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.
485-928, CXXXV pages : illustrations (some folded) ; 48 cm
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58th Congress, 2d Session. SENATE. Document No. 162. 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. VII. WASHINGTON: GOVERNMENT PRINTING OFFICE. I 904. For index to Volumes VI and VII see end of Volume VH. V ALASKAN BOUNDARY TRIBUNAL. MINUTES OF PROCEEDINGS OF THE ALASKAN BOUNDARY TRIBUNAL, HELD AT THE FOREIGN OFFICE, DOWNING STREET, LONDON. ■ [Note.—Published in two volumes—VI and VII.] MINUTES OF THE PROCEEDINGS OF THE ALASKAN BOUNDARY TRIBUNAL. Mr. Eobinson. I do not suppose the Tribuiyil will require any avowal from me to understand and appreciate the fact that I find myself in a great deal of difficulty and embarrassment in endeavouring to discharge the duty which has been assigned to me in this discussion. I have heard a good deal and read a good deal in 4.42 the course of this Case about appropriated and unappropriated territory, but what I have been looking for much more anxiously is something in the shape of unappropriated argument, and I regret very much to say that my search has been verv eminently unsuccessful. This Case' has been presented most fully and most exhaustively, without the omission, I believe, of a single detail which can become of importance, on the part of Great Britain, by the learned Attorney-General. I am asked by one who is entitled to speak for Canada to say, what I could not say without presumption as the expression of my own opinion, that it has also been presented most satisfactorily in every aspect from the Canadian point of view. Now, under these circumstances it seems to me that at least there are two things which I ought to bear in mind. In the first place I ought to be careful not to be unduly long, and in the next place it appears to me clear that it could serve no good purpose, and, therefore, that it would be without any sufficient justification, if I were to attempt again to go over the argument so far as it depends to any extent upon the examination and inspection of maps, or upon the reading in detail of the various negotiations which have preceded this Treaty. I think I have heard almost every letter in those negotiations read twice, and if I content myself by alluding where I find it necessary to two or three of them, I shall do all that could be of any use to the Tribunal. Now, it is perfectly true that this Case, having assumed an international character, has attracted to it, as such cases always do, a vast deal of material, and has been treated with a vast deal more elaboration than it ever could have been under other circumstances. Nevertheless, it is a kind of Case which might have arisen between two individuals or between two corporations, and might have come up before an ordinary Court in a much more simple manner. It appears to me, if I can be of use at all in any way, that the best way in which I can hope to effect that object is by treating it as if it were a matter of that character, because if it had so come up, and if it had been so considered and so determined, there would still have been presented, whatever the tribunal might have been, all the important 485 —-— 486 ALASKAN BOUNDARY TRIBUNAL. 1 and salient points, or at all events those which are of the greatest importance, on either side of the Case; and they would have had the advantage of being to a certain extent severed from the mass of matter which has grown up about them, and which does not by any means always clear the atmosphere. What I propose to do, therefore, is to treat the Case in that way; and treating it in that way, though it is impossible for me to avoid repeating the learned Attorney-General, at least I ought to try and avoid repeating myself. I should like, therefore, to take this Case up in the present instance by asking, what does this Treaty mean ?— taking this Treaty on its words only and for the present without reference to the negotiations, which I shall come to afterwards. Let us then take this Treaty by itself, and let us suppose that we are within a year or two after it has been made, and that it had been the result of no protocols or of nothing in writing, but had been the result of very much the same procedure as the Treaty of 1867 was with the United States, in which you will recollect there were no protocols at all. Nothing was known of it until it was declared, and it was said that there were only two or three documents which had passed in the meantime. Let us try, then, and look at this Treaty in that aspect. If we do, the first thing we shall have to consider is, what is the meaning of Articles III and IV which define the boundary—which directly define the boundary, I mean? The next question I should think would reasonably be, are there any other Articles in the Treaty which assist in the construction of those Articles? When we have finished with this I shall then endeavour to say a few words about the negotiations and about Question 7 and about one or two other matters, which I need not specify just at this moment; but the next consideration will be, supposing the decision of the Tribunal to be in our favour on the meaning of the Treatv, have we done anvthing or omitted to do anvthing which the ground, and I do prevents us from claiming that it should be carried out? Taking the matter up in that way, I shall cover all not propose to go into it at all minutely. Now, I am not able to prove everything, as my learned friend, Mr. Watson, has proved to us so many things, to demonstration. All I can do is to present the Treaty to the Tribunal, and endeavour to ascertain what it means looked at in the light I have pointed 443 out. Now, there is no doubt there are a good many things which are obscure in this Treaty, and I do not pretend to say otherwise. When you make a Treaty relating to a countrv about which the negotiators know nothing, and which refers to natural features which do not exist, you must have in one place or another a good deal of difficulty and doubt. We have had that in various other Treaties. I need not allude to the Main TreatY, which referred to headlands that did not exist and to the sources of rivers that could not be found, nor need I refer to the Lake of the Woods Treaty, which the Tribunal will remember makes the line from the Lake of the Woods run due west to meet the Mississippi, when the Mississippi did not come within 100 miles of the point where that line would cross. Of course, all those things in any Agreement on Treaty must produce difficulty. It is only because of that that we are here. But while that is the case, and while there are some things beyond msmmme*—m> ARGUMENT OF CHRISTOPHER ROBINSOfr. 487 question not so easy to construe in this Treaty, it does seem to me that, looking at Articles III and IV, there are certain things perfectly plain and that cannot be disputed. In the first place, it is clear that the mountain boundary, which the negotiators no doubt thought would be found—though that belongs to a subsequent question—can never be followed when it goes more than 10 marine leagues from the sea. That is perfectly plain. Another thing which I think is equally plain is that this provision was made in order to prevent Russia having a broader lisiere than Great Britain was willing to give, or than she was ready to accept. I do not think that there can be any doubt about those two things. Then it seems to follow, beyond all question, that when you drop that mountain line because it would make the lisiere too broad, you cannot take another line which would make it much broader, on the ground that that line, though it may not be within 10 marine leagues of the ocean, is within 10 marine leagues of the coast. The mountain boundary is to be dropped plainly and distinctly when it is more than 10 leagues from the ocean; the other line speaks of the coast. But this absurdity would immediately result if you should construe the coast as meaning anything other than the ocean, and as going up to the head of Lynn Inlet, although the ocean might not go there; you would drop one line because it would give too broad a lisiere, and you would accept another which would make it much broader. What is the result of that ? Those are two things, and they may be the only two things which, I think, are absolutely plain and beyond doubt. I think I can at least prove those to demonstration. Now, what is the result of this? Not— if we are going to be accurate in language—that " coast % means precisely the same thing as " ocean," because, of course, | coast' is land, whether a mountain boundary or a line to be run by a surveyor, and " ocean |j is water; but it does mean that you must measure the line from the same point, and the coast and the ocean must mean the same point from which you are to measure. In other words, the coast means the coast of the ocean, or the ocean coast. I think that, so far, there can be no possible dispute. Then the remaining question is—and it brings us to that which involves a large portion of this Case—Is the head of Lynn Canal the ocean? Well, I have read a great deal about this Case, and thought a great deal about it. I have read a great deal that I think it is useful and wise to read in a Case of this kind, not consisting of law, but consisting of comments of intelligent writers on a matter of great public interest, and a matter which one man without any special professional education is as competent to understand as another, supposing their natural intelligence to be equal. I think a great many people, if you asked them " Is the head of Lynn Canal the ocean?' and they were to ask you, "What is it?' and you said, 1 It is an inlet that runs up into the interior from the open water from the water of the ocean—the mainland coast of the ocean—about 70 miles, and its average width, I think, is about 4J miles, or something of that sort." I forget the average width, but it is something like that. Now, I think a great many people would say in answer to that question, "Are you serious ?' Do you think that anybody could call the head of Lynn Canal the ocean? Now, one test might be not an unreasonable test. Supposing a man was ypiSlI 488 ALASKAN BOUNDARY TRIBUNAL. born in the interior and came down to the head of Lynn Canal, or supposing he was born at the head of Lynn Canal, at Dyea, or Skagway—no one has been born there in the time we know 444 anything about—but supposing he was asked," Have you ever been to the ocean ? " I should think he would say, " Certainly not, I never saw the ocean." He would ask you with a good deal of natural and intelligible curiosity, " What is the ocean like ?' Now, I do not wish to deny for a moment that the word " coast" is capable of a great many different significations. My learned friends seemed to point with a sort of triumph to the assertion that Dr. Dawson, in a work which he published on the Yukon Territory, had certainly changed his mind as to the meaning of the word " coast," because he says that, having crossed the Chilkoot Pass, he reached the coast at the head of Lynn Canal, and speaks of the coast at the mouth of the Skagway River. I see no impropriety in that. I should have thought that if a person had been travelling in the interior for a month and came down to the water which communicated with the sea, he would say, " I have got to the coast." But it would not be the coast of the ocean; it would be the coast of the Lynri Canal—the coast of an inlet, and there may be the coast of an inlet and the coast of the ocean; but the coast, because it is the coast of Lynn Inlet, is by no means the coast of the ocean. Now, it is very difficult to enlarge or expatiate upon a point of this sort, which really depends upon each person's intelligence and apprehension; and, having looked at a great many definitions, I do not know that I can assist the Tribunal much by them. I find in a book which I had not heard of before, but which has been quoted to me by a friend, and I have got it here—it is " W7illcock on the Ocean, the River, and the Shore*" I find on p. 11,1 think Mr. Turner. What is that, Mr. Robinson ? Mr. Robinson. " Willcock on the Coast "- The President. On " The Ocean, the River, and the Shore." Mr. Robinson. On " The Ocean, the River, and the Shore." It is a book published in London by Routledge, in 1863, by J. W. Will- cock, Q. C, and A. Willcock, M. A., barrister. It was mentioned to me by a gentleman who has taken a great deal of interest in reference to this Case, and has written a good deal about it, and that was the first I heard of it. If you read at Section 11, there it savs:— The coast line is with reference to the presidial line, imaginary, as the pre- sidial line always is. In general, the coast-line follows the shore of the sea, but it crosses each inlet. In the Convention between France and England of the 2nd August, 1839, as to fishing, which was ratified and enforced by the 6 and 7 Vict., cap. 79, the coast-line is fixed at low-water mark, except that in the bays, the mouth of which do not extend 10 miles in width, it assumes a straight line from headland to headland and the presidial line is measured and drawn at the distance of 3 geographical miles from the coast. In America (Angel, 2, 7; Wheaton, 234-235) a nearly similar rule is observed, and, indeed, it may be regarded as generally accepted that bays or channels within the horns of promontories and headlands, however large, are subject to the sovereign of the neighbouring land. 52. Open Sea.