuyll said. He was correct in stating that the mouth of Observatory Inlet was about at the 55th parallel. Observatory Inlet was indicated on the maps of Vancouver and Arrowsmith, according to the method of lettering used by cartographers, as a minor body of water flowing into Portland Channel at Ramsdens Point. This mouth falls directly under the 55th parallel. The end of the archipelago of Prince of Wales was shown on these maps to be at about 54° 40'. He made a clear error when he said that the point of this archipelago was almost under the 55th parallel. When the parallel, given by him as being the one at which Observatory Inlet was situated, is shown by the maps to coincide with the mouth of the body of water indicated on them as Observatory Inlet, why should we ignore his correct statement, and take his incorrect statement, as a basis for designating a body of water, which was not marked Observatory Inlet, on the maps, and which even a cursory examination of the maps would have shown to be a number of miles south of the mouth of the body which, according to the name on the map and the latitude, he had correctly located ? Therefore, his suggestion, so far from demonstrating that the Russian plenipotentiaries understood Observatory Inlet to extend to Dixon Entrance, indicates just the contrary. At most, however, the statement could only show that Baron Tuyll understood that the body of water whose mouth was nearest opposite to the southernmost point of Prince of Wales Island was Observatory Inlet. If this was his idea, it does not follow that Count Nesselrode concurred in it. If he had concurred in it and had meant that body of water, he would have called it Observatory Inlet instead of Portland Channel, for 54° 40' was the latitude along which he certainly expected the,boundary to run. Russia first suggested Portland Channel, and it is not likely that he would have carried the line to a body of water further north without any- pressure on the part of Great Britain (and none such appears to have been brought on this question), if Baron Tuyll had suggested Observatory Inlet as a proper body of water, and he had understood that ARGUMENT OF THE UNITED STATES. 29 Observatory Inlet was that body which debouches nearly opposite the southernmost point of Prince of Wales Island. The better reasoning is that he understood that Baron Tuyll meant by Observatory Inlet the Observatory Inlet marked on the map whose mouth was under the 55th parallel, and that this body of water was not acceptable to him, first, because it was not on 54° 40', and, second, because it did not debouch on the high seas, it being desirable to have the line proceed up such a body of water. Whatever Baron Tuyll's idea was, it is evident that his letter was not sufficient to charge Count Nesselrode with any different understanding of Portland Channel from the one consistently followed by him in the negotiations; and the date of the letter, which is October 21, 1822, and prior to the commencement of the negotiations, shows that it is of no relative importance in interpreting the later understanding of the parties. PHYSICAL GEOGRAPHY OF PORTLAND CHANNEL. The contention of the British Case is that "The only canal known by the name of Portland at the time of the treaty, had been surveyed, chartered, described and named by Vancouver as Portland Canal, and is so called in the first edition of his book, but changed in the second edition to Portland Channel. The variation seems immaterial. "a This contention is based upon the statement in the British Case, p. 50, that Vancouver's Narrative was known to have been before the negotiators. In view of the fact that Vancouver's Narrative is not referred to anywhere in the negotiations by any of the negotiators, this statement calls for affirmative, proof, but no evidence is offered in its support. On the contrary it appears in the negotiations as shown below that Vancouver's Narrative was not followed by the negotiators in the astronomical locations or in the geographical references, and it further appears that Vancouver's charts rather than his Narrative were the final expression of his conclusions and were so regarded by the cartographers who followed him. In the geography of Alaska the word " canal'" has a local and special meaning. It signifies not an artificial channel, but a great arm of the sea, a fjord, or estuary. "Along the coast of Southern Alaska and British Columbia, submergence has led the sea far into «B. c, p. 49. 30 ALASKAN BOUNDARY TRIBUNAL. the valleys of the mountainous highlands. Some of the inner longitudinal valleys, beyond the outer ranges, are now under water, forming ' canals' of great value for coastwise navigation. "a Viewed as a whole the coast has a general trend in a northwesterly direction, but in detail it is very irregular, reaching back into deep, narrow fjords, and fringed by a mass of islands of all sizes. The fjords and straits are submerged valleys, both in line with and transverse to the general direction of the mountain ranges. Of the fjords, Dr. G. M. Dawson writes: "Their width is usually from one to three miles, their shores rocky and abrupt, and rising towards the heads of the longer fjords into mountains from 6,000 to 8,000 feet in height." As an illustration reference may be made to Lynn Canal, named and charted by Vancouver, which is a fjord, or estuary, embracing about 388 square nautical miles, and terminating in the two inlets named respectively Chilkat and Chilkoot. When viewed from the standpoint of its geological origin and formation, the term Portland Canal should likewise be applied to the entire body of water embraced within the continental shores between Point Ramsden and the open sea, and terminating in the two inlets generally known as Portland Canal and Observatory Inlet; such entire body of water embracing about 287 square nautical miles, being dotted by many islands, the larger of which are Pearse, Wales, Somerville, Fillmore, Sitklan, Kannaghunut, Compton, Truro, and Tongass. That Vancouver regarded the entire "arm of the sea," or estuary, as above described, as. Portland Canal is plainly indicated by the following: "In the forenoon we reached that arm of the sea whose examination had occupied our time from the 27th of the preceding to the 2nd of this month. The distance from its entrance to its source is aboufc 70 miles, which, in honor of the noble family of Bentinck, I named Portland's Canal.6 Here is a clear and exact statement that the \ \ arm of the sea " named "Portland's Canal" was the body of water traversed between the 27th of July,—on the morning of which he was in Observatory Inlet, "about twelve miles to the southward of the ships" (which were then in Salmon Cove)—and the 2nd of August, in the evening of which he was in Nakat Inlet where, to use his own words "our hopes vanished a From Prof. Wm. M. Davis, in the International Geography, p. 667, &B. C. App., 145. ARGUMENT OF THE UNITED STATES. 31 by our arriving at the head of the arm where it terminated in a small fresh water brook flowing from low marshy ground in latitude 54° 56', longitude 229° 28'." It thus appears that the journey, during which Vancouver traversed a body of water named by him Portland's Canal, began at least thirteen miles from the passage so entitled in the British Case and ended at Nakat Inlet, at least iO miles therefrom. That Vancouver regarded c' Observatory Inlet" merely as a " branch " of this "arm of the sea," is made clear by the following: "Nothing of any note having occurred during my absence, I shall conclude this chapter by the insertion of the astronomical and nautical observations made at this place, and in consequence of our having been so fortunate as to be able to obtain those that were essential for correcting our former survey, and for future regulation in that respect, this branch obtained the name of Observatory Inlet and the cove where the vessels were stationed that of Salmon Cove, from the abundance of that kind of fish that were there taken." a The British Case, p. 50, correctly states that "As to the greater part of the length of the Portland Channel above shortly described, there is not, and could not be, any dispute. Reference to the charts will show that, at any rate, that portion of the westerly water which extends inland from the upper end of Pearse Island to the head of the channel marked 'Portland Canal' must be comprised in Vancouver's Portland Canal. And this is the common case of both sides. The dispute is as to the remainder of the channel." That is to say, the matter which remains in dispute is this: Is Portland Channel, below the point of agreement, that body of water which goes "seaward between Pearse, Wales, Sitklan, and Kannaghunut Islands on the east and south, and the continental shore, Fillmore and Tongass Islands on the west and north;" or is it that body of water which goes seaward ""between Pearse Island and the peninsula, passes Ramsden Point, in (or at the entrance of) Observatory Inlet, and reaches the ocean by the channel between Pearse and Wales Island on the west, and the easternly continental shore, entering the ocean between Point Wales on the west and Point Maskelyne on the east.'' At this stage of the argument it will be helpful to contrast, with the aid of physical geography, the relative volume of the two bodies «B. C. App.,-146. 32 ALASKAN BOUNDARY TRIBUNAL. M of water competing for the title of Portland Channel, from the point of agreement to the open sea. The channel contended for by Great Britain is in length twenty-eight nautical miles; of an average width of 0.76 of a nautical mile; and of an average depth of sixty-four fathoms., This channel is at two points narrowed to a width of about two hundred and fifty metres (about an eighth of a mile), the result of which is a choking of the waters passing through it, in its tidal action, to such an extent that about ninety per cent of the tidal flow is through the channel contended for by the United States. The channel contended for by Great Britain, between Wales passage and Tongass passage, is foul ground, and the most ordinary prudence would forbid its navigation. The best evidence of that fact is to be drawn from Vancouver himself who tells us in his narrative that even when he was making his way to the sea by the channel in question he passed to the northward and westward of Fillmore Island instead of proceeding directly across the foul ground, thus avoiding five miles of the channel now embraced in the British contention.a Vancouver puts it beyond all doubt that at no time, either before or after his boat exploration, did he ever venture to enter with his ships into the channel in question. Certainly he was but little impressed with either the value or importance of the smaller channel, because after he had completed his exploration of it, he said, in the evening of August 2, This disappointment occasioned us no small degree of mortification, since we had already been absent from the ships a whole week, with the finest weather the sea-, son had yet afforded; and though our utmost exertions had been called forth in tracing the continent through this labyrinth of rocks we had not advanced more than thirteen leagues in a right line from the ships to the entrance of this inlet, and that in a southwest direction; very different from the course we could have wished to have pursued. It was also now evident that we had the exterior coast to contend with and from the length of time we had been indulged with fine weather, we could not reasonably expect its continuing much longer; indeed the appearance of the evening indicated an unfavorable alteration which made me apprehensive that probably the finest part of the season had been devoted, in our late pursuit, to a very perplexing object of no great value or consideration. The channel contended for by the United States is likewise twenty- eight nautical miles in length; of an average width of 2.58 nautical miles; and of an average depth of two hundred and eighteen fathoms. The volume of water contained in that channel is therefore about eleven a Vancouver's Narrative, Vol. II, pp. 343-345. ARGUMENT OF THE UNITED STATES. 33 and a half times as great as that contained in the channel advocated in the British contention. According to the statement of Vancouver, made when he entered the larger channel, '' its entrance is not more than two miles and a half across"; and later on he says "no bottom was however gained after passing that point (speaking of Point Maskelyne), with sixty and seventy fathoms of line." It appears not only from his narrative but from the charts of Vancouver that he navigated with his ships the larger channel, up to the junction with Observatory Inlet, both in and out. The reason is thus stated by Vancouver himself: "The route by which the vessels had advanced to Salmon Cove, being infinitely better for them to pursue towards Cape Caamano, than the intricate channel through which I had passed i/n the boats, we weighed with the intention of directing our course thus about six in the morning of .Saturday the 17th; but having a strong gale from the southward, we made little progress windward." a And yet despite the natural and cogent presumption that a trained navigator and cartographer would have given the name of the channel to the real and navigable one, in preference to an almost unnavigable one, which he described as "of no great value or consideration," the British Case assumes the burden of proving the contrary by means of the Narrative and maps of Vancouver himself. EVIDENCE OF THE CARTOGRAPHERS. During the progress of the negotiations specific references were made to the following maps and charts. Sir Charles Bagot in his letter of August 19 (31), 1823, to Mr. G. Canning said: I am not, however, quite sure that I am right in this last assertion, as the Russian Settlement of Sitka, to which I am told that the Russian Government pretends to attach great importance, is not laid down very precisely in the Map published in 1802 in the Quartermaster-General's Department here, or laid down at all in that of Arrowsmith, which has been furnished to me from the Foreign Office. Sir Charles Bagot in his letter of October 17 (29), 1823, to Mr. G. Canning, said: I then gave him to understand that the British Government would, I thought, be satisfied to take Cross Sound, lying about the latitude of 57§° as the boundary between the two Powers on the coast, and a meridian line drawn from the head 34 ALASKAN BOUNDARY TRIBUNAL. u of Lynn Canal, as it is laid down in Arrowsmith's last map, or about the one hundred and thirty-fifth degree of west longitude, as the boundary in the interior of the continent. Mr. G. Canning in his letter of January 15, 1824, to Sir C. Bagot s~aid: The most southern establishment of Russia on the northwest coast of America is Sitka, which is not laid down in our latest maps with sufficient exactness, but which appears by the Russian map published in 1802 to be situated, as the inclosed copy of a letter from Mr. Pelly, chairman of the Hudson's Bay Company, also represents it, in latitude 57°, and not (as the map of which a copy was inclosed to your Excellency indicates) on the continent, but on a small island of the same name at the mouth of Norfolk Sound; the larger islands contiguous thereto, forming (what is called by Vancouver) Kinge George's Archipelago, are separated from each other by a strait called Chatham Strait, and from the mainland by another strait, called Stephen's Strait or passage.a Mr. Canning will perceive by the inclosed Russian Chart (copied from Vancouver's survey) that the Russian settlement of Sitka is on a small island they have so named in the mouth of Norfolk Sound and in latitude 57° 5/ N. The great island contiguous to it is named by Vancouver "King George's Archipelago," and the strait which separates it from another island (Admiralty Island) is named "Chatham Strait." & In the Hudson's Bay Company's letter to Mr. G. Canning (No. 40), dated London, January 16, 1824, Mr. Pelly presents his compliments to Mr. Secretary Canning, and, as in the conversation he had with Mr. Canning he seemed to consider Mr. Faden's map as the most authentic (an opinion which in so important a question as that of settling a natural boundary it may, perhaps, be dangerous hastily to admit), Mr. Pelly has had the posts of the Hudson's Bay Company, in that part of the territory under consideration, marked on it; he has likewise had coloured the proposed line from Lynn Canal, the northern extremity of Chatham Strait, as well as the less objectional one from Mount Elias.c The Faden map here referred to is undoubtedly that published in London June 1, 1823 (No. 10 of the British Atlas), about seven months before the letter in question was written. In that letter also occurs the^ following: "The map is sent herewith, and likewise a copy of G. H. von Langsdorff's account of his voyage to the northwest coast of America, in the fourth chapter of which is a full description of Sitcha." Langsdorff's map, illustrating his voyage, is No. 7 of the British Atlas. No other specific references aU. S. C. App., 144. "> Memorandum, January 13, 1824, App. British Case, p. 59. CB. C, App., p. 65. ARGUMENT OF THE UNITED STATES. 35 are known to have been made, during the negotiations, to any other map or chart whatsoever. The statement heretofore made that Vancouver's Narrative clearly indicates the fact that he regarded Observatory Inlet only as a "branch" of the main body of water or " arm of the sea" to which he applied the name of Portland's Canal is confirmed by his chart outlining "Part of the Coast of North America," which appears as No. 2 in the British Atlas, and as No. 4 in the American.,;-: No minute examination is necessary to perceive that the name "Portland Canal" is so printed along one entire side in large letters as to indicate that it is given to the "arm of the sea' or fiord as a whole, while the name "Observatory Inlet" is printed in smaller type along that "branch" in such a way as to preclude the idea that it was intended to apply to any water below Point Ramsden. The accompanying reproduction demonstrates the relative size of the type employed. It thus appears that the name "Portland Canal," consisting of only thirteen letters, occupies a space just twice as long as that occupied by the name " Observatory Inlet" with sixteen letters. And to this must be added the consideration that it is a general rule with cartographers to place the name of the object designated as nearly opposite the centre of that object as possible. Applying that rule to the matter before us it appears that the names in question have been placed on that principle,—the name "Portland Canal" being placed as near as possible opposite the centre of the entire body of water, and the name "Observatory Inlet" being placed as near as possible opposite the centre of the " branch " beginning at Point Ramsden, although, according to the admission of the British Case, p. 55, "it was physically possible that they should extend southward as far as Pearse Island." If any confusion has resulted from the statement made by Vancouver that '' The west point of Observatory Inlet I distinguished by calling it Point Wales, after my much esteemed friend Mr. Wales, of Christ's Hospital," the plain answer is that such confusion was swept away when, through the plotting of his field notes, Vancouver saw clearly the relations of the several parts of his explorations to each other. It is hardly necessary to state that Vancouver's maps or charts embody the final and revised form of his work. On the map in question is the statement that it was "prepared under his immediate inspection." Map No. 1 of the British Atlas, dealing with the 36 ALASKAN BOUNDARY TRIBUNAL. same subject on a smaller scale, likewise designates the entire body of water by placing the name "Portland Canal" as nearly as possible opposite the centre in larger type, while the name "Observatory Inlet," is placed along the entire "branch" terminating at Point Ramsden, in smaller type. Nothing on this subject can be drawn from the Russian Map of 1802, inclosed in Sir C. Bagot's No. 56, for the reason that.the names in question were not reproduced. And the same may be said of Langsdorff's map of 1803-4—5 (No. 7 of the British Atlas) because the scale is so small that the inlets cannot be identified. While the scale of Walch's map, Augsburg, 1807, is also too small to be decisive one way or the other, Pinkerton's Modern Atlas, "from Mr. Arrowsmith's map" of 1818, fortifies the American contention based on the manner in which the names were originally printed. The printing of the names on Brue's map of 1815-19 indicates nothing material in favor of either party. Before commenting upon the Arrowsmith map of 1822, with additions to 1823 (No. 10 of the United States Atlas), a map known to have been before the negotiators, the fact should be emphasized that its author, " Hydrographer to His Majesty," produced, during a long period of years a series of official or semi-official maps of the highest character and authority. In the Arrowsmith map just referred to, the name * I Portland Canal" is so printed as unquestionably to refer to the entire "arm of the sea" or fiord, while the name of "Observatory Inlet" is so printed as unquestionably to refer only to the "branch" ending at Point Ramsden. The maps of Faden (Nos. 10 and 11 of the British Atlas, the first of which is known to have been before the negotiators), published by his successor James Wyld, "Geographer to His Majesty," after citing the authorities on which they are based, including Vancouver, tell the same story so far as the printing of the names is concerned. If it is to be assumed that the negotiators of the treaty of 1825 had before them every map or chart published before that time, it cannot be denied that the dominant and central fact that confronted them, on every one of importance, including those of Vancouver, was that the name "Portland Canal" was so placed and printed as unmistakably to extend its application to the entire "arm of the sea" in question, while the name "Observatory Inlet" was so placed and printed as unmistakably to limit its application to the " branch" ending at Point Ramsden. ARGUMENT OF THE UNITED STATES. 37 MAPS AND CHARTS PUBLISHED SINCE 1825. Nothing could be more emphatic than the confirmation given to the statement just made in the-map (Am. Atlas No. 12), which appears to be the first British map published after the making of the treat}7 of 1825. That such map was intended to be an interpretation of that treaty is made certain by the following printed on its face: "Note. Wherever the summit of the mountains (which are supposed to extend in direction parallel to the coast) from the 56th degree of N. Lat. to the point of intersection of the 141st degree of W. Long, shall prove to be at the distance of more than 10 marine leagues from the Ocean, the limit between the British Possessions and the line of coast which is to belong to Russia, shall be formed by a line parallel to the windings of the coast and which shall never exceed 10 marine leagues therefrom. See Article 4th Treaty 1825." On the face of that map, the two islands, Wales and Pearse, which are correctly located, are distinctly colored as Russian in yellow, that color being used throughout to designate the territory confirmed to Russia by the treaty; while the three islands on the east side of the canal, Somerville, Compton and Tuiro, are as distinctly colored in pink, that color being used throughout to designate the territory confirmed to Great Britain by the treat}7. As evidence of the fact that the construction thus put upon the treaty of 1825 by Arrowsmith was identical with that put upon it by the French geographers, reference is made to the map of Brue, published at Parisj 1833 (Am. Atlas, No. 13), in which the dividing line between British and Russian territory is thus described: " Zimite entre les possessions Anglaises et Pusses, d'apres le traite de 1825." The line in question is a distinct dotted line, following the contention of the United States, and therefore including Wales and Pearse Islands in Russian territory. But more conclusive still is the Admiralty chart (No. 25 of the British Atlas) entitled "Port Simpson to Nass Village," of 1868, issued by the highest geographical authority known to the British Empire—the British Admiralty. It is hard to understand why the following caveat should have been inscribed on the face of this chart: " The name Portland Canal on this sheet was inserted by the Surveyors without authority. The name Portland Inlet as applied to the southernmost part of what Vancouver called Observatory Inlet, was copied from an Admiralty Chart of 1853. By whose authority this name was applied in 38 ALASKAN BOUNDARY TRIBUNAL. drawing that chart is not known." As the chart was put forth as an official document by the British Admiralty the outside world has no right to go behind its imprimatur in order to inquire into the method of its construction. Suffice it to say that it emphatically upholds the American Case, affirmatively, by giving to the body of water contended for therein the names of Portland Inlet and Portland Canal; negatively, by ignoring, as unworthy even of a name or survey, the body of water contended for in the British Case. In that respect it perfectly agrees with the Narrative of Vancouver who said, after he had finished his boat exploration of it: "that probably the finest part of the season had been devoted in our late pursuit to a very perplexing object of no great value or consideration."05 Just as Vancouver, in 1793, gave the name of Portland to the entire "arm of the sea" so in 1868 the British Admiralty gave the name of Portland to the only channel in that "arm" which was really navigable. If by any possibility the fact could be established that the names "Portland Inlet" and "Portland Canal" were introduced without authority into the Admiralty Chart of 1868, just referred to, how can the fact be explained away that these names were repeated in substantially the same form on the "British Admiralty Chart No. 2431, Cardova Bay to Cross Sound, 1865, corrections to 1884" (British Atlas No. 33) ? Certainly the explanation now prnted on the face of that chart does not contest the fact that it was actually issued in its present form. That the Canadian geographers understood the matter in the same way is manifest from the map (No. 42, Atlas Am. Counter Case) published in 1881 in the "Geological and Natural History Survey of Canada; Report of Progress for 1879-80." On that map the "presumed boundary" is distinctly drawn so as to include Wales and Pearse Islands in American territory. Another confirmation coming from a Canadian source, is contained in a map (No. 31 of the British Atlas) of " British Colombia compiled and drawn by Edward Mohun, C. E. by direction of the Honorable W. Smithe, Chief Commissioner of Lands and Works, Victoria, B. C. 1884." On that map the line entitled "Approximate international boundary by convention between Great Britain and Russia, 1825," boldly and distinctly drawn, includes 7 7 v %/ J both Wales and Pearse Islands within American territory. On a map «Vol. II, p. 345. ARGUMENT OF THE UNITED STATES. 39 of the Dominion of Canada, by the "Geological and Natural History Survey of Canada," 1842 to 1882, (No. 32 of the British Atlas) the names "Portland Inlet" and "Portland Chan." are printed in capital letters along the entire course of the channel contended for by the United States, while the name " Observatory Inlet" is printed in much smaller letters along the "branch" ending with Point Ramsden. On this map Wales and Pearse Islands are also so tinted as to indicate, that they are American Territory. PRESUMPTION TO BE OVERCOME BY GREAT BRITAIN THAT THE THALWEG IS THE BOUNDARY. If it be true, as heretofore contended, that the upper part of the body of water, admitted by both parties to be Portland Canal above Pearse Island, goes to the sea through two channels, is it not a violent presumption to suppose that Vancouver would have limited the name "in honor of the noble family of Bentinck" to that practically unnavigable and narrow channel, to which he referred as " a very perplexing object of no great value or consideration," to the exclusion of the broad and navigable channel of which he said: "The route by which the vessels had advanced to Salmon Cove, being infinitely better for them to pursue towards Cape Caamana than the intricate channel through which I passed in the boats." Such presumption is overborne by the overwhelming testimony of the numerous maps and charts, heretofore referred to, existing prior to and after the making of the treaty of 1825. The British Case relies mainly upon two passages from Vancouver's Narrative, as follows: Nothing of any note having occurred during my absence, I shall conclude this chapter by the insertion of the astronomical and nautical observations made at this place, and, in consequence of our having been so fortunate as to be able to obtain those that were essential for correcting our former survey, and for our future regulation in that respect, this branch obtained the name of Observatory Inlet, and the cove, where the vessels were stationed, that of Salmon Cove, from the abundance of that kind of fish that were there taken.a The west point of Observatory Inlet I distinguished by calling it Point Wales, after my much-esteemed friend Mr. Wales of Christ's Hospital, to whose kind instruction in the early part of my life I am indebted for that information which has enabled me to traverse and delineate these lonely regions.a «B. C. App., 146, it.N« 40 ALASKAN BOUNDARY TRIBUNAL. As has been shown, looking to the entire narrative, it is in doubt as to what waters he applied the name of Portland Canal. There is no affirmative evidence tending to show that the negotiators of the Treaty of 1825 ever had any knowledge of Vancouver's narrative, entitled "A Voyage of Discovery to the North Pacific Ocean." Upon the contrary there is conclusive evidence of the fact that Sir Charles Bagot, who for the greater period of time carried on the British negotiations, was ignorant of it,—certainly of that part of it relating to Portland Canal. This statement is borne out by the following. Vancouver, in rebutting the idea that Portland Canal was the outlet of an interior river system, said: "From hence it took a more northerly direction, and then trended a little to the eastward of north, where, by ten of the forenoon of the following day, it was found to terminate in low marshy land in latitude 55° 45', longitude 230° 6'." In March, 1824, Sir Charles Bagot, in his reply "to observations of Russian plenipotentiaries," said: "The head of Portland Channel may be, as there is reason to believe, the mouth of some river flowing through the midst of the country occupied by the Hudson's Bay Company, and it is, consequently, of great importance to Great Britain to possess the sovereignty of the two shores thereof."01 Furthermore it should be noted that throughout the correspondence between the negotiators the astronomical locations are given in longitude west of Greenwich, while in the narrative of Vancouver the longitude given is east. On all the English maps referred to in the negotiations the longitude appears as west of Greenwich. Is it to be presumed that the negotiators generally were better informed as to Vancouver's narrative than the experienced representative of Great Britain who, for some years, had been charged with her interests at St. Petersburg, and who contradicted Vancouver in a vital particular. That the Russian negotiators wefe either ignorant of, or in conflict with the narrative as to the latitude of the termination of Portland Canal, which Vancouver had determined to be " in latitude 55° 45'," is established by the British Case (p. 20) where the following averment is made: "In their reply to Sir Charles Bagot's amended proposal, the Russian Plenipotentiaries re-stated their reasons for proposing as the boundary on the coast of the continent to the south ('sur la cdte du continent au sud') the Portland Canal, the «U. S. C, App., p. 163. ARGUMENT OF THE UNITED STATES. origin of which inland ('dans les terres') they said was at the 56th degree of north latitude, and to the east the chain of mountains which followed at a very little distance the sinuosities." The divergence between the two statements is fifteen nautical miles. In the second place, admitting for the sake of the argument, despite the affirmative evidence to the contrary, that the negotiators, or some of them, were familiar with Vancouver's narrative, they must have known that it could only be considered in connection with his charts which were the final, adjusted and authoritative statements of his explorations. When the entire body of evidence accessible to the negotiators is taken together,—that is to say the narrative and charts of Vancouver and the maps and charts of all the other cartographers published before 1825,—can it be held that the foregoing passages from the narrative, should be held to maintain a conclusion so improbable, looking to the character of the two channels. If any doubt could remain in the mind as to the intention of the negotiators, certainly that doubt must be removed by the consensus of the cartographers who have spoken since 1825 to the effect that Portland Channel is really that one described in the American contention. In reference to the map of Greenhow referred to in the British Case, p. 59, where the statement is made that " he shows the water boundary running to the north of the islands, in accordance with the British contention," suffice it to say that while the line drawn by him appears to run in that way, yet by reason of his very defective cartography the mind remains in complete doubt as to the identity of the three islands, north of which his line is run! In answer to the further statement made at this point in the British Case,a that "it is believed that no map has been found showing any contrary indication till a comparatively late date," reference is made to the Arrowsmith map of 1833 (No. 12, American Atlas) in which this famous " Hydrogra- pher to His Majesty," within eight years after the treaty was made, distinctly colored Wales and Pearce Islands as Russian territory, and to maps 14, 20 and 24 of the U. S. Atlas. THE THALWEG AS THE BOUNDARY OF CONTERMINOUS STATES. If the maps and narrative of Vancouver shall both be looked to, and if, on the whole evidence, there shall be a doubt as to what the nego- tiators meant, then the result should be controlled by the rule of inter- «B. C, p. 59. S. Doc. 162, 58-2, vol 5- 42 ALASKAN BOUNDARY TRIBUNAL. hh national law which declares, that, if there be more than one channel in a body of water dividing conterminous states, the deepest channel is the mid-channel or thalweg for the purposes of territorial demarcation. According to Grotius: "A river that separates two empires is not to be considered barely as water, but as water confined within such and such banks and running in such and such channel. "a According to Vattel: "If, of two nations inhabiting the opposite banks of the river, neither party can prove that they themselves, or those whose rights they inherit, were the first settlers in those tracts, it is to be supposed that both nations came there at the same time, since neither of them can give any reason for claiming the preference; and in this case the dominion of each will extend to the middle of the river."6 Sir Travers Twiss has well said that '' Grotius and Vattel speak of the middle of the river as the line of demarcation between two jurisdictions, but modern publicists and statesmen prefer the more accurate and more equitable boundary of the midchannel. If there be more than one channel of a river, the deepest channel is the midchannel for the purposes of territorial demarcation; and the boundary line will be the line drawn along the surface of the stream corresponding to the line of deepest depression of its bed. Thus we find in the Treaty of Angovie (17 Sept. 1808) concluded between the Grand Duchy of Baden and the Helvetic Canton of Angovie, that the thalweg, or water frontier line, is defined to be \ the line drawn along the greatest depth of the stream,' and as far as bridges are concerned, ' the line across the middle of each bridge.' The islands on either side of the midchannel are regarded as appendages to either bank; and if they have once been taken possession of by the nation to whose bank they are appendant, a change in the midchannel of the river will not operate to deprive that nation of its possession, although the water frontier line will follow the changes of the midchannel."6' See also Bluntschli, Sec. 298, Lardy's trans.; Rivier, vol. 1, pp. 142,168. Hall says that where the boundary "follows a river, and it is not proved that either of the riparian states possess a good title to the whole bed, their territories are separated by a line running down the middle, except where the stream is navigable, in which case the centre of the deepest channel, or, as it is usually « De Jure Belli ac Pacts, 11, c. 3, Sec 17. b Droit des Gens, Bk. I.e.. XXII, Sec. 26, c27te Law of Nations, 1. pp. 207-8. ARGUMENT OF THE UNITED STATES. 43 called, the Thalweg is taken as boundary."" The rale is not limited however to cases in which rivers are boundaries between conterminous states; it extends as well to the thalweg of "a strait, sound, or arm of the sea." That view is thus stated in Field's International Code, p. 16: "Boundary by a strearn or channel. 30. The limits of national territory, bounded by a river or other stream, or by a strait, sound, or arm of the sea, the other shore of which is the territory of another nation, extend outward to a point equidistant from the territory of the nation occupying the opposite shore; or if there be a stream or navigable channel, to the thread of the stream, that is to say, to the midchannel; or, if there be several channels, to the middle of the principal one." To the same effect is Halleck, who says: "But where the river not only separates the conterminous states, but also their territorial jurisdictions, the Thalweg, or middle channel, forms the line of separation through the bays and estuaries through which the waters of the river flow into the sea. "As a general rule, this line runs through the middle of the deepest channel, although it may divide the river and its estuaries into very unequal parts. But the deeper channel may be less suited, or totally unfit, for the purposes of navigation, in which case the dividing line would be in the middle of the one which is best suited and ordinarily used for that object. The division of the islands in the river and its bays would follow the same rule."6 In this case it is proven that the channel contended for by the United States is the deepest, broadest and by far the most important because it is in fact the only really navigable and safe one.c Vancouver, if his narrative shall be regarded as admissible evidence, put that fact at rest by describing the narrow, rocky and reallv unnavigable channel contended for by Great Britain as an "object of no great value or consideration." In describing his boat exploration to the sea, partly through this channel, he says, "and though our utmost exertions had been called forth in tracing the continent through this labyrinth «Int. Law, p. 127. **Int. Law (Baker ed.), vol. 1, p. 171, citing Grundling, Jus Nat., p. 248; Wolfius, Jus Gentium, Sees. 106-109; Stypmannus, Jus Marit., etc., cap. V, N. 476-552; Merlin, Repertoire, voc. 'alluvium;' Rayneval, Droit de la Nature, torn. I, p. 307; De Cussy, Droit Maritime, liv. I, tit. II, Sec. 57. «U. S. C. C. App., 237-238. 44 ALASKAN BOUNDARY TRIBUNAL. of rocks we had not advanced more than thirteen leagues in a right line from the ships to the entrance of this, inlet." He never dared to traverse that part of it, heretofore designated as the "foul ground," even in open boats. At no time, either before or after his boat excursion, did he ever venture to enter the smaller channel with his ships. His charts fix the fact that he navigated with his ships the larger channel, into the junction with Observatory Inlet, both in and out. The reason he O %J 7 gives in his narrative for this preference is that "The route by which the vessels had advanced to Salmon Cove, being infinitely better for them to pursue towards Cape Caamano, than the intricate channel through which I had passed in the boats." As hitherto pointed out, the smaller channel, is of an average depth of sixty-four fathoms, and of an average width of only three quarters of a nautical mile,-at two points, narrowed to a width of about an eighth of a mile, while the greater channel, of an average depth of two hundred & eighteen fathoms is of an aveiage width of 2.58 nautical miles. As stated heretofore the volume of water contained in the larger channel is about eleven and a half times as great as that contained in the smaller; while the narrowness of the smaller produces a choking of the waters passing through it, in its tidal action, to such an extent that about ninety per cent of the tidal flow is through the channel contended for by the United States. Is it, therefore, a matter of wonder that the British Admiralty chart of 1868 should have entirely ignored the smaller channel as unworthy even of a name or survey, while the larger was carefully designated as "Portland Inlet." There is no question here of weighing evidence in order to determine which one of two channels running through " an arm of the sea" is the deepest, widest and most navigable. The proof dods not leave any room for doubt. It is simply a question of substituting for the general rule of international law, designating such thalweg as the boundary a special and conventional rule declaring a smaller, narrower and "shallower" "labyrinth of rocks" as the boundary. The only possible way in which Great Britain could work out that result would be to establish affirmatively that such was the special contract and agreement entered into with Russia in the treaty of 1825, the effect of which would be the suspension of the general rule of international law declaring the deepest and most navigable channel the ARGUMENT OF THE UNITED STATES. 45 midchannel, and the substitution in its place of a special and conventional rule declaring the contrary. See Grotius, De Jure Belli ac Pads, lib. II, pill; Bluntschli XV, 2; Martens, Preds, § 119, p. 320; Bluntschli, Volkerrecht, § 402, Lardy's trans.; Calvo, Droit Int., 1, § 19,p. 109; Phillimore,Int. Law, 1,pp. 41 15 (2d ed., London); Twiss, Law of Nations, 1, pp. 130-131; Lawrence's Wheat., p. 28; Halleck, Int. Law, 1 (Baker ed.), p. 50; Lorimer, Ins. of Int. Law, 1, p. 43. Reference in this connection is made to the rule of construction No. 6 set forth above, which provides that it is not to be presumed without very strong reasons that one of the contracting parties intended to favor the other to his own prejudice. It is not to be presumed, therefore, that the Russian Government intended to abandon the use of the only channel leading to its possessions along the southern boundary of the lisiere, which it knew to be navigable and safe, and to confine itself to the use of a channel which was not of sufficient importance to be clearly shown on some of the charts and on others was shown to be so broken and tortuous that its dangerous and undesirable character both for navigation and as a boundary is evident at a glance. SOUTHERN LINE OF RUSSIA AS DEFINED IN TREATY OF 1824 BETWEEN RUSSIA AND THE UNITED STATES. It was claimed by the United States that the territorial claims of Great Britain and the United States were coextensive and concurrent on the northwest coast of North America. The idea that the United States had "no territorial pretensions so high as*the fifty-first degree of north latitude and no territorial interest in the demarcation of the boundary between His Majesty and the Emperor of Russia to the north of that degree" was dissipated by the note of Sir C. Bagot to Mr. Canning of October 17/29, 1823, in which he said: Although Mr. Middleton has not communicated to me the instructions which he had received, I have collected from him, with certainty what I have long had reason to suspect, that the United States, so far from admitting that they have no territorial pretensions so high as the fifty-first degree of north latitude and no territorial interest in the demarcation of boundary between His Majesty and the Emperor of Russia to the north of that degree, are fully prepared to assert that they have at least an equal pretension with those powers to the whole coast as high as the sixty- first degree, and an absolute right to be parties to any subdivision of it which may now be made. Unless I greatly misconceive the argument of Mr. Middleton, it is 46 ALASKAN BOUNDARY TRIBUNAL. contended by the American Government that, in virtue of the Treaty of Washington, by which the Floridas were ceded by Spain to the United States, the latter are become possessed of all claims, whatever they might be, which Spain had to the northwest coasts of America, north to the forty-second degree of north latitude, and that when Great Britain, in the year 1790, disputed the exclusive right of Spain to this coast, the court of Russia (as, indeed, appears by the declaration of Count Florida Blanca, and as it would, perhaps, yet more clearly appear by reference to the archives of the foreign department here) disclaimed all intention of interfering with the pretensions of Spain, and, consequently, all pretensions to territory south of the sixty-first degree, and that, therefore, any division of the coast lying between the forty-second and sixty-first degrees ought in strictness to be made between the United States and Great Britain alone. a When during the negotiations of 1824 Mr. Middleton was notified that Great Britain would treat separately, he at once notified the Russian Minister of Foreign Affairs and Sir Charles Bagot that if any attempt was made to negotiate upon the territorial question without the participation of the United States, it would be his duty to protest in the strongest terms. He stated to the British Minister that, as Great Britain had I j no settlement or possession upon any part of the north-west coast of America," she had no "claims" to convey except such as she derived from the Nootka Sound convention with Spain, signed October 28, 1790; that the United States had succeeded to all the Spanish rights by the treaty of February 22,1819, which gave the latter concurrent claims with Great Britain whatever her pretensions might be; and that for these reasons any treaty between Great Britain and Russia in which the United States was not a party would be nugatory as to it and could not divest it of the right to enjoy the coast. After having maae a like declaration to Count Nesselrode, Mr. Middleton secured an interview with him on February 23, 1824, at which he submitted a brief paper entitled, "State of the Question," in which the territorial claims of the United States were thus formally defined: i The United States, by their discovery of the mouth of the Columbia river and by their subsequent real occupation and continued possession of a district on the same part of the Northwest Coast of America, have perfected their right of sovereignty to that territory. By the third article of a convention with Great Britain, concluded October 20, 1818, they stipulated '' that any country that might be claimed by either party on the Northwest Coast of America westward of the Stony mountains should, together with its harbors, bays and creeks, and the navigation of all rivers within the same, «U. S. C, App., pp. 129-130. ARGUMENT OF THE UNITED STATES. be free and open, for the term of ten years from that date, to all vessels, citizens, and subjects, of the two powers, without prejudice to the claims of either party or of any other State." By a convention with Spain of February 20, 1819, the United States acquired all the rights, claims, and pretentions, of that power to all the Northwest Coast lying north of the 42d parallel of latitude. The claims of Spain appear to have rested on prior discovery, as far as the fifty-ninth degree north. So far, then, as prior discovery can constitute a foundation of right, the Northwest Coast as far as the 59th degree north belongs to the United States by the transfer of the rights of Spain. Great Britain has no establishment or possession on any part of the Northwest Coast. She has, therefore, no right, claim, or pretension to any portion thereof, except such as may result from the convention with Spain concluded October 28, 1790. It is, then, evident that her claim is concurrent with those of the United States, and can only reach to whatever point these last may be considered to extend. It appears, then, that Russia and England can not make a definite arrangement without the participation of the United States, or at least going to their exclusion. Any agreement which these two powers may make will be binding upon themselves, but can not effect the rights of a third power.« The outcome of the separate negotiation between Russia and the United States was the treaty signed 5 17 April, 1824, which provided (Article III) that "It is moreover agreed that, hereafter, there shall not be formed by the citizens of the United States, or under the authority of the said States, any establishment upon the Northwest coast of •America, nor in any of the islands adjacent, to the north of fifty-four degrees and forty minutes of north latitude; and that, in the same manner, there shall be none formed by Russian subjects, or under the authority of Russia, south of the same parallel." The outcome of the separate negotiation between Russia and Great Britain was the Treaty signed February 16 28, 1825, which provided in Art. Ill, that the line should commence at the southernmost point of the island called Prince of Wales Island, which point lies in the parallel of 5lf degrees lft minutes, north latitude. It thus appears that in the respective treaties the parallel of 54° 40' was the common line of demarcation separating the jurisdiction of Russia on the south from that of Great Britain and the United States. In a note written on the very day the treaty between Russia and the United States was signed, April 5/17, 1824, Count Nesselrode wrote to Count Lieven, concerning the southern line to be settled with Great-Britain as follows: In order not to cut Prince of Wales island, which, according to this arrangement, Would remain to Russia, we proposed to carry the southern frontier of our domains «U. S. C, App., pp. 81-82. 48 ALASKAN BOUNDARY TRIBUNAL. to latitude 54° 407 and to make it abut upon the continent at the Portland Canal, of which the opening into the ocean is at the same latitude as Prince of Wales Island, and which has its origin inland between 55° and 56° of latitude. * * * If Prince of Wales Island remains to us, it is necessary that it can be of some utility to us. Now, according to the plan of the British ambassador, it would be for us only a burden, and perhaps an inconvenient one. That island, in fact, and the establishments which we might set up thereon, would find themselves entirely isolated, deprived of all support, surrounded by the domains of Great Britain, and at the mercy of the English establishments of the coast. We would exhaust ourselves in the cost of guarding and watching our part without any compensation to alleviate the burden. Would such an arrangement be founded on the principle of mutual expediency? We have all the more right to appeal to this principle, since England herself has proved by an authentic act that she regarded her rights to the territory, the surrender of which she demands, as doubtful. The convention of October 20, 1818, between the Court of London and the United States, declares that all the extent of country between the Rocky Mountains, the Pacific Ocean, and the ■ Russian possessions shall be the common property of the two powers for ten years. The titles of the United States to the possession of this territory are, therefore, as valid as those of England. Nevertheless, the Cabinet of Washington has admitted that our boundary should come down as far as 54° 40'. This has been admitted in a formal agreement that we have just signed with its plenipotentiary, and the strengthening of our arguments is far from being the only result of this admission; it has other consequences to which we rightly attach the greatest importance.a On August 31, 1824, Count Nesselrode, in writing to Count Lieven to the effect that there were three of the then pending proposals of Great Britain which it was impossible to accept, said: " I reserve to myself the duty of making, in this dispatch, the most important observations, those concerning clauses which it is utterly impossible for us to accept. They are three in number: 1. Liberty to English subjects to hunt, to fish, and to trade with the natives of the country, perpetually, on the whole of that part of the coast which constitutes the subject of the discussion, and which extends from 59° of north latitude to 54° 40'." & It thus appears that no matter whether Count Nesselrode was negotiating with the United States or Great Britain his one idea was that Russia's southern boundary, on the coast, as to each, was to be 54° 40'. There is therefore no warrant for the following statement in the -British Case (p. 56): "This shows that the British understanding, communicated to and not questioned by Russia, was that Portland «U. S. C, App., pp. 173-174. &U. S. C, App., p. 201. ARGUMENT OF THE UNITED STATES. 49 Channel entered the ocean in 54° 45'". It should be remembered that that statement, based on Sir C. Bagot's proposal of "February- March, 1824," was followed by the two communications quoted above from Count Nesselrode to Count Lieven, dated respectively April 5/17, 1824, and August 31, 1824, in both of which Russia, combating the British suggestion, insisted upon the line of 54° 40'. Notably in the first communication above quoted Count Nesselrode said: We proposed to carry the southern frontier of our dominions to latitude 54° 40' and to make it abut upon the continent at the Portland Canal, of which the opening into the ocean is at the same latitude as Prince of Wales Island. It is hardly necessary to add that, the phrase "the same latitude as Prince of Wales Island" necessarily referred to the southern part of that island. If that be true, Russia's southern line could only enter Portland Channel at the point contended for by the United States. In the light of the foregoing does it not violate all human probability to assume that Russia intended to fix her southern boundary at one point, as to the United States, and at another point, as to Great Britain, leaving between the two a wedge-shaped expanse of water forming a triangle with a base of less than six miles and a height of about seventy? IDENTITY OF PORTLAND CHANNEL AS UNDERSTOOD BY THE PARTIES AFTER THE TREATY. The lease of the lisiere to the Hudson's Bay Company recited that it included the " Coast, exclusive of the Islands, and the Interior Country belonging to His Majesty the Emperor of Russia, situated between Cape Spencer forming the North West Headland of the entrance of Cross Sound and Latitude 54° 40' or thereabouts, say the whole mainland coast and Interior country belonging to Russia" etc.*3* It is to be noted that the words "or thereabouts" used to qualify 54° 40' as the location of the southern extremity of the territory leased, do not signify any doubt as to the location of the boundary line at that parallel, but on the contrary show that it was well understood that the leased territory was not to extend fully to the boundary at that point. The lease was . limited expressly to the mainland coast and all the islands were in terms excluded. 50 ALASKAN BOUNDARY TRIBUNAL. An examination of the maps will show that the mainland coast was some distance above 54° 40' at that point, and that in the intervening space were Wales Island, Pearse Island and several other smaller islands. The significance of the expression "54° 40' or thereabouts" as the southern limit of the lease therefore, is that it was recognized that if the description was carried to the boundary at 54° 40' without qualification it would extend beyond the mainland and include these islands which would have conflicted with the other provisions of the lease. The only escape from this conclusion would be in the assumption that the lease was not prepared with care and precision. The character of the lease forbids such an assumption, however, and it appears upon the record that the reverse is true. Mr. Simpson, who negotiated the lease with Baron Wrangell, in writing to him in preparation for it says that it had been understood that the islands would be included within the leased area but on the understanding that they were to be excluded he continues: But such being the new state of /affairs, it is necessary to enter into the minutest considerations and details .... in order to guarantee that we shall be protected from all direct or indirect rivalry in trading in the leased territory.*2 The fact that care was taken to describe the southern end of the leased territory so that it would not extend to the line of the boundary on the water at the entrance of Portland Channel, therefore indicates that it was done in order that there should be no question of its extending beyond the mainland and including the islands lying between the mainland and the boundary at 54° 40'. This was a mutual recognition that such islands above 54° 40' belonged to Russia and consequently that the Portland Channel of the treaty was not limited to the channel wholly separated from 54° 40' and lying between the islands and the mainland. The translation of the lease as given in the United States Counter Case Appendix, p. 6, differs from the translation in the British Case Appendix at p. 150, and omits the words "or thereabouts," in connection with the reference to 54° 40'. It is immaterial, however, which translation is relied upon, for in either case the proof is complete on the point that there was a mutual recognition that the islands above 54° 40' belonged to Russia, and consequently that the Portland Channel of the boundary was not above such islands. «U. S. C. C. App., 4. ARGUMENT OF THE UNITED STATES. 51 Throughout the proceedings leading up to this lease and in subsequent references to it, the understanding on both sides is uniformly shown to have been that the boundary extended to 54° 40' and that the Portland Channel of the boundary was the channel, through the entrance of which that parallel is found. The following extracts leave no doubt on that point: Our Company believes that * * * it would be advisable to cede to the Hudson's Bay Company the exclusive right of trade on the shore of the continent between latitude 54° 407 and the Cross Strait." [Report of Count Nesselrode.] In the letter of the Directors of the Russian-American Company to the Minister of Foreign Affairs, January 25, 1859, the lease is referred to as "of a part of our possessions on the North West coast of America, a strip of land extending in a North Westerly direction from latitude 54° 40' north, etc."6 In the memorandum submitted by the Russian Minister of Finance to the Vice Chancellor in his letter of March 16, 1867, he says of the lease that it related to -' that part of the mainland belonging to Russia which lies between Cape Spencer and 54° 40' northern latitude" etc.c He also says that the United States Minister on behalf of certain merchants in California has offered to lease exactly the same territory leased to the Hudson's Bay Company, together with the islands, and this territory he describes as running part of the way " southward along the above mentioned boundary (the boundary between Russian and English possessions) to latitude 54° 40'" etc/ In the testimony of Sir George Simpson before the Committee of the House of Commons, 1857, he says: There is a margin of coast marked yellow in the map from 54° 40' up to Cross Sound, which we have rented from the Russian-American Company for a term of years.a Sir George Simpson also says in his Narrative of his Journey Round the World, 1841-2, speaking of the lease: Russia, as the reader is, of course, aware, possesses on the mainland, between lat. 54° 40' and lat. 60°, a strip, etc.« «U. S. C. C. App., 3. »U. S.C. C. App., 21. c U. S. C. C. App 34. d U. S. C. C. App., 38. «U. S. C. App., 318. ALASKAN BOUNDARY TRIBUNAL. Russia was fully informed of the terms of this lease and sanctioned it, as appears from the recital in Art. I of the lease, and also from the reports of the Russian officials printed in the record. There can be no doubt, therefore, as to the Russian understanding that the southern boundary of her possessions on the coast extended to 54° 40' and her intention to express that understanding in this lease. It is equally clear that the attention of the British Government was directed to the making of the lease and to its terms. The lease was the direct outcome of the Dryad claim, for the settlement of which the British Government was vigorously pressing, and it is not to be presumed that the settlement, through the medium of this lease, was agreed to without a full understanding and approval of the circumstances on the part of Great Britain. Furthermore, the Hudson's Bay Company had full knowledge of how the lease was understood by Russia and the testimony of Sir G. Simpson, the Governor of that company, quoted above is itself sufficient to show that that company acquiesced in such understanding and that knowledge of the lease, and its bearing on the question of the boundary at 54° 40' was brought home to the British Government. Further evidence of official knowledge of this lease on the part of Great Britain is furnished by the neutrality agreement with Russia, which was made expressly because of the existence of this lease. In view of these considerations, therefore, even if Great Britain should plead official ignorance of the lease prior to the definite information brought home to her as shown above, there certainly can be no doubt as to her notice at that time, and her acquiescence in the lease and her action with respect to it impute to her full knowledge of all that it involved. Reference is also made to the numerous other specific instances referred to elsewhere in the argument and in the United States Case and Counter Case in connection with the lease of the lisiere which show that this mutual understanding as to the coincidence of 54° 40' and the Portland Channel of the treaty received general acceptation and confirmation in the maps and the public and private writings emanating from British sources. TONGASS ISLAND STATION. On page 8 of the British Counter Case stress is laid on the location in 1835 by the Russian-American Company of a station on Tongass ARGUMENT OF THE UNITED STATES. Island, which lies north and west of the entrance to what is denominated in the United States Case "Pearse Canal," and in the British Case "Portland Canal." It is claimed that inasmuch as the direction was to locate a station "on the frontiers of our straits," the fact that the location was made on Tongass Island proves that it was regarded by the Russian-American Company as being the extreme frontier of Russian territory. This is an over strained conclusion. The instructions said: As we inay say that the only place in our straits, visited by the foreigners is Tongas, you must select this bay as the place of your sojourn. The selection was not made with any object of fixing a boundary point. It was only chosen as a convenient station near the frontier for protecting the trade with the natives. It appeared as stated that it was the only place visited by the foreigners. As the object was to police the frontier against foreigners and not to fix an extreme boundary point, that point was chosen to which foreigners resorted rather than a point nearest the water up which the boundary line passed to which foreigners had not resorted. The instructions which are only partially quoted in the British Counter Case, go on to say that the most important influx of furs is at Tongass. That was a sufficient reason for establishing the station there.' ALLEGED ADMISSION IN THE UNITED STATES CASE. In the British Counter Case (p. 7) a passage is quoted from the Case of the United States as follows: The condition of the territorial controversy "Had shrunk to a dispute over the possession of an irregularly shaped portion of the continent bounded on the east by Pearse and Portland Canals and a presumptive chain of mountains, on the north by a line extending from a point on the coast, about latitude 56° 307, to the mountain range, and on the west by the indented continental shore line, together with the islands lying between Clarence Strait and the mainland from 54° 40' to 56° 30' and thus situated north and west of Portland Canal and between it and the continent. The British Counter Case proceeds: It will be noticed that the eastern boundary of the section described is given as "Pearse and Portland Canals". But "Pearse Canal", which is the name subsequently given by the United States to the lower part of Vancouver's Portland Canal, and "Portland Canal", which name was later limited by the United States <*U. S. C. App., 233-234, PsvT IP ftt-ff 54 ALASKAN B0UNDAR1T TRIBUNAL. to the upper part of Vancouver's Portland Canal, make together the "Portland Canal" of Vancouver as claimed by Britain. And there is thus here an express admission that, at this stage of the negotiation, it was that canal, and no other, 'which the Parties meant by Portland Canal. This is based on a misunderstanding of the passage quoted. The effect of the words "together with the islands lying between Clarence Strait" etc. is overlooked. They are intended to be taken with the words, "an irregularly shaped portion of the continent'* etc. It was meant to say that it had shrunk to a dispute over the portion of continent, within the bounds designated, together with the islands described. This is plain from the concluding words which say, that they (meaning the islands) are situated north and west of Portland Canal and between it and the continent. No such admission as that stated was made by the United States. It is submitted on behal t of the United States therefore that the Portland Channel of the treaty, when tested by the intention of the negotiators, by the language of the treaty, and by the understanding of the parties as shown by their subsequent actions is clearly identified with that body of water commonly known as Portland Channel in accordance with the answer proposed by the United States in answer to the second question. SEVENTH. Thtrd Question. " What course should the lime take from the point of commencement to the entrance of Portland Channel? Answer Proposed by the United States: The United States requests the Tribunal to answer and decide that the line from Cape Muzon should be drawn in an easterly direction until it intersects the center of Portland Channel at its opening into Dixon Entrance. a The British Case says: The question rightly assumes that the course of the line must be from the point of commencement to the entrance of Portland Channel.& The view of the United States can be more definitely stated by saying that the line should be drawn along the parallel of latitude «U. S. C. 104. &B. C, 64, m ARGUMENT OF THE UNITED STATES. 54° 40', through Dixon Entrance until it intersects the center of Portland Channel, a*t its opening into Dixon Entrance. Fixing the latitude of 54° 40' as the boundary was a dominant idea in the negotiations. The boundary was to be carried below 54° 40' on Prince of Wales Island, only for the purpose of giving all of that island to Russia, and it would be in harmony with the plain intent which the parties had in view by this departure, to accomplish this particular purpose, and then carry out the general intent of the Treaty, by running the line along the parallel 54° 40'. The language of the treaty is: A partir du Point le plus meridional de Pile dite Prince of Wales, lequel Point se trouve sous la parallele du 54me degre* 40 minutes de latitude Nord, et entre le 131me et 133me degre de longitude Ouest (Meiidien de Greenwich), la dite ligne remontera au Nord le long de la passe dite Portland Channel.a It further provides: Que Pile dite Prince of Wales appartiendra toute entiere a la Russie.& This would seem to indicate that in the description the parallel was regarded as the real point of departure, and so to guard against the result that, Prince of Wales Island might be divided, the express provision was inserted so that, notwithstanding the designation of the parallel, the whole of the island should belong to Russia. This shows the significance given by them to the parallel and the necessity they felt for adding the special provision to guard against the possible effects of running the line from the commencement along that parallel. This view is reinforced when taken in connection with the discussion of the question as to what channel was meant by Portland Channel^ in which it was endeavored to show that the parallel 54° 40', as it was considered and treated by the negotiators, is demonstrative of what they meant by Portland Channel. Different lines are proposed by the United States and by Great Britain, but the difference arises out of the controversy as to what constitutes the entrance to Portland Channel. If the Tribunal shall agree upon an answer to the second question, then from the positions assumed by both parties in respect to the third question, the answer to that question involves no difficulty. If it be decided that Portland Channel is the body of water which enters Dixon Entrance between Wales Island and Compton U. S. C. App., 3. &U. S. C. App., 4. 56 ALASKAN BOUNDARY. TRIBUNAL. Island, as is contended for in the United States Case,a then the line should be drawn from the southernmost point of Cape Muzon to the parallel 54° 40', and along this parallel to the channel, until it strikes its center. The line does not, as Great Britain claims, go north from the beginning, except so far as may be necessary to gain the latitude of 54° 40', if it shall be determined from all that appears that it was. the intention that* it should proceed along that parallel. In this event it will go north from the southernmost point of Prince of Wales Island only in obedience to this controlling intent and on account of the relative positions of the end of the island and the parallel, and not on account of the words "au Nord" in the text. They apply only to the direction of the line as it proceeds up Portland Channel to the 56°. This is not only the fair grammatical construction, but it is demonstrated by the physical situation. The mouth of neither of the channels claimed by the contestants to be Portland Channel is so located in respect to the southernmost point of Prince of Wales Island as to make it at all probable that the negotiators would have described a line connecting them as proceeding "au Nord." Both mouths are almost due east from the southernmost point of the island. EIGHTH. Fourth Question. "To what point of the fifty-sixth parallel is the line to be drawn from the head of the Portland Channel, and what course should it follow between these points?" Answer proposed by the United States: The United States requests the Tribunal to answer and decide that the line should be drawn from the head of Portland Channel northeasterly along the same course on which said line touches the mainland at the head of Portland Channel until it intersects the 56th parallel of north latitude.& The language of the Treaty between Great Britain and Russia of February 16-28, 1825, has been given on page 3. It is questioned in the British Case whether " elle " in the words "oii elle atfeint le 56me degre de latitude Nord," refers to the line, the channel, or the main land.c «U. S. 0., 104. &U. S. C, 104. cB.C, pp. 68-69. ARGUMENT OF THE UNITED STATES. The subject of the discourse is " la ligne," and unquestionably " elle " grammatically refers to it. The provision is that "de ce dernier point," the line shall follow the crest of the mountains. It was a physical impossibility for Portland Channel to reach the crest of the mountains. The negotiations show very clearly that it was the line that was to proceed along Portland Canal, and that it was the line that was to reach the 56th degree north latitude. In the amended proposal made by Sir Charles Bagot, he says: As it has been agreed to recognize as basis of negotiation the mutual conveniences of both countries, it is to be noted, in answer to the proposal offered by the Russian Plenipotentiaries, that a dividing line, starting from the southernmost extremity of the Prince of Wales' Island and extending to the mouth of the Portland Channel, thence, by the middle of this channel until it reaches the mainland, thence to the mountains bordering the coast, etc05 He makes it plain that the line was to continue from the point where the channel reached the mainland to the mountains bordering the coast. The language used by Mr. G. Canning in the draft convention prepared by him has in the second article the following: Along the channel called Portland Channel, till it strikes the coast of the continent lying in the 56th degree of north latitude. From this point it shall be carried along that coast, etc.& .That is to say, the line from the point where it strikes this degree shall be carried along the summit of the mountains. In Article three of the contre-projet, submitted by Stratford Canning, it is provided, that: The said line shall ascend to the north (Prince of Wales Island belonging entirely to Russia) along the passage called Portland Channel until it touches the coast of the mainland at the fifty-sixth degree of north latitude. From the point at which the line of demarcation touches the fifty-sixth degree, it shall follow, etc.c The draft in French submitted by Stratford Canning, Art. 3, contained this language: La dite ligne remontera au Nord (PIsle Prince of Wales appartenant en entier a la Russie) le long de la Passe dite Portland Channel, jusqu'a" ce qu'elle touche a la C6te de terre ferme au 56me degr£ de Latitude Nord, depuis ce point- ci, ou la ligne de demarcation touche au 56me degr6, elle suivra la cr£te, etc.^ «B. C. App., 70; U. S. C. App., 159. &U. S. C. App., 183; B. C. App., 87. S. Doc. 162, 58-2, vol 5 5 cU. S. C. App., 216. <*U. S. C. App., 213. 58 ALASKAN BOUNDARY TRIBUNAL. This language was altered by Matusevich to read as follows: La dite ligne remontra au Nord le long de la Passe, dite Portland Channel, jusqu'a Pendroit oil cette passe se termine dans Pinterieur de la terre ferme au 56me degre" de Latitude Nord—depuis ce dernier point la ligne de demarcation suivra la cr£te, etc.a It will be noted that he substituted "passe" for "ligne." In the final draft, however, it will be noted that in this respect the language followed more closely the draft of Mr. Canning. It is quite apparent that it was supposed that the channel reached to about the fifty-sixth degree. The line is to run "au Nord," that is, northwardly along Portland Channel, and to continue northwardly to that point on the !and where it reaches the fifty-sixth degree. It is to run "au Nord," not only "le long.de la passe dite Portland Channel," but northwardly to the point where the line touches the fifty-sixth degree. The words "au Nord," qualify the entire distance along the channel and to the fifty-sixth degree, and not merely the length of Portland Channel. The line shall run north- wardly until it reaches the said degree. As will be shown under the discussion of the Fifth Question, the treaty was made with reference to certain maps, and to a chain of mountains which was depicted on them. It was admitted by the negotiators that there was great uncertainty as to the actual location of these mountains. The summit of the mountains is represented'on Vancouver's, chart seven, as existing in this vicinity in about latitude 55° 50', and on his general chart in latitude about 56° 10'. Stapleton says: The line . . . was ... to ascend to the north along Portland Channel as far as the point of the continent where it would strike the 56° of north latitude, etc. & The Russian map of 1802, shows the mountains approximately at the same point, as Vancouver's Chart Seven/ Faden's map shows the mountains to be about 56° 07'. If it shall be made clear that the negotiators contracted, with reference to a chain of mountains supposed to be near the head of Portland Channel, and near the 56th degree at its nearest approach »■ «U. S. C. App., 218. & Memorandum by Dall, U. S, C. C. App., 106. c British Atlas, No. 5. ARGUMENT OF THE UNITED STATES. to the head of the channel, then it would seem to follow that, whether the mountains exist or not, that point on the degree nearest the supposed mountains was intended to be the point northwardly of the head of the Channel, to which the line should run, and that such point is to be determined by the apparent locality of the mountains which it is demonstrated they had in i mind, and not by some other mountains which they clearly did not have in mind. The line was to be drawn "au Nord" to the degree, and "de ce dernier point la ligne de demarcation suivra la cr§te des montagnes." The maps showed that the crest of the mountains, the head of the channel, and the fifty-sixth degree, did not exactly coincide. There was uncertainty as to the mountains, but none as to the fifty-sixth degree, and none as to where a line running up the channel prolonged would reach it. This point was, therefore, to be determined by the intersection of the prolonged line with the parallel, and ■" de ce dernier point," the line was to follow the crest of the mountains. Manifestly, the situation of the mountains being uncertain, the line was to be drawn from the determined point to the crest, and thence along the crest. In the British Case is the following : It is submitted that the point in the 56th parallel to which the line should be drawn is the point from which it is possible to continue the line along the crest of the mountains situated parallel to the coast, and, accordingly, that the point at which the 56th parallel and the crest of the coast mountains coincide is the point in question.a This proposition entirely ignores the fact that the point was fixed northwardly, and on the fifty-sixth parallel with reference to the supposed existence of a chain of mountains near where the head of the channel is nearest to the fifty-sixth degree. The fact that no such chain exists in that vicinity, does not affect the location of the point. For the purpose of such fixation of this point by the negotiators, mountains assumed to exist and approximately located by the parties, were just as potential as if they had been real mountains. But the unsoundness of the proposition put forward in the British Case becomes manifest by one simple test. If we must seek the point where " it is possible to continue the line along the crest of the mountains," how will the point be fixed if it «B. C, p. 69. 60 ALASKAN BOUNDARY TRIBUNAL. shall be determined that the mountains contended for in the British Case do not fulfill the conditions of the treaty? If it shall be determined that there are rto such mountains within ten marine leagues of the coast, how can the point on the ftfty-sixth parallel be fixed? Man^ ifestly according to the proposition laid down, the point can never be determined, unless mountains such as are contemplated by the treaty shall be found within ten marine leagues of the coast, with a crest coincident with the fifty-sixth degree of latitude. But the point was to be determined, whether or not, there was a mountain crest within ten marine leagues of the coast. The second paragraph of the fourth Article provides: Que partout ou la create des montagnes qui s'etendent dans une direction parallel e a la C6te depuis le 56me degre" de latitude Nord au point d'intersection du 141me degr6 de longitude Ouest, se trouverait a la distance de plus de dix lieues marines de P Ocean, etca This provided for the contemplated condition that, from the point fixed on the 56th degree, there might be no mountains along the crest of which the line should be drawn. In such event the point was none the less to be fixed, and from it the line was to be drawn parallel to the coast. The boundary delimitation was not to fail if there was no crest of mountains parallel to the sinuosities of the coast, and within ten marine leagues of the ocean. The treaty was to be capable of being carried into effect, whether such mountains as those contemplated by it existed within the ten marine leagues or not, and also whether or not any mountains whatever existed in that region. If the tribunal, from the language of the treaty can determine where the point on the 56th degree should be, in the event that they shall find against the British contention as to the crest along the coast mountains being west of the head of Portland Channel, it is manifest that finding ?' the point from which it is possible to continue the line along the crest of the mountains" from the 56th parallel, is not a condition precedent to determining where the line drawn from the head of Portland Channel shall meet the fifty-sixth parallel, and that it has nothing whatever to do with fixing that point. The proposition when tested by the result, as worked out in the British Case, is wholly inadmissible. The line as drawn cuts off a «U. S. C. App., 13. ARGUMENT of the united states. point on Bell Island, and gives a portion of the mainland coast to Great Britain. Any theory that so eventuates cannot stand under the treaty, for there is no possible construction of the treaty which will enable Great Britain to claim any part of any island opposite the mainland coast or any part of the mainland coast.a NINTH. Fifth Question. "In extending the ltne of demarcation northward from said point on the parallel of the 56th degree of north latitude, following the crest of the mountains situated parallel to the coast until its intersection with the 141st degree of longitude west of Greenwich, subject to the condition that if such line should anywhere exceed the distance of ten marine leagues from the ocean, then the boundary between the british and the Russian territory should be formed by a line parallel to the sinuosities of the coast and distant therefrom NOT MORE THAN TEN MARINE LEAGUES, WAS IT THE INTENTION AND MEANING OF SAID CONVENTION OF 1825 THAT THERE SHOULD REMAIN IN THE EXCLUSIVE POSSESSION OF RUSSIA A CONTINUOUS FRINGE OR STRIP OF COAST ON THE MAINLAND, NOT EXCEEDING TEN MARINE LEAGUES IN WIDTH, SEPARATING THE BRITISH Possessions from the bays, ports, inlets, havens, and WATERS OF THE OCEAN, AND EXTENDING FROM THE SAID POINT ON THE 56tH DEGREE OF LATITUDE NORTH TO A POINT WHERE SUCH LTNE OF DEMARCATION SHOULD INTERSECT THE 141ST DEGREE OF LONGITUDE WEST OF THE MERIDIAN OF GREENWICH?" The discussion of the fifth question necessarily involves a consideration of the essential features of the sixth and seventh questions, which are as follows: Sixth Question. "If the foregoing question should be answered in the negative, and in the event of the summit of such mountains proving to be in places more than ten marine leagues from the coast, should the width of the lisiere which was to belong to russia be measured (1) from the mainland coast of the ocean, strictly so-called, along a line perpendicular thereto, or (2) was it the intention and meaning of the said convention that where the mainland coast is indented by deep inlets forming part of the terri- a British Atlas, No. 37. 62 ALASKAN BOUNDARY TRIBUNAL. : v W torial waters of russia, the width of the lisiere was to be measured (a) from the line of the general direction of the mainland coast, or (b) from the line separating the waters of the ocean from the territorial waters of russia, or (c) from the heads of the aforesaid inlets?" Seventh Question. "What, if any exist, are the mountains referred to as situated parallel to the coast, which mountains, when within ten marine leagues from the coast, are declared to form the eastern boundary?" The United States contends that the answer to the Fifth Question should be in the affirmative, and Great Britain contends that it should be in the negative. Question Five is, whether or not, looking to all that is admissible under the Treaty, there is a demonstration that, according to the "original and effective understanding of the parties," it was "the intention and meaning of said Convention of 1825, that there should remain in the exclusive possession of Russia a continuous fringe or strip of coast," as above indicated. The "Parties" meant are, Russia, Great Britain and the United States, for the reference in the paragraph is to the "Parties to' said Treaties of 1825 and 1867. By " original and effective understanding of the parties," must be meant not only the interpretation of the treaty by reading the text in the light of all the facts surrounding and known to the negotiators and the contemporaneous exposition given by them, but also the practical interpretation put upon the Treaty by the parties, that is Russia, Great Britain and the United States, as shown by their affirmative acts respectively, and also by the inaction of any of the parties indicating acquiescence in an interpretation. The expression in the treaty is, "original and effective understanding." It must be assumed that significance was intended to be given to both words "original" and "effective," and that both were deemed necessary to fully express the idea had in view, which seems to be that, not only the language of the treaty and of the negotiations leading up to it must be looked to for the purpose of finding out the meaning, but that what the parties did in pursuance of the treaty must also be looked to, and that from all of this the meaning must be evolved. ARGUMENT OF THE UNITED STATES. The Fifth Question does not involve any understanding as to the actual location of the line on the ground in the interior, but only its relevancy to the entire coast line of tlie bays and inlets. The question can be answered independently that the understanding was that the line should be drawn around all the heads of such waters. This can be done without fixing where it shall actually be located. The question does not involve the answer to the question as to whether or not the line, in the absence of mountains responding to the conditions of the Treaty within ten marine leagues of the coast, shall be drawn the full distance of ten marine leagues. That answer is dependent upon considerations that do not necessarily affect the answer to the Fifth Question. The Fifth Question can be fully answered without touching either of these propositions. The British Case seems to concede that, if the line is to be drawn, not along the mountains, but parallel to the coast, it shall be drawn ten marine leagues from the coast. It says: It is to be observed that this Treaty contemplates a shore-fine such as admits of another line being drawn parallel to its sinuosities at a distance of 10 marine leagues.a It may appear, either j from a construction of the Treaty alone, or from such construction taken in connection with the subsequent conduct of the parties, that it was the intent of the Treaty that Russia was to have, at all events, a continuous strip of the coast, and that this was such a clear and dominating feature of the treaty, that all doubtful language is to be regarded as subordinate to it, and to be construed so as to carry out this intent. If such intent shall be demonstrated, it must prevail, and the actual location of the territorial boundary line must be a subordinate consideration. It is contended for the United States: 1. That when the Treaty was made between Russia and Great Britain, both understood that from the fifty-sixth degree of North latitude to the 141st degree of longitude west of Greenwich, Russia was to have a continuous strip of coast separating* the British possessions from all the waters of the ocean. 2. That this understanding was made manifest by them, as shown by their subsequent conduct. «B. C, 72. 64 ALASKAN BOUNDARY TRIBUNAL. 3. That through their conduct such was the common understanding of the civilized world. 4. That with such understanding, and relying on it, the United States purchased this territory of Russia in good faith, and paid for it. 5. That the United States entered into possession of the territory so purchased, and exercised jurisdiction over it from 1867, down to the present time; that there was such possession and exercise of jurisdiction over the inland waters now in dispute and the coasts thereof, as to show at all times that, they were claimed by the United States, as haying passed to it by the said treaties of 1825 and 1867, and that Great Britain had no sovereignty over such waters and coasts; that Great Britain never in any way set up any claim to any part of such waters or coasts until 1898, and that this course of conduct on her part demonstrates that it was her original and effective understanding of the treaty of 1825, that the lisiere should continue unbroken around the heads of all the bays and inlets. The present controversy arises out of conflicting views as to what the parties meant by "cdte," "la cr&te des montagnes," "l'Ocean," "lisiere," and "sinuosities." There is also a controversy as to whether or not there are moun- tains, such as are referred to in the treaty, situated within ten marine leagues of the coast. With much labored technical skill, sustained by a lively imagination, it is claimed that a mountain crest can be segregated from the jumble of mountain peaks, in disarray, in proximity to the coast, conformable in all essential qualities to the conditions of the treaty. This line on a mountain crest, thus created by an arbitrary selection of disconnected peaks, is drawn on the British map so as to be parallel to a part of the coast, that is, what is styled in the British Case the general coast, or the mainland coast. Mountain summits are selected and connected with reference to this coast. The coast as an entirety, is cut up to match the mountains, and so by connecting peaks together, and denominating this a mountain crest, and disconnecting the natural coast into broken strips, a very happy combination is thought to be brought about, by which an original and effective understanding of the treaty of 1825 that no one ever dreamed of until more than fifty years after the treaty was made, is claimed to be demonstrated. ARGUMENT OF THE UNITED STATES. 65 The "coast" referred to in the treaty, to which the mountains WERE TO BE PARALLEL, AND TO THE SINUOSITIES OF WHICH, if the mountains failed, the line was to be drawn parallel, was the coast of all of the interior waters, such as taku Inlet and Lynn Canal. The United States claims that the coast is an unbroken coast, and that this is the dominating factor, that the coast, as meant by the treaty, must first be determined, and that there can be no mountains parallel to the coast, as called for by the treaty, which are perpendicular to or trend across the coast leading around the heads of the bays and inlets, and that all mountains which so trend are to be rejected from consideration. If the coast, or as the treaty expressed it "lisiere de c6te," is the controlling feature, then there will be no difficulty as to the meaning of '' sinuosity." The line must be parallel to the coast that is meant and must follow the sinuosities of that coast. No moun- ains and no crest of mountains can divide such coast so as to deprive the United States of any part of it. When the meaning of "coast" shall be determined, the actual location of the line will be a secondary proposition. Just where it will be situated with reference to the heads of the bays and inlets, is entirely subordinate to the proposition that it must, at all events, be situated somewhere to the interior of the heads of such bays and inlets. The Treaty of 1825, in the third Article, provides that "la ligne de demarcation suivra la crete des montagnes situees parallelement a la c6te." The fourth Article, paragraph two, provides that, 'partout oii la crete des montagnes qui s'etendent dans une direction parallele a la cdte * * * une ligne parallele aux sinuosites de la c6te," etc. It is contended by the United States that the word "cote" thus used means all the land bounding bays and inlets as well as that bounding the more open waters. It is contended by Great Britain that the negotiators in using the word "c6te" intended it to apply only to what in the British Case is styled in one place as "coast outside of narrow inlets," in another place, the "general coast," and in another "the general trend of coast" and in another "the mainland coast of the ocean," and that it 66 ALASKAN BOUNDARY TRIBUNAL. ; was intended that it should not apply to the shores of such waters as penetrate farther to the interior than a boundary line, drawn from headland to headland, under the law of Nations fixing the jurisdiction of a country over territorial waters.a The language of the treaty is: Se trouverait a la distance de plus de dix lieues marines de P Ocean. The United States contends that the word "ocean" as here used is synonymous with " cdte." Great Britain says in its case: It is clear that " cdte " and " ocean " refer to the same thing. & Thus the controlling word is "coast." When that meaning as understood by the parties is fixed, the meaning of "ocean," by the claims of both parties becomes coincident with it. Its sinuosities must be conformed to by the line. THE MEANING OF THE WORD "COTE" AS UNDERSTOOD BY THE PARTIES PRIOR TO THE NEGOTIATIONS OF THE TREATY OF 1825. The meaning has its foundations in the Ukase of September 4, 1821, which was the irritant that brought about the controversy that was concluded by the treaty. THE MEANING OF COAST AS DEFINED IN THE UKASE OF SEPTEMBER U, 1821. In 1821 the Emperor Alexander issued an Ukase addressed "unto all Men" for the purpose of establishing rules in respect of the northwest coast of America. The first rule was as follows: The pursuits of commerce, whaling, and fishery, and of all other industry on islands, posts, and gulfs, including the whole of the northwest coast of America, beginning from Behring Straits to the 51° of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring Straits to the South cape of the Island of Urup, viz., to the 45° 5CK north latitude, is exclusively granted to Russian subjects. c This in terms includes " the whole of the northwest coast of America, beginning from Behring Straits to the 51st degree of northern latitude." a B. C, 72, 73, 74, 77. &B. C, 72. «U. S. C. App., 25-26. ARGUMENT OF THE UNITED STATES. The second rule was as follows: 67 It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia, as stated above, but also, to approach them within less than 100 Italian miles. The transgressor's vessel is subject to confiscation along with the whole cargo. a Thus all foreign vessels were by this rule forbidden to land upon any of the coasts described in the first rule. The fourteenth rule was as follows: It is likewise interdicted to foreign ships to carry on any traffic or barter with the natives of the islands, and of the north-west coast of America, in the whole extent here above mentioned. A ship convicted of this trade shall be confiscated.a This is an interdiction of trade with the natives "of the northwest coast of America in the whole extent" from Behring Sea to the 51st degree north latitude. Russia thus asserted jurisdiction over every part of the northwest coast down to the 51st degree and forbade trade with the natives of this coast throughout "the whole extent." No one would have the hardihood to deny that, by "cdte", Russia %J 7 %j 7 here meant the entire shore line, including that of bays, inlets, and all interior salt waters. It cannot be said that Russia only intended to interdict trade on the mainland coast, or on the interior waters up to a point where the headlands were not more than six miles apart, or that she wanted to control the trade with the natives living on the coast bordering the open sea, but not with the natives living far up the Lynn Canal, Taku Inlet, and other like waters. If it be conceded" that Russia intended that this ukase should apply as in terms it is expressed, to "the whole extent of the coast," and "the natives of the islands and of the north-west coast of America in the whole extent here above mentioned," then we start the inquiry before us with a full understanding of the meaning attached by Russia to the term "cdte" as applied to such waters as those above indicated, when she provoked the controversy that was closed by the treaty. When Russia made a treaty in respect of these very rules, and of this very territory, and of these very.coasts, it is inferable, unless the contrary shall be shown, that she did not intend to use the word ''cdte" in the treaty in a different sense from that in which she had used it in the ukase. «U. S. C. App., 25-26. 68 ALASKAN BOUNDARY TRIBUNAL. THE UNDERSTANDING OF THE UNITED STATES AND GREAT BRITAIN THAT THE UKASE APPLIED TO THE ENTIRE COAST. This ukase was officially communicated to the governments at Washington and London.a ' Sir Charles Bagot, in transmitting an English translation of it to the Marquis of Londonderry, also sent as he himself expresses it, "a map of the northwest coasts of America," published by Russia.6 This map is No. 5 of the Atlas of Great Britain, and shows all the coasts of the bays, inlets, etc., now in controversy. The Marquis of Londonderry understood that, by the description used in the ukase, of the "whole of the northwest coast of America," Russia asserted "exclusive sovereignty over the territories therein described." In his letter to Count Lieven of January 18, 1822, he says: In the meantime, upon the subject of this Ukase generally, and especially upon the two main principles of claim laid down therein, viz., an exclusive sovereignty alleged to belong to Russia over the territories therein described, as also the exclusive right of navigating and trading within the maritime limits therein set forth, his Britannic Majesty must be understood as hereby reserving all his rights, not being prepared to admit that the intercourse which is allowed on the face of this instrument to have hitherto subsisted on those coasts, and in those seas, can be deemed to be illicit, or that the ships of friendly Powers, even supposing an unqualified sovereignty was proved to appertain to the Imperial Crown in these vast and very imperfectly occupied territories, could, by the acknowledged law of nations, be excluded from navigating within the distance of 100 Italian miles as therein laid down from the coast, the exclusive dominion of which is assumed (but, as His Majesty's Government conceive, in error) to belong to His Imperial Majesty the Emperor of all the Russias.c The effect of the meaning of "cdte," as used in the Ukase, was set forth by Pelly, Deputy Governor of the Hudson's Bay Company, whose judgment was stimulated by the keenest interest to protect that company's trade. In a letter to the Marquis of Londonderry March 27, 1822, he said: "| The fur trade of Great Britain, by an Act of last Session and grant from His Majesty, is vested in the Hudson's Bay Company; I cannot, therefore, refrain from calling your Lordship's attention to this matter as of considerable importance at the present moment, and not unlikely to lead to very unpleasant occurrences at some future period, if no notice is taken of these proceedings of the «U. S. C. App., 31, 95. *»U. S. 0. App., 101-102. c\J. S. C. App., 105. ARGUMENT OF THE UNITED STATES. 69 'Russian and American Governments, the effect of which would be to exclude British subjects from the northwest coast of America, and a valuable trade in the interior.« Mr. Stratford Canning understood it likewise. In a letter of February 19, 1822, addressed to the Marquis of Londonderry, he said: I was informed this morning by Mr. Adams that the Russian Envoy has, within the last few days, communicated officially to the American Government, an Ukase of the Emperor of Russia, which has lately appeared in the public prints, appropriating to the sovereignty and exclusive use of His Imperial Majesty the northwest coast of America down to the 51st parallel of latitude, etc.& To the same effect was the understanding of the Duke of Wellington. In a memorandum enclosed by him under cover of a letter of November 28, 1822, addressed to Mr. G. Canning, he says: In the month of September, 1821, His Imperial Majesty, the Emperor of Russia, issued an Ukase, asserting the existence in the Crown of Russia of an exclusive right of sovereignty in the countries extending from Behring's Straits to the 51st degree of north latitude on the west coast of America, etc. c John Quincy Adams, Secretary of State of the United States, understood at that time that Russia's claim to the coast embraced the entire coast, including the sinuosities of the inlets. In a letter to Mr. Middleton, American Minister at St. Petersburg, July 22, 1823, he said: From the tenor of the Ukase, the pretentions of the Imperial Government extend to an exclusive territorial jurisdiction from the forty-fifth degree of north latitude on the Asiatic coast to the latitude of fifty-one north on the western coast of the American continent; and they assume the right of interdicting the navigation and the fishery of all other nations to the extent of 100 miles from the whole of that coast. . .a His understanding that the claim of Russia embraced the entire coast is very important, when considered in connection with the fact hereinafter brought out, that the United States acquired rights of trade with the natives inhabiting those portions of the coast now in controversy, by the Treaty of 1824, which rights Great Britain expressly insisted upon securing for herself in identically the same form, in the Treaty of 1825. These rights are in direct conflict with the pretension that Great Britain, by the Treaty of 1825, acquired territorial sovereignty over «U. S. C. App., 107. &U. S. C. App., 106. «U. S. C. App., 113. dTJ. S. C. App., 48-49. 70 ALASKAN BOUNDARY TRIBUNAL. my any part of these interior coasts above 54° 40' north latitude. Thus it is perfectly plain that by the claim of Russia to sovereignty over all the northwest coast of America above 51 degrees north latitude up to Bering Strait, and by interdicting trade with the natives of that coast throughout its whole length, Russia, Great Britain and the United States understood distinctly that by "coast" was meant the entire boundary of all of the waters of the bays and inlets in controversy. Mi CLAIM OF GREAT BRITAIN TO NORTHWEST COAST. Great Britain set up a vague, indefinite claim in conflict with the Ciaim of Russia. It is indicated by Mr. Pelly, Deputy Governor of the Hudson's Bay Company to Mr. George Canning in a letter of September 25, 1822. It is based upon the occupancy by the Hudson's Bay Company of trading stations in the interior of the country then known as New Caledonia, which he describes as being west of the Rocky Mountains and extending from about 49° latitude north to about 60° north latitude. He indicates the location of these stations, but none of them are near any part of the coast. He adds: By these means an extensive trade is carried on with all those Indian tribes which inhabit the country from about 60° north latitude as far south as the mouth of Eraser's River, which is in about 49° north latitude, and between the Rocky Mountains and the sea. The British fur traders have never met with the traders of any other nation in that country, and it does not appear that any part of it has ever been occupied by the subjects of Russia or of any other foreign Power. All the considerable rivers which fall into the Pacific Ocean in this extent of coast have not yet been sufficiently explored to ascertain whether any of them are navigable with large boats, and have safe harbours at their discharge into the sea; the furs procured in that country have therefore been brought to England down the Peace River and through the Hudson's Bay Company's territories. But it is probable that, in such an extent of coast, some practicable communication with the sea will be discovered which would save the expensive transport of goods and furs through the interior of America. ... I have thus given a brief outline of the British trading stations on the northwest coast of America, etc.fl Although be designates these stations as being "on the northwest coast of America," not one of them is situated west of the 127th degree of west longitude. The nearest one indicated is about the aU. S. C. App., 109-110. ARGUMENT OF THE UNITED STATES. 127th degree, which is nearly four degrees east of the head of Portland Channel. He speaks of trade carried on with all those Indian tribes inhabiting that country and of the "rivers which fall into the Pacific Ocean on this extent of coast." It is manifest from his letter that he understood that " this extent of coast" included all those waters into which "all the considerable rivers debouched," such as Taku Inlet and Lynn Canal, and that he v 7 regarded these waters, as part of the Pacific Ocean. On the basis of this letter the Duke of Wellington in the memorandum enclosed with his letter of November 28, 1822, to Mr. Canning, said: Now we can prove that the English Northwest Company and the Hudson's Bay Company have for many years established forts and other trading stations in a country called New Caledonia, situated to the west of a range of mountains called Rocky Mountains, and extending along the shores of the Pacific Ocean from latitude 49° to latitude 60°.« He adds: Thus, in opposition to the claim founded on discqyery, the priority of which, however, we conceive we might fairly dispute, we have the indisputable claim of occupancy and use for a series of years, which all the best writers on the laws of Nations admit is the best founded claim to a territory of this description. Objecting as we do to this claim of exclusive sovereignty on the part of Russia, I might save myself the trouble of discussing the particular mode of its exercise as set forth in this Ukase, but we object to the mode in which the sovereignty is proposed to be exercised under this Ukase, not less than we do the claim of it.a CLAIM OF THE UNITED STATES TO NORTHWEST COAST. The United States likewise preferred a claim w' to the whole coast as high as the 61st degree." Sir Charles Bagot, in a letter to Mr. G. Canning, of October 17, 1823, wrote: Although Mr. Middleton has not communicated to me the instructions which he had received, I have collected from him, with certainty what I had long had reason to suspect, that the United States, so far from admitting that they have no territorial pretensions so high as the fifty-first degree of north latitude and no territorial interest in the demarcation of boundary between His Majesty and the Emperor of Russia to the north of that degree, are fully prepared to assert that they have at least an equal pretension with those powers to the whole coast as high as the sixty-first degree, and an absolute right to be parties to any subdivision of it which may now be made. & aU. S. C. App., 113. &U. S. C. App., 129 72 ALASKAN BOUNDARY TRIBUNAL. THE BEGINNING OF THE NEGOTIATIONS. * With the issues thus made up, and the subject matter of controversy fully understood, in exactly the same sense, by all three of the parties, the negotiations began. It would not be profitable to devote any time to an examination of the relative strength of the several claims to the coast in question. Doubtless, for the purpose of driving a better bargain, the claim of Great Britain was put forward with conscious extravagance; but this is comparatively unimportant in this discussion, as the Treaty of 1825 does not purport to express a settlement of conflicting rights, in any sense, in accordance with the way such rights were respectively stated or urged. On the contrary, all questions of right were expressly waived. It is, however, important to observe that while this was avowed by both Great Britain and Russia, Russia at no time, receded from, but always, down to the conclusion of the negotiations, asserted her claim of actual and undisputed sovereignty over all of the coast north of the 55th degree. This is significant in connection with determining whether or not Russia ever understood that she was abandoning to Great Britain any part of the coast over which she had always asserted sovereignty. A declaration of sovereignty made, and never departed from at any stage of the negotiations, cannot fail to be a strong exponent of the understanding by the parties, of the language used for the purpose of finally determining their controversy. THE NEGOTIATIONS OF THE TREATY OF 1825 DID NOT PROCEED UPON STRICT RIGHT, BUT UPON CONSIDERATIONS OF MUTUAL EXPEDIENCY. Count Lieven said to Mr. George Canning in a letter of January 19, 1823: Before leaving Verona the undersigned was ordered to present to the Government of His Britannic Majesty a new proof of the Emperor's well known feelings by proposing to His Excellency, Mr. Canning, Chief Secretary of State for Foreign Affairs of His Britannic Majesty (without permitting this proposition to prejudics the rights of His Imperial Majesty should it not be accepted), that the question of strict right be temporarily set aside on the part of both and that all the differences to which the regulation in question has given rise be adjusted by an amicable arrangement founded on the sole principle of mutual expediency, to be negotiated at St. Petersburg, a «U. S. C. App., 118. ARGUMENT OF THE UNITED STATES. 73 On this basis the negotiations were taken up by Great Britain. Mr. George Canning communicated to Sir Charles Bagot, February 5, 1823, a copy of the note of Count Lieven and requested him to proceed to open the discussion.a In a letter from M. Poletica to Count Nesselrode of November 3, 1823, it is said: In the midst of this argument the British Embassador suddenly suspended the discussion in order to tell* me that his Government had, after all, no intention of discussing the territorial question according to the abstract principles of public law or of international law; that that would have the effect of rendering the discussion interminable; that the cabinet of London expected a more satisfactory result for the two parties interested, from an amicable arrangement which would be based only upon mutual consent, and that his instructions had been drawn up in that spirit. I replied to Sir Charles Bagot that in the matter in question, so far as I could foresee the views of the Imperial Government, I believed that I could take upon myself boldly to assure him that they were in perfect agreement with those of the cabinet of London. I then asked him to tell me the point of demarcation, which, in the opinion of his Government, ought to divide the respective possessions on the northwest coast of America. & In a letter of March 17, 1824, from Sir Charles Bagot to Mr. Canning, he said: O 7 I then laid before them [Count Nesselrode and M. Poletica] Count Lieven's note to you of the 31st January, 1823, proposing that the question of strict right should be provisionally waived on both sides, and that the adjustment of our mutual pretensions should be made upon the sole principle of the respective convenience of both countries. This basis of negotiation being willingly accepted by all parties, I stated that, etc. c THE MOTIVES WHICH ACTUATED THE PARTIES WERE THE ADVANTAGES TO BE SECURED FROM CONTROLLING THE RIGHTS OF FISHING AND HUNTING AND OF TRADE WITH THE NATIVES ALONG THE COAST, AND THE QUESTION OF TERRITORIAL SOVEREIGNTY WAS DIRECTED TOWARD SECURING THESE RIGHTS AND NOT MERELY DOMINION OVER AN EXTENT OF LAND. At that time no gold had been discovered in that region, and no question of mineral values was ever mooted in any way by any of the negotiators, or by the representatives of the trading companies of Russia, and Great Britain, which were rivals in that part of the «U. S. C. App., 119. &U. S. C. App., 140. S. Doc. 162, 58-2, vol 5— -6 U. S. C. App., 154. 74 ALASKAN BOUNDARY TRIBUNAL. world. The country along the whole of the northwest coast of America was known to be bleak, inhospitable, mountainous and inaccessible, offering then no inducements for the acquisition of land for anything that might be gotten out of it, or produced by it. It was trading in furs, and the development of fisheries that induced the adventurous spirits of that age to exploit that remote region. The particular advantage that could arise from sovereignty over the coast in question was, from control, of, and exclusive enjoyment of, the fur trade with the Indians inhabiting it. It was known to all parties during the pendency of the negotiations for the treaty that the natives, with whom such trade was carried on, lived along the rivers, bays and inlets. Thus with a full understanding as to what was meant, by all the parties, by the expression "the whole of the northwest coast," and also with a full understanding of the advantages that were to be secured through the exercise of territorial sovereignty, in appropriating exclusively the trade with the inhabitants, they proceeded to frame the treaty upon the sole principle of the "respective convenience of both countries."05 « There are two important and controlling ideas which must be kept in view in interpreting the language of the parties. Great Britain had as her main object the disavowal by Russia of her claim of control over the waters within 100 Italian miles of the coast, while Russia, having at the very outset privately declared her purpose of making such disavowal, sought to secure by the treaty the rights which she had asserted over the whole extent of the coast, at least from the 55th degree northward. It being understood by both parties that, in any event as to the territorial boundaries, the objectionable features of the Ukase as to the 100 mile limit would be withdrawn, Sir Charles Bagot, in his letter to Mr. George Canning of March 17, 1824, stated the object had in view by the respective parties as follows: This basis of negotiation being willingly accepted by all parties, I stated that, so far as I understood the wishes and interests of Russia, her principal object must be to secure to herself her fisheries upon the islands and shores of the northwest coasts of North America, and the posts which she might have already established upon them; that, on the other hand, our chief objects were to secure «U. S. C. App., 154. ARGUMENT OF THE UNITED STATES. the posts upon the continent belonging to the Hudson Bay Company, the embouchures of such rivers as might afford an outlet for our fur trade into the Pacific, and the two banks of the Mackenzie River; that, in the belief that such were our respective objects, I would propose as our boundary a line drawn through Chatham Straits to the head of Lynn Canal, thence northwest to the 140th degree of longitude west of Greenwich, and then along that degree of longitude to the Polar Sea.« He shows that he communicated to the Russian representative this understanding that, the wishes and interests of Russia were to secure herself in respect of the "shores of the northwest coast of North America." He stated some of the objects very clearly, but he made no reference to the trade with the Indians inhabiting the coast, which was expressly and exclusively reserved in the Ukase. It was made manifest then, and in the outcome of the treaty, that his proposition by no means secured to Russia, her fisheries upon the islands and shores upon the northwest coast of America, and that it was by no means sufficient to protect the trade, which was one of the main objects she had in view. CERTAINTY WAS DESIRED IN THE TREATY AND THE PREVENTION OF ANY DISAGREEABLE DISCUSSION IN THE FUTURE. It was apparent throughout that both parties were desirous that the controversy should be definitely settled and that the boundary should be fixed with certainty. In a letter of Sir Charles Bagot to Mr. George Canning August 19, 1823, he says: I have suggested to him [Count Nesselrode] that this settlement may perhaps be best made by convention, and I have declared our readiness to accede to one framed either upon the principle of joint occupancy or demarcation of boundary as the Russian Government may itself prefer, intimating, however, that in our view, the latter is by far the most convenient. Count Nesselrode immediately and without hesitation declared himself to be entirely of that opinion, and he assured me that the chief if not the only object of the Imperial Government, was to be upon some certainty in this respect."* Count Lieven wrote to Count Nesselrode that Mr. Canning, when he gave him a copy of the dispatch accompanying the ratification of the convention, and called his attention to the insistence of the English government that the line should be fixed by a distance limit, and not merely by the mountain crest, assured him that it «U. S. C. App., 154, &U. S. C. App., 126-127. 76 ALASKAN BOUNDARY TRIBUNAL. arose "solely from a sincere desire to prevent the recurrence of any disagreeable discussion in future." The Russian view is made entirely clear in the letter from M. Poletica to Count Nesselrode of November 23, 1823. He says that he had conferred with Count de Lambert, the representative of the interests and wishes of the Russian-American Company, and that: In fixing the longitude Count de Lambert had mainly in view the establishment of a barrier at which would be stopped, once for all, to the north as to the 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 neighborhood of our establishments.« With thjs desire on both sides to secure certainty, and to prevent disagreeable differences in the future, it is not to be accepted without the strongest proof, that they intended to give to the word "coast," which was the most important feature of the territorial branch of the treaty, a new, or unusual, meaning. THE MEANING OF " c6TE" AS SHOWN BY THE NEGOTIATIONS. THE FIRST SUGGESTION AS TO A LINE. Sir Charles Bagot, in a.letter to Mr. George Canning of August 19, 1823, says that, in an interview with Count Nesselrode, he told him that, the British pretensions had, he believed, always extended to the 59th degree of north latitude, but that a line of demarcation drawn at the 57th degree would be entirely satisfactory to Great Britain.5 So far as the record shows, this is the first definite suggestion in regard to a division line. It does not appear that any indication was given as to how he proposed the line should be drawn northwardly on the continent. THE SECOND SUGGESTION AS TO A LUXE. The second suggestion appears to have been made by M. Poletica to Sir Charles Bagot. In a letter from him to Count Nesselrode of October 17, 1823, he says: This point having been explained, Chevalier Bagot requested me to inform him what, in the opinion of the Imperial Government, should be the line of separa- «U. S. C. App., 137-138. &U. S. C. App., 127. ARGUMENT OF THE UNITED STATES. 77 tion between our possessions on the northwest coast of America and those which England thought herself entitled to claim. I thought that it would be better to meet the question frankly. Consequently, avoiding circumlocutions [I said], that the Imperial Government would think that it had made all the concessions required by its moderation and its earnest desire to maintain a good Understanding with all foreign powers by fixing the boundary between the Russian and English possessions at the fifty-fourth degree of latitude, and by giving for the longitude such a line as in its prolongation in a straight line toward the pole would leave the Mackenzie River outside of the Russian frontier. Chevalier Bagot, after a moment's reflection, replied, that the point of demarcation which I had just designated was very far from being that which his Government would have wished to fix.# THE THIRD SUGGESTION AS TO A LINE. The third suggestion was made by Sir Charles Bagot. This was communicated to M. Poletica in October, 1823. Sir Charles says in a letter to Mr. Canning: And I then gave him to understand that the British Government would, I thought, be satisfied to take Cross Sound, lying about the latitude of 57J°, as the boundary between the two powers on the coast and a meridian line drawn from the head of Lynn Canal, as it is laid down in Arrowsmith's last map, or about the 135th degree of west longitude, as the boundary in the interior of the continent.& This undoubtedly put all of the west coast of Lynn Canal in Russian territory. Mr. Canning understood Sir Charles Bagot to mean the l£5th degree of longitude, for he says in his letter to him of January 15, 1824: But if that were too much to insist upon the 135th degree of longitude as suggested by Your Excellency, northward from the head of Lynns Harbour might suffice. It would, however, in that case be expedient to assign, with respect to the mainland southward of that point, a limit, say, of 50 or 100 miles from the coast, beyond which the Russian posts should not be extended to the eastward. We must not on any account admit the Russian territory to extend at any point to the Rocky Mountains.c This would put both shores of Lynn Canal, throughout its whole extent, in Russian territory. «U. S. C. App., 139. ">U. S. C. App., 131. «U. S. C. App., 148. w 111 78 ALASKAN BOUNDARY TRIBUNAL. Tlus suggestion was made verbally, and there is a difference in the accounts given in regard to it by Sir Charles Bagot and M. Poletica. M. Poletica, in a letter to Count Nesselrode of November 3, 1823, said: 1 - Chevalier Bagot then placed himself before the geographical map which was at hand, and traced upon it with his finger a line beginning at the 57th degree of latitude, the intersection of which designated the 135th degree of longitude west of Greenwich, precisely at the point where our establishment of Novo- Archangelsk appears to be.« Thus his understanding, as to the 135th meridian, was the same as Mr. Canning's. According to his understanding, the suggestion put both shores of Lynn Canal, throughout its whole extent, in Russian territory. THE FIRST FORMAL PROPOSAL OF SIR CHARLES BAGOT. In the first formal proposition made by Sir Charles Bagot he proposed as the boundary: a line drawn through Chatham Straits to the head of Lynn Canal, thence northwest to the 140th degree of longitude west of Greenwich, and then along that degree of longitude to the Polar Sea.** This likewise assigned the entire coast, on the west side of Lynn Canal, to Russia. CONTRE-PROJET BY RUSSIA. In the counter proposition of the Russian plenipotentiaries, the proposition made by Sir Charles Bagot was not even entertained. The proposal was to begin at the southern extremity of Prince of Wales Island, and "follow Portland Channel up to the mountains which border the coast."0 That is, follow the channel to the end, and thence to the mountains. This meant continuity in that direction, until the line should reach the mountains. The mountains meant are those " which border the coast"; that is to say, the coast of that channel. It seems to have been understood that the Portland Channel reached about the 56th degree, for in the observations on the amended proposal of Sir Charles Bagot, the plenipotentiaries of Russia say: aU. S. C. App., 140. 6 U. S. C. App., 154. cTJ. S. C. App., 157 158. ARGUMENT OF THE UNITED STATES. For these reasons the plenipotentiaries of Russia have proposed as limits upon the coast of the continent to the south, Portland Channel, the head of which lies about (par) the 56th degree of north latitude.0 It is important to note that this is the first time in the negotiations that any reference is made to mountains, and coast, and to the sinuosities of the coast. None of these words had before been used. The reference is distinctly to the mountains which border the coast at Portland Channel, and from this point "la limite remonteroit le long de ces montagnes parallelement aux sinuosites de la cdte."