—The rest of the sea is the ocean, the high or open sea; it is common to all nations and the people of all nations; every vessel which travsrses it is part of the country to which she belongs; all aboard her are subject to its laws, with some few conceded exceptions. The presidial line, I may mention, is the 3-mile limit; that is the line over which you have power. I need not.wait to discuss that. mmmmmm w ARGUMENT OF CHRISTOPHER ROBINSON. 489 1 In general the coast line follows the shore of the sea, but it crosses each inlet. The rest of the sea 5—it says at the foot of the page— " is the ocean; the highway or open sea; it is common to all nations and the people of all nations. Ever}^ vessel which traverses it is part of the country to which she belongs," and so forth. And then he speaks a good deal more as to the ship on the ocean being the territory of the country she belongs to, and so on, which I need not follow because it is what we all know. I think that expression " common highway of nations' has a good deal of significance in the 445 definitions of the ocean. Nothing to my apprehension is really the ocean unless it partakes of that character, unless it is part of the ocean in that sense, or in something approaching to that sense. But here I do not wish to be understood as giving a definition which is exclusive or which might not be in some respects erroneous. It is not my own definition; it is merely an idea which I get from that writer as to what meaning, in his judgment, he would give to the term " ocean." I do not understand mvself how they can sav here that the head of Lynn Canal is the ocean unless they assert that it is not part of their territorial waters. If it is the highway of nations, if the ocean is the highway of nations, it is perfectly plain that all nations have not got the right of going to the head of Lynn Canal for fishing and trading; they have the right of innocent passage, we all know that, but they certainly have not the right to use as they please for fishing and trading the territorial waters of other countries, and how any other nation can claim to use Lynn Inlet for that purpose, unless it is part of the ocean, is very difficult indeed to understand here. Now, a great deal more could be said about that, but, having regard to the rule which I wish to lay down for mvself, I do not see how I can usefully expatiate upon it. I could cite to the Court from a despatch of Mr. Blaine which is cited in our Counter-Case—in the despatch of 1900, which preceded the Behring Sea controversy— possibly the President may recollect it—I would cite an expression from him in which he says that it is often found in long and protracted litigation that at the end it turns very much upon a single point, and the point that he referred to there was whether Behring Sea was part of the Pacific Ocean. That was, in point of fact, the contest over which the two nations argued and differed for a great many months. But that was the single point: was the Behring Sea part of the Pacific Ocean? Here a great deal depends upon the question, " Is the head of Lynn Canal the ocean?" Can anybody convince himself that in ordinary language—I am not speaking of the negotiations ; I am not speaking for a moment of what the sense at different times may be in which the negotiators may be argued to have used it or not to have used it; I am speaking of the significance of the word as it will present itself to any ordinary Englishman of intelligence and of ordinary education. Can anyone say that he T^ould think for a moment that the head of Lynn Inlet was the ocean? I quite agree again that the term " ocean " may be used in senses where it plainly is not intended to mean the actual ocean as it is universallv under- stood. For example, we had Burrard s Inlet commonly spoken of as the ocean terminus of the Pacific. We all know it was the ocean terminus, but that does not mean the ocean in the sense of being ocean; it means the place where you tranship the traffic in order to w ALASKAN BOUNDARY TRIBUNAL. get to the ocean; in other words, you come down from the interior of the continent, and you get to some water which communicates with the ocean. I should not care if it was 5 miles up a river; still a man might speak of it in that sense as the ocean terminus of the railway—that is to say, it is where you tranship into a ship, and you can get to the ocean from there. I cannot think at this moment of any other popular and common sense in which the term "ocean' would be used. A great many things might occur to one and not occur to another, and that is the only one that occurs to me just at the moment. Therefore I say that a vast deal depends upon the single, simple question: Is the head of Lynn Canal the ocean ? Now, the one thing that has pressed upon me in considering that, perhaps, more than anything else is: Supposing Lynn Canal had been 150 miles long and half the width, upon what principle, according to the arguments we have heard, would that not be the ocean still? - I do not understand—I do not know where you draw the line. It might just as well have been 150 miles long, and it might have been 1 mile broad, and there may be other inlets in other countries of that character. Would it be possible for us to talk of them being the ocean? Is it more possible here? Have we any analogy of any other waters of the same character which go by the name of ocean? We all know, I believe, that the Norway 3> «/ fjords—I do not happen to have seen them myself—are never spoken of as ocean, so I have always understood. I know that to talk of the inlets of British Columbia, which I do know, as ocean, would be simply absurd. I have been up one of them, I forgot the distance, but I think it was 60 or 70 miles, and to talk of being on the 446 ocean there would be absurd on.the face of it. As to " coast," coast often has a local meaning. It is possible that some of my learned friends on the other side can either confirm me or set me right, but I have the strongest impression from recollection, that when I was in New Orleans a great many years ago, it was a common say- ing to speak of the planters who lived up the Mississippi as living up the coast. I think I heard that commonly. If it is true—I do not speak with much confidence there, for it is a great many years ago, and one is always liable to confuse or forget things, but I have the strongest impression that I heard that expression commonly used. If so, it merely shows a local application or a local use of the term j coast." Then passing from Articles III and IV for this purpose, because I may have to come back to or speak of them in connection with another matter—in connection with the character of the mountains and so on—but passing from them for a moment, at all events, for the present, do any of the other Articles in this Treaty assist us in their construction ? Now, we find, as we submit, a very strong argument first on Article VII, taken by itself, and next on Article VII, taken in connection with Article I. There is no question that Article VII—I take it first by itself, and I will afterwards take it in connec- tion with Article I—I do not know that I need read the Article to the Triburfal, for I believe we have all these things by heart, but it says:— For the space of ten years from the signature of the present Convention, the vessels of the two Powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, all —= ARGUMENT OF CHRISTOPHER ROBINSON. 491 the inland seas, the gulfs, havens, and creeks on the coast mentioned in Article III for the purpose of fishing and of trading with the natives. Now, that is clearly on its face a reciprocal privilege; that is to say, by that Russia gives something to England, and England gives something to Russia. Now, if Russia was to own all these inlets, however deep they were, or however far they were from the ocean, in the significance which I have attached to it, it is perfectly plain that England could give her nothing, for she would have nothing to give. There has been no escape from that, and there can be no escape from it, except by saying that that mutual and reciprocal privilege applies to some other part of the coast—that it does not apply to the lisiere. 1 am not concerned to found anything upon the fact that the United States argued in the strongest language in the Behring Sea matter that it applied to the lisiere and to nothing else, while Great Britain argued that it went higher up. Great Britain was not concerned about how low it went, and Great Britain said it included the whole Behring Sea to the Arctic Ocean. I do not think you gain anything in controversy, either international or private, and least of all do I think professional men gain anything, by talking of the inconsistency that their clients may have been guilty of. The President. Quite right. Mr. Robinson. I am not concerned about that. I think that it might have just this effect, that where the argument is spoken of by the other side as being absurd and impossible, and, if I may use the word, astounding, which I find two or three times in our learned friends' Case as descriptive of our argument. If we can find at another time that they have used any argument like it, why it deprives the Argument of the application of that epithet. I do not see much use in these epithets, for this simple reason, that if an argument requires an answer, an epithet certainly will not supply it, and if it does not require an answer, but answers itself, I do not see the use of calling it by names of that sort; it does not help or hurt the Argument one way or another: and if I was asked whether there was any dif- ference between the Argument on the United States' side on this question and that on ours, I would only say that if they would look at that—we have quoted it in our Counter-Case, in our discussion of Article VII, I think at pp. 48 to 54, we have quoted the despatches— you will see there that Mr. Blaine, almost laughed to scorn the idea that this could apply to anything but the lisiere. I do not know that I ever saw stronger language used than is used there by Mr. Blaine as applying to the despatch in which that view was advanced 447 on our part, and he says that " In the judgment of the President the meaning of this Article is altogether plain and clear," and then he discusses certain other matters. He says that these five Articles in the British Treaty—Articles III, IVj V, VI, and VII—I are expressed with an exactness of meaning which no argument can change or pervert." I do not know how you can use stronger expressions. An argument is no more sound by reason of the strength of the words in which it is expressed, but they were evidently as confident as people could be. It is sufficient for me to accept their Argument for the present. I shall do no good by repeating it. All I can say is, there is what they argued and there is the view that they advanced, and I could not put 492 ALASKAN BOUNDARY TRIBUNAL. it in any stronger words; therefore I simply refer the Tribunal to what is said there on their part. One thing, however, is perfectly plain; it includes the lisiere. I do not see how you are to get over that. I admit that if besides including the lisiere it includes something else, the strength of mv argument is weakened, because then you have the argument that you may apply the privileges on the one side given dy Russia to England to one part of the coast, and you may apply the privilege on the other side given by England to Russia to another part of the coast, and that weakens the argument; I do not deny that; I think that does weaken the argument. ' If that does apply only to the lisiere I submit that there is no possible answer to the argument. But if, because the Parties knew what they were talking about, they were eminently intelligent men, they thought of and discussed and negotiated over every word that they used, and every change that was made, and it is no use saying that words were used incautiously, or that stipulations were put in without being thought over. They each thought over everything that could be said about each Article before it was agreed to. The only answer the United States can make is that it applies to the territory below 54 degrees 40 minutes. It cannot apply to the territory above 60 degrees, because Great Britain leaves the coast at 60 degrees, and it is absurd to think that a mutual privilege could apply up there, where England had not anything to give on the coast; therefore it could not apply there. But they say that it applies to the coast below 54 degrees 40 minutes. Now, our answer to that is that it is impossible to suppose that it applies to that coast for this simple reason, that the year before our Treaty was made Russia had abandoned to the United States all the coast below 54 degrees 40 minutes. She was to form no establishments below 54 degrees 40 minutes, and the United States were to form no establishments above. I have seen this Article discussed in various places. It has been said in several places that the stipulation that neither side should form establishments is not a demarcation of territory, that it is only an arrangement made for the purpose of trade. In other words, that it establishes what, in another connection, might be called a sphere of influence on either side. All I can say is that the Parties themselves did not so treat it. If you look at p. 105 of the Appendix to our Case you will see how Count Nesselrode describes it. It never could have been intended by Russia, at all events, to apply above 59 degrees, because of her explicit declaration on this page that she never would give anything there. Ajid while I have that before me, I would refer your Lordship to what I have not heard adverted to, but which strengthens that a great deal. That letter or despatch, as you choose to call it, of Count Nesselrode, was about the end of August, about three weeks after the passage I am now about to refer to, and which is in a letter from Sir Charles Bagot to Mr. George Canning, where he says that there were three points about which the differences were irreconcilable. The third point is as to the liberty to be given reciprocally to each Power to visit, for a term of years, the other part of the North-West Coast of America. § Now, Sir Charles Bagot's remark upon that is:— As regards the third paint, the Russian Plenipotentiaries declared that the coasts of North America extending from the 60th degree of north latitude to ARGUMENT OF CHRISTOPHER ROBINSON. 