& It was thus plainly indicated to Great Britain that the head of Portland Channel was regarded by them as " coast." From that "point the boundary would "ascend along those mountains parallel to the sinuosities of the coast." Unquestionably this meant parallel . to all the coast throughout its extent, which had been claimed by Russia, parallel to the coast of waters similar to Portland Channel, and parallel, not to a mainland or general coast, but to a sinuous coast. This proposition was never materially departed from by Russia. It was, in all of its essential qualities, embodied in the treaty. The purpose and significance of the words "coast" and "mountains" were never modified. AMENDED PROPOSAL BY SIR CHARLES BAGOT. In his amended proposal Sir Charles Bagot offered to accept a line "along the middle of the channel which separates Prince of Wales and Duke of York Islands from all the islands situated to the north of the said islands until it touches the mainland {terre ferme); thence extending in the same direction on the mainland to a point ten marine leagues from the coast the line would run from this point toward the north and northwest parallel with the sinuosities of the coast, and always at a distance of ten marine leagues from the shore, as far as the 140th degree of longitude (Greenwich) the prolongation of which it would then follow to the Polar Sea."c Thus after reaching a point in the interior ten marine leagues from the coast the line was to run '' parallel with the sinuosities «U. S. C. App., 161. &U. S. C. App., 158. «U. S. C. App., 159 I 80 ALASKAN BOUNDARY TRIBUNAL. of the coast and always at a distance of ten marine leagues from the shore." It is here plain that, the sinuous coast referred to was identical with "shore," for he uses these words as equivalents, and that neither' Sir Charles Bagot, nor any one else understood that he meant, by following a line "parallel with the sinuosities of the coast, and always at a distance of ten marine leagues from the shore," to indicate a coast line drawn from lieadland to headland, and that he meant to throw, by the line indicated, into English; territory any portion of the bays and inlets here in controversy. He, however, explains his own meaning in indubitable terms. The Russian plenipotentiaries explained in their observations upon his amended proposal, that the most important advantage was "to prevent the respective establishments on the northwest coast from injuring each other and entering into collision." They added: "It was also to their mutual advantage to fix these limits according to natural partitions, which always constitute the most distinct and certain frontiers. "a In reply to this Sir Charles Bagot said: Any argument founded on the consideration of the practical advantage of Russia could not fail to have the greatest weight, and the Plenipotentiary of His Britannic Majesty did not hesitate to give up, in consequence of this observation of the Russian Plenipotentiaries, the line of demarcation which he had first proposed, to wit: one passing along the middle of Chatham Straits as far as the northern extremity of Lynn Channel, and thence to Mount Elias, or to the intersection of the 140th degree of longitude; and to offer another which would secure to Russia, not only a strip on the continent, opposite the southernmost establishment which she possesses on the islands, but also the possession of all the islands and waters in its vicinity or which are situated between that establishment and the mainland (terre ferme); in short, possession of all that could in future be of any service, either to its stability or its prosperity. & Thus he explained that he proposes to give, "not only a strip on the continent," but also the possession "of all the islands and waters in its vicinity" and, in short, "possession of all that could in future be of any service, either to its stability or its prosperity." All the waters in its vicinity did not mean a division of the waters, so that Great Britain would own waters actually touch- aU. S. C. App., 161. &U. S. C. App., 163. ARGUMENT OF THE UNITED STATES. ing the boundary line, and stability could not be secured by a broken strip on the continent, penetrated by inlets, lying partly within the jurisdiction of one country and partly within that of the other. Is it at all compatible with this representation on his part, that he expected the line to be so drawn, and parallel to such a coast, that there would be a division of jurisdiction over inland waters, and that Great Britain might maintain establishments on the coasts of these waters, in absolute contact with the establishments that Russia might wish to maintain for trading with the Indians upon adjoining parts of such coasts'? It is to be observed that he makes no reference to mountains, but fixes a constant distance of ten marine leagues from the shore, and parallel with the sinuosities of the coast, which term up to that time had never admitted of any doubt or dispute. In explaining his amended proposal to Mr. Canning in his letter of March 17, 1824, he said: I entertained sanguine expectations that such a proposal, coupled with the concession of a line of coast extending 10 marine leagues into the interior of the continent, would have been considered as amply sufficient for all the legitimate objects which Russia could have in view, and quite as much as she could pretend to with any shadow of real claim or justice.a When he was speaking of conceding "a line of coast extending ten marine leagues into the interior of the continent," can it be for a moment imputed to him, that by such "line of coast," he meant that kind of Coast line, which under the law of nations^ was authorized for the purpose of determining territorial waters? If he had ever had such an idea, would he not, in view of the well understood interests of Russia, which she was seeking to protect by the treaty, and of the previous well understood meaning of the word "coast," have been bound in frankness to disclose this new meaning which he proposed to attach to the word? Can it be assumed that, when he had made two propositions to Russia, by which she got the entire western coast of Lynn Canal, and they had been rejected by her as unsatisfactory, he meant by this proposition to go thirty miles into the interior away from the coast, and then to run the line so as to deprive Russia of a large part of the coast of Lynn Canal, for which he had never contended? «U. S. C. App., 155. 82 ALASKAN BOUNDARY TRIBUNAL. Ki.l FINAL PROPOSITION OF SIR CHARLES BAGOT. . His last proposition, proposed March 12, 1824, was, so far as the coast line is concerned, exactly like his third proposition.a FINAL DECISION OF RUSSIAN PLENIPOTENTIARIES IN THE NEGOTIATIONS WITH SIR CHARLES BAGOT. The final decision of the Russian plenipotentiaries was directed to that part of the coast opposite the Island of Prince of Wales, which island was conceded to Russia by Sir Charles Bagot's last proposition. There was then no controversy as to that portion of the coast, north of Prince of Wales Island. It was for this reason that the Russian plenipotentiaries said 1 That the possession of Prince of Wales Island without a slice {portion) of territory upon the coast situated in front of that island could be of no utility whatever to Russia."6 Negotiations were broken off, not on account of any difference of meaning attached to the word "cote," not upon any question as to its embracing inland waters, but as to how the coast should be divided on an east and west line. Thus Russia never departed from the original line dividing the coast, suggested by her, and showed that she would not yield her right to any of the coast north of 54° 40'. In a letter of April 11, 1824, written to Mordvinof, after the negotiations had come to an end, Count Nesselrode, in explaining the Russian attitude, said: By rights of first discovery, and by that which is still more real, the first establishment of habitations and human activity our cabinet demands possession both of the islands and the western coast of America from the furthest north to the 55th degree of latitude.c Referring to the differences that might arise, he says: For this only one expedient presents itself; to establish at some distance from the coast a frontier line which shall not be infringed by our establishments and trappers, as also by the hunters of the Hudson's Bay Company.c In his letter to Count Lieven of April 17, 1824, he reviews the negotiations and sums up the situation. He states that the Ukase of September 4, 1821, carries "the domains of Russia on the north- # west coast of the American Continent down to the 51st degree of «U. S. C. App., 163. &U. S. C. App., 164. «U. S. C. App., 167. ARGUMENT OF THE UNITED STATES. 88 north latitude,"" and that, in the spirit of conciliation, they were willing to yield their claims below the 55th degree, excepting that it was desired to extend the line far enough south to include the whole of Prince of Wales Island. He adds: This proposal will assure to us merely a narrow lisiere [strip] upon the coast itself and will leave to the English establishments all the needful space for increase and extension.a By the word "coast," as here used, it cannot be believed that he meant anything else than sovereignty over the entire coast, which they had insisted upon from the first and had never in the least degree departed from. He then proceeds: In the first place, no nation has protested against the charter of the Emperor Paul, and this universal silence may and should be regarded as a recognition of our rights. The objection is raised that we have not made establishments on the northwest coast below the 57th degree of latitude. This is true, but during the season of hunting and fishing the coast and the neighboring waters are exploited by our American Company far beyond the 55th degree and 54th degree parallels. This is the only manner of occupation of which these localities admit, or, at least, the only one that is necessary, with colonies founded and organized a little farther north. . . . Thus, we wish to keep and the English companies wish to obtain. This circumstance alone is sufficient to justify our proposals.a As Russia stood immovable in regard to the coast, Great Britain acceded to her .well understood demands on this vital point, and on May 29, 1824, Mr. George Canning wrote to Count Lieven that, after mature consideration of the dispatches from Count Nesselrode, he had the satisfaction of saying that he would send such instructions, as would meet in a great degree the wishes of Russia, as to the line of demarcation to be drawn between Russian and British occupation on the northwest coast of America, and to admit, with certain qualifications, the terms last proposed by the Russian Government. These qualifications were to consist chiefly, of a more definite description of the limit of the land desired by Russia on the continent, and the selection of a somewhat more western degree of longitude above Mt. St. Elias, and a precise stipulation for "the free use of all rivers which may be found to empty themselves into the sea within the Russian frontier, and of all 84 ALASKAN BOUNDARY TRIBUNAL. seas, straits and waters which the limits assigned to Russia may comprehend. "a On July 12, 1824, Mr. Canning wrote to Sir Charles Bagot, that: After full consideration of the motives which are alleged by the Russian Government for adhering to their last propositions respecting the line of demarcation, etc., * * * it was resolved to consent to take as the line a line drawn from the southernmost point of Prince of Wales Island from south to north through' Portland Channel, till it strikes the mainland in latitude 56 degrees; thence following the sinuosities of the coast, along the base of the mountains nearest the sea to Mount Elias, and thence along the 139th degree of longitude to the Polar Sea. & Thus it was conceded that the motives alleged by the Russian Government should control. It was fully understood that these motives were to secure a strip of the coast over which Russia had for so long a time claimed sovereignty, and that this strip was to be of such a nature, as to be a barrier, except through navigation of rivers, from the British side, and that it was to preserve their commerce, through the establishment of sovereignty over the coasts, as they had always been defined. There is no pretext for claiming that Russia ever had in mind a political coast, from which, under the laws of nations, the sovereign right was to be projected beyond the actual coast, but on the contrary, everything showed that Russia contemplated only, an actual and sinuous coast, forming an unbroken strip. , With this letter Mr. Canning transmitted a "draft convention" in French and English, which was submitted to Russia. The line to the south was as yet unsettled, but as to some things there was perfect accord. The most important of these, in view of the present controversy, was what all parties understood by the word "coast." It is therefore of the utmost significance to consider the language' in which he set forth in his draft, what he knew to be the understanding of the parties on this point. Note should be taken that there had not only never been any controversy as to what the parties understood the term "coast" to mean, but that no such controversy ever arose at any time, from the beginning of the negotiations to the execution of the treaty, and that, in respect «U. S. C. App., 180. ">U. S. C. App., 181. ARGUMENT OF THE UNITED STATES. 85 of the manifest use of this word, there was never any substantial departure from the original draft made by Mr. Canning. ANALYSIS AS TO THE USE OF THE WORD " COAST" IN THE DRAFT CONVENTION SUBMITTED BY MR. CANNING.a In the preamble he says that the desire is to proceed "sur le principe d'une convenance reciproque.*' Russia had already explained that this meant to it an absolute barrier. This explanation had been accepted by Mr. Canning, and in his letter submitting the draft, he stated that Great Britain had consented, "after full consideration of the motives which are alleged by the Russian Government for adhering to their last propositions."6 These motives were not left to conjecture, but were specifically stated. In the counter draft by the Russian plenipotentiaries they said: The principal motive which constrains Russia to insist upon sovereignty over the above indicated lisiere (strip of territory) upon the mainland (terre firme) from Portland Channel to the point of intersection of 60 degrees latitude with the 139th degree longitude is that, deprived of this territory, the Russian-American Company would have no means of sustaining its establishments, which would therefore be without any support (point d'appui) and could have no solidity.G Again, in their observations on Sir C. Bagot's amended proposal, they said: On the other hand, the Russian Plenipotentiaries have the honor to remind him, once more, that* without a strip of land on the coast of the continent from Portland Channel, the Russian Establishments on the adjoining islands would be left unsupported, that they would be left at the mercy of those Establishments which foreigners might form on the mainland, and that all settlements of this nature, from being grounded upon the principle of mutual conveniences, would offer only dangers to one of the parties and exclusive gains to the other, d It would need no argument to show that everything sought here to be guarded against would have resulted, if Russia had agreed that the lisiere of coast, instead of being continuous around all of the waters of the sea, had been a lisiere of different parts of coasts divided by inland waters, with the sovereignty of them to the east and north of such dividing lines vested in England. Her motives were somewhat elaborated in argument, in respect to that portion « U. S. C. App., 182, et seq. &U. S. C. App., 181. cJJ. S. C. App., 158. <*U. S. C. App., 161. B. C. App., 72. 86 ALASKAN BOUNDARY TRIBUNAL. of the coast opposite Prince of Wales Island in regard to which the dispute was then hinging. It is said in Russia's final decision: That the possession of Prince of "Wales Island without a slice (portion) of territory upon the coast situated in front of that island could be of no utility whatever to Russia. That any establishment formed upon said island or upon the surrounding islands would find itself, as it were, flanked by the English establishments on the mainland and completely at the mercy of these latter.« The same argument brought forward here, in respect to the portion of the coast then in dispute, was equally applicable to that portion north of it, about which there was no dispute, and it is manifest from what was said in regard to the coast opposite Prince of Wales Island, that Russia would not have for a moment tolerated any discussion of such a broken lisiere as is now contended for by Great Britain, opposite any of the islands north of Prince of Wales Island. As expressed by Mr. Canning in his draft convention, it was to determine "les limites de leurs possessions et etablissemens sur la cdte nord-ouest de 1'Amerique." 6 Mr. Canning, who knew full well that Russia had claimed the entire coast down to parallel 51 degrees north, and that the expression "la cdte nord-ouest de 1'Amerique" was never understood by the parties as meaning merely the mainland coast, or to exclude the coast bounding interior waters, could not possibly have answered the question in the affirmative, if he had then been asked, if he meant by the use of this term to exclude from consideration all of the land bordering interior waters, inlets and bays, which were not more than ten miles wide from headland to headland. And yet that is what this tribunal is now asked to say that he and the other parties meant when they solemnly introduced this expression into the treaty. It is not to be imputed to him that he used the word with a covert meaning. Therefore the purpose was, as he expressed it, to determine their respective possessions along the coast, meaning by coast, the entire shores of all the bays and inlets, which Russia claimed in the Ukase of 1821, without any modification, except that in this adjustment she proposed to recede to the foot of Prince of Wales Island. That he meant all the coast is conclusively demonstrated by his use of the word "cdte," in Article two of his draft: «U. S. C. App., 164. &U. S. 0. App., 182. ARGUMENT OF THE UNITED STATES. 87 He provides that the line, remontera, au nord, par la passe dite le'Portland Channel, jusqu'a ce qu'elle touche a la cote de la terre ferme situee au 56° degr6 de latitude nord.« It is to go north until it reaches the coast of the continent. Portland Channel appeared on the maps the negotiators had, to be much narrower, as it is in fact, than either Taku Inlet or Lynn Canal. Mr. Canning denominated the border of the head of Portland Channel as "la cdte de la terre ferme situee au 56° degre* de latitude nord." In the English counterpart he said: " Shall ascend northerly along the channel called Portland Channel till it strikes the coast of the continent lying in the 56th degree of north latitude." The border of the extreme interior part of Portland Channel was, in this Draft Convention, which he made after the negotiations had been pending for more than a year, and which had grown partly out of a cl im of Russia to own the entire northwest coast of America throughout its whole extent, expressly declared to be "coast of the continent," and yet this tribunal is asked to decide that, under the same treaty, the same word "coast" is not applicable to the borders of other much wider interior waters, and that, upon a mere technical and judicial meaning attributed to the word "coast" by nations for jurisdictional purposes, the sinuous coast contemplated by the treaty was what is generally understood as a political coast line, drawn from headland to headland. Article two proceeds: De ce point elle suivra cette cote parallelement & ses sinuosites, et sous ou dans la base vers la mer des montagnes qui la bordent, jusqu'au 139e degr6 de longitude ouest du dit meridiem It was to follow "along that coast" and "parallel to its windings."a This did not mean that the line was to go straight away from ' that point" southwardly along the coast of Portland Canal. Such a construction would be wholly unreasonable. It would be like marching up the hill and then down again. The line had proceeded up Portland Canal to this coast on Portland Canal, and it would do violence to common sense to suppose that he intended «U. S. C. App., 183. 88 ALASKAN BOUNDARY TRIBUNAL. that, it should be retraced on the land* down this coast to the exterior coast. The meaning becomes absolutely clear, when we take into view the mountain range depicted on the map, which went straight away to the northwest. The line was to follow this coast, and parallel to its sinuosities, and along the seaward base of the mountains which bordered this coast, and the trend was toward the 139th degree of longitude. After having fixed unmistakably the meaning of " cdte" it is clear that he intended the line to proceed, so as to follow the sinuosities of the coast so defined, that is, the coast extending around the heads of all salt waters. This was the coast demonstrated by the mountains with reference to which the entire negotiations proceeded. In the third article he says: Que la susdite lisiere de cote sur le Continent de 1'Amerique formant la limite. des possessions Russes, ne doit, en aucun cas, s'6tendre en largeur depuis la mer vers l'interieur, au dela de la distance de lieues maritimes, a quelque distance que seront les susdites montagnes.a Thus he defines the lisiere as "a strip'- and not as "strips" of coast. The coast is "on the continent' and not partly a fiction consisting of water. The width of the strip is not to be more than a certain distance \' depuis la mer." In determining what the coast was in respect to the water, he did not have in mind the Grand Ocean, but the word "sea" was used to designate the water bounded by what he had already designated as "coast." In this sense Portland Channel was "mer." He had defined its upper border expressly as "coast." For the same reason, other like waters constituted a part of the sea, and their borders constituted a part of the coast, and consequently the width of the "lisiere de cdte" was to be measured from the coast at their heads, just as the line took its initial point on the lands on the coast at the head of Portland Channel. And from these coasts the lisiere was to be measured "vers l'interieur." As appears from the letter of Count Lieven to Count Nesselrode of July 13, 1824, Mr. Canning submitted his draft to Count Lieven. Count Lieven understood that the word "cdte" in this draft could not have been used in the unusual and special sense now contended for, because in this letter he says that Mr. Canning "makes the line <*U. S. C. App., 183. ARGUMENT OF THE UNITED STATES. 89 run, "le long de la base des montagnes qui suivent les sinuosites du rivage." a He thus used the word "rivage " as equivalent to the word "cdte," as used in this draft, and that fully accords with the understanding of the word "cdte" from the beginning of the controversy down to that time. '* Rivage" means the part of the earth which serves as a limit to any kind of body of water. It is applied indifferently to the border of a sea, or a lake, or a river. The word "rivage" is translated "coast" in the rendition of this letter by Great Britain.6 Mr. Canning, in his letter to Sir Charles Bagot of July 24, 1824, states that he has communicated this draft to Count Lieven with the request " that His Excellency would note any points in it upon which he conceived any difficulty likely to arise or any explanation likely to be necessary." He further states that he has received the memorandum and that "there are but two points which had struck Count Lieven as susceptible of any question."0 It is hardly necessary to say that the meaning of the word " cdte" was not one of the two points which had struck Count Lieven as susceptible of any question. It may well be imagined that, at that stage of the proceedings, Mr. Canning would have been amazed, if Count Lieven had asked him to explain what he meant by the use of the word "cdte," and whether or not, he meant to confine it to such a line of coast as that to which it is now sought to be confined in the British Case. Mr. Canning said in that letter: The protection given by the convention to the American coasts of each power may (if it is thought necessary), be extended in terms to the coasts of the Russian Asiatic territory. The measure of protection given by the convention to the American coasts of Russia was certainly a snare and a delusion, if it involved their dismemberment and the destruction of the commerce with the natives, *in the manner that is now urged. Instead of protecting what was, as was from the first insisted, its undisputed coast, it would be transferring the sovereignty over parts of it to a nation that had never seriously set up any claim to it. The protection given to the American coasts of Russia would be quite «U. S. C. App., 185. &B. C. App., 90. 8. Doc. 162, 58-2, vol 5— U. S. C. App., 187, m 90 ALASKAN BOUNDARY TRIBUNAL. £T different from that given to the coasts of Great Britain. Great Britain unquestionably got the entire lower coast, but it is contended that Russia got only patches of coast. The Russians did make pronounced objections on three points. Indeed, Sir Charles Bagot in a letter to Mr. Canning, August 12, 1824, pronounced their differences almost, if not altogether, irreconcilable. The second objection was "as to the liberty to be granted to British subjects to navigate and trade forever along the coast of the lisiere which it is proposed to cede to Russia, from the Portland Channel to the 60th degree of north latitude, and the islands adjacent."01 He speaks of "the coast of the lisiere." The lisiere is the dominating feature which was to be secured. It was to be such a lisiere as Russia had indicated would give protection, and the trade spoken of was along the coast of this lisiere, which meant where it touched the water, and the word "coast" is used in the same sense in which he had previously used the word "rivage." In further explanation of Russia's objection he says: As to the second point: the Russian Plenipotentiaries declare that they are ready to grant to His Majesty's subjects for ten years, but for no longer period, the liberty to navigate and trade along the coast of the lisiere proposed to be ceded to Russia from the Portland Channel to the 60th degree of north latitude.& Thus again he speaks of "trade along the coast of the lisiere." The lisiere was to extend from the Portland Channel to the 60th degree. This border or strip was the main security sought for, and the privilege to trade was to be given along the coast of this strip. Sir Charles informed Mr. Canning that it was the determination of Russia, rather to leave the controversy between the two governments unsettled for an indefinite time, than to recede from their three objections specified, the second of which was the refusal to grant to British subjects the right "to navigate and trade forever along the coasts of the lisiere. "c Count Nesselrode, in his letter to Count Lieven of August 31, 1824, gives substantially the same account of these differences. Of «U. S. C. App., 190. &U. S. C. App., 190-191. "U.S. C. App., 191. ARGUMENT OF THE UNITED STATES. those clauses which he says it was "utterly impossible to accept" he puts, as first, the following: 1. Liberty to English subjects to hunt, to fish, and to trade with the natives of the country, perpetually, on the whole of that part of the coast which constitutes the subject of the discussion, and which extends from 59° of north latitude to 54° 40/.« He then speaks of Russia as having granted these very rights to the United States for ten years, and of the impossibility of discriminating in favor of Great Britain, by granting them to her perpetually. He shows plainly that by coasts he meant the whole extent of the coast where Russia's rights have been disputed. He says: We have been willing to suppose that, in spite of a formal taking possession, a long occupation of the principal points, and a peaceful exploitation of the sources of revenue and wealth presented by the countries in question. Russia's rights of sovereignty to the fifty-first degree of north latitude might be the subject of a doubt. We have, consequently, confined them to the 54° 40', and, to prevent any new dispute from arising on this point, we have permitted one of the powers with which we were in litigation to share for ten years, on the whole extent of the coast where our rights had been disputed, the profits of hunting, fishing, and trading with the natives. We offer the same advantages to England, but to grant them forever would be to obtain the recognition of our rights of sovereignty only to abandon the exercise of them. It would be consenting to possess hereafter only in name what we now possess in fact. & He further says: Russia's rights of sovereignty over the northwest coast, beginning at 59° of north latitude, have been disputed. Hence, between that degree and the parallel which would form our southern boundary, we hastened to offer special advantages to the powers with which we were in dispute. We granted to the Americans for ten years the right to fish, to hunt, and to trade with the natives of the country, and we will make the same concession in favor of the subjects of His Britannic Majesty, but it must be well understood that this concession will only comprise the space inclosed between latitude 59° and the southern boundary of our territory, to wit: latitude 54° 40/, for to the north of the fifty-ninth 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.c * * * * * * * Our counterdraft carries our boundary from the fifty-first degree of north latitude to 54° 407. It leaves to the establishments which the English companies «U. S. C. App., 201. *>U. S. C. App., 202. «U. S. C. App., 202-203. 92 ALASKAN BOUNDARY TRIBUNAL. may form nereafter on the northwest coast all the territory situated to the south of Portland Channel.0 Can it, with even a show of plausibility be contended that he understood the word "cote" in the treaty to mean less than the whole extent, less than what had been in dispute; that it left to the absolute sovereignty of Great Britain hundreds of miles of inland coasts and surrendered the right to fish, to hunt and to trade with the natives along them? And yet it is seriously contended for Great Britain that he understood and used the word in this sense, and with this effect. The explanation in regard to the contre-projet of Russia says: England persists in demanding from Russia the following concessions: 1. The free navigation of the bays, gulfs, etc., and the right to fish, to hunt and to trade directly with the natives of the country forever, on all that part of the northwest coast constituting the disputed territory, from latitude 54° 30/ to 60°, subject to the restrictions mentioned in our convention of April 5 (17), with the United States concerning arms, gunpowder and spirituous liquors.& This designates expressly "all that part of the northwest coast constituting the disputed territory." Great Britain certainly cannot say that the treaty ever contemplated giving her any territory that was not in dispute. Here it expressly appears that Russia was to have all of the coast in dispute, and that Great Britain only sought certain rights along it. THE FINAL NEGOTIATIONS. Mr. G. Canning, in his letter to Mr. S. Canning of December 8, 1824, explains the status of the negotiations, and gives instructions for concluding the treaty. In the most explicit terms he sets forth the demand that Great Britain shall secure the same rights as those secured to the United States by the treaty of 1824. He says: Russia can not mean to give to the United States of America what she withholds from us; nor to withhold from us anything that she has consented to give to the United States. The uniformity of stipulations in pari materia gives clearness and force to both arrangements, and will establish that footing of equality between the several contracting parties which it is most desirable should exist between three powers whose interests come so nearly in contact with each other in a part of the globe in which no other power is concerned.c * -x- * * * * * «TJ. S. C. App., 204. &U. S. C. App., 205. «U. S. C. App., 210. ARGUMENT OF THE UNITED STATES. 93 Count Nesselrode himself has frankly admitted that it was natural that we should expect, and reasonable that we should receive, at the hands of Russia, equal measure, in all respects, with the United States of America.a The contre-projet drawn up and submitted by Mr. G. Canning set forth in Article V. almost the identical language of Art. IV. of the treaty of 1824.* Now it is contended that he did not get for Great Britain what he said he was asking, viz., the same rights on the coast that the United States had secured, but that by the treaty of 1825, the rights of the United States were cut down, and that Great Britain, by the use of the word "coast" in the treaty, acquired exclusive sovereignty over a part of the coasts, in respect of which the United States had been granted trading privileges for ten years. Article IV. of the treaty of 1824 appeared without any substantial variation as Article VII. in the treaty of 1825. If the word " coast," as used in Art. III. of this draft, and in Arts. III. and IV. of the treaty as signed, meant a coast line drawn from headland to headland, then it must be admitted that it meant the same thing in Art. I. of this draft, and in the same article of the treaty of 1824 and that of 1825. It will not be asserted that one kind of a coast line was meant by the word in one article of a treaty, and that, without even a word of explanation in the negotiations, the same word had a far different meaning in other articles. What is the consequence of this contention, if "coast" means what in this controversy it is claimed to mean? In that case, by Art. I. of the treaties of 1824 and 1825, neither of the contracting parties acquired any right to resort to any coasts, not already unoccupied within the territory of the other, where such coasts were within a line drawn from headland to head, not more than ten miles apart. They had been treating about the whole extent of this northwest coast, a most sinuous coast, full of indentations and bordered by various islands so situated, as to make a territorial coast line drawn for jurisdictional purposes, embrace large areas of islands and waters. Such a fine would have excluded each contracting party, for the purpose of trading with the natives, from resorting to any of the coasts so included, though not already occupied by the other. a U. S. C. App., 211. &U. S. C. App., 217. 94 ALASKAN BOUNDARY TRIBUNAL. THE MEANING OF " COAST" IN ART. VII. OF TREATY OF 1825. In this connection attention is called to an argument, presented in the British Case based on Art. VII. of the treaty of 1825. It proceeds as follows: A further argument in support of the British contention can be based upon Article VII of the treaty. The liberty to frequent the inland seas, gulfs, havens, and creeks on the coast mentioned in Article III is reserved mutually by both powers. This contemplates the possibility, at least, that some of these waters may be British.« The statement that "this contemplates the possibility at least that some of these waters may be British," shows that it is meant to claim that Art. III. could not apply to any British waters south of 54° 40', that it meant only the coast and waters north of that latitude; and that as Art. VII. contemplates a use by Russia of some British waters, consequently it must have been understood that such waters might exist under Art. III. north of 54° 40'. The argument concludes by saying that the article " of course only postulates that there should be some Russian waters to which it may apply. It equally postulates that there should be some British waters to which it may apply." This is absolutely without force, in its bearing on the Fifth Question. The meaning intended is that taking Articles III. and VII. together, there can possibly be no British waters to which Art. VII. can apply, unless they be found north of 54° 40', and that this being true, it follows that, to give any meaning to the reciprocity provided for in that Article, the negotiators contemplated that, in drawing the inner line of the lisiere, some of the bays and inlets or parts of some of them, might go to Great Britain. Article III. is not by its terms confined to the coast north of 54° 40'. The coast assigned to Russia is, but the Article deals with the whole northwest coast, and then particularly defines that part which is to go to Russia. It says: The line of demarcation between the possessions of the high contracting parties upon the coast of the continent and the islands of America to the northwest shall be drawn in the manner following. South of the line was to belong to Great Britain. Here, then, are British waters and British coasts to which Art. VII. applies, without forcing such a remote conclusion as that it must have been intended to be framed so that it might apply to waters north of 54° 40'. «B. C, 76. ARGUMENT OF THE UNITED STATES. 95 CONCLUSION OF THE NEGOTIATIONS. The treaty was concluded without any further exposition between the parties as to the points of difference. In his letter to Mr. G. Canning of February 17, 1825, transmitting the treaty, Mr. S. Canning shows clearly his understanding of the effect of the line which was to be drawn parallel to the coast. He understood that the line was drawn, not on territorial waters, but on land. He says: The line of demarcation along the strip of land on the northwest coast of America assigned to Russia is laid down in the convention agreeably to your directions, notwithstanding some difficulties raised on this point, as well as on that which regards the order of the articles, by the Russian plenipotentiaries. a He says "strip of land" and not "strips of land and water." Mr. Middleton, on that very day, had an interview with Mr. Canning which he recorded in a letter to Mr. Adams. This contemporaneous record of the views of Mr. Canning ought to have weight. In the first place it is not contradictory of, but entirely consistent with, all that had gone before. If Mr. Middleton had been capable of making a self-serving record for his country, no such motive could possibly have then existed. He says: I have the honor to acquaint you that a convention was signed yesterday between the Russian and British plenipotentiaries relative to navigation, fisheries, and commerce in the Great Ocean, and to territorial demarcation upon the Northwest Coast of America. In a conversation held this day with Mr. Stratford Canning I have learned that this treaty is modeled in a great degree upon that which was signed by me in the month of April last, and that its provisions are as follows, to wit: The freedom of navigation and fishery throughout the Great Ocean and upon all its coasts; the privilege of landing at all unoccupied points; that of trading with the natives, and the special privileges of reciprocal trade and navigation secured for ten years upon the northwest coast of America, together with the mutual restrictions prohibiting the trading in fire-arms or spirituous liquors, are all stipulated in the British as in the American Treaty, and some new provisions are made for the privilege of refitting vessels in the respective ports, and no higher duties are to be imposed than upon National Vessels. & He understood that by unoccupied "coasts" was meant all the coasts. Count Nesselrode, in writing to Count Lieven February 20, 1825, communicating the fact that the treaty had been signed, said: The only point that has given rise to any difficulties in our discussions with the British plenipotentiary related to the limits of the strip of coast which Russia is to «U. S. C. App., 223. &U. S. C. App., 224. —- m i li 96 ALASKAN BOUNDARY TRIBUNAL. possess on the American continent from the fifty-sixth degree of north latitude to the point of intersection of the one hundred and forty-first degree of west longitude. The Emperor would have found it more mutually just, more equally advantageous, if the natural frontier formed by the mountains bordering on the coast were adopted by both parties as the invariable line of demarcation. England would have gained thereby wherever those mountains were less than ten marine leagues from the sea; Russia wherever that distance was greater, and, in view of the want of accuracy of the geographical notions which we possess as to these countries, such an arrangement would have offered an entire equality of favorable chances to the two contracting parties. a Can it be imagined that when he was contending for an unvarying mountain boundary for the '' limits of the strip of coast which Russia is to possess," he understood that he had receded so far as to take stretches of water as such boundary, had given up a continuous strip for broken strips, and had abandoned the sovereignty of Russia over hundreds of miles of coast, oyer which she had always asserted her claim; and that all of this occurred without any discussion or explanation, and without even the private correspondence of either government giving the remotest hint of it? The idea is on its face incredible. To hold that such was the effect of the use of the word "coast" is to convict the plenipotentiaries of Great Britain of the most artful and veiled duplicity imaginable, or those of Russia of a lack of intelligence that is incomprehensible. It would not be possible for any one to give a clearer and more forcible exposition of what Russia, Great Britain and 4he United States understood by the "northwest coast': and "the coast,"—as to which the jurisdiction of these respective powers was settled by the treaties of 1824 and 1825,—than that given by the distinguished counsel for Great Britain in the Fur Seal Arbitration. Sir Charles Russell discussed the question at great length. He said that the phrase northwest coast of America '' extended to the whole of the coast line of the possessions claimed by Russia from Behring Strait down to its most southern boundary."5 He quoted from the Ukase as follows: The pursuits of commerce, whaling and fishery, and of all other industry on all islands, ports and gulfs, including the whole of the northwest coast of America, beginning from Behrings Strait to the 51st degree of northern latitude; also from flTJ. S. C. App., 225-226. & Fur Seal Arbitration, Yol. 13, p. 128. ARGUMENT OF THE UNITED STATES. 97 the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behrings Straits to the south cape of the Island of Urup, namely, to the 45° 50/ northern latitude, is exclusively granted to Russian subjects. and then added: Again, the Tribunal will see that the whole line of that coast is indicated by the general description of Russian assertion of dominion. a In discussing the treaty of 1824 and the rights secured by the United States under Article IV of that Treaty, he says: %7 7 •/ 4 There it is stated without any qualification whatever; and this is written, as I say, six days after the Treaty; it extends without any qualification the whole way up; and the importance of Article four is that it gives a temporary advantage to the United States—that is to say, it gives to United States subjects rights of access to. interior seas, to gulfs, to harbors, and to creeks, all of which, or the greater part of which, would be in strictly territorial waters; and, therefore, to which, upon the general rule of international law, the United States would not have any right of access at all. & Thus he shows that the United States and Russia, in treating in regard to the northwest coast which had been claimed by Russia, meant by " coast" the shores of interior seas, gulfs, harbors and creeks, "all of which or the greater part of which would be in strictly territorial waters." It is the coast of these waters that Great Britain now seeks to exclude from the meaning of the word "cdte" in the treaty of 1825, and on the ground that they embrace strictly territorial waters. KJ *7 %/ This is urged as to a treaty in which, for the purpose of getting the same rights as the United States got in respect of such inland waters, Great Britain insisted upon inserting Article IV of the treaty of 1824, adopted almost word for word. This treaty of 1824, as above expounded by Lord Russell, gave to the United States for ten years rights in strictly territorial waters along the northwest coast, rights corresponding to which Great Britain demanded for herself, but which under the present contention she got as to some of those waters exclusively and forever as against both Russia and the United States. When Sir Charles Russell comes to speak of the right secured to Great « Fur Seal Arbitration, Vol. 13, 130. &Fur Seal Arbitration, Vol. 13, 142. 98 ALASKAN BOUNDARY TRIBUNAL. Britain under the treaty of 1825, he sets out Article VII, which is identical with Article IV of the treaty of 1824, and adds: Therefore under that Article there is for a limited period of time a right given (even as to waters which would be according to law territorial waters) of user of such waters, and that extends along the whole of the coast mentioned in Article III. a This is the very coast now in dispute. Referring to these two treaties, Sir Richard Webster said: It is my contention that Great Britain intended to get, so far as coast rights were "concerned, and so far as navigation and fishing rights were concerned, what the United States got.& In speaking of Article IV. of the treaty of 1824, he says: It was something which would apply to what may be called interior seas and waters of the territory in future to be recognized as Russian as distinguished from the United States.G In discussing Article VII. of the treaty of 1825 in connection with Article IV. of the treaty of 1824, he said that the coast mentioned in Article III. of the treaty of 1825 was "the whole of the coast up to Behring Straits. "^ He further said in the same connection: 1 submit (remembering that the line of demarcation was to be complete with reference to the coast referred to as the northwest coast of the continent, and the Islands of America to the northwest), that nobody who can take an impartial view of this matter can come to any other conclusion than that the coast referred to in article VII is the whole coast; and when we remember that in the United States the^expres- sion lisQre does not occur at all, and that Article III of the United States treaty speaks of the northwest coast of America north of 54° 40/, and that I am justified in saying that Mr. George Canning believed that he was getting the same for Great Britain as the United States had got from Russia—there is not any answer, at any rate, apparent (unless I have made some grave blunder) to the contention that the right of Great Britain to visit, during ten years, inland creeks, and harbours, and to visit for the purpose of navigation and fishing the seas which washed the American coasts extended right of way from 54° 40' up to the point to which I have called attention.e How could Mr. Canning have thought that he was getting the same rights that the United States got if the present contention of Great Britain is sound? If it be sound, then he builded wiser than he knew, « Fur Seal Arbitration, Vol. 13, 167. & Fur Seal Arbitration, Vol. 13, 440. c Fur Seal Arbitration, Vol. 13, 444. <*Fur Seal Arbitration, Vol. 13, 451. « Fur Seal Arbitration, Vol. 13, 451-452. ARGUMENT OF THE UNITED STATES. 99 but to say that, is to say that the treaty means something different from what he thought it meant. The Treaty was made to express the understanding at that time of the parties, and no construction can be put upon it which starts out with a predicate that Mr. Canning did not understand it. Referring to the rights claimed by Russia under the Ukase of 1821 and to the monopoly granted to the Russian Company in the year 1829 after the treaty, Sir Richard Webster said: In 1799, it was down to the 55°; and, in 1821, it was down to 51° in terms; and, in 1829, it is the whoje area assigned to Russia. It must have been, and was, the whole North West Coast of America above 54° 40', which was the part exclusively assigned to Russia, as compared to that below, which was exclusively assigned to the United States. Observe that 54° 40' was to be the dividing line, etc.« LA CRETE DES MONTAGNES. THE CONTENTION OF THE UNITED STATES IS, THAT THE NEGOTIATORS DID NOT MEAN11 THE MOUNTAINS NEXT THE SEA," NOR ANY OF THE MOUNTAINS CONTENDED FOR BY GREAT BRITAIN, BUT MOUNTAINS OTHER THAN THOSE, CONSTITUTING A CHAIN SEPARATED FROM THE SEA BY INTERVENING MOUNTAINS, WHICH THEY INTENTIONALLY REJECTED; AND THAT THEY DID NOT CONTEMPLATE INDIVIDUAL MOUNTAINS WHOSE SUMMITS WERE TO BE CONNECTED TOGETHER, OR EVEN SHORT RANGES HAVING A TREND ACROSS THE LINE OF COAST OF SUCH WATERS AS TAKU INLET AND LYNN CANAL, BUT A GENERALLY CONTINUOUS RANGE OF MOUNTAINS SUPPOSED TO BEGIN NEAR THE HEAD OF PORTLAND CANAL, AND TO CONTINUE WITH A GENERAL TREND PARALLEL WITH THE COAST, AROUND THE HEAD OF LYNN CANAL; AND THAT THE ASSUMPTION OF THE EXISTENCE OF SUCH A RANGE, AND THE AGREEMENT IN REFERENCE TO IT, WAS SUBORDINATE TO, AND IN HARMONY WITH, THE FUNDAMENTAL POSTULATE THAT "CdTE" MEANT ALL OF WHAT COULD BE INCLUDED BY THAT TERM, AND NOT ANYTHING LESS, TO WIT: ALL OF THE NORTHWEST COAST OF AMERICA NORTH OF ok° W OVER WHICH RUSSIA HAD CLAIMED JURISDICTION. The discussion of the mountains contemplated by the treaty is necessarily involved in a consideration of the Fifth Question, and carries with it an answer to the Seventh Question. It is said in the British Case that, the description of the mountains in the Treaty, which are situated parallel to the coast, "indicates a general parallelism only. Mountains being a natural feature could not, of course, be expected to run uniformly parallel to the coast, whether straight or winding."6 a Fur Seal Arbitration, Vol. 13, 463. &B. C, p. 80 I 100 ALASKAN BOUNDARY TRIBUNAL. This proposition is assented to, and it is agreed that the mountains which the negotiators contemplated, extended in a general direction- parallel with the coast, and that they did not contemplate a crest of mountains, winding in and out, along the sinuosities of the coast. There is a difference between the description of the mountains, and the description of the line in reference to the coast, in case the mountains fail. They contracted with reference to a crest of mountains generally parallel to the coast, but if the mountains should fail, then the line was to be drawn parallel to the sinuosities of the coast: The British Case gives a very deft, but palpably unfair turn to this. Referring to the mountains it says: In this they differ from the arbitrary 10-league line which, especially as it would only fall to be drawn through a country where mountains failed, might be drawn with substantial accuracy parallel to the general line of the coast.« It is a forced construction to say that the treaty only contemplated that the line should be drawn on the ten-league basis "through a country where mountains fail." The Treaty provided that, if the crest of the mountains, with reference to which they contracted, and which extended apparently in a direction parallel to the coast, should, at any place, be at a greater distance than ten marine leagues from the ocean, the line should be drawn parallel to the sinuosities of the coast. There was no provision that this line should not be drawn through a mountainous country. There is every reason to believe that the negotiators knew that the whole country was mountainous, and that, if the crest of the mountains which they had in view should be further from the coast than ten marine leagues, the line would nevertheless be drawn through a country where mountains did not fail. It was not to be drawn "parallel to the general line of the coast," but parallel to the sinuosities of the coast. The British Case proceeds to say that: * * * the mountains in question might vary in distance from the coast, from its very edge to the extreme limit of the 10 marine leagues, without sacrificing their general parallel character.« It might have been added that it was contemplated that the mountains in question might exceed the extreme limit of ten marine leagues from the coast. «B. C, 80. memor » ARGUMENT OF THE UNITED STATES. 101 There is nothing in this, however, to justify any assumption that the individuality of the crest of mountains they had in view is to be ignored, or that any mountains, however haphazard they might be, answer to what the negotiators contemplated, provided only they are within ten marine leagues from the coast. It is further observed upon the same page that the mountains were not to be unbroken, and that this is made clear from the circumstance that the line was to be crossed by rivers. The fact that the treaty contemplated that the mountains were to be crossed by rivers, and expressly provided for their navigation across the boundary to the ocean, does not justify the conclusion that such a particularized character of breaks in the mountains includes breaks six and ten miles wide, not made by 7 */ rivers, but by inlets and bays which were not specified. Under the general rule of construction that the specification of one is the exclusion of others, such an argument is wholly inadmissible. In the British Case it is said that: According to the British contention, the phrase " la cr6te des montagnes" signifies the tops of the mountains adjacent to the sea. It was introduced as a concession from the line along the base of this slope proposed by Mr. Canning.« Again it says: The mountains were to be the mountains next the sea..a No authority in support of this claim is to be found in the negotiations. THE MAPS ACCESSIBLE TO THE NEGOTIATORS SHOWED A WELL DEFINED MOUNTAIN CHAIN TO THE INTERIOR OF THE MOUNTAINS NEXT TO THE SEA,. AND CORRESPONDING TO THE LANGUAGE OF THE TREATY. It is known that the negotiators had Faden's map of 1823, the map of 1802 published by the Russian Quarter-Master General's Department, probably Vancouver's charts (a Russian, English or French edition), one or more maps by Arrowsmith, and possibly the Langs- dorf map of 1803-1805.6 lt is asserted in the British Case, but is not proven and therefore is not admitted in the Case of the United States, that Vancouver's Narrative was read by the negotiators.c «B. C, 81. 6U.S. C. C, 7-8. e U. S. 0. C, 8. 102 ALASKAN BOUNDARY TRIBUNAL. Kill Faden's mapa shows a well defined, continuous crest of mountains which, from the south passes a short distance to the northeast of the head of Portland Canal, and continues generally parallel with the coast, turning around the head of Lynn Canal and nearly uniting with another range of which Mount Fairweather and Mount St. Elias are parts. Between this range of mountains and the coast of the bays and inlets all along, other mountains are shown much nearer the coast, and in some places almost reaching it, but they do not form any4 range whatever trending generally parallel with the coast, but are depicted either as short mountain formations trending toward the coast, or as spurs. If the negotiators saw this map they were impressed with the idea that, there was a generally continuous, and homogeneous range of mountains, forming one system, extending from near the head of Portland Canal all the way up to Mount St. Elias. They were also impressed with the fact that between this range and the coast, there were other mountains, very much nearer the coast, which constituted no part of the crest of this range of mountains, and which, if they belonged to the system at all, were foothills, or offshoots of it, with a general formation nearly at right angles to the trend of the crest. If they examined the Russian map of 1802b they would have been impressed in the same way as by Faden's map, with the difference that the slopes of the mountains, the crest of which extends from Portland Canal around Lynn Canal, parallel with the general trend of the coast of the interior waters, allowing exceptions for some short arms which make out almost at right angles from such coast, reach down to the very shore itself, and do not present separate or short mountains, either independent of, or running at right angles to the range, as shown on Faden's map. If they consulted Arrowsmith's map of 1818c they got an impression of a crest of a homogenous range, just like that given in the other two maps, and, at places, would have been impressed with the fact that, there were lateral, or independent mountains, between this general range and some portions of the coast. If they consulted Arrowsmith's map of 1822,^ they were not im- «British Atlas, No. 10. & U. S. Atlas, No. 6. «U. S. Atlas, No. 8. <~U. S. Atlas, No. 10. ARGUMENT OF THE-UNITED STATES. 103 pressed with the idea that there were any mountains at all between the head of Portland Canal, and the head of Lynn Canal. Arrowsmith's map of the same year as reproduced in the British Atlas (No. 8) shows a very faint indication of mountains. The same map uncoloreda is a little more pronounced, but shows nothing like a continuous crest of mountains. There appear to be mountains extending in a general direction, just as in the other map, but they are very much broken up. Langsdorf's map5 is so vague, and inaccurate, that it cannot be supposed that it was relied on for any purpose, when other maps, so much superior, were at hand. Vancouver's maps show a continuous mountain range, or chain, from northeast of the head of Portland Canal all the way around the head of Lynn Canal. Between this dominant range, or chain, which is much higher than any of the other mountains depicted, and the coast, the whole country is shown to be mountainous down to the very water, and all along the coast. This is much more pronounced in the map showing the territory from Portland Canal to Prince Frederick Sound, than on the map showing the territory from Prince Frederick Sound north/ In Map No. 1 of the British Atlas the general range is shown and along a large part of the coast north of Portland Canal mountain formations are shown extending down to the very water, which appear to be independent of the general range. In Map No. 2 of the British Atlas, the mountainous character of the country to the seaward of this general range, and north of Portland Canal, is shown with very great distinctness. All the way up to 57° 30' north latitude the mountains extend down to the water. In Map No. 3 of the British Atlas, which is a duplication of Map No. 2, from 56° to 57° 30', not showing, however the coast between 56° and about 57° 10', the mountains between the general range and the coast, are not so numerous, but they distinctly appear. On part of Vancouver's No. 7, which appears as Map 4 of the British Atlas, there is a marked distinction between the dominant chain and the mounstains near the water's edge, and those at the «British Atlas, No. 9. b British Atlas, No, 7. « U. S. Atlas, Nos. 4 and 5. — 104 ALASKAN BOUNDARY TRIBUNAL. water's edge are more pronounced than the sea of mountains intervening between them, and the crest of the dominant chain. It would have been impossible for these maps to be examined without getting three distinct impressions: 1. That there was a general, continuous, dominant range of mountains, individualized and distinct from all other mountains shown. 2. That this range of mountains, except near the heads of some of the inlets, was approximately ten marine leagues from, and parallel to the general trend of the sea waters in that vicinity. 3. That this trend followed the general line of the coast of the continent as far as the head of Lynn Canal, that it turned, still following the coast of Lynn Canal, and thence proceeded northwardly following the general line of the continental coast. This was the picture they had before them. The coast which they were proposing to divide along the parallel of 54° 40' was all of the northwest coast of America, and Russia was to have all the coast north of 54° 40'. If the negotiators read Vancouver's Narrative, which is not admitted by the United States, the narrative not being put in as evidence or relied on by the United States, the impressions made by the maps as to the mountainous character of the country from the very water's edge would have been ■ confirmed. (See appendix to this argument, Title " Extracts from Vancouver's Narrative.") What the maps sufficiently showed as to the mountainous character of the country, along the coast and in the interior, between Portland Channel and Stikine River, and Stikine River and Taku Inlet, and between Taku Inlet and Lynn Canal, without the narrative of Van- «/ 7 couver, is confirmed by subsequent explorations, and it may confidently be affirmed that the negotiators, desiring to give certainty to the boundary line, spoke according to what the maps showed, when they designated a line to be drawn from the point where it would strike the 56th degree, along the crest of the mountains situated parallel to the coast, and that where the crest of these mountains, which extend in a direction parallel to the coast, from the 56th degree of latitude to an intersection with the 141st degree of longitude, should be at a distance of more than ten marine leagues from the ocean, they should no longer serve as a boundary. ARGUMENT OF THE UNITED STATES. They saw that there were mountains shown along the coast, and that there were other mountains between those rising up from the water line, and the mountains depicted as a continuous chain from the northeast of the head of Portland Canal around the head of Lynn Canal. It also appeared that along these seaward mountains there was not any crest of mountains parallel to the coast from Portland Canal to the 141° of longitude. They described a particular crest of moun- tains that was in their mind's eye, for they said: •' Que partout ou la crete des montagnes qui s'etendent dans une direction parallele a la Cdte," etc. It was on the divergence of these particular mountains more than ten marine leagues from the ocean, that the line was to be fixed by distance. The negotiators contemplated that these mountains might be more than ten marine leagues from the coast, a hypothesis which could not have been possible in respect of the irregular mountains shown to be along almost the entire coast, down to the very water's edge. In further demonstration of what mountains they meant, the reason for referring the boundary line to the mountains must be con- sidered. It had previously been understood that wherever the dividing line of the coast to be agreed on, should strike the coast, all of the coast to the north of that line was to belong to Russia, and it was understood by the negotiators that this was to be a strip on the continent for the protection of Russian establishments from encroachments by the subjects of Great Britain from the interior. The mountains, therefore, were not a primary, but a secondary consideration. They were a subsidiary and not a dominant feature of the Treaty. They were to strengthen and not to weaken. They were introduced to more certainly define the lisiere and not as a factor to disintegrate and destroy it. The moun- tains were not invoked by the Russians to be a Frankenstein, to destroy that which had been already conceded, and which they were called on to protect. S. Doc. 162, 58-2, vol 5 8 106 ALASKAN BOUNDARY TRIBUNAL. Hi! Ill »\y- THE CHARACTER AND IDENTITY OF THE MOUNTAINS AS SHOWN BY THE NEGOTIATIONS AND THE TREATY. Let us see how the question as to mountains arose, progressed and culminated. Mr. Canning, in his instructions to Sir C. Bagot of Jany. 15, 1824, said: l&5 If your excellency can obtain the strait which separates the islands from the mainland as the boundary, the prolongation of the line drawn through that strait would strike the mainland near Mount Elias—the lowest point of unquestioned Russian discovery. But if that were too much to insist upon, the one hundred and thirty- fifth degree of longitude, as suggested by your excellency, northward from the head of Lynns Harbor, might suffice. It would, however, in that case be expedient to assign, with respect to the mainland southward of that point, a limit, say, of 50 or 100 miles from the coast, beyond which the Russian posts should not be extended to the eastward. We must not on any account admit the Russian territory to extend at any point to the Rocky Mountains. 1 Thus he expected Russia to have a substantial strip of land on the continent. In this he followed the suggestion of the Hudson's Bay Company.b The earlier propositions of Sir Charles Bagot made no reference whatever to mountains. Their first introduction was in the Russian counterdraft as follows: To complete the line of demarcation and render it as distinct as possible, the plenipotentiaries of Russia have expressed the desire to make it follow Portland Channel up to the mountains which border the coast. From this point the boundary would ascend along those mountains, parallel to the sinuosities of the coast, as far as the one hundred and thirty-ninth degree of longitude (meridian Of London), the line of which degree, prolonged northward, would form the ulterior limit between the Russian and English possessions, to the north as well as to the east.G This language is a clear demonstration as to the mountains had in view: 1st. They were \' to complete the line of demarcation and render it as distinct as possible." 2nd. The line was ; I to follow Portland Channel up to the mountains." 3rd. It was to ascend along the mountains parallel to the sinuosities of the coast. «U. S. C. App., 148. ">U. S. C. App., 150. «U. S. C. App., 158. ARGUMENT OF THE UNITED STATES. 107 This showed the direction the line was expected to take, to attain the mountains referred to, and that it was to be prolonged in the same direction up to the mountains. To reach the mountains proposed by Great Britain the line runs almost at right angles to this. The British proposal does not complete the line of demarcation and render it as distinct as possible. On the contrary, it constantly disrupts the line and is so uncertain that it depends for the identification of mountains fulfilling the terms of the treaty, upon the most labored, intricate and elusive demonstration. The only mountains on the map that in any way fill these conditions, are those which are depicted as a continuous chain extending from the northeast of the head of Portland Canal, parallel with the coast, around Taku Inlet and Lynn Canal, to the 139th degree of longitude. The language exactly describes the picture shown by the maps, the word "sinuosities" being used to denote a general and not a minute conformation. It was a most attractive and natural boundary, and this is a persuasive argument in favor of the conclusion that it alone was meant. The reason given by the Russian plenipotentiaries for running the line along the mountains appears in the succeeding paragraph of the contre-projet as follows: The principal motive which constrains Russia to insist upon sovereignty over the above-indicated lisi&re (strip of territory) upon the mainland (terre ferme) from Portland Channel to the point of intersection of 60° latitude with 139° longitude is that, deprived of this territory, the Russian-American Company would have no means of sustaining its establishments, which would therefore be without any support (point d'appui) and could have no solidity.a That Sir Charles Bagot understood exactly what the Russian nego- tiators had in mind in referring to the mountains is plain, for, in his amended proposal, he says: Since it has been decided to take as a basis of negotiation the mutual advantage of the two countries, it should be noted, in answer to the proposal made by the Russian plenipotentiaries, that a line of demarcation drawn from the southern extremity of Prince of Wales Island to the mouth of Portland Channel, thence up the middle of this channel until it touches the mainland (terre ferme), thence to the mountains bordering the coast, and thence along the mountains as far as the 139° degree longitude, etc.6 «U. S. C. App., 158. &U. S. C. App., 159. 108 ALASKAN BOUNDARY TRIBUNAL. He manifestly looked at the map and saw the mountains proposed by Russia which would be reached by a line that would follow Portland Channel up to the mountains which border the coast, "and thence would proceed as far as 139° longitude." He made no objection to the particular mountains clearly indicated, but in his amended proposal ignored the suggestion of Russia as to the mountains and proposed to run the line "parallel with the sinuosities of the coast, and always at a distance of ten marine leagues from the shore. "a In their observations upon his amended proposal, the Russian plenipotentiaries set forth distinctly their reasons for a mountain boundary as follows: The motive which caused the adoption of the principle of mutual expediency to be proposed, and the most important advantage of this principle, is to prevent the respective establishments on the northwest coast from injuring each other and entering into collision. The English establishments of the Hudson's Bay and Northwest companies have a tendency to advance westward along the 53° and 54° of north latitude. The Russian establishments of the American Company have a tendency to descend southward toward the fifty-fifth parallel and beyond, for it should be noted that, if the American Company has not yet made permanent establishments on the mathematical line of the fifty-fifth degree, it is nevertheless true that, by virtue of its privilege of 1799, against which privilege no power has ever protested, it is exploiting the hunting and the fishing in these regions, and that it regularly occupies the islands and the neighboring coasts during the season which allows it to send its hunters and fishermen there. It was, then, to the mutual advantage of the two Empires to assign just limits to this advance on both sides, which, in time, could not fail to cause most unfortunate complications. It was also to their mutual advantage to fix these limits according to natural partitions, which always constitute the- most distinct and certain frontiers. For these reasons the plenipotentiaries of Russia have proposed as limits upon the coast of the continent, to the south, Portland Channel, the head of which lies about (par) the fifty-sixth degree of north latitude, and to the east the chain of mountains which follows at a very short distance the sinuosities of the coast.& Thus they wanted a natural partition, and distinct and certain frontiers. For this reason they proposed Portland Channel, a body of water doubtless supposed to be sufficiently certain, whose head was known to end about the 56°, as the limit to the south (using the term in a general sense and not to give the direction with exactness), and U. S. C. App., 159. &U. S. C. App., 161. ARGUMENT OF THE UNITED STATES. 109 "to the east the chain of mountains which follows at a very short distance the sinuosities of the coast." Here, then, is a still more accurate designation of the mountains had in view. It had already been indicated that the line running up Portland Channel was to be carried on up to the mountains which were meant. Here is a further specification. It was a "chain of mountains which follows at a very short distance the sinuosities of the coast." This chain was to be the boundary on the east. Could anyone propose a general southern boundary with a fixed termination, and then describe from that point a general eastern boundary, fixed by a chain of mountains as a natural monument, and expect that in drawing the eastern boundary the line would run almost west to reach distant mountains instead of starting north along the nearest mountains for such eastern boundary, and this, too, with nothing to show that such a remarkable method was to be pursued? How much less is such a hypothesis to be. accepted when it is shown that, whether it actually existed or not, the mountains referred to had for the negotiators and to their minds a location on an eastern line, beginning approximately at the point which had been fixed as the termination of the southern line. The inquiry is whether or not they could have meant the mountains now claimed by Great Britain as the line. It can be shown that they did not mean them, if it be shown that they meant other mountains situated in a different place and with characteristics essentially different, so far as their relation to the main, and accepted theory of the treaty, was concerned. If they contracted with reference to mountains, supposed to exist at a certain locality, and if they attributed to these ideal mountains characteristics which were essential, and controlling considerations in their selection, then if on inquiry they do not exist, other mountains totally different in these respects can not be substituted for them. If these other mountains are located far from the vicinity where the ideal mountains were supposed to exist, if they are not such mountains as • were contemplated, if they bring about a result in conflict with that sought to be attained, by an agreement made with reference to the ideal mountains, then upon what principle of reason or justice can it be claimed that they should be so substituted? If the line, to reach them must run, a great many miles from where 110 ALASKAN BOUNDARY TRIBUNAL. it would have run, to reach the ideal mountains, if, instead of being a chain such as these ideal mountains were supposed to be, they are sporadic, disconnected peaks, or even formations of some extent, with some semblance of continuity, if, instead of forming a generally uniform barrier, which was continued around, and generally parallel with all of the coast, they, except for comparatively short stretches, are discontinued, and, instead of being parallel to, are perpendicular to large extents of the coast, then merely because they are mountains, and the other mountains do not exist, they cannot be substituted for them. The negotiations were broken off without anything further being said as to the mountains. In a letter of April 11,1824, to Mordvinof, Count Nesselrode makes plain what character of protection Russia demanded. He said: For this only one expedient presents itself: to establish at some distance from the coast a frontier-line which shall not be infringed by our establishments and trappers, as also by the hunters of the Hudson's Bay Company. The Plenipotentiaries on both sides equally recognized the necessity of this measure; but the width of the coast-line necessary for the safe existence and consolidation of our Colonies, the direction of the frontier, and even its starting point on the Continent of America, still form subjects of negotiation, and the British Ambassador has declared that for continuing them he must seek new instructions from his Court. I shall not repeat that in these negotiations with* England we took, and will continue to take, into equal consideration on the one side the requirements and interests of the establishments of the Russian-American Company, and, on the other, the degree of its rights of possession in the interior of the Continent of America, and the measure of the methods for firmly securing to the Company the possession of these territories. As I have said above, for the peaceful existence of our Colonies more than all is it necessary to determine with accuracy the frontier, the extent of the country between the coast, and this frontier must be sufficient and be in correspondence with the condition to what these establishments will, in all probability, in time attain, and be their means of own defence. a He says, it is necessary to determine the frontier with accuracy, and that it must be a sufficient defence not only for present, but for future establishments-. We now advance the next step, as shown by the record, toward a definite designation as to what the Russians had in view in their proposal as to the mountains, and how Mr. Canning understood it. «U. S. C. App., 167. ARGUMENT OF THE UNITED STATES 111 On May 20, 1824, in a letter from Count Lieven to Count Nesselrode, he said: Your excellency will notice by Mr. Canning's dispatch that the English Government agrees to accept the terms last proposed by our court, and that Sir Charles Bagot is about to receive authority to sign, upon these bases, the convention which will permanently settle the state of our frontiers in America. The conditions placed at the discretion of the British ambassador on this point will probably not appear to the imperial ministry of a nature to diminish the value of this concession. They consist: (a) Of a more definite description of the limits within which the portion of territory obtained by Russia on the continent is to be inclosed. The proposition of our court was to make this frontier run along the mountains which follow the windings of the coast to Mount Elias. The English Government fully accepts this line as it is laid off on the maps; but, as it thinks that the maps are defective and that the mountains which are to serve as a frontier might, by leaving the coast beyond the line designated, inclose a considerable extent of territory, it wishes the line claimed by us to be described with more exactness, so as not to cede, in reality, more than our court asks and more than England is disposed to grant.a The English government agreed to accept the terms last proposed by Russia. These terms were, in order to render the line as distinct as possible, to make it" follow Portland Channel up to the mountains, which border the coast," and thence to "ascend along those mountains parallel to the sinuosities of the coast, as far as the one hundred and thirty-ninth degree of longitude."6 They had explained in their observations that they meant by mountains, "the chain of mountains which follows at a very short distance the sinuosities of the coast." Therefore the English Government understood it was a chain of mountains, and that it followed the windings of the coast. It has been shown that by coast they all understood the coast claimed by Russia, the whole extent of the northwest coast, north of 54° 40'. It was a particular chain which was to fix the "line as it is laid off on the maps." The chain as laid down on the maps meets all of the conditions had in view. There is only one chain shown.0 This chain runs generally parallel to the sinuosities of the coast, as they understand that word. It formed a complete and continuous natural barrier, except where there might be passes or rivers. Can «U. S. C. App., 178. &U. S. C. App., 158. «U. S. C. App,, 161. 112 ALASKAN BOUNDARY TRIBUNAL. I:!! r ".-i! r there be a doubt that these are the mountains, and that they were understood to run to the interior of the heads of all bays and inlets? Can it be said that the negotiators meant any mountains in the region of the coast although they did not form a chain, mountains that ran perpendicular to any of the coast, mountains that did not form a substantially continuous barrier? They knew that there were mountain cliffs depicted as rising right up from the coast, that there appeared a mountain elevation, and mountain peaks far to the seaward of this supposed chain. They knew that this chain did not purport to represent any such mountains. Then how can it be said that they contracted with reference to such mountains, or that, if what they contracted with reference to does not exist, we must perforce go to what does exist, although it is plain that they did not contract with reference to it, and although it would bring about a result essentially irreconcilable with what they had in mind, which in its essential feature that Russia should get all of the coast, was already understood and agreed to? The mountains were a mere incident. They were to serve as a con- venience to give security and definiteness to what was fully agreed to. Misled by maps they thought that these mountains would serve their purpose. They never intended them to defeat it, and they never contracted in reference to any mountains that could defeat it. The fact that they contracted with reference to these mountains, which ran %J 7 around all of the coasts, is, whether such mountains existed or not, a proof of the contention that by coast they meant that coast running around all interior waters, and that the line was to be drawn parallel to the sinuosities of such coast. This is made clear by the objection made by Mr. Canning. He thought the maps defective, and that " the mountains which are to serve as a frontier might by leaving the coast beyond the line designated, inclose a considerable extent of territory," and more than was intended. The mountains were those shown on the maps running around all the coast, but they might leave "the coast beyond the line designated," that is on the maps, and so he wanted to guard against it. He then sought to make a change to the seaward base of the mountains. In his letter to Sir C. Bagot of July 12, 1824, he said: After full consideration of the motives which are alleged by the Russian Government for adhering to their last propositions respecting the line of demarcation to ARGUMENT OF THE UNITED STATES. 113 be drawn between British and Russian occupancy on the northwest coast of America, and of the comparative inconvenience of admitting some relaxation in the terms of your excellency's last instructions, or of having the question between the two governments unsettled for an indefinite time, His Majesty's Government have resolyed to authorize your excellency to consent to include the south points of Prince of Wales Island within the Russian frontiers, and to take as the line of demarcation, a line drawn from the southernmost point of Prince of Wales Island from south to north through Portland Channel, till it strikes the mainland in latitude 56; thence following the sinuosities of the coast, along the base of the mountains nearest the sea to Mount Elias, and thence along the one hundred and thirty-ninth degree of longitude to the Polar Sea.a The line is still to follow "the sinuosities of the coast" from where, drawn through Portland Channel, it strikes the mainland in latitude 56°, but "along the base of the mountains nearest the sea." He does not speak of a mountain chain, but of mountains and the "base of the mountains nearest the sea." If this means the mountains nearest the sea and not the base nearest the sea, then these mountains were not the chain referred to by Russia. They could not be, for Vancouver showed in his maps and his narrative that there were mountains to the seaward of this chain. The mountains were not to run parallel to the coast. The line was to be drawn '; following the sinuosities of the coast, along the base of the mountains." There is nothing to show that he ever intended to depart from the hitherto accepted meaning of the word coast. This line would, if he meant the mountains near- est the sea, have been drawn practically right at the coast, and all of the way around, and the lisiere would have been a mere fringe with no substantial footing. But he further says: In fixing the course of the eastern boundary of the strip of land to be occupied by Russia on the coast, the seaward base of the mountains is assumed as that limit, but we have experience that other mountains on the other side of the American continent, which have been assumed in former treaties as lines of boundary, are incorrectly laid down in the maps, and this inaccuracy has given rise to very troublesome discussions. It is, therefore, necessary that some other security should be taken that the line of demarcation to be drawn parallel with the coast, as far as Mount St. Elias, is not carried too far inland. This is done by a proviso that that line should in no case (i. e., not in that of the mountains, which appear by the map almost to border the coast, turning out to be far removed from it), be carried further to the east than a specified number of leagues from the sea. The utmost extent which His Majesty's Government would be disposed to concede would be a distance of ten leagues, but it would be desirable if your excellency were enabled to obtain a still more narrow limitation, o, /U.S. C. App., 181. 114 ALASKAN BOUNDARY TRIBUNAL. Iff I k\t- This more specific instruction shows that he probably had not meant in the first part of the letter to suggest different mountains from those before considered, but that he probably meant the seaward base of the chain depicted, and not the base of those broken mountains nearest the sea. His reference to the map shows that he must have referred to this chain. He was not seeking to get nearer the coast or to obtain any part of the coast, but to guard against going too far into the interior. He feared that "the line of demarcation to be drawn parallel with the coast" if drawn on those mountains, which, as shown on the maps, satisfied the condition as to parallelism to the coast, might on account of the mistake in location, be further from the coast than they appeared. He wanted other security, and provided that "the line should in no case {i. e., not in that of the mountains, which appear by the map almost to border the coast, turning out to be far removed from it) be carried further to the east than a specified number of leagues from the sea." He referred to the chain of mountains which Russia meant and said that these mountains appeared almost to border the coast. He shows that he was willing to give, if necessary, a lisiere ten leagues wide. His draft convention shows the kind of mountains he meant. It says: * * * the line of frontier between the British and Russian possessions shall ascend northerly along the channel called Portland Channel, till it strikes the coast of the continent lying in the 56th degree of north latitude. From this point it shall be carried along that coast in a direction parallel to its windings, and at or within the seaward base of the mountains by which it is bounded, as far as the 139th degree of longitude west of the said meridian.a The line is to be drawn "till it strikes the coast of the continent lying in the 56th degree." It "shall be carried along that coast parallel to its windings, and at or within the seaward base of the mountains by which it is bounded." That is, the mountains which bound that coast. The line must first be parallel to the windings of the coast and at the base of the boundary mountains, whether they are parallel to the coast or not. The mountains are not to control the parallelism. Nothing but the coast is to control it. If mountains trend across the coast line, yet the line is to follow the windings of the coast and along the base of the mountains and is not to follow the mountains across the coast and interior waters. Doubtless he meant the mountains already referred to which, as shown by the map, in oU. S. C. App., 183. ARGUMENT OF THE UNITED STATES. their general trend bounded all of the coast, including in coast, such coast as that at the head of Portland Channel, which he in that connection expressly designated as coast. If he meant the mountains nearest the sea, or those bounding the sea, he never sought in any way to press the idea, and clearly abandoned it when it was rejected by Russia and he agreed to the language embodied in the treaty. It appeals from a letter from Mr. Canning to Sir Charles Bagot of July 24, 1824, that he had communicated to Count Lieven a draft convention made by him, with a request that he would note any points in it upon which he conceived any difficulty likely to arise, or any explanation likely to be necessary. He enclosed to Sir Charles a memorandum made by Count Lieven, and said: Your excellency will observe that there are but two points which have struck Count Lieven as susceptible of any question. The first, the assumption of the base of the mountains instead of the summit as the line of boundary; the second, the extension of the right of the navigation of the Pacific to the sea beyond Behring's Straits. As to the first, no great inconvenience can arise from your excellency (if pressed for that alteration) consenting to substitute the summit of the mountains instead of the seaward base, provided always that the stipulation as to the extreme distance from the coast to which the lisi&re is in any case to run be adopted (which distance I have to repeat to your excellency should be made as short as possible), and provided a stipulation be added that no forts shall be established or fortifications erected by either party on the summit or in the passes of the mountains. a There is not the least intimation here that Mr. Canning was talk- ing about any different mountains from those proposed by Russia. If he had proposed different mountains Count Lieven would certainly have been struck by it, and he says expressly that only two points struck him. He shows that he knew that Count Lieven understood his proposition as simply "the assumption of the base of the mountains instead of the summit as the line of boundary," and that he was not proposing any mountains different from those previously indicated by Russia. Count Lieven certainly understood that he referred to the "chain of mountains" already designated and not to some different moun- tains. In a letter to Count Nesselrode, July 13, 1823, he says: As regards the frontier of the respective possessions to the south of Mount Elias, Mr. Carining makes it run along the base of the mountains which follow the sinu- a U. S. C. App., 187-188. 116 ALASKAN BOUNDARY TRIBUNAL. n i. osities of the coast. I thought it my duty to represent to him that when a chain of mountains is made to serve for the establishment of any boundary whatever, it is always the crest of those mountains that forms the line of demarcation, and that, in this case, the word "base," from the vague meaning attached to it, and the greater or less extension which may be given to it, did not appear to me adapted to protecting the delimitation in question from all controversy. a This is further shown by his memorandum on the North-West Coast Convention, as follows: The plan of the agreement drawn up by the English cabinet makes the boundary line of the Russian and English possessions on the northwest coast of America, south of Mount Elias, run along the base of the mountains which follow the sinuosities of the coast. It is to be observed that, as a general rule, when a chain of mountains serves to fix any boundary line, it is always the summit of the mountains which constitutes the line of demarcation. In the case now under consideration, the word base, because of its indefinite meaning and the greater or less expansion that can be given to it, seems hardly of a nature to fix the boundary line beyond all further question, for it is certainly not among the impossibilities, in view of the uncertain ideas yet prevalent in regard to the geography of these regions, that mountains chosen for boundary lines should extend, by an imperceptible declivity, to the very edge of the coast. & In this memorandum he says, that according to the plan of the English Cabinet the line is "to run along the base of the mountains which follow the sinuosities of the coast." If he had understood that this was a different set of mountains, he certainly would have commented on it. He proceeds in the next sentence to say that, When a chain of mountains serve to fix any boundary line it is always the summits of the mountains which constitute the line of demarcation. He has in mind the same "chain of mountains" which Russia had proposed, and the only question considered is whether or not the base shall be substituted for "la cime." He says further, it is not among "the impossibilities" in view of the uncertain geographical knowledge, '' that mountains chosen for boundary lines should extend, by imperceptible declivity, to the very edge of the coast." This is seized on in the British Case, as a strong argument to show that, he understood that the coast mountains were meant. It proves just the contrary. If the mountains nearest the sea were understood, certainly their extending to the very edge of the water would not have been spoken of as something, "not among the impossibilities." Such language was entirely applicable to the chain of mountains «U. S. C. App., 186-187. 6 U. S. C. App., 189. ARGUMENT OF THE UNITED STATES. 117 running from the head of Portland Canal northward, and to the interior of all the waters. They might well so descend near the heads of inlets, and might be expected there to approach by an imperceptible declivity to the very edge of the coast. The mountains nearest to the sea would not be expected to do anything else. What would be one of the possibilities in one case, would be the rule in the other case. In his letter of explanation to Mr. Canning of Aug. 12, 1824, Sir Charles Bagot, in discussing the negotiations, differences, propositions and counter-proposition, never made any allusion whatever to the mountains, although in the "Contre Draft of the Russian Plenipotentiaries," which he transmitted, all reference to the mountains had been eliminated, and they went back to his original proposition of a line following from its intersection with the 56° of latitude, "cette cdte parallelement a ses sinuosites." They were unwilling to risk the base of the mountains, and hence professed to abandon the mountains altogether, in order to secure a strip of uniform width, as England had proposed. a Count Nesselrode, in his letter to Count Lieven of Aug. 31, 1824, referring to his counterdraft, says: It abolishes the establishment of the mountains as the boundary of the strip of mainland which Russia would possess on the American Continent, and limits the width of this strip to ten marine leagues, in accordance with the wishes of England. & The third explanation with regard to the contre projet is as follows: In the first paragraph of this article, as in Article II, we have suppressed all mention of the mountains which follow the sinuosities of the coast. It became useless from the moment that one (of the articles) fixed the width of the strip of mainland which would belong to Russia in marine leagues.c This explanation is not entirely consistent with the previous contention of Russia, as to the desire for a natural mountain barrier, and manifestly they wanted then, to get away from the demand of Great Britain, for the line to run along the base of the mountains, fearing that it might come at points too near the coast. «U. S. C. App., 190-192. "»U. S. C. App., 204. mm s. c. App., 206. 118 ALASKAN BOUNDARY TRIBUNAL. Mr. G. Canning, in his letter to Mr. S. Canning of Dec. 8, 1824, called attention to this change, as follows: The Russian plenipotentiaries propose to withdraw entirely the limit of the lisiere on the coast, which they were themselves the first to propose, viz.: the summit of the mountains which run parallel to the coast, and which appear, according to the map, to follow all its sinuosities, and to substitute generally that which we only suggested as a corrective of their first proposition. We cannot agree to this change. It is quite obvious that the boundary of mountains, where they exist, is the most natural and effectual boundary. The inconvenience against which we wished to guard was that which you know and can thoroughly explain to the Russian plenipotentiaries to have existed on the other side of the American continent, when mountains laid down in a map as in a certain given position, and assumed in faith of the accuracy of that map as a boundary between the possessions of England and the United States turned out to be quite differently situated, a discovery which has given rise to the most perplexing discussions. Should the maps be no more accurate as to the western than as to the eastern mountains, we might be assigning to Russia immense tracts of inland territory, where we only intended to give, and they only intended to ask, a strip of seacoast. To avoid the chance of this inconvenience we proposed to qualify the general proposition "that the mountains should be the boundary, with the condition if those mountains should not be found to extend beyond ten leagues from the coast." The Russian plenipotentiaries now propose to take the distance invariably as the rule. But we can not consent to this change. The mountains, as I have said, are a more eligible boundary than any imaginary line of demarcation, and this being their own original proposition, the Russian Plenipotentiaries cannot reasonably refuse to adhere to it. Where the mountains are the boundary, we are content to take the summit instead of the " seaward base " as the line of demarcation.« Thus he brought Russia back to her original proposition, and acceded to it, and the reasoning on which it was based. He abandoned the seaward base of the mountains bounding the strip of coast. He shows that he accepted the original chain, comprehending the entire coast as shown on the maps, that he intended to give "a strip of seacoast," and that he put the limit against recession from this coast, not that he ever contemplated getting any of the coast by adhering to the mountains, but because he feared that, without this limitation, he might be assigning "immense tracts of inland territory." It is impossible to predicate any such fear, if he had contemplated such a mountain line as Great Britain now contends for, for those peaks were visible from the waters which had been navigated by Vancouver and had not been depicted «U.S.CApp., 210-212. ARGUMENT OF THE UNITED STATES. 119 as a mountain chain. If the coast meant, was the one now contended for, then such a fear as that expressed by Mr. Canning was a patent impossibility to him, and all the other negotiators. The contre-projet submitted in accordance with these instructions by Mr. Stratford Canning provided that: * * * la dite ligne remontera au Nord (l'Isle Prince of Wales appartenant en entier k la Russie), le long de la Passe, dite Portland Channel, jusqu'a ce qu' elle touche a la Cote de terre ferme au 56me degr6 de Latitude Nord, depuis ce point ci, ou la ligne de demarcation touche au 56me degr6, elle suivra le cr£te des Montagnes dans une direction parallele a la C6te, jusqu'au 141me degre* de Longitude Ouest (Meme Meridien).a Thus he designates it as "la crete des Montagnes dans une direction parallele a la Cdte." The treaty has it, "la crete des montagnes situees parallelement a la Cdte."& Russia, while not willing to take the seaward base of the mountains as the boundary, was willing to take the crest without any dis- tance limitation, and complained of the insistence of Great Britain. In his letter to Count Lieven of March 13, 1825, Count Nesselrode said: Upon exchanging this instrument for that which is to be delivered to you by the Court of London, the Emperor wishes you, Monsieur le Comte, to remark to Mr. Canning that it would have been more in conformity, in the opinion of his Imperial Majesty, both with the principles of mutual justice and with those of reciprocal accommodations, to give as a frontier to the strip of coast which Russia is to possess from the fifty-3ixth degree of north latitude to the point of intersection of the one hundred and forty-first degree of west longitude the crest of the mountains which follow the sinuosities of the coast. This stipulation, in fact, would have secured to the two powers a perfect equality of advantages and a natural boundary. England would have found her profit in it wherever the mountains are less than ten marine leagues from the sea, and Russia wherever the distance separating them from it is greater. It seems to us that, in the case of countries whose geography is still little known, no more equitable stipulation could be proposed.c Count Lieven reported the reply as follows: Mr. Canning, while rendering full justice to the intentions which determined the concessions granted by our court, whose conduct on this occasion has borne indisputably the stamp of the friendly feelings of His Majesty, the Emperor, toward England, attempted to justify the persistence of the British Government by assuring me that it arose solely from a sincere desire to prevent the recurrence of any disagreeable discussion in future, and not from any intention of acquiring an increase «U. S. C. App., 213. &U. S. C. App., 3. cJJ. S. C. App., 227. 120 ALASKAN BOUNDARY TRIBUNAL. of territory or of limiting the extension of the Russian possessions; that the disputes in which the English Government finds itself engaged at this moment with the United States Government, on account of a stipulation of the treaty of Ghent similar to the one proposed by our court, and which likewise fixed a chain of mountains as the frontier between the possessions of the two States, had shown it all the inexpediency of a delimitation established on this principle, the mountains having been found to deviate very considerably from the direction given them on the maps which were thought to be the most correct and the most detailed; that this inexpediency having presented itself in the case of countries whose geography is much better known than that of the regions to which the stipulations of the convention of February 16 (28), last relate, the English Government, in now insisting upon the fixing of a less vague boundary, thought that it gave a proof of the value which it attaches to the prevention of even the possibility of a discussion as to the tenor of the transaction concluded between the two cabinets.a Thus it appears that all the time they negotiated and contracted with reference to a chain of mountains, that the crest of this chain was to be followed, that the chain was one that was depicted on the maps as running around all the coasts, from the head of Portland Channel to Mount St. Elias, and that the mountains were not insisted on, with any intention of, acquiring an increase of territory, or limiting the extension of the Russian possessions. If it appear that no such chain exists, or that, if it may exist, it lies at no point within ten marine leagues of the coast, is that any reason for forcing the line to other mountains, which manifestly were not meant, and which defeat the very reasons which plainly controlled in selecting the chain which, in reference to the coast, appeared to be suitably located? The correspondence has been appealed to by both sides and the language of the treaty has been scrutinized. It will be helpful to inquire what interpretation was put upon this particular feature of the treaty. THE EVIDENCE OF THE MAPS ISSUED AFTER THE TREATY AS TO WHAT MOUNTAINS WERE MEANT BY THE TREATY. In 1826 Russia issued an Admiralty Chart showing the boundary line.6 This line is laid down about ten marine leagues from the general trend of the interior coast. The map does not show any mountains where the line falls. It shows distinctly mountains right at the coast, following all of its sinuosities, and other mountains covering a large part of the territory, situated back of those next to the sea, with an absolutely clear space between the boundary line, «U. S. C. App., 230, 231. & U. S. Atlas, No. 11. ARGUMENT OF THE UNITED STATES. 121 and all mountains from the head of Portland Channel all the way round to Mt. St. Elias. This was an official map issued the year after the Treaty, when everything was fresh in the mind. The most striking thing on it, looking to the long negotiations just terminated, was the boundary line. The next most striking thing is, that the line is drawn exactly where the chain of mountains depicted on Vancouver's and other maps, which were before the negotiators, was located. The next most striking thing is that this chain of mountains is not shown at all on the map. The next most striking thing is that other mountains are shown to the seaward of the boundary line, and'that the line nowhere touches them, and cannot, on account of the clear intervening space, possibly be correlated with them. The declaration of the map, put into words, is "The mountains next to the sea were not the mountains meant by the Treaty, and the boundary line is not to be drawn along the crest or from summit to summit of these mountains or in^any way with reference to them." The map of Arrowsmith issued in 1833, speaks exactly the same message.a The most conspicuous thing in this map is a note as follows: "Note.—Wherever the summit of the Mountains (which are supposed to extend in direction parallel to the Coast) from the 56th degree of N. Lat. to the point of intersection of the 141st degree of W. Long, shall prove to be at the distance of more than 10 marine leagues from the Ocean the limit between the British Possessions and the line of coast which is to belong to Russia, shall be formed by a line parallel to the windings of the Coast and which shall never exceed 10 marine leagues therefrom. See Art. 4th, Treaty 1825." The line is put back of the "mountains next to the coast" because they were not ' \ the mountains which are supposed to extend in direction parallel to the coast from the 56th degree of N. Lat. to the point of intersection of the 141st degree of W. Long." The map of Brae* of 1833 shows a chain of mountains, just as did the maps which the negotiators used. It also shows mountains to the seaward of this chain. The boundary is made coincident with the chain and is entirely disassociated from these other mountains.6 «U. S. Atlas, No. 12. 8. Doc. 162, 58-2, vol 5 9 ">U. S. Atlas. No. 13, 122 ALASKAN BOUNDARY TRIBUNAL. m i Greenhow's map of 1844 shows the boundary drawn just as in the Russian Admiralty map and Arrowsmith's map, on a clear space. It also shows mountains to the seaward of the line, but not so continuous or so pronounced as the others. The line is drawn back of all of these mountains.a The map of De Mofras of 18446 shows the same as that of Brue. The Russian map of 1861c is to the same effect as that of 1826. That of Berghaus (1863)d is to the same effect as the Russian map and that of Vancouver. The Russian map of 1844 revised to 1864 is the same.6 We have seen what Russia understood, and what disinterested cartographers understood. Look at the British Admiralty Map published in 1856 and corrected to 1865.^ It shows a line marked "Boundary between the British and Russian Territory" drawn without touching a mountain from the time it leaves the mountains at the head of Portland Channel until it reaches Mt. Fairweather. It also shows continuous mountains all the way around the coast, and down to the very water. Between these mountains and the boundary there is an intervening clear space of many miles in width all the way around. This map says unmistakably that "The mountains next to the sea are not the mountains meant by the Treaty. They have nothing to do with it, and the line must be drawn just as if they did not exist." The map of Arrowsmith, printed by order of the House of Commons in 1857/ shows the boundary line drawn in an absolutely clear space, about ten marine leagues from salt water, and it also shows mountains parallel to almost all the extent of the coast of the interior waters, and other mountains between them and the line, but it does not touch any of them until it reaches Mt. Fairweather, and moreover it is separated from them by an absolutely clear space of many miles in width. The United States understood all these messages of the maps, just as Mr. Middleton understood from Mr. Canning what the Treaty provided, and so when the first official map was made, under the direction of Mr. Sumner, it showed mountains next to the sea all « U. S. Atlas, No. 15. l> U. S. Atlas, No. 16. . U. S. Atlas, No. 20. d U. S. Atlas, No. 21. e U. S. Atlas, No. 22. / U. S. Atlas, No. 23. 9 British Atlas, No. 21. ARGUMENT OF THE UNITED STATES. 123 the way round, but it also showed the boundary line far to the interior of all of these mountains.a This was the interpretation of the United States as to what mountains were meant by the Treaty and, what is even more significant in the present argument, it is an affirmative and positive declaration that the mountains next to the sea were not those meant by the Treaty. To the same effect, varying only in immaterial details, is the official map of British Columbia of 1884, and that of the Dominion of Canada corrected to 1882.6 Here are Russian, Canadian, English, American, and private maps of well known cartographers, from the year after the Treaty to the year of the American purchase, and American and Canadian maps after the purchase, all of them showing the boundary line as it was understood under the terms of the Treaty, all of them showing mountains next to the sea, and not one of them drawing the line along the summits of these mountains, but segregating them in such a pronounced and conspicuous way by laying it down with an interval of, clear space of many miles that the line could not possibly be associated, with them. From the time of the treaty of 1825 down to 1895, a period of 70 years-, no official map was ever issued, showing the boundary line drawn along the summits of the mountains next to the sea, and of the scores of maps issued during that period by cartographers not one has been produced that so depicts the line. If the uniform conduct of the parties most interested, during a period of seventy years, and the general consensus of the educated world, publicly declared, could conclude a matter, then there would be no room for argument on the question. THE STIKINE RIVER. DRYAD AFFAIR. Nine years after the Treaty of 1825, what is known as the Dryad Affair occurred. The Dryad was a vessel of the Hudson's Bay Company which in 1834 appeared off St. Dionysius, a redoubt constructed by the Russians near the mouth of the Stikine River. The avowed purpose of the vessel was to establish a trading post up the Stikine on «U. S. Atlas, No. 24. & British Atlas, Nos. 31, 32. 124 ALASKAN BOUNDARY TRIBUNAL. HI English territory. Mr. .Ogden, who was in charge of the expedition said in a letter of June 20, 1834, to the Governor of the Russian Territory: My instructions from the Governor of the Honorable Hudson's Bay Co., residing, in Columbia River, are to trade and form an establishment ten marine leagues inland, in accordance with clause 2nd, art. 4 of Convention entered into between Great Britain and Russia, &ca The Hudson's Bay Company had the privilege, under the Treaty, of trading in all that country for ten years, and its representatives certainly knew then, as well as it is known now, that there were mountains along the Stikine River nearer the sea than ten marine leagues. They understood, as everybody else had understood, that the mountains referred to in the Treaty, were not those mountains. They assumed that they were ten leagues or more from the coast, and so proposed to make their establishment ten marine leagues from the coast. If they had believed that the mountains referred to in the Treaty, were those nearest the sea, then they never would have said that they were going to "form an establishment• ten marine leagues inland in accordance with clause 2nd art. 4 of Convention". Mr. Ogden had, during the year 1833, gone up the Stikine River and had selected the spot where the post was to be established.6 The Russian representatives, acting from motives with which we are not concerned, prevented the vessel from entering the river. On account of this action the British Government demanded of the Russian Government indemnity on behalf of the Hudson's Bay Company. The occasion for this demand was a letter from Pelly, Deputy Governor of the Hudson's Bay Company, addressed to the representative of Great Britain, in which he stated that, the object of the expedition was, "to form a trading establishment within the British Territories at a distance from the ocean exceeding ten marine leagues. "c Lord Durham, in a communication of Dec. 11,1835, to Count Nesselrode, making claim for damages, refers to the letter of the Governor of the Hudson's Bay Company, and the complaint that the ' \ Russian Authorities on the N. W. Coast of America have interfered with an expedition fitted out under the direction of that Co. for the purpose of forming a settlement .ten leagues up the Stikine River." He fur- «U. S. C. App., 269. &U. S. C. App., 272,283,313. «D. S. C. App., 278. ARGUMENT OF THE UNITED STATES. 125 ther says that ''the ultimate object of the expedition was to form a settlement within the British Territory."a Other articles of the Treaty were referred to in the correspondence, but they are not material to the present discussion. It is made clear that, Russia and Great Britain both understood that, the purpose of the expedition was to go ten marine leagues up the Stikine, in order to get to British Territory. This shows that both governments understood that, the mountains near the sea were not meant by the Treaty, for everybody with even the slightest knowledge about that country, knew that the mountains nearest the sea were not ten marine leagues from the sea. Russia disavowed the acts of its representatives, but the affair hung on, until it was merged in the lease of the lisiere to the Hudson's Bay Company. SURVEYS OF THE STIKINE. The Stikine River was surveyed by Russia in 1837 and the boundary was located on a map at a point where it was regarded that under the Treaty the line would run, and this point was about ten marine leagues from the coast, certainly far east of the summit of the mountains 7 %, nearest to the sea.6 This line was located after actual knowledge had been gained of the mountains within ten marine leagues of the sea, and in the light of this knowledge, taken in connection with the provisions of the Treaty, the mountains next to the sea were disregarded. This was an explicit and deliberate interpretation put by Russia upon the Treaty, so far as the summit of the mountains next to the sea, and the summits of mountains within ten marine leagues from the ocean were concerned. The Russian Government in 1863, on account of a report that gold had been discovered on the Stikine about the boundary line, had the %7 7 river surveyed. A report and map of this expedition was made by Professor Blake of Yale University, both of which were published by the United States in 1868.c This map shows mountains on both sides of the Stikine River from the very mouth of the river all the way up, above the boundary line as claimed by the United States. In 1868 Professor Leach, formerly of the English Sappers and Miners, was employed by the Hudson's Bay Company, to survey thirty miles inland from the coast on a salt water line, that the Com- «U. S. C. App., 285, 286. *>U. | C. App., 514, No. 28. « U. S. Atlas, No. 29. 126 ALASKAN BOUNDARY TRIBUNAL. pany might be able to build their trading post in British Columbia.a This shows that the Hudson's Bay Company ignored the mountains to the seaward of the ten marine leagues. From 1872 to 1876 on account of the development of gold deposits in the Cassiar region the trade on the Stikine had grown to such proportions as to impress both governments with the great importance of establishing the boundary line. As shown, there had been various surveys, all proceeding upon a plan which completely ignored the mountains next to the sea, as in any way controlling the location of the line. There had been no point fixed by convention. In 1874 a British Custom House was established on the Stikine River about where the boundary was supposed to be. On March 14, 1874, public notice was given by the Collector of Customs that duty would be collected "at the boundary post or at Buck's Bar."6 This location was not made with reference to the mountains next to the sea but with reference alone to the ten league limit. The Secretary of State, Mr. Fish, understood that this Custom House was intended to be located on the boundary line, for in a letter to Mr. %J 7 Watson, the British Charge, dated May 18, 1874, he speaks of "the location of a British Customs officer at the boundary line between the two countries on that river." c The occasion of this was a remonstrance from citizens of the United States, on account of "the action of the Canadian officer of the Customs stationed on the boundary line at Stikine River." d Mr. Watson, on Sept. 29, 1874, at the request of the Earl of Duf- ferin, forwarded to the Secretary of State, a .copy of a minute of Council in regard to instructions given to the "Collector of Customs at the Boundary line on the Stikine River. "e The fixing of this boundary line was an independent and deliberate act of Great Britain. No such line could have been selected on the theory now advanced as to the mountains next to the sea being those meant by the Treaty. This was not a conventional line or a provisional line, f In his letter of Oct. 16, 1876, to Hon. A. Mackenzie, Mr. Justice Gray spoke of this as a "conventional line" and "a conventional «U. S. C. C. App., 73. &U. S. C. C. App., 61. cTJ. S. C. C. App., 64. *U. S. C. C. App., 64. «U. S. C. C. App., 65. /B. C. App., 191, 192. ARGUMENT OF THE UNITED STATES. 127 boundary". The Privy Council, having this letter under consideration, said that there was no such conventional line.a Sir Edward Thornton followed the error from Justice Gray, in his letter to Mr. Fish of Jan'y 15. 1877.6 The mistake is clearly shown by Sir Edward Blake, and the Earl of Carnarvon. Sir Edward Blake said: No mention is made in the Memorandum of any agreement or understanding, formal or informal, as to a conventional boundary line pending the ascertainment of the true line. No such agreement or understanding has ever been made by this Government oi by an)- one with its knowledge or authority. There was not, and, indeed, under the circumstances which I have mentioned, there could not have been any intention to assert the existence, or to suggest the continuance of any such agreement or understanding.c Mr. Fish, on September 13, 1875, called the attention of Great Britain to a report that a site for a town was about to be located by British subjects on the Stikine, within the territory of the United States, and on Oct. 22, 1875, the Earl of Carnarvon wrote to the Earl of Dufferin saying: I have the honor to transmit to Your Lordship a copy of a despatch from Her Majesty's Minister at Washington, reporting a conversation with Mr. Fish respecting the settlement of some British subjects at a point near the Stikine River, alleged b\ American officers to be within the United States territory and below the British Custom House, which is also stated to be within the United States boundary. In view of the circumstances represented by Mr. Fish it appears to Her Majesty's Government desirable that an officer should be sent by your Government or by the Provincial Government of British Columbia to ascertain whether the settlement alluded to and the British Custom House are within British Territory.** This letter of Sir E. Thornton said: The point was stated to be belov the British Custom House on the Stikine, which Custom House was also supposed to be within the United States territory, that is, within the ten marine leagues from the coast at which the boundary should be in accordance with the provisions of the 4th Article of the Convention of February 28th, 1825, between Great Britain and Russia.e On the 23rd day of November, 1875, the Committee of the Privy Council reported that: In the discussion of this subject between Sir Edward Thornton and Mr. Fish, the latter suggested that as the weight of the evidence seemed at present to be in favor of the point in question being in United States territory, the settlers should be called «B. C. App., 197. *>B. C. App., 202. «B. C. App., 222. <*U. S. C. C. App., 67. «U. S. G. C. App., 68. 128 ALASKAN BOUNDARY TRIBUNAL. upon to suspend operations for the present and until the question of territory could be decided.« The report further said: The Stikine River intersects the international boundary, in the vicinity of the 57th degree of north latitude, with so intricate a basis for determining the true line, it appears to the Committee that a satisfactory solution of the question can only be arrived at by accurately defining the point where the boundary intersects the Stikine River, and as settlements are likely to increase along the banks of that river, it seems to be obviously in the interests of both countries that the true line should be defined at this point without further delay.& The Privy Council recited the boundary provisions of the Treaty in the report, and then stated that "The Stikine River intersects the international boundary in the vicinity of the 57th degree of north latitude." The summits of the mountains nearest the sea are not in the vicinity of where the 57th degree crosses the river, and could not have been regarded as the mountains meant by the Treaty, for if they had, then no such crossing could have possibly been indicated. A British trader by the name of A. Choquette was, Sept. 19, 1876, notified by the United States authorities that he was within United States territory,0 and this, together with the Peter Martin case, led to a survey by the Canadian authorities for the purpose of determining the boundary line. The order against Choquette was suspended pending the survey. On Jan'y 15, 1877, Assistant Adjutant General Wood, in a letter to General Howard said: As a matter of fact, there is no well defined range of mountains extending in direction parallel to the coast. A rugged, broken region extends back from salt water a considerable distance; the mountain peaks visible seeming to stand in groups or clusters; a confused mass of hills of varying altitudes "from three thousand to six thousand feet, the highest being, perhaps, in the vicinity of the point marked Grand Canon, in latitude about 57°20/N." It would appear that the Russian Government had caused a monument to be set up on the Stickeen, marking a point ten marine leagues from the coast, and that this monument was, or is located some one hundred and thirty-five (135) miles from the mouth of the river, in the vicinity of a point called Shakerville.6* This letter enclosed one from Captain Jocelyn of Oct. 1, 1876, in which he said: Attention is respectfully invited to the map herewith enclosed, and to the provisions of the treaty between the United States and Russia proclaimed June 20, 1867. <*U. S. C. C. App., 68. &U. S. C. C. App., 69. «U. S. C. C. App., 70. <*U. S. C. C. App., 79. ARGUMENT OF THE UNITED STATES. 129 A line ten leagues from the ocean, running parallel to the windings of the coast, would cross the Stickeen River nearly at the point indicated. I have personally examined the country near the river from its mouth to the head of steam navigation and was impressed with the difficulty that would arise in determining a continuous summit of the Coast mountains. There is no range or chain, but rather for the entire distance of over one hundred miles, and to the right and left as far as the eye can reach, a confused mass of mountain peaks with elevations from three thousand to six thousand feet, the highest being perhaps in vicinity of the point marked " Grand Canon" in latitude about 57° 2(F.« So far as the record shows this comment was the first ever made upon the irregular character of the mountain formation, showing no chain or range, but " a confused mass of mountain peaks." This description thus made is entirely sustained by the evidence hereinafter referred to. The character of the mountains accounts for the fact that, all efforts made up to that time to locate the boundary line, ignore those mountains, as not affecting the location. HUNTER SURVEY AND PETER MARTIN AFFAIR. The facts in the Peter Martin case have been fully set forth in the case of the United States. The effect of the Hunter survey is sought to be avoided in the British Case. Mr. Hunter was instructed by Mr. Dennis, the Surveyor General, to proceed to the Stikine River to make a survey of it and " such a reconnaissance of the country embracing the coast range of mountains in the immediate vicinity as will enable you to ascertain, with approximate accuracy, the boundary on the said river between the Dominion and the territory of Alaska."2 He was furnished with an extract of the treaty describing the boundary, and other data. Mr. Dennis certainly did not mean by "the coast range of mountains" any such irregular peaks as are now contended for, or the summits of the mountains next to the sea, for he proceeds, in giving his specific directions, after calling attention to a tracing made by Chief Justice Begbie, to say: You will make it your duty to verify this sketch as to the dotted red line shown, and generally take such observations as will enable you to lay down, with approximate accuracy, the crossing of the river (should the same occur within ten marine leagues of the coast) by a line, in the words of the Treaty, " following the summit of the mountains parallel to the coast." & He was directing his attention to the ascertainment of whether or not there were such mountains as the treaty provided for within ten «U. S. C. C. App., 80. &B. C. App. 224. 130 ALASKAN BOUNDARY TRIBUNAL. marine leagues, but did not assume that these were the mountains nearest the sea from which a line could be drawn from summit to summit. If he had made any such assumption, then these instructions would have been superfluous. On the same day Mr. Dennis gave him supplemental instructions to locate the exact spot where Peter Martin was taken ashore and where he committed an assault. Mr. Hunter made his report in June, 1877.a Mr. Dennis, in the opening of his instructions, referred specifically to the Coast Range. Mr. Hunter shows that the Coast Range was to the east of Portland Channel. After showing the location of this range, he says: Another range is supposed to originate "somewhere in the neighborhood of Portland Channel, in latitude 55° N. and running apparently about parallel to the coast. Its axis crosses the Stikine River, 24| miles from its mouth; Mount Whipple, the highest peak on the River lies on this axis. It will be more particularly referred to hereafter. From latitude 58° 40' N., or 150 miles to the north of the Stickeen, the coast line for 200 miles farther northward has been accurately surveyed by the United States coast survey, and the position of the adjacent mountain range determined and laid down on the charts. The summit of this range is shown to run parallel to the coast, distant from it 13 to 20 miles. The position and altitude of five of the highest peaks were accurately determined.& The mountains surveyed by the United States Coast Survey which he calls a range '4 parallel to the coast distant from it 13 to 20 miles I are the mountains which are parallel to the coasts of the bays and inlets and the distance given is from such coasts. He says of these mountains: There is reason to believe that the range from the southward, crossing the Stikine River, as above described, runs northward along the coast till merged in the St. Elias range. Its snowy summits can be seen stretching for many miles along the seaboard to the north. It is undoubtedly the range of "mountains parallel to the coast" referred to in the Convention. c He further says: From the junction of the Iskoot with the Stikine, looking nearly due south, down the valley of the latter can be seen, distant 12 miles, a range of high snowy summits stretching across the bearing of the river. These mountains appear rounded, «B. C. App., 225. &B. C. App., 227. «B. C. App., 227—228. ARGUMENT OF THE UNITED STATES. 131 massive and higher than any yet met with, and seem to form a barrier across the valley, which here opens out into a wide basin, enclosed on the east and west side by high mountains and receiving the Kwahteetah, a considerable stream, from the eastward. This basin lies near the general axis of the range which has been before referred to as the mountains parallel to the coast. The line marked on the river as the boundary between the Dominion and the territory of the Alaska crosses the lower end of the basin above described, and will be more particularly noticed below.a Thus he fixes the general axis of the "range 6*f mountains parallel to the coast referred to in the Convention" at 24.74 miles from the coast by the river and at 19.13 at right angles. The line now insisted on is 6 miles from Point Rothesay and is 18.74 miles below the line indicated by him as in the words of the Treaty "following the summit of the mountains parallel to the coast."6 He fixed the ten marine league line 53.99 miles up the river from the coast. He located the point where Martin committed the assault on the shore thirteen miles from the mouth of the Stikine and eight and a half miles within Alaska. The British Case says of the survey: Having regard to the proviso subject to which, this arrangement was accepted by the United States' Government, Mr. Hunter's survey has no binding effect. The incident is, however, of importance in that it brought to the attention of the United States' Government the manner in which it was considered on the side of Great Britain the Treaty ought to be applied.c It has a very different import. It did not indicate in the remotest way that Great Britain was then putting forward a contention that the coast meant in the Treaty was the general coast and not the coast of all of the interior waters. No such conception could be formed from anything suggested by Hunter's report. His report, if it is to be taken as indicative of the views of Great Britain, clearly shows that, with a full knowledge of the mountains along the Stikine, from the mouth up to the very mountains now taken for fixing the line across the Stikine in the British Case, these mountains were deliberately discarded as not being those meant by the Treaty, and a range far to the interior was taken as the one parallel to the coast meant by the Treaty. « B. C. App., 229. &B. C. App., 230. «B. C, 34. 132 ALASKAN BOUNDARY TRIBUNAL. The Government of the United States had demanded the release of Martin. The communication stated that— On the 12th of September they made a landing at a point on that river, only a few miles from its mouth, within the territory of Alaska, for the purpose of cooking food.« and that thereafter the assault was committed. It was represented that he should not be tried for the offense, it having been committed within the jurisdiction of the United States. The release was never demanded on the ground that he was conveyed through United States territory by being carried down the river. In a letter of Dec. 6, 1876, from Mr. Fish to Sir E. Thornton, he refers particularly to the 'c presence of the prisoner upon American soil".6 Again in his letter of January 10, 1877, Mr. Fish said to Sir E. Thornton that the testimony showed that "the assault occurred in what is considered to be Alaska territory".0 Lord Dufferin, in a letter of Feb. 12,1877, to the Earl of Carnarvon, referred to the correspondence of Mr. Fish. He also said: It is alleged in the prisoner's behalf that the spot at which the assault was made is not within Canadian territory, but is part of the soil of Alaska.^ As shown, Mr. Hunter was requested to fix and did Hx the precise spot where the landing was made. The British authorities among themselves discussed the right to transport Martin down that part of the Stikine within Alaska, and came to the conclusion that their right of navigation was limited to commercial purposes/ Mr. Edward Blake, Minister of Justice, in his report of Feby. 5, 1877, said: I do not understand Mr. Fish to assert that the transport of Martin via the Stikine River was a violation of the sovereignty of the United States. On the contrary, he seems to make no complaint of this, and impliedly, if not expressly, admits the propriety of this act. His position is, that the sovereignty of his country was violated by what took place on the shore of the river, in case the locality should turn out to be within the limits of the United States. In this view, I think it the more prudent course, in replying to Mr. Fish, to deal only with the affair on the shore; assuming, without any special reference to the matter, the legality of the transport by the river./ « B. C. App., 186. *>B. C. App., 194. «B. C. App., 198. <*B. C. App., 203. «B. C. App., 201. /B. C. App., 210. ARGUMENT OF THE UNITED STATES. The Earl of Carnavon, in a communication of August 16, 1877, to the Earl of Dufferin, said: In communicating with the United States authorities, it should be stated that Peter Martin is surrendered on the ground that he was a prisoner conveyed through United States territory. « But the Minister of Justice of Canada, in a report of September 19, 1877, said: I recommend, however, that, in communicating the result to Her Majesty's Minister at Washington for the information of the Government of the United States, it be stated that the ground of the action is that after enquiry it appears that Martin was a prisoner conveyed through United States territory, without stating whether the territory referred to is the river or the shore, so that the very important general questions involved may be left as far as possible still at large.& The communication notifying the Government of the United States simply said: With reference to the note which Sir Edward Thornton addressed to Mr Fish on the 11th of last January, I have the honor to inform you that I have just learned from the deputy governor of Canada that the Dominion Government has concluded the inquiry into the circumstances of the case, and has decided upon setting Peter Martin at liberty without further delay.c So it stands that the demand for release was made on the ground that the offense for which he was tried was committed in Alaska. The exact spot was -determined by survey, and the Government of the United States was notified simply of the release without any explanation or qualification. In the way the issue was made and the incident was closed, there clearly was an interpretation; we may go further and say a solemn adjudication, by these two governments that the spot where Martin committed the assault, which was far above the mountain summit line now proposed to be drawn, was within the jurisdiction of the United States. This makes the proposed line at the Stikine an impossible line, and those mountains selected out of the general congeries impossible boundary mountains. After this proceeding the line cannot be moved below that point, and the mountains selected below it must be discarded. The Hunter line was agreed to as a provisional boundary by the United States. Sir Edward Thornton, in a letter to Mr. Evarts of January 19, «B. C. App., 231. &B. C. App., 233, ou, s, c, c, App., s: 134 ALASKAN BOUNDARY TRIBUNAL. 1878, enclosed a copy of Hunter's map, and asked whether or not the Government of the United States would accept it, until some exact line could be determined. This was agreed to as a temporary arrangement, provided that it be not construed as affecting in any manner the rights under the Treaty, whenever a joint survey should be made.a The British Case is right in saying that the proviso leaves Mr. Hunter's survey without effect, so far as permanently fixing the boundary line; but the survey and the action on it are of effect as showing the interpretation put by the parties upon the treaty so far as rejecting the mountains nearest the sea are concerned, and as establishing that the point where the assault was committed was clearly within Alaska. SUCH MOUNTAINS AS THOSE CONTEMPLATED IN THE TREATY DO NOT EXIST WITHIN TEN MARINE LEAGUES OF THE OCEAN. Reference has just been made to the information given in regard to them in the letter of Asst. Adjutant General Wood of January 15, 1877. ■.-"•-." S:. ' Mr. Dall, in his letter to Dr. Dawson of April 24, 1884, states that the chain of mountains shown on Vancouver's chart has no existence.6 The Marquis of Salisbury, in instructions to the British commissioners in 1898, said: From Portland Channel to Glacier Bay there is no such continuous range of mountains running parallel to the coast as 'the terms of the Treaty of 1825 appear to contemplate.c Mr. Selwyn, Director of the Geological and Natural History Survey of Canada, says that— so far as has been observed, there is no single culminating or dominant range which which can be traced for any considerable distance.d The testimony of eight of the United States civil engineers, who have repeatedly been in Alaska on surveying and exploring expeditions, shows that such a chain of mountains within ten marine leagues from the sea does not exist. They show that the peaks and hills on the shores of the inlets are in the nature of detached groups, and that as one goes into the interior there are higher mountains always to be seen in the interior beyond where actual explorations and sur as B. C. App., 241-2. ">B. C. App., 248. "B. C. App., 298. &V. S. C. C. App., 257. ARGUMENT OF THE UNITED STATES. 135 veys have been made. The country is a plateau of ice and snow from which rise numerous peaks. It is carved into many short ridges separated by deep valleys, many of which are occupied by glaciers. The whole region is full of mountains, and is a network of short, steep-sided ridges, generally lying at right angles to the nearest shore, and connected by short saddles. The general appearance is that of a heterogeneous jumble of irregular mountain masses. In general, the mountains rise abruptly from the sea, and the peaks increase in height as they recede from the coast. See depositions of O. H. Tittmann, H. G. Ogden, W. C. Hodgkins, A. L. Baldwin, J. A. Flemer, H. P. Ritter, J. F. Pratt, and P. A. Welker." The affidavits of these civil engineers are in entire accord with the topographical maps, and photographs of survey of the International Commission of 1892, and they but elaborate and supplement those maps and photographs. They also describe the mount'ainous area for some distance inland beyond the limits delineated on the maps. They show that-no such chain Of mountains as that referred to in the treaty of 1825 as "la crete des montagnes situees parallelement a la cdte'' exists within ten marine leagues of the coast, between the 56th degree of north latitude and the 141st degree of longitude. And this is equally true, however you define the word "cdte", and whether it means the shores of the bays and inlets, or whether it means the general trend of what may be termed the main shore^ or whether it means the actual contact of the great body of the ocean washing the main portions of the continent. IT WAS NEVER THE INTENTION UNDER THE TREATY TO DRAW THE LINE ALONG THE SUMMITS OF DISCONNECTED PEAKS, AND IT IS IMPOSSIBLE, ON THE BRITISH THEORY, FOR ANY TRIBUNAL TO DETERMINE WHICH OF SUCH PEAKS SHALL BE CHOSEN. If a departure be made from the understanding of the negotiators, that the line was to be run along the crest of a mountain chain which was supposed to run from about the head of Portland Channel parallel with the coast, then there is absolutely no guide for selecting the line from mountain summit to mountain summit. If it be adjudicated that the line can be run along mountain summits within the ten marine league limit, then it must be affirmed of it that it will run from the point of the continent where proceeding «U. S. C. App., 530-538; U. S, C, C. App., 262-264. 136 ALASKAN BOUNDARY TRIBUNAL. ■ up Portland Channel it reaches the 56°, along the crest of the mountains situated parallel to the coast, to the point of intersection of the 141° of longitude, and it must further be affirmed that this line will run along the mountains which the negotiators contemplated. The negotiators showed that the base of the mountains, along whose crest the line must run, might at places extend even to the sea. Under the British contention a line is to be run along summits of mountains which almost everywhere come down to the sea, and yet it must be maintained that these are the mountains that the negotiators had in view. The negotiators meant the crest of some particular mountains, and not the summits of mountains generally, that might be situated over that entire region, with liberty to select arbitrarily here or there according to individual fancy. If the line is going to be run from summit to summit, then the side assuming the burden of selecting, must be able to say which are the summits, with reference to which the contract was made. If there are many summits situated over that territory, within the ten marine leagues, and the line can with just as much show of reason be run in a dozen or more different ways by an arbitrary selection, then it is manifest that it cannot be said that any particular ones were those meant by the Treaty, for when the country presents such a formation as to permit so many conflicting results, it is a demonstration that there is no such chain, or crest, or parallel mountains, as the negotiators meant, capable of identification. The British Case, while designating particular mountains and ridges to be followed, manifests no special predilection for them, but admits that they are not necessarily those contemplated by the treaty, and that the field presents a further variety for choice It says: The particular mountains and ridges followed with the reasons for selecting them are set forth in a declaration to be found in the Appendix by Mr. W. F. King, the British Commissioner upon the Survey under the Convention of 1892. It will, of course, be understood that this is not put forward as showing throughout the only possible way of giving effect to the British contentions, but that it is susceptible of any variations in detail which may commend themselves to the Tribunal in examining the topographical conditions met with in tracing the line.05 The line as suggested by Great Britain skips from mountain top to mountain top, from highland to highland, across many inlets and ARGUMENT OF THE UNITED STATES. bays, and bears no resemblance whatever to the crest of mountains depicted on the maps that were before the negotiators. An examination of the line proposed, with a criticism of it, will be found in the Appendix to this argument, p. 3. Where demonstration fails and the line is left to arbitrary selection, the whole mountain provision is absolutely void for uncertainty. It is incapable of application, and no tribunal can assume to make a selection out of a variety offered. The Treaty did not say anything in reference to the ocean, except that where the crest receded more than ten marine leagues from the ocean, the mountains should not control. It did not say crests, or summits, next to the sea, or two, or five, or eight, or any other number of leagues, from the sea. It was plainly manifest that the negotiators had in mind a crest about ten marine leagues from the sea that might in places go farther or come nearer. If there were distinct crests running parallel with the coast, one, say, two leagues, and one ten leagues from the sea, then undoubtedly it would have to be said that the negotiators meant the one ten marine leagues from the sea, for everything demonstrates that this was the distance they had in mind and that the lisiere was to be of a substantial character. If from what we know, it is taken to be shown that there is no crest of a chain of mountains within ten marine leagues from the sea, and if it be concluded that summits of mountains can be taken, then the question is, which summits are to be taken, those nearest the sea or those about midway or those nearest the ten marine league limit? Who is to choose? If there were a well defined chain leading from about the head of Portland Channel parallel generally with the coast to the 131st degree, surely that would be said to be the crest, rather than one of mountains which everywhere came down to the sea. If this would be so as to several crests, then why should not the same be the case as to several sets of peaks ? If the Tribunal can roam all over that sea of mountains for a choice, then why should they select those most remote from the ten league limit rather than those nearest? If Mr. Hunter made one selection, and Justice Gray another, and Mr. Dawson another, and the present British Case still another, what rule is there for guidance? The absurdity is still more manifest when it is borne in mind that in each case an appeal h made to the language of the Treaty. There could not be a clearer proof that the Treaty meant no such mountains. It has not been S. Doc. 162, 58-2, vol 5 10 138 ALASKAN BOUNDARY TRIBUNAL. shown that a crest of a chain of mountains does not exist somewhere east of the head of Portland Channel and just beyond the ten- marine league limit, corresponding with the mountain crest of the Treaty. The country is unsurveyed and unknown. The record is practically blank on that point. If there be such a crest, it is just as potential for fulfilling the condition for drawing the line by measurement, as if the crest in some places came within ten marine leagues of the ocean. Can the Tribunal say that no such crest exists? If it had been shown that such a crest exists just beyond the ten marine leagues, would the suggestion be entertained for a moment that it should be ignored, and that the line should be drawn somewhere within the ten marine leagues along the summits of such mountains as have been designated? If so, then it would first have to be determined that such crest was not contemplated by the Treaty, and that it must be excluded from consideration. It would have to be held that the Treaty did not mean a crest of a chain of mountains, but that a crest might be made in some way out of the arrav of summits in that region. Such a theory is not consistent with the negotiations and the Treaty. If it be not admissible, if it were shown that such a crest exists just beyond the ten marine league limit, then why should it be admissible when the record fails to show whether or not such crest exists? Non constat but it does exist. In either event, whether it be shown to exist, or not, in order to take the summits contended for, it must be held that they were the mountains meant. The Treaty meant some mountains, and it must be that these shore mountains are the ones if they are to be taken. If this be shown, then it is immaterial whether a mountain chain outside of the limit exists or not-. If the summits are what was meant, then such a chain could not have been meant. The identification of the summits does not depend on the absence of the chain. If they do not answer to the requirements of the Treaty, they cannot be taken whether the chain fails or not, for «- %7 something that was not meant cannot be taken to supply the nonexistence of what was meant. If they do answer the requirements of the Treaty, and it can be shown from all that transpired that they are the mountains parallel to the coast, whose crest was to be followed, then the fact that there is or is not a crest of a dominant chain of ARGUMENT OF THE UNITED STATES. 139 mountains more than ten leagues from the ocean and parallel to the coast is an immaterial inquiry. But as has been said, this still leaves the dilemma of choice, and if the Treaty fails to demonstrate a selection and is so vague and uncertain, 01 rather if it describes what may fit, on account of the formation of the country, a number of different lines, then no court can arbitrarily select, and the provision fails for uncertainty, and the line must be determined by the distance provision. FROM THE TREATY OF 1825 TO THE TREATY OF 1867, THE UNDERSTANDING MANIFESTED BY GREAT BRITAIN, RUSSIA, AND THE CIVILIZED WORLD AT LARGI WAS THAT IT WAS " THE INTENTION AND MEANING OF SAID CONVENTION OF 1825, THAT THERE SHOULD REMAIN IN THE EXCLUSIVE POSSESSION OF RUSSIA, A CONTINUOUS FRINGE OR STRIP OF COAST ON THE MAINLAND, NOT EXCEEDING TEN MARINE LEAGUES IN WIDTH, SEPARATING THE BRITISH POSSESSIONS FROM THE BAYS, PORTS, INLETS, HAVENS, AND WATERS ON THE OCEAN, AND EXTENDING FROM THE SAID POINT ON THE 56TH DEGREE OF LATITUDE NORTH TO A POINT WHERE SUCH LINE OF DEMARCATION SHOULD INTERSECT THE 141ST DEGREE OF LONGITUDE WEST OF THE MERIDIAN OF GREENWICH." ASSERTION OF CLAIM BY RUSSIA BY ITS OFFICIAL MAPS TO ALL INTERIOR WATERS AND THEIR COASTS. In 1826 Russia issued an official map showing the boundary line drawn from Portland Channel to Mt. Saint Elias, about ten marine leagues from the coast of all the interior waters, and substantially where the crest of the mountains is depicted on the Faden map. This map had an inscription on the line reciting that is was the boundary established by the treaty of 1825. It is not contended that the map shows the actual location of the treaty line applied upon ascertained topography. It shows a clear claim to all waters and coasts in dispute. Their boundaries were well known and all of them were included in Russian territorya. a U. S. Atlas, No. 11. 140 ALASKAN BOUNDARY TRIBUNAL. Russia published another map in 1827 and an admiralty chart in 1844, which was revised to 1864, both showing the boundary laid down in the same way. The last named map has an inscription on the boundary line that it was the one fixed by the Treaty of 1825a. %/ %/ %j Another map was published in Russia in 1861 showing the line drawn in the same way, and described as a boundary line under the Treaty of 18256. j£. It is fair to presume that these maps or some of them were known to Great Britain. It is admitted generally in the British Case that maps showing the lines so drawn were known to that government, but their effect is questioned on the ground that cartographers did not know the topographyc. It is said in the British Case that no disavowal of the correctness of such maps was called for before the question arose. The question distinctly arose when Russia showed a public claim to all of the interior waters and their coasts. If Great Britain understood that under the treaty "coast" did not include the coast of narrow inlets, she was thus called on to make this contention known. The inlets and their coasts were known as well then as now, and if the treaty meant only what is now styled "general coast" or "mainland coast" and did not include the coasts of narrow inlets, Great Britain knew then as well as now that the line could not possibly run around the head of Lynn Canal, which was then known to be more than twenty-five marine leagues from such general or mainland coastd. If "coast" was confined to exterior or general coast, then no possible arrangement of the mountains could have carried the line around the head of Lynn Canal. A distinct claim was promulgated and maintained by Russia for forty-two years that certain known waters were within her territory. No claim was made as to precisely where the line should be located actually on the ground, but a continuous lisiere around all of the sea water was, in accordance with Russia's understanding of the treaty, distinctly claimed. The maps of the period showed sufficiently the width of the interior waters to make the coast line theory now advanced just as applicable then. «U. S. C. App., 513, No. 18; U. S. Atlas, No. 22; British Atlas, No. 15. o U. S. Atlas, No. 20. c British Case, 100-101 d British Case, 101. ARGUMENT OF THE UNITED STATES. 141 THE OFFICIAL MAPS OF GREAT BRITAIN AND CANADA SHOWED THE UNDERSTANDING THAT RUSSIA OWNED ALL OF THE INTERIOR WATERS AND COASTS NOW IN CONTROVERSY. Great Britain not only did not protest against the claim of Russia, but announced to the world a like interpretation and maintained such attitude without variation down to the American purchase and to the time immediately preceding this controversy, covering a period of over sixty years. In 1831 an official map was published, entitled, "Part of Colonial Office Manuscript Map," which showed the line drawn substantially like that laid down on the Russian maps.a In the same year there was published another official map, by Bouchette, entitled, "The British Dominions in North America,"6 and showing the line drawn in the same way. ^D *7 In 1833 a map was published by Arrowsmith, which was inscribed, by permission, to the Hudson's Bay Company. A note on its face refers to the specifications of the Treaty of 1825, and the map shows the line drawn substantially as the Russian Government had drawn it.* Other official maps showing the line drawn in the same way were issued in 1850, in 1853, and in 1857.^ The 1850 map was published by order of the House of Commons. In 1857 another map was published by order of the House of Commmis, entitled, " Map of North America." It has the line drawn as in the other maps referred to.* In 1856 a British Admiralty Chartr No. 2461, which is shown in the record to be corrected down to 1866, was published. This chart shows the line laid down as in all the other maps, and designates it "Boundary between the British and Russian Territory."^ Thus from 1831 down to 1866, the year immediately preceding the American purchase, the understanding of Great Britain of the Treaty as to the sovereignty over all of the waters in dispute, was « British Atlas, No. 13. & British Atlas, No. 14. IU. S. Atlas, No. 12. d British Atlas, No. 19; U. S. Atlas, No. 17 and No. 19. «British Atlas, No. 21; U. S. Atlas, No. 35. fU. S. Atlas, No. 23. s 142 ALASKAN BOUNDARY TRIBUNAL. shown to be in complete accord with the understanding shown by Russia. In 1877, ten years after the American purchase, Great Britain published Admiralty Chart No. 787, showing the boundary line drawn in the same way and lettered, "Boundary between British and American Territory." She thus changed the lettering from "Boundary between the British and Russian Territory" to "Boundary between British and American Territory. "a That boundary line has continued ever since to be shown on Chart 787.6 THE UNDERSTANDING AS SHOWN BY THE MAPS OF RUSSIA AND OF GREAT BRITAIN RECEIVED GENERAL ACCEPTATION BY ALL CARTOGRAPHERS, AND THE DECLARATIONS OF THE OFFICIAL MAPS OF GREAT BRITAIN WERE CONTINUED WITH THE KNOWLEDGE OF THIS UNDERSTANDING. A great many maps are shown in the atlases and in the lists, which were published at different periods from 1826 to 1896 in the United States, England, France, Germany and Spain, showing the boundary line between Russia and Great Britain and afterwards between the United States and Great Britain, substantially as it had been drawn upon the Russian and British mapsc. This proved the general understanding of the enlightened world as to the sovereignly established by the treaty of 1825 over all of the waters and coasts now in dispute. Great Britain could not have been ignorant of this general understanding. She continued her declarations with a knowledge of it and additional weight is thereby given to such declarations. She understood the way in which her declarations were accepted, and with this understanding reiterated them. Other countries were not disinterested parties, but had a direct interest in knowing and determining the sovereignty over waters which they might navigate and • «U. S. Atlas, No. 38. &B. C. C. App., 50. eTJ. S. Atlas, Maps Nos. 13, 14, 15, 16, 18, 21, 33, 34, 37, 40, 44, 45, 46, 47; British Atlas, Maps Nos". 14, 16, 17, 22; Maps and Charts U. S. C. Appendix, pp. 512-520, Nos. 16, 18, 19, 20, 22 to 27, inclusive, 29 to 40, inclusive, 42, 43, 46, to 51, inclusive, 53 to 67, inclusive, 69, 71, 72, 74, 75, 77 to 84, inclusive, 86, 87; U. S. C. C. App., pp. 243-250, Nos. 90, 91, 96, 99, 101, 106, 107, 108, 109, 110, 112 to 117, inclusive, 119 to 126, inclusive, 128, 129. ARGUMENT OF THE UNITED STATES. 14; coasts upon which they might land. Every nation had a duty and a right in respect of the interpretation of the treaty, and the common understanding of all nations cannot be set aside as irrelevant, especially when it is coupled with representations continued in the light of a knowledge of such common understanding. The particular inquiry of the fifth question is whether or not it was understood that Russia was to have an unbroken lisiere around the heads of all the bays and inlets. This inquiry is not concerned with whether or not the line as shown on the maps is accurately laid down with a topographical knowledge of the country. The line must be laid down on the land to meet the conditions which shall be developed,, but if the contracting parties understood coast to mean all of the coast, then the line, no matter what the difficulties may be in making it as sinuous as the coast, can never cross it. The evidence of the maps is in harmony with this understanding as to the coast being all of the coast, and they give a uniform expression of such understanding of the two governments. The maps relied on were the official, concurrent and harmonious utterances of both contracting parties, made after the treaty, and as an expression of their understanding of it. They had all of the information necessary for arriving at such understanding, so far as the question of there being a continuous lisiere -around the heads of the bays and inlets was involved. They knew when they contracted where these waters were, and they also knew where they were when they promulgated the maps. Each government knew what it meant in the treaty by the word "coast," and a line drawn parallel to the coast. If either country did not include the shores of narrow bays and inlets as " coasts," and understood that the line was to be drawn not parallel to the coast of inlets, but to what has been termed in this case "the general mainland coast," it certainly knew that such a line would cut across such a long inlet as Lynn Canal, which is fully eighty miles from head to mouth. Knowing all this, then it follows that a claim made by an official map to all of such inlets was a claim that the party making it understood the word "coast" to mean all of the coast, including the coasts of such inlet, and that 7 o the line was not to cross such waters. The following of such a 144 ALASKAN BOUNDARY TRIBUNAL. declaration by a like declaration was a proclamation of an acquiescence in such understanding. Such an understanding as to the coasts of Lynn Canal, which is far longer than any of the other inlets or bays, necessarily fixes the meaning of "coast" as to all of the interior waters. There could not be one meaning of "coast" which would include all of the shores of Lynn Canal and a different one which would exclude any. part of the coasts of the other waters in dispute. If there was any room for doubt as to the meaning of "coast" on the part of Great Britain, such doubt was resolved by its public declaration of its understanding of the treaty. RUSSIA SHOWED BY HER OCCUPATION AND EXERCISE OF SOVEREIGNTY OVER THE WATERS AND COASTS IN DISPUTE THAT SHE CLAIMED THEM AS WITHIN HER TERRITORY, AND GREAT BRITAIN NEVER, DOWN TO THE SALE BY RUSSIA TO THE UNITED STATES, ATTEMPTED TO ASSERT ANY JURISDICTION OVER SUCH WATERS OR COAST OR TO OCCUPY THEM IN ANY WAY, OR TO QUESTION THE SOVEREIGNTY OF RUSSIA OVER THEM. It has been shown that those regions at the time of the treaty and for a long period subsequent thereto were valuable only for fishing and hunting rid the control of trade with the Indians. This determined the character of occupation sought and exercised. Russian occupation was partly direct and partly through the natives of the country. Their possession and sovereignty were undisputed by any other government. Neither Great Britain nor any other government ever attempted, so far as shown, in any way after the treaty of 1825 to establish any relations of sovereignty over the natives. Citizens of other governments traded with them, but no other government ever in any official way came in contact with them. It is not contended that any of the natives of that territory held in recognition of the sovereignty of any other power. The relations between them and Russia were as close as were generally maintained at that day by other governments in such remote possessions, offering so little inducement to actual settlement, affording exploitation of such limited variety, and inhabited by a people of such turbulent disposition. ARGUMENT OF THE UNITED STATES. 145 If there had been a conflict of claims of different governments over this territory, the case would be different, and stronger proof than is forthcoming might be demanded to establish the Russian occupation, but no conflicting claim of any character was ever set up and Russia was left by all other governments .to exploit and develop her territories in her own way. The country offered no inducements to settlers, and the maintenance of garrisons sufficient to maintain constant authority over all of that territory inhabited by warlike Indians, imposed a heavy burden. Therefore, Russia exercised her authority from central stations and got on with the natives with as little friction as possible, there being no real necessity for governing them, but only for maintaining such intercourse as would secure and develop the trade in furs. Therefore, there was no reason for locating permanent establishments on all of the coasts or upon all of the inlets. The fact that such establishments were not created does not show any disposition on the part of Russia not to assert sovereignty, nor is it any evidence that Russia did not understand that all of those waters and coasts were within her. territory. Her understanding on this point had been abundantly shown by the maps which she published from 1825 down to 1866. > The evidence does sufficiently establish her understanding in accordance with the expression given to it by the maps. In 1842 Russia created the dignity of Supreme Chief of the Kolosches. The name of Kolosches was given generally to the tribes inhabiting the northwestern shore and included those on the Taku and the Chilkat.a During the ten years following the Treaty of 1824 the Russians, Americans and English all traded with the natives, and the Russians and English traded with them in common for another year under the Treaty of 1825. It must be borne in mind that during the period of this concurrent trading, the Americans and English traded with the natives, as inhabitants of Russian territory, and by virtue of special treaty rights given for a limited period. After the expiration of the trading privileges under the treaty, in 1838, Russia had the Chilkat River surveyed.6 «U. S. C. App., 316. &U. S. C. App., 312, 516, No. 45. 146 ALASKAN BOUNDARY TRIBUNAL. FROM 18U0 TO THE AMERICAN PURCHASE. THE HUDSON'S BAY COMPANY HELD ALL OF THE WATERS AND COASTS IN DISPUTE FOR RUSSIA. THIS HOLDING WAS BEGUN AND CONTINUED WITH THE KNOWLEDGE AND CONSENT OF GREAT BRITAIN, WHICH THEREBY INDICATED THAT SHE UNDERSTOOD THAT UNDER THE TREATY OF 1825 THEY WERE TO BELONG TO RUSSIA. On February 6, 1839, the Russian American Company, by the consent of Russia, leased to the Hudson's Bay Company, from June 1, 1840, for a term of ten years, for commercial purposes, "the Coast exclusive of the Islands, and the Interior Country belonging to His Majesty the Emperor of Russia, situated between Cape Spencer, forming the North West Headland of the entrance of Cross Sound and Latitude 54° 40' or thereabouts, say the whole mainland coast &nd Interior country belonging to Russia, together with the free navigation and trade of the waters of that Coast and Interior Country.1'0 The lease is of "the coast and the interior country belonging to His Majesty the Emperor of Russia." It is "the whole mainland coast," and "the waters of that coast" and "the free navigation and trade of the waters of that coast." The lease further provides that "the Russian American Company shall abandon every station and trading establishment on that Coast and in the Interior Country * I * they now occupy, and shall not form any station or trading establishment during the said term of ten years nor send officers, servants, vessels or craft of any description for the purpose of trade 4 into any of the Bays, Inlets, Estuaries, rivers or lakes in that line of Coast and in that Interior Country.' The Russian-American Company had exclusive rights as to all Russian territory, and for the period named it yielded these rights to its lessee as to ^tll of that coast and its bays, inlets, etc. These fresh waters in the strip belonging to Russia were greatly desired by the Hudson's Bay Company for controlling the trade in beaver skins, the most valuable trade then existing in that region.6 There is no doubt as to what coast and interior waters were understood to be embraced in the lease. The lease was negotiated for the Hudson's Bay Company by George Simpson, who was its chief representative when it went into possession under the lease, and had been for some time antedating the treaty of 1825, with which he was perfectly familiar. «B. C. App., 150. &U. S. C. O, App. 43. ARGUMENT OF THE UNITED STATES. 147 In 1847, in an account of a visit made by him to this territory, and referring to the lease, he said that Russia possessed on the mainland between latitude 54 40' and 60° a strip, and that this strip, in the absence of a lease, rendered the interior comparatively useless to England0. Thus he understood that Russia owned a continuous strip not- separated by inlets, and that the inlets did not belong to Great Britain. On September 13, 1849, Sir J. H. Pelly transmitted a map to Earl Grey, saying: ". . . I have now the honor to forward to you a statement of the rights as to territory, trade, taxation and government claimed and exercised by the Hudson's Bay Company on the Continent of North America, accompanied with a map of North America on which the territories claimed by the Hudson's Bay Company, in virtue of the charter granted to them by King Charles II. are coloured green, the other British territories pink, and those of Russia yellow." b This was written while the Hudson's Bay Company was in possession of the lisiere under the lease. This map is No. 19 in the British Atlas, and shows the Russian possessions, as including all of the bays and inlets. This letter was published in the parliamentary papers, House of Commons, and the map shows on its face that it was published by order of the House of Commons, July 12. 1850. In 1857, before a committee of the House of Commons, Sir George Simpson testified that he administered a portion of the territory which belonged to Russia, which he described as a mar- gin of coast marked yellow on the map from 54° 40' up to Cross Sound. He said that it was "the whole of that strip which is included between the British territory and the sea," that is, so much of the strip as was between Port Simpson and Cross Sound. He showed also that he had the whole care of it and that there were no Russian officers in the territory. This fact, taken in connection with the agreement with the Russian-American Company not to send officers or vessels into that territory during the term of the lease, accounts for paucity of evidence of special occupation by Russia, for the lease was continued down to the time of o U. S. C. App. 318. *>U. S. C. C. App., 253. I n 148 ALASKAN BOUNDARY TRIBUNAL. the American purchase. The map referred to is No. 35 in the Atlas of the United States, and shows the boundary line drawn from near the head of Portland Channel around the heads of all the bays and inlets. These were the '4 waters of that coast" which passed under the lease. The "margin of coast marked yellow on the map from 54° 40' up to Cross Sound" showed the coast that passed under the lease. From the making of the lease to the time he gave his testimony, a period of seventeen years, the company of which he had all along been chief representative, held all of these waters and all of these coasts under the lease which was made by the express authority of the Russian government. Whatever may be said about the width of the interior country intended to pass under the lease, however that may vary, there is no room for doubt or variation as to the coasts and the bays and inlets. The Hudson's Bay Company attorned to Russia's lessee and held all of them under Russia from 1840 until they were surrendered to the United States in 1867. There was no holding for Great Britain, and the testimony taken by the committee of the House of Commons shows that Great Britain so understood it. James W. Keen, an employe of the Hud son's Bay Company from 1858 to 1863, shows that all of the inlets and bays were always considered by the Hudson's Bay Company's employees as Russian territory.0 Great Britain knew of the lease, had been pressing for the Hudson's Bay Company a claim for indemnity on account of the Dryad affair, and ceased to press it when the lease was made. In 1854, during the Crimean War, on account of the relations brought about by the lease, Great Britain agreed with Russia to neutrality6 on the Northwest Coast. Great Britain was advised that the entire coast and all the interior waters were being held and had been held for seventeen years under and for the sovereignty of Russia. These were the same waters and the same coasts claimed by Russia in her maps and shown by Great Britain in her maps .as belonging to Russia. It is not necessary, to sustain the argument on this question for the United States, to maintain either that Great Britain approved the lease or that the Hudson's Bay Company was clothed by her with «U. S. C. C. App., 228. "> U. S. C. C. App., 14, 18, 44. ARGUMENT OF THE UNITED STATES. 149 such agency as would bind her in such a matter. The inquiry pursued is as to the original and effective understanding of the parties as shown by their acts. Russia expressly sanctioned the lease and sanctioned its renewal.0 She understood that throughout this entire time and in accordance with the rights secured to her by the Treaty of 1825, her sub-tenant was holding for her all of the interior waters and the coasts now in dispute. This was a holding by Russia, through her tenant, and was her interpretation of her rights under the treaty that, wherever the line might actually be located on the ground in the interior, she had acquired exclusive sovereignty over all of this coast and all of these waters. This was the understanding of her tenant, and it is clear that all of the coast and waters were held for Russia and that no part of any of them was held for Great Britain. Great Britain was fully advised of all of this ten years before the purchase by the United States. When the knowledge was brought home to her in the clear and full way that it was by Sir George Simpson, that all the coast and all the waters now in controversy had been held by British subjects for Russia for seventeen years, she was, if she was not ready to concede that she had no claim to any of them, called on to speak. She not only did not protest, but permitted this tenancy to continue until it was terminated by the American purchase, and continued to issue her official maps declaring that all of these waters and coasts were within Russian territory. It was not possible for Great Britain, except by an explicit, affirmative, direct declaration to Russia, to indicate in a more unmistakable way that she concurred in the understanding thus expressed by Russia, of which notice was brought home to her that, under the treaty Russia was at all events to have a continuous lisiere around the heads of all interior waters. «U. S. C. C, App. 14. W 150 ALASKAN BOUNDARY TRIBUNAL. THE UNITED STATES PURCHASED ALASKA WITH THE UNDERSTANDING ON ITS PART AND WITH A KNOWLEDGE OF THE UNDERSTANDING INDICATED BY THE CONDUCT OF GREAT BRITAIN THAT RUSSIA, UNDER THE TREATY OF 1825, OWNED ALL OF THE WATERS AND COASTS NOW IN DISPUTE, AND HAS HELD THEM WITH THAT UNDERSTANDING WITHOUT ANY PROTEST FROM GREAT BRITAIN, DOWN TO THE BEGINNING OF THE PRESENT CONTROVERSY. THE AMERICAN PURCHASE. The United States Government understood' that under, Art. IV of the Treaty of 1824, its citizens had a right to trade for ten years along that part of the northwest coast that had been covered by the Russian ukase north of 54° 40' and the interior waters thereof, and that the subjects of Great Britain acquired exactly the same rights to exactly the same waters and coasts by the Treaty of 1825. They were at the termination of the ten years excluded by Russia and not by Great Britain. The maps of Russia and Great Britain delimiting their adjacent territories, repeatedly put forth, were of common knowledge. They had been uniformly followed by the leading cartographers of the wTorld. There could not be a doubt in the mind of any person giving attention to the subject that from 1826 to 1867 Plussia openly, notoriously, continuously, and adversely, without challenge from any government, asserted territorial jurisdiction over all of the interior waters now in dispute and their coasts. In 1845 the Department of State recommended to American vessels not "to frequent the interior seas, gulfs, harbors and creeks upon that coast at any point north of latitude 54° 40'."° This was done on account of an official notification of Russia and in recognition of her sovereignty over those waters. The nature of the Russian claim and occupation under the treaty was a matter of notoriety in Canada. In an editorial in the "Colonist," published in 1863 at Victoria, it was said that the strip of land stretching from Portland Canal to Mt. Saint Elias, with a breadth of 30 miles, "must eventually become the property of Great Britain, either as a direct result of the development of gold, «U. S. C. App., 250. ARGUMENT OF THE UNITED STATES. 151 or for reasons which are now yet - in the beginning, but whose results are certain." It was added that this thirty-mile strip should not "forever control the entrance to our very extensive northern territory."0 There is reason to believe that the Russian Minister during the negotiations for a sale showed to Mr. Sumner, Chairman of the Senate Committee on Foreign Relations, what was proposed to be sold, by exhibiting to him a map of the Russian Empire, showing the boundary lines substantially as now claimed by America and certainly extending around the heads of all bays and inlets with a continuous lisiere.b Russia sold in good faith after an undisputed claim of all these waters and coasts for forty-two years. The United States, relying upon the terms of the Treaty of 1825, which was expressly referred to in the cession and upon the interpretation put upon it by Russia, which was not merely acquiesced in, after full notice shown to have been brought directly to the attention of the House of Commons, but actively affirmed repeatedly by Great Britain in its official maps, concluded the purchase and paid the consideration in good faith, and without anything having been done to indicate even the possible existence of a controversy in regard to the rights to any of those waters. If Great Britain had any reserved interpretation as to the meaning of the word "coast" upon which she could found any claim, such as is now made, to any of the coasts and waters, then upon every" principle of good faith she was called on to speak. There is not a fact now known upon which such interpretation is sought, that was not known just as well at that time. Her silence cannot but be regarded as another evidence that she then continued to interpret the treaty exactly as she had always done, so far as her outward acts had indicated, in respect of the coasts and interior waters. The United States on this question asks no more than what the understanding manifested by Great Britain demonstrated. O %7 AMERICAN OCCUPATION. By Army and Navy.—The Treaty was concluded March 30, 1867. On October 18, 1867, formal transfer was made at New Archangel.* oTJ. S. C. App., 322. t>XJ. S. C. App., 513, No. 18. cU. S. C. App., 330, 334, 335. 152 ALASKAN BOUNDARY TRIBUNAL. On the same day Captain Howard, in command of a revenue cutter at the mouth of the Chilkat, which in his official report he says was "the terminus of the Hudson Bay Company's trading in Russian possessions north," hoisted the United States flag and thus took formal possession of the coast at the head of Lynn Canal, part of the very coast and interior waters which, by the newly discovered interpretation now advanced by Great Britain, was more than fifty miles within British territory. He states that he sent for the head chief of the Chilkats and explained to him the transfer of sovereignty by Russia to the United States. He also says that there was present there on October 17th a pilot and interpreter of the Hudson's Bay Company, who came to his ship flying the flag of that company and wearing the full uniform of an English officer.0 From that day to this the United States has constantly asserted and exercised jurisdiction over that coast and the adjacent waters. In 1867 a Coast Survey expedition was sent to Alaska, and in the report a description was given of "the coast of Alaska" which included the mouth of the Taku River and the Chilkat, where an astronomical station of the United States Coast Survey was fixed.6 In 1869 General Davis arrested the chief of the Chilkats and some of his fellows and confined them/ In 1870 General Davis visited, in person, the Taku and Chilkat Rivers.0' In 1869 the U. S. S. Saginaw made a cruise, stopping at Pyramid Harbor at the mouth of Chilkat River, and made plans of it.* In 1873 Rear Admiral Pennock on his flag-ship Saranac visited the anchorage off Chilkat village. In the same year he exercised his good offices to reconcile the chiefs of the Chilkat and Stikine tribes.-^ Rear Admiral Taylor states that in 1873 the Saranac, to which he was attached, was at the head of Lynn Canal, and that the chief of the Chilkat tribe visited the ship in company with several sub-chiefs, accepted the authority of the commander and signified that he considered himself a subject of the United States and recognized the jurisdiction of the United States over the Chilkat people and the territory occupied and claimed by them.0 In 1875 General Howard, commanding the Department of the «U. S. C. App., 337, 338, 339. »U. S. C. App., 343. cjj. S. C. App., 356, 362. <~U. S. C. App., 357. «U. S. C. App., 362. /U. S. C.App., 362, 363. fl'U. S. C. App., 407. ARGUMENT OF THE UNITED STATES. 153 Columbia, inspected the mouth of the Chilkat River and the region around it.° In 1879 Captain Beardslee, who was instructed to restore and establish harmonious relations between white settlers and the native Indians, reported that the chiefs of the Chilkat and Chilkoot tribes had removed all prohibitions against white men entering that territory.6 In 1880 he fitted out an expedition of miners to that country, sending one of his officers in charge, and made a tour among the prominent Indian tribes, visiting the Chilkat and Chilkoot country and proceeding up Lynn Canal. He arranged a conference in which the Chilkoot chiefs came in a canoe flying the American flag, and in this conference reviewed the relations between the Indians and whites and told of the purchase of Alaska by the United States from Russia.* In that year he located the Chilkat villages, finding that they were beyond doubt in United States territory, and he also obtained a census of the Chilkats and Chilkoots. Surveys were made of Taiya Inlet, and river.d In 1881 Commander Glass, who succeeded Captain Beardslee, reported a serious outbreak among the Chilkats in which several Indians had been killed, and that he sent an officer to the principal village with a party of marines to investigate the affair, directing him to put a stop to the fighting.-6 In 1881, Commander Lull sent for the Chilkat chiefs and reconciled some differences between them.^ In 1881, Commanders Lull and Nichols gave certificates to Kluhnnat, Donowock and Klanat by which they were recognized as Chilkat chiefs.0 fj Admiral Coghlan, who visited the head of Lynn Canal in 1884, states that he visited both heads of the canal, placed a buoy near Haines Mission, treated Chilkat and Chilkoot Inlets as part of the United States territory and that the authority of the United States was not questioned by any one there.h In 1885 Commander Nichols wrote to Donnawaak and Clanatt and the Chilkat Indians saying that he held the chiefs of the tribe and the head men of families responsible for the good conduct of «U. S. C. App., 360. 6 U. S. C. App.", 365. Ill S. C. App., 365, 374. dV. S. C. App., 374. S. Doc. 162, 58-2, vol 5- «U. S. C. App., 380. /U. S. C. App., 382. 9\J. S. C. C. App., 213; U. S. C. App., 429. ^U. S. C. App., 401-402. -11 154 ALASKAN BOUNDARY TRIBUNAL. their people, and that the white chief who governed the whole country was angry with them for their ill-treatment of peaceful people passing through their country. He warned them that thereafter he would punish the offenders to the full extent of the law.° In 1886 U. S. S. Pinta was stationed at Chilkoot Inlet from April 27th to June 18th. In May and June, 1887, the Pinta was at Chilkoot Inlet, the head of Taiva Inlet and Chilkat Inlet.6 In 1887 the commanding officer of the Pinta had an interview with the Chilkats, including two chiefs, took his vessel to the head of Chilkat Inlet and informed the Indians that they could make their own bargains and work or not work, but that they could not interfere with ^j 7 %7 or prevent whites from passing through the country over the trail.0 In the same year he sent an officer to Klukwan, the head village of the Chilkat Indians. ^ In June, 1887, he reported that his vessel went to Chilkoot Inlet and Taiya Inlet, where it remained from May 26th until June 8th.e He shows in this report that he met a Canadian survey party under Mr. W. Ogilvie and that Mr. Ogilvie, having previously asked his permission, "worked across the portage to Portage Cove; thence up Taiya Inlet, intending to follow the Indian trail over the mountains to the Yukon," etc/ Mr. Ogilvie, in his report to his government, speaking of the commander of the Pinta who interfered in his behalf in an affair with the chief of the Chilkoot Indians, said: Commander Newell told him I had a permit from the Great Father at Washington to pass through his country safely, that he would see that I did so, and if the Indians interfered with me, they would be punished for doing so. / The statement that Mr. Ogilvie surveyed at the head of Lynn Canal by consent of the United States is confirmed by the testimony of Ripinski. ° In a report transmitted in 1887 by Lieutenant Newell, it is shown that there was absolute domination by the United States of the «U. S. C. App., 430. *>U. S. C. App., 383, 391. cU. S. C. App., 385. d\J. S. C. App., 386, 387. «U. S. C. App., 391. /U. S. C. C. App., 216. . <7U. S. C. C. App., 218. Note. In the U. S. Counter Case, page 79, it is stated that in 1887 Dr. Dawson met Mr. Ogilvie at Haines on Lynn Canal. They both visited the point named in 1887, but at different times. ARGUMENT OF THE UNITED STATES. 155 Indian situation, and that the coast and interior Indians understood that the respective territories of Great Britain and the United States were divided by a line drawn about the Chilkoot Pass, which Schwatka called Perrier Pass.0 This report also shows that a chief of the Chilkoot tribe asked "an opinion from the court as to the right of his tribe upon the subjects referred to in his statement," which statement was as to the ownership of the trail. In March, 1888, the U. S. District Attorney gave an opinion as to these rights.6 The extracts from logs of United States vessels on duty in Alaskan waters extending from 1873 to 1891 inclusive, show repeated operations at the head of the Lynn Canal, and that the closest relations were maintained between the commanders of such vessels and the chiefs of the Chilkat and Chilkoot tribes.* Lieutenant Commander Dombaugh states that from 1884 and 1886 the commanding officer of the Pinta was recognized as in authority by the Indians residing on the continental shores from Port Simpson to the head of the Taiya Inlet, and by the Chilkats and Chilkoots above Lynn Canal.d Lieutenant Stewart, who was on duty in Alaska from 1884 to 1886, was personally sent to Taiya several times to preserve order between Indians and miners.* Lieutenant Emmons, in an elaborate report, shows in substance that he was in Southeastern Alaska from 1882 to 1903, with intervals of absence, and that the men-of-war to which he was attached cruised continually along the mainland coast of Alaska and the outlying islands of the Alexander Archipelago, from Portland Channel and Dixon Entrance, to the head of Lynn Canal, visiting all of the inlets along the coast, in order to preserve order among both whites and natives, and to enforce the laws of the United States. He states that the absolute jurisdiction of the United States over the inlets and arms of the sea to the head of Lynn Canal and its inlets was never to his knowledge questioned by the whites of any nationality or the natives resident within those limits.-^ He further states that during the summer of each year of his service in Alaska, from 1882 to 1896, it was customary for a naval vessel to visit the head of Lynn Canal and spend more or less time «U. S. C. App., 392-394. &U. S. C. App., 392, 395, 396. *U. S. C. App., 397. dU. S. C. App., 400. «U. S. C. App., 401. /U. S. C. App., 402. 156 ALASKAN BOUNDARY TRIBUNAL. at anchor in Portage Bay, Pyramid Harbor and Taiya Inlet, and that in 1886 the Pinta spent thirty-five days in those waters and maintained an active supervision at the head of Taiya Inlet. Under Revenue Officers.—In 1868 a statute was passed extending the laws of the United States relating to customs, commerce and navigation over the lands and waters of territory ceded to the United States by Russia under the Treaty of 1867.° As has already been shown, the Lincoln hoisted the American flag at the head of Lynn Canal and took possession of that territory on the same day that the transfer was made at Sitka. From that time, without the right being questioned until this controversy arose, the revenue laws of the United States have been administered in* the territory, including all of the waters and coasts now in dispute. The steamers of the revenue service have made annual visits to the coast in question since 1867, entering all the inlets and arms of the sea to the head of navigation, for the purpose of protecting the revenue, enforcing the United States laws and preserving peace and order among the natives.6 In 1868 the Revenue Steamer Wayanda cruised through the entire inland waters of Alaska, stopping at all Indian settlements on Lynn Canal, iacluding Taiya Inlet, Chilkat Inlet and Berners Bay, and also cruised in Taku Inlet. At all places it was explained to the Indians that the country had been purchased from Russia and that they were under the jurisdiction of the United States. Complaints were heard against chiefs and some of them were removed, and the people were directed to choose successors, which was done.* In the same year, as stated by Captain M. A. Healy, the United States exercised the right of searching all vessels engaged in domestic trade in all waters and bays to the head of Lynn Canal.d In 1880 all foreign vessels were forbidden to unload at Chilkat.* In 1890 a Collector of Customs was appointed for Chilkat and a customs office was established there/ In 1891, through the Inspector at Chilkat, that tribe appealed to the United States government to set aside a reservation for it.° «U. S. C. App., 510. &U. S. C. App., 447. cJJ. S. C. App., 470-474, 475, 476. dJJ. S. C. App., 478. «U. S. C. App., 455. /U. S. C. App., 455-458. 9\J. S. C. App., 459. ^ ARGUMENT OF THE UNITED STATES. 157 In 1895 illicit liquor was seized and destroyed by a revenue officer of the United States at a mountain divide above Taiya.0 In 1898 a deputy collector was appointed for Taiya, in 1899 one was appointed for Skagway, and in 1900 one was appointed for White Pass.6 j| Under Civil Government.—On May 17, 1884, an Act was passed providing a civil government for Alaska. It authorized the appointment of a Governor, the establishment of a district court with the usual officers and the appointment of four commissioners. The temporary seat of government was fixed at Sitka. The court was clothed with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States exercising the jurisdiction of circuit courts. It was provided that one term should be held each year at Sitka and one at Wrangell, and that special sessions might be held when necessary. The clerk was made ex officio recorder of deeds and mortgages and certificates of location of mining claims and other contracts relating to real estate. The commissioners were clothed with the jurisdiction and powers of commissioners of the United States circuit courts. The marshal was clothed with the general authority of United States marshals and was charged with the execution of all process. The general laws of the State of Oregon, so far as applicable, were extended over that territory. By section 8, Alaska was created a land district. Parties who had located mines or mineral privileges were allowed to perfect their title. The occupancy of religious societies at missionary stations was confirmed. Commissioners were charged with the duty of examining into and reporting upon the condition of the Indians residing within the territory. The Secretary of the Interior was O %7 %J directed to provide for education and an appropriation was made therefor/ Governors were appointed from time to time and the court was organized and has been continuously maintained. Marshals, clerks, commissioners and land office officials have been continuously in office from that time to the present time. Such officers have up «U. S. C. App., 416, 424, 428, 431, and 461. ">U. S. C. App., 448. «U. S. C. App., 510; U. S. Stat., Vol. 23, 24-28. 158 ALASKAN BOUNDARY TRIBUNAL. to the present time continuously exercised and maintained unquestioned jurisdiction over every part of the coasts and waters now in dispute. The United States mineral laws were extended to Alaska and in 1895 mining regulations were made for the district by the Secretary of the Interior and approved by the President.0" Mineral locations were made in 1885 on Berners Bay and in 1886 on Lynn Canal, twelve miles north of Berners Bay, and were subsequently patented.6 In 1886 Governor Swineford arrested a Chilkat chief for assaulting Archbishop Sagers/ The records in the Department of Justice show particular instances from 1887 to 1894, inclusive, of persons proceeded against criminally for acts done variously on Berners Bay, at Chilkoot, Chilkat, on Chilkat River, and at Taiya. Some of the defendants were Indians, one of them being an Indian chief, and some were white0". There are numerous depositions showing the exercise of civil and criminal jurisdiction in and about the country bordering upon Lynn Canal. Chilkat Inlet and Chilkoot Inlet, and as far inland as the summits of the passes of the mountains next to them, from 1884 to the present time/ The natives in and about Haines, commonly known as Portage Cove, the head of Lynn Canal, Chilkoot Inlet, Chilkat Inlet, and on the Chilkat River recognized the authority and jurisdiction of the United States over all that country.-^ Don-a-wak, a chief of the Chilkats, was appointed by the United States authorities an Indian policeman in 1892, exercised the duties of a peace officer among his people, and caused arrests to be made.0 There are a number of depositions of those who lived for a long period in and about the head of Lynn Canal, who testify that at no time did any government other than the United States exercise J XJ 9V S. C. App., 493. S. C. App., 494. S. C. App., 483. S. C. App., 407-413. S. C. App., 415, 416, 422-428, 432, 434, 436, 438-441, 446; U. S. C. C. App., 0; 222-227; 230-231; 233-235. S. C. App., 427-8; 136-437; 438; 441-442; 443; 543-550. S. C. Ann., 427-8. ARGUMENT OF THE UNITED STATES. any authority or jurisdiction in and about that region, and that they have never heard any question by Canadian or British authorities of the sovereignty of the United States over the waters and coasts about the head of Lynn Canal/ Schools and Missions.—In 1880 a school was opened among the Chilkats under the auspices of Americans, which in 1882 had seventy pupils.6 In 1881 a Presbyterian Mission School was established on Portage Bay near the head of Lynn Canal, at a place afterwards named Haines. It was always understood by those engaged in this work that the place where this school was located was a part of the United States/ In 1884 the location of this mission was recorded at Juneau. ^ In 1885 Rev. Sheldon Jackson was appointed General Agent of the Department of the Interior for the purpose of establishing schools in Alaska/ In 1885 a public school was opened at Haines and has continued in operation until the present time.^ In 1888 Gov. Swineford reported that there were thirteen schools in operation in Alaska, one of them being at Chilkat.0 In 1892 Governor Knapp reported that: The Chilkat district is an important one, containing three canneries, several mines, a mission and government school, and half a dozen or such a matter of stores and trading establishments/1 Reports of Governors of Alaska.—Much comfort seems to be taken in the Counter Case of Great Britain, p. 77, from the reports of the Governors of Alaska from 1884 to 1902, and a quotation is made from that of 1888 in which the Governor wrote that "the civil government of Alaska is little, if any, better than a burlesque, both in form and substance." For the purposes of this argument it may be admitted that the government was insufficient, but no one would have a right to take exceptions to that except a citizen of the «U. S. C. App., 431, 416-417; 417-422; 425-427; 432-434; 441-442; 446; U. S. C. C. App., 217-220; 220-221; 222-227; 230-231. & U. S. C. App., 488 and 506. CU. S. C. App., 481; 436-437. d\J. S. C. App., 437. «U. S. C. App., 481. /U. S. C. App., 480. 9JJ. S. C. App., 484. ^U. S. C. App., 486. 160 ALASKAN BOUNDARY TRIBUNAL. iMiiiiii United States. Certainly Great Britain was not affected in its rights by anything complained of in the messages referred to. Governor Swineford complained on account of a lack of transportation facilities for governing satisfactorily a territory '' with a coast line greater than that of all the Atlantic, Pacific and Gulf States combined." ° He was not renouncing, on behalf of the United States, jurisdiction over any of this coast line. He also complained of the non-enforcement of the liquor laws and the fact that Alaska was for' seventeen years without any civil government. It will hardly be contended that the establishment of a civil government was a condition precedent to the manifestation by the United States, by occupancy, of its understanding as to what waters and coasts it acquired from Russia. He complained of lawlessness upon the part of individuals, but in no instance of any encroachments upon the part of Great Britain. In his report of 1886 he points out the neglect to educate the Creoles.6 In 1887 he attacks the administration of the Alaska Commercial Company, and again refers to violations of the criminal law/ In 1888 he points out that proper provision had not been made for acquiring title to land. In this report he again calls attention to the abuses by the Alaska Commercial Company. In referring to the territory under him, he speaks of the Chilkats located on the Chilkat River at and around the head of Chilkoot Inlet and their claim of exclusive ownership of the trail leading from the tidewater to the Yukon River. It is from this report that the quotation in the British Counter Case is made. He is made to say that "the civil government of Alaska is little, if any, better than a burlesque, both in form and substance "c The quotation is of a part of a sentence which in its entirety reads as follows: Aside from the partial administration of justice by the United States District Court and before United States commissioners acting principally as justices of the peace, the civil government of Alaska is little, if any, better than a burlesque both in form and substance.0 His strictures apply to that part of the civil government under him. He does not undertake to show that the administration of «B. C. C. App., 19. &B. C. C. App., 20. cB. C. C. App., 21. dB. C. C. App., 23. ARGUMENT OF THE UNITED STATES. 161 justice by the courts and the maintenance of jurisdiction by the United States in and about the head of Lynn Canal was either partial or ineffective. It is abundantly shown in this record that such jurisdiction has been constantly exercised from 1884 down to the present time in all that region. The Governor indulged freely in the ordinary right of an American citizen to criticise his own government, which took its rise from criticism, protest and revolution. He would have been very far from renouncing any of its jurisdiction. The extracts from the reports of the other governors which appear on pages 22 to 36 of the Appendix to the British Counter Case are of the same character. Opinions expressed by officials and citizens of the United States in public prints as to the condition of Alaska since the American purchase, appear on pages 36 to 44 of the Appendix to the British Counter Case. They are certainly not flattering to the United States. While they may afford satisfaction to those exhibiting them, and giving them such prominence, the deduction to be drawn from them may not be so pleasing. They apply to territory now in dispute, or else there would be no shadow of excuse for bringing them forward. They just as certainly prove that all of their authors, whose writings extend over a period from 1871 to 1898, inclusive, regarded the territory as belonging to the United States, for the burden of all of them is the responsibility of the United States for the deplorable conditions so feelingly depicted. They did not charge any of the responsibility to Great Britain and were not speaking of British territory. As much or even more might be found arraigning Great Britain for its administration of Canadian affairs at early periods, or the United States for its administration of the Philippines, but such arraignments, instead of negativing jurisdiction and sovereignty, find their raison oV etre in the fact of sovereignty. United States Census.—In 1880 a census was taken of the Alaskan Indians, and among those enumerated by the United States officials were the Chilkats and Chilkoots, the village of Klukwan being included in the census/ «U. S. C. App., 489. 162 ALASKAN BOUNDARY TRIBUNAL. In 1890 a census was taken which included those living on Berners Bay, at Chilkat, Chilkoot, Klukwan and Pyramid Harbor/ Postoffice.—A postoffice was established at Haines, July 22, 1882.6 UNITED STATES MAPS. In 1867 an official map was published by the United States, prepared at the suggestion and partly under the supervision of Senator Sumner, showing the boundary line substantially as it had been uniformly drawn on the official maps of Russia and of Great Britain down to that time and so as to include all of the coasts and waters now in dispute in United States territory/ Five hundred copies of this map were printed at first, and there was a second edition issued in the same year.^ There has never been any material change, so far as this boundary line is concerned, in the official maps of the United States. BRITISH AND CANADIAN MAPS AFTER 1867. In 1868 was published the Journal of the Royal Geographical Society of London, which contained a map entitled "Map of British Columbia, reduced from the original Map by Mr. Alfred Waddington." This map shows the boundary line so drawn as to place all of the waters and coasts in dispute in United States territory. The high authority of the society publishing it and the place whence it emanated are sufficient warrant for mentioning it. The British Colonial Office List for the years 1869 to 1902, inclusive, contains maps showing the Alaska lisiere substantially as claimed by the United States. In the issue of 1901 there appeared at the foot of the title page the following: "This list, though compiled from official records, is not an official publication." There does not appear to have been any such disclaimer for any of the previous years/ Reference is again made to British Admiralty Chart 787, published in 1877, and already cited on p. 142. In 1878 there was published by the Dominion Land Office a map entitled "Tracing of part of 'Alaska,' showing ' Stakeen River,' from U. S. Coast Survey of 1869." This shows the boundary line crossing the Iskoot and Stikine and Taku rivers. The map does «U.- S. C. App., 490. & CJ. S. C. App., 496. «U. S. Atlas, No. 24. S U. S. C. App., 541. «U. S. C. C. App., 245. ARGUMENT OF THE UNITED STATES. 163 not show much territory north of Taku River, but it plainly shows the trend of the boundary line so as to put all of Lynn Canal in Alaska/ In 1878 was published an official map of Canada, by the Minister of the Interior, showing the boundary line laid down as on the previous maps.6 In 1882 and 1883 official maps were published by the Department of Railways, of the Dominion of Canada and the Province of Quebec, respectively, showing a similar boundary line/ In 1884 was published a " Map of the Province of British Columbia," by direction of the Chief Commissioner of Lands and Works, which shows the line so drawn as to put all of the coasts and waters in question in Alaska, and lettered "Approximate International Boundary by Convention between Grea^ Britain and Russia, 1825."a In the same year was published a Canadian geological map laying down the line in the same way/ In 1894 was published by Johnston, Geographer to the Queen, a map of the Dominion of Canada, which also laid down a like boundary line, f The Dawson Map of 1887.—The first map which showed a departure from the interpretation as to a continuous lisiere around the heads of the bays and inlets, manifested by Russia and Great Britain down to the American purchase in 1867, and by the United States and Great Britain from that time on, which interpretation was accepted by the world at large, was what is designated as the "Dawson Map" of 1887/ This map shows a line laid down in accordance with the contention of the United States. It also shows a line approximating the line now contended for by Great Britain. This line is labeled "Line approximately following the summits of mountains parallel to coast." These lines were no part of the original publication, and, therefore, even if the map was official as published, the lines constituted no part of such official publication. Lord Lansdowne, speaking of it, said: As originally published it showed no boundary lines, but upon a few copies lines were drawn in ink bv Dr. Dawson.^ « British Atlas, No. 27. & U. S. Atlas, No. 39. *U. S. Atlas, 42, 43. d British Atlas, No. 31. «British Atlas, No. 32. /U. S. Atlas, No. 45. 9 British Atlas, No. 34. ^U. S. C. C. App., 159. 164 ALASKAN BOUNDARY TRIBUNAL. M'-tif So far as shown, this line is the result of private enterprise. The first semblance of official endorsement was when Lord Lansdowne, in a letter of August 18, 1902, to Mr. Raikes, guardedly said: That the line following the mountains parallel to the coast, crossing all the larger inlets, must at the time have been accepted as embodying the Canadian view of the meaning of the Treaty of 1825, is shown by the addition by the United States authorities to the fac simile (at the top and outside the border of the map) of the words "Dawson's Canadian Map, 1887, showing conventional lines proposed by Canada." a He does not say that Dawson's contention as to the line crossing all the larger inlets was the Canadian view, and much less does he say that it was at any time advanced as the view of Great Britain. His statement is purely argumentative as to its acceptance as such by the United States. It is unsound upon its face. The addition by the United States authorities specified "conventional lines proposed by Canada." The conventional line marked upon the map as such is far to the interior of the line drawn by Dawson crossing all of the larger inlets. Lord Lansdowne shows that the map only exhibits one of the conventional lines discussed during the confer- ences, and that it was not possible to draw the second conventional line, as this depended upon geographical details not determined at that time. Then how can it be urged that the addition by the United States, which referred alone to " conventional lines proposed by Canada," is evidence that at the time "the line following the mountains parallel to the coast, crossing all of the larger inlets, was accepted as embodying the Canadian view of the meaning of the Treaty of 1825 " ? Conventional lines were discussed with a view of fixing a line which did not correspond to the Treaty and which was to be adopted by a new agreement. No line spoken of as a conventional line would have been regarded as putting forward any theory of interpretation of the treaty. That Canada had not at that time adopted the Dawson theory is shown by the British Colonial Office List down to and including 1902, which is in direct conflict with the Dawson theory and in perfect accord with the theory of the United States.6 In 1893 an official British Columbia map showed a line lettered "Approximate international boundary by Convention between Great Britain and Russia, 1825," which crossed Lynn Canal above Ber- flU. S. C. C. App., 159. *> U. S. C. C. App. 245. ARGUMENT OF THE UNITED STATES. 165 ners Bay, but did not adopt the Dawson theory, for it left the whole of Taku Inlet in United States territory/ In 1895 they grew a littler bolder and issued a map which appropriated all of Taku Inlet/ Thus it was eight years after the publication of the Dawson map before any official map was issued based on a theory like his. As has been previously shown, no such change was ever made upon the maps published by Great Britain. NOTHING WAS DONE ON THE PART OF GREAT BRITAIN UNTIL 1898 rNDICATTNG A CLAIM, CONTRARY TO THE UNDERSTANDING WHICH SHE HAD PRIOR TO THAT TIME MANIFESTED THAT RUSSIA, UNDER THE TREATY OF 1825, WAS OWNER OF ALL THE WATERS AND COASTS NOW IN DISPUTE, AND THAT THE UNITED STATES HAD UNDER THE TREATY OF 1867 ACQUIRED ALL OF THEM FROM .RUSSIA, AND NOTHING HAS EVER BEEN DONE BY THE UNITED STATES INDICATING A CONTRARY UNDERSTANDING. PROPOSITIONS TO SURVEY. An effort is made in the British Case to break the effect of the interpretation put upon the Treaty by Russia and Great Britain, as displayed by the conduct of both governments, down to the time of the purchase by the United States, and also the effect of the understanding shown by Great Britain and the United States subsequent to the purchase, by attempting to show that the occupation by the United States of the coast and waters in question was against protest, or while the question was sub judice. It must be borne in mind that the inquiry now is as to the proper answer to the Fifth Question, and that nothing can be relevant unless it bears upon the interpretation put by the parties upon the Treaty in respect of its purpose to give or not to give to Russia a continuous lisiere around the heads of all of the bays and inlets. The mere fact that there was an undetermined line is not significant. The mere fact that there were negotiations to determine where the line should be laid down in the interior has no bearing. Such things a U. S. Atlas, No. 28. 166 ALASKAN BOUNDARY TRIBUNAL. only are of importance which disclose the views of the parties one way or the other upon the point of inquiry. The points made in the British Case will be considered in the order in which they are advanced. NEGOTIATIONS FOR DELIMITATION OF BOUNDARY BEGUN IN NOVEMBER, 1872. These negotiations began forty-seven years after the Treaty with Russia -and five years after the United States took possession of the head of Lynn Canal. As shown, the government of the United States issued an official map in 1867, showing that the boundary ran somewhere on the land around the heads of all interior waters and approximately ten marine leagues therefrom. This map was substantially in accord with the British official maps down to the very year when this correspondence began, and all of these maps were in this respect like all of the official Russian and British maps from the time of the Treaty of 1825. The correspondence was initiated by an address of the Legislative Assembly of British Columbia to Lieutenant Governor Trutch and a letter by him to the Secretary of State for the Provinces, July 11, 1872, in which he said: The boundary line between the British Possessions in North America and the present United States Territory of Alaska—formerly Russian America—is laid down in the Convention of 1825, Articles 3 and 4. But the description therein given of this line of demarcation is not so clearly defined as to render it readily traceable on the ground. The initial point of this line on the mainland is debatable, and the line of demarcation thence following the summit of the coast range of mountains to the 141st meridian west, but limited, whenever such summit shall be found to be more than ten marine leagues from the ocean, to a line drawn parallel to the coast, and at a distance of ten marine leagues therefrom, following all the sinuosities thereof, cannot in practice be determined. I therefore concur with my ministers in thinking that it is desirable that some more clearly marked or definitely ascertained line should be substituted for that described in the Convention above referred to.° He thinks that the difficulty is that the line is not so clearly defined "as to render it readily traceable on the ground." He understands that if the mountains fail, the line must be drawn "parallel to the coast and at a distance of ten marine leagues therefrom, following all the sinuosities thereof," and he further B. C. App., 163. ARGUMENT OF THE UNITED STATES. 167 regards such line as impracticable and urges that a substitute shall be adopted. Surely he did not mean any such line or any such coast as is now contended for by Great Britain. He understood that "all the sinuosities" of the coast were to be followed. It appears that an inquiry was made by Sir Edward Thornton of Secretary Fish as to whether or not the United States Government "would be willing to agree to an appointment of a Commission for the purpose of defining the boundary line," and that Mr. Fish replied that he was satisfied of the expediency of such a measure, but feared that Congress might not be willing to grant the necessary funds/ Mr. Fish, in a subsequent interview of November 16, 1872, said that "the President was "so impressed with the advantage of having the boundary line laid down at once': that he was disposed to recommend it to Congress.6 The proposition communicated to the United States was to appoint a Commission "for the purpose of defining the boundary line." Nothing was said by any one about interpretation of the Treaty or as to any doubt about what coast or waters were meant. The President spoke "of having the boundary line laid down." In consonance with this view, in his message to Congress of December 2, 1872, he refers to "the actual line" and recommends the appointment of a Commission "to determine the line." He clearly meant the determination upon the ground of the actual line.6 There is not the remotest suggestion that any question was mooted, as to the interpretation of the Treaty or as to the right of the United States to Lynn Canal, all of which had been entered upon and had been brought under the jurisdiction of the United States. Sir Edward Thornton was advised, and in turn advised Earl Granville, that the message contemplated a Commission "for the purpose of laying down the boundary line."6 The bill introduced into Congress was "for the purpose of surveying and marking the line of boundary," and there was no provision except for such practical work. A copy of this bill was sent to Earl Granville. * a B.C. App., 164-165. &B. C. App., 165, "lB. C. App., 166. 168 ALASKAN BOUNDARY TRIBUNAL. The British Government agreed to share in the expense of "determining and marking out the boundary line."0 On February 15, 1873, Sir Edward Thornton wrote to Earl Granville that Mr. Fish informed him that the estimated expense to the United States alone was about a million and a half of dollars, and that it would require ten years, and that Mr. Fish said that the Engineer Department had expressed an opinion that, under the present circumstances of the two countries it would be quite sufficient to decide upon some particular points, and the principal of these they suggested should be the head of the Portland Canal, the points where the boundary line crosses the Rivers Shoot, Stakeen, Taku, Iselcat, and Chelkaht, Mount St. Elias, and the points where the 141st degree of west longitude crosses the rivers Yuken and Porcupine.*' The suggestion of Mr. Fish was in perfect harmony with what President Grant had said and what was contained in the Act introduced in Congress. It was wholly irreconcilable with the present contention of Great Britain. If any one authorized to speak or act for the Canadian Government or Great Britain entertained any idea at that time that the word "coast" in the treaty did not include all of the shores of all of the bays and inlets, he, so far as the United States was advised, kept it a profound secret. On November 27, 1873, the Canadian authorities requested Captain Cameron to report upon the "cost and duration of the proposed survey " and transmitted to him an extract from the dispatch embodying the suggestions of Mr. Fish as to deciding upon "the points where the boundary line crosses the Rivers Shoot, Stikine, Taku, Iselcat, and Chelkaht."* In the official submission of this extract to Captain Cameron there was no reservation as to the line crossing these rivers. On January 19, 1874, Lieutenant Governor Trutch wrote to the Canadian Secretary of State enclosing an address of the Legislative Assembly of the Province of British Columbia urging that imme- diate steps be taken "for having the boundary line between this province and Alaska established and defined."0* Enclosed with it was a letter from the clerk of the Assembly to Lieutenant Governor Trutch transmitting a resolution of the House concluding as follows: And, whereas, the boundary of the thirty-mile belt of American territory running along a part of the seaboard seriously affects vital questions bearing «B. C. App., 167. &B. C. App., 168. "B. C. App., 173. °U. S. C. C. App., 49. ARGUMENT OF THE UNITED STATES. 169 upon navigation and commerce, be it therefore resolved, that a respectful address be presented to his Honor, the Lieutenant Governor, recommending him ta urge upon the Federal Government the necessity of taking immediate steps for having the said boundary established and defined.a On February 18, 1874, Sir Edward Thornton transmitted to Captain Cameron a communication from Lord Tenterden furnishing him with certain documents in regard to the Alaska boundary. These documents embraced the Treaties of 1824, 1825 and 1867, and maps of the territory.6 On February 17, 1874, J. S. Dennis, Surveyor General of Canada made a report to the Minister of the Interior, in which he shows that he had before him the extract covering the suggestion of Mr. Fish, the description of the boundary given in the treaty, and a tracing from the official map published by the Government of the United States ' \ of the surveys of the northwest coast of the Pacific and showing the whole boundary from the head of the Portland Canal to the Arctic Ocean."c A part of this map is shown as No. 27 of the British Atlas. The .boundary line crosses the Iskoot and Stikine Rivers and the Taku River about ten marine leagues from the head of Taku Inlet. The line where the map is discontinued is shown to proceed northwardly parallel with the coast and so as to include Lynn Canal. With all of this information before him, Mr. Dennis said: The undersigned is of opinion that it is unnecessary at present (and it may be for all time) to incur the expense of determining and marking any portion of the boundary under consideration other than at certain of the points mentioned in the extract alluded to in the dispatch from Sir Edward Thornton to the Earl of Granville, dated February 15, -1873, that is to say: 1. The head of the Portland Canal, or the intersection of the same by the 56th parallel of north latitude. 2. The crossing of the following rivers on the Pacific Coast by the said boundary, that is to say: The Rivers "Shoot," "Stakeen," "Taku," "Isilcat," and "Chilkaht."0" He further says: And, further, the United States surveys of the coast could be advantageously used to locate the coast line in deciding the mouths of the rivers in question, as points from whence the necessary triangulation surveys should commence, in order to determine the ten marine leagues back, and might further be agreed on «U. S. CC. App., 50. &U. S. C. C. App., 51. S. Doc. 162, 58-2, vol 5 12 «B. C. App., 177. °B. C. App., 177-178. K: ■■I! 170 ALASKAN BOUNDARY TRIBUNAL. and adopted by the Commissioners as affording the data which, in their discretion, might be used to regulate the direction and location of the boundary across the valleys of those rivers. He, with the understanding of the United States clearly stated in accord with its present contention as to a continuous lisiere, expresses himself as fully in accord with it, for he says that the "coast line" is at the mouths of Taku and Chilkaht Rivers, and that from these points the measurement of the ten leagues back must be begun. On February 18, 1875, Major Cameron submitted his report. It is admitted in the British Case that he was supplied with a copy of Sir Edward Thornton's dispatch and later with a memorandum' made by Mr. J. S. Dennis, in which the cost of the survey suggested by Mr. Fish was discussed. The Case, however, omits all mention of the recommendation just shown, to have been made by Mr. Dennis/ Major Cameron also had the written report prepared by General Humphreys, United States Chief of Engineers, in which, after reciting the course of the boundary line provided for by the Treaty,- he, in view of the great cost of marking the line, suggests that certain points be fixed, mentioning, among others, the following: To ascend the Stakeen, Takee, Chilkat, the Alsekh rivers, and fix the points of intersection with boundary line.& The British case quotes from Cameron's report as follows: While the United States Government have indicated a definite plan of procedure, and named the points of the boundary which they consider it essential should be marked, the Government of Canada make no reference to such details, and, therefore, leave it to be assumed that they expect the terms of the Treaty to be fully and strictly carried out. The cost of marking the line will be seriously affected by the view which may prevail on this subject.c This excerpt gives an entirely erroneous impression of the views entertained by Major Cameron as shown by his report. He also says: The Treaty describes a line which, in its course northerly from Portland Channel to its intersection with the meridian of 141 west longitude, traverses a very mountainous and heavily wooded country, and defines it as following: "The summit of the mountains situated parallel to the coast," or, where moun- «B. C. 29. &U. S. C. C. App., 50-52. «B. C, 29-30. ARGUMENT OF THE UNITED STATES. 171 tains are not within ten marine leagues of the sea, then "parallel to the windings of the coast" at no greater distance than ten leagues. To carry out these terms it would be necessary to complete a survey of the belt of country between the coast line and mountain summits, about 900 miles in length, and occasionally, perhaps, ten marine leagues in breadth. The coast line might furnish an exceptionally advantageous base for supplies; but notwithstanding this advantage the difficulties with which the surveying parties would have to contend in their progress inland, the necessarily circuitous course of their movements, and the extreme irregularity of the line to be marked—at times passing from mountain top to mountain top, at others repeating the meandering of a coast, broken by numerous bays, long, narrow inlets- and river mouths—would be of the most serious description.a It is too clear for question that he here meant by "coast" the "coast" of the very bays and inlets now claimed by Great Britain. He further says: Principal depots should be established at Fort Simpson, at the mouth of Portland Channel, and at Fort Yukon, where Porcupine River joins the Yukon River, to meet the requirements of the expedition if the proposed alteration in the Treaty stipulation be not adopted. Should the alteration be approved, no principal depot would be needed at Fort Simpson, but, instead, one would have to be established at the head of navigation up Linn Channel. Here, too, winter quarters for the party, or a portion of it, might be most conveniently placed.& Why should he want to establish a depot at the head of Lynn Canal for the purpose of marking a line parallel to a coast line crossing Lynn Canal over fifty miles seaward of the head? It cannot be assumed that Sir Edward Thornton was ignorant of the report of Mr. Dennis and Major Cameron. As shown, he had transmitted the suggestion of Mr. Fish as to the location of the boundary on certain rivers, which proposition could carry with it nothing less than an assumption that the United States owned all of the waters and coasts of the bays and inlets. On September 27, 1875, he reported to the Earl of Derby an interview between himself and Mr. Fish, in which he says: I observed that when the question of laying down the boundary was discussed about two years ago, it was suggested that if the whole survey could not be made, the points where the territories met could be fixed on the rivers which run through both of them, c He did not intimate that he excepted any of the rivers that Mr. Fish had designated. <*B. C. App., 181. *>B. C. App., 182. B. C. App., 183. 172 ALASKAN BOUNDARY TRIBUNAL. On the 21st of November, 1876, in a report of a committee of the Privy Council, approved by the Governor General and made to the Minister of the Interior, is included a memorandum from Mr. Mackenzie, referring to the desirability of having a complete or partial determination of the boundary line, and the Privy Council concurred in the memorandum. This memorandum is a review of the correspondence between the two governments in regard to the necessary steps to have the boundary determined and marked. It speaks throughout of "laying down the boundary line," and recites that Mr. Fish "had further stated that the Department had expressed an opinion that under the present circumstances of the two countries, jt would be quite sufficient to decide on some particular points, and the principal of these it is suggested should be the head of the Portland Canal; the points where the boundary line crosses the Rivers Short, Stikine, Taku, Iselcat, and Chelbraht."0 The memorandum concludes: The undersigned recommends that Her Majesty's Government should again request the United States Government to join in a joint commission to determine on the points where the boundary intersects the Stikine River, and such other points of those mentioned by Mr. Fish in his communication to Sir Edward Thornton in February, 1873, as may be considered advisable, and that in the meantime the status quo should be maintained.** Thus it appears that the question of fixing the boundary had been under constant consideration from September 20, 1872, down to November 21, 1876, a period of more than four years, and that the suggestion made by Mr. Fish in 1872 as to determining the points where the boundary line crosses the rivers named had been repeatedly under consideration by the British representative at Washington, the Prime Minister, Privy Council and Surveyor General of Canada, and the Foreign Office in London. It further appears that so far from any suggestion being made that Great Britain was enti- tied to any of the waters and coasts, which would be necessarily left in American territory by fixing a boundary line on the rivers named, » * <rj %j which waters and coasts include all of those now in controversy, the proposition of Mr. Fish was acquiesced in and was, as has been above shown, again recommended to be brought to the attention of the United States Government for its favorable action. aB. C. App., 189. *>B. C. App., 191. ARGUMENT OF THE UNITED STATES. 173 SURVEY OF STIKINE RIVER B Y HUNTER AND ADOPTION OF PROVISIONAL LINE IN 1878. The survey of the Stikine River was the subject-matter of a report made by Mr. Hunter in June, 1877/ Referring to Hunter's survey, the British Case says: "Having regard to the proviso subject to which this arrangement was accepted by the United States Government, Mr. Hunter's survey has no binding effect. The incident is, however, of importance in that it brought to the attention of the United States Government, the manner in which it was considered on the side of Great Britain the Treaty ought to be applied."*' The purpose of this statement is involved in some doubt, but if it is meant to say that there was anything in Hunter's survey and report to indicate to the United States Government that the treaty ought to be applied in the way now sought, that is to say, by running the line along mountains parallel with a part of the coast, but perpendicular to the coasts of the bays and inlets, and so that in drawing the boundary line parallel to the sinuosities of the coast, as provided for in the treaty, it should be drawn parallel only to the general coast, cutting across the coasts of interior bays and inlets, leaving those waters in British territory, then the proposition is denied. The instructions given to Mr. Hunter by Surveyor General Den- nis were to proceed to the Stikine River for the purpose of surveying it and making a reconnaissance of the country embracing the coast range of mountains in the immediate vicinity, so as to ascertain the boundary on that river/ Inasmuch as the mouth of the Stikine River was on the so-called general coast, and as Hunter's survey was confined to that river and the mountains crossing it, nothing whatever can be predicated on his survey in regard to what was the meaning of the word "coast" as applied to bays and inlets, and it is entirely inconsequential so far as the answer to the Fifth Question is concerned. Certainly no such view was entertained by the British Govern- ment. On October 9th following the report, which was made in June, Mr. Plunkett, British Charge d'Affaires at Washington, in a «B. C. App., 226. &B. C, 34. B. C. App., 224. 1 174 ALASKAN BOUNDARY TRIBUNAL. letter to Mr. Richards, Deputy Governor, said, speaking of the United States, that: They should at least accept our proposal to fix certain spots where the rivers pass out of British into American territory.a This must have referred to the rivers which had been repeatedly mentioned in the previous correspondence. On October 1st of the same year, in a letter to Mr. Evarts, he' said: Sir Edward Thornton, in his note to Mr. Fish on the 15th of last January, acting on instructions received from the Earl of Derby, urged the United States government to unite in a joint commission to determine where the boundary intersects the Stikine River, and also such other points on the frontier as might be considered advisable.0 Mr. Plunkett closed with the expression of the hope that steps might be taken if possible for calling the attention of Congress to this important question. On December 6, 1877, a committee of the Privy Council, referring to the report of November 21, 1876,6 and of the recommendation made in its conclusion, added: The points indicated by Mr. Fish were the head of the Portland Canal, the Rivers Iskoot, Stikine, Taku, Isalcat, and Chelkalit. c While the report of December 6, 1877, said that there was no urgency, except for fixing the boundary on the Stikine River, there was not the remotest dissent intimated from the accepted view that the boundary line would cross all the rivers named. This report was submitted by the Earl of Dufferin to Sir Edward Thornton, and on December 13, 1877, Sir Edward Thornton advised the Earl of Dufferin that in consequence of the receipt of his despatch he caiied at the State Department, and, not finding the Secretary in, "spoke to Mr. Seward on the subject, and suggested that if Congress could not be induced to grant a sum of money to lay down the whole boundary, or even the points formerly indicated by Mr. Fish, at least a boundary upon each bank of the Stikine might be decided upon, with, perhaps, a few miles into the interior from each of those points."0' The outcome of all this correspondence was a survey upon the Stikine and the adoption of a provisional line upon that river in 1878, with the proviso that it was not to affect Treaty rights/ «B. C. App., 235. &B. C. App., 191. B. C. App., 246. "B. C. App., 238. dB.C, App., 239. ARGUMENT OF THE UNITED STATES. 175 The correspondence conclusively shows that down to its termination both governments treated the question upon the assumption that these rivers were crossed - by the boundary line, and that the boundary line must in any event be drawn around the %7 %7 heads of all of the bays and inlets. From 1825 down to the inception of this correspondence the question of running it in any other way had never been directly or indirectly raised, either between Russia and Great Britain or between Great Britain and the United States. The interpretation of the Treaty had been made evident by acts of possession, and jurisdiction upon the part of Russia and the United States, which were never challenged by Great Britain, and by the affirmative declarations of all three of the governments through their official maps, and here, in negotiations extending throughout a period of more than four years bearing directly upon the question of fixing the boundary line, the minds of all parties were directed to a claim made by the United States which was wholly incompatible with the construction now sought to be put upon the Treaty by Great Britain. There was no protest or denial as to this claim, but it was accepted as a matter too clear for doubt, and there can be no question but that if the United States Government had appropriated the money the boundary would have been marked at that time upon these rivers so as to forever exclude the present dispute. THE DALL-DAWSON CONFERENCE, 1888. It is admitted in the British Case that: no further communications of importance with respect to this subject took place between the two governments until 1884, when the question entered on a new phase.a Before considering this "new phase," it will be instructive to review what had been done in the way of occupation by the United States government under the " old phase," from the close of the correspondence in March, 1878, by which the line established by the Hunter survey was provisionally adopted on the Stikine River, with the understanding that such " arrangement in regard to the Alaska Boundary shall not be held to affect the treaty rights of either party,"6 down to the alleged " new phase," which was presented for the first time in the Dawson letter of February 7, 1888, to Sir Charles Tupper. This covers a period of ten years during «B. C, 34. & B. C. App., 246. 176 ALASKAN BOUNDARY TRIBUNAL. which Great Britain was absolutely silent after the reiterated mutual understanding that the boundary line crossed the Taku and Chilkat Rivers. Such occupation may be briefly summarized as follows: United States vessels every year of that period and frequently repeatedly during the year went to the head of Lynn Canal and exercised authority over the natives as subjects of the United States, which jurisdiction was recognized by the Indians. The revenue service of the United States throughout that period was in effect over all of the coasts and waters in question. During the year 1887 Mr. Ogilvie, in charge of a survey for the Canadian government, entered upon the work at the head of Lynn Canal, only after having asked and received permission of the American government. In 1880 all foreign vessels were forbidden to unload at Chilkat, and this order was complied with without question. In 1881 salmon canneries were established at Pyramid Harbor by United States citizens and on what was understood by them and United States officials to be United States territory. In 1880 and 1881 schools were established near the head of Lynn Canal by United States citizens and under the auspices of the United States. In 1883 the British Government, in compliance with its request therefor, received the annual reports of the United States Coast and Geodetic Survey for the years 1874 to 1879 inclusive,0 which showed that the coasts and waters in question were treated as United States territory. In 1884 a civil government was established for Alaska, and Governors were appointed, who from that time, irrespective of the Dawson letter, exercised undisputed jurisdiction over all of the territory in question. The United States mineral laws were extended to that territory in 1884, and in 1885 regulations were made covering all of the territory in question, and in the same year mineral locations were made on the east side of Berners Bay. In 1886 a location was made on Lynn Canal twelve miles north of Berners Bay. «U. S. C. C. App., 88. ARGUMENT OF THE UNITED STATES. 177 During that period the United States courts exercised unquestioned jurisdiction over all of that territory, and frequent arrests wejfe made and Indians and others were prosecuted and imprisoned. In 1883 a salmon cannery was constructed at Pyramid Harbor by American citizens, who recognized the United States government as having jurisdiction over that territory. In that year 3,800 cases of salmon were canned by one company at Pyramid Harbor. A census was taken of the Indians in 1880. A postoffice was established at Haines in 1882. In 1885 a public school was established at Haines by the Department of the Interior. The United States, Canadian and British maps during this period declared that all of this territory belonged to the United States. Throughout this time there was never a protest against the occupation by the United States, and its jurisdiction was never questioned. References for the facts stated in the foregoing summary have been given in previous parts of this argument. The Dall-Dawson conference may be said to have been initiated by the letter of Mr. Dall to Mr. Dawson, April 24, 1884, in which he said: The matter of the boundary should be stirred up. The language of the Treaty of 1825 is so indefinite that were the region included for any cause to become suddenly of evident value, or if any serious international question were to arise regarding jurisdiction, there would be no means of settling it by the Treaty. There being no natural boundary and the continuous range of mountains parallel to the coast shown on Vancouver's charts, like a long caterpillar having no existence as such, the United States would undoubtedly wish to fall back on the 'line parallel to the windings of the coast and which shall never exceed the distance of ten marine leagues therefrom' of the Treaty. It would of course be impracticable to trace any such winding line over that ' sea of mountains.' I should think that the bottom of the nearest valley parallel to the coast might perhaps be traced and its stream form a natural boundary; even then it would be difficult to determine the line between one valley and the next. Before the question has' attained any importance, it should be referred to a committee of geographers, a survey should be made, and a new treaty should be made, stating determinable boundaries.a Mr. Dall then stated, what since has been incontestibly proved, that the range of mountains shown upon Vancouver's map, which «B. C. App., 248. * 178 ALASKAN BOUNDARY TRIBUNAL. was the range in respect of which the negotiators proceeded in defining the boundary line, does not exist within ten marine leagues from the ocean. It is plain that in the absence of this range he understood that the line was to be drawn parallel to the sinuosities of all of the coast, including the bays and inlets, and that this would be a matter of such difficulty as to make it advisable to make a new treaty calling for a line less difficult to trace over that sea of mountains. .There was nothing in his suggestion that gave any countenance whatever to the present contention of Great Britain that the line should be drawn so as to cut across the coast line. The difficulty which he foresaw was incident to drawing the line parallel to the sinuosities of all the coast. He recognized that the Treaty fixed such a line and did not propose to depart from it by putting a new interpretation upon the treaty, but by suggesting another treaty which would minimize these difficulties. His view of the line as fixed by the treaty was absolutely in accord with that advanced by Mr. Fish in his letter of January 10, 1877, to Sir Edward Thornton in which he said: The absence of a line defined and marked on the surface of the earth as that of the limit or boundary between two countries cannot confer upon. either a jurisdiction beyond the point where such line should in fact be. That is the boundary which the treaty makes the boundary; surveys make it certain and patent, but do not alter rights, or change rightful jurisdiction.a So far as the record shows Mr. Dawson did not answer Mr. Dall. It is said in the British Case that "the idea put forward by Mr. Dall was adopted by the Government of the United States."6 That it was adopted by Mr. Bayard in his letter of November 20, 1885, to Mr. Phelps is true, but there is nothing whatever in that letter that gives any countenance to the present British contention or that intimates in the least that any interpretation could be put upon the treaty by which, either looking to the mountains or the coast line or both, a line could be drawn in accordance with the intent of the Treaty which would throw any part of the coast and waters now in question into British territory. On the contrary, the opposite view unmistakably appears from Mr. Bayard's letter.c He speaks of the treaty line as being "of uncertain, if not impos- «B. C. App., 198. &B. G, 34. *B. C. App., 248-253. ARGUMENT OF THE UNITED STATES. 179 sible, location for a great part of its length," but it is manifest that this uncertainty is not as to where the line theoretically should be drawn, but is on account of the difficulty of actually laying it down parallel to the sinuosities of the coast over the sea of inaccessible mountains through which the investigations made subsequent to the treaty show it would have to run. In his communication to Mr. Bayard, Mr. Dall shows that it was never intended in the interpretation of the Treaty, to depart from a line parallel to all the sinuosities of the coast. For this reason he says: The single continuous range being non-existent, if we attempt to decide on the 'summit' of the mountains we are at once plunged into a sea of uncertainty. Shall we take the ridge of the hills nearest the beaches? This would give us in many places a mere strip of territory not more than three miles wide meandering in every direction. Shall we take the highest summit of the general mass of the coast ranges? Then we must determine the height of many thousands of scattered peaks, after which the question will arise between every pair oi" equal height and those nearest to them. Shall we skip this way or that with our zig-zag boundary, impossible to survey except at fabulous expense and half a century of labour? a He further says: In short, the "summit of the mountains" is wholly impracticable. We may then fall back on the line parallel with the windings of the coast. Let any one with a pair of drawing compasses having one leg, a pencil point, draw this line on the United States Coast Survey map of Alaska (No. 960 of 1884). The result is sufficient to condemn it. Such a line could not be surveyed; it crosses itself in many places and indulges in myriads of knots and tangles.a A line indulging in such "myriads of knots and tangles" is not a line parallel to the general trend of the mainland coast, but a line drawn parallel to the sinuosities of all interior waters. Mr. Bayard understood it in this way, for, referring to the line traced on the Coast Survey map of Alaska, he said: The line traced upon the Coast Survey Map of Alaska No. 960, of which copies are sent to you herewith, is as evidently conjectural and theoretical as was the mountain summit line traced by Vancouver. It disregards the mountain topography of the country, and traces a line, on paper, about thirty miles distant from the general contour of the coast. The line is a winding one, with no salient land-marks or points of latitude and longitude to determine its position at any point. It is in fact such a line as is next to impossible to survey through a mountainous region, and its actual location there by a surveying commission would be nearly as much a matter of conjecture as tracing it on paper with a pair of dividers. a V 180 ALASKAN BOUNDARY TRIBUNAL. This line is traced about thirty miles distant from the heads of the interior waters, and that is "the coast" that Mr. Bayard had in mind. In the same letter he further speaks of the seacoast being scarcely less intricate than that about the Firth of Solway. Mr. Phelps, in communicating the foregoing considerations of Mr. Bayard to the Marquis of Salisbury, entertained exactly the same */ X *J 7 +7 view of what coast was meant, and referring to Vancouver's map, he says that it "shows a range of mountains apparently continuous and sharply defined, running parallel with the coast, about ten marine leagues inland." ° This coast was the coast of the interior bays and inlets, for those mountains are manifestly more than twenty marine leagues, inland from parts of the coast line now insisted upon by Great Britain. His meaning, however, is made absolutely clear, for he says: The coast proves upon survey to be so extremely irregular and indented, with such and so many projections and inlets, that it is not possible, except at immense* expense of time and money, to run a line that shall be parallel with it, and if such a line should be surveyed, it would be so confused, irregular and inconsistent, that it would be impossible of practical recognition, and would differ most materially from the clear and substantially straight line contemplated in the Treaties. The result of the whole matter is that these treaties, which were intended and understood to establish a proper boundary, easy to observe and maintain, really give no boundary at all, so far as this portion of the territory is concerned.& The sum of all this is that the negotiators thought there existed a clearly defined and substantially continuous coast range which extended around all of the coasts and that, relying upon this, they adopted it as a boundary line, that it appears that no such chain exists within ten marine leagues from the coast and that instead, the whole country is an irregular mass of mountain formations; that to undertake to select from this formation any series of mountains running parallel to the coast would be a mere arbitrary selection without any good reason for differentiation, and that on account of the character of the country it would be impracticable to lay down the line so selected on account of the expense; and that if the mountains be disregarded altogether, the condition would not be bettered, for the expense of laying down a line in that country parallel to such an irregular and indented coast, would be almost prohibitory. There is nothing whatever in what he says that differs from the view expressed by Mr. Fish that the line is there and that the jurisdictions «B. C. App., 253. ob. C. App., 254. ARGUMENT OF THE UNITED STATES. 181 of the respective countries must divide on that line, no matter how difficult it may be of ascertainment, and there is nothing whatever said by him to indicate that on account of this difficulty a new interpretation must be put upon the Treaty which will permit a line to be drawn perpendicular to instead of parallel to parts of this sinuous coast. What he said was in entire harmony with the expression of the Earl of Iddesleigh in his letter to Mr. Phelps of August 27, 1886, in which, referring to a copy of the map of the Dominion of Canada, based upon surveys made by the Geological Corps 1842-1882, he said that: The Alaska boundary line shown therein is merely an indication of the occurrence of such a dividing line somewhere in that region.a This dividing line, as shown on the map, was substantially in accordance with the line as now claimed by the United States. The expression "somewhere in that region'1 did not mean somewhere in the region of where the line is now proposed to be located by the Government of Great Britain, but somewhere in the region around the heads of all the interior waters where the line was indicated on the map to be. The particular point where it was located on the ground had not been determined. The particular crossings of the rivers, the particular peaks or mountain passes where it would go, would have to be fixed by surveys, but that it was a line running around all the coasts in the sense in which that word had down to that time been used, without deviation is too clear for controversy. Lord Iddesleigh, while making a reservation as to the location of the line denoted by the map on account of the country not having been topographically surveyed, made no reservation whatever on the question of coast, or any suggestion that if there should be an occurrence of mountains, their trend could be followed across the coasts of the bays and inlets. Stress is laid upon the reservation made by Lord Iddesleigh in regard to this map, on the ground that it was the first occasion when such a map was handed by a representative of the British to a representative of the United States Government, and immediately after the problems presented by the topography had attracted attention. * While the other maps may not have been handed to a representative of the United States Government, they had been promulgated for more aB. C. App., 255. &B. C, 36 182 ALASKAN BOUNDARY TRIBUNAL. than half a century by the British Government and were matters of common knowledge. While the problem presented by the topography then attracted attention, there wer.e no problems then or at any other time attracting attention as to where the bays and inlets were located, ^3 %7 7 as to where their coasts were, and as to whether or not a line drawn parallel to the so called mainland coast and not more than ten marine leagues therefrom would throw a large portion of these waters and coasts in British territory. It needed no topographical surveys to suggest any such problems as this. Such problem, if involved, depended alone upon the meaning attributed to the word coast, and all of the data necessary for raising any such problem were known just as well in 1825 as they were in 1887. But Lord Iddesleigh suggested no problem of that character and made no reservation that would remotely suggest the existence of any such problem. It is stated in the British Case that in 1888— During the currency of the fishery negotiations at Washington Dr. G. M. Dawson, as representing Her Majesty's Government, in an informal conference with Mr. Dall, representing the United States, put forward the contention that the territories surrounding the head of Lynn Canal were British. The report of the conference between Dr. Dawson and Mr. Dall was subsequently laid before Congress by President Cleveland in his message dated March 2, 1889. In recommending to the president the publication of these documents the Secretary of State observed: These documents are considered of value as bearing upon a subject of great inter- national importance and should be put in shape for public information.a There is nothing to show that Dr. Dawson represented Her Majesty's Government or that Mr. Dall represented the United States. Certainly there is nothing to show that Dr. Dawson was authorized to put forward in behalf of Great Britain a claim so radically contravening what had been before that uniformly manifested as the British interpretation of what the word "coast" under the treaty meant. There is contemporary evidence of Mr. Dall's understanding of the attitudes occupied respectively by Dr. Dawson and himself. He says in a letter to Mr. Bayard: I have the honor to report that the suggested informal conference between Dr. George M. Dawrson, of Ottawa, Canada, and the writer has been held. Dr. Dawson and myself conferred on several occasions (February 4-11) and discussed matters connected with the Alaska boundary question freely and informally. «B. C, 94. ARGUMENT OF THE UNITED STATES. 183 It was mutually announced and agreed that the meeting was entirely informal; that neither party had any delegated powers whatever, and that its object was simply the arrival at a consensus of opinion as to some reasonable and business-like way of settling upon a line satisfactory to both countries and the most practical means of demarcating the line if one was accepted.a It certainly was a most remarkable procedure, if Dr. Dawson did represent, as the British Case states, "Her Majesty's Government," and if, as Lord Lansdowne says, the line drawn by him embodied the Canadian view, for a government to waive the usual channels of diplomatic communication on matters of great import, and to entrust the advancement of a contention which was a departure from its settled course of conduct for a period of over sixty years to be made by an unaccredited person to a person who understood that neither of the two "had any delegated powers whatever." It cannot be seriously contended that either government understood Dr. Dawson as advancing anything more than an exploitation of his and General Cameron's construction of the treaty, which was advanced by him, no doubt, as shown by Mr. Dall, to arrive at a result by which a conventional line through mutual concessions might be arranged.6 That Mr. Dawson did not advance his views as those of the British Government and by authority of the British Government is shown by the letter or Sir Charles Tupper to Mr. Bayard of February 11,1888, in which he says: In supplement of the Alaskan maps by Dr. Dawson', which I presented to you yesterday, I now beg your acceptance of the accompanying copy of Dr. Dawson's letter of the 7th instant, explanatory of his own views on the subject of the British- Alaskan Boundary.c So far from Dr. Dawson ever putting forward any such claim in behalf of the government, Mr. Dall shows that— Differences have been alluded to, raised by General Cameron in the construction of the details of the Alaska Treaty which relate to the boundary,0" and that: Waiving these fundamental differences in construction of the Treaty, Dr. Dawson suggested two alternative methods of obtaining a boundary line.e Dr. Dawson wrote a letter to Sir Charles Tupper setting forth the views of General Cameron./ Mr. Dall said, he most courteously furnished him with a copy of it, "in order that these'Views should «U. S. C. C. App., 94. &U. S. C. G App., 94 to 113. ^u. s. a a App.; 156. °U. S. C. C. App., 85. «U. S. C. C. App., 96. /B. C. App., 259-261. 184 ALASKAN BOUNDARY TRIBUNAL. clearly be put on record." It is manifestly an overstatement to say, as Lord Landsdowne has said in his letter of August 18, 1902, that they were accepted as embodying the Canadian view, or as is said in the British Case, p. 94, that they were put forward by Dr. Dawson as representing Her Majesty's Government, as "the contention that the territories surrounding the head of Lvnn Canal were British." Dr. Dawson says that General Cameron's view as to what is intended by the expression \' la cdte" may be substantially adopted. It was a mere suggestion to Sir Charles Tupper. If the view had been adopted already and he had been authorized to put forward such a claim, he would not then have been making the suggestion, and would not have entered into a labored argument for the purpose of convincing Sir Charles Tupper that it could be sustained. This letter was written on the fourth day of the conference. He certainly appears to have had no such authority at that time. The best evidence that he did not represent the British Government is that that government never acted on his suggestion, and never followed it up. Dr. Dawson in his report makes no pretense of having put forward any such claim. In his letter to Sir Charles Tupper of February 11, 1888, he states that he had several informal conferences with Mr. Dall, with the purpose of arriving, if possible, at some conventional line which might be recommended as advantageous to both countries.« He says: I found, however, that Mr. Dall was not disposed to regard with favor any suggestion which would involve the cession of any part of the coast line of Alaska. & He evidently understood here by coast that part of the coast bordering on the inlets, and that Great Britian could get it only fo/cession. This letter is his report of the interview, and there is not a word in it which indicates that he put forward any such claim in behalf of the British Government, as is now made/ Dr. Dawson's views as to what the word coast in the treaty meant had undergone a radical change from the time he wrote his letter, on February the 7th, in which he undertook to show that the coast could not possibly have applied to the border of the interior waters, and February 11th, where, with absolute distinctness, referring to such border, he speaks of it as "any part of the coast line of Alaska." «B. C. App., 261-262, &B. C. App., 262, cB. C. App., 261-263. ARGUMENT OF THE UNITED STATES. 