493 Behring's Straits, the liberty to visit which, under certain conditions, is stipulated in the " Projet" by Great Britain, in return for a similar liberty to be given under the same conditions, to Russian subjects to visit the North American Coasts belonging to His Majesty, are, and have always been, the 448 absolute and undisputed territory of his Imperial Majesty, and that it is not the intention of his Imperial Majesty to grant to any Power whatever for any period of time the liberty which is required. They could not have expressed more strongly in two letters their absolute determination to give no rights above 60 degrees. In that letter at p. 105, with regard to the Treaty of 1824, Count Nesselrode uses this language:— ,We granted to the Americans The President. What page, Mr. Robinson ? Mr. Robinson. P. 105, my Lord, of the Appendix to the British Case. 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 favour of the subjects of His Britannic Majesty; but it must be well understood that this concession will only comprise the space inclosed between latitude 59 degrees and the southern boundary of our territory—to wit, latitude 54 degrees 40 minutes. This shows that Russia regarded herself as having fixed the boundary of her territory at 54 degrees 40 minutes, and therefore they had given up and abandoned all the territory below it. That is the way in which they treat it. You will also find in our Counter-Case on, I think, pp. 52 and 53, that the United States, in their Case, in the Behring Sea controversy, on p. 58, from which we quote, say:— With regard to what may be termed the territorial dispute, it appears, from an examination of the correspondence and Treaties, that the southern boundary of the Russian territories was fixed at latitude 54 degrees 40 minutes north, whereby she relinquished a large portion of the North-West Coast which she had claimed by the Ukase of 1821. f|5i And then they cite that letter, which I have already read to your Lordship, from Count Nesselrode, of 4th September, 1824. Therefore, it would seem, at all events, that both Russia and the United States speak of this provision, that neither Party should form establishments on either side of a definite line, as a relinquishment of territory, and it was practically a relinquishment of territory beyond all doubt. Russia has never claimed below that since, nor the United States above, and I suppose that that term was used for this simple reason, that the only object or purpose for which that territory could be used was for the purpose of forming trading establishments, and when either Party abandoned a right to form trading establishments she practicaly, in that part of the world, abandoned the country. That is the explanation I give to it; at least, the explanation in my own mind why that term was used. They gave up the country, I should suppose, in the same way as people interested in a very large grazing country not fit for anything else, and not likely to be, might say that one Party will not pasture north of a certain line, while the other Party will not pasture south of it, which would mean practically that the one Party gives up the territory north of the line and says to the other Party, You give it up south of the line. There is no other purpose for which the territory could be of use to either of them. 494 ALASKAN BOUNDARY TRIBUNAL. Now, the Argument on the part of the United States is this—at least, so far as I understand it.- They say—and I do not quite understand the way in which they put their Argument; but, at all events, it is at p. 94 that you will find their answer to our Argument. As I understand their Argument it would run in this way:—It is perfectly true that Russia did abandon to the United States all the territory south of 54 degrees 40 minues. Russia knew perfectly well that England had claimed territory there, and that it was in dispute between England and the United States, and she left it to them to 449 settle between themselves what part belonged to each. She thought it might be possible that England would get some territory south of 54 degrees 40 minutes, and if she did she wanted to take in advance the privilege from Great Britain. That is the only way in which I can apply it at all. Russia may have said to herself:— I South of 54 degrees 40 minutes we relinquish the territory to the United States, but the ownership of that will have to be settled some day or other between Great Britain and the United States—" As we know, it was settled in 1846— " and, perhaps, before that time comes, before the expiration of these ten years, Great Britain may become entitled by Agreement with the United States, to some portion of that territory; then we would like to have the privilege." Then allow me to put it in another way. In the application of this Article—that is to say in the United States' Treaty of 1824—by which the United States is given the reciprocal privilege, there is no difficulty. Of course, we all know, arid there is no use adverting to it constantly, but one reason of the difficulty that we find in these Treaties is that the two Treaties were copied from one another, when they related to wholly different subjects. There is no possible difficulty in construing Article VII and its application in the United States' Treaty—not a shadow of difficulty—because the United States' Treaty applied to the North-West Coast, and it had simply a line for a division, and there is no difficulty in applying it there. But it is almost impossible to apply it here, except upon our construction. The United States' Treaty expired in 1834. It was from. April 1824. Mr. Ayeesworth. It was from the 17th April. Mr. Robinson. From the 17th- April. Well, it would expire in April 1834. Our Treaty, by which we gave this privilege to Russia for ten years, would not expire for a year after that. Now, I feel perfectly certain that if, after the expiration of the privilege given by the United States' Treaty, we had undertaken to exercise the right given by Article VII below 54 degrees 40 minutes, the United States would have said to us, " Where do you get that right?" Mr. Aylesworth. Would have said to Russia ? Mr. Robinson. To Russia; but the United States would say," Our Treaty with Russia has expired, it has no application here; you have got to come to us." Would not that be the claim? Therefore I do not see myself—and I venture to submit it to the Tribunal—how this Article can apply below 54 degrees 40 minutes. There is another view. That Article VII applies either to the lisiere alone or to the whole of the North-West Coast. I do not see how you can apply it to any other thing. Now it cannot apply to the whole North-West Coast; that is perfectly plain, because it cannot apply below 54 degrees 40 minutes. How does it apply south of 54 ARGUMENT OF CHRISTOPHER ROBINSON. 495 degrees 40 minutes? I have considered whether it is possible that that Article could have been intended to apply to the small bit between 56 degrees and 54 degrees 40 minutes, or rather between the Portland Channel, which is our limit, but I believe that most people will agree that the reciprocal privilege was never intended to apply to that. There is hardly an inlet in it, unless it is the Observatory Inlet. The President. Or possibly the east shore of the Portland Channel. But that is so very small that possibly it would not occur to them. Mr. Robinson. That is what I meant. I think it is so small and so insignificant it never could have been thought to apply to that. But they say that it applies below 54 degrees 42 minutes. I do not say whether it is plain or not plain. I simply say that I want somebody to answer that difficulty. I want somebody to say what the 450 United States would have said if wTe had gone there. I venture to say that if Russia had come there as claiming under England after the expiration of the Treaty with the United States she would have been told by the United States that she had no busi- ness there, that " we do not recognize any rights in England to come here, and you cannot found any claim for trading down here." Mr. AylEsworth. It does not say that each Party can* resort to the waters and gulfs in the possessions of the other. Mr. Robinson. No, not of the possessions of the other; it says " the coast mentioned in Article III," and the coast mentioned in Article III is either the lisiere, as the United States contended in the Behring Sea Arbitration, or it must be the whole North-West Coast, as I submit. I do not see how you are to draw the line. Then, in addition to that, we found what we conceive to be a very strong argument on Articles I and VII taken together. Now, Article I says practically that it is agreed The President. Are you passing from Article VII, Mr. Robinson ? Mr. Robinson. Yes, my Lord. The President. Well, I should like to put a point to you which troubles me, and I dare say that you or the Solicitor-General will very likely be able to deal with it further. Of course, I perfectly agree with you, and I think it is very sound sense, that we do not want to refer to what people have said in previous Arbitrations at all. Mr. Robinson. I am coining to that, my Lord. The President. But if you can satisfy us that the contention is sound, by whomever it was made, that Article VII refers exclusively to the lisiere, it would, of course, be a very strong point in your favour. Mr. Robinson. Of course it would. The President. What I want to ask you about, and what I should like to hear you or the Solicitor-General upon, is this: it seems to me that the only coast of the continent spoken of, which is the coast mentioned in Article III, is the coast of the continent on which the two Contracting Parties have possessions. Mr. Robinson. Yes, my Lord. The President. Now, is it quite clear that they were not referring to the coast of the continent generally there,* without reference to the lisiere, from the point of view that they did not know to whom the 496 ALASKAN BOUNDARY TRIBUNAL. territory below 54 degrees 40 minutes belonged ? It is perfectly true that Russia had said, " We will not go below 54 degrees 40 minutes "; but the Russians knew perfectly well that Great Britain did not admit America's claim. Therefore, what I should like you to consider, if you wish to say anything further upon it, is whether or not it may not have been a general Article with reference to any possessions that either country might have upon that coast, and therefore, as I might say, independent of the lisiere altogether. One wbrd more, because I do not want to interrupt you, except that you should know the points that are troubling me; the latter part of Article III is a demarcation of a boundary upon a coast rather than a definition of the coast itself. I should like you to help us if you can—perhaps later on either you or the Solicitor-General will tell us whether or not you can strengthen your argument with regard to Article VII of necessity applying either to the lisiere alone or to the lisiere and other parts. Mr. Robinson. All I can say is that I will do my very best, but at present I furnish you with the argument of the United States 451 themselves, in which they confine it to the lisiere beyond all doubt or question, and we say that either Article III applied to the whole of the North-West Coast or it must apply to the lisiere only, and you cannot apply it below 54 degrees 40 minutes, for the reasons I have mentioned. I will consider what your Lordship has been kind enough to suggest, and see whether I can put upon it any stronger construction that it is capable of bearing. The President. Thank you. I think that is such an important point, and that is why I have ventured to trouble you with it. Mr. Robinson. I am very much obliged to your Lordship for mentioning it. Then to take Articles I and VII together. Now, you all know .what Article I says. Article I says that it is agreed that the respective subjects of both Parties may—for that is what it comes to—trade and fish in— Any part of the ocean commonly called the Pacific Ocean, either in navigating the same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied. So that I may not make any mistake, the words are, that— They shall not be troubled or molested in any part of the ocean commonly called the Pacific Ocean, either in navigating the same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied. Now, it would occur to everybody and anybody, I think, as the very first observation, if these possessions are part of the Pacific Ocean, why does not that Article I apply to them? What do they want Article VII for? The first thing that strikes one is Mr. Lodge. Does it not say, Mr. Robinson, at the end of that very Article, of which you have only read a part—does it not expressly say, " as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the following Articles." Mr. Robinson. Oh yes, I was coming to that afterwards. Mr. Lodge. There is nothing exclusive in that. Mr. Robinson. I was coming to that afterwards. I have seen nothing in these Articles,* which I was coming to, which seemed to me to show that if Lynn Canal is the ocean, that does not apply to it. K&S S5RWB S!W !W? ARGUMENT OF CHRISTOPHER ROBINSON. 