185 But this view of February 11th is in entire accord with the one held by him in 1887 and 1898. In a narrative of the Yukon Territory, describing an exploration made in 1887, which narrative was published in London in 1898, he uses the following expressions: and from its headwaters we crossed the mountains by the Chilkoot pass and reached the coast at the head of Lynn Canal on the 20th of September.a It is somewhat less in the latitude of the Chilkoot pass, but may be assumed to occupy a border of the mainland about fifty miles in width along the whole of this ;j3art of the coast. *> * * * interfered with a lucrative and usurious trade which the Chilkoot and Chilkat Indians of Lynn Canal, on the coast, had long been accustomed to carry on with these people. c * * * It leaves the coast at the mouth of the Skagway River five miles south of the head of Taiya Inlet and runs parallel to Chilkoot pass at no great distance from it. The distance from the coast to the summit is stated as seventeen miles. * * * The passes connecting the coast with the interior country from the heads of Lynn Canal to the upper waters of the Lewes, were always jealously guarded by the Chilkat and Chilkoot Indians of the coast.d That the coast theory of Mr. Dawson had not, up to February, 1892, received any acceptation, even in Canada, is evidenced by a speech made on that date by Mr. Scott in the Canadian Senate, in which he said: There was no dispute as to the boundary of Alaska. . . . The line was defined, but not marked out. There is no doubt a dispute as to where it goes. . . . It is purely a question of survey. The terms of the treaty are not disputed. I think as a matter of compromise at the time it was agreed between the two countries that we should mark off the line where it crossed the Stikine and other rivers, but it was going to cost too much entirely to run out this particular boundary. He concluded as follows: The expensive part is, of course, the fringe of land that runs along the coast up to the particular part where the meridian runs, because it is entirely a matter of cost. 1 have never heard of any dispute as to the interpretation to be given to the treaty, because the treaty is plain and speaks for itself. I have the terms of it under my hand here this moment, if it is desirable to read them. I do not suppose it is; it cannot be disputed.e It would have been impossible for him to have spoken thus if Canada had advanced, or sustained, the contention that the word "coast" in the treaty, meant anything but what the word usually imported, and what it was shown to mean, by all of the official maps of all three of the governments directly concerned in the boundary, which had «U. S. C. C. App., 258. *> U. S. C. C. App., 259. «U. S. C. C. App., 260. S. Doc. 162, 58-2, vol 5 13 °U. S. C. C. App., 261. «U. S. C. C. App., 167, 168. if 186 ALASKAN BOUNDARY TRIBUNAL. . been issued up to that time. Mr. Scott could not have spoken unadvisedly. He was Commissioner of Crown Lands 1872-73, was a Senator in 1873, was Secretary of State 1873-1878, and was leader of the opposition in the Senate 1879-96/ ATTENTION CALLED IN 1887 TO SCHWATKA'S RECONNAISSANCE OF 188S. In 1883 Lieutenant Schwatka, at the direction of General Miles, on account of the reports of difficulties between the whites and Indians in Alaska, made a military reconnaissance for the purpose of ascertaining the number, nature and disposition of all the natives living in that territory, the tribal subdivisions, the sections inhabited by them, their modes of life, how they were armed, and, in fine, everything practicable of the character of the country in reference to military purposes. He was charged with no duty whatever having the remotest reference to the interpretation of the treaty or the location of the boundary under it.6 In his report he stated that: The fact that the country beyond Perrier Pass in the Kotusk mountains lies in British territory (as shown by our astronomical observations and other geographical determinations, when brought back and worked out), lessens the interest of this trail beyond the pass to the military authorities of our government. G This report having been communicated to the Colonial Foreign Office, Lord Salisbury, in a letter to Sir L. West of August 20, 1887, calls attention to the fact that Lieutenant Schwatka's report showed that he had extended his reconnaissance into British territory to Fort Selkirk, which is situated on the Yukon River far to the north of the head of Lynn Canal and some distance from the boundary line as always claimed by the United States. He also says: It will also be seen on referring to pages 20 and 47 of the Report, that Lieut. Schwatka has indicated two points, to wit: Perrier's Pass and 140th degree west longitude, which he has determined as defining the international boundary. Her Majesty's government, as you are aware, have agreed in principle to take part in a preliminary investigation of the Alaska Boundary Question, but they are not prepared to admit that the points referred to by Lieut. Schwatka in any way fix where the lines should be drawn. He adds: Her Majesty's government have no desire at the present moment to raise any discussion in regard to the question of the boundary between Alaska and British «U. S. C. C. App., 167. «U. S. C C. App., 89. &U. S. C, C. App., 89-90. ARGUMENT OF THE UNITED STATES. 187 Columbia, but in order that it may not be prejudiced hereafter by absence of remark on their part on the points alluded to above, I request that you will, in a friendly manner, call Mr. Bayard's attention to the observations contained in this despatch.a On September 14,1887, Sir L. West communicated to Mr. Bayard a memorandum containing the above extract, but in calling attention to it he only made observation upon the fact that Schwatka traversed British territory for a considerable distance without any intimation having been given to the British authorities of his intention of so doing. He concluded by saying: I may add, however, that Her Majesty's government do not attach any importance to this fact, and that no doubt had their acquiescence been asked, it would not have been refused.& He made no reference to what Lord Salisbury had said about not being prepared to admit that the points referred to by Lieutenant Schwatka in any way fixed where the line should be drawn. Cer- tainly there is not the remotest suggestion that Great Britain then held that the line should be drawn in any essential feature different from the way in which it had been drawn up to that time. There was absolutely nothing whatever involved in this affair which hinted at the coast line theory afterwards adopted by Great Britain. The British Case dignifies this communication by entitling it "Canada's Protest."c If it be admitted that the communication of Sir L. West to Mr. Bayard should have such a formidable title, it must on the other hand be admitted that such protest can in no way be tortured into a representation of the interpretation now sought to be put upon the treaty in regard to coasts and interior waters. If it had any such purpose, it was so artfully veiled as to make it entirely undiscernible, and consequently of no significance as a notice to the Government of the United States. WHITE PASS TRAIL, 1888. On June 19, 1888, it was communicated to Sir J. Macdonald, then Prime Minister of Canada, that it was believed that: certain persons are about to receive a charter from the Alaskan authorities to construct a trail from Lynn Canal by way of White Pass to the interior of Alaska. If our view of the case is correct, the entire route of this trail, as well as the trail by the Chilkoot Pass, is in Canadian territory. In view of the well-based contention on «B. C. App., 256. &B. C. App., 257. <>B. C, 94. 188 ALASKAN BOUNDARY TRIBUNAL. our part, that the heads of the larger inlets which penetrate that portion of Alaska. which consists of the coast line from Mount St. Elias to Portland Channel, and more particularly the head of Lynn Canal, are within our territory, it would appear to be important to protest against the granting of any rights by the United States or Alaskan government at the heads of these inlets.a This communication was from A. M. Burgess, Deputy Minister of the Interior, of Canada. This appears to have been transmitted by Sir J. Macdonald to Sir Charles Tupper, but for some reason not stated, the communication of Sir J. Macdonald is omitted from the correspondence printed by the British Government/ Sir Charles Tupper transmitted it August 1, 1888, to the Colonial Office and added a memorandum prepared by Major General D. R. Cameron. This memorandum distinctly advanced the theory now con- tended for by the British Government. He prefaced it by a demonstration of its necessity by saying: By way of Lynn Canal, of which the entrance is about 135° west longitude, 58° 20' north latitude, is at present the only practical route to gold mines being worked on tributaries of the Pelly River, some in British and some in United States territory.« It states that: From the ocean entrance to Lynn Canal the head of boat navigation up the Chilkoot is about 80 miles; from this point to Perrier Pass is somewhat in excess of 30 miles or 10 marine leagues. Lynn Canal has waterways of less than six miles in breadth at no great distance from its entrance. It is contended on the Canadian side that the ten marine leagues given as the maximum breadth of United States coast territory in the second subsection of Article IV, Russo-British Convention of 1825, may not be measured from any point within an inlet not exceeding six miles in breadth, and that, consequently, it is not, under any circumstances, possible that the international boundary can be anywhere so far inland as Perrier Pass. He submits that ' S the United States' contention should be emphatically protested against."6 Sir Charles Tupper, in concluding his letter of August 1, 1888, to the Colonial Office, after referring to this memorandum says: I entirely concur in the great importance of protesting against the United States contention. a Dr. Dawson had advanced this theory in his letter to Sir Charles Tupper of February 7, 1888. * «B. C. App., 264. &B. C. App., 265. «B. C App., 259-261. ARGUMENT OF THE UNITED STATES. 189 Thus it was again called to Sir Charles' attention by the memoran- dum of Major General Cameron, which he communicated to the Colonial Office, re-enforced by his entire concurrence in the great importance of protesting against the United States' contention that under the treaty it owned all of the interior waters of Lynn Canal and Taku Inlet. Thus the question was for the second time squarely presented to the British Government, sixty-three years after its original interpretation, to which it had consistently adhered. It had an opportunity, and was urged by the Canadian authorities to take a position in line with the views advanced by Dr. Dawson and General Cameron, and what course was pursued? Lord Salisbury, on August 1,1888, transmitted to Sir L. West a copy of all these papers, styling them, "Relative to a rumor that a charter is about to be granted by the Alaskan authorities of fhe United States for certain privileges in that part of Alaska which is claimed by this country." He concludes: I have to request that you will inform Mr. Bayard that this report has reached Her Majesty's Government and that it is presumed to be unfounded as the territory in question is part of Her Majesty's dominion. « At the same time he transmitted a copy of this communication to the authorities in Canada, clearly acquainting them with his failure to make any such protest as that suggested by General Cameron and Sir Charles Tupper in regard to the sovereignty over Lynn Canal. Sir L. West, on September 10, 1888, addressed Mr. Bayard as follows: I have the honor to inform you that the Marquess of Salisbury has requested me to bring to your notice a rumor which has reached Her Majesty's Government that a charter is about to be granted by the authorities of Alaska for certain privileges in a part of that country which is claimed by Great Britain. Her Majesty's Government presume that this rumor is unfounded, as the territory in question is part of Her Majesty's dominions.b He did not leave the Marquis of Salisbury in ignorance of what he had done, but transmitted to him a copy of the note, as well as a copy of Mr. Bayard's reply thereto. 6 Mr. Bayard said: The rumor to which you refer is, as stated by you, certainly vague and indefinite and has not come to the notice of this Department, which is wholly without infor- «B. C. App., 265. *>B. C. App., 266. 190 ALASKAN BOUNDARY TRIBUNAL. mation in regard to the granting of such a charter as you mention or to the locality of the territory to which it is said to apply..a Sir L. West did not enclose to Mr. Bayard the memorandum prepared by General Cameron. The suggestion of General Cameron, though endorsed by Sir Charles Tupper, was summarily dismissed. In view of the note of Sir L. West to Mr. Bayard and the reply of Mr* Bayard, the statement in the British Case cannot but be regarded as extravagant wherein it says: Again, in 1888, the Canadian Government forwarded a further protest to Her Majesty's Government for communication to the United States Government against a rumored attempt of the United States to exercise jurisdiction at the White Pass, claiming it as British territory. & unless the passage be taken to mean that the protest was simply effective as against Her Majesty's Government. It certainly was no protest to the United States Government, as it was never communicated. The fact that such protest was made "to Her Majesty's Government for communication to the United States Government," coupled with the further fact that it was not communicated is strong if not conclusive evidence that at that time the Government of Great Britain distinctly repudiated the suggestion. SO-CALLED PROTEST OF 1891. In the meantime the jurisdiction of the United States over all of said territory was uninterrupted and unquestioned, and nothing further appears to have transpired upon which anything in the nature of a protest is sought to be based until June 5, 1891, which was within a few days of three years after the memorandum prepared by General Cameron was communicated to Sir John Macdonald. In the meantime a Collector of Customs was appointed for Chilkat and a customs office was established there in 1890. The United States court was exercising complete juris*diction over every part of that territory. No one living there during that period ever questioned or ever heard questioned the sovereignty of the United States. In 1889 the value of the canning improvements in and about Pyramid Harbor aggregated $100,000, and there were canned annually about 55,000 cases of salmon caught in the Chilkat River. In 1887 a settlement by American missionaries was made at Haines Mission and about twenty-five Americans lived there the year through. «B. C. App., 266. &B. G, 94. ARGUMENT OF THE UNITED STATES. 191 In 1890 F. H. Poindexter was a United States Justice of the Peace at Pyramid Harbor and exercised jurisdiction in that vicinity. In 1888-9 the town of Skagway was settled. In 1888 Governor Swineford reported that there were thirteen schools in operation in Alaska, one of them being at Chilkat. In 1890 there was a census taken of Alaskan Indians, which included those living at Berneis Bay, at Chilkat, Chilkoot, Klukwan, and Pyramid Harbor. On June 5, 1891, Sir Julian Pauncefote addressed a communication to Mr. Blaine, stating that the Governor General of Canada had brought under the notice of Her Majesty's Government a passage in the last published report of the United States Coast and Geodetic Survey as follows: By recent congressional enactments, a preliminary survey of the frontier liije^ between Alaska and British Columbia in accordance with plans or projects approved by the Secretary of State, has been placed in charge of this bureau. Such a preliminary survey, involving the determination of a number of points in geographical position and their complete marking by permanent monuments, will have to be carried from Cape Muzon through the Portland Canal to the 50th degree of north latitude; thence northwesterly, following as near as practicable the general trend of the coast, at a distance of about 35 miles from it, to the 141st degree of west longitude, and thence due north to the Arctic Ocean, a total distance of about 1400 miles. He concludes: The Dominion Government has expressed a desire that the United States Government may be reminded that the question of the boundary at this point is, at the present time, the subject of some difference of opinion and of considerable correspondence, and that the actual boundary line can only be properly determined by an international commission. a He does not say what points he means, but inasmuch as the words 'through Portland Canal" and also the words "about 35 miles from it" are italicized, it might be said that he intended to question that portion of the line through Portland Canal, or whether the line should run thirty-five miles from the coast. There is not the slightest suggestion that would enable even so astute a man as Mr. Blaine was, to surmise that any such theory was hinted at as that now advanced by Great Britain. The fact of there being "considerable correspondence" is mentioned. No correspondence between the two governments had ever made any such suggestion. The communica- B. C. App., 268. 192 ALASKAN BOUNDARY TRIBUNAL. tion of Sir Julian Pauncefote is entirely valueless for the purpose of basing any claim upon it that the present theory of the British Case was at that time made known to the Government of the United States. And yet, in the British Case, this is styled the British protest of June, 1891. ° THE CONVENTION OF JULY 1892. After setting out Art. I. of the Convention of July 22, 1892, the British Case proceeds to comment upon its effect as follows: It is to be observed that the Convention of the 22nd of July, 1892, has reference to an existing boundary, and that it provided for the ascertainment of the facts and data necessary to its permanent delimitation in accordance with the spirit and intent of the existing Treaties. In view of contentions which have since been put forward in the course of this controversy, that the claim of the United States receives support from effect having before this date been given to their interpretation of the Treaty in 1825 by maps published or acts done with the acquiescence of Great Britain, it is important to observe that by this Convention the rights of the two Governments concerned are by agreement referred back to the Treaties. The facts and data to be ascertained were to be so ascertained by a joint survey. Previous cartography or acts of settlement were not embraced in the work authorized by the Convention, nor did the Commissioners, who properly confined themselves to the Convention under which they were appointed, report upon such cartography or acts of settlement, if any existed. & Certainly there was "an existing boundary," but not an ascertained boundary. It was, as is insisted for the United States, by the language of the Treaty, as interpreted by the parties, ascertained to the extent of sweeping around the heads of bays and inlets, but the width of this lisiere had not been ascertained, and it was desired to get data for that purpose. The astounding passage in the part just quoted is that which puts forward the claim that, by entering into the Convention of 1892, the United States abandoned all of its rights that might be predicated upon the interpretation put upon the Treaty of 1825 by " maps published or acts done with the acquiescence of Great Britain" and relegated the whole matter to an interpretation de novo of the treaties themselves without regard to what had transpired for a period of 67 years. This proposition would be sufficiently untenable on its tace, if it were not in direct conflict with the Treaty under which the ease is pending, which expressly provides that each party may present to «B. C, 98. &B. G, 40. ARGUMENT OF THE UNITED STATES. 193 the tribunal all pertinent evidence, including maps, and that the tribunal shall take into consideration any action of the several governments so far as the same tends to show the understanding of the parties in respect of the limits of their several territorial jurisdictions. The Treaty of July 22, 1892, provides for a survey "with a view to the ascertainment of the facts and data necessary to the permanent delimitation of said boundary line in accordance with the spirit and intent of the existing treaties in regard to it between Great Britain and Russia and between the United States and Russia."0 This did not efface the interpretation put upon the Treaty by the parties, but only provided for data to carry the proper interpretation into effect. The Earl of Rosebery, in his instructions to Mr. King, the British •7 7 o 7 Commissioner, directed him to effect a joint survey "with a view to the permanent delimitation of the boundary line in accordance with the spirit and intention of the Treaties in regard to it."6 The Treaty did not authorize the commissioners to establish any line, but only to survey "with a view to the ascertainment of the facts and data necessary" therefor/ The High Contracting Parties agreed as soon as practicable after report or reports of the Commissioners "to consider and establish the. boundary line in question." THE INSTRUCTIONS OF DR. MENDENHALL, 1893. Much comfort seems to be derived in the British Case from the opinion as to what was "coast," which is supposed to be disclosed by the instructions given by Dr. Mendenhall in 1898 to his assistants and surveyors who were to make the survey contemplated by the Treaty of 1892. It is true that in his letter of March 16, 1893, to Mr. Tittmann, who was charged with the duty of surveying the Stikine River, he directed him to continue "to a point on the Stikine River distant not less than thirty nautical miles from the coast of the mainland in a direction at right angles to its general trend."0 He also said: A topographical survey or sketch will also be carried on over the same route, but all possible additional geographical information will be collected, particularly as to <*B. C. App., 269. &B. C. App., 272. «B. C. App., 274. w 194 ALASKAN BOUNDARY TRIBUNAL. the location of mountain peaks and the existence or non-existence of a range of mountains parallel to the coast. Should a range of mountains be found to exist, it is of the first importance that its distance from the coast and its general trend should be determined, unless such distance should considerably exceed the specified thirty nautical miles.a He did not explain what he meant by "mainland coast" or "coast." In his instructions to Mr. McGrath March 18, 1893, who was to make the survey of Taku Inlet and river, he directed him to survey to */ / %7 a point "on the inlet or river distant not less than thirty nautical miles from the coast of the mainland in a direction at right angles to its general trend."6 This, on its face, seems to indicate that in surveying thirty miles from the coast, the distance might be reached while yet on the inlet. The conclusion is stated in the British Case that: "It is evident that Dr. Mendenhall did not consider the shore line of an inlet as being part of the ' coast.'"c That may be true as of that time, and, if true, it may be said in reply: 1. Dr. Mendenhall was not charged with the duty of construing the treaty. His authority was confined to the practical administration of the Department of Coast and Geodetic Survey, and was purely ministerial. At most, it is to have only such weight as his mere opinion would be entitled to. 2. It does not appear that his mind was particularly addressed to any conflict of views as to what the coast line was; and, further, it does not appear that he had any acquaintance with anything bearing on the question except the text of the treaty itself. But it is not necessary that either of these be urged. It is sufficient to say that if such was his opinion in 1893, he changed it after he had a year,of acquaintance with the subject. On March 21, 1894, in his instructions to Mr. Pratt, he said: On the receipt of these instructions you will please arrange to proceed by the Steamer Hassler, which will furnish transportation to and from the field for your party and outfit, and which will sail from Seattle about April 27th to Lynn Canal, where you will execute the triangulation and topographical reconnaissance of the Chilkat and Taiya Inlets to the ten marine league limit. You will also establish an astronomical station on the west side of Chilkat Inlet and connect it by triangulation with the old station on Pyramid Island.0 Here he very clearly indicates that the ten league limit was not to be measured from any coast near the mouth of Lynn Canal, but from «B. C. App., 274. &B..C. App., 276. cB. C, 74. <*U. S. C. C. App., 276. ARGUMENT OF THE UNITED STATES. 195 the coast at its head. In his instructions to Mr. McGrath in this same month he said: The Steamer Patterson will call for you at Yakutat at such time as you may have agreed upon with her commanding officer, and will then transport yourself and party to the head of Lynn Canal, where you will render such assistance to the partiesj;here at work as may be necessary to ensure the completion of that survey.a In April, 1894, he directed Mr. Flemer: * * * to proceed to Alaska and make a topographical reconnaissance of the country to the northward and eastward of Taiya Inlet and River to the ten marine league limit.« He also said to him: The party of Assistant Pratt will be engaged in the survey of the Chilkat Inlet and River to the boundary, and his camps may be used by you as a base of operations when practicable.h He gave similar instructions to Mr. Ritter in April, 1894. The British Case says: It is to be observed that Dr. Mendenhall and his able assistants were engaged under the Convention of 1892 in ascertaining "the facts and data necessary to the permanent delimitation of the boundary line in accordance with the spirit and intent of the existing Treaties." Copies of Articles III and IV of the Treaty of 1825 were embodied in the instructions above cited. Yet the principle followed by them (which is the same as that applied on the Stikine River by Mr. Hunter in 1877), is. inconsistent with the view since contended for by the United States. For if the line is properly drawn parallel to the general trend of the coast when inlets breaking that general trend terminate short of the line so drawn, it must also be properly so drawn when the inlets are long enough to be cut by it. The effect of the occurrence of the mouth of an inlet upon the general trend of the coast cannot depend upon its interior length.c In the light of all of the instructions, and what was done under them, "the principle followed by them" is not "inconsistent with the view since contended for by the United States." If they are to be appealed to by Great Britain as authority, then its cause, as to the Fifth Question, is surrendered, for they clearly included the whole of Lynn Canal, the longest of all the inlets, within the coast, and within United States territory. The concurrent action of the commissioners of the two governments is an interpretation of the meaning of the word coast as used in the treaty. In pursuance of this undertaking to survey "the principal water courses which traverse the coast strip" during the year 1894, "the «U. S. C. C. App., 280. *>U. S. C. C. App., 281. cB. C, 74-75. 196 ALASKAN BOUNDARY TRIBUNAL. following parties were placed in the field on behalf of the United States Commission: Mr. Pratt, on the Chilkat Inlet and River and on Chilkoot and Taiya Inlets and Taiya River; Mr. Dickens, on Knik River and Chilkat Inlet; Mr. Flemer, on Chilkoot and Taiya Inlets; Mr. Ritter, on Chilkat Inlet and River; Mr. Klotz, around Bradfield Canal; Mr. Ogilvie, on the east side of Lynn Canal; Mr. McArthur, at the north end of Lynn Canal; Mr. Robertson accompanied Mr. Pratt and party as attache for the British Commissioner." ° Thus the British Commissioner not only agreed to these assignments in pursuance of the treaty to survey "these water courses which traverse the coast strip," but sent a representative to co-operate in it. The result of all these surveys accompanied their report.0 DYEA AND SKAGWAY AND ALLEGED PROTEST. The British Case, referring to the Klondike rush of 1897, says: Many stopped at Dyea and Skagway, while others pushed on over the passes to the gold fields. By this movement of travel Dyea and Skagway came into existence.6 As has been shown, an American established a trading place at Dyea in 1886, which was never abandoned, and in 1888-9 Captain Wm. Moore located the townsite of Skagway, and his son settled there. For many years prior to 1897 the jurisdiction of the United States courts had been exercised where those towns were subsequently established. The revenue laws of the United States had been extended to and exercised over alTof that territory from 1868, and this jurisdiction had never been questioned. In 1880 all foreign vessels were forbidden to unload at Chilkat. It is said in the British Case, referring to the revenue laws, that: These regulations were put in force, notwithstanding that Canada's claim.to the territories at the head of Lynn Canal was at the time well known to the United States Government. e This is a gratuitous assertion. There is no proof to sustain it. Canada never put forward any such claim to the United States. The claim was first made in 1898 by Great Britain before the Joint High Commission. It is said on page 95 that: if the Canadian Government had instructed British vessels to disregard these regu- lations, there would have been grave danger of a serious collision. a B. C. App., 284. WM,', 93. cB. C, 94. ARGUMENT OF THE UNITED STATES. 197 There would undoubtedly have been a collision, just as certainly as if they had been instructed to disregard the regulations at the Port of New York. The head of Lynn Canal had for thirty years been under the unquestioned jurisdiction of the United States. It is said that instead of resorting to violence the Canadian Government 'c at the same time reserving her rights as to the ultimate determination of the boundary" on July 22, 1897, inquired whether or not Canadian goods could pass from Juneau to the Yukon frontier without payment of customs duties if owners paid for United States officers accompanying the goods/ There was no such reservation as to the boundary when this request was made. In reply it was asked: " Would it facilitate matters to make Dyea a sub-port of entry?"6 The reply was: "It would facilitate matters if Dyea made a sub- port of entry pending settlement of boundary question."6- This was from a commissioner of customs. Doubtless he meant that this would be a convenience until the exact boundary line in the interior should be determined. His government had never intimated that it claimed any part of Lynn Canal, and no such interpretation should be put on his telegram. The British Case expands the incident immensely by saying that the Commissioner requested that "if this arrangement were agreed to" the Treasury Department should issue instructions to permit British steamers from Canadian ports to land and receive passengers and goods at Dyea/ The implication is that by the condition, "if the arrangement," etc., the sovereignty over Dyea was to be treated as undetermined pending settlement of boundary question. The Commissioner said nothing about "if this arrangement" were agreed to. He only said, "if agreed to," manifestly meaning, if the United States Government would agree to make Dyea a sub-port of entry. The reply of Assistant Secretary Howell was simply that Dyea had been made a sub-port of entry and that the collector had been advised. It is inconceivable that either party had in mind any reservation as to Dyea, and certainly neither of them had any authority in the %7 %7 v %, premises. On this slender basis the British Case builds an imposing superstructure and discusses it as a grave diplomatic treatment of the «B. C, 95. &B. C. App., 289. 198 ALASKAN BOUNDARY TRIBUNAL. boundary question. It says that the objective point referred to in the first Canadian communication is the "Yukon frontier," no special locality being mentioned, A communication intended to have such fruitful results as those now contended for should have been so framed as to give a person of ordinary intelligence some conception of its purpose. It is said that Canada, "in accepting this proposition, expressly provided that her acceptance was pending settlement of boundary question." The despatch of July 23rd cannot be inflated into any such a compact. There is not a word in it about acceptance, and there is no proviso about it. The straight meaning is that if the United States will agree to make it a subport of entry, it would facilitate matters until the boundary should be settled, and then, of course, the customs would be collected there. There was no question of' agreement or compact. There was no reason for the United States to agree except to accommodate Canada. There was nothing but a favor in the transaction. It was not a bargain. There was nothing reciprocal. It made no difference to the United States whether it suited the Commissioner, except in so far as it wanted to be generous. A mere matter of grace should not be tortured into a formal compact affecting Dyea's relation to the boundary. This is followed by a declaration quite in keeping. The Case says: A few months later the Canadian Government in the early part of the year 1898 formally protested to the Imperial Government that the United States had established a sub-port of customs at Dyea in territory which they claimed was rightfully British.« Why did the Canadian Government protest against what it on the same page said had been done only under a formal agreement in which Canada "expressly provided that her acceptance was pending settlement of boundary question" ? This shows the unsoundness of the contention as to the agreement, which was quite apparent without it. But this protest, like the other alleged protests set up in the Case, never got any further than the British Government, which manifestly at that time did not sanction Canada's claim that the interpretation of the Treaty of such long standing, and acted on so notoriously by both governments, should be repudiated and a new one «B. C, 96. ARGUMENT OF THE UNITED STATES. 199 asserted on which territory could be claimed which had been in the undisputed possession of the United States for over thirty years. The exact date in 1898 when this protest was made to Great Britain by Canada is not given, nor is the form of it shown. Taken with the evidence in the record, the fact of such protest being made serves only to emphasize its insignificance, both in Canada and Great Britain, for it was not only not communicated to the United States or followed up by Canada, but was entirely out of accord with the views then held in Canada and by the representative of Great Britain at Washington. On February 11, 1898, during a debate in the Canadian House of Commons, the Minister of the Interior, the Honorable Clifford Sif ton, the question as to the ownership of the land about the head of Lynn Canal being under discussion, said: Difficulties also arose in the White Pass, behind the village of Skagway, and at Chilkat Pass behind Dyea. I believe our contention is that Skagway and Dyea are really in Canadian territory, but as the United States have had undisputed possession of them for some time past, we are precluded from attempting to take possession of that territory. Sir Charles Hibbert Tupper: May I be excused for saying that I do not think the Honorable Minister meant to say "undisputed possession." The Minister op the Interior: There have been no protests made. " It must be taken as undisputed when there has been no protest made against the occupation of that territory by the United States. Sir Charles Hibbert Tupper: A claim, I suppose, was made and adhered to? The Minister op the Interior: There is nothing in the records to show that any protest has been made—an unfortunate thing for us, but it is a fact. I do not know that that particularly affects the discussion, because there has been no real discussion about that particular point. We have taken the position that there can be no doubt raised as to the Canadian territory beginning at the summit; we have taken the position that the claim of Canada to occupy the territory inside of the summit from the boundary at White Pass and Chilkat Pass is not deniable, and we cannot admit it is debatable, and we have instructed our officers to establish posts as near the boundary as physical conditions will permit- Mr. Foster: How far from the water line? The Minister of the Interior: About fifteen miles from tide water. An accurate survey has not been made in the White Pass, but the distance is about the same, fifteen miles. Therefore, so far as possible under the present conditions, the idea of the honorable gentleman has been carried out, and our officers have been instructed to locate themselves as nearly as possible to the summit on the northeastern side and to take the summit of the White Pass and Chilkat Pass as the boundary line, without making any admission as to the right of the United States to the territory on the seaward side.« aU. S. C. C. App., 169. 200 ALASKAN BOUNDARY TRIBUNAL. On February 16, 1898, the following occurred: Mr. Prior: Before the Orders of the Day are called, I wish to ask the Right Honorable First Minister whether his attention has been called to certain paragraphs that have appeared in the press, both in the United States and in Canada, to the effect that the United States Government is about to send two companies of troops to be permanently stationed at Dyea and Skagway, at the head of the Lynn Canal. That is, as you know, in disputed territory. It is a highway to the Yukon country, and the reason given in these papers is, that there are a large number of disorderly characters assembled there at present, and that troops are required to prevent any riotous proceedings taking place. I also wish to ask the right honorable gentleman whether his Government has seen fit to let the United States Government know that they have no objection to these troops being sent there, but that such permission must not be considered as an admission on the part of Canada that our claim to that territory has been withdrawn. We saw, in times past, how the sending of troops to San Juan affected the argument before the arbitration, and I, for one, would not like to see the same thing occur again with regard to Dyea and Skagway. The Prime Minister (Sir Wilfrid Laurier): The Government has not been informed of the intention to wbich my hon. friend has just referred. The Government did not know it was the intention of the American Government to send their troops to Dyea and Skagway. My hon. friend is aware that, although this is disputed territory, it has been in the possession of the United States ever since they acquired this country from the Russian Government in 1867, and, so far as my information goes, I am not aware that any protest has ever been raised by any Government against the occupation of Dyea and Skagway by the United States. It is only in recent years that the attention of the public has been drawn to it. I may say to my hon. friend, that the importance of having a delimitation or settlement of the boundary between Canada and the United States in that region is at this moment engaging our attention.« On March 7, 1898, the Prime Minister said: We had either to take the route by the Lynn Canal and Dyea, or the route by the Stikine River. The advantages of the one had to be set against the disadvantages of the other, and vice versa. The advantages of the route by the Lynn Canal were that it was shorter and more direct than the route by the Stikine River. But if we had adopted the route by the Lynn Canal, that is to say, had chosen to build a railway from Dyea by the Chilkat Pass up to the waters of the Yukon, we would have to place the ocean terminus of the railway upon what is now American territory. I agree with the statement which has been made on the floor of this house, on more than one occasion, that Dyea, if the treaty is correctly interpreted, is in Canadian territory. It ought to be; but the fact is, as my hon. friends know very well, even those who do not belong to the legal profession, that possession is nine points of the law; and even though by the letter of the treaty Dyea is»in Canadian territory, the fact remains that from time immemorial Dyea was in possession of the Russians, and in 1867 it passed into the hands of the Americans, and it has been held in their hands ever since. U. S. C. C. App., 170. ARGUMENT OF THE UNITED STATES. 201 Now, I will not recriminate here; this is not the time or the occasion for doing so, but so far as I am aware no protest has ever been entered against the occupation of Dyea by the American authorities; and when the American authorities are in possession of that strip of territory on the sea which has Dyea as its harbour, succeeding the possession of the Russians from time immemorial, it becomes manifest to everybody that at this moment we cannot dispute their possession, and that before their possession can be disputed, the question must be determined by a settlement of the question involved in the treaty.*2 On February 23, 1898, Sir Julian Pauncefote, in a communication to the Secretary of State, made on the direction of the Marquis of Salisbury, for the purpose of having a settlement of the boundary line, said: The great traffic which is now attracted to the valley of the Yukon in the Northwest Territory by the recent discovery of gold in that region finds its way there from the coast, principally through certain passes at the head of the Lynn Canal, and it has become more important than ever for jurisdictional purposes that the boundary, especially in that particular locality, should be ascertained and defined. Her Majesty's Government, therefore, propose that the determination of the coast line of the boundary south of Mount St. Elias should at once be referred to three commissioners (who should be jurists of high standing), one to be appointed by each Government, and a third by an Independent Power. It is suggested further that the Commission should proceed at once to fix the frontier at the head of the inlets through which the traffic for the Yukon valley enters, continuing subsequently with the remaining strip or line of coast.*> In this he conceded that the line would run somewhere in the locality of the passes at the head of Lynn Canal, and that the frontier would be somewhere about the head of the inlets at the head of Lynn Canal. ACQUIESCENCE. It is respectfully submitted that it has been conclusively shown that for over seventy years before the present claim of Great Britain was preferred, Russia and the United States have exercised jurisdiction over the waters and coasts in dispute; that throughout that period Great Britain never sought in any way to assert any sovereignty over any part of them; and that by her official maps she concurred in the claims made notoriously and continuously by the official maps of Russia and the United States that the boundary line in dispute ran from the head of Portland Canal around the heads of all the bays and inlets. The case of Indiana v. Kentucky grew out of a conflict as to the «U. S. C. C. App., 171-172. 8. Doc. 162, 58-2, vol 5 14 &B. C. App., 291. 202 ALASKAN BOUNDARY TRIBUNAL. proper construction of the deed of cession made on the 20th day of December, 1783 by the State of Virginia to the United States. The State of Indiana was carved out of the territory embraced in that deed of cession. Subsequently, by the consent of Virginia, Kentucky became an independent State. The controversy was between Indiana and Kentucky as to the boundary line between them. Mr. Justice Field, who delivered the unanimous opinion of the court, said: It was over seventy years after Indiana became a State before this suit was commenced, and during all this period she neyer asserted any claim by legal proceedings to the tract in question. She states in her bill that all the time since her admission Kentucky has claimed the Green River Island to be -within her limits and has asserted and exercised jurisdiction over it, and thus excluded Indiana therefrom, in defiance of her authority and contrary to her rights. Why then did she delay to assert by proper proceedings her claim to the premises? On the day she became a State her right to Green River Island, if she ever had any, was as perfect and complete as it ever could be. On that day, according to the allegations of her bill of complaint, Kentucky was claiming and exercising, and has done so ever since, the rights of sovereignty, both as to soil and jurisdiction, over the land. On that day, and for many years afterwards, as justly and forcibly observed by counsel, there were perhaps scores of living witnesses whose testimony would have settled, to the exclusion of a reasonable doubt, the pivotal fact upon which the rights of the two States now hinge, and yet she waited for over seventy years before asserting any claim whatever to the island, and during all those years she never exercised or attempted to exercise a single right of sovereignty or ownership over its soil. It is not shown, as. he adds, that an officer of hers executed any process, civil or criminal, within it, or that a citizen residing upon it was a voter at her polls, or a juror in her courts, or that a deed to any of its lands is to be found on her records, or that any taxes were collected from residents upon it for her revenues. This long acquiescence in the exercise by Kentucky of dominion and jurisdiction over the island is more potential than the recollections of all the witnesses produced on either side. Such acquiescence in the assertion of authority by the State of Kentucky, such omission to take any steps to assert her present claim by the State of Indiana, can only be regarded as a recognition of the right of Kentucky too plain to be overcome, except by the clearest and most unquestioned proof. It is a principle of public law universally recognized, that long acquiescence in the possession of territory and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title and rightful authority. (136 U. S. Reports, 509, 510.) £>ee also the proceedings of the Commission under Art. IV of the Treaty of Ghent, relating to the title to the islands, in Passamaquoddy Bay, wherein the Agent of Great Britain concludes his argument as follows: A total silence continued to be observed by the Government of the United States with respect to all these Islands now in question, excepting the three in that behalf ARGUMENT OF THE UNITED STATES. 203 before named until the year 1807 notwithstanding the public notoriety of the facts of British settlement, and of the exercise of British jurisdiction over all the Islands as well Grand Manan as those in Passamaquoddy Bay wTith the above exception, and notwithstanding these facts were in evidence before the Commissioners of the two Nations under the 5th Article of the Treaty of 1794 as before mentioned. In the year 1807 a claim is for the first time preferred by the United States to the Island of Grand Manan in the negotiations of the unratified supplemental convention of limits of that year in pursuance of the instructions in the letter from the Secretary of State of the United States under date of the 15th of May 1806 which letter has been already under consideration in the second part of this argument. No claim however as was there observed was even then in any manner suggested on their part to any of the Islands in Passamaquoddy Bay excepting the three Islands above mentioned. At length however by the 4th Article of the Treaty under which this Honorable Board is constituted not only the Island of Grand Manan but all the Islands in the Bay of Passamaquoddy are claimed as belonging to the United States in conformity with the true Intent of the Treaty of 1783 and the Agent of the United States under this Commission has accordingly in his memorial preferred to this Board at their Session at St. Andrews in the month of September last claimed all these Islands and each and every of them as belonging to the United States under that Treaty. The simple uncontroverted fact, that all these Islands now in question, upon the publication of the treaty of 1783 were in the possession of His Majesty, and with the' exception of the three Islands above mentioned continued in his possession, with the tacit consent and acquiescence not only of the Government of the United States but that of the State of Massachusetts always vigilant and tenacious of all her rights and particularly jealous of all British encroachments upon her territory in this quarter must to any unprejudiced mind most strongly evince the sense of both Nations at that time with regard to the right to these Islands under that Treaty, and can be considered in no other light than as a mutual, cotemporary exposition of the true intent of the Treaty in that regard, in which not even a doubt is raised as to His Majesty's right to any one of the Islands now in question excepting the three in that regard so often before mentioned, and the claim even to these having been made under an erroneous impression with regard to the mouth of the River St. Croix. To an unprejudiced mind also the further uncontroverted fact, that under this mutual understanding of the Treaty, the United States as well as the State of Massachusetts in the words of the late Agent of the United States before quoted "remained silent spectators" of the settlements and improvements made by His Majesty's Subjects upon these Islands with the above exception, during a period of more than twenty-three years with regard to one of them, and of more than thirty years with regard to all the others, will justly furnish an argument, that the United States have no claim at this day to any of those Islands. (P. 129 of Memorial of British Agent, dated June 11, 1817. MSS. United States, duplicate copy in State Department at Washington.) The right of Great Britain to the territory in question was as perfect and complete as it ever could be, from the moment the Treaty of 1825 with Russia was executed. If from that time down to 1898 she failed to assert the right now set up, and acquiesced in the exercise of dominion and jurisdiction upon the part of Russia and the United States, such acquiescence should be conclusive as to her understanding" of the Treaty of 1825. ALASKAN BOUNDARY TRIBUNAL. J*. APPENDIX TO ARGUMENT OF UNITED STATES. ,. ! -*—5 THE LINE, SHOWN ON MAP NO. 37 BRITISH CASE, AND ALLEGED TO BE THE LINE OF DEMARCATION, AS DEFINED BY THE TREATY. Where and how does the British line begin ? The British line does not continue up Portland Channel to the 56th degree of • parallel north latitude, but takes a different direction from the head of this channel. It runs, almost directly westward, from the head of Portland Channel, fifty-seven miles to a point on the 56th degree of latitude. The treaty says, "la dite ligne remonteraau Nord", until it reaches the 56th degree. The British line does not go northwardly until it reaches the 56th degree. The Faden, Vancouver, Arrowsmith, and Russian maps all showed the crest of the mountains on the 56th parallel near the head of Portland Channel. It is not possible to lay down the British line on any one of those maps and say that it crosses the 56th degree of latitude at the point where the crest of the mountains begins. When the British line strikes the 56th parallel on Faden's map, it is distant from the nearest point of the chain of mountains on that map thirty-eight miles. Faden's map was before the negotiators, and Mr. George Canning said in his letter to Sir Charles Bagot that it was the most reliable map of them all. The point of departure of the British line at the head of Portland Channel is distant from the nearest chain of mountains on Vancouver's map (No. 2 British Atlas) six miles. The point where the line strikes the parallel of 56 degrees is distant from the nearest chain of mountains, on that map, twenty-five miles. Take Vancouver's general map, No. 1 British Atlas. The point where the line leaves the head of Portland Channel is distant from the nearest continuous chain of mountains twenty-two miles. The point where it strikes the 56th parallel is distant from the nearest chain of mountains twenty-five miles. This general map of Vancouver seems to show, to a small extent, an exterior range of mountains for short distances, but this is not the continuous range of mountains, as defined in the treaty. This range is what might be termed the interior range of mountains on this map, and also the interior range on Map No. 2. It has a very large break at the head of Bradfield Canal of fifteen miles. The so-called exterior range, really only spurs, as shown on Vancouver's map No. 1, runs only from Observatory Inlet around Portland Channel and to Behm Canal, 3 ALASKAN BOUNDARY TRIBUNAL. and therefore could not possibly have been the continuous chain of mountains which the treaty contemplates as running from the 56th parallel to the 141st meridian. Take the Russian map. The point at which the line departs from the head of Portland Channel is distant from the nearest point of the chain of mountains on this map about seven miles. The point where it strikes the 56th parallel is distant from the nearest chain of mountains twenty-five miles. Take Pinkerton's Arrowsmith map (No. 8 of the U. S. Atlas). The point of the departure of the line from the head of Portland Channel is distant from the nearest chain of mountains fourteen miles. The point where it strikes the 56th parallel is distant from the nearest chain of mountains nineteen miles. . This section of the line runs across the Behm Canal, where it intersects Burroughs Bay, and gives a water line across that canal of three and one-half miles. It then cuts across the upper portion of an arm of Behm Canal, and cuts Bell Island in such a manner as to leave the northeasterly portion of it and a part of the mainland coast to Great Britain. The treaty said that, after the line had ascended Portland Channel and run to the. north to the 56th degree of latitude, it was to follow the crest of the mountains, but this line crosses transversely mountains forming the water-shed between Behm Canal and Portland Channel, which has peaks of over five thousand feet in height. It also crosses transversely the mountains which form the divide between the Chickamin River and the Leduc River, also the mountain mass which forms the divide between the Leduc and Unuk Rivers. None of these formations are parallel to the so-called mainland coast. The British explanation for this part of the line will be found on page 62 of the British Case, as follows: From the 56th parallel the line is to follow the crest of the mountains parallel to the coast, being by subsequent provisions those lying within not more than thirty miles of the ocean. The natural construction of the language seems to contemplate a point on the channel where the parallel and the coast mountains meet, but Portland Canal does not fulfill these conditions. (Ibid., p. 62.) How is it possible to say that the treaty means that the 56th degree of parallel and the coast mountains were to meet on Portland Channel? Vancouver's map showed that the head of Portland Channel was fourteen miles from the 56th parallel. Faden's map showed that the head of Portland Channel was twelve miles from the 56th parallel. The Russian map showed that the head of Portland Channel was seventeen miles from the 56th parallel. Arrowsmith's map showed that the head of Portland Channel was eighteen miles from the 56th parallel. All of these maps showed the parallel and the supposed chain of mountains to be coincident at a point northwardly from the head of Portland Channel. How is it possible, then, to say that the negotiator intended that there was to be a common point of the chain or mountains of the 56th parallel and of Portland Channel? The British Case suggests that the word "elle" may possibly refer to Portland Channel. This would bring about a most extraordinary result, for if "elle" does refer to the Channel, and not to the line, the result is that the Channel must reach the 56th degree of latitude. It did not reach it, and all of the maps showed this. APPENDIX TO ARGUMENT OF UNITED STATES. The British Case states that the general result is that the description, does not fit the facts, and it is necessary to project lines not specifically designated in the treaty, and to take courses easterly, northerly and westwardly along three sides of a great square in order to bring Portland Canal into the line of demarcation. (B.C., p. 62) This is a good reason why the negotiators never intended the line to be drawn from the head of Portland Channel in the way it has been drawn in the British Case. The Treaty expressly required Portland Channel to be brought into the line of demarcation, but did not require any such departure as is made to reach the 56th degree. It is such departure and not the bringing in of Portland Channel that carries the line along three sides of a great square. The great square is a creation of the British Case. There are other mountains in the immediate vicinity and on the 56th parallel to the east of the point where the British line crosses it which answer the requirements of the Treaty equally as well as that selected in the British Case for the point of departure on the parallel. The point of departure of the Britisn line is not on the summit of the mountains. It crosses the parallel on a saddle half a mile south of peak "4070." There are higher places on the 56th parallel east of this as, for instance, the mountain mass which lies between the Leduc river and Burrough's Bay and those between the Chickamin River and the head of Portland Channel which are as much parts of mountains parallel to the general or mainland coast as are the formations selected by Great Britain. The contention, however, of the United States is that none of the mountains within ten- marine leagues of the coast answer the requirements of the Treaty. From the point of departure the line runs half a mile to peak "4070." From this peak it runs three and one-fourth miles to another peak "3800," thence for five miles to a peak "3700," and thence in four miles it strikes the shore of Bradfield Canal, which is five hundred feet deep. In this entire distance the line skips from mountain peak to mountain peak, and there is no definite backbone or crest running from its beginning until it strikes Bradfield Canal. The line crosses Bradfield Canal from a mountain peak on the south to a mountain peak on the north. There is nothing to indicate that this, peak on the north is any part of a mountain formation which embraces this peak on the south. There are numerous mountains in the vicinity. No topographer can give a good reason why peak "3400" was selected on the north side of Bradfield Canal as a better summit than any one of three which are in the immediate vicinity. All are between three thousand and three thousand four hundred feet high. Peak, "3400", is one end of a mountain mass which trends in a general direction for eight or nine miles northerly, never descends below 2750 feet, and whose axis goes through five different peaks to peak "4600". This mountain mass trends northeasterly two miles to peak wl,6200", a total distance of about eleven miles where the surveyed area ceases. The British line, instead of following this indicated ridge from mountain "3400" up to mountain "6200", actually leaves that ridge to the east and goes westward. Why, when an elongated mass did look something like a portion of a ridge, did the British line merely take one end of that ridge, and then leave it, and refuse to follow it farther? 6 ALASKAN BOUNDARY TRIBUNAL. Continuing from peak "3400", which has been shown to be on the slope of an elongated mountain mass, the line runs four miles to peak "4334"; then three and one-half miles to peak "3590"; and in two and one-half miles more it descends into a small inlet which it crosses, and then in three and one-half miles it rises to peak "4500 to 4750". Thence in seven miles it runs to peak "3780". Between this point and a peak distant four miles, marked "3830", it drops about three thousand feet, into a deep ravine, and then ascends again to peak "3830". Between the peaks, "3400" and "3830", the mountain mass rises eastwardly to higher summits, and the line, instead of attempting to reach these higher summits, takes lower summits between the peaks described. From peak "3830", it runs to a point on the north side of the Stikine river, crossing that river less than six miles northeast of Point Rothsay to peak "4483". (It may be well here to note that, including the British line under discussion, four different places have been contended for as the proper ones where the line of demarcation crossing the Stikine River should be drawn, and all of them were based on the theory that they were following the crest of mountains parallel to the coast.) 1. Chief Justice Begbie's line was eastwardly of the present line, and midway the line of 1878. 2. The line drawn by Mr. Hunter under the instruction of the Surveyor General of Canada, which is the line of 1878, shown on the map, is to the eastward of the present line, fourteen miles. 3. The line drawn on the map presented to the Joint High Commission in 1898 is drawn to the westward of the present British line. 4. The line now proposed by Great Britain. It is three miles to the next peak marked "5700", and then four miles to Le Conte Bay, here less than one mile wide. In another mile the line reaches peak " 3600". From this peak it is two and one-half miles to peak "5355", and as much more to peak "5860", which the line reaches after crossing the ice-filled'valley about three thousand feet below these peaks. About one-half a mile to the eastward from peak "5860" lies another peak 6300 feet, and on the same mountain mass. .This is entirely ignored. From peak "5860", it is two miles to peak "5268"; but the line descends between these peaks to a slope of a glacier coming from the east, which it crosses. The distance from 'w 5268 "to" 4725 " is a mile and a half. Most of this distance is across an intervening glacier sloping down from the higher summits marked "6980" and "7180", about five miles to the eastward. These are so much higher than the peaks selected for the British line that it is difficult to understand how it is possible for anybody to conceive that such a line does follow, as the treaty requires, the crest of the mountains. From peak "4725", the line changes its course at an angle of about one hundred and six degrees, and runs to peak "4812", distant four miles, crossing the slope of Patterson glacier three thousand feet or so below these peaks. From peak "4812" the line runs to "4881", after crossing a deep ravine three thousand feet below the latter peak, and less than two miles from it. This peak forms the western summit of a mountain mass represented on the British Commission Maps, as running east from this peak for about nine miles in the general direction of Devil's Thumb, which is APPENDIX TO ARGUMENT OF UNITED STATES. 7 over nine thousand feet high, and the peak two miles southeast from Devil's Thumb over seven thousand feet high. This mountain mass can be traced on the British Commission Maps from peak "4881" to peak "5050", distant one and a half miles; thence five and one-half miles to peak " 5500"; thence two and one-half miles to peak " 6600 ". At peak "4881", the British line cuts across the end of this mountain mass running east and west, and in contravention of the terms of the treaty, because, according to the treaty, the line must follow the crest of the mountains. Here this line cuts the mountain transversely. From peak "4881" the line runs towards peak "4050", crossing Thomas Bay two and one-half miles from the first named point, where the width of Thomas Bay is one and one-fourth miles. Peak "4050" is near the southern end of a mountain mass which trends in a northeasterly direction for seventeen miles paralleling the glacier which joins the Dawes and Baird glacier. This mountain mass is further defined as follows:—From peak "4050" four miles to peak "4500"; thence two miles to peak "5533"; thence two miles to peak "6700"; thence one and one-half miles to peak "6040"; thence five miles to latitude 57° 20' and longitude 132° 45'. But the British line runs transversely across this mountain mass, and then in three miles reaches peak j' 4072 ". In another three miles it descends to about sea level and crosses a valley draining into Farragut Bay. In another mile and a half it ascends to peak " 4500 to 4750"; thence in four miles to peak "4052". In three miles it goes down to sea level, crosses Port Houghton, which is here about a mile wide, and three miles further reaches peak " 4275". Three miles west of peak "4275" is peak "5160". That is a peak eight or nine hundred feet higher than "4275". These peaks together form part of a mountain mass which lies on the north side of Port Houghton and which sweeps around towards the head of Endicott Arm. Thus, it will be noticed, that there are two peaks forming a part of the mountain mass, and that the British have chosen for the line the lower of these two peaks. The British line, disregarding the higher peak, continues to the north four miles to a point one and one-half miles east of peak "4700", and crosses the slope of this peak at an altitude of between thirty-five hundred and thirty-seven hundred and fifty feet. From this slope it runs four miles to peak "3210", having midway that distance descended to about sea level. From here in one mile it reaches peak4 4 3250 to peak 3500", and from thence proceeds three miles to peak "3750 to 4000". From this point it descends two miles to Windham Bay, where it crosses half a mile of water. In two miles more it reaches peak "4290", a peak on the peninsula between Windham Bay and Holkham Bay. From "4290", in three miles, it reaches "3110". In about four miles more it descends to sea level at the mouth of Holkham Bay, (which is here five miles wide), crossing Harbor Island which lies in the middle of the entrance. On the north of the entrance it strikes the shore of the narrow peninsula formed by Holkham Bay and Port Snettisham. For nine miles and a half it runs along this peninsula before it reaches peak "3100", and from this descends in two miles and a half to the sea shore of Port Snettisham. For one and a half miles it runs across the water and ascends again in two miles to peak "3748". From that peak it runs to peak ?;3588", but between the two again descends to sea level crossing Limestone Inlet, a little arm of the sea, near its head. ALASKAN BOUNDARY TRIBUNAL. J§ From Thomas Bay to Port Snettisham, ifc runs along mountains which lie almost under the shadow of mountains to the eastward, which are half again as high. From peak "4881" below Thomas Bay to peak "3588", above Limestone Inlet, it descends to; sea level, or nearly so, eight times, and the total number of peaks used between these two is but thirteen. Between Holkham Bay and peak "3588" the British line is nowhere as much as two miles from the sea, as represented by the Great Stephens Passage. Starting at peak "3588", the line runs six miles toward peak "3475", which it reaches after going down to sea level within about two miles of the last named peak. Descending about three thousand feet in the next mile, it ascends to an altitude of a little over three thousand feet, and crosses Taku Inlet to "3441", distant five miles, two miles of this distance being along the surface of the sea. Without regarding the higher mountains to the northward, the line there runs from peak "3441" to "3300" one mile, then one and one- half miles to "4175". Then making an angle of 118° it runs one and one-half miles to peak "3630"; thence for the same distance to peak "4250 to 4500", and thence two and one-half miles to peak "4071". From peak "4071" it runs six miles to peak "3500" to "3750". Two miles before reaching the last named slope, it descends about three thousand feet into the valley of a glacial stream to nearly sea level. From peak "3500" to "3750" it descends in two miles, about three thousand feet, to the foot of the Mendenhall Glacier, which it crosses in two miles more. Then it ascends to peak "4322" in another mile. Disregarding the higher peaks which form the water-shed between Taku Inlet and Lynn Canal, the line runs from peak "4322" to " 4750", distant two and one-half miles, and thence to peak "5655' in two miles. Here it descends about two thousand feet to the Herbert Glacier, which it crosses and from which it ascends to peak "6010" distant three and one-half miles. Thence it proceeds one and one-half miles to peak "5124", and thence three miles to peak "5500-5750", after having crossed the slopes of Eagle Glacier. From here it proceeds three miles to peak "5799", where it turns at an angle of 122 degrees running two'miles to "5790". At peak " 5790" it again changes its course, at about an angle of 126 degrees, running three and one-half miles to "5986", thence one mile to "5210", where it bends abruptly about (95 degrees) and reaches the head of Berners Bay within two miles, crossing the waters of that bay for three miles. • Thence it proceeds one and one-half miles across a little peninsula above Point St. Mary, and then crosses Lynn Canal, which is here about five and one-half miles wide, ascending to peak "3452", which is south of Endicott River. From this peak it runs to peak "4050" distant five miles, thence to "4760" distant four miles, thence to "4200", five miles, thence to "4140", six miles, and thence two and one-half miles to the sea level on the shore of Glacier Bay. In crossing the peninsula between Glacier Bay and Lynn Canal, it descends to nearly sea level in crossing the stream flowing into Hqdson Bay Inlet and before reaching "4140" it descends again to nearly sea level. In order to reach the shores of Glacier Bay, it necessarily leaves the mountains on the eastern shore of Lynn Canal, crosses the surface of Berners Bay and Lynn Canal and then crosses transversly the mountain masses lying between Lynn Canal and Glacier Bay, two of which X APPENDIX TO ARGUMENT OF UNITED STATES. 9 can be traced to Mt. Wright " 6300", which is about eleven and one- half miles north of where the line crosses the 136th meridian in Glacier Bay. What is especially noticeable and objectionable in this line from Berners Bay to Glacier Bay is: I. Whereas the line up to this point has been running northwest, or as Mr. King said, the ruling N. N. W., it makes at the head of Berners Bay, almost a right angle, and runs west by south, a complete change from the northwesterly direction so far followed. Why is this complete change made ? There is no chain of mountains here, no crest of the mountains running to the one side of Lynn Canal and reaching up on the other side of Lynn Canal to invite a line to be drawn from one side to the other. There is no indication of any chain of mountains from the head of Berners Bay to Glacier Bay. Then why should the British have directly changed the direction of the line and drawn it South by West across Lynn Canal, unless, indeed, it was so as to give to the British the head of Lynn Canal ? Between Lynn Canal and Glacier Bay, there are mountain masses which have a certain parallelism to Lynn Canal, running North and South; the British line, instead of running along these mountain masses North and South, cuts then transversely, directly contrary to the words of the Treaty, which said " the line was to follow the crest of the mountains." From the shore of Glacier Bay, two and one-half miles west of peak "4140", the line follows the sea across Glacier Bay for about nine miles, rises for three and one-half miles to "3030", and then in one and one-half miles drops into a valley to about sea level, keeping at sea level for about two and one-half miles. In the next two miles it crosses transversely a small mountain mass, descends again into a low valley a mile wide, and then ascends to peak "3700" in three- quarters of a mile. From peak " 3700 " to " 3650 " it crosses the sloping end of a glacier, lying midway between these peaks, which are four miles apart, and proceeds thence two and one-half miles to '!" 4275 ". The greater part of this distance is across Brady Glacier in about latitude 58° 26', wnich slopes from about latitude 58° 43' at the North point to about 58° 21' at the South, where it discharges into the ocean at the head of Taylor Bay. Here again the line crosses transversely two glaciers, Brady Glacier and a branch of the same, without seeking at all to run along the top of the glacier. On the contrary, it runs right through the middle of the glacier, from East to West. All these glaciers which this line crosses, and there are a number of them, necessarily imply that they are formed by and are fed from water from some higher point, and yet the line disregards the higher point and seeks the lower point and cuts the glacier through from East to West at right angles to its trend. From peak "4275", four and one-half miles it runs to "Mt. La Perouse 10758", thence three and one-half miles to "Mt. Dagelet 10 ALASKAN BOUNDARY TRIBUNAL. 9550", thence four miles to "Mt. Crillon 12,750", and thence twelve miles to "Mt. Lituya 11,745", culminating in "Mt. Fairweather 15,287", in the next seven miles. From peak "4275 " to Mt. Fairweather it is drawn along the summits which mark the axis of the Fairweather range, whose trend is from Fairweather to Cape Spencer. From Mt. Fairweather, it abandons the divide, leaving two summits "12,430" and "11,800", only three and one-half and four miles to the North and East, descends the slope of the Fairweather range, crosses the unsurveyed area immediately East of the mouth of Dry Bay, at an unknown elevation and in twenty-two and one-half miles reaches peak "5350". From "5350" it descends 2,000 feet or more, in two and one-half miles, crosses the slope at a glacier and at a distance of six and one- half miles from "5350", crosses the Alsek River to a peak "3700", three miles beyond. This peak appears to be about three miles from the head of Dry Bay. From peak "3700", it runs four miles to "3415", thence two and one-half miles to "3500", thence two miles to "4050", "where it turns at an angle of about 80 degrees, crossing the slope of a glacier to "4500" distance one and one-half miles, thence to peak "3500" four miles, and thence to peak "4130" distant three miles. The line runs from peak'' 4130 " to " 3510 " distant six miles across the slope of a glacier. The last mentioned peak is about nine miles from the ocean. The divide in this locality between the Alsek River and the ocean appears to be about six miles northeasterly from the British line at this point. From "3510" it runs to " 3300", eight miles, four miles of which are across Yakutat Glacier near its foot. Thence in thirteen miles it goes to *" 5600 " and crosses the slopes of many glaciers in this region. Thence it runs two and one-half miles to Mt. Unana, over 6500 feet high, and drops down from this mountain, in three miles, to Disenchantment Bay, which is here about one and one-half miles wide. In so dropping it changes in a marked manner its bearing. Whereas the line was running rather North by West, it changes to just about due West, making almost a right angle. What is there in the treaty which justifies this extraordinary and unusual departure? Disenchantment Bay at this place is about one and one-half miles wide. From here the line runs from "Mt. Tebenkof 4280" feet, thence to Mt. Hcndrickson six miles 4550 feet, thence to a peak three miles distant " 4000 to 4250", thence four miles to Disenchantment Bay, which it again crosses, this time near its mouth where it is two and one-fourth miles wide; and thence to a peak " 5000 to 5250", a total distance of about nine miles. From Mt. Tebenkof to the second crossing of Disenchantment Bay, the mountains rise sheer from the ocean and form a peninsula which is quite detached from the St. Elias Alps. The line from the crossing of the Alsek River to this point, has not followed the summit of the mountains, for to the eastward of Disenchantment Bay lie very much higher mountains, whose peaks as far as surveyed, reach an altitude of over 8,000 feet and appear to form the watershed between the Alsek River and Disenchantment Bay. From peak "5250", the British line runs three miles to "6350", thence two and one-half miles to "6220", dropping 4,000 feet in one X APPENDIX TO ARGUMENT OF UNITED STATES. and one-half miles to one of the branches of the Lucia Glacier about a mile wide, thence rising to peak " 5500 to 5750" in three miles more. This peak is on the slope of a spur from Mt. Cook, which is over 13,000 feet high, seven miles north of it. From peak "5500-5750", it runs three miles across the Hayden Glacier to "5600", thence eight miles to "8350". About six miles of this distance is across the Marvine and Pinnacle Pass Glaciers. From peak' 18350 " it runs three and one-half miles to -' 5600 ", thence four miles across the Seward Glacier to "5960", and thence seven miles to the "summit of the mountain ridge northwest of Agassiz Glacier". Thence it proceeds seven miles to "11,565", a "mountain peak one- half mile East of the 141st meridian", which is one of the spurs of Mt. St. Elias which has an elevation of 18,000 feet, and distant three miles from it. The last of these peaks "11,565" is the most remarkable selection, because within three miles of it and well within ten marine leagues of the coast (see B. C. App. page 285), stands Mt. St. Elias over 18,000 feet high, which has been the landmark of the explorers and surveyors from the earliest date. Yet Great Britain is undertaking, by drawing this line, to show that this peak Mt. St. Elias is not a part of the crest which the Treaty intended. Beginning with peak "5500" the last thirty miles of this British line consists of seventeen miles of glacial ice lying at such an inclination, with its source high up in the passes of the St. Elias Alps, and its mouth at the ocean, as to conform in no way to the Treaty. In addition to this minute description of the line particular attention is called to the following: I. From the point on the 56th Parallel to Mt. St. Elias, the line is about 440 miles long, and in this distance it crosses fourteen times, over thirteen different arms of the sea, and of the total distance, thirty- four miles is at the water level. II. For over one hundred miles, in over forty insersecting transverse valleys, it lies less than 1000 feet hierh. III. From Holkham Bay it runs to a point on the continent, opposite the western end of Gastineau Channel. Between those two points the distance is 46 miles and for this distance this line would leave the lisiere a maximum width of about three miles. The second arm of the sea intersected by the line is Le Conte Bay, (where the bay is less than one mile wide), on the line between the peak "5700" and peak "3600". The former on the south side is one of the highest points on an elongated mountain mass, whose axis lies at right angles to the trend of the coast and parallel with Le Conte Bay and Glacier. One and one-third miles along this axis is another peak or the same height, and six miles further in the same line is one ! 12 ALASKAN BOUNDARY TRIBUNAL. 6080 feet in height. In following these summits the line would not descend below 2500 feet, but the proposed line appears not to note that the elongated mountain masses, without exception, lie for the next twenty miles transverse to the line of the coast and all culminating in the great ice-covered plateau, which feeds the Great Glacier of the Stikine, the Le Conte and the Patterson glaciers. The line, instead of maintaining a height of 2500 feet, descends to sea level. The fourth point, Port Houghton, where the line seeks salt water, is in latitude 57° 20'. The inlet is here about a mile in width and is crossed by the line connecting peak "4052" on the south side, with peak "4275" on the north. Peak "4052" and peak "4500- 4750 " which are on the south of this inlet, are four miles apart and are two of five peaks which rise over 4000 feet out of a mountain mass, about nine miles square, bounded by Port Houghton on the north and Faragut Bay and a stream emptying into it on the south and east. The two highest peaks of this square mountain mass were left to the east of the line and two are selected which happen to be in range with the peak i4 4275 " on the north of said inlet. This "4275" is in the axis of a mountain mass which follows closely the shore of Port Houghton and its principal tributaries. Directly east of the said peak and three miles away is peak " 5152 ". This peak, about 900 feet higher than either peak followed by the line and the highest one in the immediate vicinity, was on the same transverse mountain mass and could be crossed by the line with less disregard of the topography than the course adopted, for between this proposed peak "5152" and the next peak north, the line would descend only to a point below 2,000 feet instead of descending as it does, to a point below 1,000 feet. £ IV. .§. ;. ': Peak "4290" and peak "3110", three miles apart, seem to have been chosen for the line as defining the summit of the peninsula between Wyndham Bay and Holkham Bay. In making such a selection one must keep faced westward entirely, for if one would look inland, and just across Endicott Arm, he would see summits tower from 1,000 to 2,000 feet above the selected peaks. V. In crossing the entrance of Holkham Bay, the line for the sixth time finds an expanse of sea. It is five miles in width on the N. N. W. line between peak "3110" just described, and "3100," the only peak selected on the peninsula between Holkham Bay and Port Snettisham. This whole peninsula can scarcely be called a mountain mass, for it barely reaches 3,000 feet at two points. And yet in its passage, the British line, from peak "3110" to peak "3100," eighteen and one-half miles is entirely below 3,000 feet, and is for four and one-half miles along the sea at Holkham Bay. It cuts an island (Harbor Island in Holkham Bay) in two, and is for seven miles below 1,000 feet, all in the face of the fact that within ten miles of this line inland there are at least five peaks over 5,000 feet in height, which could with equal show of reason have been strung out into a line most certainly better complying with the terms of the Treat}7. .APPENDIX TO ARGUMENT UNITED STATES. 13 VI. At Port Snettisham the line for the seventh time crosses an arm of the sea which is one and one-half miles wide. The mountains on either side which define the direction of the crossing are peak "3100," already described on the south side, and peak " 3748," a lonely summit between Port Snettisham and Limestone Inlet. This mountain mass, rectangular in shape, has its elongation at right angles to the line. In the effort to keep the line close to the coast, the high peaks which are in sight from peak "3100" in all directions are ignored, peak "3748" is selected, and the line crosses transversely this mountain to plunge again to sea level. VII. Limestone Inlet, the eighth arm of the sea, is crossed near its head on the line between " 3748 " described above, and peak "3588 ". This last peak is on the western or eastward end of a mountain mass along which, in less than two miles, stands peak "3775". This ridge also has no sign of elongation in direction of the line, and nothing out its close proximity to the coast can be a cause for its selection in preference to " 3775 " just northeast of it. VIIL The ninth crossing of the sea occurs in latitude 58° 14' where the line in going from peak "3000-3250" to peak "3441", passes for two miles along Taku Inlet. This peak "3000-3250," a mere spur, related as it is to the neighboring mountain masses, is a remarkable selection. To reach it from the next point of the line peak "3485", it was necessary to leave a transverse mountain mass, descend to below 500 feet and ascend abruptly. In fact, all the mountain masses between Port Snettisham and Taku Inlet have been selected at almost right angles to the line, and yet the line, with the greatest of ease, but in entire disregard of the topographical facts, jumps from one ridge to the next, the»intervening space descending to about sea level. In crossing Taku Inlet, the selection of peak "3441" seems reason able, but the peak selected on the opposite side would seem to be the very last choice. Directly across the inlet from "3441" stand peaks "4625 " and "4300 " towering over 1000 feet above the spur which was selected. IX. Where the line at the crossing of Lynn Canal takes an angle of 95 degrees, it does not follow a general line of the coast, which Mr. King speaks of as "the ruling N. N. W. of the coast", because it runs nearly West by South. In running West by South from peak •' 5210", East of Lynn Canal, until it crosses Glacier Bay, it parallels ley Strait, which Mr. King says "cuts in ... at right angles to the valley of Glacier Bay and the general trend of the mountains."' S. Doc. 162, 58-2, vol 5 -15 14 ALASKAN BOUNDARY TRIBUNAL. If the crossing of Lynn Canal be applied to maps which were before the negotiators at latitude 58° 43', it appears almost exactly fifty miles from the mountains which were intended by the negotiators. EXTRACTS FROM VANCOUVER'S NARRATIVE, SHOWING HOW THE MOUNTAINS APPEARED AS SEEN FROM HIS VESSELS AND BOATS. (Edition of 1801, in six volumes.) (Volume 4.) July 21. Between Dundas Island and mainland. Page 117: " The more interior country was composed of a lofty range of mountains covered with perpetual snow." July 23. In Observatory Inlet. Page 125: ""The interior country was, nowever, still composed of lofty, barren, and snowy mountains." July 24- In Observatory Inlet. Page 130: "The land of the shores which we had thus traced, was, comparatively speaking, low, yet the interior country rose suddenly, and terminated our view by a range of high barren mountains, mostly covered with snow." July 28. In upper part Portland Channel. Page 138: "The shores of this inlet were nearly straight, and in general little more than a mile asunder, composed mostly of high rocky cliffs, covered with pine trees to a considerable height; but the more interior country was a compact body of high barren mountains covered with snow." August 7. In Canal de Revilla Gigedo. Page 155: "The opposite, or western shore, particularly to the south of the Canal de Revilla Gigedo, seemed to be much broken. The shores in most directions wTere lowT, or of a moderate height; but the more interior country was composed of mountains covered with snow, not only in the eastern quarter, but to the northward and westward." August 8. East of Canal de Revilla Gigedo. Page 157: "The surrounding country consisted of a huge mass of steep, barren, rocky mountains, destitute of soil; whose summits were perpetually covered With snow. Excepting at the head of the arm where the land was low,^hese mountains rose in nearly perpendicular cliffs from the water's edge, producing only a few scattered dwarf trees." Page 160: Engraving of "*The New Eddystone" in Behm's Canal, showing snow- Covered mountains in background. August 9. East of "Eddystone Rock," Bhem Canal. Page 161: "The examination of this insignificant branch, winding between an immense body of high, barren, snowy mountains, occupied the remainder of the day." August 10. General observation. Page 162: " Under these considerations, and wTell knowing from experience that all the small branches leading to the eastward either terminate at the foot of the lofty range of rugged mountains, or else form into islands parts of the shores of these inlets, I determined to decline their further examination," etc. August 20. Moira's Sound. Page 207: "The land in the neighborhood of Moira's sound is highland rather steep to the sea; but as we advanced beyond Wedge island the straight and compact shores were more moderately elevated, and the interior country was composed of lofty, though uneven mountains, producing an almost impenetrable forest of pine trees from the water side nearly to their summits, but by no means so high as those we had been.accustomed to see in the more inland countries." APPENDIX TO ARGUMENT OF UNITED STATES. 15 September 29. Branch between Point Alexander and Point Hood. Page 241: "Both shores were nearly straight and compact, and were about half a mile asunder as far as to this extent; but here they became much broken, and the supposed continental shore, extending N. 20 E., formed a narrow arm about a league and a hah6 long, which was terminated in latitude 56° 47/, longitude. 227° 2V, by shoal water, at the edge of a low plain producing very long grass, behind which rose lofty barren mountains covered with snow." September 7. Between Duke of York's island and Bushy islands. Page 251: "The clearness of the weather gave us a very perfect view of. the adjacent shores bounding the horizon in every direction. To the westward the distant land was moderately elevated and appeared to be similar to that we had generally found along the sea coast; of an uneven surface and very much divided by water." September 16. Affleck's Channel. Page 265: "The sides of this channel which, after Admiral Affleck, I named Affleck's Channel, were mountainous,*but were not so steep as the shores of the more interior country. Its termination was formed by low, flat land covered with trees that seemed to extend without interruption as far as could be discerned in a NNW. direction, through which flat country several small streams of fresh water flowed into the channel." September 16. Same neighborhood. Page 266: "The northernmost and southernmost (of these bays) have several rocks and islets about them, and the neighboring country is moderately elevated, of an uneven surface, and is covered with dwarf pine and other trees." September 20. Northwest extremity of Prince of Wales Archipelago. Page 276: "This (Mount Calder) is conspicuous in many points of view, not from its superior elevation, when compared with the mountains I have had occasion to notice on the continent, but from its height above the rest of the country in its immediate vicinity, and from its being visible in various directions at a great distance." Vancouver's references to mountains and mountain ranges seen along the coast in his voyage in the year 1794. From Mount St. Elias to Cross Sound. (Volume 5.) Page 348. Engraving of Mount St. Elias and general view of the coast at that point. Page 350: "Eastward from the steep cliffs that terminate this bay, and from whence the ice descends into the sea, the coast is again composed of a spacious margin of low land, rising with a gradual and uniform ascent to the foot of the still connected chain of lofty mountains, whose summits are but the base from whence Mount St. Elias towers majestically conspicuous in regions of perpetual frost." Page 351: "A point which I named Point Manby, and which I took to be the west point of what in Mr. Dixon's chart is called Admiralty Bay, bore N. 39 E., distant seven leagues; beyond which, high distant snowy mountains were seen stretching to N. 80 E." Page 353: "We bore away along the coast, which from port Mulgrave is composed of a low border, well wooded, extending from the base of the mountains into the sea." Page 356: "We had now an extensive view of the seacoast, stretching by compass S. 77 W. to N. 86 E., within which limits Mount St. Elias and Mount Fairweather /ose magnificently conspicuous from the still-continued range of lofty snow mountains. * * * In this situation Mount St. Elias, being the westernmost land in sight, bore by compass N. 73 W.; Mount Fairweather was at this time obscured by clouds." Page 357: "In consequence of which he (Captain Cook) was prevented noticing the extensive border of low land that stretches from the foot of the vast range of lofty mountains and forms the seashore. The irregularity of the base of these mountains, which retire in some places to a considerable distance, and especially in the part now alluded to, would, on a more remote view than we had taken, lead the most cautious observer to consider the appearances in the coast as indicating deep bays or openings likely to afford tolerable and even good shelter." Pages 358-359: "Where this low country was not intersected by the inland waters, it was tolerably well wooded; but as we advanced to the eastward this border became less extensive, was more elevated, and much less covered with wood, and for a few miles totally destitute of either wood or verdure, and, like that part 16 ALASKAN BOUNDARY TRIBUNAL. before noticed between Point Riou and Point Manby, was composed of naked, rugged fragments of rocks of various magnitudes, lying, as it were, m the front of Mount Fairweather, like those on the shore before Mount St. Elias. "The base of this lofty range of mountains now gradually approached the seaside, and to the southward of Cape Fairweather it may be said to be washed by the ocean; the interruption in the summit of these very elevated mountains mentioned by Captain Cook was likewise conspicuously evident to us as we sailed along the coast this day, and looked like a plain composed of a solid mass of ice or frozen snow, inclining gradually towards the low border, which, from the smoothness, uniformity, and clean appearance of its surface, conveyed the idea of extensive waters having once existed beyond the then limits of our view, which had passed over this depressed part of the mountains, until their progress had been stopped by the severity of the climate, and that by the accumulation of succeeding snow freezing on this body of ice a barrier had become formed that had prevented such waters from flowing into the sea." Page 360-361: "We were enabled to keep within five miles of the coast, which was now again well wooded, and from Cape Fairweather took a direction S. 43 E.; it m steep and intire, with the exception of one small opening that had the appearance of being likely to afford shelter for shipping; but it is completely bounded at a little distance by steep, compact mountains, which are a continuation of the same undivided range stretching to the eastward," Page 372: "The whole, apparently, was well wooded, and in two places it had the appearance of having small inlets at the back of the shoal; but the close-connected range of lofty, snowy mountains, running nearly parallel to the coast at no great distance, plainly showed the limits of their extent, beside which there was no channel through the shoal by which they could have been approached." Page 385: "The shores were composed of a continuation of the low border, extending from the foot of the mountains to the seaside; they were nearly straight and compact and were bounded by ice or frozen snow, which also greatly abounded in the above opening, which obtained the name of Digges's Sound." Page 389: "Digges's Sound was the only place in the bay that presented the least prospect of any interior navigation, and this was necessarily very limited, by the close connected range of lofty snowy mountains that stretched along the coast at no great distance from the seaside." Cross Sound and I/ynn Canal. Page 421: "To the north and east of this point (Point Dundas) the shores of the continent form two large open bays, which were terminated by compact solid mountains of ice, rising perpendicularly from the water's edge, and bounded to the north by a continuation of the united lofty frozen mountains that extend eastward from Mount Fairweather." Page 424: "Both sides of this arm (Lynn Canal) were bounded by lofty stupendous mountains, covered with perpetual ice and snow, whilst the shores in this neighborhood appeared to be composed of cliffs of very fine slate, interspersed with beaches of excellent paving stone.'' Page 426: "Along the edge of this shoal the boats passed from side to side in six feet water, and beyond it the head of the arm extended about half a league, where a small opening in the land was seen, about the fourth of a mile wide, leading to the northwestward, from whence a rapid stream of fresh water rushed over the shoal; but this, to all appearance, was bounded at no great distance by a continuation of the same lofty ridge of snowy mountains so repeatedly mentioned as strefbhing eastwardly from Mount Fairweather, and which, in every point of view they had hitherto been seen, appeared to be a firm and close-connected range of stupendous mountains, for ever doomed to support a burthen of undissolving ice and snow." Page 427: "It may reasonably be presumed that this stream is alone indebted for its existence to the dissolution of the snow and ice in its vicinity at this season of the year; as it seemed to be too inconsiderable, and the adjacent mountains appeared to be too compact to admit of its deriving its source from any other cause." * * *■ ■* * * * ' " But our party having a more important object to pursue than that of receiving new visitors, declined the proposed civility, and returned down the arm, along the eastern shore, which was low, indented into small bays and coves, and appeared to be a border that extended from the base of the mountains that lie behind it, and which took a direction S. 40 E., 4£ leagues to a point that obtained the name of Point Seduction." Page 428: "This branch, after winding in a westerly direction about three miles further, terminated this extensive arm in its northwesterly direction by low land APPENDIX TO ARGUMENT OF UNITED STATES. 17 formed immediately at the foot of high stupendous mountains, broken into deep gullies, and loaded with perpetual ice and snow." Page 429: "On this occasion it may not be improper to remark that the upper part of this arm, which, after the place of my nativity, the town of Lynn, in Norfolk, obtained the name of Lynn Channel, approaches nearer to those interior waters of the continent which are said to be known to the traders and travelers from the opposite side of America than we had found the waters of the North Pacific penetrate in any former instance. This approximation is towards the southwest side of the Arathapescow Lake, as laid down in Captain Cook's chart, from which its distance is about three hundred and twenty geographical miles; but from the close connection and continuation of the lofty snowy barrier, so frequently before adverted to, trending southeastward and nearly parallel to the direction of the continental shore, little probability can remain of there being any navigable communication even for canoes between such waters and the North Pacific Ocean, without the interruption of falls, cataracts, and various other impediments." Volume 6. Below Lynn Canal. In Stephens's Passage. Page 20: "The opposite or northeast side of this northern branch is composed of a compact range of stupendous mountains, chiefly barren, and covered with ice and snow." Admiralty Inlet. Page 24: "Whilst the shores of the continent, bounded by a continuation of those lofty frozen mountains, which extend southeastward from Mount Fairweather, rose abruptly from the water side, and were covered with perpetual snow, whilst their sides were broken into deep ravines or vallies, filled with immense mountains of ice." Off Point Salisbury. Pages 26, 27: "From the shores of this basin a compact body of ice extended some distance nearly all round; and the adjacent region was composed of a close connected continuation of the lofty range of frozen mountains, whose sides, almost perpendicular, were formed entirely of rock, excepting close to the water side, where a few scattered dwarf pine trees found sufficient soil to vegetate in; about these the mountains were wrapped in perpetual frost and snow. From the rugged gullies in their sides were projected immense bodies of ice, that reached perpendicularly to the surface of the water in the basin, which admitted of no landing place for the boats, but exhibited as dreary and inhospitable an aspect as the imagination can possibly suggest. * * * The examination of this basin, &c. engaged the party until near noon of the 11th, when they returned along the eastern shore, which is a continuation of the same range of lofty mountains rising abruptly from the water side; by dark they reached the island mentioned on the 7th, as lying in the middle of Stephens's passage." Off Point Walpole. Page 30: "It is bounded by lofty mountains, and from their base extends a small border of low land forming the shores of the harbour, which I called Port Houghton." In Frederick Sound. Page 31: "When the weather became fair and clear, and shewed their situation to be before a small extent of low, flat land, lying immediately before the lofty mountains, which here rose abruptly to a prodigious height immediately behind the border. A few miles to the south of this margin the mountains extended to the water side, where a part of them presented an uncommonly awful appearance, rising with an inclination towards the water to a vast height, loaded with an immense quantity of ice and snow, and overhanging their base, which seemed to be insuflicient to bear the ponderous fabric it sustained, and rendered the view of the passage beneath it horribly magnificent." Page 34: "Mr. Whidbey observes that in no one instance during his researches, either in the several branches of Prince Williams Sound, in those extending from Cross Sound, or in the course of his present excursion, did he find any immense bodies of ice on the islands; all those which he had seen on shore were in the gullies or valleys of the connected chain of lofty mountains so frequently mentioned and which chiefly constituted the continental shore from Cooks Inlet to this station, though in difrerent places these mountains are at different distances from the seaside. 18 ALASKAN BOUNDARY TRIBUNAL. He likewise observes that all the islands, or groups of islands, were land of a moderate height when compared with the stupendous mountains that compose the conitfe; nental boundary, and were still seen to continue in a southeastern direction from this shallow passage, whilst the land to the westward assumed a more moderate height, was free from snow, and produced a forest of lofty pine trees. These observations more particularly applying to the former than to the subsequent part of this survey, I have, for that reason, thought proper to introduce them in this place, and shall now resume the subject of Mr. Whidbey's excursion." In Frederick Sound. Page 45: "To the eastward were seen high, distant mountains covered with snow, but the land in their neighbourhood was, comparatively speaking, low, of a very uneven surface, much divided by water, and covered with wood." Off Point Macartney. Page 52: "Mr. Johnstone stated that the part of the coast that had claimed his attention during his last excursion is a peninsula, connected with the more eastern land by the last-mentioned narrow isthmus, and that it is by no means so high or mountainous as the land composing the adjacent countries on the opposite or northeastern side of the sound, which at no great distance consisted of very lofty, rugged, dreary, barren mountains, covered with ice and snow." MAPS AND CHARTS EXISTING PRIOR TO THE TREATY OF 1825. From the cases made by the contestants it appears that the following maps and charts of the region in question were in existence when the treaty of Feb. 28, 1825, was signed. Map No. 1, American Appendix, by Arrowsmith, Jan. 1, 1795, Additions to.. 1796 Map No. 1, British Atlas. Vancouver General Map, N. W. Coast of America. 1798 Map No. 2, British Atlas & No. 4 American Atlas, "Portland Canal &c." Van-' couver 1798 Map No. 3, British Atlas & No. 5 American Atlas, Vancouver. !' Lynn Canal, &c."... 1798 Map No. 5, British Atlas, No. 6, American Atlas, Quartermaster-General's Russian Map 1802 Map No. 2, American Appendix, '' von Reichard," Weimar 1802 Map No. 3, American Appendix, Reichard, Weimar 1803 Map No. 7, British Atlas, Langsdorff's Map 1803-1805 Map No. 7, American Atlas, Walch's Map of North America, Augsburg 1807 Map No. 4, American Appendix, Cary's New Universal Atlas, London 1808 Map No. 5, American Appendix, Arrowsmith 1811 Map No. 6, American Appendix Weimar Charte von Nord-America 1814 Map No. 7, American Appendix Neele's General Atlas, London 1814 Map No. 8, American Appendix, Arrowsmith 1814 Map No. 9, American Appendix Thomson's New General Atlas, Edinburgh.. 1814 Map No. 10, American Appendix, Brum's Grand Atlas, Paris 1816 Map No. 8, American Atlas, Pinkerton's Modern Atlas "after Arrowsmith". 1818 Map No. 9, America Atlas, Brue's Map of North America 1815 to 1819 Map No. 11, American Appendix, Arrowsmith 1819 Map No. 12, American Appendix, Brue's Atlas 1819 Map No. 13, American Appendix, New General Atlas, John Thompson, Edin- burg 1821 Map No. 8, British Atlas, Arrowsmith coloured 1822 No. 9 of British Atlas, Arrowsmith uncoloured up to 1822 No. 10 of American Atlas. Map of America by A. Arrowsmith, Hydrog- rapher to His Majesty, London addition to 1823 No. 10 of British Atlas and No. 14 American Appendix, Faden's Map 1823 No. 11 of British Atlas, Faden' s Map 1824 <*-:&m- BOUNDARY BETWEEN THE DOMINION OF CANADA I AND THE TERRITORY OF ALASKA. 1 PART II. ARGUMENT PRESENTED ON THE PART OP THE GOVERNMENT OF HIS BRITANNIC MAJESTY TO THE TRIBUNAL CONSTITUTED UNDER ARTICLE I OF THE CONVENTION SIGNED AT WASHINGTON, JANUARY 24, 1903, BETWEEN HIS BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA. ! rv [References are to pages of original.] Page. First Question, Point of Commencement 1 Second Question—What Channel is the Portland Channel? 1 British Contention 1 United States' Contention 1 Vancouver's Narrative 2 Maps used by Negotiators 6 Maps subsequent to the Treaty 7 Major Cameron's Report—Charge against Great Britain of suppressing Appendix favourable to the United States 10 Alternative suggestion by Great Britain 10 Third Question—Course of Boundary from point of commencement to entrance to Portland Channel 10 Text of Treaty 10 British View—Direct line 11 United States' Contention—Line due east from Cape Muzon 11 Clause of Treaty securing whole of Prince of Wales Island to Russia 12 54° 40' Contention—Alternative suggested in United States' Counter- Case 12 Treaty negotiations 13 Irrelevance of Argument based on Treaty of 1824 15 Facts subsequent to the Treaty 16 Fourth Question—Head of Portland Channel to 56th parallel 17 British Contention * 17,20 United States' Contentions— Contention put forward in Case of United States 17 Alternatives proposed in Counter-Case 17 Discontinuity involved in United States' proposals 18 Argument based on the word elle in the Treaty 19 Mr. Middleton's Report of conversation with Mr. S. Canning 21 .Intersection of Behm Canal by British line 21 Evidence of Maps as to accepted interpretation of the Treaty 23 Fifth Question—Was it an essential characteristic of the Isisi&re that it was not to be traversed by inlets? 24 Definition of " Coast," " Ocean," and " Sinuosities of the Coast" as used in the Treaty 24 Head of Tide-water—United States' definition of " Coast" 26 3 TABLE OF CONTENTS. Page. Fifth Question—Was it an essential characteristic of the Lisiere that it was not to be traversed by inlets?—Continued. Verbal questions raised in United States' Counter-Case 28,29 Grant of Fishery and Trading Rights in Interior Waters by Treaties of 1824 and 1825 28 Line claimed by United States 30 Question raised in Behring Sea Arbitration as to meaning of phrase I North-west Coast of America " 31 Negotiations preceding the Treaty of 1825 32 British Contention that the Boundary had never been located 41 United States' Contention that the subsequent action of the Parties to the Treaty had established a Boundary 41 Mountain Boundary ignored by the United States 42 Revision of Treaty outside powers of Tribunal of 1903 43 Evidence adduced, by United States in support of 10-marine league principle 44 Hudson's Bay Company lease of the Lisiere 45 Lynn Canal region Boundary question 47 Negotiations between 1871 and 1878 49 Mr. Bayard's despatch of November 1885 49 Earl Iddesleigh's repudiation of Boundary shown on Canadian Map supplied to Mr. Phelps 52 Preliminary Survey provided for by Congress in 1891 53 Dr. Dawson's views officially noted by United States at the time of Convention of 1892 53 Attitude of Great Britain and Canada before and after 1885—Acquiescence in United States' Claims alleged by United States 54 Dr. T. C. Mendenhall's official action 55 United States' Coast, and Geodetic Survey Report, 1891 57 Conference at Washington, 1892 - 57 Congressional Records, Speeches of Mr. Squire and Mr. Pitney 57 Lord Salisbury's despatch of the 19th July, 1898 58 United States' method of dealing with the action of the Parties to •the Treaty of 1825 59 Statements by Canadian public men referred to by United States 60 Sixth Question—Point from which to measure the width of the Lisi&re, should the Tribunal answer the Fifth Question in the negative, and should the mountains prove to be in places more than 10 marine leagues from the Coast 61 Answer suggested by Great Britain 62 Seventh Question—Mountains referred to as situated parallel to the Coast 63 British Contention that such mountains exist 64 Mountain Boundary discarded by United States 64 TABLE OF CONTENTS. Seventh Question—Mountains referred to as situated parallel to the Coast—Continued. Negotiations preceding Treaty of 1825 Inconsistency of United States' line with the terms of the Treaty of 1825 Area of Lisi&re claimed by United States Evidence adduced by United States of the recognition of a Mountain Boundary in Lynn Canal region Maps on which a Mountain Boundary is shown Maps published in support of United States' Case Vagueness and untrustworthiness of Maps drawn previous to any Survey j Actions constituting formal acknowledgments on part of both Powers that the location of the Boundary was still open—Treaty of 1892, &c British Contention Mr. King's Contour Maps " Range " of Mountains not required by the terms of the Treaty of 1825 Maps known to Negotiators of Treaty of 1825 Negotiations preceding Treaty of 1825 prove that the Negotiators did not assume the existence of a "range" or "chain" of Mountains Evidence presented by the United States as to the topographical results of the surveys made under the Convention of 1892 Page. 65 (O 81 85 Be BOUNDARY BETWEEN THE DOMINION OF CANADA AND THE TERRITORY OF ALASKA. ARGUMENT PRESENTED ON THE PART OF THE GOVERNMENT OF HIS RRITANNIC MAJESTY TO THE TRIBUNAL CONSTITUTED UNDER ARTICLE I OF THE CONVENTION SIGNED AT WASHINGTON ON THE 24TH DAY OF JANUARY, 1903, BETWEEN HIS BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA. FIRST QUESTION. " What is the Point of Commencement? " The two Governments are agreed on the answer to be given to this question. It is true that they do not arrive at this result by the same process of reasoning, but these different processes of reasoning bear only on Question Three, and wiH therefore be considered in the argument on that question. SECOND QUESTION. " What Channel is the Portland Channel? " Great Britain's contention is that it is the channel which Vancouver named Portland Canal, and which enters the ocean between Tongass Island and Kannaghunut Island, leaving Sitklan, Wales and Pearse Islands on the south and east, and extending northerly eighty-two miles to its head. Great Britain suggests an alternative answer, to which reference will be made later. The United States in its Case contends that Portland Channel passes from the north between Ramsden Point on the mainland and Pearse Island, and thence southward of said island and Wales Island, and enters Dixon Entrance between the island last mentioned and Compton Island (United States' Case, p. 104). In its Counter-Case, pp. 14 and 15, it changes its contention and sug- 8 ALASKAN BOUNDARY TRIBUNAL. gests two alternatives: either that Portland Channel is the whole estuary from mainland to mainland, in which Pearse, Wales, and other islands lie, and of which Observatory Inlet is a branch, or that the estuary as far inland as Point Ramsden is an unnamed arm of the sea from which diverge two branches—Portland Channel and Observatory Inlet. Of these different answers, it is the one suggested by Great Britain that must be given if Vancouver's narrative is to decide the question. Portland Channel was named by him, and in his narrative he clearly indicates that Portland Channel enters the ocean between Tongass and Kannaghunut Islands, and passes north of Wales and Pearse Islands. That is fully proved in the British Case, pp. 51-55. It is not denied bv the United States. The United States only con- tends that Vancouver's narrative is immaterial, because it is not shown that the negotiators knew of it, and because it appears, on the contrary, that Sir Charles Bagot was not familiar with it. To show that Sir Charles Bagot was not familiar with the narrative, two statements of his are quoted to the effect that several of the bays and inlets, between parallels of latitude 54° 45' and 56°, might communicate with the establishments of the Hudson's Bay Company, and that the head of Portland Channel might be the mouth of a river flowing through the country occupied by that Company. These statements, it is argued, show that Sir Charles Bagot had not read Vancouver's narrative, in which the latter states that the evidence of a navigable river flowing into the archipelago existing between 47° and 57° of north latitude is still wanting, and that the scrupulous exactness with which his survey of the continental shores has been made, within those limits, precludes the possibility, of such a river having been passed unnoticed by him as that described to be Rio de los Reyes (a very large river spoken of by a previous explorer). Vancouver had been commissioned to search for any considerable inlet of the sea, or even large river in order to find a communi- 3 cation between the Pacific and the Atlantic, or at least the Lake of the Woods. He reported that no such inlet or river existed, but he was only looking; for very large rivers, likely to extend far inland, and navigable all the way for big ships. With smaller rivers, navigable for the Hudson's Bay Company's small craft, he had nothing to do, and his report does not show that there are none. In fact, his examination was not sufficiently minute to ARGUMENT OF GREAT BRITAIN. 9 allow him to say so. (Vol. II, pp. 354 and 355.) He states that at the head of Portland Canal the water was nearly fresh for upwards of 20 miles. At the heads of other inlets, between 54° 45' and 56° of north latitude, he also reports having found fresh water. (Vol. II, pp. 340 and 354-356. British Case, Appendix, p. 143.) Those statements were of a nature to convey the impression that there might be rivers communicating with the Hudson's Bay establishments, which were not far inland. (United States' Case, Appendix, p. 162.) The statement that Portland Channel terminated in low marshy land could not destroy that impression, it rather confirmed it. As no other source can be given from which Sir Charles Bagot could have got the idea that there might be rivers flowing into Portland Canal and the other inlets, it follows that he had probably read the narrative, -and his statements above mentioned, far from proving that he was not familiar with it, rather prove the contrary. The fact that Vancouver in his narrative should give the east longitude, while the negotiators give the west does not support the United States' contention. As he was going around the world from west to east, he followed his course in his narrative in giving the longitudes. But his maps give the longitude both east and west. With them the conversion from east to west could be instantaneously made. At all events, in order to find the longitude of the few points to which reference is made by the negotiators, they must have gone to the maps where it could easily be obtained, and not to the narrative where it might not be given at all, and if given would be difficult to find. On this point it remains only to be said, in answer to the arguments contained in the American Counter-Case, p. 10, that the narrative could not help the negotiators to give more accurately the astronomical location of the southern boundarv than thev have done: 4 neither could they find, in Vancouver's narrative, landmarks which could have helped them to draw more clearly than they have done the boundary from the point of commencement to the head of Portland Canal. To show that the negotiators were familiar with Vancouver's narrative, there is, in addition to the statements of Sir Charles Bagot above referred to, a statement of M. de Poletica to the effect that Vancouver saw Russian establishments in the Bay of Kinai (United States' Case, Appendix, pp. 33), and a statement about the extent of 10 ALASKAN BOUNDARY TRIBUNAL. the Russian establishments contained in a confidential Memorandum delivered by Mr. Middleton to the Emperor of Russia, which shows that he had made a thorough search of Vancouver's text, and which reads as follows: | Vancouver learned, in 1794, from the Russians themselves upon the spot, that their most easterly establishment was then at Port Eches, in Hinchin Brook island {Tchatcha island of the Russians, and Magdalena of the Spaniards, in latitude 60° 25'), where they were established the preceding summer, and that the continent in the vicinity of that place was barren and uninhabited (United States' Case, Appendix, p. 61; Vancouver's Narrative, 1st edition, vol. Ill, p. 199). It seems reasonable to presume that the correctness of this statement of .Mr. Middleton on such an important point was verified by the Russian authorities. In fact, it seems unreasonable to suppose that, when it was so important for the Russian Government to prove to the satisfaction of the British and American Governments the number, importance, and situation of the Russian establishments, and when it was looking everywhere for information on that point, it would not have looked into a book of world-wide reputation, the most important and reliable one on the question, and one, the authority of which could not be contested by the British. That supposition appears still more unreasonable if we consider that the Russian Government, having the maps in its possession, must necessarily have, had also the narrative, as the maps were really published as part of the narrative. The title page and the preliminary notice of the French edition, as well as the list of plates at the beginning of the English edition, establish that fact. 5 At pp. 25* and following of the Appendix to the British Case there appears a Memorandum of Mr. Pelly, addressed to Mr. Canning, in answer to the statement contained in M. de Poletica's letter printed at p. 33 of the Appendix to the United States' Case, and this Memorandum shows that a careful examination of all the authorities on the question had been made. Especially at pp. 27 and 28 there are three references to Vancouver, which imply a very thorough study of his narrative. This Memorandum must have been used by the British negotiators, and its statements must, therefore, have been verified by both Russian and British authorities. So obvious did it appear to the United States' officials that the negotiators must have had Vancouver's narrative, that they never ARGUMENT OF GREAT BRITAIN. 11 T J thought of denying it in all the discussions that preceded the Treatj of 1903. Thev tried to meet the difficultv in another wav (British *7 V \J \ Case, pp. 54 and 55). This argument was not even raised by the United States in its Case where, under the terms of the Treaty of 1903, it should at least have been raised. It is mentioned for the first time only in the Counter-Case. It seems that both the Russian and British Governments having designated the channel which thev took as the boundarv bv the name o %7 %J %J which they knew had been given by Vancouver to a certain channel, it is that channel, as named bv Vancouver, that thev must have intended to take as the boundary. The British Case, at p. 56, quotes extracts from two documents which appear to be conclusive in favour of the British contention. The first is Baron Tuyll's suggestion to Count Nesselrode, so early as the 21st October, 1822, in which he savs:— 7 7 %f " Mais dans la supposition que Ton ne put reussir a etendre les front!§res de la Russie beaucoup plus vers le sud, il serait, ce semble, indispensable de les voir au moins fixees au 55e degre de latitude nord, ou, mieux encore, a la pointe me'ridionale de VArchipel du Prince de Gdlles et VOuservatory Inlet, situes a peu pr£s sous ce parallele. Tout voisinage plus rapproche des etablisse- ments Anglais ne pourrait manquer d'etre prejudiciable a celui de Novo- Archangelsk, qui se trouve sous les 57° 3'." This shows that Russia knew that Observatory Inlet entered the ocean at a point substantially as far south as the southernmost point of Prince of Wales Island, and thus that she read Van- 6 couver's book and charts in accordance with the present British contention. Russia, however, did not at any time propose Observatory Inlet. And it cannot be supposed that when, later on, after tedious negotiations, she proposed Portland Channel, she meant the entrance of Observatory Inlet. The United States does not attempt even to answer this argument. As to the second document, the argument based on it has apparently been misunderstood, because the answer is no answer at all. The argument is that by mentioning the paraUel 54° 45' as the point north of which Great Britain would lose the inlets and bays if Russia's proposal was accepted, Sir C. Bagot showed that he considered the boundary, the Portland Canal, to be on that parallel. S. Doc. 162, 58-2, vol 5 16 12 ALASKAN BOUNDARY TRIBUNAL. The maps will next require consideration. According to the United States' Counter-Case, the negotiators had before them Vancouver's Maps, the Faden Map of 1823 (British Atlas, No. 10), the Russian Map of 1802 (British Atlas, No. 5), and one or more of Arrowsmith's Maps (British Atlas, Nos. 8, 9, and 12; United States' Case, Atlas, Nos. 8 and 10). They may possibly have had also the Langdorff Map of 1803, but that map need not be taken into account as it can help neither side. Two other maps anterior to the Treaty are published in the United States' Case, Atlas, the French one of 1815 (No. 9), and a German one of 1807 (No. 7.) Even if there is no positive evidence that those two maps were before the negotiators, they ma,j help in ascertaining what was the general understanding at those times concerning Portland Canal and Observatory Inlet. Vancouver published a general map (British Atlas, No. 1) and a sectional map (British Atlas, No. 2). In the general map the channel north of Wales, Pearse, Sitklan, and Kannaghunut Islands is shown verjf clearly. It appears almost as important as the channel to the south of these islands. Between Ramsden Point and Pearse Island hardly any channel can be seen. No one looking at that map could believe that the channel began between Ramsden Point and Pearse Island. It obviously supports the British contention, and shows two generally separate channels coming down to the ocean. 7 In the section map, which is on a larger scale, the pass be tween Ramsden Point and Pearse Island is clearly shown. The channel north of Wales Island is also clearly shown. This section map taken alone shows either that the two inlets extended down to the ocean separated from each other by the islands, as Great Britain contends, or that both stopped before reaching Pearse Island. The position of the names cannot support the latter view for the reason given in the British Case, and such view is rendered improbable by the unlikelihood of an important arm of the sea, in which lay Pearse and Wales Islands, having been left unnamed by Vancouver. The other view to the effect that Portland Canal extended at its mouth in the ocean from mainland to mainland, and that Observatory Inlet was an 7 %) inlet diverging from Portland Canal, is not supported at all by either of those maps. In both of them the two inlets are clearly shown to be independent of each other. Both maps being bound up together in the Atlas must have been seen by the negotiators. X rJ^WW-jy^, ARGUMENT OF GREAT BRITAIN. 13 The Russian Map contains no names, but the two channels are shown clearly as distinct the one from the other down to the ocean. The north one appears almost as important as the south one. The impression that this map gives is exactly the same as the one created by Vancouver's general map. It, therefore, supports exclusively the British contention. The Faden Map has the words "Portland Channel' written on the north side of the channel, down to the ocean, and it shows a clear channel north of Pearse and Wales Islands. Much the same observation applies to the Arrowsmith maps, and it may be added that in some of them the type in which the words " Observatory Inlet" are written make it impossible to believe that that inlet is a branch of Portland Canal. The two other maps anterior to the Treaty, the German one of 1807 and the French one of 1815, also clearly support the British view. The first brings the words " Observatory Inlet" down to the ocean, the second brings both the words " Portland Canal" and " Observatory Inlet " down to the ocean. The facts subsequent to the Treaty will now be considered'. 8 Great Britain contends that on this question the terms of the Treaty being clear, no interpretation is required, and, therefore, the subsequent facts cannot be taken into account. However, as the United States strongly relies on those facts, they must be alluded to. The United States contends that all the maps with scarcely any exception are favourable to its view. Great Britain denies that statement. Many of the maps support neither view, and several support the British view. Special reference will be made here only to those particularly relied upon in the American Counter-Case, and to a few of those which support the British view. The Arrowsmith Map of 1833 (United States' Case, Atlas, No. 12), supports the United States' view in this sense, that the colouring gives Wales and Pearse Islands to Russia. But the way in which the names " Portland Channel § and I Observatory Inlet' are written shows as in several of the -previous Arrowsmith maps that Portland Channel extends down to the ocean, and that Observatory Inlet is not a dependency of Portland Channel. The designation of the geographical features, therefore, supports the British view, and should be preferred to the designation of the boundary-line which merely ALASKAN BOUNDARY TRIBUNAL. represents the personal opinion of the map-maker on the meaning of the Treaty of 1825, an opinion which surely cannot help this Tribunal to decide the question. The Map of 1857 produced before the Select Committee appointed to investigate the affairs of the Hudson's Bay Company, and the British Admiralty Map of 1866, do not support the American view. The United States' Coast Survey Map of 1867 obviously cannot be invoked against Great Britain, and only shows what the American contention was. The British Admiralty maps of 1868 do not show a survey of the channel north of Pearse and Wales Islands, because, being prepared only for the use of navagators, they dealt only with the southern entrance, which was the one used by ships. The insertion of the words " Portland Canal " on one of those maps between Point Ramsden and Pearse Island is the act of the draftsman, who, as shown by the hydrographer's note placed upon this map in 1886 had no authority to insert the same and cannot commit Great Britain to any 9 particular interpretation of the Treaty of 1825. As a matter of fact, the insertion of " Portland Canal " at that place on the map only shows that there were people in 1868 who named the entrance between Point Ramsden and Pearse Island Portland Canal, and from whom the draftsman had obtained the information. It does not in any way show, in the opinion of Great Britain, that in 1824 and 1825 the negotiators considered that to be the entrance to Portland Channel. Among the maps which support the British view may be mentioned Greenhow's Map (United States' Case, Atlas, No. 15), the official French Map of 1844 (United States' Case, Atlas No. 16), Hebert's Map (British Atlas, No. 13), and specially the Russian official Map of 1853, on which the words " Portland Canal " extend down along the channel north of Pearse Island (British Atlas, No. 20). Great Britain, however, contends that even if all the maps subsequent to the Treaty supported the American view, they nevertheless would be irrelevant. The United States attempts to show by those maps either that it was generally understood by.all map-makers that the boundary-line and Portland Channel passed south of Pearse and Wales Islands, or that Great Britain has herself interpreted the Treaty of 1825 in that sense. The first of these alternative contentions is not established. The ARGUMENT OF GREAT BRITAIN. 