497 One thing, at all events, is absolutely clear—that they draw a plain distinction there between inlets and ocean: that is to say, thev deal with inlets in one Article, and they deal with ocean in another, and here we are told that this coast of Lynn Inlet is the coast of the ocean. Now, if Lynn Inlet is the ocean, I venture to submit that it is dealt with in Article I. I quite agree with what I have heard said, that at the end of the ten years under this Treaty the United States could not or we could not have claimed to trade in these inlets under Article I, but that would be for the obvious reason that the inlets are dealt with by a separate Article altogether, and are dealt with separately, and that must supersede the general application which Article I would otherwise have had to the inlets. Therefore, I agree so far, but if all that they meant was to distinguish inlets, it seems to me it would have been done by a very few words inserted in Article I. The purpose, I submit, was to deal with inlets in a separate manner, and in a separate way. Now let us see. You must remember that Article VII deals with inlets without any such restrictions as you find in Article I; that is to say, it just says 452 that they may frequent freely and without any hindrance whatever—I mean you shall frequent without any hindrance whatever all the inlets, seas, and so on. Now, the one difference, in the first place, is that they are to land only on such parts of the coast as shall not have been already occupied. I have never quite seen myself—possibly it is very plain, and possibly others can see it quite plainly, but I have never been able to see myself precisely—what that was intended to mean; I mean, not the word " coast," because I submit that tne word " coast" there means the ocean coast, but the provision that they may land on such parts as are not already occupied. I do not suppose it would have been intended to give them the right to land on land already occupied and taken up; therefore I do not quite see the purpose of these words I not already occupied," and if that is the distinction between Article I and Article VII, I do not see myself what the latter was wanted for. Suppose Article VII had not been there, that we had not had any Article VII at all, does anybody imagine that Russia would not have resisted, and successfully resisted, any attempt on our part to trade and fish in these inlets just as we pleased? They would have said—and I submit they would have said irresistibly—" Why, you cannot possibly come to these inlets: they are our waters." We could only have said: " Oh yes, we have a perfect right to frequent them for trading and fishing, because they are part of the Pacific Ocean," and that would have been untenable. That is merely a test of the Argument. Testing an argument by an illustration of that sort does not show whether it is sound or unsound, but it is a test. If I am right in that, that we could not have gone there, then it goes a long way to show that Article I, if it only had been there, would not have affected the inlets. Well, then, the other Articles that we have are Article II:— In order to prevent the right of navigating and fishing exercised upon the ocean by the subjects of the High Contracting Parties from becoming the pretext for an illicit commerce, it is agreed that the subjects of His Britannic Majesty shall not land at any place where there may be a Russian establishment without the permission of the Governor or Commandant; and, on the S. Doc. 162, 58-2, vol 7- 498 ALASKAN BOUNDARY TRIBUNAL. other hand, that Russian subjects shall not land, without permission, at any British establishment on the North-West Coast. Nor does that assist us in any way. That is merely a mutual provision, that they are both agreed upon, that the one is not to land at the establishments of the other without permision. Now, how does that assist us in construing the word " ocean '' in Article I ? I have not been able to grasp that myself. I say that because my not having been able to grasp it thorougtity may prevent my being able to answer it, and there may be something in it that I do not perceive. I do not perceive how that exceptional provision made for an exceptional purpose—a reciprocal provision—affects the meaning of the word 1 ocean " in Article I. Then we have Article V. I never could understand the occurrence of that provision in this Treaty. When I say I never could understand it, I believe it may have got there because it was in the American Treaty and we copied it. It is perfectly absurd in our Treaty,, and it must be useless. We have agreed upon a demarcation of territory, and when we have so agreed there is no use adding " and neither party shall form establishments on the territory of the other." It is perfectly useless, but we have it there, I think, just because that was the form of words adopted by the Americans in their Treaty in demarcating, as I have suggested, their respective territories—at all events, in describing the line between them—and being there we copied it and put it our Treaty. But how it adds to our Treaty, or what the object of it was in our Treaty, I have never been able quite to understand, because it merely says that no establishment shall be formed by either of the two Parties within the limits assigned by the preceding Articles to the possessions of the other, and then it goes on, " Consequently * * * " merely illustrating it. Then we say that these two Articles taken together furnish a strong argument that the term " ocean " in this Treaty was construed in the term usually applied to ocean, and that when they gave privileges on the ocean they never intended or thought of applying 453 it to the inlets. Another illustration of that is in Mr. Middle- ton's letter of the 7th April, 1824, in the United States' Case Appendix, at p. 79. He said that:— The specific and particular privileges granted by the Article (which, upon examination, will be found to contain an extension of the general privileges embraced by the preceding Articles) — He was speaking of Article IV, which was equivalent to our Article VII— will, of course, cease after ten years, unless renewed by mutual consent. It would seem to me that Mr. Middleton, in speaking there, says that it gave him some privileges which he did not get by Article I, and therefore he supports our Argument that Article I did not apply to the inlets. (Adjourned for a short time.) Mr. Robinson. I was dealing with the Treaty; and I intend to say just a few words about the southern boundary—but very few. Article III defines this boundary. Now, there is really little to be said about the first two courses. I only mention them because I have had ARGUMENT OF CHRISTOPHER ROBINSON. 499 an opinion as to one of them which I do not think is universally shared. Commencing— It says— from the southernmost point of the island called Prince of Wales Island, which point lies in the parallel of 54 degrees 40 minutes north latitude, and between the 131st and 133rd degree of west longitude (meridian of Greenwich), the said line shall ascend to the north along the channel called Portland Channel. Now, there would seem to be no question as to the commencing point. It is a simple illustration of falsa demonstratio. If I were to lecture to a class of law students, I might use it as an illustration. If a man should leave a legacy to his son John, and descrbe him as being 25 years of age, John would get it if he was 30 years of age or 21. And this is precisely of the same character. The starting-point is fixed. Just as if you said, " commencing at a stone monument 50 feet from the intersection of two streets, and it should be found to be only 40." I do not know that anything more need be said on this. Then it says:— Commencing at that point the said line shall ascend to the north along the channel called Portland Channel. Now, no doubt that is not a description which any lawyer, or any intelligent surveyor, or any lawyer's clerk, would put in a deed. It could not have been framed by anybody who had before him a map, or in his mind's eye the features of the country, or thought exactly what he was speaking of. But I have never seen myself that there is any serious difficulty about it. If I may illustrate it by a verv com- mon example ? If I were standing on Pall Mall, for instance, at the foot of St. James's Street, and I were to ask a man where Leicester Square was, and he said, " Why, you go east along Piccadilly "—I should have thought the first thing for me to do was to get to Piccadilly ; and I think here the direction is implied—go to Portland Channel, and then go north along it; that is all. I do not mean, as I have said before, that any careful man would have drawn such a description; but I think it simply means, " Go to Portland Channel, and go north along it." You cannot go north along Portland Channel till you get to it; and you are told to go north along it. It seems to follow that the direction is implied to go to Portland Channel. That is the way in which I should have looked at it. It is another question altogether which is Portland Channel. But my learned friends have always said, and have argued at some 454 length, and insisted that it means go along 54 degrees 40 minutes. I must confess that I never saw a more typical example of putting things in a Treaty which you cannot find there from end to end. The Treaty made a year ago with the United States named 54 degrees 40 minutes as the limit between the Russian and American possessions, and therefore they say it must have been intended. All I can say is, it is not there, and we cannot put it in on that extrinsic evidence. Well, when you come to the question, what is Portland Channel, it is sufficient to say that, if you are to refer to Vancouver's narrative, it is beyond argument; and the United States have felt this difficulty. They had to make out that Vancouver's narrative was not before the 500 ALASKAN BOUNDARY TRIBUNAL. negotiators, because Mr. Dall, their most experienced man, has said in the very plainest language in the United States' Counter-Case Appendix—p. 105—that if you are to test the Case by Vancouver's narrative they must lose Wales and Pearse Islands:— * * * by Vancouver's text, it will result in giving to Great Britain the above-mentioned islands and some other small ones. Therefore my learned friends had to get over this difficulty. In the first place, it is very curious that, while Mr. Dall was alive to all these difficulties, it never occurred to him to suggest that the negotiators had not Vancouver's narrative; and it is contrary to all probability and to every reasonable presumption, to say that they had not. If you look even at Mr. Pelly's letters, p. 22 of our Case Appendix, you will find that Mr. Pelly refers to what Vancouver did as one would to Euclid if you were talking about mathematics. Now, here were two Powers. I am putting on one side for the moment the instances—and the conclusive instances, as I submit—which the Attorney-General gave, showing that they actually knew it; but Vancouver's narrative was not only the best information, it was the only information: and as Mr. Dall seems to be aware—the United States' Appendix Counter-Case, p. 99—the two were published together, that is to say the Atlas and narrative were published together—they were not separate publications at all; the Atlas was published in connection with and for the purpose of illustrating the narrative, and it passed through four editions, one a French one. Well, here are two of the most intelligent nations negotiating for three years over a country of which the only authentic information was given by Vancouver's narrative—and can we suppose for one instant that those two Powers had never seen the narrative and did not know what was in it? It is simply to go against every probability in the world. You are only giving them credit for the most ordinary intelligence to assume otherwise. If I were to say more it would only be repeating what the learned Attorney-General has said and what he has cited to you in several different passages. j§ I could not make it stronger nor could I pretend to make it as plain. As I have said, if you look at what Mr. Pelly says, he says that Vancouver in such a year explored from so-and-so to so-and-so, which he must have got from this narrative. The truth was, everybody interested in this country knew Vancouver's narrative just as we should know the only book in which any information was contained of any particular country which we were endeavouring to make a bargain about. They all spoke of it and they all referred to it. It would be only a waste of time and argument to prove that Mr. Dall was right when he said so. It has been proved, as I submit, already by what has been said to the Tribunal. Then as to the line going from the head of Portland Channel— there is the difficulty that Portland Channel did not go up to 56th degree, and what proves more conclusively than anything else that these people had not the maps before them is that they showed it did not go up to the 56th degree, yet they said, " Go along Portland Channel till you get there." I do not think it makes much difference whether you go along Portland Channel in its general direction to 56 or whether you go from the head of Portland Channel by the most direct route to 56 degrees, because in either case you have got to get ARGUMENT OF CHRISTOPHER ROBINSON. 501 to the mountains that border the coast. And what are the mountains which border the coast? This sends you back to the Treaty, Articles III and IV. Now, I will not discuss that at this 455 moment, because it would involve me in a little repetition, for what I have to say about the negotiations applies to a certain extent to that. >3§! Now, I turn to the negotiations. If I may venture to express my own view of this matter, I would say—and I suppose that it is accounted for by the fact that the negotiations are long, very long, while the Treaty is comparatively very short, that about four times as much time has been employed in discussing the negotiations as has been employed in discussing the Treaty. I could not myself express the diametrically opposite view which I venture to hold from that held on the other side better than by citing to your Lordship Mr. Watson's remarks on p. 415—that is the tenth day, when we—that is, Mr. Watson—1had been from the middle of the day before, I think, discussing this question, and to a large extent occupying the time in going over the negotiations. I do not find any fault with that at all. The negotiations are long. If you are going over them you must take a long time. But when he has done that, my learned friend, at p. 415, says:— And I now ask you to turn with me to the Treaty for a while, and see what assistance we can gain from the Treaty with reference to what this mountain range was to be along which this crest was to run. I should venture to think that the first thing that you had to do was to discuss the Treaty, and then turn to the negotiations to see if you could get any assistance from the negotiations in construing the Treaty. Now a great deal of time has been occupied in discussing upon the negotiations, first what sort of Treaty ought these Parties to have made; and, in the next place, what sort of Treaty were they willing to make at one time or another, because there is no doubt they were willing to make very different Treaties at different times; next, what sort of Treaty did they intend to make; and, lastly, what sort of Treaty is Greaty Britain bound to admit that they did make ? Now, all those four questions have been discussed and argued pro and con. on the negotiations, and they have left out altogether the simple question, "What sort of Treaty did they actually make?" which, I venture to think, is the first thing we have to ascertain. There are two or three ordinary rules of construction that are indis- putable, as well from their common-sense as because they are rules of construction in common law. We have heard a great deal in the course of the argument about " range " and " chain." " Range " and " chain " are not in the Treaty—neither of them. We find that both " range ' and " chain ' have been mentioned at different times and at different parts of the negotiations by the negotiators. What is the inference, when they are neither of them mentioned—chain nor range—in the Treaty ? Why, it is that they thought they were words that would not express their meaning as well as what they did use in the end. Or, if they meant anything when they said " chain' or | range," they dropped that meaning when they came to the Treaty. It is a known rule that the more clearly you find in the course of negotiations that either one party or the other has been anxious to get something, if when you come to the Agreement this is not put in plain words, the irresistible inference is that he did not get it. 1 502 ALASKAN BOUNDARY TRIBUNAL. If I had been saying all through negotiations, " I want to get this, and I insist upon this," and you found that in the bargain there was not a word about it, the inference would be irresistible that I could not get it. Because if I always had it in my mind, and was at liberty to express it, nobody could doubt that I would have expressed it. Those are not so strictly rules of law—they are rules of ordinary common-sense. If I may speak for a moment of how far negotiations are admissible at all in the construction of Treaties— and here I may as well at once profess my ignorance—it is a rule of common law, I have always understood, that when a bargain is made, the previous negotiations are superseded altogether. They are not admissible, and you cannot refer to them, for the simple reason that the contract supersedes them. It does not make a bit of difference what one side or the other has been trying to get, or what one side or the other has been willing to give, at some time during the negotiations^—that has nothing to do with it. Now, that is the rule of common law; and we are told in a 456 treatise, which I have no doubt is. of authority, because I believe it is a treatise which was written by one of my learned friends on the other side, that the rules for construing a Treaty are precisely the same as the rules for construing any other instrument. It is all very well to say that, but it is no use my urging that rule upon the Tribunal, because we know that negotiations on the question of the construction of Treaty have been referred to in other cases, and always are referred to. They were referred to in the Behring Sea, and they have been referred to on both sides here at length. And I fancy there are two reasons for that. In the first place, negotiations between nations, evidenced by their protocols and despatches, are much more formal and precise than negotiations between individuals; that may be one reason. In the next place, the rules of evidence are not uniform in all countries. I take a Treaty between England and France. The rules of evidence in France, as we all know, are much more loose and elastic than they are in England. Well, if we have a Treaty with France, I should like to know what rules of evidence we are to apply to its construction. You have first got to settle that, and therefore it is difficult to contend that the strict rules of common law always apply to the construction of a Treaty. But there is this to be said: that here are two nations, both governed by the common law of England, both appealing to that common law, and it is more reasonable to say that the rules of that law of England should apply here than it would be in a contest between two nations where the rules as to the admissibility of evidence are different. I think that is a reasonable view to take, though I do not know that it carries me very far. And at all events we have got the negotiations here on both sides. I do not for a moment disparage the arguments that have been addressed to this Tribunal on the negotiations; they were arguments absolutely indispensable because both sides appealed to them, but I will venture to say there seldom has been a case where negotiations were of less value, or to which one could appeal with less confidence to them, than here. What have we got? We have two nations negotiating for three years over a territory of which neither of them knew anything, and, I think I may venture to add, for which neither of them ARGUMENT OF CHRISTOPHER ROBINSON. 503 cared very much; and we find throughout these negotiations that at one time one side offered to give something which they afterwards retracted; or the other side afterwards conceded something which they afterwards were not willing to concede; and at different times throughout the negotiations we find that they used different language very indifferently. They were negotiating in this way for three years; and it is not by any means an unimportant circumstance to point out that the representatives were changed at different times, that is to say, Sir Charles Bagot was the British Representative at one time, and M. de Poletica for Russia, and at times those Representatives changed. Then we know that Mr. Stratford Canning in the end was nominated as the final Representative of Great Britain—and to argue that what Mr. Stratford Canning said in the end is to be tried by what Sir Charles Bagot or somebody else said during three years before, strikes me as reducing the thing to an absurdity. I do not mean to say that you should not appeal to those negotiations at all, because, for the reason I have mentioned, it seems to me almost impossible to exclude them, but I do say that I never knew a case in which any Tribunal, finding themselves at a loss, could rely with less confidence on the negotiations than here, for the reasons I have pointed out. I only say that because I have said in the beginning of my remarks that I did not intend to read these negotiations at length, as thev have been read: and Iam perfectly certain that if I began to read them I should find something in one year that suited my view of the Case, and mv learned friends might find something in another year that would suit their view, and I do not know that either side would be very much benefited by referring to them. I quite understand that if Ave had lost this Treaty, if it had been burned and we were trying to reconstruct a Treaty from the negotiations, then the negotiations might be of some use to us, but I should like to see the Treaty that anybody would concoct from them. That is a fair test of the value of negotiations. Supposing this Treaty, as I say, had been lost in some way or another, and supposing the two sides, or anybody—an impartial jurist—had been set to construct a Treaty 457 from these negotiations, all I can say is he would be set a most hopeless task, because he would find the Treaty at one time would be one thing and at another time another. What^they said before, or what they said at different times, is not the question. The question is, what did they finally agree upon? Then we find at all events that what they agreed upon, whatever its merits or demerits may be, has to a certain extent the merit of brevity—it was comparatively short. They agreed upon something which is expressed in very few pages. Now, as regards these mountains, what it savs is: The line is to " follow the summit of the mountains situated parallel to the coast as far as the point of intersection of the 141st degree of west longitude "; and then it speaks in Article IV of the summit of the mountains I which extend in a direction parallel to the coast." I do not think that there is very much difference between " situate parallel to the coast | and 1 extending in a direction parallel to the coast." I am not clear what the difference is. I do not know that they intended any difference. W7hat we find is that when the coast line comes in, it is to be formed by a line parallel to the windings of fhe coast, and 504 ALASKAN BOUNDARY TRIBUNAL. which shall not exceed a distance of 10 marine leagues therefrom. I myself venture to suggest that there is very great doubt whether the Parties ever intended the coast line to follow the sinuosities of the coast in any different degree or any closser degree than the mountains would. The mountains were to be situated parallel to the coast, or to extend in a direction parallel to the coast. The coast line was to follow the sinuosities of the coast. Mr. Aylesworth. The boundary