15 general understanding at the time of the Treaty would have to be shown; a large number of maps would have to be produced, all agreeing with each other and free from ambiguity. The maps produced were all published long after the Treaty I thev are not very numerous, they do not agree, and several of them are ambiguous. The second alternative contention is not established either. No map which marks the boundary-line, as contended by the United States, is shown to have been approved of by the British Government or by any one authorized to bind the Government on this question, and no map containing the United States' view on the question is shown to have been communicated to the British Government or its authorized Representative in such circumstances that the failure of Great Britain to protest could be held as implying that it accepted those views. 10 Great Britain's arguments, based on the construction of a fort on Tongass Island, and in answer to the United States' argument based on the construction of store-houses on Wales and Pearse Islands, are fully given in the British Case and Counter-Case. It is useless to repeat them here. The same remark applies to Great Britain's argument to the effect that the United States has admitted the British claim as to what is Portland Channel in their case. Great Britain is charged in the United States' Counter-Case with having printed Major Cameron's Report of 1878 with all the Appendices except one, which, it is stated, favours the United States' contention. The whole of the charge which is suggested is absolutely imfounded. Great Britain, as appears in a note on p. 182 of the British Appendix, did not print any of these Appendices at all, and for the reason that they have no bearing on the Case. The " Portland Inlet" of the Journal of the Royal Geographical Society, quoted by the United States, is clearly the upper part of Portland Canal. As stated at the beginning of the argument on this question, Great Britain suggests an alternative answer in case Vancouver's Portland oo Channel should be held not to be the negotiators' Portland Channel. That alternative contention is that if there is to be any departure from the nomenclature and descriptions of Vancouver as the controlling element of decision, then the line should be determined to run up Clarence Strait and Ernest Sound, or up Behm's Canal on one or other side of Revilla Gigedo. The argument on that point contained in the British Case need not be repeated. 16 ALASKAN BOUNDARY TRIBUNAL. THIRD QUESTION. The third question to be answered by the Tribunal is:— 1 What course should the line take from the point of commencement to the entrance to Portland Channel? " The words of the Treaty are:— "A partir du point le plus meridional de rile dite Prince of Wales, lequel point se trouve sous la parallele du 54° 40' de latitude nord, et entre le 131e et le 133e degre de longitude ouest (meridien de Greenwich), la dite ligne remontera au nord le long de la passe dite Portland Channel," &c. 11 The British view is that the line must be drawn following the most direct, and therefore the shortest course, leaving to Russia the whole of Prince of Wales Island in accordance with the special stipulation of the Treaty to that effect. The United States contends in its Case that the line should be drawn from Cape Muzon easterly until it intersects the centre of Portland Canal. In its Counter-Case it abandons that view, and suggest another one, to which reference wall be made later. As pointed out in the British Counter-Case, it is not very clear whether by this statement of its view the United States means that, wherever may be the entrance of Portland Canal, the line must follow the parallel of latitude oil which Cape Muzon, the admitted point of commencement, is situated, or that it must be drawn easterly only because the entrance to Portland Channel, as suggested by the United States, is practically on the same latitude as Cape Muzon. As the United States in its Case merely states its view without supporting it with arguments or explanations, its real meaning cannot be discovered. It will, however, be assumed that the first of those two meanings correctly represents the United States' view, as the second meaning would be an implied admission that the line must be drawn directly to the entrance to Portland Channel, wherever that entrance may be. The text of the Treaty conclusively supports the British view. The degrees of latitude and longitude are given in it only to identify the point of commencement. The Treaty, therefore, merely says that the line commencing at the southernmost point of Prince of Wales Island shall ascend to the north by Portland Channel. No special direction to be followed is given between the point of commencement and the entrance to Portland Channel. The most direct one must therefore ARGUMENT OF GREAT BRITAIN. 17 be chosen in accordance with the well established rule and with common sense, as otherwise there is nothing to show which of the many indirect courses that may be imagined should be selected. If the line was to go east, regardless of the situation of Portland Channel, the Treaty should* have said so. If the argument is that the fact of the line going due east shows the entrance to Portland Channel to be due east, it would be necessary, in order to main- 12 tain that argument, that the Treaty should expressly say that the line must go due east. It certainly should not say, as it does, that the line is to go northerly. The clause to the effect that the whole of Prince of Wales Island shall belong to Russia, renders the question still clearer if that is possible. That clause shows that the negotiators contemplated the possibility of the line crossing part of Prince of Wales Island. If the line starting from the southernmost point of that island is to go due east, that cannot happen; while if it is to take the most direct course towards the entrance of a channel which is further north, it may happen. That clause, therefore, shows not only that the line was not necessarily to go due east, but also that Portland Channel was supposed to enter the ocean further north. The conclusive nature of this argument has apparently struck the United States' Government, because in its Counter-Case it modifies its contention, obviously for the purpose of meeting the objection. In the Counter-Case the line is no more to be drawn easterly along */ O the parallel on which lies Cape Muzon, but parallel 54° 40' is to be absolutely the southern boundary. Consequently the line is to start from Cape Muzon, ascend to the north along the eastern coast of the Cape till it reaches parallel 54° 40', and then follow that parallel easterly to the coast of the continent. The view suggested in the Case is apparently abandoned, and the whole argument is directed towards establishing that the southern boundary is parallel 54° 40', regardless of where the southernmost point of Prince of Wales Island and the entrance to Portland Channel may be. The change is insignificant in its result, because the southernmost point of Prince of Wales Island happens to be almost on paraUel 54° 40'. But considered at the time of the Treaty it might have been important, as the exact situation of that point was unknown, and it is a change in the principle suggested as controUing the interpretation of the Treaty on that question. ■18 ALASKAN BOUNDARY TRIBUNAL. The text of the Treaty evidently does not support that view. Parallel 54° 40' is mentioned only to identify the point of commencement. Even if it could be considered as a boundary, it would be restricted by the terms of the Treaty to the distance between the 131st and 133rd degrees of longitude. This unreasonable geo- 13 detic boundary between the two degrees of longitude would, not help the American view, as Point Wales is outside of those degrees. If parallel 54° 40' had been intended as the southern boundary, it would have been very easy to say so, the designation of the boundary would have been less complicated, and it seems incredible that any man, especially the negotiators, with all the care they took in drafting this Treaty, would not have thought of expressing themselves clearly on that point. The Treaty being clear, it follows that it is unnecessary to go beyond it. However, the negotiations also support the British view. In the first place, such a line as that suggested in the United States' Counter-Case is unreasonable; why should the line instead of following the parallel on which the southernmost point of Prince of Wales Island is situated, if a parallel of latitude has to be followed, go from that point to parallel 54° 40', and then follow that parallel? The answer cannot be that the negotiators thought the southernmost point of Prince of Wales Island to be on that parallel. They could not believe that there was any certainty as to the situation of that point. Its latitude had never been determined, they did not know even A %7 which of the south capes was the southernmost, and they chose a degree in round figures only to give the approximate situation. If the negotiators had been convinced that parallel 54° 40' was exactly the parallel of the southernmost point of Prince of Wales Island, and had chosen it as the boundary in consequence, they would not have provided for the contingency of the line crossing the island since they could not believe that such a contingency could arise, and as the southernmost point of Prince of Wales Island is on parallel 54° 39' 50", it is this parallel that would have to be followed on this supposition. The only parallel which the negotiators had in view was parallel 55°. From the outset, and throughout all the negotiations, Russia recognized that her rights did not go further south. Only so as not to cut Prince of Wales Island in two, and so as to find a natural ARGUMENT OF GREAT BRITAIN. 19 It follows boundary on the coast was this parallel departed from, that if any parallel is to be considered, it is parallel 55°. As to parallel 54° 40' no reason can be given for its adop- 14 tion. It is true that in two letters addressed to Count Lieven, Count Nesselrode mentions parallel 54° 40' as the boundary, when giving the history of the then pending negotiations, but such references by Russia's Minister, in letters addressed to the Russian Ambassador, even if shown to the British Minister, cannot avail against the clear terms of the Treaty and of all the previous drafts and proposals, and against the obvious intention of the negotiators to take parallel 55° as the boundary, and to depart from it only for two special purposes. They cannot lead to the adoption of a line which is utterly unreasonable, as has already been shown. They surely do not show a consent on the part of Great Britain to accept a boundary different from the one mentioned in the Treaty as signed. Those two letters are easily explained. Parallel 54° 40' was the degree of latitude of the southernmost point of Prince of Wales Island, determined approximately and in round figures. On the mainland whether 54° 40' or 54° 45' was mentioned as the southern boundary, it came exactly to the same result, because the maps show that the mainland ceases at Cape Fox, and from that cape to parallel 54° 40' there are only islands. If the word | coast" used by Count Nesselrode in the second of those letters is held to mean the coast as contended by the United States in answer to the Questions Five and Six, his statement that Russia owned the coast dowm to 54° 40' would be inaccurate, as it would give to Russia part of the southern shore of Observatory Inlet. If the word | coast " means what Great Britain claims, as already pointed out, whether 54° 40' or 54° 45' was given as the southern boundary was immaterial. On Prince of Wales Island it was practically accurate to say that parallel 54° 40' was the southern boundary. It is, therefore, obvious that Count Nesselrode used the expression 54° 40' to designate the southern boundary, because it was the approximate southern boundary of Prince of Wales Island, and also the approximate boundary on the mainland, the discrepancy of about five minutes there being unimportant, as it did not include any mainland. The expression was used to avoid repeating each time the lengthy, but accurate description mentioned 20 ALASKAN BOUNDARY TRIBUNAL. in all the proposals and in the Treaty. It may be noted also that Count Nesselrode in those letters did not attempt to very accurate, as there was no reason for him to do so. Thus he mentions 15 parallel 59° as the latitude above which no nation ever challenged Russia's rights, while in the British Appendix, page 30, it appears that its-rights were challenged up to latitude 60°. The negotiations preceding the Treaty with the United States of 1824 are absolutely irrelevant. They do not show what the intention %/ */ of the British negotiators was, and it is the combined intention of both parties that must be found. It is not even proved that those negotiations were shown to the British negotiators. They do not even show what was the intention of the Russian negotiators when dealing with Great Britain | The Russian proposal to Great Britain, which was maintained from beginning to end, was made before latitude 54° 40' had ever been mentioned to the United States, and Russia by using terms which obviously had a different meaning showed that her intention was different. The same argument applies to the text of the United States' Treaty with greater strength. That Treaty was seen by the British negotiators, and reproduced word for word in many respects. The fact that they changed the terms of Article III of the United States' Treaty when drafting Articles III and V of the British Treaty shows that they did not intend the same thing. «/ o Without repeating the argument which appears in the British Case and Counter-Case, it is to be noted that in the British Treaty a territorial question was involved, and the exact location of the boundary- line was important. Great Britain was insisting upon carrying it as far north as possible. The United States' Treaty was only concerned with navigation and commerce, and, as the United States, although theoretically claiming to have rights far north, was really insisting only upon a boundary-line situated much further south, the exact location of the line in its Treaty was a matter of indifference. The reference by Sir Charles Bagot to parallel 54° 45', as being the limit above which England would be deprived of all the bays and inlets under the Russian proposal, also shows that 54° 40' was not the southern boundary agreed upon. It is unnecessary to comment on Mr. Middleton's statement that the negotiations between Russia and Great Britain broke off on the ARGUMENT OF GREAT BRITAIN. 21 question of parallel 54° 40'. We know that such was not 16 the case. The negotiations broke off because Russia wanted the lisiere to extend down to Portland Canal, while England did not want it to go further south than the 56th degree. Then how can Mr. Middleton's statement of what he thought was the difficulty between Russia and England be considered as " an act of a Representative of either Government tending to show the original and effective understanding of the Parties I within the meaning of the Treaty of 1*903 ? * While speaking of Mr. Middleton, his report on the Treaty of 1825, quoted at p. 62 of the American Case, however incorrect it may be in other respects, supports the British interpretation on this point. It says— 11 it [the linel begins at the southernmost point of Prince of Wales' Island (about 54° 40'). leaving the whole of that island to Russia. It follows the strait called Portland Passage," &c. It is useless to refer in detail to the. other arguments on this question which appear in the British Case and Counter-Case. Only a few remarks remain to be made on the facts subsequent to the Treaty. Great Britain repeats that the Treaty being clear, the subsequent facts are not to be considered; in any case they are insignificant. The United States' Counter-Case, at pp. 17, 18, and 19, quotes a certain number of documents, in which expressions similar to those used by Count Nesselrode in the above-mentioned letters appear. What has been said concerning Count Nesselrode's letters applies here. Also none of these documents are proved to have been issued by, or communicated to, the British Government. They cannot, therefore, show how it interpreted the Treaty. A few words only need be added concerning the lease of the lisiere by the Hudson's Bay Company. Great Britain asserts that the Hudson's Bay Company was not entitled to commit the British Government to any particular interpretation of the Treaty. Moreover, in the lease the Hudson's Bay Company itself did not show that it interpreted the Treaty in accordance with the United States' view. It wanted to get rid by this lease of competition, and was, therefore, not particular whether the terms describing the area leased were too broad or not; its only objection could have been that they 17 might not have been broad enough. Finally, the description in the lease adds after the words "54° 40': the words 22 ALASKAN BOUNDARY TRIBUNAL. | or thereabouts," and the same words are used in the renewal of the lease in 1849: they are also used in the United States' Census / */ of 1890. The description of the area leased, as quoted at p. 19 of the United States' Counter-Case, apart from all the other objections to its revelancy, does not show that on the coast the boundary was at 54° 40'. It only shows that somewhere the boundary reaches 54° 40', which is true. It may be added that the Memorandum referred to in the Ameri- can Counter-Case assumes that part of the River Mackenzie is in Russian territory. The ignorance of those who drafted the Memorandum, and the carelessness of the Directors of the Company if they thought it exact, is therefore so apparent that no importance can be attached to this reference. It is only necessary to remark that if it is proved, as Great Britain contends, that the entrance to Portland Channel is north of Kan- naghunut Island, the question whether the line is to follow parallel 54° 40' or not is immaterial, as if it does it will have to curve northward, so as to reach the entrance to Portland Channel. FOURTH QUESTION. Great Britain contends that the line from the head of Portland Channel to the 56th parallel should be drawn along the shortest possible line to the point on that parallel which the Tribunal may find to be the starting point of the eastern boundary of the lisiere. The United States has put forward two contentions. - In its Case it asks the Tribunal to decide— " That the line should be drawn from the head of Portland Channel northeasterly along the same course on which said line touches the mainland at the head of Portland Channel until it intersects the 56th parallel of north latitude." In its Counter-Case— " The United States submits that the line between the head of Port- 18 land Canal and 56° of north latitude should be drawn directly to that parallel along the axis of the.valley, which forms a continuation of Portland Canal." That the two courses proposed by the United States cannot lead to the same result is shown by Map No. 30 in the atlas accompanying their Counter-Case. The direction of the canal and that of the valley are different. That map again suggests a third course for this part of the boundary-line inconsistent with both the others. ARGUMENT OF GREAT BRITAIN. 23 Great Britain submits that this confusion has resulted from overlooking the principle that, in dealing with boundaries of lands, a break should be filled in by the most direct line possible. In the present case both Parties are agreed that the head of Portland Channel is one point of the line of demarcation. Both are also agreed that the course of the line north of latitude 56 degrees is to be determined by considerations depending not at all upon the course of the line south of the parallel, but solely relating to circumstances existing north of that parallel. The line drawn north of latitude 56 degrees, whether along mountain summits, or along a line determined under the alternative provision of Article IV, must start from some point of the parallel of 56 degrees. This point* of the 56th parallel, when its position has been fixed by a determination of the course of the line northerly, from thence becomes a definite and fixed point of the line of demarcation. Between it and the former point at the head of Portland Channel there is a discontinuity in the description contained in the Treaty of 1825. In accordance with the rule above cited these two points must be joined by a direct line. The difficulties which are occasioned by the contentions of the United States are illustrated by the descriptions of the boundary-line from the head of Portland Canal in its " statement in conclusion," which reads thus:— ' Thence upon the same course continued to the 56th parallel of north latitude ; thence northwesterly, always 10 marine leagues from tide water. * * * " The discontinuity in this description is apparent. The point attained at the 56th parallel is not exactly 10 marine leagues from tide water, or from any other predetermined topographical feature. 19 If it was intended that the line should attain latitude 56 degrees at the precise distance of 10 leagues from tide water the description should have been framed accordingly. Whether the line from the head of Portland Canal is drawn on the same course or along the axis of the valley," there is a discontinuity at the 56th parallel, which must be filled in either by running the line the necessary distance along the parallel, or by joining the point attained on the 56th parallel by a straight line 24 ALASKAN BOUNDARY TRIBUNAL. with some point of the eastern boundary of the lisiere to the northward. The last appears to be the course adopted by the United States. The line of its Map No. 2 is drawn straight from the point of the 56th parallel to a point distant 10 leagues from the head of Burroughs Bay, or thereabouts. The length of the straight line is, as measured on the map referred to, fully 9 marine leagues. The United States thus, in filling up the first break, has introduced a second break which it covers by resort to the very principle which Great Britain maintains should be applied to the first, and the application of which leaves no subsequent discontinuity to be overcome. The United States bases an argument upon the word " elle " in the Treaty, stating that it refers to "la ligne," and that any other interpretation " would violate the grammatical rules of the French language." Reference is also made to a Russian version of the Treaty to the same effect. The applicability to the determinations of the questions at issue of the Russian version, so much relied on by the United States in this, as well as in other parts of their argument cannot be admitted. The negotiations preceding the Treaty wrere carried on in French, the Treaty was concluded in that languarge, and by the present Treaty of 1903 the French text is submitted to the Tribunal for interpretation. No evidence has been offered that the Russian version was a translation made at the time of the Treaty, or if so, that it was under such efficient direction of the Treaty makers, as to preclude a minute grammatical error such as the literal translation of the French | elle " by the Russian feminine pronoun without care as to the context. It is conceived that the point is of minor importance, for 20 whether the line is carried along Portland. Canal until the line strikes the 56th degree, or until the Canal strikes the same degree, the result is the same when the canal along which the line is running is found to terminate before the required latitude is reached. The guiding channel ceasing, the direction in which the line is to go to the point of the continent w7here % the line strikes the 56th degree " still remains to be determined. It is admitted by Great Britain that there is a point on the continent where the line strikes the 56th degree, but the immediate conclusion drawn from that faot ARGUMENT OF GREAT BRITAIN. 25 by the United States, that, therefore, no change of direction can occur at the head of Portland Channel, is not admitted. The words relied upon by the United States to substantiate this theory of no change of direction, I ascend to the north," it. has utterly discarded in its answer to Question Three, by making the boundary-line•" ascend to the north' for more than 70 miles on a due east course along a parallel of latitude. Even here, in the argument on Question Four, in the attempt to make its words " ascend to the north " control to the disregard of the landmarks of the Treaty, they are not given their full effect. The line, it seems, is not to ascend due north, along a meridian line, although that would be the shortest course if the parallel of 56° were the objective point, but may deflect to the east, though on no account whatever to the west! The United States, nevertheless, after reaching this result from the discussion of the word | elle," immediately throws away whatever advantage has been gained by the proof that it is the line, and not the canal, which reaches the 56th parallel, by reverting to the | natural boundary " of the " clearly defined valley " beyond the head of Portland Canal—a course for the boundary which derives its sole raison dretre from the fact that this valley is considered the natural continuation of the canal to the boundary. It is submitted that neither of these two inconsistent alternatives put forward by the United States can be accepted. The position of Great Britain on this point rests upon an unstrained reading of the Treaty.-- Immediatelv after the words, O «/ «/ 7 I To the point of the continent where it strikes the 56th degree 21 of north latitude," come the words, | from this last-mentioned point the line of demarcation shall follow the summit .of the mountains." This identifies, without possibility of doubt, the " point of the continent" with " the last-mentioned point" at which the line following the summit of the mountains, or, in the alternative, the line of Article IV was to begin. This point once found, there is no other rational course to follow than to join it with the last described point of the boundary-line, the head of Portland Canal, by a straight line. That this straight line runs many miles to the westward before it makes its northing to the 56th parallel is no more in conflict with 26 ALASKAN BOUNDARY TRIBUNAL. the wrords, " ascend to the north' than the course of the line to Cape Muzon, which must proceed nearly 70 miles eastward in making 5 miles of northing from 54° 40' to 54° 45' at the entrance of Portland Channel. A reference may be made here to Mr. Middleton's Report of his conversation with Mr. Stratford Canning on the day of signature of CD */ O the Treaty of 1825. Mr. Middleton's Report was that the line " turns eastward upon that latitude [56° | until it touches the highest ridge of the chain of mountains lying contiguous to and nearly parallel with the coast." To this Report considerable importance is attached in the United States' Case. Although, as has been shown in the British Counter-Case, Mr. Middleton was palpably mistaken in his use of the word " eastward," which, through some confusion of thought or of language, he may have substituted for " westward," no such explanation can be given for his use of the word " turns." This word indicates at least that Mr. Middleton carried away from the conversation the impression that a notable change of direction took place in the locality indicated. An objection is raised by the United States to the course of the line from Portland Channel to the 56th parallel, as drawn upon Map No. 37 of the British Atlas, in that it intersects the northern part of Behm Canal, and gives Great Britain an outlet to the sea below the 56th parallel. This is said to be at variance with the views of Sir Charles Bagot, who, at a certain point in the negotiations with Russia, raised the objection that a line as proposed by the Russians through the middle of Portland Channel and thence to the 22 mountains bordering the coast, would deprive Great Britain •of the sovereignty of all the coves and small bays lying between latitudes 56° and 54° 45'. Sir Charles Bagot was contrasting the boundary on the coast at the 56th degree, which he had previously offered to agree to, with the boundary at 54° 45', which the Russians were now proposing. His remarks had direct reference to the coast merely: in his want of %) 7 knowledge of the topographical features inland, he was not in a position to judge what the effect of " thence to the mountains " might be. Nor does it appear that the Russians would have vetoed such a line, for the reason that it gave Great Britain an outlet to the sea, for, as has been shown in the British Case, it was no part of the intention of the negotiators to bar Great Britain from access to the ARGUMENT OF GREAT BRITAIN. sea: the provisions of the Treaty itself show the contrary. This criticism by the United States, however, does not touch the principle, as set forth by Great Britain, upon which the portion of the line now under consideration should be drawn. Whatever force there may be in the criticism is directed against the identification by Great Britain of the particular mountains which the line should follow north of latitude 56°. It is to be observed that even an affirmative answer by the Tribunal to the Fifth Question would not affect the course of the mountain boundary proposed by Great Britain along the ridge from the 56th degree as far as Bradfield Canal, nor would such answer preclude the crossing of Behm Canal by the line, for the Fifth Question refers solely to the lisiere north of 56°, which will lie wholly to the west of the mountain ridge* referred to. *** Similarly Staff-Commander Pender's naming of certain mountains merely indicates that he was not in possesion of the facts by which the boundary-line in that part wras to be determined. If indeed the names Johnson and Reverdy have the nationality ascribed to them in the United States' Counter-Case, it still does not appear that Commander Pender's notion in applying these names was an action tending to show the " original and effective " understanding of the Parties. In concluding the argument on Question Four, attention is directed to the statement in the United States' Counter-Case made I in connection with this portion of the boundary," i. e., from 23 the head of Portland Canal to the 56th parallel, that " the universal understanding of the Treaty by cartographers and by governments for seventy-five years was the same as that now claimed by United States." In the atlases of the United States' Case and Counter-Case are printed twenty-eight maps subsequent to the Treaty and which show the course of the line near the head of Portland Canal. (For the present purpose omission is made of several maps of recent date printed by the United States to illustrate their claims, the claims of Great Britain, and those of various writers in the present controversy.) Of these, twenty-eight maps, which are the work of cartographers of many countries, two only show the line proceeding according S. Doc. 162, 58-2, vol 5 17 ALASKAN BOUNDARY TRIBUNAL. to the United States on the north-easterly course in prolongation oi Portland Canal to latitude 56°, and these two maps show it in very doubtful fashion. The two referred to are the Russian Map of 1861, on which the line starting north-easterly from Portland Canal curves back to the CD */ west and reaches the 56th parallel almost due north of the head oi the canal, and the map of the Scottish Geographical Magazine, 1898. on which the line (as well as can be seen on a map of such small scale) continues north-easterly along a river flowing into the head of Portland Canal to a point considerably to the north of latitude 56°. On the other maps, four, namely:—The Russian Map of 1826, the Tanner Map of 1839, the Simpson Map of 1847 (very small scale), and the Spanish Admiralty Map of 1857, show the line as running due north from Portland Canal to the 56th degree. The Brue map of 1833 shows the line running along the wrest side of the canal as CD CD far as a point some distance below its head. It then runs north, diverging from the course of the canal, to about latitude 56°. The other twentv-one maps show the line turning to the north-west from the head of Portland Canal. Among these last is the United States' Coast Survey Map of 1867, to which much importance is attached in the United States' Case. Thus two maps only, out of the twenty-eight, support, and they very imperfectly, what is asserted to be the J universal understanding " of seventy-five years. 24 FIFTH QUESTION. The Fifth Question is understood by Great Britain to mean that the Tribunal is to decide whether it was an essential characteristic of the lisiere that it was not to be traversed by inlets, in other words, whether its eastern boundary was necessarily to run round the heads *j «/ of all the inlets. In the argument upon the answer to be given to this question it is proposed in the first place to examine the words of the Treaty in the light of the charts existing at the time, and afterwards to consider the effect of the negotiations and the subsequent action of the parties. Dealing with the construction of the Treaty apart from extraneous matter altogether, it is clear, in the first place, that it is impossible to arrive at the intention and meaning of the Treaty without first of — ARGUMENT OF GREAT BRITAIN. 29 all defining the meaning of three terms, namely, coast, ocean, and windings or sinuosities of the coast. CD By Article III the boundaries follow the summit of the mountains situated parallel to the coast. By Article IV, if these mountains prove to be more than 10 marine leagues from the ocean, the boundary-line is to be parallel to the windings of the coast, never exceeding the distance of 10 marine leagues therefrom. At every point, therefore, it is controlled by reference to the ocean and the coast. In the next place it is submitted as clear that " ocean " and " coast' when used as indicating the datum with reference to which the situation of the boundary is to be ascertained refer to the same thing: */ CD the coast being the line where the ocean terminates, and the sinuosities or windings of the coast being the sinuosities of that line. CD O If " coast'' and " ocean '' do not refer to the same thing it must CD follow either (1) that the ocean is regarded as capable of penetrating within the line of coast, or (2) that the coast is regarded as capable of retreating from the ocean. The first alternative must clearly be put aside. It is difficult to conceive that the term " ocean' should be used of water coming within the line described by the word "J" coast." If anything the «/ «/ CD word "ocean" excludes the idea of inclosed waters more than the word coast does; but apart from this the result of the con- 25 struction in question is such as cannot be supposed to have been contemplated. If the % ocean' can penetrate within the ' coast' the mountains might somewhere be found to be say 11 marine leagues from the " ocean' but 15 marine leagues from the * coast." The line which would in that case be drawn with reference to the " coast " would be only 6 marine leagues from the " ocean." It i/ CD cannot, however, have been the intention that when the mountains were more than 10 marine leagues from the ocean, the lisiere should CD be narrower than it would have been had the mountains been found exactly at the 10 marine leagues. The " ocean," therefore, cannot come within the " coast." On the other hand it is still more extraordinary to suppose that the coast was considered capable of retreating from the line of the ocean by following the shores of waters not forming part of the ocean. If this were so, it would follow that where the mountains were found more than 10 marine leagues from the ocean the boundary, which would in that case quit the mountains, might be removed not 30 ALASKAN BOUNDARY TRIBUNAL. nearer the sea, but further inland. To take an example, if the waters of any inlet were not " ocean," but the shore of the inlet was " coast," mountains at the head of the inlet might be more than 10 marine leagues from the | ocean," but less than 10 marine leagues form the " coast," and, therefore, the effect of discarding the line of / / / CD the mountains in order to substitute a line drawn with reference to the coast would be to place the line further inland than the mountains. It is obvious, however, that the line to be drawn with reference to the coast was meant to limit and not to extend the width of the lisiere. For the above reasons it is submitted that I ocean'' and " coast," where these terms are used to supply the datum from which the boundary is to be ascertained, refer to the same thing. It is also clear that the " sinuosities' or " windings' of the " coast' are the sinuosities or windings of the same coast as that above referred to; that is to say, the coast which forms the limit of the ocean. According to Article IV, the line which is to be drawn where the mountains are too remote is to be parallel to the windings of the coast and never more than 10 marine leagues distant therefrom. It matters not whether the word " therefrom ' (" en ") refers to 26 " sinuosities," to " coast," or to 1 ocean." It is clear that the parallelism and the distance must be with reference to the same line. If it could be held that the shores of an inlet, though not part of the coast were, nevertheless, part of the sinuosities of the coast, the line parallel to the sinuosity might be forced inland more than 10 marine leagues from the coast and from the ocean. The question therefore is, what is the one line which is referred to in the three expressions " ocean," " coast," and " sinuosities of the coast?" In the case for the United States it is throughout contended that this line must be found at the head of the tide-water. It is to be observed, however, that the expression " tide-water' is itself one requiring further definition. Assuming that it has reference to ordinary tides, the question presents itself whether tide-water extends as far up a river as the level of the stream is affected by the tides, even though the downward flow of fresh water is not reversed, or whether it only extends to the point where the flow is so reversed. In other words, is the limit to be taken that of the vertical or of the horizontal action of the tide ? ARGUMENT OF GREAT BRITAIN. 31 It appears to be settled law in the United States that the former is the correct view, and it has been held by the Supreme Court that the city of New Orleans, where the tides cause the fresh water to swell in its downward flow without affecting its current, is on tide CD 7 water. (Peyroux v. Howard (1833) 7 Peters, p. 343.) The same view would probably prevail in England, though the question is not perhaps quite settled (see the authorities collected in Stuart Moore's History and Law of Fisheries, pp. 98-107). At any rate it was held in the eighteenth century that the water of the Thames at Richmond was tidal, and, whichever rule is taken, the Thames is certainly tidal far above London. It is submitted, however, that it is absolutely out of the question to contend that the Mississippi at New Orleans, or, on a smaller scale, the Thames at or above London, could by any stretch of language be called parts of the ocean, and the absurdity would not, practically speaking, be less glaring if the limit taken was the point where the horizontal action of the tide ceases. The theory that the ocean extends to all tide-waters must 27 therefore be rejected, and there is no other limit which can be suggested except a line drawm at the point where the open sea is reached. It is no answer to say that in many cases the inlets upon this part of the coast do not form the estuaries of important rivers. Vancouver's charts showed no riyers. and the negotiators of the .' CD Treaty were entirely ignorant as to what the rivers were. It is «/ ft/ CD clear from Article VI that they were alive to the possibility that they might be important. It is, moreover, not practicable to treat as ocean all the waters of those inlets which do not terminate in a river, while applying some other rule to those which do. The question would arise in each case whether there was a river of sufficient importance to lend the character of an estuary to the inlet which received it. Similar considerations show that the word | coast" cannot be held to include the w^hole margin of tide-water. It is not consistent with the ordinary use of language to hold that New Orleans or London is on the coast, and as in the case of ocean, so in the case of coast, if the limit of tide-water cannot be accepted, there is no other alternative to fall back upon, except a line following the general trend of the outer coast which faces the open sea. 32 ALASKAN BOUNDARY TRIBUNAL. The meanings assigned above to the words " ocean " and " coast i are not only natural meanings of the terms themselves, but they harmonise perfectly with each other and with the context in which they occur, and if there had been no inlets penetrating the mountains or extending to a depth of 10 marine leagues, the suggestion that the line wTas to follow the limit of tide-waters would probably never have been heard of. In that case the line would haA^e been drawn in the absence of mountains at 10 marine leagues from the general line of the outer coast, and would have passed behind all the inlets, though, of course, at a distance of less than 10 marine leagues from their heads. It would never have occurred to anybody to contend that an attempt should be made to reproduce in the boundary-line the convolutions shown in the inlets. The circumstance, however, that some inlets extend more than 10 marine leagues inland cannot vary the construction, either by way of making an exception in the case of such inlets only or by 28 treating every inlet as part of the ocean. If the line of coast is not to be regarded as broken by the mouth of an inlet extending 5 leagues inland it cannot be regarded as broken by the O O O «/ similar mouth of another inlet which happens to extend 20 leagues. The question of the meaning of the words " ocean " and " coast j is not specifically argued in the United States' Case. In the Counter- Case, however, it is contended that each of these words may be employed in three distinct ways*—viz., in a physical, political, or descriptive sense: and it is urged that they are here used in the physical sense. Great Britain does not admit that this analysis is complete. It is not, however, important to dwell upon merely verbal questions, and the British contention may be broadly stated as being to the effect that the word coast is physically descriptive of the mainland frontage over against the Russian islands, and the word ocean of the sea that washes such coast. The Treaty itself shows that the Parties were using the word ocean «/ cD in its popular sense, having regard to the connection in which it occurs. In Article I of the Treaty the term ocean appears to have been used in a sense excluding the interior waters, otherwise it would follow that Article VII was either superfluous as conceding what was already given by Article I or was contradictory to Article I as limiting to a period of 10 years what was given in perpetuity by Article I. ARGUMENT OF GREAT BRITAIN. 33 And the same observation is to be made with reference to Articles I and IV of the Treaty of 1824. The true view of Article VII of the British and Article IV of the United States' Treaty with Russia is that these Articles gave some- «/ CD thing in addition to what was acknowledged by Article I, that is to say, a right to frequent for trade and fishery for ten years something which was not ocean, namely, the interior waters. If this is not so, the United States would have to admit that the subjects of Great Britain have at the present day, unclef the Treaty of 1825, a right to frequent for trade and fishery therein the interior waters of the lisiere belonging to the United States. It is hardly necessary to say that this is not, and never has been, admitted by the United States or contended for by Great Britain. As was pointed out in the British Counter-Case, Mr. Middleton, during the whole course of his negotiations with the Russian 29 Government, was careful to keep the provisions, which ultimately were embodied in Article IV of the Treaty of 1824, «/ «/ / distinct from those contained in Article I; and in announcing the conclusion of the Treaty, he observed that the specific and particular privileges granted by Article IV would be found to contain an extension of the general privileges embraced by the preceding Articles. The United States' Case alleges quite clearly that at the termination of the period of ten years referred to in Article IV of the Treaty of 1824, and upon the refusal of Russia to renew the provisions of that Article, the Government of the United States accepted the position that the right of United States' citizens to frequent the interior CD X waters for trade and fishery came to an end, notwithstanding Article I of the Treaty. It is quite true that persons travelling in the interior of the country might speak of reaching the coast when they came to the shore of an inlet, or that the terminus of a railway upon an inlet might be «/ JU CD described as an ocean terminus. Such expressions, which are relied upon in the Counter-Case for the United States, are sufficient to convey the meaning of those employing them in that connection. It does *f CD J- «/ CD not follow that they would be accurate in other connnections. It is conceived, for instance, that a ship would be described as having sailed along the coast without its suggesting to the hearer that she had entered any of the inlets, and if her course were described as par- 34 ALASKAN BOUNDARY TRIBUNAL. allel to the coast it would undoubtedly mean parallel to the general line of the coast. In the same way it is not necessary to controvert the allegation «/ */ o made on page 31 of the United States' Counter-Case, that the " political coast" in this region at the present time follows the islands. This is so because the mainland facing the islands is United States' territory also. At the time, however, when this Treaty was being negotiated, Russia had obtained, or at least obtained very CD CD ' v early in the negotiations, a recognition of her right to the islands. ft/ CD 0 01 CD It remained to consider the mainland opposite, and it is submitted that, looked at for this purpose and from this point of view, it might quite well be regarded as having even a " political coast" of its own. This verbal controversy seems, however, hardly worth pursuing. 30 While offering the contentions above adverted to as to the meaning of the words " coast" and " ocean," the Counter- Case for the United States does not explain how the physical coast to which it refers is to be made to serve the purpose for which the line, which the word coast is used to describe, was introduced into the scheme for the Treaty. No answer has as yet been given to the argument that the British construction is the only one which will CD ft/ enable effect to be given to the requirements of Article IV, that the boundary, in the absence of mountains, shall be a line parallel to the windings of the coast, and which shall never exceed a distance of 10 CD marine leagues therefrom. The United States' construction does not admit of this. If the map on page 25 of the atlas delivered with the Case for the United States is looked at, it will be seen at a glance that the line there put forward does not conform to the requirements of the Treaty. It is not a line drawn parallel to the sinuosities of the coast if the shores of the inlets are to he regarded as part of the coast. It does exhibit certain curves wrliich in point of fact, except where a detour is made to get round the head of Lynn Canal, reproduce in a remarkable way the curves not of the inlets, but of the general line of the •j o coast, and so far as that line can be said to be parallel to anything at all, it is parallel, not to the windings of the coast, as the United States must define them, but to the windings of the coast in the sense contended for by Great Britain. ^ ARGUMENT OF GREAT BRITAIN. 35 The fault, however, of the line, as shown on this map, is that it is more than 10 marine leagues from the coast, being pushed back to pass 10 marine leagues from the heads of the inlets in succession. This can only be done upon the theory that the heads of the inlets are coast, and that sinuosities of the coast include the detailed sinuosities formed by the inlets. But if that position is taken, the line must be drawn parallel to those sinuosities; which, however, obviously cannot be done. The line suggested by the United States */ Oo «/ is, in fact, a line wrhich is parallel to the coast, using that word in one sense, and 10 marine leagues from the coast, using that word in another. But the use of the word " therefrom' clearly indicates that the distance is to be measured from the same line of coast as that to which the boundary was to run parallel. 31 By drawing the line in the way indicated the United States deprives Great Britain not only of the benefit of all peninsulas and projections which, if their theory as to the meaning of " coast' is correct, should affect the line, but also of all the country between inlets. If the southern end of the United States' line is looked at, it will be observed that, starting at the 56th parallel, its direction is determined in the first place by the head of Burrough's Bay, from which it keeps at a distance of 10 marine leagues. From that point the course of the line is governed bj the head of the next inlet, namely, Bradfield Canal, being drawn parallel to an imaginary line joining those two points without being in any waj^ affected by the occurrence of the Cleveland Peninsula. Great Britain is entitled to ask what is the sinuosity of the coast to which the line is at this point drawn parallel. It is submitted that none can be shown; and that this example demonstrates conclusively the falsity of the principle adopted. The same remark may be made as to the whole course of the line which skips at a distance of 10 marine leagues from inlet to inlet along the whole of its course to the 141st meridian. It is submitted that the above argument shows conclusively that the British interpretation is the only one which the words of the Treaty will bear, and that the application of the American interpretation produces a result which is shown by ocular demonstration to contradict its specific "provisions. As pointed out in the British Case and Counter-Case, the provi- 36 ALASKAN BOUNDARY TRIBUNAL. sions of Article VII strongly support the contention that the Treaty' contemplated the possibility that some part of the inlets might be in British territorv. There is indeed no answer to this argument, if the * C3 7 effect of that Article is to give to Russia a licence from Great Britain CD in respect of waters situated between Portland Canal and Mount St. Elias, for there would be no use in Russia taking such a licence if none of the waters to which it referred could be British. The question therefore is whether there were any other waters in respect of with Russia could take such a licence from Great Britain. In the Behring Sea Arbitration a question was raised as to the meaning in this Treaty of the phrase " North-West Coast of 32 America," the British contention being that it included, and the United States' contention that it did not include, the coast of Behring Sea; and in the course of this discussion Great Britain maintained, and the United States at least as strenuously denied, that Article VII applied as far north as Behring Sea. The despatches and contentions in which these positions were assumed by the parties respectively are referred to in the British Counter-Case and the United States' Counter-Case in this present Arbitration. It is not now necessary further to refer to the contentions of the Parties in the connection referred to. If the present position of the United States receives support from the position assumed by Great Britain on the former occasion, the converse is at least equally true. It is submitted, however, that the point now made is not really affected by the contentions with reference to the scope of Article VII, put forward in connection with the Fur Seal dispute. The question now is not whether Russia gave a licence to Great Britain in respect of waters beyond the lisiere, but whether there were any such waters in respect of which Russia could be regarded as taking a licence from Great Britain. Now Great Britain could in no view possess any inland waters north of the lisiere. The boundary following the 141st meridian put that out of the question. On the other hand, Russia could not be taking a licence south of the lisiere, because all that territory had been already relinquished by her to the United States, and had never come into discussion between Great Britain and Russia. The result is that, by Article VII, Russia took from Great Britain privileges in respect of waters situated in that part of the continent which was fringed by the lisiere: and, therefore, that is was contem- **V ARGUMENT OF GREAT BRITAIN. 37 plated that Great Britain might be found entitled to inland waters in that region. It is contended on behalf of Great Britain that the course of the negotiations confirms the interpretation above set forth of the Treaty itself. It is important, however, to bear in mind the limitations which, upon well-known principles, are universally held to govern the extent to which previous negotiations can be looked at for the purpose of construing a formal written contract. Such negotiations can be looked at to identify the subject-matter of the contract and to show what the Parties used particular 33 terms to describe. It is clear, therefore, that they can be looked at to show what the words " ocean " " coast " and u sinuosities of the coast'' were employed to designate; and for this purpose Great Britain refers to the negotiations. The United States, however, claims to refer to the negotiations as showing that the Parties meant to make a bargain other than that which they have expressed. The position is put very frankly in the Counter-Case for the United States in the following passage:— The United States asserts that the intention of the parties to the treaty is vital to its true interpretation; that such intention between nations is the very essence of the agreement; and that any material variance from the intention must give place to an interpretation in accordance with it. The United States uses the liberty of interpretation so claimed to introduce the argument which may be shortly described as " The Bar- O «/ «/ rier Theory," and to contend that the Treaty must be read and applied in such a sense as to give effect to such a barrier as it is asserted the negotiators intended to erect. Great Britain denies that this intention can be discovered in the negotiations. But she also submits that the negotiations cannot be referred to for the purpose of controlling the construction of the Treaty to this extent. If, on the true construction of the Treaty itself, it is held that the geographical principle adopted gives, when worked out, a line which provides no such barrier as that contended for, it is not open to the United States to claim that the geographical principle should be modified in order to correct this result. On the contrary, the truer rule would seem to be that the more clearly it v 7 »/ appears that any particular stipulation was insisted upon by either side during the negotiations, the stronger is the inference that it 38 ALASKAN BOUNDARY TRIBUNAL. would have been expressed in the Agreement if conceded, and that, if not, it must have been abandoned. This is a rule of common sense, and is particularly applicable in the present case. This Treaty was the result of negotiations extending over about three years, several times broken off and renewed O •/ / between different Representatives of the two nations, and relating to questions both of maritime jurisdiction and territorial limits. 34 It w^as natural, as is found to be the case, that with regard 7 CD to such limits in a country then wholly unknown and little «/ t/ thought of, various proposals should from time to time have been made on either side and rejected, conceded, or more or less modified, until in the end an agreement w^as reached. It is eminently, therefore, a case in which the agreement must govern, however inconsistent it may be with what the Parties may have said or attempted to obtain at different stages of the many protracted discussions. The question of what either side was given or got by the words of the Treaty can hardly, in any case, be affected by showing what they were anxious to get or willing to concede before it was concluded. Taking first the words " coast" and " ocean," it will be found that from the time when the lisiere was first suggested these terms were used convertibly to indicate the line with, reference to which the lisiere was to be defined, the word " coastr meaning broadly the coast of the mainland fronting the Pacific, and the word " ocean I meaning the sea that extended to that line. The idea of a lisiere was first put forward in the "Centre-projet" suggested by the Russian Plenipotentiaries in answer to the first proposal of Sir C. Bagot in February 1824. The " Contre-projet commences by referring to a dividing line " on the North-West Coast of America." It then states the Russian desire to make the boundary follow the Portland Canal as far as the mountains " which run along the coast," from which point it would ascend along these mountains " parallel to the sinuosities of the coast." In his amended proposal, delivered on receipt of this " Contre- projet," Sir Charles Bagot adopts the phrase " mountains bordering the coast," and suggests in effect that the lisiere shall commence / oo further to the north, whence the line " would follow a northerly and north-westerly direction parallel to the sinuosities of the coast and always at a distance of 10 marine leagues from the shore [" rivage n~i si ARGUMENT OF GREAT BRITAIN. The word "rivage" here clearly means the same as "cote," and is only used to avoid repeating the same word. It cannot mean the shore of the inlets, because in the first place a line parallel thereto is impossible, and, secondly, because the inlets are so pronounced that such a line could not be accurately described merely as running " in a northerly or north-westerly direction." «/ «/ 35 In their observations upon the amended proposal, the Rus sian negotiators again refer in their opening paragraph to the " North-West Coast," and, after reiterating their proposal, point out that it would leave to Great Britain " all that part of the coast lying between the mouth of Portland Channel and the 51st degree t/ CD CD of latitude north." Here they are clearly speaking of the North- West Coast of America in its broad aspect, and neglecting the inlets. Otherwise the coast left to Great Britain (and it would support the Russian argument to make it appear as extensive as possible) would have been described as running from the head of Portland Canal. Independently of this, it is clear that in this despatch the 1 coast" was not regarded as including the head of Portland Canal, because that inlet is in terms described as having its " origine dans les terres." In his reply Sir Charles Bagot repeats the Russian phrase, " that part of the coast lying between the mouth of Portland Canal and the degree of latitude," &c. In their final decision the Russians insist on the possession of a " portion of territory on the coast opposite " Prince of Wales Island. The negotiations were then broken off, and, in reporting to Mr. Canning wrhat had taken place, Sir C. Bagot describes the lisiere as ' a line of coast extending 10 marine leagues into the interior of the continent." Count Nesselrode, on his side, also wrote an account of the negotiations to Count Lieven, in w7hich, after referring to " the Xorth-West / CD Coast of America " and " the North-West Coast of the American continent," he speaks of the frontier proposed by him as running along ' the mountains which follow the windings of the coast." The southern frontier, he said, would " end upon the continent at the Portland Canal, the mouth of which into the ocean |'" l'embouchure dans l'ocean "1 lies in the latitude of Prince of Wales Island and the head inland I" l'origine dans les terre^ *"] between the 55th and 56th l_ CD -" degrees." He explained that the proposal only secured to the Rus- 40 ALASKAN BOUNDARY TRIBUNAL. sians " a narrow strip on the coast itself; " and he pointed out that England did not possess any establishment " neither at the head of Portland Canal nor on the shore of the ocean." It is contended that these documents show to demonstration that fhe Parties in speaking of the coast were referring to the gen- 36 eral line of the North-West Coast of America, to which the mountains on the chart appeared to run parallel in a northerly or north-westerly direction: that the wTord as they used it excluded the «/ / t/ shores of the inlets, and that the inlets were not regarded as " ocean." The " narrow strip on the coast itself," referred to by Count Nesselrode, would not, therefore, be a strip at the head of an inlet like Portland Canal. Upon Sir Charles Bagot breaking off the negotiations at this point, Mr. Canning communicated the position of affairs to the Hudson's Bay Company, who, through Mr. Pelly, expressed themselves as satisfied with the proposals of Russia, subject to a better definition of the mountains described as following the sinuosities of the coast. The language used by Mr. Pelly, and repeated by Mr. Canning to Sir Charles Bagot, shows that "the coast' and "the sea' were regarded as denoting the same line. On the 26th May, 1824, Mr. Pelly wrote pointing out that it was possible " that those mountains represented in the charts as closely bordering on the sea, and described by the Russians as a tres petite distance, may really be at a very considerable distance from the coast." On the 12th July, 1824, Mr. Canning, writing to Sir C. Bagot, «/ / / CDs CD CD 7 spoke of the line " following the sinuosities, of the coast, along the base of the mountains nearest the sea." In the same despatch he speaks of the necessity of a proviso, " that the line shall in no case {i. e., not in that of the mountains, which appear by the map almost to border the coast, turning out to be far removed from it) be carried further to the east than a specified number of leagues from the sea." Meanwhile, on the 29th May, 1824, Mr. Canning had written to Count Lieven in terms which point clearly to a distinction between inland waters and the ocean. He asks for " precise and positive stipulations for the free use of all rivers which" may 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 may comprehend," He adds, later, that it was taken for granted that ARGUMENT OF GREAT BRITAIN. 41 I the exclusive claims of navigation and jurisdiction over the North CD v Pacific Ocean, which were put forward in the Ukase of September, 1821, are to be altogether withdrawn." / o 37 In repeating Mr. Canning's communication Count Lieven drew Count Nesselrode's attention to these separate points as to the inland seas and the Pacific Ocean. In the draft Convention which Mr. Canning sent to Sir Charles Bagot on the 12th July, 1824, the line was described (Article II) as ascending Portland Channel " till it strikes the coast of the Continent," and the same phrase is used in the draft sent to Mr. Stratford Canning on the 8th December following. These two passages are the only ones in which the word " coast' seems to be capable of applying to the shore of an inlet. It is, however, interesting to observe that in each case the Russians altered the phrase. In the counter-draft delivered to Sir C. Bagot the line was described as CD ascending Portland Channel "jusqu'au point ou cette passe se ter- mine dans l'interieur de la terre ferme," and the same correction was made by Matusevich in the draft which was submitted through Sir »/ CD Stratford Canning. This emendation thus repeated is most pointed, and showrs that the Russians noticed the confusion which would be introduced by treating the^head of Portland Canal as "coast." At any rate, it shows that the Russians did not enter into the Treaty relying on the word " coast " having any such significance. This conclusion is fortified if the terms in which the 10-marine- league limit is provided for in the four documents last-mentioned are examined. In the draft sent to Sir C. Bagot it was stipulated that " the strip of coast should not in any case extend more than 10 marine leagues in breadth from the sea towards the interior." In the Counter-Draft this phrase is retained side by side with the substituted phrase describing the head of Portland Canal as " in the interior." The Russians therefore were clearly contemplating a breadth of 10 leagues, to be measured back from the sea to " the o / interior," the heads of the inlets being situated in such " interior," and not, therefore, being part of the sea. In the draft sent to Mr. Stratford Canning by Mr. George Canning the clause provided that " if the summit of the aforesaid mountains shall turn out to be in any part of their range at more than the distance of 10 marine leagues from the Pacifick, then that for that 42 ALASKAN BOUNDARY TRIBUNAL. space the line of demarcation shall be a line parallel to the 38 coast, and its windings at the said distance of 10 marine leagues therefrom, so that the said line of demarcation shall never extend farther than 10 marine leagues from the coast." This clearly treated the coast as being the coast of the Pacific. In the Russian Counter-Draft the language is: "Partout ou la distance entre la crete des montagnes et la mer se trouverait de plus de 10 lieues marines, la limite de cette meme lisiere sera formee par une ligne parallele aux sinuosites de la cote et qui ne pourra jamais s'eloigner de la mer que de 10 lieues marines." Looking at these four versions of this proviso, it is clear that the words Pacific, mer or sea, and cote or coast, all refer to the same datum line from which the 10 marine leagues were to be measured towards the interior, and that the Russians were correct in altering the phrasing of the preceding Article so as to make it clear that the head of Portland Canal was not on the coast but in the interior. For these reasons it is submitted that the negotiations support the contention that the words coast and ocean or sea, as used by the negotiators, did not include the heads of the inlets. In the United States' Case it was, however, contended that the negotiations disclosed a governing intention on the part of the two Powers concerned to erect a barrier unbroken by inlets between the British possessions and tide-water throughout the whole length of the lisiere. It has already been submitted that the negotiations can- */ CD not be referred to for the purpose of extracting from them a controlling principle of this kind independent of and, indeed, overriding the provisions of the Treaty itself. In the British Counter- Case it w7as shown, moreover, that the negotiations do not, in fact, support any such theory. It is not proposed here to repeat that reasoning, especially as it is not part of the affirmative argument of Great Britain. It is sufficient to refer to the pages of the British Counter-Case in which it is set forth. It is contended, however, that if the negotiations are examined not for the purpose of extracting a principle at variance with the terms of the Treaty, but for the more legitimate purpose of ascertaining the sense in 39 which the word lisiere was used, the British interpretation receives material confirmation. As was pointed out in the British Case, the lisiere was described ARGUMENT OF GREAT BRITAIN. 43 55 as a "point d'appui," "une portion de territoire sur la cote,'' "line etroite lisiere sur la cote meme," "une simple lisiere du continent," I une mediocre espace de terre ferme," " uniquement un point d'appui." In the Counter-Case for the United States it is argued that the lisiere contended for by Great Britain would not be an effective I point d'appui." This is not admitted; but if it is to any extent true, the answer is that the Russians wrere willing to take their chance as to the real situation of the mountains which were to determine, in the first instance, the breadth of the lisiere. The mountains were suggested as the eastern boundary of the oo */ lisiere on the first ocasion on wmich the lisiere. itself w^as proposed, namely, in the Counter-Draft delivered by the Russian Plenipotentiaries to Sir Charles Bagot in February, 1824. The amended proposal of Sir Charles Bagot neglected the mountains and proposed a 10-marine-league line. The limiting line, where the mountains receded more than 10 CD 7 marine leagues from the Ocean, was first suggested in the draft CD OO Convention sent by Mr. Canning to Sir Charles Bagot in July, 1824, in view of the proposed resumption of the negotiations broken off earlier in the year. In this draft the boundary was expressed to follow the seaward base of the mountains. The wa,y in which this proposal was received by the Russian? shows that they were perfectly alive to the possibility that the mountains would be found far within the 10-marine-league limit. In his Memorandum of the 24th July, 1824, Count Lieven pointed out that it would not be impossible, in view of the little exactness of the geographical ideas which the Parties as yet possessed as to those regions, that the mountains designated as the boundary should extend by an O ft/ */ insensible slope down to the very border of the coast. Sir Charles Bagot was instructed by Mr. Canning to consent, if necessary, to the boundary running along the summit instead of along the base of the mountains. The Russians, however, were not satisfied with this, and proposed in their Counter-Draft the adoption of a 10-league line, without reference to mountains at all. 40 The negotiations at this time failed upon other points, but when Mr. Stratford Canning was instructed to resume them in S. Doc. 162, 58-2, vol 5 18 44 ALASKAN BOUNDARY TRIBUNAL. Jiff December, 1824, Mr. George Canning informed him that the British Government could not consent to discard the mountains altogether, and take the distance as invariably the rule. The alternative boundary was therefore adopted, but it is quite clear that the Russians, while fully appreciating that the mountains might be found to run along the coast itself, were prepared to take the chance of this, and wOuld have preferred to have had no reference to the 10-marine-league limit at all. In his despatch of the 20th February (3rd March), 1825, Count Nesselrode remarks to Count Lieven that the natural frontier formed by the mountains would have been preferable— jj " England," he says, " would have gained thereby wherever those mountains were found at less than 10 marine leagues from the sea; Russia, wherever this distance was greater, and considering the want of precision in the geographical notions then possessed concerning these countries, such an arrangement would have offered to the two Contracting Parties entirely equal chances of advantage." It is submitted that this shows the Parties were not bargaining upon the basis that the mountains would reproduce any such line as that shown by the ridge conventionally depicted on Vancouver's charts, but that they were willing to take a line subject to all the variations which proper application of the geography, when ascertained, would introduce. ACTS OF THE PARTIES HOW TO BE CONSIDERED. As has already been pointed out in the British Case and Counter- Case, preliminary or subsequent action of the Parties can only be / A «/ J. t/ taken into consideration by the Tribunal by virtue of the concluding clause of Article III of the Treaty of Arbitration. The limits within which, and the purpose for which, evidence of this kind is receivable under this Article, have already had attention drawn to them in the British Counter-Case. But it is also necessary to keep in view, while estimating the bearing of this class of evidence, when admitted, what has been the position in 41 reference to this boundary during the period to which this evidence refers. The contention of Great Britain, which will be more fully developed hereafter, is that the Treaty of 1825 merely established a boundary on paper, to be located when the time arrived which ARGUMENT OF GREAT BRITAIN. 45 should make that step necessary; and further, that such locating of the boundary would not merely consist of an identification of points referred to (as in the case of the water boundary), but would involve an ascertainment of facts and data. The inquiry, for the purpose of which the action of the Parties is to be looked at, is as to the meaning and intention of the Treaty, CD «7 7 and not as to what are to be taken to be the facts and data which would control its application. From this standpoint, Great Britain submits her view of the facts and data, and presents a line which she says exhibits the result of the 7 X t/ application of the Treaty thereto. But, as was declared in the British Case, she does not present it as in all respects the only possible application of the Treaty, and action of the Parties pointing to a different application from that shown by such line is not to be mistaken for action pointing to a different interpretation of the Treaty itself. The application of the Treaty has, as Great Britain contends, always been a problem awaiting solution, and not one that was in the process of receiving it; and this is the answer, broadly stated, which she submits to the United States' contention upon this part of the Case. The evidence, however, which is presented by the United States upon this part of the inquiry is directed substantially to establish the contention that the provisions of the Treaty have received practical application by the action of Russia and the United States (without protest, it is said, on behalf of Great Britain) : and that such application reveals a line coinciding substantially with the line shown on Map 2 in the Atlas delivered with the United States' Case. This being the point of view from which this subject is approached, the Case and Counter-Case for the United States are found continually commenting upon the action of the Parties as if the issue were between two ascertained lines, namely, a line such as that contended for by the United States as above mentioned and the line 42 shown in the Atlas delivered with the British Case as giving effect to the British application, on the ground, of the terms of the Treaty; and the action of the Parties is examined with a view of showing that it is inconsistent with the latter line. One example of this is sufficient for the present purpose. In the Counter-Case for the United States reference is made to the narrative of the journey of 46 ALASKAN BOUNDARY TRIBUNAL. Governor Simpson in 1847, and an extract is cited and printed in italics in which the Governor says that the strip (the lisiere) rendered the interior country comparatively useless to England. The comment on this is as follows: " If Great Britain had possessed the heads of the inlets, Governor Simpson would never have written the last clause of the foregoing sentence." The fundamental fallacy of the line of argument of which the above is an example, and which is often repeated, is that it ignores the fact that the boundary was, and still remains, an unascertained line, not merely an undelimited line in the sense of unidentified upon the ground, but a line unascertained in the sense that the data upon which it depended had not been agreed upon. In answer to the Fifth Question, Great Britain repudiates the contention of the United States that it is a fundamental principle in the construction of the Treaty that she is to be entitled to none of the inlets. And she is further contending, in answer to the Seventh Question, that, in the application of the provisions of the Treaty to the topography, she ought, as a matter of fact, to obtain the heads of all the important inlets. But the Fifth Question may be answered in accordance with the British view, that is to sav, in the negative, ' %/ 7 CD and yet, in the application of the Treaty, so construed, to the topography, it may still be undecided (and the solution would depend on the answer to the Seventh Question), how far she is to obtain the heads of the inlets. There is a further general observation to be made with reference to the United States' presentation of evidence in support of the authority of the specific line for which that Power contends. This line assumes two things, firstly, that the boundary must, of necessity, run behind all the inlets; and, secondly, that the boundary is to be traced throughout by reference to the 10-marine-league limit, and not by reference to mountains. 43 As to the first point, Great Britain objects that it is not J. / V open to the United States to show, by evidence of the action of the Parties, that the boundary was assumed to run in the way described, unless they also prove that it can so run consistently with */ x qJ the Treaty. It is to be observed that the Tribunal is not empowered to give any effect to such action as a source of title independent of the Treaty of 1825. That Treaty cannot be revised, nor, except so far as is contemplated by the terms of the Seventh Question, can a boundary X. %J ^fc' t/ be laid down by the Tribunal. It has only to answer the questions put. If, therefore, the action of the Parties wrere to. be held to point to the assumption of the boundary-line contended for by the United Spates,*but such line cannot be made consistent with the words of the Treaty, the Tribunal would have no authority to give effect to it. Is, therefore, the line contended for consistent with the Treaty? It cannot be so unless it is the mountain line. There is no 10-marine- league line. There is a 10-marine-league limit, but the Treaty postulates the existence of mountains to form the boundary, and the 10-marine-league limit defines the position of the mountains and the course of the line in places where the mountains fall outside the limit. Great Britain has further to observe, with reference to the evidence of the United States on this part of the Case, that, inasmuch as it is adduced to establish that a 10-marine-league boundary has been accepted, it misses the mark by proving too much. It cannot be denied that under the Treaty the boundary was left to be ascertained in the future. It was dependent on the ascertaining of the position of the summits of the mountains within the prescribed limit. It cannot be alleged that the Parties have ever agreed upon CD O X the point so left open; it is not submitted to the Tribunal to say whether they have or not; and the Seventh Question assumes that they have not. Yet a large part of the Case and Counter-Case of the United States is devoted to supporting by reference to. the action of the Parties a line relied upon as establishing the application of the 10-marine- league principle—a principle which was repudiated by one of the Parties, and regretfully allowed to drop by the other. The first act referred to by the United States subsequent to 44 ' the making of the Treaty of 1825 is the publication of a Russian map described as laying down a boundary " at a distance of 10 marine leagues around all the inlets of the sea." Subsequently there is a reference to " the universal method followed by cartog- %7 ^D raphers in drawing the boundary-line at 10 marine leagues from the shore of the mainland." An alleged Russian boundary-mark on the Stikeen at 10 marine leagues from the coast is relied on. It 48 ALASKAN BOUNDARY TRIBUNAL. is pointed out that the settlement proposed to be made by those on board the " Dryad " was to be at more than 10 marine leagues froniJ */ o the coast. There are numerous other references of the same kind in connection with the Stikeen, and it is also alleged that arrests were made up to a distance of 10 marine leagues from the head of Lynn. Canal, O *J and that the census was taken, and the United States' authority acknowledged for 30 miles up Taku River. Great Britain contends that it is not competent for .one Party claiming under the Treaty of 1825 to set up against the other that O %/ X CD any 10-marine-league principle is to govern the boundary to the exclusion of mountains, unless it shows that such is the result of the Treaty stipulations and geographical conditions. SUMMARY OF ACTS OF PARTIES. THEIR EFFECT. It is not proposed on behalf of Great Britain to go through the individual acts referred to in the Case and Counter-Case of the United States, either with a view to showing how far the evidence must as a matter of detail be rejected, or only accepted subject to qualification, or with a view to classifying it in detail with reference to its receivability, in accordance with the canons hereinbefore submitted. It is sufficient here-to deal with it by way of summary. As was shown in the British Case, the relations of Russia with the territory now in dispute were principally at the Stikine. So far as there is evidence that they penetrated to the head of Lynn Canal, their action may have been taken at the time of the affair of the " Dryad " as part of an effort to thwart the operations of the Hudson's Bay Company by all means in their power, whether rightful or wrongful. In the Counter-Case for the United States, however, CD there is a deposition of an Indian named Ikee Shaw, said to 45 be a resident of Klukwan, exhibiting medals which he de- / CD clares were given to his wife's ancestor as a token of allegiance to Russia. The deponent does not identify the date of this ceremony beyond stating that it was three generations ago. The medals themselves date back to the time of Alexander I, and the mere statement of a witness of this sort that they had been in the possession of his wife's family for such a. period is not very conclusive evidence of the fact. It is to be observed that the only records from Russian sources ARGUMENT OF GREAT BRITAIN. 49 which refer to ceremonies of this kind chronicle presentations of medals on the Stikine or at Vakutat Bay. The Case and the Counter-Case of the United States dwell at some length upon the lease granted by the Russian Government to the Hudson's Bay Company as showing a recognition of title incon- *7 X •/ O CD sistent with the British interpretation of the Treaty. It is submitted that the transaction, if looked at fairly, does not support this inference. The lease was accepted as a'way out of the difficulty created by the stoppage of the " Dryad." The fair view of it is that it was accepted as a temporary cession of the Russian territory, whatever it was. The possession of the lisiere, however narrow it may have been, had given rise to a difficulty about the right of %j o «/ o passage. It might give rise to innumerable other difficulties at various points along the coast, and it is perfectly intelligible that the Hudson's Bay Company, which was, for general reasons, anxious to come to an understanding with the Russian Company, should think it good policy to anticipate all such questions up to Cape Spencer by an arrangement of this kind. After the arrangement was made they could and did carry on their operations everywhere except upon the islands, and it is not reasonable to suppose that they ever distinguished between What they enjoyed under the lease and what they enjoyed under the Treaty. It was sufficient for the Hudson's Bay Company to know that they had got rid of the Russian strip, which was an inconvenience to v CD X them: and this is the effect of the evidence given bv Sir George Simpson before the Select Committee of the House of Commons in 1857. What passed on that occasion has been submitted to a verbal scrutiny on the part of the United States, which extracts more 46 significance from it than, on a reasonable consideration of the circumstances, j.t is possible to do. Sir George Simpson was dealing with a difficulty which, for present purposes at any rate, had been overcome. To read his statement as containing any admission CD %J as to what effect the strip would have if its existence had been a practical matter is, as Great Britain contends, highly unreasonable. The Committee had a map before it. as to the character and true meaning of which some remarks will be made hereafter, and it was quite sufficient for the purposes of the Committee, which only required to refer to boundaries in the most general way, to treat the lisiere as indicated by such map. 50 ALASKAN BOUNDARY TRIBUNAL. The Counter-Case for the United States, however, puts forward the argument that one of the objects of the Hudson's Bay Company in taking the lease was to enable it to hunt the river beaver in the rivers of the lisiere, and evidence of a distinguished biologist is printed to show that the river beaver is only found in fresh water. There is no ground for the suggestion that the lease was wanted to enable the Hudson's Bay Company to hunt the river beaver. The documents quoted on p. 44 of the United States' Counter-Case, which state that the Russians regarded the object of the Hudson's Bay Company as being to " occupy the region where the natives living on the coast obtain river beavers," refer not to the territory ceded by the lease, but to the intended site of the Stikine post, to establish which the " Dryad " was fitted out. The river beavers, though trapped in fresh water, were traded for upon the coast. The American traders obtained these skins as easily as the British or Russians; and they at any rate had at this time no access to fresh water in this region. •/ CD It is now necessary to refer to the alleged action of the United ft/ CD States after that Power succeeded to the Russian title in 1867. In the Case and Counter-Case for the United States a good deal of space is devoted to the consideration of incidents that occurred upon or with reference to the Stikine. It is not perceived in what the importance of these matters consists. They only show the particular points at which on one side or the other the boundary was, on the different occasions alluded to, alleged to cross the river. It wTas some times asserted that the mountain boundary had been identified. At 47 other times the suggestion was that the 10-marine-leagues point was at such or such a point. These were questions of the local application of the Treaty only, not supporting the United States' construction of the Treaty. If the United States could point to any instance in which a measurement was taken advisedly from the head of tide-water, in order to ascertain the boundary point, it would be of importance. In point of fact, however, the only occasion on which a measurement was taken on accurate lines was when Mr. Hunter made his survey: and he measured from the general trend of the coast. With regard to Lynn Canal, the evidence is summarized at pp. 75-78 of the British Counter-Case, to which Great Britain requests the Tribunal to refer. The time which it covers may be divided into three periods—1867-1880, 1880-1885, and 1885-1903. ARGUMENT OF GREAT BRITAIN. 51 During the first period there is no evidence of any action of the United States except on certain occasions when their ships visited those waters. The country itself wras barred to white men by the local Indians, and no laws of the United States relating to Indians CD were applied or, indeed, deemed applicable. During the period from 1880 to 1885, though access to the country had been obtained by the whites, the effect was small. A trading station, two or three canneries, and a mission school represented the settlement. There was no effective system in operation for obtaining title to land, and no administration of affairs. Nothing can be pointed to as having occurred to direct the attention of Great Britain to this incipient settlement. During the last period, from 1885 to 1903, events of more importance occurred, the effect of which was gradually to bring into prominence the questions involved"*] n the application of the Treaty of 1825 now before this Tribunal. In order, however, to assign its proper degree of significance, with reference to the purpose for which it is adduced, to the evidence of what occurred locally, such evidence must always be considered in connection with the position of the two Governments concerned. This important topic will be dealt with hereafter, but, before doing so, it is necessary to consider the true bearing in this contro- / ft/ CD 48 versy, and in connection with the action of the Parties, of the «/ / ' maps relied upon on behalf of the United States. The publication of the Russian map of 1826, which was followed by others having, so far as material, the same characteristics, is referred to in the United States' Case as the first incident in the chain of events relied upon. Now the line which was drawn on the Russian map of 1826 was not, and could not have been, intended to be a line showing the actual result on the ground of applying the principles of the Treaty of 1825. On the contrary, it is a line which is obviously drawn in a manner inconsistent with the Treaty. The Treaty provided that the mountains near the coast were to furnish the boundary, and that it was only in the event of there being no such mountains within 30 miles of the coast that a line was to be traced parallel to the coast within that limit. This map shows at several points ranges of mountains much nearer the coast than the line which is traced as the boundary. It is obvious that the map-maker adopted the simple plan of tracing 52 ALASKAN BOUNDARY TRIBUNAL. a boundary-line at some distance from the sea, irrespective alike of the physical features of the country and of the provisions of the Treaty. Indeed, in one point of some importance this map is quite inconsistent with the argument for the United States. According to that argument, the head of such an inlet as the Lynn Canal is to be ^j 7 «/ treated as part of the coast, and the bounda^ should be set back from it as far as from the general line of the coast proper. An examination of this Map of 1826 shows that the line traced as that of the boundary is separated from the head of Lynn Canal by a «/ x «/ »/ distance much shorter than that wThich separates it from the general line of the coast at other points. It would therefore appear that the map-maker considered that the width of the lisiere at this point was to be measured from some point on the Lynn Canal far removed from its head. The map is: however, of no authority, and little can be based upon it on either side. i It is not proposed in the written argument in answer to this question to examine in detail the maps relied upon by the United States. They are all open to the observation that the map-makers have not been guided by the physical features of the country and have not attempted to apply to them the provisions of the Treaty. 49 THE DIPLOMATIC SITUATION AS AFFECTING ACTIONS OF PARTIES AND EVIDENCE OF MAPS. It is now necessary to present the British view of the diplomatic correspondence between the Parties, with reference to which the action locally of the United States and the evidence afforded by the maps must be considered. Between 1871 and 1878 there were various communications between the Parties with reference to a demarcation of the boundary, and stress is laid in the Counter-Case of the United States upon the circumstance that the boundary to be marked out was on one or two occasions mentioned as crossing the Rivers Stikine, Taku, and Chilkat. It will be found that the point to which the Parties were primarily directing their attention was the feasibility of saving the expense of a general demarcation by selecting a few points which should alone be dealt with. It is not unreasonable to suppose that those to whom this suggestion occurred simply referred to one of the maps drawn in the way which has above been referred to, and considered the financial problems involved in tracing such a line as that. The only occasion on whicli any measurement was actually ARGUMENT OF GREAT BRITAIN. 53 made was wrhen Mr. Hunter laid off the boundary, as he estimated it, upon the Stikeen. He measured it from the general trend of the coast, adopting a principle which is inconsistent with the theory that it would be an essential characteristic of the line that it should cut the rivers referred to; and, looking at the slight degree of attention which the problems presented by the Treaty had at that time aroused, it is submitted that the expressions referred to as to the line crossing these rivers are not of great importance. But whatever might have been the significance of these matters, if the case had rested there, it disappears in the light of the subsequent correspondence, which commenced with Mr. Bayard's despatch* of November, 1885. In that despatch Mr. Bayard, referring to 1867, writes as follows:— I The boundary was then, as it is still, a theoretical one, based, as it is fair to be presumed, on the charts which the negotiators had before them in 1825, and which they doubtless assumed to be a substantially correct expression of geographical facts." 50 He quotes Mr. Dall's report as showing that a line following the shore of the inlets would be impossible to locate, inasmuch as it would " cross itself in many, places and indulge in myriads of knots and tangles," and as establishing " the false geographical assumptions on which the language of the Treaty was based." Mr. Bayard further states that:— "The line traced upon the Coast Survey Map of Alaska, No. 960, is as evidently conjectural and theoretical as was the mountain summit line traced by Vancouver." In the Counter-Case for the United States this despatch of Mr. Bayard is treated as merely showing that Mr. Bayard, having regard to the difficulties of demarcation, seeemed to favour a conventional line. As the proposal was not acted upon, the Counter-Case continues, the correspondence has little present application, and its chief value lies in showing that no question concerning the true location of the line had arisen between Great Britain and Russia or Great Britain and the United States. This in no way meets the argument which Great Britain founds on this despatch. Great Britain does not refer to it merely for the purpose of extracting verbal admissions. The point is that this document shows that the line shown on the maps, which is now alleged 54 ALASKAN BOUNDARY TRIBUNAL. to have received binding force as the Treaty line from the action ol the Parties, much of it before 1885. was in 1885 not treated by the United States as the Treaty line. Mr. Bayard clearly states that the line shown on the maps was not a line in accordance with the Treaty. It was conjectural and hypothetical, based on false geographical assumptions. The United States now contends that a line substantially the same t/ as that referred to by Mr. Bayard gives effect to the Treaty, Whether this is so upon the construction of the Treaty is a question upon which Great Britain has already put forward her argument. But the United States insists that the action of the Parties has at any t/ rate established that line, and established it on the principle of the 10-marine-league boundary. This is absolutely negatived by the attitude of Mr. Bayard. It is obvious that no action of the Parties can have the effect 51 of interpreting the Treaty, unless it was taken avowedly as embodying an application of the Treaty provisions. Mr. Bayard's declaration is conclusive evidence against the United •/ CD States of the attitude of his Government upon this question. Under these circumstances the position is that the United States is now contending that the line shown on the maps embodied its interpretation of the Treaty, whereas in 1885 it treated that line as conjectural and hypothetical only; and, further, that it now contends that the line fulfilled the requirement of the Treaty that it should follow the sinuosities of the coast, whereas in 1885 it asserted that this requirement was impossible of fulfilment. It is to be observed that the object of these observations is not to forward the conclusion that any particular contention of the United States upon the construction of the Treaty may be rejected as wrong in itself, because contrary to a view formerly expressed on behalf of J %7 «y X that Power. As the matter is before the Tribunal upon its merits, such an argument would be of secondary importance. The point made is that the suggestion of the United States to the effect that the line propounded bj^ it has received the sanction of the Parties is absolutely disproved by the position taken by its Government with respect to it. Before leaving the subject of Mr. Bayard's despatch, it is necessary to advert to the statement upon which the United States lays so much stress,—that no question as to the location of the boundary ARGUMENT OF GREAT BRITAIN. had, as Mr. Bayard believed, arisen between Great Britain and Russia, and that certainly none had arisen between Great Britain and the United States. The whole scope of the despatch shows that this means merely that no question had been in fact agitated. It cannot mean that any matter on which there might be a question had been settled in advance. This 'entirely accords with the British contention. It may be mentioned, in order to deal once for all with this point, that the Counter-Case for the United States, in the same way, refers to a speech by Hon. R. W. Scott in the Canadian Parliament, in which he is reported as saying: " There was no dispute as to the boundary of Alaska." The sentence next quoted is: "It was settled in the Treaty of 1825." The sentence preceding is: " The question has been discussed in despatches 52 for twenty years." The meaning of the speaker is clearly that the boundary was one provided for by Treaty. It is out of the question to argue that the use of such language, either on the British or the American side, establishes that the action of the Parties had left no room for such controversies as those now before this Tribunal. 11 is not possible for the United States now to maintain that a line, which in 1885 Mr. Bayard, speaking officially for the United States to Great Britain, repudiated, had been, by the action of these two Powers, at any rate, before 1885, accepted as giving effect to it. Nor, in the face of that despatch, can the United States maintain that such has been the result of action since 1885. Mr. Bayard stated, as clearly as words could convey it, that the boundary shown on the maps, which is the boundary alleged to have been acted on, did not carry out the Treaty, and that the working out of the line was still to ft/ «y / CD be undertaken. This was the statement of the United States in view of anything that might have happened in the past, and Great Britain was entitled to rest upon it as applicable to anything that might happen in the future till the solution of the problem should have J)een undertaken. It is shown by what subsequently took place that the view put forward by Mr. Bayard, that the line was conjectural and hypothetical, was that which the Parties accepted. In forwarding Mr. Bayard's despatch, Mr. Phelps had asked to be supplied with a certain Canadian map, and, in complying with this request, the Earl of Iddesleigh expressly pointed out, with reference to the line denoted thereon, that no weight was to be attached to the 56 ALASKAN BOUNDARY TRIBUNAL. location assigned to it, inasmuch as the Treaty made the line dependent on alternative circumstances, the occurrence or non-occurrence of mountains. The comment passed upon this in the Counter-Case of the United States is that the note had no reference to the previous correspondence and did not in any way qualify or dissent from it. The contention of Great Britain is that this communication shows that the British Government was in exact accord with that of the United States in holding the view that the line referred to was not to be CD regarded as the Treaty line, and this not only on the ground that the O */ / «/ CD line had never been delimited, but on the ground that the facts 53 which would govern its character had not been ascertained. CD If, as now contended by the United States, that Government had been acting on the assumption that the line was, in substance, justifiable as the 10-marine-league line, it was to be expected that it would have been pointed out to Lord Iddesleigh that the question whether there were or were not mountains to carry the line was no longer regarded as open. In 1891 Congress provided for a preliminary survey of the Alaskan frontier, and, in a Report by the Director of the United States' Coast and Geodetic Survey, it was stated that such survey would have to be ft- / «/ carried " from Cape Muzon through the Portland Canal to the 56th degree of north latitude, thence north-westerly, following as nearly as practicable the general trend of the coast." In 1892 the two Governments signed a Convention for the appointment of a Commission to ascertain facts and data necessary for the permanent delimitation of the boundary-line in accordance with the spirit and intent of the Treaties. As has already been pointed out in the Case and Counter-Case, Great Britain contends that the making of this Convention absolutely negatives the idea that the course of the line which was to be run had in any wajr been settled by the action of the Parties. At the time that Convention was entered into the United States was aware of the interpretation of the Treaty put forward by Dr. Dawson in 1887, that the line might turn out to cross the inlets. Although that view had been informally put forward by Dr. Dawson, it had been officially noted by the United States. It was clearly stated in a letter to Sir Charles Tupper dated the 7th February, 1888. This letter was communicated by Sir Charles Tupper to Mr. Bayard, who caused it to be transmitted to Congress. This would ARGUMENT OF GREAT BRITAIN. 57 surely not have been done had not Mr. Bayard regarded the communication as the expression of a view which the United States' Government was asked to consider. Indeed, in transmitting to Congress the documents of which this letter is one, the President described them as considered of value as bearing upon a subject of great international importance which should be put in shape for public information. The importance of Dr. DawTson's suggestion does not appear to be fully appreciated in the Counter-Case of the United States, 54 where it is dismissed with the remark that it cannot be seriously claimed as official, or that any Government would adopt such a method of making its position known on such a question. Even if this were so, it is not suggested by Great Britain that the oo «/ United States acquiesced in Dr. Dawson's views. The point is that Dr. Dawson's theory was not treated as putting forward a construction which Great Britain w7as estopped from asserting. Its importance arises in view of the generality of the provisions of the Convention of 1892. If the position of the United States had been that the action of the Parties had determined substantially the course of the line, it is not conceivable that being in possession of views, which might be put forward, so much at variance with the principle which is supposed to have been established, that having treated the expression of those views as of sufficient importance to be embodied in a report laid before Congress, the Government of the United States would have entered into a Convention for the ascertainment of the boundary merely in accordance with the spirit and intent of the existing Treaties. Great Britain contends that the Convention of 1892 recognized the question of the proper location of the boundary as absolutely open in every respect, to be determined according to the spirit and intent of the Treaties when the neccessary data had been obtained. It has apparently been thought worth while to devote some eight pages of the United States' Counter-Case to setting forth the different views which have at different times been put forward in Canada as to the position which the line would occupy when laid down, and to point out that they do not accord with one another or with the line submitted in the British Case as that which the Tribunal should adopt in answering the Seventh Question. It is sufficient to point out that the question before the Tribunal is not whether Canada has called for the recognition of any particu- . 58 ALASKAN BOUNDARY TRIBUNAL. lar line. Great Britain submits no such contention. The United States on its side does contend that the action of the Parties has given authority to a particular line as the Treaty boundary, but it cannot force upon Great Britain the adoption of a competing theory of the same kind. The contention of Great Britain is simply that after all the views and arguments put forward, and all 55 the opinions expressed upon the subject, the questions put to the Tribunal are put to it for the purpose of obtaining an answer upon the true meaning of the Treaty. The United States' Counter-Case dates the commencement of this publication of the divergent viewys referred to as far back as 1885. This is seven years before the Convention of 1892, and approximately contemporaneous with the despatch of Mr. Bayard. If the fact that these views were expressed is in any way material to the questions asked of this Tribunal, it is as negativing the contention of the United States that the line contended for by that Power received the assent of Great Britain or of Canada. It is at any rate impossible for the United States to insist that since 1885 its own application of the Treaty has been acquiesced in, and at the same time use against Great Britain, as affecting the position of her Government in this controversy, the variety and inconsistency of the suggestions put forward by those espousing her cause. As to the attitude adopted before 1885, it has already been shown in the despatch of Mr. Bayard in what position the boundary question stood at that date. The work of the Commission appointed under the Convention of 1892 was done on the side of the United States under the direction of Dr. T. C. Mendenhall. As was pointed out in the British Case, his instructions to his" subordinates clearly contemplated, at least in the case of the Stikeen and the Taku, a measurement from the general trend of the coast, and the points marked as the 30-mile limit are not 30 miles from the upper extremity of salt or tidal water. In the United States' Counter-Case this circumstance is treated as if Great Britain were founding an argument on ' an CD CD expression' of Dr. Mendenhall's, " which might be construed into an admission," and it is thought worth while to explain that he carried his survey inland from the head of Lynn Canal, and even to print a magazine article from his pen to show that his personal view of the question was not in accordance with the British contention. This does not meet the point made by Great Britain. No ARGUMENT OF GREAT BRITAIN. 59 appeal is made to Dr. Mendenhall's private convictions. The point made upon the Convention of 1892 and Dr. Mendenhall's official action under it is that the British contention had not been 56 negatived by the action of the Parties. It is insisted by the United States that the"*word " coast" had long before 1892 CD been construed bv the acts of the Parties to mean the shore of the inlets; and that the contention that it must be confined to the general trend of the outer face of the coast was not open to Great Britain. The latter Power maintains that the Convention of 1892 shows that this and every other contention was admittedly open, and in proof of this she points to the action of the United States' Commissioner, who was there to apply the provisions of the Convention of 1892, taking measurements which would not be material unless the British contention was open. The fact that Dr. Mendenhall, who was a practical, surveyor of the highest distinction and the Representative of the United States, seems naturally to have discarded the line of salt or tidal water as «/ the " coast' from which he was to measure, is, of course, referred to by Great Britain as showing that that line must have been treated as incapable of fulfilling the requirements of the Treaty, and that it is necessary, in order to make the Treaty work, to contemplate the possibility that waters of inlets may have to be regarded, as Dr. Mendenhall regarded part of the Taku inlet, as within and not outside the line of coast. It is not assumed that Dr. Mendenhall realized that the consequence of the principle he adopted would be to give to Great Britain the head of every inlet more than 30 miles long or penetrating the mountains. But the principle must not be tested by the acceptability of the result. For the present, however, it is enough to refer to this incident as showing that the principle contended for by Great Britain, which leads to the results so strongly resisted by the United States, was clearly not regarded at any rate as necessarily wrong. The United States' Counter-Case further points out that Dr. Mendenhall, with the assent of the Canadians, surveyed the country at the head of Lynn Canal. It would have been very strange if this had not been done. Great Britain, though she contests its correctness, has never contended that the United States is precluded from urging ijts claim to a boundary in that region. S. Doc. 162, 58-2, vol 5- -19 60 ALASKAN BOUNDARY -TRIBUNAL. That Dr. Mendenhall's opinion was not an unnatural or unusual one from the United States' point of view is evidenced by the fact that it coincided precisely with that of the United States' 57 Coast and Geodetic Surveyor, Mr. F. M. Thorn. Sir Julian */ / Pauncefote, writing to Mr. Blaine the 5th June, 1891, inclosed the following passage from the last published report of the United States' Coast and Geodetic Survey, written by Mr. Thorn:— " By recent Congressional enactments a preliminary survey of the frontier line between Alaska and British Columbia, in accordance with the plans or projects approved by the Secretary of State, has been placed in charge of this Bureau. Such a preliminary survey, involving the determination of a number of points in geographical position and their complete marking by permanent monuments, will have to be carried from Cape Muzon through the Portland Canal to the 50th degree of north latitude, thence north-westwardly, following, as nearly as practicable, the general trend of the coast, at a distance of about 35 miles from it, to the 141st degree of west longitude, and thence due north- to the Arctic Ocean, a total distance of about 1,400 miles." It is clear, therefore, that Mr. Thorn entertained precisely the same view as Dr. Mendenhall, and that, in his opinion, the measurements necessary to fix the limiting 10-marine-league line should be made from " the general trend of the coast." In the Appendix to the United States' Counter-Case some correspondence is published between the Secretary of State of the United States and the Honorable John Foster with reference to what took- place at the conferences between the British and the United States' Delegates at the State Department, in Washington, in February, 1892. According to Honourable Mr. Foster, " the discussion was of very brief duration and relating merely to the questions which had arisen as to the point where the line crossed the Stickeen River, and the inconvenience occasioned by this existing uncertainty. No %/ ^D 17 assertion was hinted at of - British claim to the heads of inlets or of any rights on Lynn Canal.' The Tribunal will be asked to con- sider, in answer to this statement, certain other correspondence which has recently passed between the British Agent before the Tribunal and the Honorable Sir Mackenzie Bowell, K.C.M.G., formerly / / V Prime Minister of Canada, and the present Leader of the Opposition in the Senate of the Dominion, who was one of the British Delegates present at the Conferences. It appears from the Congressional records of the 3rd Jan- 58 nary, 1896, that the Alaskan boundary question was on that ARGUMENT OF GREAT BRITAIN. 61 day brought before the Senate by Senator Squire, who read a Report from a Committee of the Chamber of Commerce at Seattle. That Report puts forward arguments against " the pretensions of Canada to any of the canals, bays, or inlets to which claims are now being set up." It also specifies the Canadian claims, one of which was as follows:— That the eastern boundary-line in its extension from the point where it strikes the 56th degree of north latitude shall follow an alleged range of mountains arbitrarily crossing and cutting off the heads of bays and inlets, the ownership of which by the United States has hitherto been unquestionable. The Congressional Record of the 12th February, in the same year, shows that on that day the subject was again discussed, this time in the House of Representatives. On that occasion Mr. Pitney, Member for New Jersey, drew attention to the Canadian claims. «/ / On the Canadian side of the question [he said] two claims are made. In the first place they claim that while there is no range of mountains distant 10 marine leagues from the coast or thereabouts, there is a range of mountains very near to the coast of the mainland, and that a line should be run there near the coast, which would leave in British territory a large part of Taku Inlet, and a large part of Lynn Canal, two great estuaries which extend into the interior. This would bring the British possessions down very close to the ocean, and at the same time the American territory of Alaska would be dismembered, &c. It is clear, therefore, that in 1896 both Houses of Congress weie in possession of the Canadian contention as now put forward in this arbitration. It is interesting to note that Mr. Pitney, speaking descriptively of the region in question, describes the inlets as penetrating into the interior, and describes the line which cut those inlets as " near to the ocean." Immediately before the Joint High Commission met at Washington in 1898 the United States Government was supplied with a copy of Lord Salisbury's despatch of the 19th July, 1898, setting forth the views of Her Majesty's Government upon the boundary question. This despatch described the provisional boundary which had been agreed upon at the head of Lynn Canal as being more than 100 miles from the Ocean. Inasmuch as the line is not to be 59 more than 30 miles from the ocean, this passage was inconsistent with the view that the line was to pass round the head of Lynn Canal. But in the Memorandum delivered by the Government of the United States in answer to this despatch it was merely stated 62 ALASKAN BOUNDARY TRIBUNAL that the Report of the Joint Commission had made it possiole, in accordance with the stipulations contained in the Treaty of the 22nd July, 1892, to proceed to consider and establish the boundary, and that the Government of the United States would expect the Joint High Commission to seek to execute this stipulation by an agreement as to the boundary as fixed by the Anglo-Russian Treaty of 1825, and the American-Russian Treaty of 1867. It appears, therefore, that the location of the line was accepted as being an entirely open question upon the true interpretation of the boundary Treaty. For these reasons Great Britain submits that none of the actions of the Parties alleged by the United States was accepted as taking place with reference to any line as a true application of the Treaty, but that the line with reference to which it is contended such action has occurred has been throughout regarded as theoretical and conjectural, awaiting for its true location the solution of the geographical problems involved. One further observation has to be made with reference to the manner in which the action of the Parties has been dealt with in the Case and Counter-Case of the United States. The matters relied upon by the United States have been put forward individually instead of being looked at as a whole. The maps showing the line so often O X o referred to are pointed to as showing that the United States is entitled to the inlets. Various incidents and expressions are collected as showing that the United States is entitled to the 10-marine league limit on the Stikeen. A number of acts are alleged as proof that the headwaters of Lynn Canal and the land adjacent are in United States territory. Such points cannot be appreciated except by the light of the Treaty and of the diplomatic action of the twro Powers interested. If, as contended by Great Britain, the working out of the Treaty was regarded as between the two Governments as an open question in all its aspects, it is impossible to attribute to any particular 60 action or course of action in or with reference to any particular place, the effect of showing an interpretation of the Treaty prejudging or limiting the questions to be solved. In the British Counter-Case the action alleged by the United States in the region in dispute was examined concurrently with the diplomatic correspondence, and that correspondence has been further examined in this argument. ARGUMENT OF GREAT BRITAIN. 63 In the Counter-Case of the United States, however, reference is made to statements by public men in Canada, which are alleged to throw light upon the position taken by Great Britain. A statement made by the Hon. Mr. Scott has already been referred to in another connection, but there are also statements by the Hon. Clifford Sif- ton, Minister of the Interior, and Sir Wilfrid Laurier, the Prime Minister. The point for which these statements are referred to by the United States is that the possession by the United States of Dyea and Skagway is described as undisputed. If the text of these statements is referred to, it will be seen that the Ministers in question were merely pointing out that the possession by the United States was, in fact, complete at the moment, and that it was impossible for Great Britain to take possession. It is impossible to read into these statements an admission that the possession was regarded as precluding the question of right. The Minister of the Interior says:— " I believe our contention is that Skagway and Dyea are really in Canadian territory, but as the United States has had undisputed possession of these for some time past, we are precluded from attempting to take possession of that territory." The two statements of the Prime Minister referred to must be read together; and in his first statement the Prime Minister said:— "The advantages of the route by the Lynn Canal were that it was shorter and more direct than the route by the Stikine River. But if we had adopted the route by the Lynn Canal, that is to say, had chosen to build a railway from Dyea by the Chilkat Pass up to the waters of the Yukon, we would have to place the ocean terminus of the railway upon what is now American territory. I agree with the statement which has been made on the floor of this house on more than one occasion, that Dyea, if the Treaty is correctly interpreted, 61 is in Canadian territory. It ought to be; but the fact is, as my honourable friends know very well, even those who do not belong to the legal profession, that possession is nine points of the law; and even though by the letter of the Treaty Dyea is in Canadian territory, the fact remains that from time immemorial Dyea was in possession of the Russians, and in 1867 it passed * into the hands of the Americans, and it has been held in their hands ever since." In his second statement the Prime Minister pointed out that when the American authorities were in possession it became manifest to everybody that at that moment Canada could not dispute their possession, and that before their possession could be disputed the ques- ALASKAN BOUNDARY TRIBUNAL. tion must be determined by a settlement of the question involved in the Treaty. Upon the whole of the materials now before the Tribunal Great Britain submits that when the action of the parties is looked at in the light of the diplomatic communications, and regard is had to the character of the line depicted on the maps with which such action is alleged to have corresponded, it cannot be said that any effective understanding has been proved which would leave the Tribunal to give any other construction to the Treaty than that which most naturally flows from the language employed. I SIXTH QUESTION. The Sixth Question put to the Tribunal is somewhat difficult to construe. It is in the following terms:— CD " // thS foregoing question should be answered in the negative, and in the event of the summit of such mountains proving to be in places more than 10 marine leagues from the coast, should the width of the lisiere which was to belong to Russia be measured (1) from the mainland coast of the Ocean, strictly so-called, along a line perpendicular thereto, or (2) was it the intention and meaning of the said Convention that where the mainland coast is indented by deep inlets forming part of the territorial waters of Russia, the 62 width of the lisiere was to be measured (a) from the line of the general direction of the mainland coast, or (b) from the line separating the waters of the Ocean from the territorial waters of Russia, or (c) from the heads of the aforesaid inlets?" The question only arises if Question Five is answered in the negative, that is to say, in accordance with the British contention, and it only arises with reference to the 10-marine-league limit. Under »/ <D these circumstances the question requires the Tribunal to decide in the first place whether the width of the lisiere is to be measured from the mainland coast of the ocean, strictly so-called, along a line perpendicular thereto. In answer to this, Great Britain contends' that the width of the lisiere should be measured from the line of the general trend.of the coast of the ocean, strictly so-called, along a line perpendicular to such general trend, reproducing such wind- >"fa^ ARGUMENT OF GREAT BRITAIN. 65 ings of the coast as may be fairly said to modify the general trend and are of such dimensions as admit of being reproduced by a line drawn 10 marine leagues inland as contemplated by the Treaty. The arguments in support of this view are those which have been put forward in answer to Question Five, from which the conclusion above stated naturally follows. The second branch of the Sixth Question contemplates the Case in which the mainland coast is indented by deep inlets forming part of the territorial waters of Russia, and specifically asks the Tribunal how the line is to be measured where such inlets occur. But this branch of the question, like the other, only arises if Question Five is answered in the negative and in the event of mountains failing to afford a boundary. The answer suggested by Great Britain is that, where inlets occur, forming part of the territorial waters of the Power owning the shores on either side (which Power at the mouth of the inlet upon the coast would be Russia, but may be either Russia or Great Britain higher up the inlet), the width of the lisiere is to be ascertained from the course which a line giving effect to the general trend of the mainland coast would follow in crossing the inlet; the coast-line being regarded as carried across the mouth of the inlet from headland to headland, and the 10 marine leagues inward being / ^D CD 63 measured on the same principle as the 3 marine leagues of territorial water is measured outwards. The authorities to which Great Britain refers, in support of this view, are set forth at some length in the British Counter-Case, and it / CD * - is not proposed.to reproduce them here, especially as it is not anticipated that the general doctrine of international law, as there stated, is disputed by the United States. The Sixth Question suggests three alternative systems of measuring the line in the events presupposed, viz., {a) from the line of the general direction of mainland coast; {b) from the line separating the waters of the ocean from the territorial waters of Russia; {c) from the heads of the inlets. With regard to the last alternative, this seems to Great Britain to contradict the hypothesis on which the question itself is put, namely, that the Fifth Question is answered in the negative. As revealed by the argument already adduced in answer to Question Five, Great ALASKAN BOUNDARY TRIBUNAL. Britain contends that the line is not to be measured from the heads of the inlets, because they are not upon the coast or upon the ocean. With regard to the other two lines indicated in the question, namely, the line of the general direction of the mainland coast and the line separating the waters of the ocean from the territorial waters of Russia, Great Britain conceives that these are substantially the same, the territorial waters referred to being such as break through the line of the coast. The Treaty, howrever, refers to the coast and in the supposed case of waters inside the general line of the coast, but not territorial, the line from which the width of the lisiere would have to be measured would be the coast-line and not the limit of territorial waters. SEVENTH QUESTION. The Seventh Question is " What, if any exist, are the mountains referred to as situated parallel to the coast, which mountains, when within 10 marine leagues of the coast, are declared to form the eastern boundary " ? 