line. Mr. Robinson. The boundary line. When I say the coast line I mean the line governed by the coast. The President. The coast boundary. Mr. Robinson. I question very much whether they ever had any difference in their minds. The mountains were, generally speaking, to extend parallel to the coast. . The line governed by the coast, to be measured from the coast, was to be parallel to the sinuosities of the coast. There are such things as the sinuosities of the general coast and the sinuosities of each particular inlet, and I venture to think that there are the strongest doubts whether these negotiators ever intended one line to be more parallel than the other. I have said that I do not attribute any very great importance to these negotiations. I cannot deny their admissibility; I cannot deny the propriety of looking at them, but I think before you look at them, or before you think of them, the first thing you have to do is to look at the Treaty; and if the Treaty does not afford room for doubt—a reasonable doubt I mean—if you can construe the Treaty without calling in the assistance of anything else, then there is no object in looking at the negotiations. I quite admit that you must construe this Treaty, and I might have said that in the be- .ginning of my remarks, that you must construe this Treaty in the light of the general knowledge which the Parties to it possessed, that is the every-day rule we are all familiar with. You cannot construe a will without knowing what property the testator possessed, what sort of property he was talking about. You cannot construe this Treaty without knowing what sort of country it Avas talking about, what knowledge the people who made it possessed of that country; that is admissible as matter not merely of common law, but of common-sense. You cannot talk about a Treaty intelligently until you put yourself in the position of the men who were making it if you want to find out its meaning. * But all that you can find out is, practically, that the negotiators knew nothing about it. This country was just as unknown as the North Pole, and when you talk, as I have heard some expressions intimating'that one has a right to talk, of the knowledge of the negotiators about these mountains, and what they believed about these mountains, and so on, it is no exaggeration whatever to say—and I do not mean it for an exaggeration—that the negotiators knew no more about the mountains of Alaska than about the mountains of the moon. All that Vancouver knew about them was what you could see from a ship going along the coast or from a boat going up some of 458 the inlets. And, in addition, it is what you could see in the foggiest climate on earth. There is no climate where you could see so little. I do not know; I only speak from general recollection, I cannot be accurate, but I think we were told that in the Pribyloff Islands—north and west of this coast—there were about ARGUMENT OF CHRISTOPHER ROBINSON. 505 eleven clear days in the year; and we all know to this hour that when people talk about taking a trip to Alaska, which is one of the most magnificent trips in the world, you are always told, " Yes, it is a very magnificent trip if you could see anything," but you have no certainty of seeing anything, because the fog is so common, for reasons that meteorologists give us, and that I need not enter into at all. The President. Perhaps that is the reason Mr. Watson compared the climate to London. Mr. Robinson. Well, it may be that. Ithink it is a little like the fog in London; I believe it is a clearer fog, and at all events a saltwater fog, which is of some advantage, but I mean that all that Vancouver could see—and we have to put ourselves in his place because we are going by his knowledge—all that he could possibly see was that this was a mountainous country. Then, we know by the evidence of Mr. Dall and the evidence of Dr. Dawson and everybody else, that these maps are framed in a conventional way. That is to say, the signs which represent mountains here mean only that it is a mountainous country. That is all that they profess or pretend to represent. If there was anyone who was disinclined to represent more than he could represent with truth, it was Vancouver, and Vancouver simply said: I have looked at this country from some of the inlets and from my ship at sea, and all I can tell you is that everywhere I look I can see mountains. That is all he knew about it, and all he could tell you about it. Therefore, it seems to me to be idle to talk about the negotiators being willing to take what Vancouver's maps represented. Vancouver's maps represented, and were intended and known to represent, simply what he could see, and what he represented was that it was a sea of mountains. WTien I say " a sea of mountains," I mean he saw nothing but mountains; he could not see any level land. Then, if that is the case, to my apprehension, and I submit to the Tribunal, the most important argument, that we can derive from the Treaty as to the character of these mountains is this—the negotiators knew what Vancouver professed to represent. The negotiators knew what Vancouver knew; I do not mean that they knew personally all that he knew, but I mean they knew what the extent of his knowledge was, and they therefore, when they framed the mountain line, must have intended to say the mountain line that we require by our Treaty is just such a mountain line as we think you are likely to find %/ O v ms from this description. They did not mean anything more, because they could not have meant anything more. Then, if they meant that their intention in the Treaty is satisfied, they meant the summit of the mountains; that is to say, that different summits of the different mountains along which you could run a line more or less regular, more or less connected. But my learned friends say it must be a continuous chain. To begin with, I dispute altogether the proposition that a chain of mountains must be continuous. I should like to ask anybody if we had mountains running from the coast of Labrador down to the Atlantic coast, and separated by the St. Lawrence, would anybody pretend to say it was not a chain of mountains, or a range of mountains, because the St. Lawrence intervened. It is a chain of mountains just as much whether it is ... 506 ALASKAN BOUNDARY TRIBUNAL. intersected by rivers or by inlets. And it is a range of mountains just as much. The truth is that the word " chain'j does not imply continuity. I have read, and you constantly hear in military language of a " chain of posts." Well, a " chain of posts " is not continuous, and I find, curiously enough, for it is a mere coincidence, that on p. 63 of our Case Mr. Pelly says: It may be proper for me to also mention that the Hudson's Bay Company have a chain of trading posts on the Mackenzie River. He meant by that just what we all mean by a chain. You constantly hear, in military language, that there is a chain of sentinels posted round a place, and it is impossible to pass them. That does not mean that the sentinels are touching each other or that they are connected with each other in any way. The truth is that " chain," like any number of other words in our language, is used in different senses depending upon what it is applied to, and fhe 459 connection in which it is used. If you talk of a chain by which you might drag a cart along, it is a continuous chain. If you talk about a chain of mountains, or a chain of outposts, it is a totally different thing. 'When you speak of a cordon of troops—which is a very common expression—" cordon," I believe, in French means " rope"—that just means it would be continu- uous if the rope were used to drag a man along by; but it is not continuous when you talk about a cordon of troops; and I do not know that you gain any great advance by discussing these terms in that way. ms I have discussed them for this reason, that my learned friends have s ms remarked with great emphasis upon the expression " chain of mountains," which is used in two or three places. Where is the requirement of continuity, if they are right in saying that chain implies continuity, when it was used by two or three of the negotiators at ms s ms ^j two or three different times, but dropped before they came to the Treaty or when they came to the Treaty. Why was it not imported into the Treaty ? I intended to refer your Lordships to some extracts which I have here as to the construction of Treaties. It is an article, in the first place, by Mr. Wheaton, and in the next place from Mr. Taylor's work on " International Law," and I am not in the least in the world referring to it as binding him, but it is a very late work, and I suppose an authentic work. I have not found anything in it, at all events, that I have the least disposition to dispute. He there says: ms The rules governing the construction of Treaties are the same as those applicable to the construction of other instruments, public and private. " Public Treaties are to be interpreted like other laws and contracts." Then Chief Barori Eyre says:— Courts of Law, when a Treaty is brought before them incidentally, must say how it is to be understood between the parties to the action, and in doing this they have but one rule by which to govern themselves. They are to construe the Treaty as they would construe any other instrument, public or private; they are to collect from the nature of the subject, from the words and the context, the true intent and meaning of the Contracting Parties, whether they are A and B, or happen to be two independent States. When, however, we come to construe Treaties in such a Tribunal as the present, we do not apply all the same rules of admission of evidence. I do not pretend to say to what extent we do not apply DRMH ARGUMENT OF CHRISTOPHER ROBINSON. 507 them, but we do not apply them fully; but it is somewhat significant that here are two nations differing, and they are two nations gov- ernd by the same rules of evidence precisely, and therefore there is less hardship in applying the same rules to them than* there would be between two nations where the rules of evidence were not the same; I do not desire to press it further than that. Well, we have heard a good deal about the intention of the Parties and the word " intention." I do not think my learned friends in their Argument really intended to construe the word " intention " in a different sense ms from that in which I construe it, but they certainly have put it in much more comprehensive and unqualified words. I do not think there are any plainer words in which you can put the rule, though it is in the form of an epigram, than it was put by Lord Westbury, I think, on one occasion in which he said the intention of a will is not what the testator intended, but what his words mean. Now, that is just the whole point; it is of no consequence to find out what the testator intended; the question is, what the words which he has used mean. There was, if I remember, a very typical case about the construction of a will, in which a gentleman left a certain small sum of money to every Roman Catholic in a city, and the result was it exhausted his estate, and there was not half enough to fulfil the bequest. He intended to say every Roman Catholic priest, and he had told fifty people that that was his intention and he was going to do it, but it did not make any difference. They could not put the word j priest" in the will, and the result was, to use a very common expression, there was not enough to go round—you could not carry it out. Therefore, I say, there is little use in talking about what " chain 1 means or what " range' means. I do not think Lfc range' means more than " chain." For instance, talking about a range of 460 hills, it is a common expression to say that the range of hills along a particular coast was lit up by bonfires on some special occasion, as we all know. I remember at all events reading in history that when the invasion of England was apprehended, the people were all stationed along the coast, and they were to light the bonfires on the numerous hills round the coast to give warning when there were ships seen at sea which seemed to be of the character of invading ships. Well, there would not be the least incongruity or error in saying that the whole range of hills around the coast was lit up by bonfires. It would not be a connected range of hills, it would not mean a uniform range of hills, they would zig-zag and go in different directions. They would have level land between them, but it would be a range of hills.^ Now, I submit that all the negotiators here thought, or could have thought, was that there must be some sort of range which would answer the words in their Treaty, and they were not very particular about its being continuous, or about its being regular in the sense of being straight. Why should it be? The country was not so enormously valuable—it was not worth so much per acre or so much per foot. They did not care about half a mile one way or another. So long as they could get a range of hills or a range of summits where they could see from one to the other they were satisfied, and you could connect one with the other. And as to saying that it was to be continuous and it was to be a barrier, what is the difference between montains sepa- A 508 -ALASKAN BOUNDARY TRIBUNAL. rated by a river and mountains separated by an inlet?