64 As already pointed out in the British Counter-Case, the British case is that such mountains exist, and that the description is satisfied by those indicated on the map, and referred to and set forth in the declaration and statement of Mr. W. F. King, British Commissioner on the 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 examin- «/ ing the topographical conditions met with in tracing the line. THE UNITED STATES' CONTENTION. The United States' Case, on the contrary, contends:—" That there is not at any point within 10 marine leagues of tide water, between the head of Portland Canal and the 141st degree of longitude west of Greenwich, the whole or any part of a continuous range of mountains parallel with the sinuosities of the coast and extending from Portland Canal to the said 141st degree of longitude; and therefore the width of the lisiere, above described, is not limited by a boundary ARGUMENT OF GREAT BRITAIN. line along the summit of such range, but solely by the agreed distance of 10 marine leagues from tide water," and " requests the Tribunal to answer and decide that such mountains do not exist within 10 marine leagues from the coast." The line of demarcation is accordingly drawn from the point situated on " the 56th parallel of north latitude; thence northwesterly, always 10 marine leagues from tide water, around the head of Lynn Canal; thence westerly, still following the sinuosities of the coast at a distance therefrom of 10 marine leagues, until the line intersected the 141st meridian of longitude west of Greenwich." The United States, therefore, discards the mountain boundary altogether, and draws a line of demarcation in the interior of the continent at a distance of 10 marine leagues from tidewater at the heads of inlets, and at no point influenced by the existence of mountains. Before again discussing the British contention and the line 65 drawn in accordance with it, it may be well to compare the line as drawn by the United States with the intentions of the negotiators, as expressed in the correspondence and finally in the Treaty, to show in how many ways it conflicts with the Treaty requirements, and to indicate some consequences necessarily involved in the repudiation of the possibility of a mountain boundary. The negotiations on this point are absolutely clear. Mr. G. Canning's letter of the 8th December to Mr. Stratford Canning, and Count Nesselrode's letter to Count Lieven, inclosing the Treaty, / CD %/ / after it hael been signed, are all the evidence that is necessary. " The Russian Plenipotentiaries," wrote Mr. Canning, " propose to withdraw entirely the limit of the lisiere on the coast which they them- «/ ft/ selves were the first to propose, viz., the summit of the mountains which run parallel to the coast, and which appear, according to the map, to follow all its sinuosities, and to substitute generally that which we only suggested as a corrective of their first proposition. We cannot agree to this change." " The Emperor," wrote Count Nesselrode, " would have found it more mutually just, more equally advantageous, if the natural frontier formed by the mountains bordering the coast were adopted by both parties as the invariable line of demarcation. England would have gained thereby wlierever those CD ^D f mountains were less than 10 marine leagues from the sea; Russia, wherever that distance was greater. ' * * * However, Mr. Strat- 68 ALASKAN BOUNDARY TRIBUNAL. ford Canning having declared that his instructions did not permit him to entertain the wishes which we had expressed to him on this point, the Emperor, in order to give His Britannic Majesty a last proof of his friendly feelings, authorized us to sign the act in question, such as I have the honour to transmit it to your Excellency." It is clear then, not only that the mountains were to constitute the boundary within the 10-league distance from the coast, but also that the 10-league limit was employed not as a boundary generally, but as indicating • the extreme distance beyond which the mountain boundary should not be followed. The very concession, therefore, which England stood out for, which Russia regretfully conceded, and wThich was finally embodied in all solemnity in the Treaty itself, vanishes into thin air 66 under the United States' method of drawing the line of demarcation. It has renewed the attempt, abortive in the Russian case, | to substitute generally that which we only suggested as a corrective of their first proposition," and has put forward a contention, which is not only opposed to the terms used by the negotiators, but which, if successful, would effectually wipe out one of the most important stipulations of the Treaty. The repudiation of the mountain boundary, and consequent obliteration of a most important portion of the Treaty, does not get rid of the stipulation as to the manner in which the line of demarcation must necessarily be drawn. Whenever recourse is to be had to the 10-marine-league line as constituting the boundary or any portion of it, it is to be " a line parallel to the windings of the coast, and which shall never exceed the distance of 10 marine leagues therefrom." This is an unambiguous and imperative demand made by the Treaty, a condition from which escape is impossible so long as the Treaty continues to exist. In the United States' Case, the line is stated to be drawn at a distance of 10 marine leagues from tide-water at the heads of inlets, and at the same time " northwesterly, always 10 marine leagues from tide water, around the head of Lynn Canal; thence westerly, still following the sinuosities of the coast at a distance therefrom of 10 marine leagues, until the line intersected the 141st meridian of longitude west of Greenwich." As a matter of fact, the line is not so drawn, and could not by any possibility be drawn 10 marine leagues from tide- ARGUMENT OF GREAT BRITAIN. 69 water at the head of Lynn Canal, and at the same time at an equal distance from the sinuosities of the coast. This proposition can be discussed without entering upon a minute consideration of what is and what is not " coast " within the meaning of the Treaty. If Lynn Canal, which penetrates the Continent a «/ %/ / x distance of 75 nautical miles, is a sinuosity of the coast, the windings in the great general trend of the coast of the ocean are sinuosities also. The provision of the Treaty is that the line of demarcation shall be parallel to and at no greater distance than 10 marine leagues from all the sinuosities of the coast. In other words, it is not to run parallel to and at a distance of 10 marine leagues from such 67 sinuosities only as the United States chooses to select. How7 can a line drawn 10 marine leagues inland from tide-water at the head of Lynn Canal be just 10 marine leagues distant from the sinuosities of the Ocean coast itself, which is confessedly 35 leagues distant from the line in question? And how can it be claimed that a line parallel to the east coast of Lynn Canal is also parallel to the Ocean coast between Lynn Canal and Taku Inlet, a coast extending in a direction almost at right angles to it? How impossible it would be to draw such a line is well exemplified by the line oh Map 2 of the Atlas accompanying the United States' Case. Throughout the whole length of the line there drawn it is possible to find only one or two points which are not more than 10 marine leagues from the windings of the ocean. A line drawn from Juneau perpendicular to the shore line to the United States' line of demarcation measures 17 marine leagues in length; the shortest line is 15 leagues. Stephens Passage, at Taku Harbour, is 16J leagues from the line; Cape Fanshaw is at the same distance; and a line from the coast of the continent at 56° north latitude, by its shortest course, must be carried 16J leagues inland to the boundary-line. Cape Spencer, at its nearest point, is 26 leagues away: along a line at right angles to the ocean coast northwesterly «/ 7 O O O */ from the Cape, it is distant 31 leagues; while a line drawn midway between the two directions measures 39 leagues. Similarly a line drawn from Point Couverden at the south-west entrance of Lynn Canal to the line of demarcation measures 36 leagues. Scaled with a rotameter on the map, the United States' line from the point on the 56° of north latitude to the 141° of longitude 70 ALASKAN BOUNDARY TRIBUNAL. is about 540 miles in length, and yet throughout this whole distance it comes within 10 marine leagues of the coast of the great ocean at CD ^2 no more than three points. It cannot be pretended that such a line is at all points 10 marine leagues distant from the windings of the coast. If the sinuosities of the coast generally were to be disregarded, and the direction and distance of the line w^ere to be determined only with regard to the shores of Lynn Canal and other fjords penetrating the interior, this even has not been done. It has been drawn at a distance of 10 marine leagues from tide-water at the head of 68 Lynn Canal, but while a line can be drawn at a distance from a point it cannot be drawn parallel to a point. And yet, if the shores of inlets are in reality, as is contended in the United States' Case, the coast of the ocean, why is not the 10-marlne-league line drawn at that distance from, and parallel to, the east and west shores of Lynn Canal, and parallel to the shores of the other inlets? At no point of its course is this done. The windings of the shores of the inlets equally with the windings of the coast of the ocean are completely ignored, and a boundary flung far inland, parallel to nothing, and at 10 marine leagues distant from " tide-water," although tide-water is not mentioned in any part of the Treaty, from beginning to end. It is not surprising that, pursuing such methods, the United States is able to lay claim to a "uniform" lisiere, 32,000 square miles in area, whereas even in the absence of a mountain boundary no such / ft/ area could be contended for. This can easily be made plain. The line of rear boundary, even as drawn by the United States, has been shown to be about 540 nautical miles, or rather less than 630 statute miles in length. The utmost width of the lisiere in the absence of a mountain boundary would be rather less than 35 statute miles. The total area, therefore, wrould not exceed 22,050 square miles. Yet in the Counter-Case of the United States the acknowledgment is made that the line of demarcation has been so drawn as to allow a lisiere of about 32,000 square miles, that is, nearly 10,000 square miles, or 50 per cent., more than would belong to them on the basis of a line drawn parallel to, and at a distance of 10 marine leagues from the rear boundary. Strangely enough, in complete opposition to the contentions now put forward, the United States, throughout its Case and Counter- ARGUMENT OF GREAT BRITAIN. 71 Case, has made every possible effort to establish a mountain boundary as the real line of demarcation. How absolute is the inconsistency between the United States' contention and the evidence offered in the Case and Counter-Case, will appear from the following references:— - Lieutenant Schwatka, United States' army, whose military recon- « ft/ naissance, made in 1883, is published as part of the United States' Counter-Case, says— 69 "The fact that the country beyond Perrier Pass" (Chilkoot Pass) "in the Kotusk Mountains, lies in British territory (as shown by our astronomical observations and other geographical determinations when brought back and worked out) lessens the interest of this trail beyond the pass to the military authorities of our Government." Brigadier-General Howard in his Report to the Assistant Adjutant-General, Head-quarters Military Division of the Pacific, on his tour of Alaska in 1875, says of the boundary on the Stikine— / «/ %/ I Some of our shrewd frontiersmen say that it is not 10 marine leagues from the sea, as it should be, there being really doubt as to the summit of the coast range of mountains." The Acting Secretary of the Navy in his Report to the Secretary of State, the 6th April, 1903, states that the naval officials— 1 Frequently dispatched armed parties up the Chilkoot and Chilkat rivers and to the mountain passes beyond the head of the inlets of Lynn Canal." Mr. W. H. Dall, A. M.. in his Report to Mr. Bayard, the 13th February, 1888, speaks of— 4 The transit of British miners from the coast over, for instance, the Chilkoot portage for the purpose of mining in British territory." On the 16th June, 1887, Lieutenant-Commander Xewell complained to the Secretary of the Navy of the Stick Indians, inhabiting JL %J %7 CD the interior, who " are British subjects," coming into the United / if o .States' territory for the purpose of packing over the trails. " It would be better," he writes, " if they confined themselves to their own territory which begins at the summit of the divide." Lieutenant McCrackin on board the " Pinta' twice refers to the same boundary in his Report to Lieutenant-Commander Newell in describing his trip over the Chilkoot trails. Of the summit of the CMlkoot Pass, he says— / «/ " As this summit is the highest land on the trail between the Taiya Inlet and the Yukon River, it is probably on the boundary-line between Alaska and Brit- 72 ALASKAN BOUNDARY TRIBUNAL. ish America, so the party did not go beyond it, except to look at Crater Lake, which is not all visible from the very summit." 70 Later in the same Report he says— " The Chilkoots do not appear to be anxious to pack beyond the summit, and it would seem proper for the Stick Indians, who are British subjects, to do the packing on their own territory, and confine themselves to their own side of the mountains." An affidavit is printed from William Moore with reference to the Ogilvie expedition, in which he states that— " By orders of the Navy Department at Washington, the United States' gunboat ' Pinta' accompanied the expedition from Haines Mission on Lynn Canal to the head of Lynn,Canal, and there remained until the Ogilvie expedition had safely passed over the summit of Chilkoot Pass," and that the commander of the " Pinta" accompanied said expedition to the head of Lynn Canal " under instructions from the Navy Department of the United States, for the purpose of assisting said expedition from the shores of the head of Lynn Canal past a point on the crest of the mountains north of the head of Lynn Canal." He further alleges, on oath, that during all the time of his residence at Skagway all property rights had been treated as subject to United States' jurisdiction, as far " as the passes of the mountains," and that all litigation had been determined by United States' Courts " on the shore of Lynn Canal or north as far as the passes of the mountains." Similar statements are made in his formal deposition with regard to the exercise of authority by the officials of the United States' army, " as far as the passes north of Skagway and Dyea," and it is averred that British officials at no time attempted to assert jurisdiction " at any point' south of the passes in the mountains north of Dyea and Skagway Bay." Robert Wright, a citizen of the United States, resident at Dyea, makes similar and even more detailed statements on oath with regard to the exercise of all branches of jurisdiction by the United States, " as far north as the summit of the mountains north of Skagway Bay and Dyea," and points out that the pursuit of William Leak up the Chilkoot Pass was abandoned at the summit. He adds that he had never known of the exercise of British authority nearer " than a point inland beyond the summit of the mountains." 71 Joseph Carr's affidavit is printed to prove a similar series or facts, care being taken to again draw the line of jurisdiction ARGUMENT OF GREAT BRITAIN. 73 I at the summit of the passes of the mountains north of Dyea and Skagway, Alaska." It is thought necessary by the United States to publish an affidavit by Don-a-wak, a Chief of the Chilkats, to prove that he and his people from 1867 onwards had recognized the authority of theUnited States " at least as far as the summit of the mountains from the heads of the various inlets." Edward Armstrong and E. B. Clark relate on oath and with great CD O detail similar acts of jurisdiction " as far inland therefrom as the summits of the passes of the mountains." In the United States' Counter-Case, even as late as the 27th March, 1903, Mr. Sol Ripinski, United States' Commissioner at Haines, is called to give evidence on oath to the same effect:— " During all my residence in Alaska," he says, " all notices of location, evidences of title, and the means of enjoyment of rights have been evidenced, claimed, and protected under and by virtue of the laws of the United States; and all records in reference to titles or interests in lands or other property have been made in accordance with and under the jurisdiction of the laws of the United States in the country adjacent to said bodies of water as far as the summit of the passes adjacent to said bodies of water." It is, therefore, evident that throughout the United States' Case and Counter-Case every effort possible has been made to prove that British jurisdiction began, and United States' jurisdiction ended at the summit of the Chilkoot Pass, the " crete " of the mountain boundary. To accomplish this, reports of officers of the army and navy, letters and affidavits of officials of the various branches of the public service, and of citizens who have lived for varying periods in the neighbourhood of Lynn Canal, and depositions of Indian Chiefs even, have been collected with great care, and printed as a substantive part of the United States' Case for the consideration of the Tribunal. The material in many cases has been put in the solemn form of sworn depositions. Indeed it is safe to say that more industry has been evinced in the attempt to show that a mountain boundary forms the division between British and United States' territory than to */ establish any other branch of the United States' Case. ft/ 72 Repeated appeals are made to the line of demarcation as fixed by the practice of United States' officers, officials, and citizens, and, on examination, that line proves to be the mountain boundary. 74 ALASKAN BOUNDARY TRIBUNAL. The Tribunal is now asked to answer Question Seven by deciding that " such mountains do not exist within 10 marine leagues from the coast." The mountain boundary is rejected, and it is sought to draw the line of demarcation 10 marine leagues from the head of Lynn Canal, many leagues in the interior beyond the summit of the Chilkoot and White Passes. The rejection of the mountain boundary, therefore, involves the repudiation of all the reports and depositions above referred to, and of a great portion of the evidence put forward of alleged United States' occupation. Not only has a great mass of the evidence of American occupation to be discarded to make way for the novel contention now put forward by the United States, but most of the cartographical evidence, upon which so much stress is laid, has, for this purpose, to be discarded as well. Throughout the United States' Case and Counter-Case repeated appeals are made to the testimony of the maps, and great weight is sought to be attached to the so-called evidence which they afford. " The boundary of the ceded territory as claimed by Russia, and accepted by the United States," it is said, " was recognized by all cartographers and geographical writers." " The universal method followed by cartographers in drawing the boundary line at 10 marine leagues from the shore of the mainland t/ O shows," it is said, " that it was their opinion that no dominant range existed between that line and the sea." And in the Counter-Case vigorous reference is made " to the universal understanding by cartographers and by Governments for 75 years." An examination of the various maps cannot fail to show that no such unanimity exists. Brue's Map, published at Paris in 1833, shows the boundary-line following the crest of the mountains all the way from Portland Canal to Mount St. Elias, with the exception of a short break from Mount Fairweather north. Greenhow's Map, published in Philadelphia, 1844, makes the boundary-line follow mountains the whole way from Portland Canal, past Mount St. Elias, to the 141st meridian. In De Mofras' Map, Paris, 1844, the boundary is made to 73 extend along a line of mountain summits for the whole length of the lisiere, except between Portland Canal and Stikine River. Part of Map of Manitoba, Keewatin, British Columbia, &c, Mon- ARGUMENT OF GREAT BRITAIN. 75 treal, 1880, shows a continuous mountain boundary, and a line drawn 7 J «/ / along its crest from Portland Canal until the line leaves the map. Map of Alaska accompanying report of Ivan Petroof, United States' Special Agent, Tenth Census, 1880, shows the line following mountain summits all the way. The Petroof maps of 1882 also show the line following mountains, except where it crosses Lynn Canal. Part of Map of British Columbia, plate 72, Stanford's Atlas, 1887, shows a line drawn along the crest of a mountain boundary through o ft/ O a considerable portion of the lisiere. The Map from Keith Johnston's Royal Atlas, 1894, also has a mountain boundary along a great part of the lisiere. In part of Map of British Columbia, plate 39 E of Black's General Atlas, 1898, the boundary-line is again drawn along the crests of mountain chains and masses nearly all the way. In the Appendix to the United States' Counter-Case, a list is printed of maps which are to be produced before the Tribunal. On Philips' Imperial Atlas of the World, London, 1890, " the line is drawn quite close to Lynn Canal, apparently upon the summits of the mountains rising directly from the sea." In a very large proportion of the Maps published in support of the United States' Case, only one or two mountains are represented as accurately located. And in these cases the line is almost invariably deflected to pass through them. The United States' line as now drawn passes 10\ marine leagues to the rear of Mount Fairweather. A reference to the maps which are said to support this method of demarcation will show the boundary deflected to Mount Fairweather, t/ / 10J leagues nearer the coast, on the following:— l£. Part of A. Arrowsmith's Map of North America, published in 1795, and revised in 1833. 14. Part of "A Map of North America," constructed, according to the latest information, by United States, Tanner, 1839. /ft/ / / 15. Greenhow, before referred to. 16. De Mofras', before referred to. 17. Bouchette, 1853. " % 74 21. Part of Perthes' Map of the World, 1863. 23. Part of the British Admiralty Chart No. 2461, corrected */ / to 1866. S, Doc. 162, 58-2, vol 5- 2Q 76 ALASKAN BOUNDARY TRIBUNAL. 24. Part of the Map of North-West America, prepared for the Department of State, at the Office of the United States' Coast Survey, in 1867. 35. Map of British North America, from the Report of-the Select Committee of the House of Commons on the Hudson's Bay Company, 1857. (Arrowsmith's.) 37. Part of Imray's Chart of the North Pacific Ocean, London, ft/ / / 1869. §: 38. Part of British Admiralty Chart No. 787, 1877; and several others. It is evident, therefore, that cartographers are by no means agreed in discarding a mountain boundary; but, on the contrary, on many O «/ 7 7 %/ / «/ maps where mountains have been shown, a mountain boundary has been followed, and that on a very large number of maps, where only one or two individual mountains have been drawn, the mountain boundary has been deflected to run through them in its course, thus a/ CD 7 showing the influence of the presence of mountains upon the drawing of the international line. There are differences also in drawing the line at the head of Lynn Canal, along Portland Canal and elsewhere. " If we look to maps for information," said Senator Sumner, while the Treaty of cession of Alaska was under consideration in the United States' Senate in 1867, " we find ourselves disappointed. Latterly the coast is outlined and described with reasonable completeness; so also are the islands. This is the contribution of navigators and of recent Russian charts. But the interior is little more than a blank, calling in mind the f pathless downs' where, according to Prior, the old geographers ' place elephants instead of towns.' " In the United States' Case it is stated that the map used on that occasion by Senator Sumner was based on full knowledge, diplomatic, historical, and otherwise. Senator Sumner, however, described it as 1 only the harbinger of the maturer labours of our accomplished bureau when the coasts of this region are under the jurisdiction of the United States." By comparing the line on this map with that now contended for, it will be seen that these " maturer labours of our accomplished bureau " have altered its course so as to take in 75 an additional coast strip 10J leagues wide to the rear of Mount Fairweather, and to add very considerably to its width at the head of Lynn Canal and Taku Inlet. Ik ARGUMENT OF GREAT BRITAIN. 77 The truth is that the maps drawn previous to the making of any survey cannot be put forward as evidence of the course which the international boundary-line should follow. In the words of Senator Summer, the interior remained " a blank' so far as geographical knowledge was concerned. Many of the cartographers seem to have put mountains into their maps merely out of deference to the terms of the Treaty, and to have drawn a line of demarcation along their summits. Others depicted only mountains such as Mount Fair- weather, Lions Head, and St. Elias, running the line through them in compliance with the requirements of the Treaty. Others, in the absence of accurate knowledge as to the mountains of the interior, simply flung conjectural dotted lines at various distances inland. In the absence of knowledge as to limiting mountains, the maximum distance inland was often drawm to indicate not a survey, but merely «/ / «/ a claim awaiting adjustment. Senator Sumner's words with reference to Captain Cook's charts can be applied with equal truth to the maps of this coast generally:— "These were reproduced in St. Petersburgh, and the Russian copy was then reproduced in London) so that geographical knowledge was very little advanced." A reasonable view of the evidence of the maps was taken by Mr. Bayard in 1885, who, in instructing Mf. Phelps to urge upon the British Government action towards fixing upon a conventional boundary-line, pointed out that:— I The line traced upon the Coast Survey Map of Alaska, No. 960, of which copies are sent to you herewith, is as evidently conjectural and theoretical as was the mountain summit line traced by Vancouver." The United States, therefore, in 1885, officially discarded, through its Secretary of State, the evidence of " all cartographers and geographical writers." Subsequent action, such as the conference between Messrs. Dall and Dawson, and the various diplomatic communications between the Governments, showed no reversal on the part of the United States of its views as expressed by Mr. 76 Bayard. In 1892 the two Governments formally agreed, by Treaty, to have a survey made of the territory adjacent, with a view to the permanent delimitation of the boundary-line in accordance with the existing Treaties with regard to it. As has been shown in the British Case and Counter-Case, and 78 ALASKAN BOUNDARY TRIBUNAL. earlier in this argument, the Treaty of 1892 is in itself a formal acknowledgment by both Powers that the question of the location of the boundary, as it depended upon the topographical facts and data, was still open, and this state of things has been continued by the action of the two Governments in the appointment of the Joint High Commission, and by the present Treaty of 1903. THE BRITISH CONTENTION. The British contention is that the Contour Maps show that mountains answering the description of the Treaty do exist, and that their situation is as indicated on the declaration of Mr. King, printed in the Appendix to the British Case at p. 307, and referred to in the British Case at p..83, and the British Counter-Case at p. 56. This is a simple question of physical fact. It cannot be decided by any such processes of reasoning as are exemplified in the Case and Counter- Case of the United States. The Contour Maps exhibit the results of an elaborate examination of the country in question. It is not proposed in this argument to repeat the results of an examination of these maps as stated in Mr. King's declaration, and indeed, any such statement can be made only by constant reference to the Contour Maps which will be made at hearing of the oral argument. The United States'. Case, alleges that " there is not at any point within 10 marine leagues of tide water, between the head of Portland Canal and the 141st degree of longitude west of Greenwich, the whole or any part of a continuous range of mountains parallel with the sinuosities of the coast and extending from Portland Canal to the said 141st degree of longitude." It is submitted that this statement affords no answer to Question Seven. The expression " within 10 marine leagues of tide water " does not occur in the Treaty. The word " range " is 77 not to be found in any of its Articles, and the word " continuous " has been gratuitously added, evidently for the purpose of making the terms of the Treaty appear much more exacting than they are. All that is required by the Treaty is that from the point of intersection at the 56th degree of north latitude, " la ligne de demarcation suivra la crete des montagnes situees parallelement a la cote," to the point of intersection of the 141st degree of west longitude. Even should the United States succeed in proving its allegations, it would not be in a position to ask the Tribunal to decide ARGUMENT OF GREAT BRITAIN. 79 that " such mountains' (as are contemplated by the Treaty) " do not exist within 10 marine leagues from the coast." The maps before the negotiators of the Treaty, according to the United States' Case, were the charts of Vancouver, " probably' (Atlas, United States' Case, Maps Nos. 4 and 5), and, "undoubtedly," the Russian Map, prepared by the Quartermaster-General's Department and published in 1802 (Map No. 6, Atlas, United States' Case), which is described as " to all intents a copy of the Vancouver charts, with a few names added and changed to correspond with the Russian nomenclature." It is possible also, says the United States' Case, that the Russian navigators had the French edition of the Vancouver Atlas. In any case the maps used by the Russian officials were " the Vancouver maps or those which were reproductions of them." In the Counter-Case this list is expanded to include the Faden Map of 1823 (Atlas, British Case, Map 10), one or more maps by Arrowsmith (Atlas, United States' Case, Nos. 8 and 10), and possibly the Langsdorff Map of 1803-1805 (British Case, Atlas, No. 7). I Other than these publications," says the United States' Counter- Case, " there is no evidence that any were consulted or examined dur- 7 ft/ ing the negotiations." The Arrowsmith Map, so-called (Map 8, Atlas, United States' Case), is described in the List of Maps preceding the Atlas as " the northward part'' of a " map of British North America, after Mr. Arrowsmith," from Pinkerton's Modern Atlas, published at Philadelphia in 1818; reproduced on original scale. On the face of the map it is described as " from Mr. Arrowsmith's Map of North America, &c, &c." It cannot therefore be claimed among " one or more maps by Mr. Arrowsmith," as it is in the United 78 States' Counter-Case, nor is there the slightest evidence given to show that it was known to the negotiators on one side or the other. It is not, therefore, admitted to be one of the maps to be considered by*" the Tribunal. In the British Case it is pointed out that, besides the Vancouver Charts mentioned in the United States' Case, there are, however, some other maps which appear to have been used by the negotiators on one or both sides, notably Vancouver's large Chart, and mention 80 ALASKAN BOUNDARY TRIBUNAL. is made of the Faden Map and Arrowsmith Maps, and the Russian Chart of 1802. Whether all or only several of the maps claimed by the United Sates were used by the negotiators, can make very little difference »/ CD 7 v in the conclusion which must be reached from an examination of them. Certain it is that neither Sir Charles Bagot, Mr. Stratford Canning, M. Poletica, Count Nesselrode, or any one else, after even a cursory glance at the maps, would have selected as a boundary " a continuous range of mountains parallel with the coast and extending from Portland Canal to the said 141st degree of longitude." To begin with Vancouver's large Chart (British Case, Atlas, Map 1) — the only Vancouver Chart which shows the whole Coast from Dixon ft/ Entrance to Mount St. Elias on one sheet—it will be found that a number of different ranges have to be combined to complete a mountain boundary. A range is shown bordering Observatory Inlet, Portland Canal, and Behm Canal, and then turning west to the Cleveland Peninsula. Another, lying further back, and sweeping around the head of Portland Canal at a considerable distance, passes the first and terminates nearly opposite Cape Fanshaw. A third rises behind the second, continues around the head of Taku Inlet, and terminates there. A fourth runs from near the mouth of Taku Inlet to the head of Lynn Canal, terminating just beyond the head of the Canal. A fifth runs down the west side of the Canal to Point Couverden, turns sharply north-west, and ends at Taylor Bay. A sixth begins just north of Cape Spencer and continues unbroken to St. Elias. This map was prepared by Lieutenant Roberts. The second Vancouver Chart shows Prince of Wales Island and extends to Prince Frederic Sound in the north. On this chart is depicted a single range sweeping round the head of Obser- 79 vatory Inlet and Portland Canal at some distance, thence *7 7 running generally parallel to the coast. A second range closely borders the general coast and the shores of the penetrating inlets... The space^ between the two ranges is filled in with* a conventional representation of mountains not drawn in range form. This chart was drawn by Lieutenant Joseph Baker. The third^ Vancouver Chart showTs the coast from Cape Fanshaw north-westerly to Mount St. Elias. A range is drawn parallel to the coast, to some extent following its sinuosities. It is also carried ARGUMENT OF GREAT BRITAIN. 81 around Taku Inlet and Lynn Canal. It, too, is drawn by Lieutenant Joseph Baker, but the range is quite differently placed. The distance from Cape Fanshaw back to the mountains in this map is 8 miles, while in the other (British No. 2, United States No. 4), it is 25 miles. This comparison of the two charts is limited to the extent of their overlapping (see Atlas, British Case, Map No. 4). The average distance of the mountains from the coast in this third chart is about 9 miles. The Russian Map of 1802 (British Case) shows a range east of Observatory Inlet, and a mountain north of Observatory Inlet and «/ / «/ east of the head of Portland Canal. A range then begins west of the head of Portland Canal and runs north-west unbroken, and parallel with the coast to the head of Taku Inlet. East of the head of Taku Inlet another range takes its inception, running parallel to Lynn Canal, around its head and part of the way down its west «/ / x «/ shore. There is then a considerable break till another range begins at Lituya Bay. The average distance of these ranges from the coast would appear to be about 15 miles by scale. The Faden Map of 1823, published by Wyld, shows a heavy mountain ridge east and north of Observatory Inlet and Portland Canal, thence parallel to the coast to near Point Houghton, at an average distance of 30 miles from the general coast line. Hachures showing elongated mountain masses also follow along the sinuosities of the coast to Point Houghton, where the two formations join and continue to run at about 20 miles from the coast. There are noticeable breaks at Taku, Berner's Bay, and a little below Chilkat. 80 The Arrowsmith Maps, said by the United States' Case to be before the negotiators, are Maps 8 and 10 in the Atlas to the United States' Case. No. 8 is the Pinkerton Map, to which reference has been made. It is not an Arrowsmith Map, nor is there any reason for believing that it was before the negotiators. Map 10, the Arrowsmith Map of 1823, shows no mountains whatever. The Langsdorff Map (British Case, Atlas No. 7) also " possibly " used according to the United States' Case, like the Arrowsmith Map last referred to, shows no trace of mountains. The Arrowsmith Maps mentioned in the British Case are those of 1822 and 1824 (Atlas British Case, Maps Nos. 9, 8 and 12). In the former the mountains stand in isolated masses. They follow the shores of Portland Canal and the inlets, roughly speaking. 82 ALASKAN BOUNDARY TRIBUNAL. Another mass appears at the head of Lynn Canal. North of Cape Spencer another elongated mountain mass is shown extending to Mount Fairweather. Another mass extends to Port Mulgrave. At the angle between this mass and the other, " Mount Fairweather I is printed, but without any representation of a mountain. Then comes a short mass to the east of Admiralty Bay. Then another some distance inland, with Mount St. Elias represented to the north. The Arrowsmith Maps of 1824 show mountains hachured in along the coast and shores, including Portland Canal. They are hachured as isolated * masses. They appear to cease near the head of Lynn Canal, and begin again north of Icy Strait and Cross Sound. They continue to Port Mulgrave. There is then a break, after which they continue along the west side of Yakutat Bay. Fairweather and St. O t/ Elias are shown as complete mountains behind the range. The United States' Counter-Case cites the following statement from the Memorandum of the Russian Plenipotentiaries upon the amended proposal of Sir Charles Bagot:— "According to the most recent and best maps published in England the establishments of the Hudson's Bay Company approach the coast only along the fifty-third and fifty-fourth degrees, and it can not be proved that they reach the Great Ocean at any point." The map referred to here, according to the United States' Counter- Case, must have been the Faden Map. As the Faden Map 81 shows a post near McLeod's Lake, north of 55° north latitude, it clearly could not have been the one referred to by the Russian Plenipotentiaries. In all probability they referred to the two Arrow- smith Maps just described. They are among the " most recent and it would not be out of the way to describe the Maps of Arrow- smith at that time as the " best." Taking all or any set of these maps together, the negotiators could not but conclude that such a physical fact as an absolutely continuous mountain range could not be assumed to exist along the lisiere. The large Vancouver Chart, which is the only one showing the whole coast from Dixon Entrance to Mount St. Elias on one sheet, is omitted from the Atlases accompanying the United States' Case and Counter-Case; it shows no less than six separate mountain ranges. The second Vancouver Chart shows two ranges. The third is entirely different from the second, though drawn by the same hand. The Russian Map differs from all the foregoing in the distance of the ?) ARGUMENT OF GREAT BRITAIN. 83 mountains from the sea, and in the number of ranges and breaks. o^ The Faden Map alters the distance of the mountains from the coast, and shows noticeable breaks. The Arrowsmith Map of 1823 and the Langsdorff Map, claimed by the United States to have been before the negotiators, show no mountains at all. The Faden Map and the iVrrowsmith Maps of 1822 and 1824 are alike in representing the mountain topography by a series of isolated and elongated mountain masses. There was, therefore, abundant notice before the negotiators, furnished by the maps themselves, showing that the existence of a continuous mountain chain must not be relied upon. Ordinary experience of physical facts would have pointed to the same conslusion. At an early stage of the negotiations the Hudson's Bay Company */ CD CD %/ ST */ sounded a warning note, suggesting some more definite demarcation on the coast than " the supposed chain of mountains," and pointing out that " neither party have any very accurate geographical information with respect to the country in the immediate neighbourhood of the sea." The effect of this warning appears in all the subsequent negotiations. Count Lieven, writing to Count Nesselrode, May 20-/ June 1, 1824, informs him that the British Consider the charts 82 imperfect, and insist that the line of boundary should be " plus precisement designee." Mr. G. Canning, on the 12th July following, instructs Sir Charles Bagot as follows:— In fixing the course of the eastern boundary of the strip of land to be occupied by Russia on the coast, the seaward base of the mountains is assumed as that limit; but we have experience that other mountains on the other side ef the American Continent, which have been assumed in former Treaties as lines of boundary, are incorrectly laid down in the maps; and this inaccuracy has given rise to very troublesome discussions. It is therefore necessary tha± some other security should be taken that the line of demarcation to be drawn parallel with the coast, as far as Mount St. Elias, is not carried too far inland. Count Lieven, in his Memorandum on the North-West Coast Convention, speaks of:— Le peu de certitude des notions geographiques que 1'on possede encore sur ces parages. Mr. G. Canning writes Mr. S. Canning on the 8th December, CD *D * 1824 :— It is quite obvious that the boundary of mountains, where they exist, is the most natural and effective boundary. The inconvenience against which we 84 ALASKAN BOUNDARY TRIBUNAL. wished to guard^was that which you know and can thoroughly explain to the Plenipotentiaries to have existed on the other side of the American Continent, when mountains laid down in a map as in a certain given position, and assumed in faith of the accuracy of that map as a boundary between the possessions of England and the United States, turned out to be quite differently situated, a discovery which has given rise to the most perplexing discussions. Should the maps be no more accurate as to the western than as to the eastern mountains, we might be assigning to Russia immense tracts of inland territory, where we only intended to give and she only intended to ask, a strip of sea-coast. Count Nesselrode, on the 20th February, 1825, in a letter to Count Lieven, speaks of:— Le peu de precision des notions geographiques qu'on possMe sur ces contrees. Finally, in his letter of the 13th March, 1825, to Count Lieven, he remarks again on::— Des contrees dont la geographie est encore peu connue. On both sides therefore the negotiators, having been warned 83 by the Hudson's Bay Company, were thoroughly imbued with the idea that the maps could not be implicitly relied upon. It could not be assumed that the mountains would be found just where they were depicted on the map. Although the mountains nearest the coast are referred to, it was possible that, at some points, they might sweep inland 30 miles or more. Their attitude was one of complete uncertainty, and consequent caution. The British therefore insisted on the 10-league limit of the lisiere in any case, and the Russians, yielding unwillingly enough to the force of the British Argument, saw fit to concede the point. And yet it is argued by the United States' Case that the same negotiators who refuse to locate* these mountains in any longitude or longitudes intended that they should constitute an uninterrupted chain along the boundary of a lisiere 540 miles long! The contention needs only to be put forward in its true light to be defeated. Dr. T. C. Mendenhall, who was for some years Superintendent of the United States' Coast Survey, and who, as Commissioner for the United States under the Convention of 1892, conducted the United States' survey of the territory adjacent to the disputed boundary-line, is quoted in the United States' Counter-Case as saying that at the time when the Treaty was being negotiated there was I a doubt as to the position if not the existence of such a range." This does not mean that there was any doubt as to the existence of ARGUMENT OF GREAT BRITAIN, 85 mountains; there could be none; all the negotiators admitted their existence. The Treaty contains no alternative provision in the case of their absence. The doubt Dr. Mendenhall refers to is as to the existence of a continuous range. Will it be contended that negotiators who doubted the existence of a range would have assumed its existence for the purposes of the Treaty? If the negotiators had persisted "in retaining in the Treaty itself the words " chain " or " range," which were used at various stages of the negotiations, it would be necessary to examine into their meaning ^as supporting, or failing to support, the United States' demand for a I continuous chain," but it will be observed that the same caution which dictated the naming of a limit beyond which the mountains must not be followed led to the exclusion of all such words from the Treaty. In the first draft Convention submitted, contained 84 in Mr. Canning's letter to Sir Charles Bagot of the 12th July, 1824, the line was thus described:— De ce point elle suivra cette c6te, parallelement a ses sinuosites, et sous ou dans la base vers la mer des montagnes qui la bordent, jusqu'au 139e degre de longitude ouest du dit meridiem It is obvious that these wTords do not involve the assumption of any uninterrupted chain of mountains. They are satisfied by the existence of mountains near the coast, whether in continuous chain or not. The Russians objected that such a boundary might in some cases extend to the very edge of the water of the ocean itself, and suggested the use of the word I cime " instead of base. Mr. Canning, therefore, instructed Sir Charles Bagot to consent, if pressed for the alteration, to the use of the word " summit" of the mountains instead of the " seaward base." Mr. Stratford Canning's Contre-Projet of the 1st February (13), 1825, described the line as following the crest of the mountains in a "direction parallele a la cote;" and the Treaty finally provided that " la ligne de demarcation suivra la crete des montagnes situees parallelement a la cote." There is nothing here about " chain' or " range' of mountains, or about a 1 chain' or " range' parallel to the coast. The controlling principle is that the line of demarcation must follow in a " direction parallele a la cote," and to do so it must follow mountains " situees parallelement a, la cote." In doing so, the line is to be drawn along sss 86 ALASKAN BOUNDARY TRIBUNAL. the top instead of at or within the seaward base. The extension of the boundary up to the Ocean itself would thereby be avoided. It is submitted that inspection of the Contour Maps shows the existence of mountains near the coast, along the summits of which the line must be drawn in accordance with the terms of the Treaty. The Treaty does not require that such mountains should form a continuous range, and the gaps whic*h do exist afford no reason for discarding the plain words of the Treaty in favour of a line which was declared to be the limit within which the boundary was to run, not the boundary itself. 85 EVIDENCE PRESENTED BY THE UNITED STATES AS TO THE TOPO GRAPHICAL RESULTS OF THE SURVEYS MADE UNDER THE CONVENTION of 1892. In the Case of the United States (p. 85) reference is made to the Joint International Survey of the coast of the mainland which was I made under the provisions of the Convention of July, 1892. It is there said that— " 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." For the observations from which these conclusions are deduced, refrence is given to pp. 529 to 538 of the Appendix. Here are found a statement" by Mr. Tittmann and affidavits from Messrs. Ogden, Hodgkins, Baldwin, and Flemer, who were officers of the joint survey made by the Commissioners in pursuance of the Convention of 1892. The maps and other material submitted by the Commissioners with their Report of the 31st December, 1895, purport to exhibit the results of all the observations, of sufficient precision to be capable of representation in that way, which were made not only by the five officers who now give testimony, but also by some thirteen other United States' and nine Canadian surveyors named in the Report. ARGUMENT OF GREAT BRITAIN. 87 The best method of arriving at just conclusions from the survey would apparently be to analyse the maps of the Commission, as is done in the declaration of Mr. King, printed in the Appendix to the British Case; but no attempt to do this is made in the Case of the United States. The five officers who state their conclusions (with but one exception) do not so much as .mention the fact 86 that such maps were made, or base their conclusions in any way upon this primary evidence. The opinions they express are based upon surveys which the deponents individually made in certain restricted localities, and upon general views ^of the mountain scenery, which they had in common C5 ti i «/ with all travellers along the coastal steam-boat routes. They are CD \J unsupported by anything of the nature of an observation properly so called. The description of the coast, moreover, appears'to be given mainly from memory, and this may account for some of the discrepancies in the affidavits which it is now proposed to examine. Mr. Tittmann surveyed a portion of the Stikine River, extending from a point about 10 leagues from Rothesay Point down the river towards the coast. He— I Determined the position and altitude of mountain peaks which could be seen from various points on the river, including several peaks about 8 miles distant from the river and approximately 10 marine leagues from the coast. These peaks were Kate's Needle on the west, and Big Mountain on the east." Thus his view was limited to 8 miles on either side, and only extended so far in the case of three specially high peaks, namely, the two already referred to and Pinnacle Mountain, which is mentioned «/ / afterwards. Otherwise it does not appear from either his or Mr. Baldwin's statement, or from the Commission maps, that his surveys extended out of the immediate valley of the Stikine, or that any »/ 7 %7 mountain was ascended by himself or any of his party. Yet, he says, he " paid special attention to identifying and locating the crest of the mountains." He also found that " within the 10-marine-league CD limit there is a total absence of that continuity and system which «/ «/ would constitute a mountain range parallel to the coast." He does not state what is the criterion as to continuity and system of a mountain range, nor how he could determine the fact by observations which, at most, extended 8 miles. 88 ALASKAN BOUNDARY TRIBUNAL. In 1900, Mr. Tittmann was engaged in delimitating the provisional boundary about the head of Lynn Canal. He says that from the «/ t/ t/ examination which he made there, and a study of the maps of the Commissioners, he has reached the conclusion— 87 " That there does not exist any defined or continuous mountain range or chain running generally parallel to the coast, and situated anywhere oceanward from a line projected from the head of Lynn Canal southward and drawn to the 56th parallel at a point near the head of Portland Canal, such line being parallel to the sinuosities of the coast line, which proceeds around the bays and inlets, and not more than 10 marine leagues therefrom." The language of this is somewhat confused. Is the limiting line of which he speaks to start from the head of Lynn Canal, or from a point 10 leagues from the head? Probably the latter is meant, for presumably he considers Lynn Canal as one of the bays or inlets around which the " coast line I proceeds. Now he says that " oceanward " from his limiting line there does not exist " any defined or continued mountain range or chain running generally parallel to the coast." Yet as he visited Chilkoot and White Passes, which are less than 10 leagues from the head of Lynn Canal, he must know that at those points there is a well-defined watershed dividing the waters flowing into Lynn Canal from those flowing into the Yukon. He should also know that streams flowing from the east into Skagway River lead, by rapid ascents, to the same watershed within a few miles. Again, he would find by a study of Maps Nos. 1, 2, and 3 of the Atlas accompanying the United States' Case (which maps w^ere prepared in the office of the United States' Coast and Geodetic Survey, apparently from modern data), that there is every indication of a continuous watershed or divide within 10 leagues from the shores of Lynn Canal and of connecting channels of the sea, in which the rivers flowing into these waters take their rise, and extending from Chilkoot and White Passes to near the Taku Inlet or River. Here, at least, is a defined and continued watershed, 90 or 100 miles long. It is within 10 leagues from the shores of Lynn Canal, Stephens Passage, &c. Mr. Tittmann demands a " defined and continuous range or chain running generally parallel to the coast," within 10 leagues of the heads of the inlets. It is difficult to see in what way such a well- X ARGUMENT OF GREAT BRITAIN. 89 defined ridge as this fails to comply with Mr. Tittmann's defi- 88 nition, even if we add to it the further qualification which is used by Mr. Ogden, and suggested by Mr. Hodgkins, in their depositions, of a " summit" mountain range. Mr. Tittmann also states that the " group of mountains to the westward of the Stikine, of which Kate's Needle appears to be the highest, overtops the mountains between it and the coast." Here we have a I group' of mountains, a " summit' group, separated from the mountains of the interior bv the Valley of the Stikine. The t/ %/ I group'" appears to lie within 10 leagues from the coast. By measurement on Sheet No. 13 of the Surveys by the United States' Commission, it appears that Kate's Needle, said to be the highest mountain of this group, is distant about 20 nautical miles from the head of Le Comte Bay, or 25 miles from the general line of the «/ / CD coast at the mouth of the same bay. It is not stated, nevertheless, by what process this mountain, which was not climbed, and only seen from a long distance and from below, was determined to overtop everything between it and the coast. The surveys on which Mr. Ogden was personally engaged were confined to the valleys of the Taku and the Stikine River. He also saw the coast from the deck (or rigging) of the steam-boat, while passing along the usual routes of navigation. Of the Taku River he says:— I A careful survey was made of the Taku River by a small triangulation as a base for it, which was a continuation of the scheme of triangulation extend ing along the coast of Alaska. On this work I determined the contour and height of all the mountains that were visible from the bed of the river." These determinations of the " contour " appear from Card No. 4 of the United States' Commission, which, with the plan of triangulation on Sheet No. 13 of the same Commission, presumably represents all the actual surveys made in this region by Mr. Ogden and •J CD *j o the officers under his direction, to have been confined to the determination of the form of the river-facing slopes of the immediately adjacent mountains, these determinations, in some instances, though not in all, extending as far up as the nearest summits. The contours of the mountains beyond their summit, or their connection with the %/ 7 summit further back is not shown. 89 His statement, therefore, that he determined the heights and contours of " all the mountains that were visible from the 90 ALASKAN BOUNDARY TRIBUNAL. bed of the river," must be taken with some important qualifications. Indeed, so far as the evidence of the Commission maps and cards is concerned, it would be more correct to say that he did not completely determine the contour of a single one of the mountains visible from the river valley, i Mr. Ogden states that his assistants, Messrs. Hodgkins and Welker^ who were attached to parties of the British Commission, made all the ascents with those parties. In this he is rather at variance with Mr. Hodgkins, who swears that he did not make all the ascents with Mr. Ogilvie. The affidavit by Mr. McArthur, the Canadian surveyor whom Mr. Welker accompanied, shows that of twenty mountain triangulation and camera stations occupied by him, Mr. Welker occupied only ten, besides one independent ascent. Messrs. Hodgkins and Welker, it appears, assured Mr. Ogden that there was no well-defined range of mountains passing through that region. This evidence, though of little value, as of a hearsay character, is yet worthy of notice in that the qualification 1 well-defined I is applied to " range," leaving it open to inquiry whether there might not still be a range. This is but another instance of the use, throughout' these depositions, of every possible qualification of "mountains," whereby the expression "mountains situated ""parallel to the coast," may be deprived of its meaning. It is stated that Mr. Welker's sketch accompanying his report on the results of his work showed a very decided jumble, and nothing that could be construed into a range. This sketch does not appear to be included or incorporated in the maps and sketches accompanying the Report of the Commissioners. There is, therefore, no opportunity to compare this " jumble' with the very complete maps furnished by Mr. McArthur's survey. Mr. Ogden proceeded from Taku Inlet by steamer to Fort Wran- gell. During this journey he observed the character of the country O O v «/ •/ in the light of the information that had already been gathered. Such observations made from the deck of a steamer must necessarily be of the slightest imaginable weight, and it can hardly 90 be conceived possible that any one should expect them to overpower the evidence of those who climbed the mountains in the region in question, fortified as this evidence is by photographs and topographical maps derived therefrom. Yet in part upon the information acquired on this journey,"from my observations made in Taku uaU ARGUMENT OF GREAT BRITAIN. 91 Inlet and on Stikine River and in running along the coast, and 0 - O i from all information that I gained," Mr. Ogden expresses himself satisfied that there is not, within 10 marine leagues from the coast, I any continuous chain of mountains," &c. The scanty nature of his observations in Taku Inlet has already been referred to. Those on the Stikine will be dealt with afterwards. As to the value of his observations from the steamer, the evidence of Mr. Baldwin, in his deposition (pp. 535-537 of the Appendix to the United States' Case), may be referred to. Mr. Baldwin, who travelled along the same steamer passages as Mr. Ogden, repeatedly refers to the difficulty of seeing anything of the interior from these passages:— " Wherever we followed the continental shore, as we did from the junction of Clarence Strait and Behm Canal to Burroughs Bay, the same topographv was observed, the mountains rising precipitously from the water's edge." | On account of the height of the mountains close to the' shore, I could not see far into the interior." Other passages might be cited from Mr. Baldwin's deposition to show the difficulty of determining from the water the relation of *7 CD the mountains beyond the " high coast line," beyond the " main «/ o / »/ shore," which is u very abrupt and very high, the mountains rising from 3,000 to 4,000 feet." It would not seem possible for any one on a steamer not more than 2 or 3 miles from such a shore to see very much of the interior, even if, as Mr. Ogden did, he ascended the rigging to get a better / CD 7 OO CD CD view. An ascent of 50 feet, let us say, above the deck, to look ovei / •/ / / the top of a mountain 3 miles away, would enable him to see 50 feet more of the top of a mountain 3 miles beyond that, and no more- Referring to Mr. Ogden's observations on the Stikine, it appears that his survey extended up it for about 12 miles from its 91 mouth, but he says that his personal observation extended further, for he ascended the river to Mr. Tittmann's camp:— " This gave me an opportunity to see a large section of the country back from the shore connected with the region.I had been studying." In this he appears at variance again with Mr. Baldwin, who says of the Stikine:— " There was no extent of view, except between mountain peaks, which rose up abruptly from the valtey in irregular order and continued in this way all the way up the river." S. Doc. 162, 58-2, vol 5 21 92 ALASKAN BOUNDARY TRIBUNAL. Mr. Ogden, however, appears to have seen enough from the Stikine of the region he had been studying from the steamer to give confirmation of the opinion he had formed, that there was no well- defined range of mountains. In the light of this preconceived opinion it was of little consequence that the group of mountains behind which Mr. Tittmann's camp lay (see Mr. Tittmann's statement) completely overtopped, and therefore hid from his view, in ascending the Stikine, the mountains lying nearer the coast which he had previously seen. He admits, however, that he saw on the shores of the inlets " groups " of " hills and peaks " which were detached from the mountains behind them. This is not contrary to the evidence of the maps nor to the contention, based upon that evidence, of His Majesty's Government. Mr. Ogden, indeed, suggests that these hills and peaks might be called " foot-hills." There seems to be no reason, however, why a " hill | or " peak" rising above the timber line should not be called a " mountain." The nature of these " foot-hills," as they appear to the eye, may be gathered from the magazine articles descriptive of the coastal topography reprinted in the Appendix to the British Counter-Case. These articles were written without any special object and merely to give the impression produced on an observer. It is clear that the appearance is that of a mountain range facing the ocean. Mr. Ogden's conclusion is that " there is not within 10 marine leagues from the coast any continuous chain of mountains in the form of a summit range running from the 56th degree 92 of latitude until it intersects in the northern direction with the 141st degree of longitude." This opinion, however true it may be, and however complete the observations and cogent the other information upon which it is based, can hardly be of much service in interpreting the physical meaning of " the summit of the mountains situated parallel to the coast," for it greatly expands the requirement of Article III of the Convention of 1825. " Summit of the mountains' becomes " summit mountains," " mountains " becomes a " range " of mountains. Thus we have a " summit range." This must further be " continuous," and we now get a " continuous chain of mountains in the form of a summit range." ARGUMENT OF GREAT BRITAIN. 93 Even this is not sufficient. This continuous chain of mountains in the form of a summit range must extend without any break all CD *7 the way between the 56th parallel and the 141st degree. Also it must always be within 10 marine leagues from the coast. Such a range he says does not exist. It was indeed hardly worth while to make a deposition to establish such a conclusion. That a range absolutely continuous, without any break, does not exist along this whole extent of coast is a fact which was as well known in 1825 as it is to-day. This is shown by the provisions of the Treaty which contemplated that the mountains might be crossed by " rivers and streams." Probably Mr. Ogden's words were not intended to lead to such a self-evident conclusion. Doubtless he intended to say that there was not anywhere along that extent of coast from the 56th parallel to the 141st meridian a " continuous chain of ' mountains," &c. If this was his meaning, whence did he derive his information ? It does not appear, either from the records of the surveys of the Commissions or from* Mr. Ogden's own deposition, that he ever saw the region between Taku Inlet and the 141st meridian, comprising almost one-half of the whole length of coast concerning which he made his deposition. His knowledge of it must therefore have been obtained elsewhere. Not, presumably, from the " Pacific Coast Pilot, Alaska, Part I' (Washington, Government Printing Office, 1891), which was 93 compiled in the office of the United States' Coast and Geodetic Survey (of which Bureau he is an officer), for that work says (p. 204), speaking of Icy Point, on the coast west of Cross Sound:— I Immediately behind the shore line up to this point is the eastern portion of the St. Elias range of mountains, and which extends nearly to the Copper River, and includes the highest mountain peaks yet known on the North American continent. This eastern portion of the range is sometimes known as the Fair- weather Range." See also " Geographic Dictionary of Alaska," by Marcus Baker, published by the United States' Geological Survey. Thus there is a " range " along this part of the coast, at least. Mr. Hodgkins was appointed by the United States' Commissioner as attache on the party of Mr. William Ogilvie, one of the surveyors of the British Commission. He says he accompanied Mr. Ogilvie in his 94 ALASKAN BOUNDARY TRIBUNAL. surveys of the mountains from Taku Inlet northward along Lynn t/ i^ «/ Canal. His conclusions are based upon what he saw while engaged in this work, and also while travelling along the coast to the point where that work began. On this journey he passed along Behm Canal and Clarence Strait, saw the continental shore at Wrangell, and again along Frederick Sound and Stephens Passage and as far as Juneau. Speaking generally of what he saw on this steam-boat trip, he says that, according to his recollection of the shore of the continent northward form Dixon's Entrance, " in general the land rose abruptly and sometimes precipitously from the water's edge," and that although there were occasional breaks through which glimpses could be obtained of higher mountains further back, " the mountains immediately* bordering the coast generally served to prevent any extensive inspection of the interior." This testimony as to the prominence of the mountains immediately adjoining the coast agrees with that of Mr. Baldwin, and the reasonable inference is that Mr. Hodgkins got very little of his information as to the character of the mountains of the interior through what he saw while on the steamer. Apart from this, his only source of 94 personal information would be his observations while working with Mr. Ogilvie on the mountains near Taku Inlet and Gastineau Channel. Mr. Hodgkins' observations in this region do not seem to have been very accurate or certain. As to the height of the mountains he ascended, he makes in his deposition two statements differing from •one another. He first makes a substantive statement that, " on the part of the coast near Juneau, the summits are from 2,000 to 3,500 feet in height." Then he quotes a report which he made to the Superintendent of the Coast and Geodetic Survey, in which he says, speaking of the area covered by his work in 1893, which included the mountains on the part of the coast near Juneau, " The mountain peaks are from 3,000 to 5,000 feet in height." Of these two statements, that made in the report to his superior officer is the more nearly correct. That which he makes in the present affidavit is wrong. A glance at the map, sheet No. 13 of the British Commission (forming part of section 3 of British Commission map in the Portfolio, Appendix III to the British Case), will show that along Gastineau Channel all the mountains rise steeply from the water's edge to the ARGUMENT OF GREAT BRITAIN. 95 3,000 feet contour, and their peaks are still higher—in several instances above 4,000 feet. None of these mountains can be described as 2,000 feet in height. They are not less than 3,000 feet. The mountain immediately north of Juneau is 3,500 feet high. That immediately to the east of Juneau has a summit ridge of 3,500 feet, with peaks rising to 3,750 feet and more. The peak behind Sheep Creek is 3,630 feet. The next peak (proceeding south-easterly parallel to the channel) is 4,175 feet. The next two peaks, which overlook Gastineau Channel and Stephens Passage on the one side, and Taku Inlet on the other, are 3,300 and 3,441 feet in height. Thus it would have been nearer the truth to give 3,500 feet as the minimum instead of the maximum height. Mr. Hodgkins arrives at the conclusion— I From all the observations which I made while in Alaska, and from all my knowledge of the region gathered not only from the ascent of mountains but from other investigations." His knowledge gathered from the " ascent of mountains' 95 has been shown to be uncertain in an essential point—the height of those mountains. The other observations which he " made while in Alaska " must be derived from his views of the mountain landscape while travelling on the steamer. He admits, however, that " the mountains immediately bordering the coast generally served to prevent any extensive inspection of the interior," and in this he is confirmed by Mr. Baldwin. So the accurate part of his information must have been derived from the " other investigations." What the nature of these investigations may have been he does not state. They are evidently not examinations of the Commission maps, for, as has been shown, his statement—that is, his later statement—revised between the 24th February, 1894, and the 16th April, 1903, in the light of his " other investigations," is at variance with those maps. His conclusion is framed with the usual qualifications in speaking of the mountains, that is to say, he contends that there is " no continuous chain," with the addition of the further qualification, " such as seems to be contemplated in the language of the Anglo-Russian Convention of 1825." He defines " coast" as the heads of the inlets and bays." It may be noticed, nevertheless, that Mr. Hodgkins in a certain 96 ALASKAN BOUNDARY TRIBUNAL. place saw mountains " which assumed somewhat the appearance of a range." He thinks, however, that this was an optical illusion. He evidently took no pains to verify or disprove his observation, which had the most important bearing upon the subject which he was sent to Alaska to investigate. Mr. Baldwin's testimony as to the high and commanding character of .the mountains immediately bordering the coast has already been referred to. It accords with the experience of every traveller from the time of Vancouver, and with the Commission maps. With respect, however, to his observations on the Stikine he is not quite so closely in agreement with outside evidence. He says " there was no extent of view7," when passing up the Stikine, " except between mountain peaks which rose up abruptly from the valley in irregular order, and continued in this way all the way up the river. 96 The statement is here made that there is no regularity in the arrangement of the mountains on either side of the Stikine River. In 1869 appeared the first edition of the " Pacific Coast Pilot, Alaska," published by the United States' Coast Survey. The work bears on its title page the name of George Davidson as author, and appears from the introduction to be essentially a reproduction of his Report of 1867 (extracts from which are printed in the United States' Appendix, pp. 341-344), revised, and in some parts amplified. On p. 83 of this work, Mr. Davidson, speaking of the Stikine River, says:— * " It rises by two branches, one to the north-east and one to the south-east, and from their junction near the latitude of 57° 30' it flows almost south 30', then west and south-west with a general antagonism to the coast ranges near the Archipelago Alexander. " The interior of the country appears to be broken into a succession of sharply defined mountain ranges separated by narrow and deep valleys, similar to those between the islands of the coast. In fact, the topography of the Alexander Archipelago is a type of that in the interior. A submergence of the mountain region of the mainland would give a similar succession of islands separated by deep and narrow fiords." Another edition of the " Pacific Coast Pilot, Alaska " was published in 1883. This edition was compiled by Mr. W. H. Dall, assisted by Mr. Marcus Baker. The Superintendent of the Coast ARGUMENT OF GREAT BRITAIN. 97 Survey, in the preface, refers to the work as " a new work, exhaustive of all krfown sources of information." In it more than three pages (109 to 112) are devoted to the description of the Stikine River. On p. 109 we find:— " The topography in the vicinity of the river is mostly mountainous, with some broad valleys, but more numerous narrow ones. Most of these have a certain parallelism with the coast, while some of those through which the Stikine, Naas, and Taku Rivers reach the sea cut across the ranges nearly at right angles." In a foot-note on p. 109 it is said:— " In fact, the same type of topography prevails upon the continental border as that exhibited in a half-submerged condition in the Columbian and Alexander Archipelago. If the latter were entirely elevated above the sea level, they would in essential features resemble the present continental border, and were the valleys of the last depressed below the sea level a similar exten- 97 sion of the archipelago, without changes of character, would be the result. Sumner Strait appears to be merely the prolongation seaward of the valley of the lower Stikine." " Alexander Archipelago " is the name applied by the Coast Survey to the whole group of islands lying off the mainland coast from Dixon's Entrance to Cross Sound. " Columbian Archipelago' is that applied to the islands south of Dixon's Entrance, lying off the coast of British Columbia. Again, on p. Ill, referring more particularly to the locality where Mr. Baldwin says the mountain peaks rose up abruptly from the valley in " irregular order," the " Coast Pilot " says:— " About 5 miles above the delta islands the valley narrows and the river appears only 200 or 300 feet in width. The depth in the channel is nowhere less than 7 feet, and will average over 12 feet. The appearance of the high land on either side is as if ranges trending north-west and south-east were abutting obliquely upon the river." This testimony as to the regularity of the mountain topography along the coast, the " coast ranges," the " parallelism " of the valleys with the coast, &c, it will be seen, differs materially from that of / 7 7 «/' the gentlemen who have made affidavits in support of the United States' Case. Reference may also be made to an article on " The General Geography of Alaska," by Henry Gannett, Chief Geographer, United States' Geological Survey, in the " National Geographic Magazine' 98 ALASKAN BOUNDARY TRIBUNAL. (Washington, May 1901). Mr. Gannett, in this article, gives a close geographical and topographical analysis of the region'bordering the coast. An extract may be made:— " Although the coast of the mainland and of the islands is altogether several thousand miles in length, yet for the entire distance there are very few square miles of level ground. The land rises from the water almost everywhere at steep angles, without a sign of beach, to altitudes of thousands of feet. It is a fiord coast. The islands are separated from one another and from the mainland by fiords, deep gorges, whose bottoms are in some cases thousands of feet below the surface of the. water. These fiords extend far up into the mainland and into the islands in deep, narrow, U-shaped inlets. " The relief features of this region, its mountains and its gorges, partly filled by the sea, are all of glacial origin, presenting everywhere the familiar 98 handwriting of ice. Every canon, every water passage, whether called strait, canal, or bay, is a U-shaped gorge, and its branches are similar gorges, commonly at higher levels—' hanging valleys' they have been called. Above the cliffs of the gorges the mountains rise by gentle slopes to the base of the peaks. The cross profile of each gorge, and its surroundings, is that of ice, not of water, carving. It is the work of channel erosion, not of valley erosion, and the channels were filled with ice. It is a colossal exhibition of the eroding power of water in solid form." Mr. Baldwin states that at 1 no point between our camp " (up the river near the 10-league limit) " was there a continuous or homogeneous range of mountains extending parallel with the coast, and which stood out and could be distinguished from the collection of mountain peaks as a continuous mountain range." He could see, however, up the Rivers Iskoot and Katete " for a number of miles." As will be seen from the map, these rivers, as far as their course has been laid down by the surveys, run nearly parallel to one another, and nearly parallel to the general line of the coast. Between them, therefore, the mountains must form a range of some kind, which surely " could be distinguished " from the other mountains which were separated from them by the valleys of these rivers. Whether this range possesses all the properties required by Mr. Baldwin, homogeneity, &c, is hard to say. The survey of these interior regions along the rivers was committed, under the arrangement between the Commissioners under the Convention of 1892, to the officers of the United States' Commission, and the surveys of the British Commission, with their accurate delineation of the mountains, were allowed to remain, at this point, incomplete. ARGUMENT OF GREAT BRITAIN. 99 The "Alaska Coast Pilot" of 1883, indeed, suggests that there is something like a range here, distinguishable from the mountains of the interior, for it says of the " Skoot or Iskoot River I (p. Ill) :— " The Skoot extends to the eastward about 55 miles, where it bends to the northward, receiving at the angle thus formed a tributary, the Nin-kun-saw, which flows from the southward and eastward a distance of over 20 miles. At the summit, where the head-waters of this branch are intimately associated with those of the Naas River, the elevation attained is 2,600 feet. By 99 ascending the Skoot and making the portage, the Stikine Indians can descend the Naas River and reach Fort Simpson in six days after •setting out." In 1894 Mr. Baldwin went up to the head of Chilkoot Pass, where he found a distinct watershed. Until his " arrival at this point it was a detached mass of heterogeneous mountains." The meaning of this is not very clear, but the wrord " it" probably refers to the mountains at the head of Chilkoot Pass, which appeared to be detached from one another, and heterogeneous or confused as to arrangement. When he reached the summit of the pass, however, he found the arrangement of the mountains was quite regular, forming a distinct watershed. Might not his other views of distant mountains from which he has reached rather sweeping conclusions have been subject to similar correction if he had gone nearer to them ? He says, however, that his opportunities for seeing the mountain formations along the coast and in the interior were sufficient to enable him to say that there is not anything like a defined mountain «/ %J CD range. This defined mountain range, he says, does not exist to the west of a certain line, drawn much the same as that drawn by Mr. Tittmann. Mr. Baldwin, as well as Mr. Tittmann, has overlooked the possible existence of a " distinct watershed'" extending for 100 miles, perhaps, from Chilkoot Pass, a pass which they both personally visited. Mr. Flemer, in 1893, was attached to the party of the British Commission under Mr. Talbot, and his surveys of that season were made over the mountain area south of the Stikine River. Mr. Flemer's own surveys in this region are shown in two sheets */ CD on Card No. 2 (Portfolio, Appendix III to the British Case). 100 ALASKAN BOUNDARY TRIBUNAL. With respect to the region south of the Stikine River, he remarks:— " The terrene of this section is very rugged and bold, the numerous crags and peaks, with their underlying mountain formation, forming irregular masses with no indication of any range formation. The altitudes of the peaks in this section gradually increase from the coast inland." Yet his maps on Card No. 2 show distinctly the general arrangement of the mountain summits and slopes, with the intervening 100 depressions, as parallel to the coast. One of the mountain ridges is shown on the sheet on the left-hand side of the Card, extending in a direction south 25° east or thereabouts from a point of the Stikine south of the large island. This ridge is separated from the mountains to the east of it by a well-defined valley, and forms the summit which Great Britain claims that the boundary line should follow. On the same Card, to the south-west of this range, appear other mountains close to the shore, extending south from near Rothesay Point at the mouth of the Stikine to Wrangell Peak. This series of mountains, although of short extent compared with the next inner range just mentioned, may yet, as it seems, be properly called a " range "—the " Cannery Range "—see sheet No. 4 of the United States' Commission. Mr. Flemer, however, says that there are " no indications of any range formation " in the region he surveyed during the year 1893. Immediately across the Stikine River, indeed, and in his full sight when he was on the mountain tops, is the " Wilkes Range " of the United States' Coast and Geodetic Survey Chart, No. 8,200, and of the sheet No. 4 of the United States' Commission. See also " Pacific Coast Pilot, Alaska," 3rd edition, 1891, p. 115. Mr. Flemer's other surveys in Alaska were in the region about the head of Lynn Canal, and a long distance north of the point where His Majesty's Government claims that the boundary line should cross the canal. The absence of " mountain formations strung out north and south," along Lynn Canal, if such absence were a fact, would not therefore be in conflict with that claim. His remarks, however, as to the abruptness of the mountains along the upper part of Lynn Canal, and the narrow valley bottoms of the rivers Katzehin, Skagway, &c, might seem to indicate a " coastal mountain range' (if the shores of Lynn Canal are the " coast"). *W ARGUMENT OF GREAT BRITAIN. 101 He denies, however, that the mountains ever run "in a continuous range or chain." He, indeed, recognises the existence of a divide between Lynn Canal and the Yukon and Taku Rivers, which appears from the most recent maps to lie within 10 leagues of the coast (see remarks upon Mr. Tittmann's statement). The evidence of the maps in the United 101 States' Appendix seems to show that this " divide " runs nearly north and south, and it must be a " mountain formation." Mr. Flemer tells us, however, that the mountain formations do not run north and south, though without stating upon what evidence he bases this statement. Mr. Flemer says that in 1898 he was ordered to Alaska " to extend the surveys of the Tlaheena, Chilkat, Chilkoot, Skagway, and Dyea Rivers, including the passes at their heads leading into the interior, going inland as far as 30 miles from the coast." From this sentence it might be inferred that the passes at the heads of the rivers named are 30 miles inland from tide-water. In correction of such possible inference, it may be explained that only two of these rivers, the Tlaheena (Klehini) and Chilkat, rise at a greater distance from tide-water than 10 leagues. The other rivers take their rise much nearer the shore. Messrs. Hodgkins, Baldwin, and Flemer all refer to the general formation of the interior country as " plateau." Their descriptions do not entirely agree with one another, for Mr. Baldwin's language conveys the impression of an existing plateau, that is, " a broad flat area of land in an elevated position; a table land; an elevated plain ' ("Imperial Dictionary")—this plateau having mountain peaks standing above its level surface. Mr. Flemer seems to speak rather of the " plateau " as the original formation, which has now been so roughly eroded as to lose that character. Mr. Hodgkins' description seems confused. His plateau is of ice and snow, yet the valleys which have been carved out of it are I frequently occupied by glaciers." The general impression conveyed by these expressions is, however, that of an elevated region lying behind " the mountains bordering the coast," which generally serve " to prevent any extensive inspection of the interior "; behind the " coastal barrier "; " the mountains rising sheer from the water's edge "; " the abrupt shore formation." 102 ALASKAN BOUNDARY TRIBUNAL. Without further discussing the question whether a " plateau " is a proper description of the character of the interior, it may be pointed out that it is along this " coastal barrier | that His 102 Majesty's Government claims that the boundary line should be drawn. Its character is shown by the photographs reproduced in the album accompanying the Counter Case, and described by Mr. J. J. McArthur in the exhibit accompanying his declaration. It is submitted that the existence of a plateau or elevated region on one side of a range of mountains does not alter their character. It is a general rule in nature that the land on opposite sides of mountains is not of equal elevation. In the Counter-Case of the United States (p. 39) the interpretation placed upon " crete des montagnes situees parallelement a la cote," as involving a " continuous range of mountains parallel to the coast," has been modified into " a continuous dominating range of mountains approximately paralleling the physical coast of the continent." The statement is made that " the proof that no such range exists is conclusive." For proof of this statement reference is made to pp. 529-38 of the Appendix to its Case, and to pp. 257 and 262-65 of the Appendix to its Counter-Case. Pp. 529-38 of the Appendix to Case contain the declaration of Mr. Tittmann, and the affidavits of four officers of the Coast and Geodetic Survey. These statements have already been dealt with in this argument and in the British Counter-Case. The references to the Appendix to Counter-Case are to a Report of the Geological Survey of Canada upon the area covered by the " Kamloops Sheet," and to affidavits of four more Coast and Geodetic Survey officers—Messrs. Ritter, Pratt, Welker, and Nelson. The quoted extract from the Geological Survey Report is confined to a description of the formation of the region adjacent to the Fraser River, far to the south of the locality now under discussion. The only references in the extract which can have any bearing upon that locality appear to be— 1. The statement that the Coast Ranges (of which a narrow selvage of the inland side alone purports to be described) form a wide belt of mountainous country, which runs parallel to the coast for the entire length of the Province of British Columbia; and m. ARGUMENT OF GREAT BRITAIN. 103 103 2. The inferred statement that at certain points of the Fraser Valley the mountains form a " complex." From Mr. W. H. Dall, however, we learn*that this complex does not exist further north. "Advancing northward," he says, " the valleys gradually widen, at the expense of the mountainous area; the latter assuming a greater regularity of trend, and forming more continuous ranges. The axis of elevation comes nearer the coast." Of the four new affidavits, three were made on or before the 7th May, i. e., before the British Case, filed in London on the 2nd, could have reached Washington. They would, therefore, more properly have been presented with the Case. They are of the same general character as the former affidavits, being devoted to the assumption that a more or less physically impossible range of mountains was intended by the Treaty, and denials of the existence of such range. Their evidence is wholly of this negative character, and there seems to be nothing in them controverting or modifying anything in the British Case. Mr. Ritter, from certain mountains between the entrance to Holkham Bay and Port Houghton, saw, as he says:— "A great mountain system, the culminating peaks of which were beyond the limits of the topography delineated by us. The mountain masses are so distributed that no defined mountain range trending north and south can be said to exist within the area described by me. Within the range of vision the altitudes of numerous crags and peaks which I saw gradually increase from the coast inland." The mountains which formed his view points were apparently some of those which the line as described by Great Britain follows, and which, from the Commission maps, seem to form a well-defined range. Mr. Ritter, however, says nothing whatever about these, but only of some mountains which were beyond the limits of his survey. Although beyond these limits, and therefore not accurately determined by him, he thinks they are so distributed that no defined mountain range, &c, exists. He, as well as most of the others, says the mountain heights gradually increase from the coast inland. This itself would point 104 to a certain regularity of arrangement, and suggest that ranges might be found to exist parallel to the coast. However, none of them give exact measurements of heights or precise positions, whereby the fact of the arrangement in ranges or otherwise could be tested. 104 ALASKAN BOUNDARY TRIBUNAL. Mr. Pratt was " attached to the party of Mr. O. H. Tittmann." From this it must not be understood that Mr. Pratt accompanied Mr. Tittmann during any of the surveys described by Mr. Tittmann in his statement. Mr. Pratt was attached to the party of one of the Canadian surveyors, and worked with him. Mr. Pratt says he ascended ten or more mountains between Thomas Bay and the Stikine, and also a peak 4,800 feet high near the Great Glacier of the Stikine. This peak seems to be the triangulation station No. 61 of the British Commission map. From this last point he says he obtained a good view of the mountains towards the interior " which are much higher than those towards the coast." He does not say that from this point he obtained a good view of the mountains nearer the coast. The Commission maps show pretty certainly that he could not, on account of the height of the mountains lying close to the westward and south-westward of his view point. These last-mentioned mountains form the range considered by Mr. Joseph Hunter, in 1877, to be the axis of the coast range. As to Hunter's range south of the Stikine River at this point, it may be convenient here to point out that Hunter's conception of a definite range in this locality is supported by the evidence of Mr. Baldwin that he could see up the valley of the Katete River for a number of miles. Hunter's mountain range lies to the south-west of this valley. Reference has already been made in dealing with Mr. Baldwin's «/ CD evidence, to the fair inference which may be drawn therefrom, that a mountain range parallel to the coast lies between the Katete and Iskoot Rivers. All these facts go to show that the mountains lie in ranges parallel to the coast. Yet Mr. Pratt, like the other deponents, is content to pass by these facts, proved by maps, Coast Pilots, and other official works, and by the evidence of unprejudiced travellers, without any mention, much less explanation, of their non-accord with the 105 theory of irregular arrangement of isolated peaks, and to rest upon the bare statement of the theory that there is no I defined " mountain range. The phrase he uses is, | no defined mountain range within this region described by me." It is not clear what region he has described. The only description refers to the country to the east of the Stikine. He further makes the remarkable statement that the great field of ARGUMENT OF GREAT BRITAIN. 105 glacier ice, with which a large portion of the country " described' by him is covered, " slopes gently to the coast, and if not interrupted by the Stikine River, would be continually higher as you recede from the coast." In other words, if the topographical features were different, the topography would not be the same as it is. However, the statement that the glacier ice rises continually from the coast to the Stikine is incorrect. The proof is the Great Glacier, which is quite close to one of his points of observation, the peak 4,800 feet high. This glacier slopes down to the Stikine, indicating that there is a summit betw7een the Stikine and the coast. It is seen from the Commission maps that the other mountains which Mr. Pratt, in company with Mr. Gibbon, ascended, lie on the coastal side of the glacier field. From these he could see only the edge and lower slopes of the ice field. To determine the fact of continual rise, it would be necessary to obtain a view point near the top. His only view point was the peak near the Great Glacier. What he saw, or could see, from this place, as has been shown, is adverse to his deduction. His statement as to the slope of the ice is, therefore, merely another instance of unsupported generalization. Mr. Pratt also says:— " In my trips up and down Lynn Canal, I was impressed by the topography on each side. In general the mountains rise abruptly from the sea, but the mountains increase in elevation from the south towards the passes and east and west from the shores of the canal." It is evident from the maps, which give the heights of the mountains bordering Lynn Canal, that it is impossible from the waters, while travelling up and down Lynn Canal, to see over the 106 immediately bordering range. See also the photographs in the album of the British Counter-Case, especially those taken from station 169, on p. 33 of the album, and those from station 170, on p. 35. These views were taken not from the water, but from mountain summits high up on the west side of the canal. Mr. Pratt cannot, therefore, have ascertained from his observations while on his trips that the mountains increase in elevation in the way he savs they do. «/ «/ «/ The facts as to these mountains bordering Lynn Canal, attested CD «/ 7 by the maps and- photographs, as well as by Mr. Flemer's account of 106 ALASKAN BOUNDARY TRIBUNAL. them (referred to ante, p. 100), are sufficient to contradict the statement in the last sentence of Mr. Pratt's affidavit. Mr. Welker accompanied Mr. McArthur in the ascent of some mountain peaks with him. For a list of Mr. Welker's ascents see affidavit by Mr. McArthur in the Appendix to British Counter- Case, p. 73. As Mr. Welker says, the peak most remote from the shore, which he personally ascended, was about 5 miles from the mouth of Speel River. With the aid of Mr. McArthur's statement, this peak is identified with 12 m. of the British Commission map. This peak is between 2,000 and 2,250 feet high, on a ridge standing isolated in the valley of Speel River. Being closed in by mountains on each side upwards of 4,000 feet high, it was not a suitable view point for examination of the general features of the country. As Mr. McArthur ascended many peaks much higher and much further inland, took photographs, and made a topographical map of the region (which forms part of the British Commission map), while Mr. Welker has not even furnished a sketch, Mr. Welker's vague descriptions can be of little service. Mr. Welker speaks of high peaks from 20 to 30 miles further inland than the inner limits of the explored region, and then goes on to say that one of these inner peaks, which he called Tent Mountain, was distinctly higher than any peak on Holkham Bay or Tracy Arm, he " determined " to lie nearly in the axis of Tracy Arm and about 2 miles from its head. The word " determined' would indicate that he had accurately placed the mountain by means of surveying instruments. The 107 maps show that a mountain 2 miles beyond the head of Tracy Arm, far from being 20 or 30 miles inland from the inner limits of the country explored, would be only 21 miles from the shore of Stephens Passage, i. e., from the ocean coast of the continent. If he had accurately determined this peak, it is strange that he did not report the determination at the time, and have it laid down on the United States' Commission map. Perhaps it may be the same as the peak marked on that map, at the head of Tracy Arm. That peak, however, is given an altitude of only 4,415 feet, an elevation far surpassed by a multitude of peaks nearer the coast. It is unnecessary to devote further space to the usual formula respecting a defined mountain range, but it may be pointed out, with ARGUMENT OF GREAT BRITAIN. 107 reference to the statement in the last sentence of the affidavit, that the maps and the photographs show a most clearly-defined mountain range lying to west of Endicott Arm, west of the upper part of Holkham Bay and west of Port Snettisham. This range is completely separated from the inner mountains by the depression of Endicott Arm and Holkham Bay, and by that of Port Snettisham and the valley between Snettisham and Holkham Bay. This valley comes down almost to the sea level. The axis of this range, as nearly as possible, lies in a straight line, and is broken only by the outlets of Holkham Bay and Port Snettisham, which are «/ ft/ «/ / comparatively narrow. The last affidavit furnished is that of Mr. Nelson. He does not appear to have been employed on the surveys of the Commission, but later, in his capacity as an officer of the Coast and Geodetic Survey, he made a survey of the region about the Katzehin River, near the head of Lynn Canal. As has already been mentioned, this is the only one of the four affi- »/ /*/ davits of surveyors presented with the United States' Counter-Case, whose date indicates it to be a " reply to the Case, documents, cor- respondence and evidence " presented by Great Britain. This affidavit itself does not seem to be a reply to anything in the British Case or the Appendices thereto. It deals solely with the region adjacent to the Katzehin River, a tributary of Lynn Canal, at a point far inland (some 30 miles) from any mountains described or referred to in the British Case as defining the line of demarcation. 108 The affidavit is inconsistent with the maps prepared in 1903 in the office of the Coast and Geodetic Survey for the Case and Counter-Case of the United States, that is to say, United States' Maps Nos. 1, 2, 3, 25, and 26. These maps all show the watershed between Lynn Canal and the interior to lie far to the seaward from the line claimed by the United States. It has already been noticed that these maps disagree with the testimony of Mr. Tittmann and others. «/ It is strange that the results of Mr. Nelson's " topographical survey ' of 1898, by which it appears that he made the drainage for 30 miles back from Lynn Canal all flow into it, had not been incor- «/ / porated into the maps of the Coast and Geodetic Survey, confessedly S. Doc. 162, 58-2, vol 5 22 mr 108 ALASKAN BOUNDARY TRIBUNAL. the most accurate bureau as regards actual surveys in the United States, before 1903. It is noticed that Map 26, accompanying the Counter-Case, agrees with the Maps 1, 2, 3, and 25, accompanying the Case. As to the instrinsic value of Mr. Nelson's statement, he says he ascended the Katzehin Valley for about 15 miles. The maps show that the whole length of the river from its mouth to its source in the glaciers is not more than 10 miles. He could see to a distance 30 miles from the coast, i. e., 20 miles beyond his farthest piont. As he says the mountains continue to increase in height the further back from the coast they are, it is difficult to see how he could see enough of the dividing valleys to determine with certainty that all the drainage of this region flowed into Lynn Canal. His observation of this region was " at the head of the Katzehin River." The drainage of this 20 miles of " snow-capped peaks': (lowing towards Lynn Canal would make a very fair-sized river. O */ «/ Where does this river flow into Lynn Canal? Not past his observation station, for he wTas at the " head " of Katzehin River. In contradiction to the oft-repeated statement in all the affidavits of the absence of mountain formations parallel to the coast, reference may be had to the maps of the United States' Commission, where the mountain peaks delineated in a different manner from that adopted for the British Commission maps, without the detail of the connecting ridges, &c, show in a way better appreciated at a glance than do the latter maps, the universal arrangement of the mountains in ranges parallel to the coast. 109 In offering the above examination of the evidence presented by the United States with reference to the topographical features of the region in question, Great Britain expressly reserves her right to contend, as she does, that the materials upon which the Tribunal must proceed are those collected by the Commission under the Convention of 1892. These materials, and especially the maps, reveal the actual features of the country, and from them the Tribunal has to decide which are the mountains which satisfy the requirements of the Treaty. ik Ill INDEX. [References are to pages of original.] Access to the Sea for Great Britain— Intention of Negotiators of Treaty of 1825, see " Barrier Theory." Admiralty Maps and Charts— Chart No. 2461 corrected to 1861—Evidence as to Mountain Boundary, 73. Chart No. 787, 1877, 74. Maps of 1865 and 1868—Portland Channel Entrance shown on, 8. Armstrong, Edward— Mountain Boundary in Lynn Canal Region, Evidence as to Recognition of, 71. Arrowsmith's Maps— Arrowsmith's, A., Map of North America 1795, Revised 1833—Evidence as to Mountain Boundary, 73. Map of 1833—Evidence as to Portland Channel Entrance, 8. Treaty of 1825, Maps used by Negotiators— Maps of 1822 and 1824, Mountains shown on, -79, 80, 81. Russian Negotiators' Memorandum on Sir 'G. Bagot's Amended Proposal, probable reference to Maps of 1822 and 1824, 80. Map of 1823, Absence of Mountains, 79, 81. One or more Arrowsmith Maps used by Negotiators—United States' Counter-Case Contention, 6, 78. Pinkerton's Modern Atlas, Philadelphia, 1818, Map from—Not an Arrowsmith Map and not used by Negotiators, 78, 80. Portland Channel Entrance, Evidence as to, 7. Bagot, Sir C— Treaty of 1825 Negotiations— Amended Proposal delivered on receipt of Russian " Contre-projet" to first Proposal. " Mountains bordering the Coast," phrase used by Sir C. Bagot, 34. Reply to Russian Observations on amended Proposal, 35. Report to Mr. Canning—Description of the lisiere, 35. Ten-Marine League Line without reference to Mountains, proposed, 39. 109 110 INDEX. Bagot, Sir C.—Continued. Treaty of 1825 Negotiations—Continued. Line through middle of Portland Channel, thence to Mountains bordering the Coast, Russian Proposal—Sir C. Bagot!s objection that England would lose Bays and Inlets North of 54° 45'. 54° 40' Contention, Evidence as to, 15. Portland Channel Entrance, Latitude ** of—United States' Argu-. ment based on Sir C. Bagot's mention of 54° 45', 6. Portland Channel Head to 56th parallel—United States' objections to proposed British Line intersecting Behm Canal, 21, 22. Vancouver's Narratives, Ignorance of—United States' Contention, 2, 3. 112 Baker, Lieut. Joseph— Vancouver's Second and Third Charts prepared by, 79. " Barrier Theory "— Intention of Negotiators of Treaty of 1825 was to cut off Great Britain from access to the Sea—United States' Contention, 22, 33. Negotiations failing to support United States' view, 38, 39. Repudiation of by Great Britain, 42. refer also to title Inlets question. Bayard, Mr.— Despatch of November 1885—Evidence against United States' Assumption that the location of the Boundary was no longer an open question, 49, 50, 51, 55. Maps, Evidence of—Mr. Bayard's Comment on Boundary shown on United States' Coast Survey of Alaska, No. 960," 75. Beavers, River Beavers— Hudson's Bay Company's Lease of the lisiere obtained to enable the Company to hunt river beavers, alleged—Groundlessness of United States' Contention, 46. Behm Canal— Portland Channel Head to 56th parallel—United States, objections to Intersection of Behm Canal by British Line, 21. Substitution for Portland Channel—Alternative proposed by Great Britain in the event of decision that Vancouver's Portland Channel was not the Portland Channel of the Negotiators, 10. Behring Sea Arbitration— "North-West Coast of America"—Interpretations of phrase contended for by Great Britain and United States, 31. Black's General Atlas, 1898—Part of Map of British Columbia, plate, 39e. Mountain Boundary shown on, 73. Bouchette's Map, 1853— Mountain Boundary, Evidence as to, 73. Brule's Map, Paris 1833— Mountain Boundary shown on, 72, m. INDEX. Ill Cameron's, Major, Report of 1878— Great Britain charged with omitting to print Appendix favouring United States' Contention as to Portland Channel Entrance, 10. Canadian Map— Phelps, Mr., Request for—British Government Repudiation of Boundary shown on Map, 52. Absence of Comment by United States, 53. Canning, Mr. G.— Treaty of 1825 Negotiations— Draft Convention sent to Sir C. Bagot, 12th July, 1824—" Coast" applied to shore of Portland Channel, Alteration of phrase by Russian Negotiators, 37. Mountain Boundary— Base of Mountains nearest the Sea, &c.—Instructions to Sir C. Bagot, 29th May, 1824, 36. Geography of Territory in question, Uncertainty as to—Need for Alternative to Mountain Boundary. Instructions to Sir C. Bagot, 12th July, 1824, 82. Letter to Mr. S. Canning, 8th December, 1824, 82. Refusal to eliminate—Instructions to Mr. S. Canning, December 1824, 40, 65. Summit of Mountains—Instructions to Sir C. Bagot, 1824, 39. 113 Carr, Joseph- Mountain Boundary in Lynn Canal Region, Evidence as to Recognition of, 71. Chilkat River- Boundary, determination of—Proposals between 1871 and 1878, Evidence as to accepted Interpretation of the Treaty on the Inlets: Question, 49. Chilkoot Pass (Perrier Pass) — Recognition of, as part of International Boundary—Evidence adduced by United States, 69, 70, 71. Clarence Strait and Ernest Sound— Substitution for Portland Channel—Alternative proposed by Great Britain in the event of decision that Vancouver's Portland Channel was not the Portland Channel of the Negotiators, 10. Clarke, E. B.— Mountain Boundary in Lynn Canal Region, Evidence as to Recognition of, 71. Coast Survey of United States— Map of 1867— Mountain Boundary, Evidence as to, 74. Portland Channel Entrance, Evidence as to Position of, 8. Portland Channel Head to 56th parallel, Course of Boundary, 23; Report, 1891, 53, 57. 112 INDEX. Coast—What constitutes the Coast Line?— see Inlets Question. Commencement of Boundary Line, Point of—First question— Agreement of the two Governments, 1. Commencement, Point of, to Entrance of Portland Channel— see Southern (Water) Boundary. Conference at Washington (1892) — Inlets Question—No claim to heads of Inlets or Rights on Lynn Canal advanced by Great Britain, Mr. Foster's Statement, 57. Congressional Records— Speeches by Mr. Squire and Mr. Pitney on Canadian Claims, 57, 58. Dall, Mr — Chilkoot Portage, Reference to, as part of Boundary in 1883, 69. Impossibility of locating a line following shores of Inlets-—Mr. Dall's Report quoted by Mr. Bayard in 1885, 50. Dawson, Dr.— Inlets Question—View put forward to by Dr. Dawson in 1887 that Boundary might cross the Inlets, Importance of—View officially noted by United States, &c, 53. De Mofras' Map (Official French Map), Paris, 1844. Mountain Boundary, Evidence as to, 72, 73. Portland Channel entrance, Support given to British Contention, 9. Direct Line— In dealing with boundaries of lands a break should be filled in by most direct line possible, 11, 17, 21. refer also to titles Southern Boundary and Portland Channel Head to 56th parallel. 114 Don-a-wak, Chilkat Chief— Mountain Boundary in Lynn Canal region, Evidence as to recognition of, 71. " Dryad " Expedition— Purpose of, 46. Settlement proposed by those on board to be at more than 10 marine leagues from the coast, 44. Dyea and Skagway— Nationality of—Speeches by Mr. Sifton and Sir W. Laurier admitting possession by United States, 60, 61. Eastern Boundary of the Lisiere— refer to titles Inlets Question, Mountain Boundary, and Ten-Marine- Leagues Boundary. Facts subsequent to Treaty of 1825— see Subsequent action of Parties to Treaty of 1825. Faden Map, 1823— Mountains shown on, 79, 81. Portland Channel Entrance, Evidence as to position, 7. *"**W INDEX. 113 Faden Map, 1823—Continued. Russian Negotiators' Memorandum on Sir C. Bagot's Amended Proposal could not have referred to Faden Map, 80. Treaty*of 1825 Negotiations, Use in—United States' Counter-Case Contention, 6, 78. Fairweather, Mt.— Position 10^ marine leagues within Boundary claimed by United States, 73. Fifth Question—Was it an essential characteristic of the lisiere that it was not to be traversed by Inlets, 24. Limited to lisidre north of 56°, 22. Fifty-four forty (54° 40')— Course to be followed by Boundary from point of commencement to entrance of Portland Channel, see title Southern (Water) Boundary. Fishing and Trading Rights in Interior Waters of the Lisiere— Grant of, in Article VII of Treaty of 1825 and Article IV of Treaty of 1824—Evidence on the Inlets Question. " Ocean" in Article I of both Treaties could not refer to Interior WTaters, 28. Treaty Negotiators contemplated possibility that part of the Inlets might be in British Territory, 31. Foster, Hon. Mr. F.— Conference at Washington (1892)—No claim to heads of Inlets or rights on Lynn Canal advanced by Great Britain—Mr. Foster's Statement, 57. Fourth Question—Portland Channel Head to 56th parallel, 17. First Question—What is the Point of Commencement? 1. French Maps— Map of 1815—Evidence on Portland Channel Entrance Question, 7. Official French Map, 1844, see De Mofras' Map. Geography of Territories dealt with in Treaty of 1825— Uncertainty as to, 13, 22, 27, 34, 39, 40, 65, 82. German Map of 1807— Evidence on the Portland Channel Entrance Question, 7. 115 Greenhow's Map, 1844— Mountain Boundary, Evidence as to, 72, 73. Portland Channel Entrance, Support given to British Contention, 9. Herbert's Map— Portland Channel Entrance, Support given to British Contention, 9. Howard, Brigadier-General— Stickine River Boundary—Reference to Mountain Boundary, 69. Hudson's Bay Company— Lease of the lisiere— Description of area leased, mention of 54° 40'—Hudson's Bay Company had no power to commit the British Government to their interpretation of the Treaty, which, moreover, was not in accordance with United States' view, 16. Evidence as to 54° 40' Contention, 16. 114 INDEX. Hudson's Bay Company—Continued. Lease of the lisidre—Continued. Purpose of the Company in obtaining lease—No ground for United States' suggestion that lease was needed to enable the Company to hunt the River Beaver, 45, 46. Map of 1857 produced before Select Committee on Hudson's Bay Company's Affairs- Mountain Boundary, Evidence as to, 74. Portland Channel Entrance, Evidence as to Position of, 8. Memorandum referred to in United States' Counter-Case, Inaccuracy of, 17. Treaty of 1825—Negotiations— "Coast" and "Sea," Meaning of, as used by Mr. Pelly, 36. Establishment near the Coast—Russian Memorandum on Sir C. Bagot's Amended Proposal, 80. Mountain Boundary—Desire for a better Definition of Mountains following Sinuosities of Coast, 36, 81. Hunter's, Mr., Survey of Stikine River Boundary— Measurements taken from general trend of Coast, 48, 50. Iddesleigh, Earl of— Canadian Map supplied to Mr. Phelps, Repudiation of Boundary shown on, 52. Ikee Shaw, Indian of Klukwan— Russian Medals exhibited by, as having been in his wife's family for three generations, &c, 44. Imray's Chart of North Pacific Ocean, Part of—London, 1869— Mountain Boundary, Evidence as to, 74. Indians— Don-a-Wak, Chilkat Chief—Evidence as to Recognition of Mountain Boundary in Lynn Canal Region, 70. Ikee Shaw, Klukwan Indian—Russian Medals exhibited by, as given in token of allegiance to Russia, &c, 44. Stick Indians—Complaints as to British subjects packing in United States' territory, 69. Inlets Question—Was it an essential characteristic of the lisi&re that it was not to be traversed by Inlets?—Fifth Question, 24— Coast, " Ocean," " Sinuosities of the Coast"—Meaning of terms as used in Treaty of 1825— Estuaries of important Rivers, Inlets not forming—Impracticability of applying different rules to Inlets which terminate in a River and Inlets, which do not, 27. Fishing and Trading Rights in interior waters of the lisiere granted by Article VII of Treaty of 1825 and Article IV of Treaty of 1824- " Ocean " in Article I of both Treaties could not have been used to include interior waters, 28. Treaty of 1825 must have contemplated possibility that part of the Inlets might be in British Territory, 31, 32. INDEX. 115 Inlets Question—Was it an essential characteristic of the lisiere that it was not to be traversed by Inlets ?—Fifth Question, 24—Continued. Coast, "Ocean," "Sinuosities of the Coast"—Meaning of terms as used in Treaty of 1825—Continued. 116 General trend of outer Coast facing the open Sea- British Contention in accordance with terms, of Treaty of 1825 and with ordinary usage, 27, 28, 29, 31. United States' proposed Boundary parallel to, but distant 10 marine leagues from heads of Inlets, 30, 31, 43. Impossibility of a line parallel to the Sinuosities of the Coast where the Coast is taken to mean the Shore of the Inlets, 30, 34, 66. Bayard's, Mi\, Despatch of November 1885—United States' present contention 'inconsistent with, 50, 51. Inlets which penetrate farther or less far than 10 marine leagues— Impossibility of applying different Rules to, 22. Interchangeability of terms, " Coast" the line where the ocean terminates, 24, 25. Line contended for by United States inconsistent with United States' or British definition of " Coast," 43. Negotiations previous to Treaty of 18.25, Evidence of, 33, 34. Bagot, Sir C— Description of the lisiere, 35. Rivage, Meaning of, as used by Sir C. Bagot, 34. Canning, Mr. G.— Distinction between Inland Seas and North Pacific Ocean— Instructions to Sir C. Bagot and Letter to Count Lieven, 36. Draft Convention of the 12th July, 1824—"Coast" applied to shore of Portland Channel, alteration of phrase by Russian negotiators, 37. Hudson's Bay Company's Letters—Meaning of " Coast" and I Sea " as used by Mr. Pelly, 36. Nesselrode's, Count, use of word " Coast"—Distinction between head of Portland Channel and shore of the Ocean, &c, 35. Russian Negotiators—Portland Channel head not included in " Coast" as used by Negotiators, 35. Pitney's, Mr., use of words " Coast" and " Ocean " in Congress, 1896, 58. " Political Coast" following Islands—Futility of verbal controversy arising out of United States' contention, 29. Tide water, head of, as limit of the Ocean— Absurdity of accepting acording to definition of Tide water accepted in United States' Law, 26. Tide water not mentioned in Treaty, 68. 116 INDEX. Inlets Question—Was it an essential characteristic of the lisidre that it was not to be traversed by Inlets?—Fifth Question, 24—Continued. Coast, "Ocean," "Sinuosities of the Coast"—Meaning of terms as used in Treaty of 1825—Continued. Subsequent Action of Parties to Treaty of 1825—United States' contention that her possession of Inlets had never been disputed by Great Britain or Canada, &c. Bayard's, Mr., Despatch of November, 1885—Evidence against United States' contention, 49, 50, 51, 52. Canadian Claims, Cognisance of, by United States—Speeches in Congress in January and February, 1896, 57, 58. Canadian Public Men, Statements by, 60. Commission appointed under Convention of 1892—Dr. T. C. Men- denhall's official action, 55, 56. Conference at Washington (1892)—No claim to heads of Inlets or rights on Lynn Canal advanced by Great Britain—Mr. Foster's Statement, 57. Dawson's, Dr., view that Line might cross the Inlets, officially noted by United States, &c, 53. Lynn Canal Region, Provisional Boundary— Lord Salisbury's Despatch of the 19th July, 1898, describing Boundary as more than 100 miles from the Ocean, 58. United States' Memorandum in Reply, 59. 117 Preliminary Survey provided for by Congress in 1891 to follow gen eral trend of Coast—United States' Coast Survey Report, 53, 57. Rivers of the lisiere, Line crossing—Negotiations between 1871 and 1878, 49. Summary of Evidence advanced by United States, 44. refer also to title Ten Marine Leagues Boundary—Point from which 10 Marine Leagues were to be measured. Johnston's Keith, Royal Atlas, Map from— Mountain Boundary shown on, 73. Joint High Commission, 1898— Appointment a formal acknowledgment that the Location of the Boundary was still an open question, 75. Kannaghunut Island— refer to title Portland Channel—Entrance. King, Mr. W. F.—British Commissioner on International Survey under Convention of 1892. Mountain Boundary shewn on Maps and described in Statement, 64. Langdorf (Langsdorff) Map of 1803. Absence of Mountains, 79, 81. Treaty of 1825 Negotiations, Possible use in, 6, 77. ^ "■•*. INDEX. 117 Latitude—Degrees of North Latitude mentioned. 54° 39' 30", 13. 54° 40', 11, 21. 54° 45', 5, 15, 21, 22. 55°, 13. 59°, 15. 60°, 15. Laurier, Sir W. Dyea, Nationality of—Possession of Dyea by Russians and then by United States, 60, 61. Lieven, Count. Treaty of 1825 Negotiations. Geography of Territories in question, Uncertainty as to, 81, 82. Memorandum of July 24, 1824—Objections to seaward base of Mountains as Boundary, 39. Longitude. Longitudes mentioned, 130° and 133°, 12. "" Treaty of 1825—West Longitude given by negotiators, 3. Vancouver's Narrative, Longitudes in—Reason for giving East Longitude, 3. Lynn Canal Region Boundary Question. Dyea and Skagway, Nationality of—Speeches by Mr. Sifton and Sir W. Laurier admitting possession by United States, 60, 61. Maps, Evidence of, 48. Mountain Boundary, Recognition of—Evidence of United States' Officials, Citizens, &c, 68, 69, 70, 71. 118 Provisional Boundary agreed on—Lord Salisbury's Despatch of July 19, 1898, describing Provisional Boundary as more than 100 miles from the Ocean, 57—United States' Memorandum in Reply, 59. Settlements, Extent of, up to 1885, 47. Survey by Dr. T. C. Mendenhall under Convention of 1892, 55, 56. United States' Authority, Extent of—Arrests made up to 10 Marine Leagues from head of Canal, 44. McCrackin, Lieutenant. Chilkoot Pass, Recognition as on the Boundary Line, 69. Mackenzie River. Memorandum assuming River to be in Russian Territory referred to in United States' Counter-Case, 17. Manitoba, Keewatin, British Columbia, &c, part of Map of, Montreal, 1880. Mountain Boundary shewn on, 73. Maps. Bayard's, Mr., Comment on Boundary shewn on Coast Survey Map of Alaska, No. 960, 75. Lynn Canal Region Boundary Question, Evidence on, 48. 118 INDEX. Maps— Continued. Mountain Boundary, Evidence as to. Contour Maps, Evidence as to existence of Mountains, 76. Maps published in support of United States' Case, Evidence of, 73. Recognition of, 72. Treaty of 1825 Negotiations, Maps used in—Evidence as to Existence of continuous or any Mountains, 77, 78, 79, 80. Vagueness and variety of Maps. Mountains introduced by Cartographers in deference to terms of Treaty, &c, 74, 75. Sumner's, Senator, Remarks in 1867, &c, 74. Portland Channel Entrance, Position—Evidence of Maps, 6, 7, 8, 9. Portland Channel Head to 56th Parallel—Two only out of 28 supporting United States' contention, 23. Subsequent Action of the Parties, Boundary Established by—United States' contention. Canadian Map supplied to Mr. Phelps at his request, British Government Repudiation of Boundary shewn on, 52—Absence of Comment by United States, 53. Objections to Maps relied on by United States, 48. Treaty of 1825, Maps used by Negotiators, 6, 77. for particular Maps, see their Names. Matusevich. Correction made in Mr. G. Canning's Draft Convention of 1824, 33. Mendenhall, Dr. T. C.—United States' Commissioner under Convention of 1892. Survey of 1892, Measurements taken from general trend of Coast, &c, 55,56. Middleton, Mr.— Portland Channel Head to 56th parallel—Change of Direction implied in Mr. Middleton's Report of Conversation with Mr. S. Canning on the day of Signature of Treaty of 1825, 2. Treaty of 1824, Meaning attached to " Ocean " in Article I—Mr. Middle- ton's care in distinguishing between provisions contained in Articles I and IV, 28. 119 Treaty of 1825, Report on— 54° 40' Question, Negotiations broken off on—Inaccuracy of Mr. Middleton's Statement, 15. Support given to British Contention as to boundary from starting-point to Portland Channel, 16. Vancouver's Narrative, Memorandum to Emperor of Russia showing knowledge of, 4. Moore, William— Mountain Boundary in Lynn Canal Region, Evidence as to Recognition of, 70. INDEX. . 119 Mountain Boundary—What, if any exist, are the Mountains referred to as situated parallel to the Coast, &c.—Seventh Question, 63— Existence of Mountains—Evidence of Contour Maps, 76. Misapprehension of Terms shown in United States' Answer to Seventh Question, 76. Range, Continuous Range of Mountains, Existence of denied by United States, 64. Mendenhall's, Dr. T. C, Remark quoted in United States' Counter- Case, -83. No such Range exacted by terms of Treaty of 1825, 77, 84. Recognition of— Lynn Canal Region, Recognition of Mountain Boundary in—Evidence of Officers, Officials and Citizens adduced by United States, 68, 69, 70. Maps, Evidence as to Recognition of Mountain Boundary, 72, 73, 74. Repudiation of, by United States, 42, 64. Treaty of 1825 Negotiations— Canning's, Mr. S., " Contre-Projet" of 1st February, 1825, Description of Mountain Boundary, 84. First Suggestion, Russian Counter-Draft of February 1824, 39. Hudson's Bay Company's Desire for a better Definition of Mountains described as following Sinuosities of the Coast, 36, 81. Maps used— Evidence as to Existence of any or continuous Mountains, 78, 79, 80. Uncertainty and Vagueness of Geographical Knowledge necessitating Introduction of 10-Marine League Alternative, 82. | Mountains bordering the Coast"—Sir C. Bagot's use of phrase, 34. Mountains near the Coast, Canadian Claim—Speeches in Congress, January and February 1896, 57, 58. Omission of Mountain Boundary from Sir C. Bagot's Amended Proposal of 1824, 39. Russian Preference for Mountain Boundary in spite of admitted uncertainty as to Situation of Mountains—Count Nesselrode's remarks (20th February, 1825), 40, 65. Russian Proposal to substitute 10-Marine League Line, 39. Canning's, Mr., refusal to agree to, 65. Seaward Base of Mountains—Mr. G. Canning's Proposal of 12th July, 1824, 36, 39, 82, 84. Russian objections to, 39, 84. Summit of Mountains Proposed, 39. British Government Consent—Mr. Canning's Instructions to Sir C. Bagot, 84. Muzon, Cape— Admitted Starting Point of Boundary Line, 11. 1 M 120 INDEX. Navy, United States—Acting Secretary's Report, 1903. Mountain Boundary in Lynn Canal Region, Reference to, 69. 120 Nesselrode, Count— Treaty of 1825 Negotiations— " Coast," Meaning of as used by Count Nesselrode, 35. Geography of Territory in Question, Uncertainty as to—Letters to Count Lieven (February and March 1825), 82. Mountain Boundary, Advantages of—Letter to Count Lieven (20th February, 1825), 40, 65. Newell, Lieut.-Com.— Mountain Boundary in Lynn Canal Region, Reference to, 69. North-West Coast of America— Behring Sea Arbitration—Interpretations of phrase " North-West Coast" contended for by Great Britain and United States, 31, 32. Russian Negotiators of Treaty of 1825, Meaning attributed to phrase by, 34, 35. Observatory Inlet— refer to title Portland Channel. " Ocean "— Meaning of, as used in Treaty of 1825^— refer to title Inlets Question. Open Question— Location of Boundary had ceased to be an Open Question—United States' contention refer to title Subsequent Action of the Parties to the Treaty of 1825. Pearse Island— refer to title Pqrtland Channel. Pelly, Mr.— " Coast" and " Sea," Meaning attached to words in negotiations prior to Treaty of 1825, 36. Pender, Staff Commander— Naming of Mountains between Portland Channel Head and 56th Parallel, 2^ Perrier Pass— see Chilcoot Pass. Perthes' Map of the World, Part of— Mountain Boundary, Evidence as to, 74. Phelps, Mr.— Canadian Map, Request for, 52. Pitney, Mr.— Canadian Claims, Speech in Congress (12th February, 1896)—Mr. Pitney's use of words " Coast" and " Ocean," &c, 58. Poletica, M. de— Vancouver's Narrative, Knowledge of, 4. ** INDEX. 121 Portland Channel—What Channel is the Portland Channel—Second question— Clarence Strait and Ernest Sound or Behm Canal, Substitution for, Portland Channel—Alternative proposed by Great Britain in the event of decision that Vancouver's Portland Channel was not the Portland Channel of the negotiators, 10. Entrance to Portland Channel— Cameron's Major, Report of 1878—Charge against Great Britain of omitting to print Appendix favouring United States' contention, 10. 121 Latitude of—54° 40' Contention, &c— Bagot's, Sir C, Mention of 54° 45', 6. Nesselrode's, Count, Letter to Count Lieven, 35. Treaty of 1825—Evidence that entrance was further north than southernmost point of Prince of Wales Island, 12. Maps used by Negotiators of Treaty of 1825, Evidence of, 6, 7. Maps used by Negotiators of Treaty of 1825, Evidence of, 6, 7. Observatory Inlet an Inlet diverging from Portland Channel—Alternative suggestion in United States' Counter-Case, 2. Maps, Evidence of, 7, 8. Portland Channel unnamed as far as Ramsden Point in 1825—United States' Counter-Case suggestion, 2. Vancouver's Maps, Evidence of, 7. Ramsden Point and Pearse Island, Entrance between—United States' Contention, 1, 2. Maps, Evidence of, 6, 8, 9. Tongass and Kannaghunut Islands, Entrance between, British Contention, 1, 2. Vancouver, Position assigned to Portland Channel by, 1, 2, 6, 7. Vancouver's Portland Channel, Channel intended by Treaty of 1825— British Contention, 1. Portland Channel Head to the 56th Parallel—Fourth Question, 17. "Ascend to the North"—Inconsistent interpretations by United States in respect of Questions 3 and 4, 20. Behm Canal, Intersection of, by British Line—United States' Objections, 21 22. Decision of Tribunal on Inlets Question applicable solely to Inlets north of the 56th parallel, 22. Direct Line from Portland Channel Head to point on 56th parallel found by Tribunal to be starting point of Eastern boundary of lisiere—British Contention, 17. Head of Channel— Latitude as given by Count Nesselrode, 35. Non-inclusion in " Coast" as used by Negotiators of Treaty of 1825, 35, 37, 38. 122 INDEX. Portland Channel Head to the 56th Parallel—Fourth Question, 17—Continued. Line North-East along same course on which said line touches Mainland till it. intersects, 56th parallel, or line drawn directly to 56th parallel along axis of valley forming continuation of the Channel—United States' Contention, 17. Difficulties occasioned by United States' Contentions—Discontinuity apparent in Statement in conclusion, &c, 18, 19. Maps, Evidence of—Two only out of 28 Maps supporting United States' Contention, 23. Middleton's, Mr., Report of Conversation with Mr. Stratford Canning on day of signature of Treaty of 1825—Change of direction indicated by use of the word " turns," 21. Pender's, Staff-Commander's, Action in naming Mounts Johnson and Reverdy, Irrelevance of reference to, 22. Treaty of 1825, Interpretation of French Text—Importance attached to Russian version by United States, 19. Change of direction at the Head of Portland Channel not precluded by wording of the Treaty, however interpreted, 20. Westward Course of Line proposed by Great Britain no more inconsistent with wording of Treaty than the Eastward Course of Line from Cape Muzon to Portland Channel Entrance, 21. 122 Preliminary Action of the Parties to Treaty of 1825— Admission as Evidence, Limits and purpose of—Article III of Treaty of 1903, 40. Principles governing extent to which prior negotiations can be used for purpose of construing a written contract, 32, 33, 38. United States' Contention that the intention of the Parties must control the interpretation of the Treaty, 33, 38. Prince of Wales Island— Southernmost point, Latitude of—Uncertainty of negotiators of Treaty of 1825, &c, 13. Treaty of 1825, Clause securing whole Island to Russia a proof that the negotiators did not contemplate a boundary due East from Cape Muzon to Entrance of Portland Channel, 12, 13. Ripinski, Mr. Sol.—United States' Commissioner at Haines— Mountain Boundary in Lynn Canal Region, Evidence as to Recognition of, 71. Rivets of the Lisiere, Boundary crossing— Negotiations between 1871 and 1878—Unimportance of expressions used as to line crossing Rivers Stikine, Taku, and Chilcat, 49. Roberts, Lieutenant— Vancouver's Large Chart prepared by, 78. Ik INDEX. 123 Russia— Claims of, in 1825— 55th parallel, Recognition as Limit of Russian Rights, 13. Latitude above which Russian Rights had not been challenged—Count Nesselrode's inaccurate statement, 15. Relations with disputed Territory principally at the Stikine, 44. Russian Maps— Map of 1802— Mountains shown on, 79, 81. Portland Channel Entrance, Evidence as to Position of, 7. Reproduction of Vancouver's Charts, 78. Treaty of 1825 Negotiations, Use in, 6, 78. Map of 1826— Inconsistency with Terms of Treaty—Map of no authority, 48. Portland Channel Head to 56th parallel—Course of Boundary, 23. Official Map of 1853—Portland Channel Entrance, Support given to British Contention, 9. Map of 1861—Portland Channel Head to 56th parallel, Course of Boundary, 23. Russian Ukase of 1821— Suspension of exclusive claims of Navigation and jurisdiction over North Pacific Ocean put forward by Ukase—Mr. G. Canning's Letter to Count Lieven, 36. Salisbury, Marquis of— Despatch of 19th July, 1898—Lynn Canal Region Provisional Boundary described as more than 100 miles from the Ocean, 58—United States' Memorandum in Reply, 59. Schwatka, Lieutenant— Military Reconnaissance of 1883—Perrier Pass referred to as on International Boundary, 68. Scott, Hon. R. W.— Speech in Canadian Parliament on Boundary Question, 51. Scottish Geographical Magazine, 1898, Map of Portland Channel Head to 56th parallel—Course of Boundary, 23. 123 Seattle Chamber of Commerce Report, 58. Second Question—What Channel is the Portland Channel? 1. Seventh Question—What, if any exist, are the Mountains referred to as situated parallel to the Coast, &c? 63. Sifton, Hon. Clifford— Dyea and Skagway, Nationality of, 60. Simpson, Governor— Journey in 1847—Remarks that the strip ceded to Russia rendered the interior country comparatively useless to Great Britain, 42. S. Doc. 162, 58-2, vol 5 23 iu' 124 INDEX. Simpson Map of 1847— Portland Channel Head to 56th parallel—Course of Boundary, 23. Sinuosities of the Coast. refer to title Inlets Question. Sixth Question—Point from which 10-Marine League Boundary should be measured if the Fifth Question should, be answered in the negative, 61. Skagway and Dyea. Nationality of—Speeches by Mr. Sifton and Sir W. Laurier admitting Possession by United States, 60, 61. Southern (Water) Boundary—What course should the line take from the point of Commencement to the Entrance to Portland Channel?—Third Question, 10. "Ascend to the North "—Direction of Treaty of 1825 discarded for Question Three and relied on for Question Four by United States, 20. Direct Line—British Contention, 11. Middleton's, Mr., Report on Treaty of 1825—Support given to British Contention, 16. Facts subsequent to Treaty, Irrelevance and Insignificance of, 16. 54° 40'—United States' Counter-Case Contention. Hudson's Bay Company Lease of the lisiere, Evidence of, 16. Negotiations preceding Treaty, Evidence of, 13. Bagot's, Sir C, reference to 54° 45' as limit above which England would lose bays, and inlets under Russian Proposal, Evidence against United States' Contention, 6, 15. Middleton's, Mr., Statement that Negotiations were broken off on 54° 40' question, Inaccuracy of, 15. Nesselrode's, Count, Letters to Count Lieven mentioning 54° 40' as boundary, Explanation of, 14. Treaty of 1825—Contention not supported by Text of Treaty, 12, 13. Fifty-fifth parallel, Recognition by Russia as Southern Limit of Rights, 13. Line drawn easterly from Cape Muzon to centre of Portland Channel— United States' Contention, 11. Clause securing Prince of Wales Island to Russia plainly showed that the Negotiators did not intend the line to go due east from Cape Muzon, 12, 13. Treaty of 1824—Irrelevance of Treaty and preceding Negotiations, 15. Squire, Senator— Speech in Congress, January 3, 1896, 57, 58. Spanish Admiralty Map of 1857— Portland Channel Head to 56th parallel—Course of Boundary, 23. 124 Stanford's Atlas, 1887—Part of Map of British Columbia, plate 78. Mountain Boundary shewn on, 73. Stick Indians— British Subjects—Complaints as to Stick Indians packing in United States' Territory, 69. INDEX. 125 Stickine River— Boundary Question— Howard's, Brigadier-General, Reference to Mountain Boundary, 68, 69. Hunter, Mr., Boundary laid down by—Measurement from general trend of Coast. 47. 49. Irrelevance of Evidence adduced by United States to show that Boundary was at 10 marine leagues from head of tide water, 46, 47. Negotiations between 1871 and 1878—Evidence as to accepted Interpretation of the Treaty on the Inlets Question, 49. Russian Boundary Mark 10 marine leagues from Coast, alleged, 44. Russian Relations with disputed Territory principally at the Sti- keen, 44. Sumner, Senator— • Maps existing in 1867, Vagueness of, 74. Subsequent Action of the Parties to the Treaty of 1825. Admission as Evidence, Limits and Purpose of—Article III of Treaty of 1903, 40, 41. Irrelevance of subsequent facts where Terms of Treaty were clear, 8, 9, 16, 43. Method of putting forward such Evidence—Matters relied on by United States put forward individually, not looked at as a whole, 59. Such action could only be appreciated by the light of the Treaty and of the diplomatic action of both Powers interested, 59, 61. Location of Boundary had been decided by subsequent action and could not therefore be held to be an open question—United States Contention, 42, 54. Bayard's, Mr., Despatch of November, 1885, Evidence of, 49, 50, 51, 52, 55, 75. Canada, Lines proposed by—No particular line contended for by Great Britain, 54. Convention of 1892—Location of Boundary recognized as an open question, United States cognizance of Dr. Dawson's views, &c, 53, 54. Commission appointed under Convention, Official action of Dr. T. C. Mendenhall, &c, 55, 56. Inconsistency of United States' arguments, 55. Joint High Commission, Appointment of, an acknowledgment that the Boundary Question was still open, 75. Maps relied on by United States, Objections to, 48. Canadian Map supplied to Mr. Phelps at his request—British Government repudiation of Boundary shown on, 52. Preliminary Survey provided for by Congress in 1891, Mr. F. M. Thorn's Report, 53, 57. Scott's, Hon. R. W., Speech in Canadian Parliament, 51. 126 INDEX. Subsequent Action of the Parties to the Treaty of 1825—Continued. Location of Boundary had been decided by subsequent action and could not therefore be held to be an open question—United States Contention, 42, 54—Continued. Treaty of 1892, Evidence of, 53, 54, 76. Treaty of 1903, Evidence of, 76. see also titles Inlets Questions, Ten-Marine Leagues Boundary, &c. Taku River Boundary— Proposals between 1871 and 1878, Evidence as to accepted Interpretation of the Treaty on the Inlets Question, 49. United States' authority acknowledged 30 miles up river, 44. 125 Tanner Map of 1839— Mountain Boundary, Evidence as to, 73. « Portland Channel Head to 56th parallel—Course of Boundary, 23. Ten-Marine Leagues Boundary— Article III of Treaty of 1825, Terms of, 24. Point from which 10 Marine Leagues were to be measured. 4 Parallelism and Distance must refer to same line, that is, the line referred to by the three expressions " Ocean," | Coast," and " Sinuosities of the Coast," 25, 26, 66. Impracticability of a line following the sinuosities formed by the Inlets—Line suggested by United States parallel to the Coast used in British sense, distant 10 marine leagues or more from Coast used in United States sense, 30, 43, 66, 67. Sixth Question, Alternatives proposed by, &c, 61. First and Second Alternatives, Lines indicated by substantially the same, 63. Third Alternative, Hypothesis on which question was put contradicted by, 63. Territorial Waters, Point from which 10 leagues should be measured where Inlets form territorial Waters, 61. Subsequent action of the Parties to Treaty of 1825, 10 league Boundary measured from heads of Inlets established by—United States' Contention, 43, 44. Bayard's, Mr., Despatch of November 1885, Evidence of, 50, 51. Canadian Map supplied to Mr. Phelps—British Government Repudiation of Boundary shewn on Map, Absence of Comment by United States, 52, 53. Examination of Evidence advanced by United States, 44, 45, 46, 47. Treaty of 1825 Negotiations-—Adoption of 10 Marine Leagues Boundary with Alternative of Mountain Boundary proposed. Bagot's, Sir C, Amended Proposal of 1824, 39. British Refusal to agree to, 40, 65. Russian Counter-Draft of 1824, 39. ate INDEX. 127 Ten-Marine Leagues Boundary—-Continued. Treaty of 1825 Negotiations—Adoption of 10 Marine Leagues Boundary with Alternative of Mountain Boundary proposed—Continued. Ten-Marine League limit not employed as a boundary generally, but as indicating extreme distance beyond which Mountain Boundary should not be followed, 65. " Uniform" Boundary claimed by United States, Area of Territory involved, 68. Territorial Waters, Inlets forming— Ten-Marine League Boundary, Measurement from point where Inlets formed Territorial waters, 62. Third Question—What course should the line take from the Point of Commencement to the Entrance to Portland Channel ? 10. Thorn, Mr. F. M.—United; States' Coast and Geodetic Surveyor— Report, 1891, 53, 57. Tide w^ater— Definition accepted in United States, &c, 26. Not mentioned in Treaty of 1825, 68. Trading and Fishing Rights in Interior Waters, see Fishing and Trading Rights. Treaty of 1824— Boundary from Point of Commencement to Entrance to Portland Channel— Treaty of 1824 and preceding Negotiations irrelevant to interpretation of Treaty of 1825, 15. 126 Treaty of 1825— Application of Provisions—Boundary established still not merely unidentified, but unascertained in the sense that the data on which it depended were not ascertained, 41, 42. Article III, Interpretation of—Russian version relied on by United States, Lack of Authority, &c, 19. Negotiations— Admission of, as Evidence before Tribunal of 1903, see title Preliminary Action of the Parties to the Treaty of 1825. Draft Convention sent by Mr. Canning to Sir C. Bagot, July 12, 1824, 37. First Negotiations— Negotiations broken off, 35. Russian " Contre-projet" to Sir C. Bagot's first proposal— Sir C. Bagot's amended Proposal, 34. Russian Observations on amended proposal and Sir C. Bagot's Reply, 35, 80. Geography of Territories in Question, Uncertainty as to, 13, 22, 27, 34, 39, 40, 65. Maps used by Negotiators, 6, 77, 78. Vancouver's Maps and Narrative, Negotiators Knowledge of, Questioned by United States, 2, 3, 4. 128 INDEX. Treaty of 1825—Continued. Preliminary Action of the Parties, see that title. Subsequent Action of the Parties, see that title. refer also to titles Inlets Question, Mountain Boundary, Portland Channel, &c. Treaty of 1892— Commission appointed under—Dr. T. C. Mendenhall's Action confirming British Definition of " Coast," 55. Location of Boundary, Recognition of, as an open Question—British Contention, 53, 54, 76. Treaty of Arbitration, 1903— Article III—Preliminary and subsequent Action of the Parties, Admission as Evidence, 40. Formal acknowledgment that Location of the Boundary was still an open question, 76. Functions of Tribunal appointed under Treaty— Meaning and Intention of Treaty of 1825, not facts and data controlling its application to be decided on, 41, 54. Revision of Treaty and Laying down of Boundary outside Powers of Tribunal, 43. Tupper, Sir C.— Dawson's, Dr., Statement of view that Boundary might cross the Inlets, Communication to Mr. Bayard, 53. Tuyll, Baron— Southern Boundary—Suggestion to Count Nesselrode, October 21, 1822, 5. Vancouver's Maps and Narrative— Longitudes given in—Reason for giving east Longitude in narrative, &c, 3. Portland Channel, Position assigned to, by Vancouver, 2, 6, 7. Treaty of 1825 Negotiations— Maps used in, 78. Large Chart omitted from United States' Case and Counter- Case, 81. Mountains shown on, 78, 81. Narrative, Negotiators' knowledge of, Questioned by United States, 2.' Possession of Maps implying possessions of Narrative, 4. 127 Washington Conference, 1892— Inlets Question—No claim to heads of Inlets or Rights on Lynn Canal advanced by Great Britain, Mr. Foster's Statement, 57. Windings of the Coast— refer to title Inlets Question. Wright, Robert- Mountain Boundary in Lynn Canal Region, Evidence as to Recognition of, 70. Tk -^, In, CORRESPONDENCE BETWEEN THE GOVERNMENT OF THE UNITED STATES AND GREAT BRITAIN SINCE THE RATIFICATION OF THE TREATY OF JANUARY 24,1903. I | I t I I Mr. Hay to Sir M. H. Herbert. No. 73.] Department of State, W ashing ton, February 13,1903. His Excellency The Rt. Hon. Sir Michael H. Herbert, K. C. M. G., C. B., &c, &c, &c. Excellency: I have the honor to inform you that the Senate, by its resolution of the 11th instant, two-thirds of the Senators present concurring therein, gave its advice and consent, without amendment, to the ratification of the Convention which I signed with you on January 24, 1903, providing for the settlement of the questions between the United States and Great Britain with respect to the boundary line between the territory of Alaska and the British possessions in North America. I have, Mm &c, &c, John Hay. Mr. Hay to Sir M. H. Herbert. Department or State, Washington, March 5, 1903. Dear Excellency: I have the honor to inform you that the President has appointed the Honorable Elihu Root, the Honorable Henry Cabot Lodge, and the Honorable George Turner, of Washington, as the American members of the Tribunal created by the Convention between the United States and Great Britain, which was signed on the 24th of January, 1903. I have the honor to be, with assurance of the highest consideration, Your Excellency's obedient servant, %J 7 John Hay. His Excellency The Right Honorable Sir Michael H. Herbert, K. C. M. G., C. B., &c, &c, &c. ALASKAN BOUNDARY TRIBUNAL. Mr. Zoomis to Mr. Choate. No. 1149.] Department of State, Washington, March 10,1903. His Excellency Joseph H. Choate, &c, &c, &c, Zondon., Sir: I enclose for the Embassy's use twelve copies of the President's Proclamation of the Convention between the United States and Great Britain for the settlement of questions between the two countries with respect to the boundary line between Alaska and the British possessions in North America, signed at Washington, on January 24, 1903. The President has appointed the Honorable Elihu Root, Secretary of War, Senator Henry Cabot Lodge, of Massachusetts, and ex- Senator George Turner, of Washington, as the American members of the Tribunal provided for in the Convention. I am, Sir, your obedient Servant, Francis B. Loomis, Acting Secretary. Enclosures: Copies of Convention as above. Mr. Choate to Mr. Hay. No. 1094.] American Embassy, Zondon, April 1, 1903. Sir: Referring to your instruction, No 1149, of March 10 last, I have the honour to enclose herewith copies of the Note in which I communicated the President's Proclamation of the Convention between the United States and Great Britain for the settlement of questions relative to the Alaska Boundary, and of his Lordship's reply. I have the honour to be, Sir, your obedient servant, Joseph H. Choate. The Honourable John Hay, &c, &c, &c, Secretary of State. Enclosures:—1. Mr. Choate to Lord Lansdowne, March 19, 1903. 2. Lord Lansdowne to Mr. Choate, March 28, 1903. [Enclosure 1.] Mr. Choate to Lord Lansdowne. American Embassy, • London, March 19,1908. My Lord: I have the honour to enclose herewith copies (2) of the President's Proclamation of the Convention between the United States and Great Britain for the settlement of questions between the two countries with respect to the boundary line between Alaska and the British possessions in North America, signed at Washington January 24th, 1903, and to inform your Lordship that the It CORRESPONDENCE SINCE TREATY OF 1903. 5 President has appointed the Hon. Elihu Root, Secretary of War of the U. S., the Hon. Cabot Lodge, the Senator for Massachusetts, the Hon. George Turner, ex-Senator of the State of Washington, as American members of the tribunal provided for in the Convention. I have the honour to be, &c, Joseph H. Choate. The Most Hon. The Marquess of Lansdowne, K. C, &c, &c, &c. Enclosures: Two copies of the Convention above mentioned. [Enclosure 2.] Lord Lansdowne to Mr. Choate. Foreign Office, March 28, 1903. Tour Excellency : I have the honour to acknowledge the receipt of your Excellency's note of the 19th instant, enclosing copies of the President's Proclamation of the Convention between the United States and Great Britain for the settlement of questions with respect to the boundary line between Alaska and the British possessions in North America, signed at Washington on the 24th of January last. Your Excellency at the same time informed me that the President has appointed the Hon. Elihu Root, Secretary of State for War, the Hon. Cabot Lodge, and the Hon. George Turner as American members of the Tribunal provided for in the Convention. I have the honour to be, &c, Lansdowne. His Excellency The Hon. J. H. Choate, &c, &c, &c. Sir M. H. Herbert to Mr. Zoomis. British Embassy, Washington. March 13,1903. Dear Mr. Loomis : In accordance with a request made to me by the Secretary of State on the 5th instant, I telegraphed to the Marquess of Lansdowne suggesting that, in order to save trouble and the waste of CDCD CD time involved by two journeys across the Atlantic, the purpose of the 2nd Article of the Alaska Convention might be considered as com- CD plied with by the appointment on each side of the Commissioners and the presentation of the respective cases, and even of the counter cases, ^".thout an actual meeting in London. I have now received a telegram from his Lordship in reply, in which he states that there may be some difficulty in preparing the cases, evidence, &c, within the period of two months after the exchange of ratifications for which provision is made in Article 2 of the Convention. I am accordingly directed to enquire whether the United States Government will agree to extend the period, either bv an exchange of CD -■- « CD notes, or, if necessary, by a supplementary convention, until the 31st of May, or, better still, until June 30. When the date is fixed, an arrangement could be made for the simultaneous exchange of all the documents without a formal meet- . CD ing of the Tribunal in London. The members of he Tribunal might later on themselves arrange the 6 ALASKAN BOUNDARY TRIBUNAL. date of meeting after the counter cases and arguments have been presented. Believe me, dear Mr. Loomis, Yours very truly, Michael H. Herbert. The Hon. Francis Loomis, Acting Secretary of State, dsc, <&c, <&c. Mr. Zoomis to Sir. M. H. Herbert. Department of State, Washington, March 11^, 1903. His Excellency The Rt. Honorable Sir Michael H. Herbert, G. C. M. G., C. B., &c, &c, &c. Your Excellency : I have the honor to acknowledge the receipt of your note of March 13, respecting certain suggestions for carrying out the purpose of the 2nd Article of the Alaska Convention. In reply permit me to say that the matter is now under consideration, and it is hoped that a definite answer may be given you in a few days. Believe me, Your Excellency, Very truly yours, Francis B. Loomis, Acting Secretary, Sir M. H. Herbert to Mr. Zoomis. No. 59.] British Embassy, Washington, March 19, 1903. Sir: In accordance with instructions which I have received from the Marquess of Lansdowne, I have the honour to inform you that the Lord Chief Justice of England, His Honour Sir Louis Aimable Jette, K. C. M. G., retired Judge of the Supreme Court of Quebec, and the Honourable John Douglas Armour, Judge of the Supreme Court of Canada, have been selected as the British members of the Alaska Boundary Tribunal. I have the honour to be, with highest consideration, Sir, Your most obedient, humble Servant, Michael H. Herbert. The Hon. Francis B. Loomis, Acting Secretary of State, <&c, dkc., &c. Sir M. H. Herbert to Mr. Hay. British Embassy, Washington, March 23, 1903. Dear Mr. Secretary: With reference to our conversation of the day before yesterday, I hasten to inform you that, in view of the "W CORRESPONDENCE SINCE TREATY OF 1903. 7 ^inconvenience which would be caused to the American Commissioners by any postponement of the delivery of the cases to the Alaska Tribunal, His Majesty's Government do not desire to press the proposal for an extension of time. The British case will be ready for delivery in London on May the 3rd, in accordance with the stipulation of Article II. of the Convention. I am, dear Mr. Secretary, Yours very truly, Michael H. Herbert. The Hon. John Hay, &c, &c, &c. Mr. Hay to Sir M. H. Herbert. Personal.] Department of State, Washington, March 21i, 1903. My Dear Mr. Ambassador: I beg to acknowledge the receipt of your personal note of the 23rd instant, stating that His Majesty's Government will not press for an extension of time for the delivery of the cases to the Alaska Tribunal, and that the British cases will be ready for delivery in London on May 3 next, in accordance wdth the %J %J \7 7 stipulation of Article II. of the Convention. I take it for granted that it will be regarded as a compliance with the stipulations of the Convention if our case is presented on the same day to the American members of the Tribunal in Washington, and to your Embassy for transmittal to London. I am, my dear Sir Michael, very sincerely yours, - 7 «/ 7 */ %7 %7 7 John Hay. His Excellency the Right Honorable Sir Michael H. Herbert, K.C.M.G., C.B., &c, &c, &c. Sir M. H. Herbert to Mr. Hay. Personal.] British Embassy, Washington, March 25, 1903. Dear Mr. Secretary: I beg to acknowledge the receipt of your personal note of yesterday's date, in which you state that you take it for granted that it will be regarded as a compliance with the stipulations of the Alaska Convention if the United States cases are presented on the same day to the American members of the tribunal in Washington and to this Embassy for transmission to London. In reply, I beg to inform you that in my opinion you are correct in your assumption, but I have forwarded a copy of your note to the Marquess of Lansdowne. I am, dear Mr. Secretary, yours very truly, Michael H. Herbert. The Honorable John Hay, Secretary of State, <&c, dec, <&c. 8 ALASKAN BOUNDARY TRIBUNAL. Mr. Hay to Sir M. H. Herbert. Department of State, Washington, April 11, 1903. My Dear Sir Michael: The 3rd of May, as you are doubtless aware, falls on Sunday. We must, therefore, have our respective cases ready either on the 2nd or the 4th. It seems more in accordance with custom that we should present them on Saturday the 2nd. If this should suit your side, we would try to be ready on that day. Will you kindly give me the correct names and titles of all the British members of the Tribunal, of the Agent, and of any one who, under the treaty, is entitled to a copy of the case. We should like to have a special copy prepared for each person officially entitled to one, and besides those copies, we shall place twelve additional ones at your disposition. I hope it may be convenient for your Government to do the same by ours. Very sincerely yours, JoHn Hay. His Excellency The Rt. Hon. *m Sir Michael H. Herbert, K.C.M.G., C.B., &c, <fcc, &c. Sir M. H. Herbert to Mr. Hay. Washington, April 15, 1903. Dear Mr. Secretary : With reference to your unofficial note of the 11th instant, my Government agree to the delivery of the Alaska cases in London and Washington on May 2 instead of May 3, which falls on Sunday. The correct names of the British members of the Tribunal and Agent who are entitled to receive copies of the case are as follows:- The Right Honourable Lord Alverstone, G.C.M.G., Lord Chief Justice of England; His Honour Sir, Louis Aimable Jette, K.C.M.G. The Honourable John Douglas Armour, Judge of His Majesty's Supreme Court of Canada. The Honourable Clifford Sifton, K.C, Minister of the Interior in the Cabinet of the Dominion of Canada. Besides the copies for the American Commissioners and Agent, twelve additional copies of-the British case will be delivered on May 2 in accordance with your request. Lord Lansdowne proposes that we should exchange formal notes embodying the arrangements in regard to the postponement of the meeting or the Tribunal and the delivery of the cases, and I propose to address you -an official communication on this subject. I am, dear Mr. Secretary, yours very truly, Michael H. Herbert The Honorable John Hay, &c, &c, &c. -v CORRESPONDENCE SINCE TREATY OF 1903. 9 Sir M. H. Herbert to Mr. Hay. Washington, April 16, 1903. Sir: On the 5th March last you suggested to me verbally that, in order to save trouble and the waste of time involved by two journeys Across the Atlantic, the purpose of the second Article of the Alaska Convention, signed on the 24th January last, might be considered as complied with by the appointment on each side of the Commissioners, and the presentation of the respective cases and even of the counter cases, without an actual meeting in London. I have the honour to inform you that the Marquess of Lansdowne agrees to your suggestion, and proposes the following arrangements shall be considered as fulfilling the provisions contained in the second paragraph of Article II. of the Convention. The delivery on May 2nd (May 3rd, the correct date, falling on a Sunday) of the British case at the United States Embassy in Lon- /htm ** don for the American members of the Tribunal and the American Agent. The delivery on May 2nd of the American case at the British Embassy in Washington for the British members of the Tribunal and the British Agent. Lord Lansdowne further suggests that the members of the Tri- ■bunal might, later on, themselves arrange the date of meeting after the presentation of the counter cases and printed arguments. I have the honour to be, with the highest consideration, Sir, your most obedient, humble Servant, Michael H. Herbert. The Hon. John Hay, &c, &c, &c. Mr. Hay to Sir M. H. Herbert. No. 110.] Department of State, Washington, April 17, 1903. Excellency: I have the honour to acknowledge the receipt of your note No. 86 of the 16th instant, by which you- inform me that the Marquess of Lansdowne agrees to the suggestion which I made to you verbally on March 5 last, that, in order to save trouble and the waste of time involved by two journeys across the Atlantic, the purpose of the second Article of the Alaska Convention of January 24, 1903, might be considered as complied with by the appointment on each side of the Commissioners, and the presentation of the respective cases, and even of the counter cases, without an actual meeting in London. „ His Lordship proposes that the following arrangements shall be considered as fulfilling the provisions contained in the second paragraph of Article II. of the Convention. The delivery on May 2 (May 3, the correct date, falling on Sunday) of the British case at the United States Embassy in London for the American members of the Tribunal and the American Agent. The delivery on May 2 of the American case at the British 10 ALASKAN BOUNDARY TRIBUNAL. Embassy in Washington for the British members of the Tribunal and the British Agent. This Government understands these arrangements to be now accepted on both parts, and will in accordance therewith deliver, on the 2nd of May next, the American case at the British Embassy at Washington for the British members of the Tribunal and the British Agent. CD Note is taken of Lord Lansdowne's further suggestion that the members of the Tribunal might, later on, themselves arrange the date of meeting after the presentation of the counter cases and printed arguments. I have the honour to be, with the highest consideration, your Excellency's most obedient Servant, John Hay. His Excellency the Rt. Hon. Sir Michael H. Herbert, G. C. M. G., C. B., &c, &c, &c. Mr. Hay to Mr. Choate. Department of State, Washington, April 21, 1903. His Excellency Joseph H. Choate, &c, &c, &c, Zondon. Sir : I enclose for your information copies of notes exchanged with the British Ambassador here concerning the delivery of the respective cases of the two Governments under the Second Article of the Alaska Convention of January 24, 1903. In accordance with the arrangement set out in the notes, you are authorized to receive on May 2 the British case for the American members of the Tribunal and the American Agent. I am, Sir, your obedient Servant. John Hay. Mr. Hay to Mr. Choate. [Telegram.] Department of State, Washington, April 30, 1903. Choate, Zondon. By agreement of both parties the cases are to be delivered here and in London to-morrow, so as to catch Saturday's steamer. Hay. Mr. Hay to Sir M. H. Herbert. No. 117.] Department of State, Washington, May 1, 1903. Excellency : I have the honor to transmit herewith a letter of this date from Mr. John W. Foster, Agent of the United States before CORRESPONDENCE SINCE TREATY OF 1903. 11 the Alaskan Boundary Tribunal, addressed to the Honorable Clifford Sifton, British Agent, accompanied by twenty (20) copies of the printed case of the United States, delivery of which is made to you in accordance with an agreement, and as a compliance with Article II. of the treaty signed by us on January 24 last. I have the honor to be, with the highest consideration, your Excellency's most obedient Servant, %7 7 John Hay. Enclosure as above. Accompaniments as above. His Excellency the Rt. Hon. Sir Michael H. Herbert, G.C.M.G.. C.B., &c, &c, &c. Mr. Foster to Mr. Sifton. '% May 1, 1903. Honorable Clifford Sifton, Agent of the British Government before the Alaskan Boundary Tribunal. Sir: In accordance with the terms of the treaty of January 24, 1903, between the United States and Great Britain and of the agreement between the two Governments, I transmit herewith, through the British Embassy in Washington, copies in duplicate of the printed case of the United States before the Alaskan Boundary Tribunal for the British Agent and the British members of the Tribunal, and twelve (12) additional copies for the use of yourself and British Counsel. I have the honor to be, with high respect, your obedient Servant, John W. Foster, Agent of the United States before the Alaskan Boundary Tribunal. Mr. Choate to Mr. Hay. No. 1113.] American Embassy, Zondon, May 1,1903. Sir: I have the honor, in accordance with your instruction No. 1186 of the 21st of April, 1903, to transmit herewith eight copies of the British case in connection with the Alaskan Boundary, which, under the second Article of the Alaska Convention of January 24th, 1903, were handed to me to-day on the part of Mr. Sifton. His Britannic Majesty's Agent. I have the honour to be, Sir, your obedient Servant, Joseph H. Choate. Hon. John Hay, &c, &c, &c. Enclosure. S. Doc. 1(>2, 58-2, vol 5- -24 12 ALASKAN' BOUNDARY TRIBUNAL. [Enclosure.] Mr. Sifton to Mr. Choate. London, May 1st, 1903. Sir : I have the honour to hand to Your Excellency herewith eight copies of the Case of Great Britain with accompanying Appendices, under the Convention signed at Washington, January 24th, 1903, for the adjustment of the boundary betwen the Dominion of Canada and the Territory of Alaska. It having been agreed that delivery of these documents at the United States Embassy at London should be taken as delivery under the terms of Article II. of the said Convention, they are delivered accordingly. The twelve additional sets of these volumes will be delivered to-morrow. I have also the honour to transmit for Your Excellency's own use one copy of the Case and accompanying Appendices. I have the honour to be, Sir, Your Excellency's obedient servant, Clifford Sifton, Agent of His Britannic Majesty before the Alaska Boundary Tribunal.. His Excellency Joseph H. Choate, &c, &c, &c. Mr. Sifton to Mr. Foster. Hotel Cecil, Zondon, W. C, May 15, 1903. Hon J. W. Foster, Washington, D. C. Dear Sir: A preliminary examination of the case for the United States which reached my hands a couple of days ago, makes it clear that it will be impossible to prepare a counter case for Great Britain within the period of two months, which is, in the absence of an extension, contemplated by the Treaty. The many allegations of fact contained in the Case and Appendix filed on behalf of the United States which can only be examined upon, and in the neighbourhood of, the territory in question, obviously renders further time necessary. I therefore suggest that an extension of two months should be given. Under the terms of the Treaty, power to extend lies with the members of the Tribunal, but I presume that no objection will be raised by the members of the Tribunal to an extension. May I ask you to advise me if you agree with my suggestion for an extension of tw7o months ? I am, dear Sir, your obedient servant, Clifford Sifton. Mr. Sifton to Mr. Foster. Hotel Cecil, Zondon, W. C, May 15, 1903. Hon. J. W. Foster, Washington, D. C. Dear Sir: Correspondence has taken place between the Government of the United States, and the Government of Great Britain, the purport of which is that the senior member of the Tribunal appointed by Great Britain, and the senior member of the Tribunal appointed by the United States, should be placed in communication, for the pur- CORRESPONDENCE SINCE TREATY OF 1903. 13 pose of making necessary arrangements respecting the organisation and meetings of the Tribunal in the most convenient way. I should be glad to know whether you have any suggestion to make as to how the above idea should be carried into effect. Should you concur, I might wait upon the Lord Chief Justice and ask him to communicate directly by letter with Mr. Root. Believe me, your obedient servant, Clifford Sifton. Mr. Choate to Mr. Hav. [Telegram from London.] May 20, 1903. Mr. Choate telegraphs the Secretary of State that he is urging that Commission meet on September 3rd to hear or arrange for early oral argument; and Attorney-General suggesting that time might be required for production of papers, he has said that he would do all he could to facilitate the production of papers without formal proceedings. \ Mr. Hay to Mr. Choate. [Telegram.] Department of State, Washington, May 21, 1903. Choate, Ambassador, Zondon. We will waive formalities of the treaty as to production of papers, but should have early notice of those desired. Hay. Mr. Sifton to Mr. Foster. [Telegram.] London, May 23,1903. Honorable John W. Foster, Washington. Will you kindly cable me your views in answ7er to my two letters, 14th and 15th May, as soon as possible after they reach your hands. Clifford Sifton. Mr. Foster to Mr. Sifton, May 25, 1903. Hon. Clifford Sifton, Hotel Cecil, Zondon. Dear Sir: I have the honor to acknowledge the receipt of your letter of the 15th instant containing the suggestion that the senior member of the Alaskan Boundary Tribunal of each Government be placed in communication, for the purpose of making the necessary 14 ALASKAN BOUNDARY TRIBUNAL. arrangements respecting the organization and meetings of the Tribunal. I have to-day replied by cable to your communication as follows:— " I have no objection to proposed arrangement between senior members of Tribunal, but as correspondence on subject is in progress between American Ambassador and Foreign Office, they bad better be consulted." Very respectfully, ! John W. Foster. Mr. Foster to Mr. Sifton. Hon. Clifford Sifton, May 25,1903. Hotel Cecil, Zondon Dear Sir : I had the honor to receive your letter of the 15th instant this morning, in which you suggest the convenience of the postponement for two months of the delivery of the Counter Case of the two Governments. After consulting with the Secretary of State and the members of the Tribunal near at hand, I regret to say that I found it necessary to send you the cablegram of which the following is a copy: " Personally I should be glad to agree to your proposition for extension of two months for Counter Case, but American members of Tribunal say impossible to consent because of special session of Congress, as heretofore stated to British Ambassador." The subject of the postponement of the time for the case was under consideration in the month of March last, and, for the reasons then stated to the British Ambassador, it was deemed necessary to decline the proposition. The same reason then given applies with equal force to the suggestion made in your letter of the 15th instant. I deeply regret the circumstances which make it impossible for me to meet your wishes, as personally it would be entirely agreeable to me to do so. Yours respectfully, John W. Foster. Mr. Hay to Mr. Choate No. 1203.] Department of State. Washington, May 25,1903. His Excellency Joseph H. Choate, &c, &c, &c, . Zondon. Sir: I enclose herewith a letter from John W. Foster, Esquire, Agent of the United States before the Alaskan Boundary Tribunal, addressed to the Honorable Clifford Sifton, Agent of Great Britain, making demand, in pursuance of paragraph 4 of Article II of the Treaty of January 2i4, 1903, for copies of certain documents therein particularly described which are specified or referred to in the British Case without annexing copies thereto. You will communicate this demand through the Foreign Office to the British Agent. I am, Sir, your obedient Servant, John Hay. Enclosure, CORRESPONDENCE SINCE TREATY OF 1903. 15 [ Enclosure. ] Mr. Foster to Mr. Sifton. Washington, D. C, May 23, 1903. To the Honorable Clifford Sifton, Agent of Great Britain. Sir: I have the honor, pursuant to Paragraph 4 of Article II. of the Treaty of January 24th, 1903, between the United States and Great Britain, to request copies of the following documents specified or referred to in the British Case without annexing copies thereto, to wit: 1. The Supplementary Agreement entered into between the Russian American Company and the Hudson's Bay Company on the 17th of May, 1842, referred to on page 87 of the British Case. 2. The Agreement extending the lease of 6th February, 1839, between the said Companies to 1st January, 1862, entered into 28th December, 1858, and referred to on page 87 of the British Case. 3. The Agreement extending said lease till June, 1865, referred to on page 87 of the British Case. 4. The Agreement further extending said lease for one year terminating on 31st May, 1867. 5. The certain information and suggestions respecting the northwest coast of America enclosed in Mr. G. Canning's letter of January 20, 1824, to Sir C. Bagot, numbered 41, which enclosures are referred to in the British Case, Appendix, vol. I., page 65. 6. The tracing of Admiralty Chart, showing the general direction of the coast, enclosed in letter of instructions from J. S. Dennis, Surveyor-General, to Joseph Hunter, C. E., dated March 3, 1877, and therein specified in paragraph (D) and referred to in paragraph numbered 7 of said letter, appearing in the British Case, Appendix, vol. I., page 224. 7. The tracing of a sketch made by His Honour Chief Justice Begbie, enclosed in letter of instructions above mentioned and therein specified in paragraph (F) and referred to in paragraph numbered 4 of said letter appearing in the British Case, Appendix, vol. I., page 224. 8. The letter from the Russian American Company, dated St. Petersburg, April 18 (May 10), 1867, specified in the declaration from William Ware, Esq., Secretary of the Hudson's Bay Company, and referred to in paragraphs numbered 4 and 5 of said declaration appearing in the British Case, Appendix, vol. I., page 306. Very respectfully, John-W. Foster, Agent of the United States before the Alaskan Boundary Tribunal. Sir M. H. Herbert to Mr. Hay. British Embassy, Washington, May 29,1903. Dear Mr. Secretary: I have just received a telegram from Lord Lansdowne, requesting me to ask you to inform the American Agent before the Alaska Tribunal that the British Agent applies for the production, under paragraph 4 of Article 2 of the Alaska Convention, of the documents included in the United States case, which are mentioned in the enclosed list. The telegram adds that the British Agent could examine them in Washington or make arrangements to photograph the originals. I gather from the telegram that some further documents are required, but as the sentence relating to them is not quite clear, I have telegraphed for a repetition of it. I am, Dear Mr. Secretary, yours very truly, Michael H. Herbert. The Honorable John Hay, Secretary of State, &c. <&c, &c 16 ALASKAN BOUNDARY TRIBUNAL. 112 1 132 2 152 3 175 4 179 5 166 6 135 7 205 8 207 9 213 10 218 11 224 12 225 13 229 14 259 15 260 16 [Enclosure.] ALASKA BOUNDARY COMMISSION. List of documents which the British Agent desires to examine in original, or of which he wishes to be allowed to take photographs, under Article 2 and 4 of the Alaska Boundary Convention. Note.— (The numbers in red ink in the margin refer to the pages of the Appendix to the United States case on which these documents are printed). Baron Tuyll to Count Nesselrode, October 2 (November 2), 1822. Monsieur Poletica to Count Nesselrode, November 3, 1823. Admiral Mordvinof to Count Nesselrode, February 20 (March 3), 1824. Count Lieven to Count Nesselrode, May 20 (June 1), 1824. Count Lieven to Count Nesselrode, May 21 (June 2), 1824. Count Nesselrode to Admiral Mordvinof, April 11, 1824. Count Lieven to Count Nesselrode, July 13 (25), 1824. Explanations with regard to contre projet. Count Lieven to Count Nesselrode, September 19 (October 1), 1824. Contre projet submitted by Stratford Canning, February 1 (13), 1825. S. Canning's contre projet as altered and corrected by Matu- sevich. Mr. Middleton to Mr. Adams, February 17, 1825. Count Nesselrode to Count Lieven, February 20 (March 3), 1825. Count Lieven to Count Nesselrode, May 8 (20), 1825. Governor Simpson to the Manager of the Russian American Company, March 20, 1829. Hudson's Bay Company to Russian American Company, December 16, 1829. Director Severin to the Minister of Finance, February 27, 1830. Manager Drujinin to Minister of Finance, March 5, 1830. Report of the Governor to the Board of Directors of the Russian American Company, May 6, 1832. The same to the same, April 28, 1834. The Governor of the Russian American Company to the Commander of the Schooner Chilkat, Second Lieutenant Kuznet- soff, March 30, 1835. Baron Wrangle to Board of Directors of the Russian American Company, April 30, 1835. Report of the Directors of the Russian American Company on the Dryad Affair, November 14, 1835. Board of Directors of the Russian American Company to the Department of Trade and Manufactures, January 3, 1836. The same to the Governor of the Russian American Colonies, Ivan Antonovich Kupreyanoff, March 12, 1836. Mr. Milbanke to Count Nesselrode, July 13, 1837. Count Nesselrode to Mr. Milbanke, April 28, 1838. The Governor of the Russian Colonies in America to the Commander of the brig Chichagoff, Lieut. Zarembo, March 23, 1838. Report of the Governor of the Russian Colonies in America to the Board of Directors, May 1, 1838. Count Nesselrode to Count Kankreen, December 9, 1838; Report of the Governor to the General Board of the Russian American Company, May 1, 1838. Journal of correspondence, 1839. No. 3. Report of the Board of Directors of the Russian American Company, December 20, 1839. Count Nesselrode to Count Kankreen, January 14, 1839. Report of Governor of Russian Colonies in America to the Board of Directors of the Russian American Company, April 20, 1839. Translation of the Russian Memorandum, marked A.A. 261 262 264 17 18 19 265 273 20 21 274 22 282 23 289 24 291 25 296 297 302 26 28 303 29 307 30 308 31 309 32 309 33 312 34 312 35 317 36 CORRESPONDENCE SINCE TREATY OF 1903. 17 .Sir M. H. Herbert to Mr. Hay. Personal.] British Embassy, Washington, May 29, 1903. Dear Mr. Secretary: With reference to my personal note of this morning, marked " immediate," I hasten to inform you that the British Agent desires to examine or take photographs of the originals of all documents printed on pages 345-550 of the Appendix to the United States case, in addition to those mentioned in the list already sent you. These additional documents include " Papers relating to American occupation," " Geographical and topographical information relative to South-eastern Alaska," and " Miscellaneous documents, &c." I am, dear Mr. Secretary, yours very truly, Michael H. Herbert. The Honourable John Hay, Secretary of State, dec, dec, dec. Mr. Hay to Sir M. H. Herbert. Department of State, Washington, June i, 1903. Dear Mr. Ambassador: Your personal note of the 29th ultimo was duly received, in which you ask me to inform the Agent of the United States before the Alaska Tribunal that the British Agent applies for the production, under paragraph 4 of Article II. of the Alaskan Boundary Convention, of documents included in the case of the United States enumerated in a list enclosed with your note. %7 And in a second note of the same date you inform me that the British Agent desires to examine or take photographs of all the documents printed on pages 345-550 of the Appendix to the Case of the United States. The treaty paragraph upon which you base this application provides that (1) "If in the case submitted to the Tribunal either party shall have specified or referred to any report or document in its own exclusive possession without annexing copy' the other party shall be entitled to a duly certified copy thereof; and (2) "either party may call upon the other, through the Tribunal, to, produce the original or certified^ copies of any papers adduced as evidence." The list of papers enclosed with your first note embraces documents all of which have been textually set forth in the Case of the United States, many of which are likewise printed in full in the British Case without any material variation, and the originals of some of which should exist in the British archives. The documents called for in your second note are likewise textually set forth in the Case of the United States. They consist not only of copies of official papers certified to by the chief officer of the respective Department of the Government, but of extracts from official printed publications and from books accessible to the general public. It is suggested that such a sweeping request would hardly be approved by the Tribunal. The treaty does not appear to provide for either the production or 18 ALASKAN BOUNDARY TRIBUNAL. examination of original papers by the Agent of the other party upon his own request, nor for permission to photograph any papers. Although no reason is given in justification of the unusual request of the British Agent, the United States is desirous of avoiding all unnecessary delay and of affording every proper opportunity for verifying anything relied upon by it in its Case. I take pleasure, therefore, in assuring you that the British Agent, or a representative duly authorized by him, will be given full opportunity to examine and verify the originals in the exclusive possession of this Government of anything contained in the Case of the United States, provided that no delay is thereby caused either in the delivery of the Counter Case or of the printed Argument, or in the commencement of the oral Argument. I beg to add that it is the intention of the Agent of the United States to take to London the originals or certified copies of all documents and papers contained in the Case and Counter Case of the United States, and to be prepared to produce them at the request of the British Agent approved by the Tribunal. I am, my dear Mr. Ambassador, yours very truly, John Hay. His Excellency The Right Honorable Sir Michael H. Herbert, G. C. M. G., C. B., &c, &c, &c. Mr. Hay to Sir M. H. Herbert. No. 138.] Department of State, Washington, June 8, 1903. Excellency: I have the honor to advise you that the Agent of the United States before the Alaskan Boundary Tribunal expects to deliver at your Embassy on July 3rd, the duplicate copies of the Counter Case and Appendix of the United States required by the treaty, and, in addition thereto, twenty-two (22) copies of the same. He wrill be pleased to receive an equal number of copies of the British Counter Case and Appendix, if it suits the convenience of the British Agent. I have the honor to be, with the highest consideration, Your Excellency's most obedient Servant, John Hay. His Excellency The Right Honorable Sir Michael H. Herbert, G. C. M. G., C. B., &c, &c, &c. Sir M. II. Herbert to Mr. Foster. British Embassy, Washington, June 8, 1903. Dear Mr. Foster: With reference to my note to Mr. Hay of the 29th May, I received to-day from the British Agent the inclosed detailed list of the documents, the production of which he has already asked for. Yours very truly, Michael H. Herbert. CORRESPONDENCE SINCE TREATY OF 1903. 19 [Enclosure.] DIPLOMATIC CORRESPONDENCE RELATING TO THE TREATY OF 1825 BETWEEN GREAT BRITAIN AND RUSSIA. Originals of the following Letters and Documents. T. S. Appendix. Pages. 1822. Nov. 2. Tuyll to Nesselrode 112 Oct. 21. 1823. Nov. 3. Poletica to Nesselrode ^ 132-7 1824. May 20. Lieven to Nesselrode 177-9 June 1. 1824. May 21. „ „ „ 179 June 2. 1824. July 13. „ „ „ I 185-6 July 25. Explanations with regard to Contre-projet 205-6 1824. Sep. 19. Lieven to Nesselrode 207 Oct. 1. 1825. Feb. 1. Contre-projet submitted by S. Canning 213-17 Feb. 13. S. Canning's Contre-projet as altered and corrected by Matusevich 218-23 1825. Feb. 20. Nesselrode to Lieven 225 Mar. 3. 1825. May 8. Lieven to Nesselrode 229-31 May 20. 1824. Feb. 20. Admiral Mordvinof to Nesselrode 152-3 1824. Apl. 11. Nesselrode to Mordvinof 166-9 1825. Feb. 17. Middleton to Adams 224-5 Mar. 1. The originals of the following Papers relating to the Russian occupation up to the cession to the United States in 1867, and set out in the Appendix to the United States Case, pp. 251-323. U. S. Appendix. Date. Pages. 1829. Mar. 20. Governor Simpson to the Manager of the Russian- American Company 259-260 1829. Dec. 16. Hudson's Bay Company to Russian-American Com pany 260-261 1830. Feb. 27. Director Severin to the Minister of Finance 261-2 1832. May 6. Report of the Governor to the Board of Directors of the Russian-American Company 264-5 1834. Apr. 28. Report of the Governor to the Board of Directors of the Russian-American Company 265-7 1835. Mar. 30. The Governor of the Russian-American Company to the commander of the schooner Chitkat—Second Lieutenant Kuznetsoff 273-4 1835. Apr. 30. Baron Wrangell to Board of Directors of the Russian- American Company 274-278 1835. Nov. 14. Report of the Directors of the Russian-American Com pany on the Dryad Affair 282-5 1836. Jan. 3. Board of Directors of the Russian-American Company to the Department of Trade and Manufactures 289-291 1836. Mar. 12. The Board of Directors of the Russian-American Com pany to the Governor of the Russian-American Colonies, Ivan Antonovich Kupreyanoff 291-2 1837. July 13. Mr. Milbanke to Count Nesselrode 296-7 1838. Apl. 28. Count Nesselrode to Mr. Milbanke 297-302 1838. Mar. 23. The Governor of the Russian Colonies in America to the Commander of the brig Chichagoff, Lieutenant Zarembo I 302-3 1838. May 1. Report of the Governor of the Russian Colonies in America to the Board of Directors 303 1838. Oct. 6. Mr. Milbanke to Count Nesselrode 304-7 1838. Dec 9. Count Nesselrode to Count Kankreen 307-8 20 ALASKAN BOUNDARY TRIBUNAL. U. S. Appendix. Date. Pages. 1838. May 1. Report of the Governor to the General Board of the Russian-American Company 308-9 1839. June 23. Journal of correspondence, 1839, No. 3, kept during the voyage in the Straits and the tour of inspection to Redoubt St. Dionysius, from June 6, 1839, to June 23, 1839 309 1839. Dec. 20. Report of the Board of Directors of the Russian- American Company 309-11 1839. Jan. 4. .Count Nesselrode to Count Kankreen 312 1839. Apl. 20. Report of Governor of Russian Colonies in America to the Board of Directors of the Russian-American Company 312—13 Translation of the Russian Memorandum marked A.A. By S. N. Buynitsky 317-18 The originals of the following papers relating to United States occupation after the cession, copies of which, or extracts from which, are set out in the Appendix to the United States Case, pp. 845-510. U. S. Appendix. Date. Military Operations. Pages. 1903. Mar. 31. Report of Adjutant-General 345-6 1867. Sept. 3. Instructions to Lieut-Col. Robert N. Scott 346-7 1867. Nov. 12. Colonel Scott's report on the Indians, 1867, with enclosures 347—353 1867. Sept. 6. General Davis's Instructions 353-4 1868. May 27. Reports from General Davis 354-8 1869. Sept. 27. Report of Maj.-Gen. George II. Thomas 358-9 1875. June 30. General Howard's Tour in Alaska 359-60 U.' S. Appendix. Date. Operations of the Navy. Pages. 1903. April 6. Acting Secretary of the Navy to the Secretary of State 361 1869. Jan. 7. Richard W. Meade, Jr., commanding U. S. S. Saginaw, to Rear Admiral T. T. Craven, commanding North Pacific Squadron 362 Richard W. Meade, Jr., commanding U. S. S. Saginaw, to Rear Admiral T. T. Craven, commanding North Pacific Squadron 362 A. M. Pennock, Rear Admiral commanding U. S. Naval Force on North Pacific Station, to Hon. George M. Robeson, Secretary of the Navy, and note A 363 A. M. Pennock, Rear Admiral commanding U. S. Naval Force on. North Pacific Station, to Hon. George M. Robeson, Secretary of the Navy, and note A 363 1881. April 28. Captain L. A. Beardslee to the Secretary of the Navy and enclosures 363-77 1881. Mar. 3. Mr. Woodworth to Commander Glass 377 1881. April 6. Commander Glass to the Secretary of the Navy with enclosures 378 1869. Feb. 1. 1873. July 31. 1873. Aug. 31. 1881. May 6. The Secretary of the Navy to Commander Glass. Ol 8 1881. May 9. Commander Glass to the Secretary of the Navy 379 1881. July 9. Commander Glass to the Secretary of the Navy with report of G. C. llanus 379-381 1881. Sept. 8. Commander Lull to the Secretary of the Navy 382 1884. July 11. Commander Coghlan to the Secretary of the Navy 382-3 1884. Sept. 20. Commander Nicholls to the Secretary of the Navy, and note a 383 1886. June 8. Commander Nicholls to the Officer of detail and note 6 386 °83 384 1886. Dec. 21. Mr. Halm and others to Governor Swineford 1887. May 18. Lieutenant Commander Newell to the Secretary of the Navy 384-7 1887. May 23. Lieutenant Commander Newell to Governor Swineford 387-8 CORRESPONDENCE SINCE TREATY OF 1903. 21 U. S. Appendix. Date. Pages. 1887. May 24. Lieutenant Commander Newell to the Secretary of the Navy 388 1887. June 1. Governor Swineford to Lieutenant Commander Newell 388 1887. June 1. Governor Swineford to Lieutenant Commander Newell 389 1887. June 21. Governor Swineford to Lieutenant Commander* Newell, enclosing letter of Max Pracht 389-390 1887. June 23. Lieutenant Commander Newell to Governor Swineford 390 1887. June 16. Lieutenant Commander Newell to the Secretary of the Navy 391-2 1887. June 16. Lieutenant Commander Newell to the Secretary of the Navy, enclosing report of Lieutenant McCrackin's trip over Chilcoot trail, with exhibits A. & B 392-5 1887. June 20. Lieutenant Commander Newell to Governor Swine ford 395 1888. Mar. 1. Mr. Grant to Lieutenant Commander Newell 395-6 The original logs of United States Naval Vessels on duty in Alaskan Waters from which the following extracts have been taken: Pages. 1873. July 31. Log of the United States flagship Saranac, second rate, 13 guns, under the command of Capt. Thomas S. Phelps, U. S. Navy 396 1881. Aug. 23. Log of the U. S. S. Wachusetts, third rate, 7 .guns, 1881. Aug. 25. under the command of Edward P. Lull, U. S. 1881. Aug. 29. Navy 397 1881. Aug. 30. 1884. Apl. 22. Log of the U. S. S. Adams, third rate, 6 guns, under 1884. June 7. the command of Commander J. B. Coghlan, U. S. Navy 397 1885. May 20. Logs of the U. S. S. Pinta, fourth rate, 2 guns, under 1885. Dec. 24. the command of Lieutenant Commander H. E. 1886. Apl. 25. Nichols, U. S. Navy 397-8 1886. Apl. 26. 1886. Apl. 27. 1886. May 3. 1886. May 7. 1886. May 16. 1886. May 18. 1886. May 31. 1886. June 4. 1886. June 18. 1887. May 31. Logs of the U. S. S. Pinta, fourth rate, 2 guns, under 1888. July 4. command of Lieutenant J. S. Newell, U. S. Navy— 399 1890. Apl. 28. Log of the U. S. S. Pinta, fourth rate, under the com- 1890. Apl. 30. mand of Lieutenant Commander O. W. Farenholt, 1891. July 18. U. S. Navy 399 The originals of the folloioing letters from Naval Officers:— u. s. Appendix. Date. Pages. 1903. Mar. 13. H. M. Dombaugh, Lieutenant Commander U. S. Navy to the Chief of Bureau of Navigation 399-400 1903. Mar. 14. John W. Stewart, Lieutenant, U. S. Navy, to Chief of Bureau of Navigation 401 1903. Mar. 16. Admiral J. B. Coghlan to Secretary of the Navy 401-2 1903. Mar. 28. G. T. Emmons, Lieutenant, U. S. Navy, retired, to the Secretary of the Navy 402-6 1903. Apl. 6. H. C. Taylor, Rear-Admiral, U. S. Navy, to the Secretary of the Navy 407 22 ALASKAN BOUNDARY TRIBUNAL. Exebcise of Jurisdiction in Alaska by Judicial Authoeities. The original of the following letter:— Page. 1903. Apl. 13. The Attorney-General to the Secretary of State 407 The original Court record and other original papers or books referring to the following cases alleged to have been tried before U. S. Tribunals in Alaska. U.S. Appendix. Date. Pages. 1887. United States v. John (an Indian) 407 1888. United States v. Charles (an Indian) 408 1889. United States v. Frank Gudmamen 408 United States v. Robert Obman_ 408 1890. United States v. John Bjerkland 408 1891. United States v. George Chartrich 408-9 1892. United States v. Tom (an Indian) 409 1892. United States v. John. Wade 409 1892. United States v. M. V. Sharp 409 1893: United States v. John Dalton 409 1894. United States v. Jack Glotchlin 409 1894. United States v. An-ta-Yache 409 1894. United States v. Go-na-Kah 409 1894. United States v. Soun-Doo 409 The originals ] Date. 1892. July 25 1903. Mar. 23 1903. Mar. 23 1903. Mar. 24 1903. Mar. 25 1903. Mar. 27 1903. - Mar. 27 1903. Mar. 27. 1903. Mar. 27. 1903. Mar. 27. 1903. Mar. 26. 1903. Mar. 26. 1903. Mar. 26. 1903. Mar. 27. 1903. Mar. 27. 1903. Mar. 27. 1903. Mar. 27. of the following letters and depositions:— U.S. Appendix. Pages. Examiner Dougall to the Attorney-General 410-13 Deposition of William Moore 413-17 Deposition of J. Bernard Moore and Notice 417-22 Deposition of Robert Wright 422-5 Deposition of Joseph Carr 425-7 Deposition of Don-a-wak 427-8 Letters, Memorandum and Appointment certified to by W. J. Hills, by J. J. Clarke 429-30 Deposition of John Don-a-wak 431 Deposition of Edward Armstrong 432-4 Deposition of E. B. Clark 434-6 Deposition of S. Hall Young 436-7 Deposition of Lewis L. Williams, and attached papers marked A. B. C. D. and E__„ 438-441 Deposition of In-da-Yonk 441-2 Deposition of George Kostrometinoff 443 Deposition of George Shortridge 444-5 Deposition of Klanot 445 Deposition of Stephen E. York 446 Enforcement of Revenue Laws and Exercise of Authority by Treasury Officials. The originals of the following letters, reports and documents:— U.S. Appendix. Date. Pages. 1903. Apl. 10. The Acting Secretary of the Treasury to the Secretary of State 447 1898. Sept. 15. The Secretary of the Treasury to the Secretary of State 447 Memorandum relating to the establishment and maintenance of the United States Customs Service in south-eastern Alaska, as shown by the records of the Treasury Department , 447-448 1868. Apl. 8. Report from Acting Collector Dodge, and accompanying documents 448-452 CORRESPONDENCE SINCE TREATY OF 1903. 23 U.S. Appendix. Date. Pages. 1868. Dec. 15. Extract from letter of Collector Ketchum to the Sec retary of the Treasury 452-3 1880. Mar. 12. Report of Special Agent, W. G. Morris, of March 12, Mar. 27. 1880, and of the Collector at Sitka, March 27, 1880, Apl. 2. and the Department's letter of April 2, 1880 453-5 1880. Apl. 7. Letter, H. F. French to Collector of Customs, Sitka__ 455 1881. Jan. 1. Letters of January 1st and February 19, 1881, to the Feb. 19. Collector at Sitka, and the latter's reports of No- Nov. 5. vember 5, 1881, -and August 9, 1882 456 1882. Aug. 9. 1890. July 12. Reports of July 12, 1890, from Collector at Sitka and Aug. 19. Departments letter of August 19,1890, to that officer- 457-8 1891. Oct. 23. Letter John J. Healy to the Governor of Alaska 458-9 1894. Feb. 23. Collector at Sitka to Secretary of Treasury 460 1894. Mar. 8. Acting Secretary to Collector at Sitka 460 1895. Mar. 29. Collector at Sitka to Secretary of Treasury 460-1 1895. Apl. 12. Acting Secretary to Collector 461 1895. Apl. 13. Newspaper clipping 461 1881. Dec. 7. Extracts from Report of William Gouverneur Morris, Special Treasury Agent, Alaska, to the Secretary of the Treasury 461-70 1877. Aug. 12. 1869. Jan. 5. Reports of Officers of the United States Revenue Marine 470-4 1877. Nov. 12. Letters from Officers of the Revenue Cutter Service— 474-9 1879. Sept. 11. The originals of the following reports relating to schools, census, and control of the Indians, and mining locations on the mainland:— u. s. Appendix. Date. Pages. 1903. Apl. 13. The Secretary of the Interior to the Secretary of State 479 1898. Sept. 16. The Secretary of the Interior to the Secretary of State 479-80 1898. Sept. 15. The Commissioner of Education to the Secretary of the Interior 480-1 1898. Sept. 15. Rev. Sheldon Jackson to the Secretary of State 481-2 1884. Oct. 1. Extracts from Reports of the Governors of Alaska 482-7 1886. Oct. 1. 1888. Oct. 1. 1890. Oct. 1. 1892. Oct. 1. Report of the Rev. Sheldon Jackson, D. D., upon tbe condition of education in Alaska, 1881. Census of 288-9 Alaska Indians, 1880. Census of Alaska Indians, 489-90 1890. Statement from the Commissioner of the General Land Office 492-4 The originals of the entries referred to in abstract of mineral locations in the vicinity of Lynn Canal. 1885 to 1895 494-5 Deposition of Rev. Sheldon Jackson 495-6 List of Post Offices in Alaska. Date. Page. 1903. Apl. 8. Letter, Postmaster-General to the Secretary of State with enclosed list of post offices 496 Originals of the following miscellaneous letters and documents:— Date. Pages. 1867. Oct. 14. Letter of General Aide-de-Camp Crabb 522-3 1903. Apl. 16. Mr. Titmann to the Secretary of State 529-30 1903. Apl. 17. Deposition of Herbert G.,Ogden 530-2 1903. Apl. 16. Deposition of W. C. Hodgkins 532^ 1903. Apl. 16. Deposition of A. L. Baldwin 535-7 1903. Apl. 17. Deposition of John Adolph Flemer 537-8 24 ALASKAN BOUNDARY TRIBUNAL. Date. 1900. June 21. 1903. Apl. 13. Pages*. Mr. Titmann to the Secretary of State and enclosed petition 539-40 Mr. Titmann to the Secretary of State, enclosing affidavit of Lindenkole, and letters exchanged in 1867 with Hon. W. H. Seward, Secretary of State, and the Assistant in Charge of the Coast Survey respecting the map of North-Western America, compiled for Department of State at the Coast Survey Office in 1867 540-2 Testimony Secured in the Year 1899 among the Chilkat Indians. Originals of the following:— Date. 399 • July 24. 55 June 29. oo 55 5) —m*J . 55 55 29. 55 July 4. 55 June 29. 55 July 4. 55 55 4. 55 ,, 4. 55 55 4. 55 55 4. 55 55 4. 55 55 4. 55 55 4. u. s. Appendix. Pages. Letter of John Tweedale, Major U. S. Army &c. to Secretary of State 543-4 Testimony of Koo-Too-At 544-5 George Sha-Trage 545 Koo-Too-At 545 „ „ „ 546 Jack Kitchk 546 Da-na-Wuk 546-7 Skin-Ya I § 547 George Kah-oosh-Tey 548 Yel-Hak 548-9 Koow-Tev-Na-Ah 549 David Ye-Ka-She __ 549-50 Yen-Sheesh Johnson M 550 Affidavit of George Kostrometinof 550 Mr. Sifton to Mr. Foster. London, June 11, 1903. To the Honorable John W. Foster, Agent of the United States before the Alaskan Boundary Tribunal. Sir : I have the honor, pursuant to paragraph 4 of Article of Treaty of January 24, 1903, between the United States and Great Britain, to request certified copies of the following documents, specified or referred to in the United States Case, without annexing copies thereto, to wit:— Marine Map filed in the Hydrographic Department of the Ministry of Marine at St. Petersburgh (No. 2629/223), mentioned in memoranda of United States Appendix 251. Survey of Mouth of Chilcat River by Lindenberg, mentioned in report of Governor of Russian Colonies in America to the Board of Directors of the Russian-American Company, April 20, 1839— United States Appendix, p. 382. Coast Map, mention of, in Mr. G. Davidson's report (Coast Survey Report, 1867), United States Appendix, 341. Sketch relating to Tongas Island, mention of, in Official Correspondence and Records of the War Department, United States Appendix, 349. letter from Governor Seymour, mention of, in Colonel Scott's report to the Headquarters Military Division of the Pacific, United States Appendix, p. 349. mM CORRESPONDENCE SINCE TREATY OF 1903. 25 Note from Dr. Tohmie, mention of, in Colonel Scott's report to the Headquarters Military Division of the Pacific, United States Appendix, 350. Information relating to Indians living on the Coast, mentioned as Enclosure G. in Col. Scott's report to Headquarters Military Division of the Pacific, United States Appendix, p. 350. Zetter from Mr. Duncan, mention of, in Col. Scott's report to Headquarters Military Division of the Pacific, United States Appendix, p. 350. Instructions from Maj.-Gen. Halleck, mention of, in Col. Scott's report on the Indians to the Headquarters Military Division of the Pacific, United States Appendix, p. 351. Copy of Statement of the Boundary Line, as published in an English Journal, mention of, in Gen. Howard's letter to Headquarters Department of Columbia, United States Appendix, p. 360. Plans of Harbours made by Commander R. W. Meade during his cruise to the Northward, mention of, in Col. Meade's letter to Rear- Admiral Craven, United States Appendix, p. 362. CMlcoot Inlet Chart. Capt. Beardslee's report to United States Naval Department, United States Appendix, p. 376. Map mentioned in Mr. Max Pradt's letter to United States Secretary to the Treasury, United States Appendix, p. 457. Chart by Lieut. Symons of the " Jamestown "—mention of in Mr. G. W. Morris' report to the United States Secretary to the Treasury—United States Appendix, p. 469. Survey by Pilot Zindenberg, map and original journal kept by Lindenberg—mention of in report of Governor of the Russian Colonies in America to the Board of Directors of the American Company, United States Appendix (No. 139) 312. Maps, mention of in report of Governor of Russian Colonies in America to the Board of Directors of the Russian American Company—(No. 139)—United States Appendix, p. 313. Yours respectfully, Clifford Sifton, Agent for Great Britain before the Alaskan Boundary Commission. Sir M. H. Herbert to Mr. Hay. [Telegram.] Newport, June 12, 1903. Hon. John Hay, Washington, D. C. His Majesty's Government take exception to condition laid down in your note of June 4, and strongly support application for extension of time. I am sending note by post which should reach you Saturday morning. Herbert, 26 ALASKAN BOUNDARY TRIBUNAL. Sir- M. H. Herbert to Hay. Immediate.] British Embassy, Newport, June 12, 1903. Dear Mr. Secretary: I duly telegraphed to my Government the substance of your personal note of June 4, in which you informed me that the British Agent to the Alaska Tribunal, or a representative duly authorised by him would be given full opportunity to examine and verify the originals in the exclusive possession of the Government of the United States of anything contained in their provided that no delay were caused thereby either in the case, delivery of the Counter Case or of the printed argument, or in the commencement of the oral argument. I have now received a telegram from the Marquess of Lansdowne, stating that His Majesty's Government are not aware that any precedent exists for coupling the production of original documents with any condition such as that laid down by the United States' Government. The condition, moreover, in the opinion of His Majesty's Government amounts to a refusal, as, without an extension of time, it is practically impossible to examine large numbers of documents and to embody the result. Both in private litigation and in international arbitrations the right to inspect has never been questioned, and His Majesty's Government cannot, by accepting conditions, cast doubt on the existence of this right and thus establish a precedent which might prove a serious bar to a resort to arbitration. The originals in Russian, of wmich only translations are given, form a great proportion of the documents which it is desired to inspect. His Majesty's Government consider that they have obviously a right to compare the originals with these translations. The description which has been given of other documents has not been sufficient for the purpose of tracing copies in England. His Majesty's Government consider that in cases where certified extracts are given, they have clearly the right to see the whole documents so as to satisfy themselves that nothing material is contained in the omitted portions. His Majesty's Government hope that on further consideration the United States' Government will agree unconditionally to their request, so that it may be possible to avoid the necessity of calling a special meeting of the Tribunal to consider the matter. An application for the extension of time is expressly contemplated in the Convention, and, unless this application is acceded to, it will be impossible to present fully the reply to the United States' Case. His Majesty's Government cannot believe that the United States Government will be prevented through any question of personal convenience from favorably considering the request, the refusal of which would entail the presentation of the British Counter Case in an incomplete form, as unsatisfactory to His Majesty's Government as to the Tribunal. His Majesty's Government would accordingly be glad to learn that the UnitecUStates Government agree to the application of the British Agent, whose request for an extension of time they strongly support. CORRESPONDENCE SINCE TREATY OF 1903. 27 I may mention, in conclusion, that the British Agent was fully aware that under the Treaty originals of documents should be called for through the Tribunal, but he considers the method adopted— through diplomatic channels—as being more convenient and more likely to save time. I should be very grateful if you could let me have an answer as soon as possible. I am, dear Mr. Secretary, yours very truly, Michael H. Herbert. Mr. Hay to Sir M. H. Herbert. Department of State, Washington, June 16,1903. Dear Mr. Ambassador: According to your request, I have given the earliest possible attention to your note of the 12th instant, received on the 13th, in which you ask, on behalf of his Majesty's Government, that the condition be removed under which an examination was to be granted of the documents in the Case of the United States, and an urgent request is made for an extension of time in which to deliver the Counter Case. Your note seems to confuse the production or examination of documents already introduced in the Case of the United States with the application for an extension of time for the delivery of the Counter Case, or to make the one dependent upon the other. Before making a specific reply to your requests, I beg you will allow me to review the provisions of the Treaty upon those subjects, as the two requests are clearly separate and distinct, and are dependent upon different facts to justify them. The third paragraph of Article II. contemplates the possible need of an extension of time in the preparation and delivery of the Counter Case. This possibility arises, and an extension can be made, however, only upon two conditions, both of which must exist: 1. There must arise " special difficulties " in procuring the " additional papers and evidence " in reply to the Case—documents, correspondence and evidence of the other party: 2. These " special difficulties'' must be shown and established in such a way to the Tribunal that it is convinced that it is necessary to extend the time in order to give the party desiring the extension opportunity to procure the additional papers and evidence. In the absence of the organization of the Tribunal, it is to be presumed that the two Governments must act in its place and exercise the pOwer of extension by mutual consent. As the Tribunal is made up of an equal number of commissioners from each nation, no disadvantage can arise through the failure of the Tribunal to organize. The fourth paragraph provides that if reports or documents are cited by one party without annexing a copy, they may be called for by the other party, if notice is given within thirty days; and that applications may be made to the Tribunal for the production of the originals or certified copies of documents which are printed in the Case, and they must be produced within forty days—that is, within S. Doc. 162, 58-2, vol 5 25 28 ALASKAN BOUNDARY TRIBUNAL. seventy days after the Case is delivered. But the Counter Case must be delivered according to the Treaty within sixty days after the delivery of the Case. It is apparent, therefore, that the natural delay in the production of such reports and documents was not among the " special difficulties " within the meaning of the Treaty. Such reports and documents already in evidence were not intended to be adduced by the other party, but it was intended that they could be referred to in argument as contradictory of the statements based upon them, or, if found to be falsified, as prejudicial to the offending party. Furthermore, it must be shown to the satisfaction of the Tribunal, and, in lieu of the Tribunal not having organized, to the two Governments, that | special difficulties " have arisen in procuring additional papers and evidence which are relied upon in replying to the case of the opposite party. If these papers and such evidence are not essential to the reply, then there would be no warrant for an extension. If they are essential, it must be shown to the Tribunal that they are so, and that cannot be done without specifying in what particular. It must likewise appear that the " special difficulties'' have arisen since the Treaty went into effect. In any event it cannot be presumed that the documents for which a demand for production or examination has been made can be held to be the | additional papers and evidence," the procuring of which is the only basis for an extension of time. With these plain provisions of the Treaty in view, I address myself to the reasons given by the Marquis of Lansdowne why the requests in your note should be granted. I can hardly accept without qualification his statement that no precedents exist for coupling the production of original documents with conditions such as those indicated in my note of June 4, and that in private litigations and international arbitrations the right to inspect has never been questioned. I do not understand that in such proceedings a litigant has the unquestioned and unconditional right to demand the production of such documents before the issues are joined. The courts often require that reasons should be gven for such demands, and the usual practice, at least in the United States, is to produce the original documents upon the hearing of the cause. Such is plainly the intent of Article II of the treaty under which the two governments are acting. Neither can I concede that the requests contained in your note of May 29 are in consonance with the usual practice in international arbitrations They constitute a demand for the examination and photographing of almost the entire body of evidence submitted in the Case of the United States, except that which had been obtained from British sources and had been published. None of the various arbitrations which have taken placed between the United States and Great Britain, I venture to assert, furnish such precedent. In the Fur Seal Arbitration at Paris, under the Treaty of February 29, 1892, in which the volume of documentary evidence was much larger than in the present case, the originals or certified copies of a limited number of documents were requested by the British Agent, although asked after the expiry of the time fixed; and the certified copies were cheerfully furnished. In no other instance can it be recalled that such a complete impeachment of the American Case has ever been ^vsk CORRESPONDENCE SINCE TREATY OF 1903. 29 made. And the request has been presented without alleging any reason for such a sweeping examination, one which would impose upon both Governments much time and labor. It now appears from your note that the request is made the basis of the renewed application for an extension of time for the delivery of the British Counter Case. I think I have shown that such a course has no warrant in the Treaty, and it was for the purpose of avoiding such an issue as that now presented that the condition was made in my note of June 4. There has been no disposition evinced on the part of the United States to question the right of Great Britain to demand the production before the Tribunal of original or certified documents upon the hearing of the cause, and while it has doubted the right to a production of such papers in advance of the hearing, permission for a full examination was promptly granted. The wisdom of the condition attached thereto has'been fully demonstrated by your note, which shows that the labor and trouble which the British Agent voluntarilv seeks to assume by this request is made the reason of an application for an extension of time. It is true, as stated by you, that application for the extension of time is contemplated in the Convention, but I have pointed out that such extension is to be based upon one reason and only one. No such condition has been alleged and it is believed that none such exists. CD The British Agent, in a letter dated May 15, to the Agent of the United States, made this statement: "A preliminary examination of the Case for the United States, which reached my hands a couple of days ago, makes it clear that it will be impossible to prepare a Counter Case for Great Britain within the period of two months, which is, in the absence of an extension, contemplated in the Treaty. The many allegations of fact contained in the Case and Appendix filed on behalf of the United States which can only be examined upon, and in the neighbourhood of the territory in question, obviously renders further time necessary." It is suggested that neither the British Agent nor the British Government can allege that it has been taken by surprise by the Case of the United States. Full notice had been given to that Government and its representatives of the claims of the United States on this question. It has been the subject of much discussion during the sessions of the Joint High Commission in 1898 and 1899. Besides the oral consideration, a printed pamphlet was laid before the Commission, entitled " Views of the United States Commissioners on the Alaskan Boundary as defined by the Treaty of 1825." This document set forth at length the claims of the United States and every CD «/ essential point made in the case of the United States was there mentioned. It is seen from the British use that this pamphlet was in the hands of the British agent. In addition to this, after the adjourn- CD * -* • -« ment of that Commission, the boundary question had been discussed at great length between Mr. Choate and the Secretaries of the Foreign CD ^D _ CD Office in London; soihat the British Government had abundant notice of the views and contentions of the United States. Since 1898 the Alaska boundary had been a subject of correspondence and discussion, and ample time had been afforded the Canadian authorities to prepare their case. The character of the case of the United States could <not, therefore, be a just ground for an extension of time. 30 ALASKAN BOUNDARY TRIBUNAL. Upon this point the Government of the United States has been diligent in making its wishes known. You will remember that during the negotiation of the Treaty organizing the present Tribunal, when you asked for a longer period then twTo months each for the preparation of the Case and Counter Case, I explained to you the President's wish that if the boundary was to be submitted to adjudication, it should be concluded within the time indicated by me. You accepted these conditions, and the Treaty was signed. In the month of March last, after the British Agent had begun his labors in visits to this Department, you expressed the desire of that official and your Government that the time should be extended for ft/ the preparation of the Case and Counter Case, and you will recall that, in addition to a repitition of the views of the President, you were informed that the official engagements of twTo of the American members of the Tribunal made it impossible to extend the time. Lord Lansdowne must, therefore, be laboring under a misapprehension of the facts if he fears, as seems to be intimated, that the Government of the United States is influenced in its action through any question of personal convenience. For reasons which are well founded, and which have been explained to you, the United States has not been able to consent to any change in the stipulations of the Treaty in this respect, and it cannot see any cause in the considerations advanced by the British Agent for reversing its judgment. I trust you will assure the Marquis of Lansdowne of the earnest desire of the President to bring this vexed question to a termination in such a way that it will leave no unkind feeling between the •/ CD two nations, and that he is desirous of meeting his Lordship's wishes as far as possible. He has, therefore, directed me to state that the British Agent, or his representative, will be permitted at his convenience to examine all the documents adduced in the Case of the United States to which reference is made in your notes of May 29 and June 8, without any restriction or condition as to the use he shall make of the results of his examination, reserving for the Agent of the United States the rig;ht to enter such motion or objection before the Tribunal when it assembles as he may think proper. I have already advised you of the intention of the agent 6f the United States to have in London the originals or certified copies of all documents and papers contained in the Case and Counter Case of the United States. He has already prepared copies in the original of the Russian documents in the Case. Should the British Agent not see proper to take advantage of the permission herein given to examine these and other documents in Washington, and should desire it, the Russian documents will be forwarded to him at London. In closing, I have the honor to inform you that, in faithful compliance with the Treaty, the Counter Case of the United States, which is already printed, will be delivered in the numbers heretofore indicated, on July 3, at your Embassy in this city, unless you should indicate that delivery at Newport will be more convenient to you. I am, dear Sir Michael, faithfully yours, John Hay. His Excellency the Right Honorable Sir Michael H. Herbert, G. C. M. G,, C. B., &c, &c,, &c. CORRESPONDENCE SINCE TREATY OF 1903. 31 Mr. Sifton to Mr. Foster. Hotel Cecil, Zondon, W. C, June 15, 1903. The Hon. John W. Foster, Agent for United States, Washington. Sir: I have the honour in reply to your communication of May i ft/ ft/ %7 23, to enclose memorandum dealing with the requests made by you in the said communication. I have the honour to be, Sir, Your obedient Servant, Clifford Sifton, Agent for His Britannic Majesty. [Memorandum enclosed.] [Enclosure.] Memorandum respecting the request of the United States Agent for copies of documents specified in British Case without annexing copies thereto. [Inserted in the margin] : As to requests numbered 1, 2, 3, and 4- The following from the records of the Hudson's Bay Company comprises all the documentary evidence available to the British Agent at present. The letters referred to from the Russian American Company are stated to be somewhere in the archives of the Hudson's Bay Company, but as yet they have not been found. If copies are received, they will at once be forwarded to the United States Agent. The records of the Hudson's Bay Company above referred to show the following :— 1. Agreement between Hudson's Bay Company and Russian American Company, 17 May, 1842. 2. Extract from Minutes of Board of Hudson's Bay Company, December 20th, 1858, referring to offer of Russian American Company to extend lease to January 1st, 1862. 3. Extract from Minutes of same Board, January 10th, 1859, approving offer and containing letter of acceptance. 4. Letter from Thomas Fraser, Secretary Hudson's Bay Company, November 25th, 1862, to Board of Directors of Russian American Company, requesting renewal of lease to 1st June, 1864 or 1865. 5. Extract from a letter from the Same to the Same March 24th, 1863, acknowledging receipt of letter extending lease to June, 1865. 6. Extract from a letter from the Same to the Same May 3rd, 1865, acknowledging receipt of Admiral Tebankoff's letter and accepting extension of lease till June 1st, 1866. 7. Extract from Minutes of Board, May 22nd, 1866, when letter of Russian American Company, May 4/16, 1866, referred to Governor and Deputy Governor. 8. Extract from Minutes of Board May 29, 1866, that extended lease for one year more. 9. Letter May 24, 1866, by T. Fraser, Secretary of Hudson's Bay Company to Russian American Company accepting renewal of lease till June 1867. 10. Extract from a letter, January 25th, 1867, the Same to the Same, offering to renew the lease for three years from June, 1867. 11. Letter from Admiral Tebankoff, April 28, May 20, 1867, to Hudson's Bay Company, notifying the Company of the cession of Russian America to the United States, and of the inability of the Russian American Company to carry out its conditional agreement of 1/13 February, 1867, and requesting that the term of the lease be considered as ending with the date of the actual transmission of Russian America. 12. Extract from Minutes of Board of Hudson's Bay Company, May 21st 1867, where letter April 18-10 May, 1867, from Russian American Company is read, and ordered that they be informed that lease must terminate May 31st. 13. Extract from letter from W. G. Smith, Secretary, May 22, 1867, to Board of Russian American Company, terminating the lease on May 31st, 1867. 82 ALASKAN BOUNDARY TRIBUNAL. Agreement between Hudson's Bay Company and Russian American Company. ;7th May, 1842. In order to remove certain ambiguities which appear to exist in the Agreement entered into by Sir George Simpson acting on behalf of the Hudson's Bay Company and Baron Wrangel under date 6th February, 1839, and with a view to guard against any difficulty that might arise in the construction of the terms of that agreement. It is further agreed by Sir George Simpson, Governor in Chief of Rupert's Land, acting on behalf of the Hudson's Bay Company, and Captain Etolin, of the Russian Imperial Navy, Governor of the Russian American Colonies, acting on behalf of the Russian American Company:— 1st. That from and after the 1st June proximo all sea otter skins that may be traded by the agents, officers or servants of the Hudson's Bay Company from Indians or others, that can by possibility be ascertained to have been killed or hunted to the northward of latitude 54° 110' [sic], whether received at Fort Simpson or elsewhere, shall be delivered over to the Russian American Company, and that all land furs of any description that majr be traded by the agents, officers or servants of the Russian American Company to the southward of Cape Spencer, whether the produce of the islands or of the mainland, shall be delivered over to the Hudson's Bay Company. 2nd. That in order to simplify and facilitate the adjustment of the account, the following tariff be adopted, by which the account will be / CD X 7 %J made up in blankets of 3J points, best quality, which are substituted for blankets of 3 points, in consequence of the usual gratuity in liquor being discontinued; and, on the interchange of furs, the balance due on either side shall be paid in the article of 3 point blanket, instead of making a money account of it, which cannot conveniently be agreed upon. The tariff as follows:— 1 Large sea otter 7 blankets Z\ pts. best quality. 1 Half-sized „ 3 „ 1 Cub „ \ „ 1 Large beaver 1 „ 1 Middling beaver «. § „ 1 Small „ i „ 1 Land otter, large 1 „ 1 Middling „ f „ 1 Small „ i „ 1 Large silver fox 2 „ 1 Small „ „ 1 „ 1 Large cross fox 1 „ 1 Small „ „ £ „ 1 Large red fox $ „ 6 Seasoned martens 1 „ 2 Lynxes, large 1 „ 3 „ middling ; 1 „ 5 „ small 1 „ 1 Black bear, large 1 „ 1 „ „ middling § „ 1 „ „ small i „ 1 Brown bear, large i „ 1 „ „ middling § „ Foxes, martens and lynxes to be received at the prices affixed to each, whether made up into robes or not, and all cubs, unseasoned Ik CORRESPONDENCE SINCE TREATY OF 1903. 33 skins, minks, mu proportionate pr sk rats and others not enumerated to be paid for at ices to the more1 valuable furs. Previous to the discontinuation of liquor it was usual with the Russian American Company to consider best 3 points blankets as the standard in all dealings with Indians, giving therewith a gratuity O ' O CD "O «/ of rum, but now that article is interdicted in trade the 3J point blanket, best quality, is substituted as a standard. This tariff to be adopted in the settlement of account on the interchange of furs between the Hudson's Bay Company and the Russian A-merican Company, but it is not necessary it should be adopted by either party in their dealings with Indians, and this tariff may be J. v m CD «/ altered or modified from time to time as the Hudson's Bay Company and Russian American Company may hereafter find expedient. 3rd. That this Agreement shall take effect and be acted upon from and after the 31st May, 1842. new style, and that it shall be understood to supercede and annul the Agreement entered into by Mr. F. Douglas, acting on behalf of the Hudson's Bay Company, and Captain Kooprianoff, acting on behalf of the Russian American Company, in the month of May, 1842, but not executed by the contracting parties, although since acted on. Given under our hands and seals at New Archangel, May, 1842. Signed. George Simpson, [l. s.] Signed. A. Etholine. [l. s.] Extracts from Minutes of Board of Hudson's Bay Company, December 20, 1858, referring to offer of Russian American Company to extend lease to June 1,1862. Read a letter from the Russian American Company, dated St. Petersburgh, 27 November, 9 December, 1858, in which they offer to renew the lease of their territory to the Hudson's Bay Company till January 1, 1862, on the same terms as before, but excepting from the lease the sale and export of ice, coals, timber and salt fish. Ordered that the question be postponed for further consideration. Extracts from Minutes of Board January 10, 1859, approving offer and containing letter of acceptance. The answer of the Governor under date the 28th December, 1858, to the letter of the Russian American Company of 27 November, 9 December, 1858, was read and approved of. Copy of answer referred to— The Directors of the Russian American Company, St. Petersburgh. Hudson's Bay House, London, 28 December, 1858. Gentlemen : I have the pleasure of acknowledging the receipt of Governor Etholin's letter addressed to the Directors of the Hudson's Bay Company, dated St. Petersburgh, 27 November, 9 December, 1858, on the subject of the renewal of the lease of the Territory on the North-West Coast of America, in which he proposes to prolong ' 34 ALASKAN BOUNDARY TRIBUNAL. the said lease to the 1st January, 1862, on the same terms as the present lease, with the exception of the privilege at present possessed by the Hudson's Bay Company, to export ice, coal, timber and salt fish from the Territory in question. On the part of the Hudson's Bay Company I beg to state that, notwithstanding this very important exception, I am willing to renew the lease on the same terms as to rent, as my colleagues are desirous that the good understanding that has so long subsisted between the Companies should continue. At the same time I feel bound to state that we have serious apprehensions that the captains of vessels coming from San Francisco for ice or timber may interfere with the Fur CD j «/ Trade, and we confidently look to your directors to take all the necessary precautions to prevent such interference, reserving to this Company the right, should such interference be proved, of at once determining the contract. I have the honour to be. Gentlemen, Your most obedient Servant, (Signed) H. H. Berens, Governor. Zetter from Thomas Fraser, Secretary, Hudson's Bay Company November 25, 1862, to Board of Directors of Russian American Company, requesting renewal of lease to 1 June, 1864- 0T 1865. Gentlemen : When I had the honour of addressing you on 11 July last, I informed you that the Governor and Committee of the Hudson's Bay Company, owing to the unfavourable reports received from the officers in charge of their establishments on the North-West Coast of America of the results of the trade for the last two years, and the still more dishea rtening prospects as to the future, had *found themselves under the necessity of giving you notice of their intention to terminate the relations which have so long existed between them and your honourable CompanyJby relinquishing the lease of the territory which they held under"youM Since then the Company have received advices from their agents which state that^hbtwithstanding the discouraging account which they have had to' transmit, .they think that in the present state of transition through which the whole of that region is passing it would be premature on the part of the Company to relinquish the trade without a further trial. They consequently suggest that the board should apply to your company for a renewral of the lease for a limited term. In the circumstances I am directed by the Governor and Committee to enquire if it would suit the views of your honourable board to extend the lease of the territory on the same terms as at present for one or two years, say to 1 June, 1864, or 1 June, 1865. Extract from a letter from the same to the same, March 24,/1863, acknowledging receipt of letter extending lease till June, 1865. I am directed by the Governor and Committee to acknowledge the receipt of your letter of 25 February—8 March, 1863, in which you inform them that, having obtained the authority of His Majesty the Emperor to extend the lease of the Stakine territory at present rented CORRESPONDENCE SINCE TREATY OF 1903. 35 from you by this Company, you have determined that, in compliance with the application of this Company, you shall extend the lease of the Territory in question for two additional years, that is to say, until the 1st day of June, 1865. I am directed to add that no time has been lost in communicating the new arrangement to the officers of the Hudson's Bay Company on the North-West Coast of America with a recommendation that they should in every occasion which offers endeavour to preserve your interests in that quarter from infringement. Extract from a letter from the same to the same, May 3, 1865, acknowledging receipt of Admiral Tebankoffs letter and accepting extension of lease till June 1, 1886. I am directed by the Governor and Committee to acknowledge the receipt of Admiral Tebankoff's letter of the 10th and 20th ultimo, declining the offer made by this Company of £2,000 per annum for the trade of both the mainland and islands of the Stikine Territory, but offering to continue the present existing lease of the mainland as now held by this Company for an additional year, that is to say till 1 June, 1866. In reply I am directed to inform you that the Governor and Committee have determined to accept your offer, and it is hereby accepted accordingly on the same terms as at present. Information will be sent forthwith to the Board of Management of the Hudson's Bay Company at Victoria of your present offer and of its acceptance by the Governor and Committee. Extract from Minutes of Board, May 22, 1866, when letter of Russian-American Company, May If./16, 1866, referred to Governor de Deputy-Governor. Read a letter from the Russian American Company, dated St. Petersburg, May 4/16, 1866, which was referred to the Governor and Deputy-Governor. Extract from Minutes of Board, May 29, 1866, that extended lease for one year more. The Governor and Deputy-Governor reported that the lease of the Russian American Territory had been renewed for one year more at the former terms—which was approved. Zetter May 21f, 1866, by T. Fraser, Secretary of the Hudson's Bay Company, to the Russian American Company accepting renewal of lease till June, 1867. I am directed by the Governor and Committee to acknowledge the receipt of your letter of the 4/16 May, and in reply to inform you 36 ALASKAN BOUNDARY TRIBUNAL. that they accept your offer to continue the lease of the Stikine Territory for one year from the termination of the present lease—namely till June, 1867. The Board of Management at Victoria will be informed by next post that the lease is renewed. Extract from a letter January 25th, 1867, the same to the same, offering to renew the lease for three years from June, 1867. In my letter of 24 May, 1866, I informed you that the Hudson's Bay Company accepted the offer conveyed in your letter of the 4/16 of that month to continue the lease of'the Stikine Territory for one year from the termination of the lease, namely till June, 1867. It appears to the Governor and Committee of this Company that the uncertainty as to whether their tenure of the territory is to be «/ «/ continued beyond that period or to be brought to a close is inconvenient to both companies, and that it is desirable that the tenure should be put upon a more distinct footing. They desire me, therefore, to state that if agreeable to you they are willing to continue the lease of the territory for the three years from the termination of the present lease, namely from June, 1867, on the present terms, it being understood that either party is at liberty to terminate the lease upon the expiry of that period on giving twelve months' notice to the other. letter from Admiral Tebennoff April 28-May 20, 1867, to Hudson's Bay Company notifying the company of the cession of Russian America to the United States, and of the inability of the Russian American Company to carry out its conditional agreement of 1/13 February, 1867, and requesting that the term of the lease be considered as ending xoith the date of the actual transmission of Russian America. Russian American Company. -The Board of Directors. i| Petersburg, 28 April-20 May, 1867. The Governor and Committee of the Hudson's Bay Company. Gentlemen:—In consequence of a just received Official Advise stating the cession of the Russian Territory in America by the CD t/ # v Imperial Government to the Government of the United States of America, the conditional agreement contained in our respects of the 1/13 February last for the renewal of the lease of the Stackine territory cannot be sanctioned by our Government, and therefore we beg respectfully to request that the term of the above lease be considered expired on the day of the actual transmission of our Colonies, which we presume will be effected in the course of this year and you will oblige us by giving proper instructions thereupon to your. Board of Management on the N.W. Coast of America. On our part we have forwarded such instructions to our Colonial Authorities. We have the honour to be, Gentlemen, your obedient servants, (Signed) Tebennoff. CORRESPONDENCE SINCE TREATY OF 1903. 37 Extract from Minutes of Board of Hudson's Bay Company, May 21,1867, where letter, April 18-10 May, 1867, from Russian American Company is read and ordered that they be informed that lease must terminate May 31. Read a letter from the Russian American Company, dated St. Petersburg, April 18-10 May, 1867. Ordered that they be informed that the occupation of the Stikine country by this Company, and their liability under the lease must cease on 31 May. Extract from letter from W. G. Smith, Secretary May 22, 1867, to Board of Russian American Company terminating the lease on May 31, 18$7. I have the honour to acknowledge the receipt of your letter of April 28-May 10, addressed to the Governor and Committee of the Hudson's Bay Company announcing that, in consequence of an official intimation by the Imperial Government of the cession of the Russian territory in America to the Government of the United States, the conditional Agreement made with this Company in February last for the renewal of the lease of the Stikine territory for three years «/ «/ from 31 May, 1867, cannot be sanctioned by the Russian Government, and, therefore, you request that the lease may be considered at an end on the dav of the actual transfer of your Colonies. %j «/ In reply I am directed to inform you that the Hudson's Bay Company, under the circumstances, cannot extend their occupation of the territory, and consequent liability for rent, beyond 31 May current, when the lease expires by agreement, and I have given the necessary instructions to that effect to the Company's Board of Management at Victoria, Vancouver's Island. [Inserted in the margin] : As to request numbered 5. There is no absolute evidence as to what the certain information and suggestions referred to in letter Canning to Bagot, June 20th, 1824, are, but it is believed that it refers to the letter printed immediately above, Appendix to British Case, page 65, in the form of a letter from Mr. Pelley, to Mr. Secretary Canning. The Faden Map referred to in this letter has not been found, although diligent search has been made for it. The only Faden maps of the period that can be found are reproduced pages 10 and 11, British Atlas Appendix, Vol. II. [Inserted in the margin] : As to request numbered 6. The tracing of the Admiralty Chart asked for is not in the possession of the British Agent. The records do not show that any copy of it was kept. [Inserted in the margin] : Jl| to request numbered 7. The tracing of Begbie's sketch is reproduced upon page 215 of the Appendix to the British Case, Vol. I. Begbie's sketch was transmitted by Mr. Justice Crease to the Minister of Justice, as shown by the report of the Minister of Justice, paragraph 44, page 212, Appendix to British Case, Vol. I. A certified copy of it was prepared by Dennis, Surveyor-General, for the Minister of Justice, and is reproduced, as stated above, page 215. [Inserted in the margin] : As to request numbered 8. Letter copied above. 38 ALASKAN BOUNDARY TRIBUNAL. Sir M. H. Herbert to Mr. Hay. Personal.] British Embassy, Newport, June 18, 1903. Dear Mr. Secretary : I have received your note of the 16th instant in regard to the refusal of the British Agent for an extension of time for the delivery of the Alaska Counter Cases, and have telegraphed its substance to my Government. In this note I notice the following sentence: I You wTill remember ^D that during the negotiation of the Treaty organizing the present Tribunal, when you asked for a longer period than two months each for the preparation of the Case and Counter Case, I explained to you the President's wish that if the boundary was to be* submitted to adjudication it should be concluded within the time indicated by .me, you accepted those conditions, and the Treaty was signed." It is true that I took exception to the short time alloted for the preparation of the Cases and Counter Cases, but I have no recollection of accepting any condition specifying the time within which the adjudication was to be concluded. All I understood you to say at the V «/ •/ time was that there was no need to prolong the periods which you had suggested for the preparation of the Cases and Counter Cases owing to the fact that the evidence on which each party relied was already in the possession of the two Governments, and that there was nothing to be done except to put it into shape. Butj assuming that I am wrong, any arrangement such as vou indicate would necessarily CD 7 %J CD «/ «/ have been modified by Article II. of the Treaty, which confers the right on both parties to ask for an extension of time. Your note also states that I asked in March for an extension of time for the preparation of the Case and Counter Case. I certainly supported the request of the British Agent for an extension of time for the case in a conversation with Mr. Loomis, during your absence from / CD «/ Washington, but I did not ask on that occasion for a prolongation of the period allotted by the Treaty for the preparation of the Counter Case. Believe me, dear Mr. Secretary, yours very truly, Michael H. Herbert. Mr. Hay to Sir M. H. Herbert. Department of State, Washington, June 22,1903. My Dear Mr. Ambassador : I have your letter of the 15th of June, acknowledging receipt of mine of the 16th, and calling attention to CD CD 1 ^j certain points in which our recollections of conversations seem not exactly to agree. I take note of your corrections, which do not seem in any essential point to affect the action of the two Governments in the case, and am, my dear Sir Michael, Very sincerely yours, John Hay. s Excellency the Right Honorable Sir Michael H. Herbert, K. C. M. G., C. B., &c, &c, &c, Newport, R. I CORRESPONDENCE SINCE TREATY OF 1903. 39 Mr. Choate to Mr. Hay. No. 1141]. American Embassy Zondon, June 23, 1903. Sir : I have the honor to report that upon the receipt of your cablegram of the 16th instant, stating what had passed between yourself and Sir Michael Herbert in respect to proposed delay in the service of the British Counter Case before the Alaska Boundary Commission, I had an interview with Sir Robert Finlay, the Attorney General, and urged upon him the grave necessity on the part of our Commissioners and Counsel of avoiding any unnecessary delay in the various proceedings provided for by the Treaty, especially in the service of the Counter Case and the commencement of-the oral argument. I appealed to him to let no considerations of personal convenience stand in the way of a prompt hearing of the case at the time clearly intended by the Treaty, and explained to him fully the important engagements at home resting upon our Commissioners and Counsel which would compel their prompt return to the United States, at any rate, by the end of October. I sent you a cable telegram about this interview on June 19, of which I annex a copy. On the same day I followed up the interview with a personal letter to Sir Robert, of which I annex a copy, and on the 19th June I received in reply from him a letter, of which I annex a copy, which seems to promise a more prompt compliance with the understanding of the Treaty, as to time, than we had feared. Doubtless General Foster will communicate with Mr. Sifton, at Ottawa, as suggested by the Attorney General as the best way of expediting matters. I annex translation of cipher cable sent you on receipt of Sir Robert's letter. I have the honor to be, Sir, your obedient Servant, Joseph H. Choate. To Hon. John Hay, &c, dec, dec Enclosures. 1. Mr. Choate to Mr. Hay (cable), June 19, 1903. 2. Mr. Choate to Sir Robert Finlay, June 19, 1903. 3. Sir Robert Finlay to Mr. Choate, June 19, 1903. 4. Mr. Choate to Mr. Hay (cable). June 22; 1903. [Enclosure 1.] Mr. Choate to Mr. Hay. [ Cablegram. ] No. 44.] London, June 19, 1908. Have seen' Attorney-General, who holds out hopes of serving Counter Case July 3. Am laboring to induce him to begin oral argument September 10. Would you approve of September. 20 as a compromise. He thinks oral argument ought not to be very long. This would give thirty days for the argument and ten for decision, thereby releasing our people by the end of October. & Choate. 40 ALASKAN BOUNDARY TRIBUNAL. [Enclosure 2.] Mr. Choate to Sir Robert Finlay. American Embassy, London, June 19, 1903. Dear Sir Robert : I do sincerely hope that you will let me cable to Washington that your Counter Case will be ready on the day fixed in the Treaty. As to oral argument, besides the urgent necessity which rests upon our Commissioners to return early to the United States, as I explained to you, you will not forget that the Counsel on our side are not only giving up a large part of their vacation in coming over to attend the opening of the Tribunal, and arguing the case in September, as the Treaty clearly intends, but all the time they are detained here after that is taken out of their court work at home, as our legal vacation ends with the first Monday of October. They very reasonably consider that a week after the service of the printed arguments on September 3 will be ample time for the preparation of the oral argument, at any rate to begin them. So when they insist, as they do, that the oral argument shall begin on September 10, you will'already have had a full month's vacation after the adjournment of Parliament, and in.that respect will be better off than they are. May I not, therefore, hope that you will consent that the oral argument begin on the 10th of September. Otherwise it will be left wholly uncertain and must be determined by the Tribunal when it meets on September 3. Yours most sincerely, Joseph H. Choate. Hon. Sir Robert Finlay, K. C. [Enclosure 3.] Sir Robert Finlay to Mr. Choate. House of Commons, June 19, 1903. My Dear Mr. Choate : Our Counter Case is in course of preparation, and we believe that it will be delivered here on the 3rd of July, the day fixed by the Treaty. This Counter Case, however, will be necessarily incomplete owing to the fact that we have not yet had inspection of documents which we consider of great importance, and there will not be time to have embodied in the Counter Case the results of any inspection which may take place in America before the 3rd of July. We shall have to accompany the delivery of the Counter Case with a statement that owing to this circumstance it is necessarily incomplete and may have to be supplemented in some form. Inspection is, of course, a matter of right, and my colleagues inform me that we are asking only for what is reasonable and necessary in the way of douuments. I am writing in the absence of Mr. Sifton, who is now on his way to America—he will be at Ottawa by. the 25th instant. As regards the date of meeting I am quite sensible of the force of what your Excellency says as to the convenience of the American Commissioners, and I can assure you that no question of personal convenience on our side will be allowed to stand in-the way of having the case heard at the earliest date possible. But it is essential that the case should be ready for hearing and, after full consultation with my colleagues, I much regret that it is impossible for me at present to undertake that the oral argument should commence on the 10th of September. We may possibly have the materials ready by that date, but it is probable that more time will be wanted. There is not only the question of documents, but inquiries have been directed in America as to various matters of fact alleged in case of the United States. Till we know something of the results we are not in a position to fix a date definitely. All 1 can say is that every effort will be made tb have the hearing at as early a date as possible, and to meet in every way possible the convenience of the Commissioners of the United States. I very much wish T could give a more definite answer, but I feel that at present it is impossible for me to do so without grave risk of imperilling the proper presentation of the case for Canada. Probably the best way of expediting matter^*1 would be that communications should be opened direct with Mr. Sifton at Ottawa. Believe me, yours very sincerely, R. B. Finlay. CORRESPONDENCE SINCE TREATY OF 1903. 41 [Enclosure 4.] Mr. Choate to Mr. Hay. [Cablegram.] No. 40.] London, June 22nd, 1903. Attorney-General writes me that he believes British Counter Case will be delivered here on July 3rd, but incomplete and accompanied by statement that owing to inability to embody in it results of inspection of documents, it will have to be supplemented in some form. Cannot undertake at present that oral argument shall commence 10th September. May possibly have materials ready by that date, but probably more time will be required. Is making inquiries in America as to various facts alleged in our case, but he promises to make every effort to have hearing at as early a date as possible and that no question of personal convenience on their side shall stand in the way. Sifton is now on the way to America, and will reach Ottawa 25th. Attorney-General suggests the best way of expediting matters would be to communicate direct with Sifton at Ottawa. Choate. 1903, \ .;-..^^ Sir M. H. Herbert to Mr. Hay. British Embassy, I Newport, June 23, Dear Mr. Secretary: In reply to your note of June 16, I have the honour to inform you that His Majesty's Govermnent have carefully considered the reply of the United States Government to the application for extension of time for the preparation of the British Counter Case and for permission to examine the originals of various documents, used to support the Case of the United States Government. In regard to the extension of time, His Majesty's Government desire to point out—in addition to the reason already stated—that the Case of the United States Government rests to a large extent on the conten- tion of Russian occupation of a part of the territory in dispute, and in support of this contention translations of a number of Russian Documents, and of extracts from such documents not previously brought to the notice of His Majesty's Government, are given in the Appendix. To enable His Majesty's Government to deal with this question of occupation in their Counter Case, it is essential that they should be afforded full opportunity of comparing these translations with the original documents, and the extracts with the context^ and possibly preparing and appending alternative translations. It would have been different had certified copies of these originals been appended. As matters stand it is clearly impossible that within a period of two months the documents should be copied at Washington and forwarded to London for comparison with the translations, and that the results of such comparison should be considered and embodied in the Counter Case. The United States Government will no doubt readily admit that a translation stands upon quite a different footing from a copy of a document. It is not, strictly speaking, by itself evidence at all, but merely the personal opinion of an unnamed translator as to the meaning and contents of the document. If the United States Government desire that the documents in question should be treated as evidence, His Majesty's Government have on their side a right, according to the provisions of the Convention, to lay before the Tribunal their claim for time sufficient for the examination of the 42 ALASKAN BOUNDARY TRIBUNAL evidence upon which the United States Case relies in regard to a vital part of the matter in dispute. The delay which this examination must cause is not the fault of His Majesty's Government but of the form in which the United States Case has been presented. But His Majesty's Government do not rest their claim to an extension of time on this question alone. The United States Case contains also affidavits, being the sworn statements of members of the Chilkat tribe residing at the head of the Lynn Canal, and His Majesty's Government are entitled to claim the time necessary for enquiry on the spot as to the credibility of these witnesses and the weight which should be attached to their statements. Time is similarly necessary for the examination on the spot of certain statements made for the first time in the United States Case as to acts of occupation and exercise of jurisdiction in the disputed territory by the United States Government. It is impossible to obtain the results of this enquiry in a place so remote and to embody it in the reply of His Majesty's Government within the period of twTo months from the delivery of the United States Case. The possibility that at this stage of the proceedings an extension might be required and be granted by the Tribunal was clearly contemplated by the terms of the Convention {vide Article II.), and the provision would be illusory if not exercised for the purpose now indicated. The Tribunal not yet having been constituted, the two Governments would, as suggested in the United States note, naturally act in its place and upon the principles by which the Tribunal itself would have been guided. His Majesty's Government are ready to meet as far as they can the convenience of the members of the Tribunal in regard to the time for the oral argument, and will use every effort to complete their Counter Case at the earliest possible date, but the material embodied in the United States Case has given them a claim to the extension of time for which they have applied, and for wThich, considering the important interests at stake, they feel bound to press. If the two Governments should unfortunately be unable to come to an agreement, it will be necessary to summon the CD 7 ft/ Tribunal in order that the point may be discussed. His Majesty's Government are convinced that in this event the Tribunal will admit the justice of the applications, and they are anxious to impress strongly on the United States Government that the assembly of the Tribunal merely to argue and decide the preliminary question would probably cause general inconvenience and the postponement of the discussion of the real question. An amicable arrangement in anticipation of the probable decision of the Tribunal would, on the other hand, have the effect of expediting the ultimate hearing of the case. Believe me, dear Mr. Secretary, yours very truly (For Sir Michael Herbert 1, Arthur S. Raikes. Mr. Hay to Mr. Raikes. Department of State, Washington, June 24,1903. My Dear Mr. Raikes: I have received your letter of the 23rd of June, and submitted it to the attention of our Agent and Counsel. I have this morning received a telegram from Mr. Choate, show- CORRESPONDENCE SINCE TREATY OF 1903. 43 ing that the matter to which your letter refers is now under discussion in London between Mr. Choate and the Government, with what, I should hope, are reasonable prospects of its being arranged. He informs me that Mr. Sifton is now on his way to America, and will reach Ottawa on the 25th. The Attorney-General suggests that direct communication with Mr. Sifton might be a desirable way of expedit ing matters. If that should be Mr. Sifton's opinion, he might put himself into communication with General John W. Foster, who is now staying at Henderson Harbor, Jefferson County, New York. *-*'_ %7 7 His address by telegram would be the above, via Adams, New York. If the Agents of the two Governments should consider a personal interview desirable, Mr. Foster's nearness to the border might facilitate matters. Very sincerely yours, Mr. Arthur S. Raikes, &c, &c, &c, Newport, Rhode Island. John Hay. Mr. Hay to Mr. Raikes. [Telegram.] Department of State, Washington, June 24, 1903. Arthur Raikes, Esq., British Embassy, Newport, R. I. Certified copies of Russian documents, translations of which appear in the Case of the United States before Alaskan Boundary Tribunal, can be furnished on Monday, June 29th. Do you desire them sent to you at Newport or forwarded to London through the United States Embassy? Do you wish the Counter Case of the United States to be delivered at Newport or Washington? John Hay. Mr. Hay to Mr. Raikes. Department of State, Washington, June 26, 1903. Dear Mr. Raikes : I enclose a memorandum in reply to the argument of the British Government of the 23rd of June, for an extension of time for the presentation of evidence in the British Counter Case. I am, my dear Mr. Raikes, sincerely yours, John Hay. Enclosure as above. [Enclosure.] Memorandum upon the Note of the British Ambassador, dated June 28, 1903. 1. " To enable His Majesty's Government to deal with this question of occupation in their counter Case, it is essential that they should be afforded full opportunity of comparing the translations (of Russian documents) with the S. Doc. 162, 58-2, vol 5- -26 44 ALASKAN BOUNDARY TRIBUNAL. original documents, and the extracts with the context, and possibly preparing and appending alternative translations." In order to avoid any delay for the comparison of translations and originals, though under the Treaty there is no provision for an extension upon such grounds, the United States will consent that any alternative translations which Great Britain may desire to place before the Tribunal may be introduced at any time, either as supplemental of the British Counter Case or by reference in the printed or oral argument, provided copies of such translations are furnished to the Agent of the United States before the commencement of the oral argument. Unless Great Britain desires to submit translations differing materially from those printed in the Case of the United States, it can in no way affect the record before the Tribunal. On the other hand, by the United States consenting to their introduction as above stated, the British Case before the Tribunal can in no way be prejudiced by proceeding with the delivery of the Counter Case before the original documents are examined. 2. " His Majesty's Government have on their side a right, according to the provisions of the Convention, to lay before the Tribunal their claim for time sufficient for the examination of the evidence upon which the United States Case relies in regard to a vital part of the matter in dispute." As already stated in the note of June 16 to the British Ambassador, the inspection of originals or certified copies of documents offered in evidence by the United States does not constitute " the procuring of such additional papers and evidence," upon which an extension of time for the preparation of the Counter Case may be properly asked, when 1 special difficulties " arise in connection therewith. Such originals or certified copies are not " additional papers and evidence." Their production is only to verify the correctness of evidence already submitted. For the purpose of preparing the Counter Case it is to be assumed that they are correctly submitted as printed. As the time in which their production can be demanded is unlimited, it was contemplated by the Treaty that they could be called for at any time for purposes of verification, even during the progress of the oral argument. In case such production is after the delivery of the Counter Cases, and an examination discloses that the originals or certified copies materially differ from the copies submitted in the Case of the United States, thereby affecting statements made in the British Counter Case in reliance upon the printed evidence of the United States, Great Britain would undoubtedly be entitled to amend its Counter Case to conform with the evidence of the original documents. In view of this right, which could not be denied, the British Case, as finally laid before the Tribunal, would in no way be prejudiced by relying upon the evidence printed in the Case of the United States; and an inspection of the originals or certified copies is not necessary to protect Great Britain in any substantial right. 3. " The delay which this examination must cause is not the fault of His Majesty's Government, but of the form in which the United States Case has been presented." The Treaty contemplated that a report or document might be referred to without producing a copy, for in paragraph 4 of Article II. the following appears: " If in the case submitted to the Tribunal either party shall have specified or referred to any report or document in its own exclusive possession without annexing a copy, such party shall be bound, if the other party shall demand it, within thirty days after the delivery of the Case, to furnish to the other party applying for it a duly certified copy thereof." All that can be demanded, therefore, under the Treaty is " a duly certified copy." It is apparent that the Treaty contemplated, and it was understood by the parties, that in certain cases citations only would be made, and full copies would not be produced, of certain documents and reports in the " exclusive possession" of one party. The latitude thus given by the Treaty could be employed by either party, and to criticise a method of presentation in accordance therewith is hardly warranted, while to ask for an extension of time upon such a ground is entirely without the provisions of the Treaty. It offers no " special difficulties " in " procuring additional evidence." Furthermore, as was pointed out in the note of June 16th, an examination of originals or certified copies cannot be construed into " procuring additional papers and evidence," the only ground stated in the Treaty as a basis for applying for an extension of time. If the existence or validity of a document was correspondence since TREATY OF 1903. 