—in neither case can they be continuous. A great deal of weight is attributed to the fact here that the mountains run round the inlets. Of course, they run round the inlets The mountains, if I may so express it, are land animals and cannot tains run round the inlets. Of course, they run round the inlets, and to say that in a particular country the mountains run round the •.inlets, is simply to say that there are mountains. They cannot get across them, and you do not get, I think, very much further, but I submit again that a great deal of importance is to be attached from this point of view to the fact that the negotiators knew perfectly well that nobody knew whether there was anything like a continuous or a ms ms Cj straight or regular chain of hills or mountains; but they thought that in a mountainous country they could find summits sufficiently con- i» -* ** nected and regular to make a sort of boundary that would answer their purpose, and they did not require anything more or intend anything more. I simply put it to the Tribunal—I consider the position of these negotiators—they knew just as much as anybody else in the world knew—they knew that this was a mountainous country, and they say, 1 Very well, then, give us a chain of summits, and that will do." It is absurd for anybody to say that by that chain of sum- ms ms ms ms mits they must have meant a connected chain or range. " Mountains, as I understand it, are separated by valleys, at all events, practically a range of mountains is never connected or a chain of mountains is never connected except by the general range of their peaks either regularly or irregularly, connected or disconnected at whatever distance they may happen to be, and I see no great difficulty in running a line from one peak to another. I understood my learned friends to have contended—but I was «/ not absolutely certain whether I was right or not, and I am always open to correction—that when these mountains in any place were found to be distant more than 10 miles, the mountains must be given up altogether. The President. Or disappeared. Mr. Robinson. Or disappeared. Now I submit that you cannot put that construction upon it. In the first place the Treaty does not provide for the absence of mountains at all. The Treaty simply provides for the mountains being beyond a certain distance from the sea. The Treaty in point of fact is framed and based upon the existence of a mountain chain, but it says if this mountain chain which will / ms satisfy us, is in any particular place found to be more than 10 marine leagues from the sea, you must not follow it there—you must at that point draw a line not more than 10 marine leagues from the sea— from the ocean—or from the coast—I am not now going back to that old point; you must draw a line within 10 marine leagues con- 461 necting the mountain range. I thought that " partout " meant " in every place," that where in any place the mountains are more than 10 marine leagues from the sea, then you must draw the line 10 marine leagues to connect the mountain chain, and that is plainly expressed in our Case—the British Case Appendix, p. 116. Now, that is of importance, if anything is of importance in these negotiations, because it was the final "draft that Mr. Canning sent to Mr. Stratford Canning, and Mr. Stratford Canning as you will all «jMI ARGUMENT OF CHRISTOPHER ROBINSON. 509 recollect, negotiated the Treaty and wrote to Mr. George Canning, that he had negotiated it exactly in conformity with his instructions, so that we have some little indication at all events of what Mr. George Canning meant, and you find Mr. George Canning suggesting these words in his draft—" Provided, nevertheless, 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 Pacific, then that, for that space, the line of demarcation shall be a line parallel to the 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 leagues from the coast." You cannot get anything clearer. That is what he meant, and that is what Mr. Stratford Canning thought he had expressed, because he says:— ms I have drawn this in exact conformity to your instructions. WTiile I am upon that, and speaking of the negotiations, I should not like to omit, or to forget, the final letter of Mr. Stratford Canning, because it is of great importance. Mr. Stratford Canning, in writing, after the conclusion of the Treaty, to Mr. George Canning, says that something has been said about some other Treaty, or Protocol, or some other secret Treaty. But he says The President. What page, Mr. Robinson ? Mr. Robinson. Page 134—the 3rd April. 1825—Mr. Stratford Canning to Mr. George Canning :- You are aware, Sir, that the Articles of the Convention which I concluded depend f«r their force entirely on the general acceptation of the terms in which they are expressed. Now, there could not be a stronger intimation than is contained there that you are not to construe this Treaty by the preceding negotiations or bv what either party may have meant in something they have said between themselves, but you are to construe this Treaty by the words which it uses; and at least when we advance that, we advance a rule that cannot be otherwise than a rule in the law of any nation. Whatever may be the rules of evdence, whatever evidence ms s may be admissible, I venture to think that no nation has any other ms s m. rule that to construe a Treaty by the words in which it is framed. ms ms m 0 # There cannot be, because you would have no certainty in governing the transactions of business by agreements if agreements were to depend on what the parties had said or written at different times previously; there would be no certainty in any business transactions; and if there is a business transaction more than another, or rather a transaction which is more a transaction of business than another, it probably is a Treaty of this kind. Then we have at all events that declaration of Mr. Stratford Canning, and remember this because that also is of great importance. Mr. Stratford Canning had not been a party to the previous negotiations. Whether he knew anything about them, or whether he had examined them carefully, of course I have no means of knowing more than anybody else. But Mr. Stratford Canning was sent there after the negotiations had been broken off either twice or three times, and he was a new representative. xAnd he was sent there with a draft of a Treaty which Mr. George Canning submitted to him and told him was what he 510 ALASKAN BOUNDARY TRIBUNAL. w m would agree to. And Mr. Stratford Canning says he has concluded a Treaty in accordance with his instructions. Now, is there any reason or justice or common sense in construing that Treaty by what other negotiators had agreed to two 462 years before, or one year before, or were willing to agree to? It is for these reasons that I have been so strongly desirous to submit to the Tribunal that there never was a case in which the previous negotiations were of less value. You may look at them as you like, and I have no hesitation in admitting that where I may find something in my favour in the year 1824, my learned friends may find something in their favour in the year 1823, and I may find something agai in my favour'in the year 1822, because the negotiations went on from 1822 to 1825. cp But we have in the end practically dropped these negotiations, because Mr. George Canning says, in effect, to Sir Charles Bagot:— You have tried several times, you have always come to a deadlock, always broken off upon something; you have always been unable to agree, and you have given it up. Now, I am going to send a new representative there with my instructions, telling him what sort of a Treaty Great Britain would be willing to agree to, and he goes there with that, and with nothing else. He has got nothing to do with what other people have agreed to, or failed in agreeing to, or have succeeded in agreeing to. He has got to make a new Treaty, and I tell him what we will agree to. And he speaks, at p. 116, which I have cited, as to the mountain boundary in about the clearest words a man could use. Mr. Stratford Canning goes there, concludes a Treaty, and says he has concluded a Treaty in accordance with his instructions. Arid recollect that here ms all prior engagements of one kind or another are put an en* to, and this Treaty is to depend upon the words in which it is expressed. I venture to submit that it is very hard to find a case in which a Tribunal, desiring to arrive at the exact agreement which these parties made, should be less influenced by the negotiations. Practically, the previous negotiations were wiped out; they had been ineffectual, they had come to nothing. Sir Charles Bagot had been unable to get the Russians to agree to anything which he was willing to agree to, or was authorized to agree to, and he practically said: It is no use my trying. I suppose then Mr. George Canning said: Very well, if you cannot succeed in doing anything, I will send another representative, and, further, tell him precisely what I am willing to agree to. He sends him, and then within a very short time—I forget the date of his instructions—p. 116,1 read to your Lordship just now. The President. 28th December—two months before. Mr. Robinson. 28th December, and they made the Treaty in February—within two months. He says: I have sent another representative, and I will give him a draft of exactly the Treaty that we are willing to agree to. And in February—three months afterwards—he gets a letter from that representative saying in effect: I have concluded a Treaty exactly as you authorized me. And remember that that Treaty is intended to mean exactly what it says. I should be wasting words if I were to insist longer upon the only point that I desire to make upon the negotiations, that they cannot ARGUMENT OF CHRISTOPHER ROBINSON. 511 be considered in any way or shape as controlling this Treaty, and that practically they cannot be considered as throwing any light on this Treaty, for the various reasons that I have tried to advance. Then, if the negotiations will not give us any certain light, the next question is, what does the Treaty mean ? I have spoken of this Treaty with the exception of Question 7, addressed to the Tribunal. As to what is the meaning of Question 7, I think I have incidentally been led rather off mv line. I have said what I wanted to say about those mountains. I do not know that I can give the Tribunal any assist- ance about the fourth course. You cannot get up to the 56th parallel by the Portland Channel; and curiously enough they knew it if they had looked at the maps, but they said you are to go along Portland Channel, to the 56th parallel. I am not quite certain what that means, nor am I quite certain, I may say now, what Question 7 means, and I should like just to say a word upon that Question. It is in a very few words: if it is not very clear, at all events it is very short. «/ ms 7 «/ What, if any, 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? 