45 one of the main issues, a preliminary examination might then be appropriately demanded; but no such question has arisen in the present case. It would be as proper to refuse to consider in evidence diplomatic correspondence and official reports until the signatures of the writers had been proven by sworn statements as to their genuineness, as to imply doubt of the authenticity of other documents adduced in evidence by the United States. It is to be presumed that in a proceeding of this character, in which the evidence is necessarily procured and submitted ex parte, a government^ acts in good faith. To deny that it proceeds upon that principle in collecting its evidence and in presenting it to an international tribunal amounts to a grave reflection upon its integrity. The same rules, which apply to litigation between individuals before a municipal court, cannot be invoked in a controversy between nations. Such procedure would require that a party have opportunity to cross-examine witnesses, and that it should establish by sworn statements the authenticity of documentary evidence. The resort to a tribunal of the character of the one created under the Treaty of January, 1903, rests upon the mutual confidence of the high contracting powers that each will act in good faith. 4. "The United States Case contains also affidavits, being sworn statements of members of the Chilkat tribe residing at the head of Lynn Canal, and His Majesty's Government are entitled to claim the time necessary for enquiry on the spot as to the credibility of these witnesses and the weight which should be attached to their statements." It would appear that Great Britain required time to procure, if possible, evidence with which to impeach the witnesses whose depositions are submitted with the Case of the United States. Such evidence cannot, in an international proceeding like the present, be properly introduced, nor, if introduced, can it be relied upon by the Tribunal. The Treaty provides for two submissions of evidence, one in the Case, the other in the Counter Case; besides these two opportunities, no evidence can be introduced except by the Tribunal upon its own motion. It is manifest that, if the British Government can in its Counter Case produce proof that witnesses, whose evidence has been submitted in the Case of the United States, are unworthy of belief, the United States would have no opportunity to establish their credibility by proving that they bore good reputations for truth and veracity. Under such circumstances it would clearly be unjust for the Tribunal to take into consideration impeaching evidence, such, as it appears, Great Britain contemplates procuring. An entire case 'might be destroyed if such evidence were admissible, since a party would be precluded from rebutting it. It, therefore, devolves upon the Tribunal to determine from its general knowledge, and not from sworn statements, the weight which should be given to the evidence of this character. Such was the course pursued in the Fur Seal Arbitration, in which hundreds of depositions made by Indians were introduced without one being offered to impeach the deponents. In view of the peculiar conditions existing in a judicial proceeding between nations, and the manifest inadmissibility of impeaching evidence, when taken ex parte and introduced in the Counter Case, when no reply can be made to it, the procuring of such evidence, however difficult it may be, can form no basis for asking an extension of time. 5. "Time is similarly necessary for the examination on the spot of certain .statements made for the first time in the United States Case as to acts of occupation and exercise of jurisdiction in the disputed territory by the United States." The United States conceives that Great Britain does not intend to assert that the fact of occupation and the exercise of jurisdiction by the United States along the Lisiere is new to the present controversy, but merely that the proofs adduced in substantiation thereof had not been fully submitted to the British Government before they appeared in the Case of the United States. Of the reliance of the United States upon these acts of sovereignty Great Britain had been previously advised both in the " Views " of the United States Commissioners submitted to the Joint High Commission in 1898, and in the correspondence which subsequently followed between the United States Embassy in London and the British Foreign Office. Furthermore, Dr. George M. Dawson and the Canadian Surveyor Ogilvie had, as early as 1888, reported upon the occupation of the head of the Lynn Canal by the United States, and it had been a subject of frequent debate in the Dominion Parliament, Great Britain was, therefore, put upon inquiry as to the extent 46 ALASKAN BOUNDARY TRIBUNAL. of the occupation and exercise of authority by the United States in that region, and it entered into the Treaty of January, 1903, with full knowledge of the claim of the United States as to its governmental acts in the Lisiere. Moreover, the British Case in the present controversy devotes considerable space to the subject* and attempts to show that the United States exercised little control over the mainland until a recent date. The United States claim of possession and occupancy was open and notorious and has been generally recognised. It, therefore, placed the burden upon Great Britain from the very outset to overthrow the presumption created by the existing fact that the United States was in possession and exercising control. Such evidence was properly a part of the British Case and not of the Counter Case. It certainly could not form the ground for a request to extend the time in which the Counter Case should be delivered. 6. " It is impossible to obtain the results of this enquiry in a place so remote and embody it in the reply of His Majesty's Government within the period of two months from the delivery of the United States Case." Whatever difficulties attach to the procuring of evidence upon this subject, caused by the remoteness of the locality, existed and were known to exist when the Treaty was signed -January 24, 1903. The Treaty provides that an extension of time may be secured | when it becomes necessary by reason of special difficulties which may arise in the procuring " of additional papers and evidence. As the difficulties of securing evidence in regard to occupation of the Lisiere by the United States were fully understood at the time of the signature, and they were not particularly referred to or excepted in the Treaty, they cannot be classed as " special difficulties." And as they existed then they cannot be said to be "difficulties which may arise." The Treaty clearly indicated "special difficulties " arising after it was signed, and, therefore not then in existence. The attention of His Majesty's Government may be called to the fact that, knowing the United States was in actual possession, and having been frequently notified of its claim of sovereignty prior to the Convention of January, 1903, Great Britain had approximately five months before the date of the delivery of the Counter Case in which to make investigations and obtain evidence " on the spot" as to the governmental authority exereised by the United States in and about the head of Lynn Canal and at other points along the Lisiere. Because Great Britain failed to take immediate steps to collect proofs against the occupation of the United States immediately upon the signature of the Treaty, or after the exchange of ratifications, it cannot be pleaded that there has been insufficient time to procure evidence of that character, nor can such a reason be advanced for an extension of time. To grant a request for an extension upon such grounds would permit the British Government to benefit through a condition created by its own negligence, a result contrary to every legal maxim and principle of equity. The United States having thus briefly reviewed the grounds upon which his Majesty's Government relies to secure an extension of time, in which to prepare and deliver its Counter Case, confidently believes that upon further consideration of the terms of the Treaty it will no longer press its demand for such extension, but will submit its Counter Case and printed Argument at the time fixed by the Treaty, and be prepared to enter upon the oral argument as soon after the meeting of the Tribunal in London as is compatible with the interests of the two Governments. Mr. Raikes to Mr. Hay. [Telegram.] British Embassy, Newport, R. I, June 26, 1903. Hon. John Hay, Secretary of State, Department of State. Mr. Clifford Sifton has telegraphed to enquire whether documents are ready to exhibit if he sends someone to Washington to photograph and inspect them. I have informed him that I believe his representative will be given every facility. Raikes, CORRESPONDENCE SINCE TREATY OF 1903. 47 Mr. Hay to Mr. Raikes. [Telegram.] Department of State, Washington, June 27, 1903. Arthur Raikes, Esq., British Embassy, Newport, R. I. Original documents or certified copies will be ready for inspection by representative of British Agent before Alaskan Boundary Tribunal at any time after the delivery of the Counter Cases on July 3. Representative will be given every facility to make examination within provisions of treaty. As previously stated, certified copies of Russian documents will be ready on the 29th instant for delivery at such place as you may indicate. John Hay. Mr. Raikes to Mr. Hay. Newport, Rhode Island, June 28, 1903. Dear Mr. Secretary : In reply to your telegram of June 24, I am directed by the Marquess of Lansdowne to inform you that the British Agent would rather have the certified copies of the Russian documents transmitted through the United States Embassy in London. I am instructed to state at the same time that His Majesty's Government reserves the right to apply for the inspection of originals eventually, should any point arise, when the certified copies are inspected, which may make such a course desirable. I am, dear Mr. Secretary, very sincerely yours, Arthur S. Raikes. The Honourable John Hay. Mr. Raikes to Mr. Hay. Personal.] British Embassy, Newport, R. I, June 28, 1903. Dear Mr. Secretary.^—I beg to acknowledge the receipt of your note of the 26th instant, enclosing a memorandum relative to the CD application of His Majesty's Government for an extension of time for the presentation of the British Counter Case before the Alaskan Boundary Tribunal. I am, dear Mr. Secretary, yours very truly, / «/ / «/ «/ «/ / Arthur S. Raikes. The Honourable John Hay, Secretary of State, dec, dec, <&c. 48 ALASKAN BOUNDARY TRIBUNAL. Mr. Zansing to Mr. Sifton. Washington, July 1, 1903. The Honorable Clifford Sifton, Agent of Great Britain before the Alaskan Boundary Tribunal. Sir.—I have the honor to acknowledge the receipt of your communication of the 15th ultimo, enclosing a memorandum upon the requests for certified copies of documents, heretofore made by the Agent of the United States. I have the honor to be, Sir, your obedient servant, Robert Lansing, Acting Agent of the United States before the Alaskan Boundary Tribunal. Mr. Zansing to Mr. Sifton. Washington, July 1, 1903. The Honorable Clifford Sifton, Agent for Great Britain before the Alaskan Boundary Tribunal. Sir: I have the honour, in response to your request to the Agent of the United States, under date of June 11th, 1903, that you be furnished with certified copies of certain documents specified or referred to in the case of the United States, of which copies were not thereto annexed, to direct your attention to the fact that Article II. of the Treaty of January 24, 1903, provides that such demand shall be made within thirty days after the delivery of the Case, and that the right secured by such provision had expired by limitation when your request was served upon the Agent of the United States. As it is, however, the desire to comply with every request of His Majesty's Agent which can be reasonably granted, the strict right under the Treaty is not insisted upon, but there is herewith transmitted to you certified copies of the documents requested which are in the possession of the Government of the United States, together with a memorandum explanatory thereof, and of the documents of which the Government is unable to furnish copies. I have the honor to be, Sir, your obedient Servant, Robert Lansing, Acting Agent of the United States before the Alaskan Boundary Tribunal. [Enclosure.] Memorandum in Relation to Documents Specified in the Request of the British Agent, Dated June 11, 1903. 1. The Marine Map.—A certified photographic facsimile has been furnished in the copies of Russian and French documents already delivered to the British Agent. 2. Survey of the Mouth of Chilcat River by Lindenberg. This is presumably the same as the Survey by Pilot Lindenberg numbered 15 in this memorandum. A certified photographic copy of this survey is herewith transmitted. 3. Coast Map, mentioned in Mr. G. Davidson's report. A search has been made for this map in the archives of the U. S. Coast and Geodetic Survey, but it has not been found, and there is no evidence that it ever was completed or delivered to that office. If on further search it is discovered, a certified copy will be furnished. CORRESPONDENCE SINCE TREATY OF 1903. 49 4. Sketch relating to Tongas Island. A certified lithographic copy is herewith transmitted. 5. Letter from Governor Seymour, mentioned in Colonel Scott's Report. A certified copy is herewith transmitted, together with a certified copy of Colonel Scott's letter, to which the former is a reply. 6. Note from Dr. Tohmie, mentioned in Colonel Scott's Report. This note is not in the possession of the United States Government. A certified copy of the letter to Dr. Tohmie is herewith transmitted. 7. Information relating to Indians living on the Coast. A certified copy is herewith transmitted. 8. Letter from Mr. Duncan. It does not appear by Colonel Scott's Report that any such letter was received by him, and it is not in the possession of the United States Government. A certified copy of the letter to Mr. Duncan is herewith transmitted. 9. Instructions from Major-General Halleck, mentioned in Colonel Scott's Report. These instructions are printed at page 346 of the Appendix to the Case of the United States. 10. Copy of Statement of the boundary line as published in an English Journal, mentioned in General Howard's letter. A certified copy of the copy made by General Howard is herewith transmitted. 11. Plans of Harbors made by Commander R. W. Meade. A search has been- made in the archives of the Navy Department, but the plans referred to have not been found. They were probably destroyed when superseded by later and more accurate charts. 12. Chilcoot Inlet Chart, mentioned in Captain Beardslee's report. A certified copy is herewith transmitted. 13. Map mentioned in Mr. Max Pradt's letter. This map is not in the possession of the United States Government. 14. Chart by Lieutenant Symons of the " Jamestown." This chart is the same as Chilcoot Inlet Chart, numbered 12 in this memorandum. 15. Survey by Pilot Lindenberg, map and original journal. The map is presumably the same as the Survey of the Mouth of Chilcat River, numbered 2 in this memorandum, of which a certified copy is herewith transmitted. No other map answering to such a description, and no journal by Lindenberg, is in the possession of the United States Government. 16. Maps mentioned in report of Governor of Russian Colonies in America. There is no evidence that such maps were ever delivered, and no such maps are in the possession of the United States Government. Robert Lansing, Acting Agent of the United States before the Alaskan Boundary Tribunal. Mr. Zoomis to Mr. Raikes. No. 153.] *;f f July 1, 1903. Sir: In accordance with the agreement between the two Governments as to the place of delivery of the Counter Case in the Alaskan Boundary dispute, I have the honor to deliver herewith by special messenger the Counter Case of the United States, pursuant to provisions of Treaty, together with a communication from the Agent of the United States to the Agent of Great Britain, which you are respectfully requested to transmit to the latter. I have the honor to be, with high consideration, Sir, your most obedient Servant. Francis B. Loomis, Acting Secretary. Accompaniment as above. Arthur S. Raikes, Esquire, &c, &c, &c. 50 ALASKAN BOUNDARY TRIBUNAL. Mr. Raikes to Mr. Hay. British Embassy, Newport, July 1, 1903. Dear Mr. Secretary: With reference to your personal note of June 26, and in reply to the memorandum which was enclosed therein, I am directed by His Majesty's Principal Secretary of State for Foreign Affairs to inform you that His Majesty's Government contend, and it is apparently not disputed by the United States Government, that, in appending to their Case translations of documents on which they rely the latter failed to comply with Article II. of the Convention, which provides that documentary evidence should accompany the Case. On this ground His Majesty's Government would be fully justified in refusing to accept the Case delivered on behalf of the United States, but they have refrained from this / »/ extreme step and have only requested the time required for the examination of documents not yet produced. The Convention clearly provides that each side shall have two months in which to reply to the evidence produced by the other side, and His Majesty's Government are entitled to claim that period, if necessary, for the examination of and reply to evidence upon which the United States rely, but which they announce will not be open for examination until after the delivery of the Counter Case. It is not a question of " procuring additional papers and evidence " by His Majesty's Government, but a claim that the United States Government shall comply with the stipulations of the Treaty by producing evidence, and that His Majesty's Government shall have the time specified by the Convention to examine and reply to that evidence. Even if it were merely a matter of producing an original or certified copy of a document adduced as evidence, the Convention clearly contemplates that an extension of time should be given for that purpose, as the demand may be made at any time within thirty days after the delivery of the Case, and a maximum of forty days for delivery is allowed after the receipt of notice. It is to be borne in mind that all the evidence upon which either party relies in support of its own Case or in rebuttal of the other Case must be supplied with the Case and Counter Case, and that, while it is open to the Tribunal to call for further evidence, it is not open to the parties without the concurrence of the Tribunal to introduce new evidence after the delivery of the Counter Case, and, unless originals or certified copies of. the documents called for were delivered in time to be dealt with in the Counter Case, it would be impossible to bring the result of their examination before the Tribunal, unless the Tribunal of its own motion called for it. But the documents in question are not documents merely specified or refered to in the United States Case. They form the whole evidence upon which a substantial and vital part of the United States Case rests, and it could not have been contemplated that it should have been open to one party to base its case on evidence which the other party should not be allowed the fullest opportunity to examine and deal with, and, if the United States Government adhere to their refusal to afford His Majesty's Government the CORRESPONDENCE SINCE TREATY OF 1903. 51 opportunity of seeing and dealing with this evidence in their Counter Case, His Majesty's Government must reserve their right to protest against its reception and consideration by the Tribunal. With regard to the claim to an extension for the purpose of examining on the spot the evidence of occupation adduced, His Majesty's Government must demur to the statement that the fact of occupation, &c, was notorious, and evidence to overthrow such a presumption should have appeared in the British Case and not in the Counter Case. In so far as a general claim to occupation and exercise of jurisdiction by the United States over the disputed territory is concerned, the fact is no doubt notorious, and the British Case has dealt with that general claim as fully as possible in the absence of information as to the specific acts upon which it is based. But when a general claim is in question, and until the facts upon which it is based are brought forward, it is impossible to deal with it except by a general denial supported by such general negative evidence as may be procurable. The case of the Indian affidavits cited in the Behring Sea case is not in point, as they were procured in support of specific allegations as to pelagic sealing which were notorious, and His Majesty's Government were fully aware, therefore, of the statements which they had to meet. There was substantially nothing in those affidavits which had not been discussed at length in the diplomatic correspondence, or in the volume of enquiry which preceded the arbitration. In that case, moreover, an extension of time wras readily conceded, and counter affidavits were, as a matter of fact, filed with the British Counter Case. The procedure therefore supports the claim now urged. In these circumstances the statement that the claim to an extension is not justified " on such grounds, as to grant it would permit the British Government to benefit through a condition created by its own negligence," has been noted with surprise. His Majesty's Government had no previous information nor means of procuring information as to the facts upon which the United States base their claim to occupation and exercise of jurisdiction in the disputed territory. These facts are for the first time brought to their notice in the United States Case, and the demand of the United States Government that His Majesty's Government should forego their right to examine the evidence adduced is to a demand that they should upon this issue allow the Tribunal to have only the evidence of one side before it. «/ To this His Majesty's Government cannot accede, and they cannot think that the United States Government will, on reconsideration, refuse to grant the extension expressly contemplated by the Convention and insist that the Tribunal shall be compelled to proceed without all the evidence on both sides before it. Should His Majesty's Government be disappointed in this expectation they would be fully justified in refusing to proceed further in the matter, and in any case they reserve their right to protest to the Tribunal against the reception of evidence to which the opportunity of reply had been denied them, and to claim permission to put in such evidence in rebuttal of the statements in the United States Case as they have been prevented from submitting with their Counter Case. K9 ALASKAN BOUNDARY TRIBUNAL. His Majesty's Government cannot bind themselves to any time for the opening of the oral argument. If the extension they now require is not granted, and the Tribunal meets in September, His Majesty's Government reserve the right to show cause before the Tribunal for the postponement of the oral argument on the ground that time hat> not been granted to complete and examine the evidence which should be dealt with in their Counter Case. I am, dear Mr. Secretary, sincerely yours, Arthur S. Raikes. Mr. Foster to Mr*. Sifton. July 2, 1903. Hon. Clifford Sifton, Agent of the British Government, before the Alaskan Boundary Tribunal. Sir: In accordance with the terms of the treaty of January 24, 1903, between the United States and Great Britain, and of the agreement between the two Governments, I transmit herewith, through the British Embassy in Washington, copies in duplicate of the printed Counter Case of the United States before the Alaskan Boundary Tribunal for the British Agent and the British members of the Tribunal, and twenty-two (22) additional copies for the use of yourself and British Counsel. I have the honour to be, with hi^h respect, your obedient servant, John W. Foster, Agent of the United States. Mr. Zoomis to Mr. Raikes. Department of State, Washington, July 2,1903. Dear Mr. Charge : Acting in the direction indicated by your personal note of the 28th ultimo, certified copies of the documents in the Russian and French languages, of which translations were appended to the Case of the United States, together with certified copies of certain diplomatic correspondence in the English language, also appended, will go in to-morrow's pouch for delivery to Mr. Sifton through the United States Embassy at London. I am, my dear Mr. Raikes, very truly yours, Francis B. Loomis. Arthur S. Raikes, Esquire, &c, &c, &c. Mr. Zoomis to Mr. Choate. No. 1225.1 K% July 2, 1903. His Excellency Joseph H. Choate, &c, &c, &c, Zondon. Sir : In accordance with an understanding reached by the Government of the United States and that of Great Britain, I transmit in CORRESPONDENCE SINCE TREATY OF 1903. 53 the pouch with this a package containing certified copies of documents m the Russian and French languages of which translations were appended to the case of the United States, together with certified copies of certain diplomatic correspondence in the English language, also appended, all of which documents are in the files and records of the Department of State.. It is desired to have you transmit the package to the Foreign Office for delivery to the British Agent with the enclosed communication «/ CD addressed to him from Mr. Lansing, the acting agent of the United States before the Alaskan Boundary Tribunal. I am, Sir, your obedient servant, Francis B. Loomis, Acting Secretary. Enclosure: Letter to British Agent. Accompaniment: A package. [Enclosure.] Mr. Lansing to Mr. Sifton. Washington, June 30, 1903. The Honourable Clifford Sifton, Agent for Great Britain before the Alaskan Boundary Tribunal. Sir : I have the honor, in accordance with the understanding reached between the Governments of the United States and Great Britain, to herewith deliver to you certified copies of documents in the Russian and French languages, of which translations were appended to the Case of the United States, together with certified copies of certain diplomatic correspondence in the English language, also appended, all of which documents are in the files and records of the Department of State. I have the honor to be, Sir, your obedient servant, Robert Lansing, Acting Agent of the United States before the Alaskan Boundary Tribunal. Mr. Raikes to Mr. Zoomis. British Embassy, Newport, R. I, July 3,1903. Sir : I have the honour to acknowledge receipt of your note of the 1st instant, transmitting the United States Counter Case in the Alaskan Boundary dispute, together with a communication from the Agent of the United States to the Agent of Great Britain. I have the honour to be, with the highest consideration, Sir, your most obedient, humble Servant, Arthur S. Raikes. The Honourable F. B. Loomis, Acting Secretary of State, dec, doc, <&c Mr. Choate to Mr. Hay. No. 1151.] American Embassy, Zondon, July 3,1903. Sir: With reference to my No. 1113 and to other correspondence, I have the honor to transmit herewith, under separate cover, seventeen copies (bound) of the British Counter Case in connection with 54 ALASKAN BOUNDARY TRIBUNAL. the Alaskan Boundary, together with seventeen copies of the Appendix to the same, Volume I., which have been sent to me by Mr. Sifton, His Britannic Majesty's Agent; also twelve additional copies (unbound) of the Counter Case and of the Appendix Volume I. and seven copies (bound) of Volume II. of the Appendix. I enclose also a copy of Mr. Sifton's letter, from which you will perceive that he regrets that he has no extra copies of the Album (Appendix Volume II.) to deliver, and explains, moreover, that the additional extra twelve copies of the Counter Case and Volume I. of the Appendix are sent unbound for the reason that the notice has been so short. I have the honor to be, Sir, your obedient Servant, Joseph H. Choate. Honorable John Hay, Secretary of State. Enclosures. 1. Mr. Sifton to Mr. Choate, July 2, 1903. 2. Mr. Sifton to Mr. Choate, July 3, 1903. Accompaniments. 1. 29 Volumes of British Counter Case, seventeen of which are bound. 2. 29 copies of Appendix to the same Volume I., seventeen of which are bound. 3. Seven copies of Volume II. of the Appendix (bound). [Enclosure 1.] Mr. Sifton to Mr. Choate. London, July 2, 1903. Your Excellency : I have the honor, pursuant to the Treaty and the arrangement made with the United States Agent to deliver to you seven copies of the Counter Case of His Majesty in the matter of the Alaska Boundary, together with seven copies of the Appendix to the same, Volumes I. and II. The additional extra twenty-two copies of the Counter Case and Volume I. of the Appendix will be delivered to-morrow, but as the notice has been so short, they must necessarily be delivered unbound. I am sorry to say that we have no extra copies of the Album (Appendix, Volume II.) to deliver. I have the honour to be, &c, Clifford Sifton, His Majesty's Agent before Alaskan Boundary Tribunal. Hon. Joseph H. Choate, &c, &c, &c. [Enclosure 2.] . Mr. Sifton to Mr. Choate. Hotel Cecil, July 8, 1903. Your Excellency : I have much pleasure in sending you herewith the twenty- two additional copies of the British Counter-Case and Appendix, ten bound and twelve unbound. I had not expected to be able to send any of these copies bound, but have had better fortune than was anticipated. I have the honour to be, &c. Clifford Sifton. H. M. Agent before the Alaskan Boundary Tribunal. Hon. Joseph H. Choate. United States Ambassador, 1, Carlton House Terrace, S. W. CORRESPONDENCE SINCE TREATY OF 1903. 55 Mr. Raikes to Mr. Zoomis. Personal.] British Embassy, Newport, R. I, July 5,1903. Dear Mr. Loomis: I hasten to acknowledge with thanks ^the receipt of your personal note of the 2nd instant informing me that certified copies of the documents in the Russian and French languages, of which translations were appended to the case of the United States, together with certified copies of certain diplomatic correspondence in the English language, also appended, were to be forwarded on July 3 for delivery to Mr. Sifton through the United States Embassy in London. I am, dear Mr. Loomis, yours very truly, Arthur S. Raikes. The Honourable Francis B. Loomis, Acting Secretary of State, dec, <&c, dec Mr. Zoomis to Mr. Raikes. Personal.] July 6,1903. My dear Mr. Charge : I am in receipt of your personal note of the 1st instant, in which you advance further considerations to support the application heretofore made for an extension of time for the delivery of the Counter Case before the Alaskan Boundary Tribunal. In view of the fact that your note discloses an intention to submit these considerations to the attention of the Tribunal, I might well be excused from discussing them further at this time but for two assertions in your note which cannot be passed by in silence, as they involve the honor and good faith of the Government of the United States. You state that you are directed by His Majesty's Principal Secretary for Foreign Affairs to make it known "that His Majesty's Government contend, and it is apparently not disputed by the United States Government, that, in appending to their case translations of documents on which they rely, the latter failed to comply with Article II. of the convention, which provides that documentary evidence should accompany the case." I beg to dissent in the most positive terms from the foregoing statement so far as it refers to the action of the Government of the United States. On the contrary, it has been most scrupulous in its action to comply with both the letter and the spirit of the Treaty; and it has been because of its desire to have the Treaty faithfully observed that it has not been able to accede to the requests of His Majesty's Government, which had no support in the provisions of that instrument. The further statement that the "evidence upon which the United States rely," " they [the United States] announce will not be open for examination until after the delivery of the Counter Case," I respectfully submit is not a just statement of the action of this Government. You will recall that on May 29 last application was made on behalf 56 ALASKAN BOUNDARY TRIBUNAL. 55 of the British Agent for a personal examination of the greater part of the evidence produced in the case of the United States, and that on June 4 your Embassy was informed that the British Agent or his representative "will be given full opportunity to examine and verify the originals in the exclusive possession of this [the United States] Government of anything contained in the Case of the United States under a proviso which subsequent events demonstrated to be a wise one. On June 12 your Embassy made known the objection of the Foreign Office to this proviso, and under date of June 16 your Embassy was advised that the restriction would be removed, and 1 that the British Agent or his representative would be permitted at his convenience to examine all the documents adduced in the case of the United States to which reference is made," etc. Not until twTo weeks after that notice was given was your telegram of June 26 received, in which you communicated the inquiry of the British Agent, whether the documents were ready to exhibit. The reply sent,. June 27, was that they would be ready any time after July 3. This delay of six days was occasioned by the fact that the officials who w^ere familiar with the documents were absorbed in the preparations for the delivery of the Counter Case of the United States, which under the terms of the Treaty had to be made on July 3. The foregoing recital will show upon what foundation was based the declaration that the documents in question were not open for examination until after the delivery of the Counter Case. Having shown the scrupulous good faith of the United States on the points animadverted to by His Majesty's Secretary for Foreign Affairs, the Government of the United States, entertaining no disposition to prejudice the deliberations of the Tribunal,will omit further discussion of the considerations advanced in your note of the 1st instant. I am, my dear Mr. Raikes, very sincerely yours, Francis B. Loomis. Mr. Arthur S. Raikes, &c, &c, &c. Mr. Raikes to Mr. Zoomis. Personal.] British Embassy, Newport, R. I., July 6, 1903. Dear Mr. Loomis: I have the honour to inform you that I have received a telegram from Mr. Sifton stating that Mr. Pope will arrive in Washington on July 7 in order to inspect the documents of which use has been made in the preparation of the United States Case to be laid before the Alaska Boundary Tribunal. I have the honour to be, dear Mr. Loomis, yours very truly, Arthur S. Raikes. The Honourable Francis B. Loomis, Acting Secretary of State, dec, dec, &c. correspondence SINCE TREATY OF 1903. 57 Mr. Raikes to Mr. Zoomis. British Embassy, Newport, R. I, July 9,1903. Dear Mr. Acting Secretary: I have the honour to acknowledge the receipt of your personal note of July 6 in reply to my communication" of the 1st instant advancing further considerations in support of the application of His Majesty's Government for an extension of time for the delivery of the Counter Case before the Alaskan Boundary Tribunal. I have forwarded a copy of your communication to the Marquis of Lansdowne. Believe me to be, dear Mr. Loomis, yours very truly, / 7 »/ ft/ ft/ / Arthur S. Raikes. The Honourable Francis B. Loomis, Acting Secretary of State, dec, dec, <&c Mr. Pope to Mr. Cartwright. The Arlington, Washington, D. C, July 14,1903. Sir: As I have almost completed my examination of the papers you have placed at my disposal for that purpose, and as the progress of photographing the Russian and other documents is accomplished, I think it desirable that I should briefly indicate to you what is still required in order exactly to fulfil the tenour of my instructions. These instructions direct me to apply to the United States Government for permission to,examine and photograph the originals of certain letters and other documents contained in the appendix to the case of the United States before the Alaska Boundary Tribunal. The letters and documents which I am charged specially to examine fall under the following heads:— CD 1. Diplomatic correspondence leading up to the Treaty of 1825. 2. Papers relating to the claim of Russian occupation up to 1867. 3. Papers adduced in support of the claim of United States occupation sub sequent to 1867. 4. Miscellaneous documents. In regard to the two last-named divisions of the subject, I appear either to have had communication of the original documents or to CD have been furnished with explanations for their non-production, and in the latter cases I have, wrhen practicable, been supplied with copies from the official records. As regards the lengthy report of William Gouverneur Morris, Special Treasury Agent, dated 7 September, 1881, extracts from wThich are printed in the appendix to the United States Case, pp. 461 et seq., you have been good enough to promise that, should occasion arise,^and upon his application, the British Agent shall be furnished with the full text of that document. Having reference, however, to those documents dealing with the claim of Russian occupation, of the originals of some of which I have been enabled to photograph, I desire to draw your attention to 58 ALASKAN BOUNDARY TRIBUNAL. the fact that a number of these documents (specified in memorandum, marked "A," attached to this letter) purport to be copies made at St. Petersburg and certified to by the Russian Foreign Office. With regard also to those portions of the diplomatic correspondence enumerated in memorandum marked "B," herewith attached, I observe that they purport to be copies certified to by the Secretary of the United States Embassy at St. Petersburg, of documents of record in the Russian archives at the time at which the certificate was given. In order to preclude any misunderstanding in the future, I should like to make it clear that my application to be permitted to examine and photograph original documents on behalf "of the British Agent, includes the originals of those documents set out in schedules "A" and " B " herewith attached, and to enquire whether you are in a position to comply with that portion of my request. I cannot leave Washington without thanking you for your kind assistance and unfailing courtesy, which have done so much to ^D «/ / facilitate the execution of a somewhat laborious and delicate duty. I have the honour to be, Sir, your obedient Servant, Joseph Pope. Otis T. Cartw^right, Esq., Department of State, Washington, D. C. [Enclosures.] "A." Memorandum of documents relating to Russian Occupation of Alaska up to 1867, copies of which, certified to by the Russian Foreign Office, Mr. J. Pope, as representing the British Agent, was given communication at Washington, July, 1903. Page in Appendix to United States Case. 1. Governor Simpson to Manager Russian-American Company. 20th March, 1829. 259-60 Hudson Bay Company to Russian-American Company. 16th December, 1829. 260-1 Director Severin to Minister of Finance. 27th February, 1830. 261-2 Manager Drujinin to Minister of Finance. 5th March, 1830. 262-4 Report of Directors of Russian-American Company. ~ 14th November, 1835. 282-5 Board of Directors of Russian-American Company to the De- 2. o o. 4. 5. 6. 7. 8. 9. 10. 11. partment of Trade and Commerce. Count Nesselrode to British Ambassador. Mr. Milbanke to Count Nesselrode. Count Nesselrode to Mr. Milbanke. Count Nesselrode to Count Kankeen. Mr. Milbanke to Count Nesselrode. 3rd January 10th March, 13th July, 28th April, 9th December, 6th October, 1836. 1837. 1837. 1838. 1838. 1838. 12. Report of Board of Directors, Russian-American Company. 20th December, 13, Count Nesselrode to Count Kankeen. 4th January, 1839, 1839. 289-91 292-3 296-7 297-302 307-8 304-7 309-11 312 CORRESPONDENCE SINCE TREATY OF 1903. 59 B Memorandum of portions of diplomatic correspondence relating to the Treaty of 1825, of which copies, certified to by the Secretary of the United States Embassy at St. Petersburg, under date 18th July, 1898, were communicated to Mr. J. Pope, as representing the British Agent at Washington, July, 1903. Page in Appendix to United States Case. 112 21 October, 2 November, 1822. 1. Baron Tuyll to Count Nesselrode 2. M. Poletica to Count Nesselrode. Admiral Mordvinof to Count Nesselrode. 30 February/3 March, 1824. Count Lieven to Count Nesselrode. 20 May/1 June, 1824. Count Lieven to Count Nesselrode. 21 May/2 June, 1824. Count Lieven to Count JNesselrode. 13/25 July, 1824. 7. Explanations with regard to Contre-projet. 8. Count Lieven to Count Nesselrode. 19 September/1 October, 1824. 9. Contre-projet submitted by S. Canning. 1 February/13 February, 1825. 10. S. Canning's Contre-projet as altered and corrected by Matusevich. 3. 4. 6. 3 November, 1823. 132-7 152-3 175-7 179 185-6 205 213- 11. Count Nesselrode to Count Lieven. 12. Count Lieven to Count Nesselrode. 20 February/3 March, 1825. 8/20 May, 1825. Mr. Cartwright to Mr. Pope. Department of State, Washington, July 14, 1903. Sir : I have the honour to acknowledge the receipt of your letter of even date relative to the examination of documents from which have been derived certain printed texts in the Appendix to the Case of the United States, for the inspection of which permission was granted the Agent of Great Britain. You state the following as the sub-divisions of the documents which you have been charged to examine : 1. Diplomatic correspondence leading up to the Treaty of 1825. 2. Papers relating to the claim of Russian occupation up to 1867. 3. Papers adduced in support of the claim of United States occupation sub sequent to 1867. 4. Miscellaneous documents. In regard to the two last-named divisions of the subject, you state that it appears you have either had communication with the original documents, or have been furnished with explanations for their non- production, and that in the latter cases you have, when practicable, been supplied with copies from the official records. I confirm your statement in the foregoing paragraph, but remark that, except in a few instances, the original documents or press copies have been placed before you for inspection. In this connection I beg leave to reserve to the Agent of the United States the privilege of providing the Agent of Great Britain with certified copies of such originals, not at hand at this present inspection, as may be found upon further examination of the records and archives of the various Departments of the Government or elsewhere. S. Doc. 162, 58-2, vol 5- -27 60 ALASKAN BOUNDARY TRIBUNAL. 55 Relative to the report of William Gouverneur Morris, Special Treasury Agent, dated December 7, 1881, extracts from which are printed on pages 461 et seq., I confirm your statement that I have promised that, should occasion arise, and upon his application, the British Agent shall be furnished with the full text (a copy, this is understood to mean) of that document. The right is reserved, however, to except from such copy any portion or portions plainly not relevant or material, and whose publication would not be of benefit to either Government in the present case. Relative to the annexed list of Russian documents marked "A, which, you observe, purport to be certified copies made at St. Petersburg and certified to by the Russian Foreign Office, I beg to state that certified copies of the documents in the aforesaid list (together with other certified copies of documents) were furnished the Agent of Great Britain on the 2nd instant, under the seal of the Department of State of the United States; that each and every such certified copy bears at its close a certificate showing its official character and the source from which it emanated. Relative to the annexed list of Russian documents marked | B," which, you observe, purport to be copies certified to by the Secretary of the United States Embassy at St. Petersburg, of documents on record in the Russian archives at the time the certificate was given, I have to state that this certificate, a photographic reproduction of which you have now in your possession, shows the source from which the certified copies of the documents enumerated in the annexed list marked " B " are derived. You state that you desire to make it clear that your application to be permitted to examine and photograph original documents on behalf of the British Agent includes the originals of those documents "3t out in the annexed lists marked "A" and " B," and you inquire whether I am in a position to comply with that portion of your request. I have to state in reply that the foregoing explanation of the nature and source of the copies of documents enumerated in the lists "A" and " B I shows their non-possession at this time by the United States. I am, therefore, unable to comply with that portion of your request, observing, however, that the original certified copies of these documents are in the possession of the United States, and are and have been subject to your inspection. In closing, I have to thank you for your kindly words of approbation of my conduct during the now completed inspection. Under circumstances of this present nature, an unvarying course of action must of necessity be followed, but I am glad to say that it has been not only a duty but a pleasure as well to afford you such assistance and courtesies as have been possible. I have the honour to be, Sir, your obedient Servant, Otis T, Cartwright, Honourable Joseph Pope, Arlington Hotel, City. CORRESPONDENCE SINCE [Enclosures.] "A." Page in Appendix to United States Case. 1. Governor Simpson to Manager Russian-American Company, 20th v March, 18291 259-60 2. Hudson Bay Company to Russian-American Company, 1st December, 1829 260-1 3. Director Severin to Minister of Finance, 27th February, 1830 261-2 4. Manager Drujinin to Ministry of Finance, 5th March, 1830 262-4 5. Report of Directors of Russian-American Company, 14th November, 1835 282-5 6. Board of Directors of Russian-American Company to the Department of Trade and Commerce, 3rd January, 1836 289-91 7. Count Nesselrode to British Ambassador, 10th March, 1837 292-3 8. Mr. Milbanke to Count Nesselrode, 13th July, 1837 396-7 9. Count Nesselrode to Mr. Milbanke, 28th April, 1838 297-302 10. Count Nesselrode to Count Kankreen, 9th December, 1838 307-8 11. Mr. Milbanke to Count Nesselrode, 6th October, 1838 304-7 12. Report of Board of Directors Russian-American Company, 20th Decem ber, 1839 309-11 13. Count Nesselrode to Count Kankreen, 4th January, 1839 312 " B." 1. Baron Tuyll to Count Nesselrode, 21 October/2 Nov. 1822 112 2.-M. Poletica to Count Nesselrode, 3 November, 1823 132-7 3. Admiral Mordvinof to Count Nesselrode, 20 Feby./3 March, 1824 152-3 4. Count Lieven to Count Nesselrode, 20 May/1 June, 1824 176-7 5. Count Lieven to Count Nesselrode, 31 May/2 June, 1824 179 6. Count Lieven to Count Nesselrode, 13/25 July, 1824 185-6 7. Explanations with regard to contre-projet 205 8. Count Lieven to Count Nesselrode, 19 September/1 Oct. 1824 207 9. Contre-projet submitted by S. Canning, 1 Feb./13 Feb., 1825 213-15 10. S. Canning's contre-projet as altered and corrected by Matusevich 218-220 11. Count Nesselrode to Count Lieven, 20 February/3 March, 1825 225 12. Count Lieven to Count Nesselrode, 8/20 May, 1825 229-230 Mr. Choate to Mr. Hay. No. 1157.] American Embassy, Zondon, July 20,1903 Sir : With reference to your instruction No. 1125 of the 2nd instant, which enclosed certified copies of documents in the Russian and French languages, of which translations are appended, to the Case of the United States under the Alaskan Boundary Convention, together with certified copies of documents in the English language, and a communication addressed to the Hon. Clifford Sifton, I have the honour to enclose herewith a copy of a Note from the Foreign Office, dated the 16th instant, acknowledging the receipt of the documents in question. I have the honour to be. Sir, your obedient Servant, Joseph H. Choate. The Hon. John Hay, &c, &c, &c. Enclosure: Lord Lansdowne to Mr. Choate, July 16, 1903. 62 ALASKAN BOUNDARY TRIBUNAL. [Enclosure.] Zord Zansdowne to Mr. Choate. Foreign Office, July 16, 1903. Your Excellency: I have the honour to acknowledge the receipt of Your Excellency's Note of the 13th instant forwarding certified copies of documents in the Russian and French languages, of which translations are appended, to the Case of the United States under the Alaskan Boundary Convention, together with certified copies of certain diplomatic correspondence in the English language, and a communication addressed to the Honourable Clifford Sifton. I have the honour to be, &c. (for the Marquess of Lansdowne), F. H. Villiers. His Excellency the Honourable J. H. Choate, &c, &c, &c. Mr. Raikes to Mr. Zoomis. British Embassy, Newport, R. I. July 28, 1903. Sua: With reference to Sir Michael Herbert's Xo. 59 of March 19 last, it is my sad duty to inform you that the Honorable John Douglass Armour, Judge of the Supreme Court of Canada, died in London on the 11th inst. In compliance with instructions which I have received from the Marquess of Lansdowne I have the honor to inform you that Mr. Aylesworth, K. C, of Toronto has been selected as one of the three British Members of the Alaska Boundary Tribunal in place of the late Judge. I have the honor to be, Sir, with high consideration, your most obedient Servant, Arthur S. Raikes. The Honorable F. B. Loomis, Acting Secretary of State. Mr. Zoomis to Mr. Choate. No. 1242.] y|^ August 4, 1903. I lis Excellency Joseph H. Choate, &c, &c, &c, Zondon. Sir: I enclose Volume II. of the certified copies of documents delivered to the Agent of Great Britain in the matter of the Alaskan Boundary Arbitration. The volume is similar to one heretofore transmitted in the case This one contains certified type-written copies of documents in the Russian and French languages, translations of which were appended to the Counter Case of the United States in the matter referred to. In accordance with the wish of the United States Agent, you are "W CORRESPONDENCE SINCE TREATY OF 1903. 63 instructed to forward this volume to the British Agent before the Tribunal, the Honourable Clifford Sifton. I am, Sir, your obedient Servant, Francis B. Loomis, Acting Secretary. Enclosure as above. Mr. Sifton to Mr. Foster. Ottawa, July 29, 1903. Dear Sir : In view of the fact that the time for the delivery of the written argument in the Alaskan Boundary proceedings Is approaching, it seems desirable that, if possible, an understanding should be arrived at as to the date when the Tribunal will meet for the hearing of oral argument, and I am now addressing you with the purpose of endeavouring to reach such an understanding. Assuming that the arguments will be delivered in the same manner as the Cases and the Counter Cases, the arguments upon the American side will reach London about the 11th or 12th of September. Time will then be required for the consideration of the argument and preparation for oral argument. It would seem, therefore, that about October 15th would be a suitable time for the preliminary meeting of the Tribunal to organize, settle questions of procedure, fix the time when oral argument will be proceeded with, and also deal with any other questions that may be presented by either party for consideration. I would be pleased to know, through you, whether the course above suggested meets with the views of the American members of the Tribunal. On account of the fact that the Tribunal is not yet organised, and there has therefore been no method settled for bringing such questions before it, I am enclosing under cover to you for the American members of the Tribunal copies of this communication. I have the honour to be, Sir, your obedient Servant, Clifford Sifton, Agent for His Britannic Majesty. Honourable John W. Foster, Agent for the United States before the Alaska Boundary Tribunal, Washington, D. C. Mr. Foster to Mr. Sifton. Alaskan Boundary Tribunal, Agency of the United States, Henderson Harbor, N. Y., August 4, 1903. Hon. Clifford Sifton, Agent for His Britannic Majesty, Ottawa, Canada. Dear Snt: I have had the honor to receive, forwarded from Washington to this place, your letter of July 29, postmarked Ottawa, July 31, in which you suggest that about October 15 would be a suitable time for the prenmina^ meeting of the Tribunal to organize, settle 64 ALASKAN BOUNDARY TRIBUNAL. question:-; of procedure, fix (he time when oral argument will be proceeded '\vi(h, and deal with any oilier questions that may be presented. And you desire to know, through me, whether the course suggested meets with the views of the American members of the Tribunal; and to this end you enclose under cover to me for the American members of (he Tribunal copies of your letter of the 29th ultimo. I must in the first place direct your attention to the fact that your proposition seems to be based in part upon an erroneous assumption. You say: "Assuming that the [printed] arguments will be delivered in the same manner as the Cases and Counter Cases, the argument upon the American side will reach London about the 1 llh or 12th of September." The British Government was advised more than two months ago that the printed argument of the United States would be delivered in London in time for a meeting of the Tribunal on September 3. Under date of May 20, Ambassador Choate telegraphed the Secretary of State that he had urged upon the British Government the meeting of the Tribunal on 3rd of September to hear or arrange for an early oral argument. Under date of June 19, Mr. Choate addressed a note to the Hon. Sir Robert Finlay, Attorney- General of England and Senior British Counsel before the Tribunal, in which he stated thai the printed Argument would be delivered on September 3, and he at the same time proposed that the oral argument begin September 10. Your absence from London may have prevented you from becoming fully conversant with the foregoing I • CD * ^D CD facts, but the British Government has not been ignorant of the intention of the United States to deliver its printed Argument at London on or before September 3. I will endeavour to comply as promptly as possible with jrour request to transmit a copy of your letter to me of July 29 to the American members of the Tribunal, but I regret to say that it will require some time to reach them. As has been announced in the public press, (wo of these members have already sailed from New York, and the third member is about to take passage, in order to be in London in due season for the convening of the Tribunal on the 3rd proximo. Some delay must therefore occur before I can satisfy your desire to be informed of (he views of the American members of the Tribunal on your proposition. I may, however, remind you that the communications already passed between the two Governments must have indicated to you what views they will entertain upon the subject. Their expectation as to the time for the assembling of the Tribunal is shown in the communications of Mr. Choate above cited. In his letter of June 19 to Sir Robert Finlay he urged an early date for the oral argument, as he had explained to him verbally that there was a necessity that the American members of the Tribunal should return to the United States at any rate by the end of October. In March last, when Sir Michael Herbert suggested an extension of time for the delivery of the Cases, he was informed by the Secretary of State that such extension was not compatible with the official engagements of the American members of the Tribunal. In your communication to me of May 15 last you asked for an extension of time for the delivery of the Counter Case. You will recall that in my telegraphic reply of May 25, I said the "American members of Tribunal say impossible to consent because of special session of Con- 'X, CORRESPONDENCE SINCE TREATY OF 1903. 65 gress as heretofore stated to British Ambassador." When the Ambassador, under date of June 12, renewed the request for an extension of time for the delivery of the Counter Cases, the Secretary of State, in his note of June 16, reiterated these reasons, and he added the further statement that when the treaty of January 24, creating the Tribunal was being negotiated, the British Ambassador was informed that it was the President s wish that the Tribunal should conclude its labours within the time indicated, and for this reason the periods for the different stages of the proceedings could not be extended. I may add that it is the expectation of the United States Agency Staff and Counsel to sail from New York on the 21st instant, and to reach London in time to deliver the printed Argument in that city and to attend the assembling of the Tribunal on the 3rd day of September. I am, with great respect, your obedient Servant, John W. Foster, Agent of the United States before the Alaskan Boundary Tribunal. Mr. Zoomis to Mr. Choate. [Telegram.] August 4, 1903. Choate, Ambassador, Zondon. General Foster has received from Sifton, British Agent, a letter dated Ottawa, July 29, in which he suggests that about October 15 w7ould be a suitable time for preliminary meeting of Tribunal to organize, settle questions of procedure, fix time when oral argument will begin, and deal with any other questions presented. He encloses copies of the letter to me to be forwarded to American members of Tribunal, and asks me to obtain their views on the proposition. General Foster has answered him by letter, stating that more than three months ago Ambassador Choate informed British Government that our printed argument would be delivered in London by September 3rd, and that it wras desired that oral argument should begin as soon after that date as possible, and in a letter June 19th to Attorney- General Finlay he repeated this notice, and stated that the American members of the Tribunal must return to the United States not later than last of October. That Sifton's absence from London may have prevented him being conversant with these facts, but British Government was fully informed. General Foster stated that it was difficult for him to communicate promptly with American members, as two had already sailed for London, and third about to sail in order to be in season for the expected session September 3rd. He, Sifton, must, however, have been informed by the communications of our Government that the American members could not agree to his proposition. General Foster reiterated the various communications, showing their official duties would not admit of any postponement of periods named in Treaty, and notified Sifton that our printed argument would be delivered in London on 3rd September, and. that American Agent and Counsel expect to sail for London the 21st instant. 66 , ALASKAN BOUNDARY TRIBUNAL. You will address to the Foreign Office a note repeating the notice already given to the British Government that the Government of the United States earnestly desires and expects the Tribunal to assemble September 3, and will say, furthermore, that the President will find himself unable to consent to any further postponement. Francis B. Loomis, Acting Secretary. Mr. Choate to Mr. Hay. [Telegram.] No. 53.] London, August 7,1903. Secretary of State, Washington. Referring to your telegram of the 5th [4th] August it is agreed that Tribunal shall meet on September 3rd. Choate. Mr. Raikes to Mr. Zoomis. British Embassy, Newport, August 10,1903. Dear Mr. Acting Secretary : I have just received a telegram from Lord Lansdowne instructing me to apply on behalf of JMr. Clifford Sifton for permission to inspect, photograph, or make certified copies of the original Russian documents, translations of which are given in the Appendix to the Counter Case of the United States before the Alaska Tribunal on pages 1 to 35 and pages 84 and 85. The British Agent also desires permission to make copies of the plans or maps to which reference is made on pages 12, 80, and 85. Mr. Clifford Sifton supposes that it will be possible to inspect in London, in the course of the hearing before the Tribunal, the originals of the numerous depositions of which copies are contained in the Appendix to the United States Counter Case, and I am directed by Lord Lansdowne to enquire whether the British Agent is correct in his supposition that these documents will then be made available for inspection. Believe me, dear Mr. Acting Secretary, yours very truly, Arthur S. Raikes. The Honourable Francis B. Loomis, &c, &c, &c. Mr. Zoomis to Mr. Raikes. Department of State, Washington, August 14, 1903. My Dear Mr. Charge: I have the honour to acknowledge the CD receipt of your note of the 10th instant, applying, on behalf of Mr. Clifford Sifton, for permission to inspect, photograph or make certified copies of the original Russian documents, translations of which SJ CORRESPONDENCE SINCE TREATY OF 1903. 67 are given in the Appendix to the Counter Case of the United States before the Alaskan Boundary Tribunal, and stating that the British Agent desires permission to make copies of certain plans or maps mentioned therein. You also inform me that Mr. Sifton supposes that the originals of the numerous depositions printed in the Appendix to the Counter Case will be available for inspection in London during the course of the hearing before the Tribunal. In reply, I have the honor to inform you that all the documents produced in the Case and Counter Case of the United States required to be used in London are now being packed for transportation, and that in view of the early departure of the Agent of the United States for London, and of the necessity that all books, documents, maps, &c, be transported at the same time, it is now too late to have the inspection requested take place in Washington, but that ample facilities will be afforded in London for the inspection of all documents the production of which he [the British Agent] is entitled to ask. I am, &c, Francis B. Loomis. Mr. Choate to Mr. Hay. [Telegram.] London, August 14-, 1903. Secretary of State, Washington. Arranged that first meeting of Alaskan Boundary Commission shall be at Foreign Office at eleven o'clock, September third. Please notify Secretary Root, General Foster, and all the counsel. Choate. Draft Arbitration Convention. Convention between the United States of America and the United Kingdom of Great Britain and Ireland for determining by Arbitration the true T? and the British 1 reaty-boundary between the Territory of Alaska Possessions in North America. (Communicated unofficially by Mr. Hay and forwarded by Lord Pauncefote, May 10, 1901.) The United States of America and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, equally desirous for the friendly and final adjustment of the differences which exist between them in respect to the true meaning and application of certain clauses of the Convention between Great Britain and Russia, signed the 16th (28th) February, 1825, wThich clauses relate to the delimitation of the boundary-line between the British possessions in North America and the territory of Alaska, now a possession of the United States, in virtue of the cession thereof to the United States by Russia by the Convention between the last-named Powers, signed at Washington, the 30th March, 1867, wherein said clauses are embodied as defining the said territory so ceded, have resolved to provide for .the submission of the questions as hereinafter stated to arbitration, and to that end have appointed their respective Plenipotentiaries as followrs:— The President of the United States of America, the Honourable John Hay, Secretary of State of the United States; and Her Britannic Majesty, the Right Honourable Lord Pauncefote, G. C. B., G. C. M. G., Her Britannic Majesty's Ambassador Extraordinary and Plenipotentiary: Who, after an exchange of their full powers, which were found to be in good and due form, have agreed upon the following Articles:— ARTICLE I. An Arbitral Tribunal shall be immediately appointed to consider and decide the questions.set forth in Article IV of this Convention. The said Tribunal shall consist of six impartial jurists of repute, each of whom shall before entering upon his duties subscribe an oath that he will impartially consider the arguments and evidence presented to the Tribunal and decide thereupon according to his irue judgment. Three members of the Tribunal shall be appointed by the President of the United States and three by Her Britannic Majesty. All questions considered by the Tribunal, including the final Award, shall be decided by a majority of all the Arbitrators. In case of the refusal to act, or of the death, incapacity, or absten- 3 4 ALASKAN BOUNDARY TRIBUNAL. tion from service of any of the persons so appointed, another impartial jurist of repute shall be forthwith appointed in his place by the same authority which appointed his predecessor. The Arbitrators may appoint a Secretary, and such other officers as may be requisite to assist them, and may employ scientific experts, if found to be necessary; fixing a reasonable compensation for such officers and such experts. The Tribunal shall keep an accurate record of all its proceedings. Each of the High Contracting Parties shall make compensation for the services of the Arbitrators of its own appointment, and of any Agent, Counsel or other person employed in its behalf, and shall pay all costs incurred in the preparation of its Case. All expenses reasonably incurred by the Tribunal in the performance of its duties shall be paid by the respective Governments in equal moities. The Tribunal may, subject to the provisions of this Convention, establish all proper rules for the regulation of its proceedings. ARTICLE II. Each of the High Contracting Parties shall also name one person to attend the Tribunal as its Agent to represent it generally in all matters connected with the arbitration. The written or printed Case of each of the two Parties, accompanied by the documents, the official correspondence, and all other evidence in writing or print on which each Party relies, shall be delivered in duplicate to each of the Arbitrators, and to the Agent of the other Party, as soon as may be after the organization of the . %7 7 _ %J CD Tribunal, but within a period not exceeding months from the date of the exchange of ratifications of this Treaty. Within four months after the delivery on both sides of the written or printed Case, either Party may, in like manner, deliver in duplicate to each of the Arbitrators, and to the Agent of the other Party, a Counter-Case, and additional documents, correspondence, and evidence in reply to the Case, documents, correspondence, and evidence so presented by the other Party. The Tribunal may, however, extend this last-mentioned period when, in their judgment, it becomes necessary by reason of special difficulties which may arise in the procuring of such additional papers and evidence. If, in the case submitted to the Tribunal, either Party shall have specified or referred to any report or document in its own exclusive possession without annexing a copy, such Party shall be bound, if the other Party shall demand it, to furnish to the Party applying for it a duly certified copy thereof; and either Party may call upon the other, through the Tribunal, to produce the original or certified copies of any papers adduced as evidence, giving in each instance such reasonable notice as the Arbitrators may require. Each Party may present to the Tribunal all pertinent evidence, documentary, historical, geographical, or topographical, including maps and charts, in its possession or control which it may deem applicable to the rightful decision of the questions submitted; and if it appears to the Tribunal that there is evidence pertinent to the case in the possession of either Party, and which has not been pro- CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 0, duced, the Tribunal may in its discretion order the production of the same by the Party having control thereof. It shall be the duty of each Party through its Agent or Counsel, within two months from the expiration of the time limited for the delivery of the Counter-Case on both sides, to deliver in duplicate to each of the said Arbitrators and to the Agent of the other Party a written or printed Argument showing the points and referring to the evidence upon which his Government relies. The Tribunal may, if they shall deem further elucidation with regard to any point necessary, require from either Party a written, printed, or oral Statement or Argument upon the point; but in such case the other Party shall have the right to reply thereto. article ih. It is agreed by the High Contracting Parties that the Arbitral Tribunal shall consider in the settlement of the questions submitted to its decision the Conventions respectively concluded between His Britannic Majesty and the Emperor of All the Russias under date of the 16th (28th) February, a. d. 1825, and between the United States of America and the Emperor of All the Russias concluded under date of the 18th (30th) March, a. d. 1867; and particularly the Articles III, IV, V, and VII of the first-mentioned Convention, which in the original text are word for word as follows:— CD " III. La ligne de demarcation entre les possessions des Hautes Parties Contractantes i-ur la cote du Continent et les lies de 1'Amerique Nord-Ouest, sera tracee ainsi qu'il suit:— "A partir du point le plus meridional de File dite Prince of Wales, lequel point se trouve sous le parallele du 54° 40' de latitude nord, et entre le 131e et le 133e degre de longitude ouest (meridien de Greenwich), la dite ligne remontera au nord le long de la passe dite Portland Channel, jusqu'au point de la terra ferme ou elle atteint le 56e degre de latitude nord; de ce dernier point la ligne de demarcation suivra la crete des montagnes situees parallelement a la cote, jusqu'au point d'intersection du 141e degre de longitude ouest (mgme meridien) : et flnalement, du dit point d'intersection, la m§me ligne meridienne du 141e degre formera, dans son prolongement jusqu'a la Mer Glaciale. la limite entre les possessions Russes et Britanniques sur le Continent de PAmerique Nord-Ouest. " IV. II est entendu, par rapport a la ligne de demarcation d6terminee dans 1'Article precedent: " 1. Que l'ile dite Prince of Wales appartiendra tout entieire h la Russie. " 2. Que partout ou la crete des montagnes qui s'etendent dans une direction parallele a la cote depuis le 56e degre de latitude nord au point d'intersection du 141e degr§ de longitude ouest, se trouverait a la distance de plus de 10 lieues marines de l'ocean, la limite entre les possessions Britanniques et la lisiere de c6te mentionnee ci-dessus comme devant appartenir a la Russie, sera formee par une ligne parallele aux sinuosites de la cQte, et qui ne pourra jamais en 6tre eloignee que de 10 lieues marines. " V. II est convenu, en outre, que nul etablissement ne sera forme par Tune des deux Parties dans les limites que les deux Articles prececlens assignent aux possessions de l'autre. En consequence, les sujets Britanniques ne formeront aucun etablissement soit sur la cote, soit sur la lisiere de terre ferme comprise dans les limites des possessions Russes, telles qu'elles sont designees dans les deux Articles prec£dens; et, de in§me, nul etablissement ne sera form§ par des sujets Russes au del& des dites limites. " VII. II est aussi entendu que, pendant 1'espace de dix ans, a dater de la signature de cette Convention, les vaisseaux des deux Puissances, ou ceux appar- tenans a leurs sujets respectifs, pourront reciproquement frequenter, sans entrave quelconque, toutes les mers interieures, les golfes, havres, et criques sur la c6te mentionnee dans l'Article III, afin d'y faire la p§che et le commerce avec les indigenes." 6 ALASKAN BOUNDARY TRIBUNAL. The Arbitrators shall also take into consideration any action of the several Governments, or of their respective Representatives, preliminary or subsequent to the conclusion of said Treaties, so far as the same tends to show the intendment of the Parties in respect to the limits of their several territorial jurisdictions under and by virtue of the provisions of said Treaties. ARTICLE IV. The said Tribunal shall answer and decide the following questions :— 1. Refering to Article III of said Treaty of 1825 between Great Britain and Russia, was it intended thereby that the line of demarca- 7 %j tion should be traced from the southernmost point of the island, nowr known as the Prince of Wales Island, along the parallel of 54° 40' north latitude to the passage now commonly known and marked on the maps as the " Portland Channel," and thence along the middle of said channel northward until said northward line shall reach on the mainland of the continent the 56th degree of north latitude? If not, how should said line be traced to conform to the provisions of said Treaty ? 2. In extending the line of demarcation northward from said point on the parallel of the 56th degree of north latitude, following the crest of the mountains situated parallel to the coast until its intersection with the 141st degree of longitude west of Greenwich, subject to C3 CD 7 u the condition that when such line should exceed the distance of 10 marine leagues from the ocean, then the boundary between the British and the Russian territory should be formed by a line parallel to the sinuosities of the coast, and distant therefrom not more than 10 marine leagues, was it the intention and meaning of said Convention of 1825 that there should remain in the exclusive possession of Russia a continuous fringe or strip of coast on the mainland, 10 marine leagues in width, separating the British possessions from the bays, ports, inlets, havens, a"nd waters of the ocean, and extending from the said point of the 56th degree of latitude north to a point where such line of demarcation should intersect the 141st degree of longitude west of the meridian of Greenwich ? If not, how should said line of demarcation be traced to conform to the provisions of said Treaty? article v. The Arbitrators shall assemble for their first meeting at so soon as practicable after receiving their commissions, and shall themselves fix the time and places of all subsequent meetings. The decision of the Tribunal shall be made so soon as possible after the conclusion of the arguments in the Case, and within three months thereafter, unless the President of the United States and Her Britannic Majesty shall by common accord extend the time therefor. The decision shall be made in writing and dated, and shall be signed by the Arbitrators assenting to the same. It shall be signed in duplicate, one copy whereof shall be given to the Agent of the United States of America for his Government, and the other to the Agent of Her Britannic Majesty for his Government, CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 7 ARTICLE VI. When the High Contracting Parties shall have received the decision of the Arbitrators upon the questions submitted, as provided in the foregoing Articles, they will at once proceed with negotiations for the final adjustment and demarcation of the said boundary-line in conformity with such decision. Should there be unfortunately a failure by the majority of the Arbitrators to agree upon any of the points submitted for their decision, it shall be their duty to so report in writing to the respective Governments through their respective Agents. Should there be an agreement by a majority upon a part of the questions submitted, it shall be their duty to sign and report their decision upon the points of such agreement in the manner hereinbefore prescribed. article vh. The present Treaty shall be ratified by the President of the United States, by and with the advice and consent of the Senate, and by Her Britannic Majesty, and the ratifications shall be exchanged in Washington or in London so soon as the same may be effected. In faith whereof we, the respective Plenipotentiaries, have signed this Treaty, and have hereunto affixed our seals. Done at Washington, in duplicate, this day of , A. D. nineteen hundred. The Marquess of Zansdowne to Zord Pauncefote. Foreign Office, February 5, 1902. My Lord: His Majesty's Government have carefully considered, in communication with the Government of Canada, the draft Convention communicated to your Excellency, unofficially, by Mr. Hay in */ \7 7 1/ / */ %J May last, which provides for the submission to arbitration of the Alaska boundary dispute. While most anxious to reach a solution of this long-pending question by means of arbitration, they find themselves compelled to dissent from the terms proposed in the following points:— Article I. As regards the composition of the Tribunal, His Majesty's Government have always been averse from referring this important subject to a Court so constituted as not to insure a final award. Their objection in the present instance springs from the fact that an even number of Arbitrators drawn from either side does not afford security in the event of differences of opinion for a binding decision on the points submitted to the Tribunal. Some doubt is felt, however, as to how far the United States' Government regard the constitution of the Tribunal by an equal number of Arbitrators appointed by each of the Parties as vital. Mr. Choate, in his note of the 9th August, 1899,a stated that his Government a The terms of this note were similar to the communication made by Mr. Choate on the 2nd August and recorded in the despatch to Mr. Tower of that date. S. Doc. 162, 58-2, vol 5 28 8 ALASKAN BOUNDARY TRIBUNAL. regarded " the question of the organization of the Tribunal as subordinate to that concerning the subject-matter to be arbitrated, and the terms and conditions on which its action is limited." The advantage of having a Tribunal constituted of an odd number of Judges seems obvious, and His Majesty's Government would much prefer such an arrangement. Animated, however, by a strong desire to secure a reference to arbitration, they are willing to acquiesce in the proposed number of six, provided that at least one of the United States' Arbitrators shall not be a citizen of the United States, or a citizen or subject of any State directly or indirectly under the protection of the United States, and that at least one of the British Arbitrators shall not be a British subject, or a subject or citizen of any Power or State directly or indirectly under the protection of His Britannic Majesty. The presence of two neutral Arbitrators would seem to increase the chances of receiving a majority Award; but this alternative would be adopted with reluctance, and the suggestion should only be put forward on behalf of His Majesty's Government in the event of the United States adhering fixedly to their proposal for a Tribunal of an equal number of Judges nominated by each side. Article III. The final paragraph of this Article provides that I the Arbitrators shall also take into consideration any action of the several Governments or of their respective Representatives preliminary or subsequent to the conclusion of said Treaties, so far as the same tends to show the intendment of the Parties in respect to the limits of their several territorial jurisdictions under and by virtue of the provisions of the said Treaties." This provision appears to His Majesty's Government unnecessary, and they would prefer that it should be omitted, though the point is one which they are prepared to yield if the United States attach importance to it. Article IV. Sub-section 1 of this Article, which prescribes the terms of the reference, runs as follows:— " Referring to Article III of said Treaty of 1825 between Great Britain and Russia, was it intended thereby that the line of demarcation should be traced from the southernmost point of the island, now known as the Prince of Wales Island, along the parallel of 54° 40' north latitude to the passage now commonly known and marked on the maps as the i Portland Channel,' and thence along the middle of said channel northward until said northward line shall reach on the mainland of the continent the 56th degree of north latitude? " His Majesty's Government take exception to the terms of this subsection on the ground that the contention, of the United States with respect to the course the line of demarcation should take between Prince of Wales Island and Portland Channel is put forward as the natural and primary interpretation of Article III of the Convention of 1825, whereas, so far from this being the case, the words " along the parallel of 54° 4Gl'" do not occur in the Treaty as indicating the direction of the line between the points named above. They also feel bound to demur to the language of the second subsection, which reads as follows:— " In extending the line of demarcation northwards from said point on the parallel of the 56th degree of north latitude, following the crest of the mountains situated parallel to the coast until its intersection with the 141st degree of longitude west of Greenwich, subject to |5^!^^RSSS^^B^^^ CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 9 the condition that when such line should exceed the distance of 10 marine leagues from the ocean, then the boundary between the British and the Russian territory should be formed by a line parallel to the sinuosities of the coast and distant therefrom not more than 10 marine leagues, was it the intention and meaning of said Convention of 1825 that there should remain in the exclusive possession of Russia a continuous fringe or strip of coast on the mainland, 10 marine leagues in width, separating the British possessions from the bays, ports, inlets, havens, and waters of the ocean, and extending from the said point on the 56th degree of latitude north to a point where such line of demarcation should intersect the 141st degree of longitude west of the meridian of Greenwich? " If not, how should said line of demarcation be traced to conform to the provisions of said Treaty ? " It is assumed in the recital that the line of demarcation might at places exceed the distance of 10 marine leagues from the ocean, and they regard the placing of the extreme contention of the United States with respect to the location of the line in the forefront of the reference as open to the same objection which they take in regard to the first sub-section. In the opinion of His Majesty's Government, the terms of reference should not give prominence to one contention over the other, but rather should state in clear and unambiguous terms the questions whose determination can alone decide the issue. Though not wedded to any particular form of words, they submit that these questions might preferably be formulated as follows:— Referring to Articles III and IV of the Convention of 1825— 1. What is intended as the point of commencement ? 2. What channel is Portland Channel? 3. What course should the line take from the point of commencement to the entrance to Portland Channel ? 4. To what point on the 56th parallel is the line to be drawn from the head of Portland Channel, and what course should it follow between these points ? 5. What are the mountains referred to as situated parallel to the coast, which mountains, when within 10 marine leagues from the coast, are declared to form the eastern boundary ? 6. In the event of the summit of such mountains proving to be in places more than 10 marine leagues from the coast, should the width of the lisiere which was to belong to Russia be measured (1) from the 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 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 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? These questions appear to His Majesty's Government eminently fair. They are framed with the object of placing the case before the Arbitrators in such a manner as to secure a decision upon all the points at issue without bias or favour to one side or the other. Article VI provides that " when the High Contracting Parties shall have received the decision of the Arbitrators upon the question submitted, as provided in the foregoing Articles, they will at once 10 ALASKAN BOUNDARY TRIBUNAL. proceed with negotiations for the final adjustment and demarcation of the said boundary-line, in conformity with such decision." His Majesty's Government doubt whether any negotiations between the respective Governments should be considered necessary after the decision of the Arbitrators has been received by them. They are disposed to regard this proviso as opening the door to further difficulties and delays, and'would suggest that Article VI should rather be remodelled as follows:— I When the High Contracting Parties shall have received the decision of the Arbitrators upon the questions submitted, as provided in the foregoing Articles, which decision shall be final and binding upon all Parties, they will at once appoint, each on its own behalf, one or more scientific experts, who shall with all convenient speed proceed together to lay down the boundary-line, in conformity with such decision." His Majesty's Government, recalling the disposition of the United States' Representatives, on the International Joint High Commission of 1898-99, to limit to certain portions of the line the scope of the arbitration then proposed, consider that the draft Treaty under consideration should contain a stipulation in precise and positive terms, to the effect that the reference is intended to include, and does include, the definition of the entire boundary at every point between the southernmost point of Prince of Wales Island and Mount St. Elias. His Majesty's Government do not overlook the possibility of an Award by such a Tribunal as is contemplated by the present negotiations being absolutely against Canada or absolutely against the United States, and that, in the latter event, certain portions of the disputed territory which have been settled under the authority of the United States' Government might turn out to be British Territory. They realize that the ownership of these localities is the main contention at the present time, and they are willing to agree to any arrangement which shall equitably provide for the contingency above indicated. The precedent of the Treaty between Great Britain and Venezuela, in Article IV of which provision was made for the case of previous occupation and for the recognition of other rights and claims, appears to them exactly in point, and its application to this almost identical case singularly appropriate. They recognize, however, that owing to the peculiar features of the American Constitution concerning the Treaty-making power, a settlement on the lines of that precedent might prove in the end impracticable of attainment. They therefore refrain from suggesting any express stipulations on this head, preferring to leave your Excellency full latitude to provide by some means that if either of the Contracting Parties should be found to be in possession of territory belonging to the other, the Arbitrators should be empowered to deal with such a condition of things as might seem to them best fitted to meet the equities of the case. I should wish your Excellency to communicate to Mr. Hay in such form as you may consider most suitable the views of His Majesty's Government as above indicated, and to discuss with him the points in which the proposals of his Majesty's Government diverge from those of the United States. I am, &c, Lansdowne. CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. II Zord Pauncefote to the Marquess of Zansdowne.— {Received April 5.) [Extract.] Washington, 31 arch 28, 1902, I have the honour to acknowledge the receipt of your Lordship's despatch of the 5th ultimo with reference to the draft of a Convention, communicated to me unofficially by Mr. Hay in May last, providing for the submission to arbitration of the Alaska boundary CD «/ dispute. In that despatch your Lordship informed me% that His Majesty's Government had carefully- considered the draft Convention in communication with the Government of Canada, and you indicated the points in which they found themselves compelled to dissent from its terms, while most anxious to reach a solution by means of arbitration. In accordance with your Lordship's instructions I communicated to Mr. Hay the views of His Majesty's Government in the form of an unofficial Memorandum based on your Lordship's despatch. Sir M. Herbert to the Marquess of Zansdowne.—{Received October 17.) [Telegraphic] Washington, October 17, 1902. In a short conversation of an unofficial character which I had to-day with the Secretary of State, he alluded to the question of the Alaska boundary. %7 He renewed the proposal made to Lord Pauncefote last March, viz., that a Tribunal should be appointed, the members of which should merely place their reasoned opinions on record. He still held the opinion he had expressed to Lord Pauncefote that a settlement would be facilitated by the appointment of such a Tribunal. Mr. Chamberlain to Governor-General the Earl of Minto.—{Received from Colonial Office, November 24.) [Telegraphic] Downing Street, October 31, 1902. United States' Secretary of State unofficially renews proposal for appointment of Tribunal members of which, should merely record their reasoned opinions. Are your Ministers disposed to consider this suggestion, which would at least afford opportunity to public in United States and Canada of comparing respective cases ? 12 ALASKAN BOUNDARY TRIBUNAL. Governor-General the Earl of Minto to Mr. Chamberlain.— {Received from Colonial Office, November 24-) [Telegraphic] November 18, 1902. Referring to your despatch of the 31st ultimo, concerning the proposal of the United States for the appointment of a Tribunal of jurists to record their reasoned opinions upon the Alaska Boundary question, my Ministers, while declining to give final assent to such proposal, would be disposed to consider it favourably, provided the reference to the Tribunal should include all aspects of the question. They think* that such a reference as was outlined in my despatch of last November 1901a might be acceptable. The Marquess of Zansdowne to Sir M. Herbert. [Telegraphic] Foreign Office, December 6, 1902. Alaskan boundary. With reference to your Excellency's telegram of the 17th October, His Majesty's Government are ready to give their favourable consideration to the proposal again put forward by Mr. Hay for the appointment of a Tribunal of Arbitration, of which the members should merely record their reasoned opinions. This would, however, be on the understanding that the terms of reference are drawn up, like those suggested in my despatch of the 5th February last, in such a way that all aspects of the question are included. Sir M. Herbert to the Marquess of Zansdowne.— {Received December 8.) [Telegraphic] Washington, December 8, 1902. I communicated to Mr. Hay this morning the substance of your Lordship's telegram of the 6th instant relative to the Alaska boundary question. He will let me have an answer as soon as possible after he has consulted the President. Mr. Hay would be willing that the decision of the Judicial Tri- */ CD bunal should be final, in the event of an agreement being arrived at by it. I should be grateful if I might be informed of your Lordship's opinion on this point. a Substance reproduced in despatch to Lord Pauncefote of the 5th February. 1L CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 13 The Earl of Onslow {for the Secretary of State for the Colonies) to Governor-General the Earl of Minto.—{Received from Colonial Office, December 19.) [Telegraphic] December 11, 1902. Referring to your telegram of the 18th November Alaska boundary, presume that, in event of majority of Tribunal agreeing on answer to reference submitted, Ministers would be willing to accept their decision as final. Telegraph reply. Governor-General the Earl of Minto to the Earl of Onslow {for the Secretary of State for the Colonies).—{Received from Colonial Office, December 19.) [Telegraphic I December 15, 1902. Alaskan Boundary. Your cable of the 11th instant. Am asked by my Ministers to state that they cannot give proper consideration to question submitted till exact text of proposed reference or the composition of Tribunal is before them. On receipt of this information they will communicate with Sir Wilfred Laurier (who is absent from Ottawa), and will send reply as soon as possible. Sir M. Herbert to the Marquess of Zansdowne.— {Received December 19.) [Telegraphic] Washington, December 19, 1902. Secretary of State submitted to me yesterday draft Treaty for %} 0J %7 «/ reference of Alaska boundary question to Arbitral Tribunal. He has consented, after discussion, to nearly all terms of reference. I am sending copy of the draft to your Lordship, by messenger leaving to-day. Mr. Hay is anxious to receive an answer to it- with as little delay as possible. Sir M. Herbert to the Marquess of Zansdowne.—{Received December 22.) Washington, December 8, 1902. My Lord: With reference to my telegram of to-day I have the honour to report that, m obedience to your Lordship's instructions, I called on Mr. Hay this morning, and informed him that His Majesty's Government were prepared to entertain favourably the suggestion which he had made to me on the 17th October last in regard to the appointment of an Anglo-American Arbitration Tribunal, composed of an equal number of Judges nominated by each 14 ALASKAN BOUNDARY TRIBUNAL. side. I stated at the same time that in agreeing to this proposal, your Lordship made it a condition that the terms of reference should be so framed as to include all aspects of the question, and I suggested that they should be formulated on the lines of the inclosed Memorandum, which I handed to him Mr. Hay expressed satisfaction at my communication and reiterated the opinion expressed to me on the 17th October in favour of the appointment of such a Tribunal as being the only means of settlement of the Alaska boundary dispute which would be acceptable to the people of this country. He promised that he would consult the President at once, and, if he approved, would prepare the draft terms of reference as soon as possible for submission to His Majesty's Government. I gathered from the conversation which subsequently took place that Mr. Hay is willing to consent, in the event of the Judicial Tri- «/ CD 7 bunal arriving at an agreement, that its decision shall be final, and I venture to express the opinion that, if the Senate will ratify such a stipulation, it would be preferable to the proposal that the members of the Tribunal should record their reasoned opinions only. In discussing the composition of the Tribunal, I expressed the hope that all the American members would be Judges of the Supreme Court of the United States, as their appointment would give the Tribunal more weight. Mr. Hay agreed with this view, but feared it would be difficult to carry out owing to the pressure of business before the Supreme Court, which could ill spare so many of its members at the same time. I have, &c. Michael H. Herbert. [Inclosure.] Memorandum. (Extract from Lord Lansdowne's despatch No. ary 5, 1902.) 28 of Febru- Referring to Articles III and IV of the Convention of 1825:—■ 1. What is intended as the point of commencement? 2. What channel is the Portland Channel? 3. What course should the line take from the point of commencement to the entrance to Portland Channel? 4. To what point on the 56th parallel is the line to be drawn from the head of Portland Channel, and what course should it follow between these points? 5. What are the mountains referred to as situated parallel to the coast, which mountains, when within 10 marine leagues.from the coast, are declared to form the eastern boundary? 6. In the event of the summit of such mountains proving to be in places more than 10 marine leagues from the coast, should the width of the lisi&re which was to belong to Russia be measured (1) from the 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 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 coast, or (&) from the line separating the waters of the Ocean from the territorial waters of Russia, or (c) from the heads of the aforesaid inlets? CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 15 Sir M. Herbert to the Marquess of Zansdowne.— {Received December 27.) [Extract.] Washington, December 19,1902. With reference to my despatch of the 8th instant, Mr. Hay handed me yesterday a draft Treaty for the settlement of the Alaska boundary by a Judicial Tribunal. He stated that all the terms of reference suggested by your Lordship had been accepted except section 6 (see Memorandum inclosed in my despatch of the 8th instant), which has been altered. I asked his permission to take the document home and study it, and 1 promised to let him know my views in regard to it as soon as possible. On examination of the Treaty I found that, with the exception of the addition of the words " if they exist" between the word "what' and the words "are the' m section 5 of my Memorandum, all the sections except No. 6 (which in Mr. Hay's draft was made No. 5) were couched in the same language as the references I had suggested. Section 5 of the draft, however, re- CDCD 7 peated exactly the wording of sub-section 2 of Article IV of the draft Treaty submitted by Mr. Hay to Lord Pouncefote in May 1901, and I accordingly sent a note to Mr. Hay in the evening, copy of which I have the honour ti inclose, stating that I felt sure your Lordship would be unable to accept this reference, as it only put forward the American contention, and that that of Canada would be excluded by it. I called at the Department of State this morning and repeated the arguments contained in my note, and, after a short discussion, Mr. Hay said that, in view of my objection and of his wish to arrive at a settlement, he was prepared to modify the draft in the following manner:— To let the first five sections stand as proposed in his draft of yesterday, omitting the words " If not, how should said line of demarcation be traced to conform to the provisions of said Treaty % " at the end of section 5. Then to take No. 6, as follows:— " If the foregoing question (No. 5) should be answered in the negative, and in the event of the summit of such mountains proving to be in places more than 10 marine leages from the coast, should the width of the lisiere which was to belong to Russia be measured (1) from the mainland coast of the Ocean, strictly so called, along a line perpendicular thereto; or (2) was it the intention and meaning of the said Convention, that where the mainland coast is indented by deep inlets forming part of the territorial waters of Russia, the width of the lisiere was to be measured {a) from, the line of the general direction of the mainland coast; or {b) from the line separating the waters of the Ocean from the territorial waters of Russia; or (<?) from the heads of the aforesaid inlets ? (Your Lordship will observe that the word " mainland " has been inserted before the word " coast " all through this section.) Then to change the number of the original section 6 of Mr. Hay's draft of yesterday into section 7 in the new draft. 16 ALASKAN BOUNDARY TRIBUNAL. I consented to this modification, and said I was now prepared to send the draft home for your Lordship's approval. The final paragraph of Article III is identical wdth the language of Article III of the May draft Treaty. Article VI provides that the decision shall be final, and Mr. Hay has consented to use the same language as that contained in your Lordship's despatch of February last. I have the honour to transmit copy of the draft Treaty as amended, and I earnestly hope that its provisions will meet with the approval of His Majesty's Government and of that of Canada. I have, &c. Michael H. Herbert. [Inclosure.] Sir M. Herbert to Mr. Hay. Washington, December 18, 1902. Dear Mr. Secretary: Since our interview this morning I have had time to examine the draft Alaskan Boundary Treaty which you then handed to me. You will remember that I told you on the 8th instant that Lord Lansdowne was prepared to entertain favourably the idea of a Judicial Tribunal, provided that the terms of reference were framed so as to include all aspects of the question. Section 5 of Article IV of the draft Treaty does not, it seenis to me, fulfil this requirement, for it only gives prominence to the American contention that the Treaty of 1825 was intended to give Russia a strip of coast of at least 10 marine leagues on the mainland, separating the British possessions from the bays, ports, inlets, havens, and waters of the ocean. The point from which this strip of land is to be measured is not apparently mentioned as an issue, and the Canadian contention that the line shall follow the crest of the mountains parallel to the coast, but so as to include bays, ports, and inlets, would be excluded. Under this reference the jurists would hold that the only point to be decided would be the width of the strip which is to separate the British possessions from access to all waters, even to bays, ports, inlets, and havens. I fear, therefore, that Lord Lansdowne could never accept this section as it stands, and I trust that it will be possible for your Government to agree to a modification of the draft, so as to leave it to the jurists to decide whether the boundary-line should go round all bays, ports, inlets, and havens, or whether it should, following the crest of the mountains, pass across bays, ports, inlets, and havens. As I have a messenger to-morrow afternoon, I should be glad to call at the Department of State to-morrow morning to discuss the matter, if you can spare time to receive me. I am, &c. Michael H. Herbert. The Earl of Onslow to Governor-General the Earl of Minto.— {Received from Colonial Office, January 6.) [Telegraphic] Downing Street, January 6, 1903. Shall be glad to have views of your Ministers on draft Alaska Boundary Treaty, inclosed in Sir M. Herbert's despatch of the 19th December, as soon as possible. CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 17 Sir M. Herbert to the Marquess of Zansdowne.— {Received January 8.) [Telegraphic—Extract. ] Washington, January 8, 1903. Mr. Hay asked me again to-day for a speedy reply to the Alaskan Boundary proposal. I have telegraphed in the same sense to Governor-General of Canada. The Earl of Onslow to the Earl of Minto.— {Received from Colonial, Office, January 12.) [ Telegraphic—Extract. ] January 12, 1903. My telegram of the 6th instant, Alaska boundary. Sir M. Herbert advocates strongly three Judges of United States' Supreme Court with Lord Chief Justice England, Chief Justice of Canada, and Judge of High Court Great Britain on our side, as constituting a Tribunal commanding in highest degree confidence of all concerned. Your Ministers will doubtless giveHliis their serious consideration. Early expression of views of your Ministers desired as to terms of draft Treaty, finality of Tribunal's decision and its composition. Reply by telegraph. Governor-General the Earl of Minto to Colonial Office.—{Received from Colonial Office, January 14.) [Telegraphic] January 13, 1903. Referring to the last proposed Alaskan Boundary Treaty, a draft of which you submitted to me, my Ministers are satisfied with the questions to be submitted to the Tribunal, but they still have the same objection to the composition of the proposed Tribunal, and before assenting to it, they would hope that another effort should be made to have the questions to be adjudicated upon submitted either to a Board of Arbitrators composed in part of independent jurists, not subjects of either State, as proposed in my despatch to Mr. Chamberlain of November 1901,a or to the Hague Tribunal. Sir M. Herbert to the Marquess of Zansdowne.—{Received January 18.) [Telegraphic] Washington, January 18, 1903. In a conversation which I had to-dav with the Secretary of State # # */ %7 of the United States, I informed him that the Canadian Government were satisfied as to the terms of reference in the proposed Alaska a Substance reproduced in despatch to Lord Pauncefote of the 5th February. 18 ALASKAN BOUNDARY TRIBUNAL. Boundary Treatjr, but that they objected to the suggested composition of the Tribunal. They accordingly expressed the hope that the United States' Government would see their way to agree to the submission either to the I iague Court or to foreign arbitration of the questions to be adjudicated upon. I pointed out at the same time that the Hague Tribunal was especially intended to decide disputes relating to the interpretation of Treaties. Mr. Hay expressed his regret that the Canadian Government still entertained objections to the composition of the Tribunal, as he had hoped that they would accept the Treaty spontaneously in view of the alterations which he had made as regards the terms of reference. He said that he could only repeat what he had frequently intimated to me during the last three months, that the President was unable to accept any form of arbitration other than that proposed in the Treaty, and that the Senate would certainly decline to ratify any Treaty providing for the submission of the Alaska Boundary dispute either to the Hague Court or to foreign arbitration. I have sent this information to the Governor-General of Canada. Sir M. Herbert to the Marquess of Zansdowne.—(Received January 18.) [Telegraphic] Washington, January 18, 1903. Alaskan Boundary Treaty: My immediately preceding telegram of to-day. Has your Lordship any further alterations to suggest? If not, as there is no time to lose, I trust I shall be authorized to sign with as little delay as possible. If your Lordship approves of Paris as the place of meeting, I think Secretary of State will agree. Sir M. Herbert to the Marquess of Zansdowne.—(Received January 19.) [Telegraphic] Washington, January 19, 1903. Wit li reference to my telegram of yesterday in regard to the Alaska draft Treaty, I have now received a personal note from the Secretary of State informing me that the United States' Government cannot reconsider the matter of arbitration. The President will accept London, Paris, or Washington as the meeting place of the Tribunal. I have informed the Governor-General of Canada. CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 19 Sir M. Herbert to the Marquess of Zansdowne.—(Received January 19.) [Telegraphic] Washington, January 19, 1903. With reference to my telegram of to-day, I have just received a note from Mr. Hay suggesting London in preference to Paris as the meeting place of the Alaska Boundary Tribunal, and I should bo grateful if I might receive your Lordship's opinion of this proposal by telegraph. I have communicated the substance of the above telegram to the Governor-General of Canada. The Earl of Onslow (for the Secretary of State for the Colonies) to Governor-General the Earl of Minto.—(Received from Colonial Office, January 21.) [Telegraphic] Downing Street, January 19, 1903. In view of Herbert's telegram stating that United States' Govern- ment unable to accept modification of Tribunal, hope your Ministers will agree to his now being instructed to sign Treaty. Telegraph reply as soon as possible. Should be glad to have also early answer my telegram of the 12th January, as to Herbert's proposal for appointment of Chief Justice of England, Chief Justice of Canada, and Judge of High Court of Great Britain, as British members of Tribunal. The Earl of Onslovj (for the Secretary of State) to Governor-General the Earl of Minto.—(Received from Colonial Office, January 21.) L Telegraphic] Downing Street, January 20, 1903. With reference to Herbert's telegram stating that the United States' Secretary of State would prefer London as a place of meeting, glad to receive early expression of your Ministers' views as to this point. The Marquess of Zansdowne to Sir M. Herbert. [Telegraphic] Foreign Office, January 23, 1903. A telegram has been received from the Governor-General of Canada to the following effect:— My Ministers, whilst still regretting that proposed Tribunal will not be constituted so as to insure certainty of a final decision being 20 ALASKAN BOUNDARY TRIBUNAL. reached on the reference, being satisfied with the terms of that reference, will agree to accept Treaty as contained in the draft submitted to them. With regard to-composition of Tribunal, my Ministers are of opinion that it is premature to adopt any final arrangement, it is sufficient now to have it clearly understood that members of the Court to be appointed by His Majesty shall be jurists of repute, and British subjects. They will be quite satisfied if London is selected for sittings of the Court. You may sign the Treaty as embodied in the draft which you forwarded to the Dominion Government. His Majesty's Government do not see any objection to London being selected as the place of meeting for the Tribunal. Sir M. Herbert to the Marquess of Zansdowne.—(Received January 25.) [Telegraphic] Washington, January 24, 1903. Alaskan Boundary. I signed Treaty with Mr. Hay this afternoon. Sir M. Herbert to the Marquess of Zansdowne.—(Received February 9.) [Extract.] Washington, January 19, 1903. With reference to my telegram of yesterday, I have the honour to inform your Lordship that I called at Mr. Hay's house last night and informed him that, while the Canadian Government were now satisfied with the terms of reference of the Alaska draft Treaty, they objected to the composition of the Tribunal on the ground that a Court so constituted would not insure finality of decision. They therefore hoped that the United States' Government would consent to have the questions to be adjudicated upon submitted to the Judgment of a? foreign Umpire or to the Hague Tribunal. I pointed out at the same time that the latter Tribunal was especially intended to decide disputes in connection with the interpretation of Treaties. Mr. Hay, who appeared somewhat disappointed at this communication, replied that, in view of the concessions he had made in regard to the terms of reference, he had hoped for a spontaneous acceptance of the Treaty by the Canadian Government, and he regretted that they still objected to the composition of the Tribunal. He could only repeat what he had often told me before, that the form of arbitration proposed in the Treaty was the only one acceptable to the President; and that a Treatv involving the submission of the Alaska boundary CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 21 dispute to foreign arbitration or to the Hajfue Tribunal, would stand no chance of being ratified by the Senate. The next morning I received a note from Mr. Hay, written after an interview with the President, in which he stated that the latter was unable to reconsider the matter of arbitration. He at the same time informed me that the President was willing that the Tribunal should sit either in Washington, London, or Paris. Sir M. Herbert to the Marquess of Zansdowne.—(Received February 9.) Washington, January 28, 1903. My Lord : With reference to my telegram of the 24th instant, I have the honour to transmit herewith the Convention for the settlement of the Alaskan boundary by a Judicial Tribunal, signed on the %7 0J 7 CD 24th January by the Secretary of State and myself. I have, &c. Michael H. Herbert. Sir M. Herbert to the Marquess of Zansdowne. ruary 12.) {Received Feb- [ Telegraphic] Washington, February 11,1903. Alaskan Treaty ratified by Senate. Sir M. Herbert to the Marquess of Zansdowne.—{Received February 15.) [Telegraphic] Washington, February 14,1903. I learned from Mr. Hay to-day that the President would probably appoint as the United States' Members of the Alaska Boundary Commission, Senators Lodge of Massachusetts and Turner of Washington, and the present Secretary of War, Mr. Root. On my expressing disappointment at the absence of any Member of the Supreme Court. Mr. Hay said that the President had wished to appoint Justices of the Supreme Court, but had been met with a refusal from all of them. Mr. Hay is anxious that the ratifications of the Treaty should be exchanged with as little delay as possible. ALASKAN BOUNDARY TRIBUNAL. The Earl of Onslow to " Governor-General the Earl of Minto.— {Received from Colonial Office, February 18.) [Telegraphic] February 18, 1903. Herbert telegraphs that President will appoint Mr. Root, Secretary of State for War, and Senators Lodge and Turner as American Commissioners, Alaskan Boundary. Should be glad to have views of your Ministers as to British Commissioners. Governor-General the Earl of Minto to the Earl of Onslow {for the Secretary of State for the Colonies).— {Received from Colonial Office, February 23.) [Telegraphic] Ottawa, February 21,1903. My Ministers call attention to the fact that they agreed to a Court of six members on the stipulation conveyed in the Treaty that members of said Court wTould be impartial jurists, and in the hope that Judges of the highest Courts in the United States would be appointed as American Commissioners, my Ministers also agreeing that British Commissioners should be Judges of the highest standing. My Ministers most strongly represent that this consideration having been material in causing their assent to the Treaty should be made good, otherwise the ground upon which they based their assent would be changed, and it is feared whole situation would require to be reconsidered. My Ministers would be ready to implement their part of the understanding as to the composition of British side of the Commission, but do not think it advisable to submit their views until question raised about American Commission is satisfactorily disposed of. Colonial Office to Foreign Office.— {Received February 26.) Downing Street, February 26, 1903. Sir: I am directed by the Secretary of State for the Colonies to transmit to you, for the information of the Marquess of Lansdowne, a copy of a telegram which has been sent to the Governor-General of Canada, after communication with the Foreign Office, on the subject of appointments made by the United States' Government to the^ Alaska Boundary Tribunal. I am, &c. H. Bertram Cox. [Inclosure.] Earl of Onslow to Governor-General the Earl of Minto. [ Telegraphic ] February 26, 1903. His Majesty's Government were as much surprised as your Ministers at the selection of the American members of the Tribunal. The situation is full of difficulty, and His Majesty's Government earnestly desire to have the concurrence of your Ministers in dealing with it. Pppgft^ * - CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 23 His Majesty's Government are convinced that it would be useless to press the United States to withdraw the names put forward, and arguments against the personal fitness of the three American representatives, however convincing, would fail to lead to any practical result. His Majesty's Government are, therefore, virtually in the position of having to choose between breaking off the negotiations altogether or of accepting the American nominations and appointing as their colleagues representatives appropriate to the altered circumstances of the case. The first alternative they would regard as a grave misfortune to the interests of Canada, and they would prefer that the inquiry should proceed, in the confident hope that it would not prejudice Canadian or British interests, since, even in the event of failure, much important information on the controverted points would be collected and placed before the public, thus facilitating a reasonable settlement of the question at some future date. His Majesty's Government earnestly hope that your Ministers will weigh these considerations carefully, and, if they share in the opinion stated above, will favour His Majesty's Government with an expression of their views as to the most advantageous manner of constituting the British portion of the Tribunal. >£«« Sir M. Herbert to the Marquess of Zansdowne.— {Received Feb ruary 27.) Washington, February 14, 1903. My Lord: With reference to my telegram of the 11th instant, I have the honour to transmit to your Lordship herewith a copy of a note from the Secretary of State of the United States, announcing the consent of the Senate, by the necessary concurrence of two-thirds J \7 %7 of the members present, to the ratification without amendment of the Treaty providing for the settlement of the Alaskan Boundary question. I have, &c. Michael H. Herbert. : [Inclosure.] Mr. Hay to Sir M. Herbert. Department oe State, Washington, February 18, 1908. Excellency : I have the honour to inform you that the Senate, by its resolution of the 11th instant, two-thirds of the Senators present concurring therein, gave its advice and consent, without amendment, to the ratification of the Convention which I signed with you on the 24th January last, providing for the settlement of the questions between the United States and Great Britain with respect to the boundary line between the territory of Alaska and the British possessions in North America. I have, &c. John Hay. Sir M. Herbert to the Marquess of Zansdowne.—(Received March 6.) [Telegraphic] Washington, March 6, 1903. Secretary of State has officially notified to me to-day the appointment of Messrs. Root, Lodge, and Turner as American members of the Alaskan Tribunal. Have informed Governor-General. S. Doc: 162, 58-2, vol 5 29 24 ALASKAN BOUNDARY TRIBUNAL. Governor-General the Earl of Minto to the Earl of Onslow (for the Secretary of State for the Colonies.)—(Received from Colonial Office, March 7.) [Telegraphic] Ottawa, March 6, 1903. My Ministers regard the situation with much anxiety. They desire to emphasize the fact that their assent to a Treaty which provided for the creation of a Tribunal so composed as not to insure finality wras obtained on the stipulation in the Treaty that the members of the Court would be impartial jurists of repute. . . . Their doubts as to the effectiveness of the contemplated arrangement as a means of settlement were in some degree modified by the assurance that the members of the Tribunal would approach the subject with unbiassed minds, and that a judicial interpretation of the Treaty of 1825 would be obtained. The appointment to the Tribunal by the United States' Government of gentlemen who are not Judges, and whose known views leave-no room for expectation of a judicial consideration of the question, changes the whole situation. If the whole question were now open to be dealt with entirely from the point of view of Canadian interests, my Ministers would hesitate to advise any further participation in proceedings. . . . My Ministers have observed from the public press, and have also been officially informed that while the matter is still under their consideration, the Treaty has been confirmed by His Majesty's Government, and an exchange of ratifications has already taken place in Washington. It is presumed that this fact precludes further discussion, and my Ministers will, therefore, proceed to do whatever is necessary on their part to make good the engagements of His Majesty's Government, but they must reserve the right to submit to the Canadian Parliament the whole correspondence, or such statement of the case as will fully explain the whole matter, and especially the manner in which the assent of Canada was obtained. My Ministers do not agree with the suggestion that the altered circumstances justify a departure on the British side from the disposition previously manifested respecting the composition of the Tribunal. If members of the Tribunal are to be appointed by His Majesty's Government, my Ministers are of opinion that only Judges of the higher Courts, who in the best sense of the words would be impartial jurists of repute, should be chosen. The Earl of Onslow to Governor-General the Earl of Minto.— (Received from Colonial Office, March 7.) [Telegraphic]. March 7, 1903. Your telegram of the 6th March. Should be glad to have definite expression of wishes of your Ministers as to proportion in which British membership of Alaska Commission should be drawn from Dominion and English benches, and names of Canadians proposed. ps| CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 25 Colonial Office to Foreign Office.—(Received March 9.) [Extract.] Downing Street, March 9,1903. With reference to the letter from this Department of the 7th instant respecting the composition of the Alaskan Boundary Commission, I am directed to transmit to you, to be laid before the Marquess of Lansdowne, copy of a telegram from the Governor-General of Canada, suggesting the appointment of the Lord Chief Justice of England and two Canadian Judges as the British members of the Tri- CD bunal. It is presumed that Lord Lansdowne will concitr in this suggestion, and that he will take the necessary steps to ascertain whether Lord Alverstone will be willing to act as the senior British member of the CD Tribunal. [Inclosure.] Governor-General the Earl of Minto to the Earl of Onslow (for the Secretary of State). [Telegraphic] Ottawa, March 7, 1903. In view of the short time given for preparation of the case, my Ministers desire to proceed immediately, and therefore suggest an early settlement of preliminaries. As to the composition of Tribunal, my Ministers suggest Chief Justice of England and two Canadian Judges, names to be telegraphed hereafter. Foreign Office to Colonial Office. Foreign Office, March 11,1903. Shi: With reference to your letter of the 9th instant, I am directed by the Marquess of Lansdowne to state, for the information of the Secretary of State for the Colonies, that the Lord Chief Justice has consented to serve as one of the British members of the Alaskan Boundary Tribunal. I am therefore to suggest that a telegram should at once be addressed to the Governor-General of Canada, informing him that His Majesty's Government agree to the proposal of the Dominion Government that the Lord Chief Justice and two Canadian Judges should be appointed. I am further to state that Lord Lansdowne has, no objection to the Canadian Government retaining the control and preparation of the British Case and its defence and prosecution before the Tribunal, and they might be informed that every facility will be given to the •J CD %/ */ CD gentlemen nominated by them as Counsel and Agent. Lord Lansdowne thinks that it will no doubt be desirable to obtain the assistance and co-operation of the Law Officers of the Crown. He presumes the Secretary of State for the Colonies will deal wijth this point. I am, &c. F. H. Villiers. 26 ALASKAN BOUNDARY TRIBUNAL. Colonial Office to Foreign Office.— {Received April 8.) Downing Street, April 7,1903. Sir : With reference to the letter from this Office of the 9th March, I am directed by Mr. Secretary Chamberlain to transmit to you, for the information of the Marquess of Lansdowne, the accompanying copy of a despatch from the Governor-General of Canada on the subject of the Canadian members of the Alaska Boundary Commission. I am, &c. H. Bertram-Cox. [Inclosure.] Governor-General the Earl of Minto to Mr. Chamberlain. Government House, Ottawa, March, 17, 1903. Sir : In confirmation of my telegrams, I have the honour to inform you that my Government has appointed his Honour Sir Louis Amable Jett§, K. C. M. G., Lieutenant-Governor of the Province of Quebec, and Mr. Justice Armour, Puisne Judge of the Supreme Court of Canada, as the Canadian members of the British Tribunal under the recently ratified Alaskan Boundary Treaty. My Government has also appointed the Honourable Clifford Sifton, Minister of the Interior, as Agent; and Mr. Edward Blake, M. P., of London, and Mr. Christopher Robinson, K. C, of Toronto, as Counsel. Mr. Joseph Pope, C. M. G., Under-Secretary of State, Mr. W. F. King, Chief Astronomer, and Mr. Wade, K. C, will be attached to the Commission, and, together with Mr. Sifton, will sail for England by the steam-ship " Cedric," leaving New York on the 25th instant. I have, &c. Minto. Colonial Office to Foreign Office.—{Received July 27.) Downing Street, July 25, 1903. Sir: I am directed by Mr. Secretary Chamberlain to transmit to you, to be laid before the Marquess of Lansdowne, copy of a telegram from the Governor-General of Canada, recommending that Mr. A. B. A}desworth, K. C, be appointed to the vacancy on the Alaskan Boundary Tribunal caused by the death of Mr. Justice Armour. I am, &c. H. Bertram Cox. [Inclosure.] Governor-General the Earl of Minto to Mr. Chamberlain. [Telegraphic] July 23, 1903. My Government beg to recommend that Mr. A. B. Aylesworth, K. C, of Toronto, be appointed Commissioner Alaska Tribunal vice George Armour, deceased. Mr. Sifton to the Marquess of Zansdowne.—{Received October 22.) St. Stephen's House, Westminster, S. W., October 21,1903. My Lord : I have the honour to send herewith the original Award of the Alaskan Boundary Tribunal, and the reasons for judgment CORRESPONDENCE IN BRITISH PARLIAMENTARY PAPERS. 27 of Lord Alverstone, Messrs. Root, Lodge, and Turner; also those of Mr. Aylesworth. The reasons for judgment of Sir Louis Jette having been written in French are, I am informed, being translated, and will be signed and filed by him in English. Upon receipt I shall at once forward them to be placed with the Award. I am also sending herewith two copies of the Award and two copies of the map ° which accompanies the Award. I beg to request that the proper officer of the Department of Foreign Affairs may be instructed to certify these copies of Award and maps as true copies, so that I can forward them to the Government of Canada to be retained among the Canadian boundary records. I have, &c. Clifford Sifton. a For reduced Map, see "United States No. 2 (1904)." O "W -ii... «*m mr- / i S%P5 I m m
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Alaskan Boundary Tribunal. Proceedings of the Alaskan Boundary Tribunal : convened at London, under the treaty between the United States of America and Great Britain, concluded at Washington, January 24, 1903, for the settlement of questions between the two countries with respect to the boundary line between the territory of Alaska and the British possessions in North America. Vol. V
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