463 What I have never been certain about is whether that is sub mitted as a question of law or a question of fact, or both. Mr. Dawson and Major-General Cameron both strongly urged that there was no use sending a surveyor until the Treaty, had been construed. It would be sending surveyors on a wild goose chase to find out a line until they knew what sort of a line to look for, and you must first construe the Treaty before you have a survey. Now, I never have ms ms ms 7 been certain in my own mind—and I have no knowledge as to how this Treaty came to be framed, or by whom—I have never been quite certain when it says what, if anv, are the mountains—whether it mJ 7 mJ 7 means, first, what kind of mountains does the Treaty require—a continuous chain or a regular chain, or what does it require ? And when the Tribunal has answered that you may ascertain, possibly from the information given by the Commission, possibly by resort to expert evidence which you are empowered to get, you may ascertain whether it is there or not. But I have alwavs doubted whether the intention mJ of that was not to ask the Tribunal, what does the Treaty mean? Does it mean to ask you whether the mountains which the Treaty requires are a continuous and regular chain, or whether they are a chain of summits more or less connected, more or less regular? I have been the less certain because it savs:— What, if any exist, are the mountains referred to as situated parallel to the coast, which mountains, when within fo marine leagues from the coast, are declared to form the eastern boundary? I do not know exactly what the meaning of these words is, " if any exist." Does it add anything one way or another ? ms <~J ms The President. Does not it rather seem to say that if the evidence satisfies us that there are any, we are to indicate that. That is what ms 7 I think the words " if any exist " mean, but I am not sure ? ^?pc> ms 7 Mr. Robinson. I think it may mean that, my Lord. */ 7 ms The President. Because, you see, it is coupled with this power to send experts if we want experts. Mr. Robinson. Yes, it is. Then it would mean that your Lordships are to determine whether there are any mountains. Well, now that 512 ALASKAN BOUNDARY TRIBUNAL. would bring it to a question of law. First, your Lordships are to say what sort of mountains are required. Then look at the evidence furnished by the Commission to see whether you know they are there. ms ms m7 Then if vou do not know whether they are there*or not, vou are to *J ms ' «/ send experts to find out. That is as far as I can get in the construction of those words. I never could quite make out whether it was a question of law or a question of fact, or a mixed question, as we sa^y in the law, of both. Now, with regard to that question I was speaking of. I do not see myself that it makes any great difference what line you take from the head of Portland Channel to the 56th degree; you have to go to the mountains bordering the coast. You have to get there by the most direct line, and you have to find out what the mountains are 7 m7 bordering the coast, and that vou can only find out by reference to Article III, so that it is merely a repetition of the problem that is before you in construing that Article. Before you can construe Article III, you have to find out what sort of mountains are required, and the moment you have found that out, it is perfectly plain that the Treaty tells you to get to them, and you get to them iust as you -■ • . • sir* get to Portland Channel, by the most direct line. And the real difficulty seems to me to consist, or the real problem seems to me to be, not how are you to get to them, but what are the mountains that you are to get to? You are to get to the mountains that border the coast. They say that their chain is the mountains that border the * -!■ — -. ms mJ -■♦•■■ • -m coast. We say our chain is the mountains that border the coast. Well, to my apprehension and in my submission it is almost useless to argue that the mountains that border the coast were intended to be at any long distance from the coast. You cannot by any course of argument get over what was said in the negotiations by the Russians and by Mr. George Canning. The only reason why the Russians objected to the mountain boundary was because they v ms «/ 464 said it might mean nothing—it might come down to the water; while Mr. Canning said:— If you are afraid of that I have no objection to you taking the summit of the mountains. Now, in face of that, how can it be argued that the intention of the Parties was that they should have a chain a long way from the coast? A long way from the coast could not possibly come down to the water. And all that the Russians cared for was that they were to have something. They were to have a little strip on the continent, and I do not go back to what we have heard so often about the lisiere being a mere strip and so on, but on several occasions they repeated over and over again this argument as a kind of excuse and justification for what they were asking for. The Russians say:— We are asking for very little. We want a mere strip on the coast. We want a narrow strip on the coast. We are not asking for anything more. We are giving you a great deal, and we only ask for this little thing. Well, that is the common language, I will not say of people dickering, but perhaps nations dicker just as much as individuals do, it is very much the same sort of thing. And with reference now to what I should probably have forgotten. ■m ARGUMENT OF CHRISTOPHER ROBINSON. 513 my learned friend, Mr. Watson, devoted some time to an argument which I thought at all events was not a very close argument, and it was that it was highly improbable that the Russians would ever have consented to take so little when they had so much to give. Well, that does not affect one's mind very much if we find that the contract is expressed in plain words, or in reasonably plain words. It would not affect my mind to say then, | It is perfectly absurd to think that Russia would have taken so little when she was giving much." The fact is, she did take it. That argument based upon the claims which Russia had to large tracts of territory. I wish your Lordships would be good enough to refer to Mr. Mid- dleton's Memorandum which he sent to the Russian Government when he was protesting against the Ukase of 1821, in which he practically pointed out that the Russians had nothing—they had no settlers round the coast—that they did not own anything. And if anything more is required, and if anyone has time to spare which is of no great value, let him read all the negotiations in the Behring Sea matter. Why, the very substance of our Behring Sea Case was this: the Russians founded their maritime pretensions on their territorial rights; they said: We discovered this continent, we own a great deal of it, we have establishments here and there, and having that vast tract of territory, we ought to have a great deal of maritime jurisdiction on the sea that washes it. Great Britain and the United States together laughed them to scorn and said: You have nothing; practically you have made no discoveries here. It is a very able Memorandum. I have read it very carefully; it is at p. 59, American Case, Appendix. It was handed by Mr. Middleton to the Russian Plenipotentiaries, and a copy was sent by him to Mr. Adams when Mr. Middleton was reporting to Mr. Adams his various conferences and negotiations. Now, if you look at Mr. Middleton's Memorandum, it is prefaced by a very undeniable maxim that I could never see the exact application of. At all events, the only inference I derive from it is first, that he wished to tell the Russians nothing but the truth, and nothing was to be concealed from them, and that they, being great men, would not object in the least to hear it; and the pith of what he told them was that they were advancing a lot of claims that had no real foundation. Well, I don't know that that would impress the Russians very much, but at all events, he goes through the different discoveries, and he says then:— It is proved by the " pieces " produced in this discussion that the claims of Spain extended to the other side of Prince William Sound, situated in the 61st degree of north latitude; and that the Court of Russia, having had information of the extent of these limits, has declared that she had no intention of opposing it; that she had even added expressions of regret that her repeated 465 orders to prevent the violation of the territory of Spain by Russian subjects should have been disobeyed. It is then demonstrated that Russia, in the year 1790, was far from forming any territorial claim for herself upon the continent of North America on this side of the 61st degree of north latitude. S. Doc. 162, 58-2, vol 7 3 514 ALASKAN BOUNDARY TRIBUNAL. iiifl -5 ft £&§&&£• t Jl II ^&§t& n^^v -&4$A1. Well, then it says that the Russians never claimed sovereignty. A little below—I hardly know whether it is necessary to call your attention to this—he says:— The Emperor Paul granted to the Russian-American Company certain exclusive privileges of commerce on these coasts as far as the 55th degree of north latitude, exclusive, it must be believed, in respect to other Russian subjects simply, for Russia had never claimed sovereignty of the part of this coast situated on this side of the 60th degree. And so on. Aoid further on, speaking of Captain Vancouver's discoveries, he says:— From these facts, incontestably proved by historical documents, an irresistible conclusion follows, which agrees with the declaration of Russia in 1790, and it ought to appear definitive that she had no right to claim, either under the title of discovery or of possession on the continent east or south of Behring's Strait, about the 60th degree of north latitude. You could not have anything more distinct than that, and it is no use talking about what great possessions Russia had at that time, when we compare it with Mr. Middleton's Memorandum. Mr. Middleton, by the way—and it is worth pointing out—had the most absolute authority to speak for the United States. At p. 48 of our Case Appendix, you will find Mr. Middletoii's instructions. He had the most ample powers to represent the United States in the negotiations, and to express their views; and practically the result of their views was that Russia's claims on that coast were all nonsense; that they were not founded on anything. There is no doubt that we adopted that view at the time that we were talking about the Behring Sea, because what we said was that their maritime pretensions, practically founded on territorial possessions, had no foundation at all. She had not got any territorial possessions, according to Mr. Middle- ton, and the argument of my learned fried Mr. Watson that Russia had so much to give it was quite impossible to imagine she would have taken so little cannot be reconciled with Mr. Middleton's Memorandum. According to our views and the views of the United States, she did not own anything, and, therefore, she could not give anything ; so we pass from that. I have here a Memorandum—I do not know that it is of much value—as to the impossibility of introducing words into a Treaty on a foundation of extrinsic evidence. The object of extrinsic evidence is not to see what words ought to have been there, or what words it would have been better to put there, because there are several cases in which Courts have said in substance: " We have not the slightest doubt in the world that if the person who made this agreement had to make it over again, he would have put these words in," but the difficulty has been that he did not put them in, and therefore could not put them in; they could not make the agreement for him. I think this is the same treatise to which I have already referred:— Reference should be made to the important distinction between " construction," the process through which the general sense of the Treaty is derived from the application of the rules of logic to what appears upon its face, and " interpretation j the process through which the meaning of particular terms is explained by reference to local circumstances and ideas the framers had in mind at the time—only to that extent can matters out- mmm ARGUMENT OF CHRISTOPHER ROBINSON. 515 side the Treaty be employed to explain its meaning. No court or -other expounder can supply a casus omissus in a treaty any more than in a law. This plainly shows that if " range " or " chain | or anything else ought to have been in the Treaty, no Tribunal can put it there now unless you are to make a new Treaty. 466 Mr. Turner. I did not catch the Treatise. Mr. Robinson. That was Mr. Taylor's " Treatise on International Law," 395. Mr. Turner. Mr. Taylor's Treatise. Mr. Robinson. Mr. Taylor, your Honour, 395, and, of course, there is the old rule that the Treaty must be taken as a whole; we all admit that you cannot reject anything; you must try to give a construction, if possible, to everything you find in the Treaty. I desire to say a few words with reference to Articles II and III in our present Treaty—I mean the Convention under which this Tribunal is sitting—on the admission of evidence. That Treaty is found in our British Case, in the first pages of our Appendix, and in several other places. Article II says:— 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 member of the said Tribunal 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, and either Party may also support the same before the Tribunal by oral argument of Counsel. 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. I take it that that is just the expression of the common law. I do not think there is anything mentioned there which would not have been competent to the Parties, because it is permissive. I think it is put there, because we do find these things in international agreements, which are very often framed by people who are not lawyers. We find expressions which every lawyer would read into it if they were not there. Therefore, I think, that means nothing; but I attribute importance to the sentence at the end of Article III:— The Tribunal shall also take into consideration any action of the several Governments or 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. Now, like Article VII, I have had a great deal of difficulty in coming to any conclusion as to how much that adds to the common law, and I am not at all certain that it adds anything more than my learned friends say, that the difference is between "may" and "shall.!' One says the Tribunal may not take into consideration and the other says it shall. But surely this is a rule of procedure, and it cannot be intended that the Tribunal shall take into consideration anything except in so far as the same tends to show the original and effective understanding, unless they think that it does tend to show it. It would be absurd to say that this Tribunal was intended to be compelled to take anything into consideration which they thought did not tend to show that understanding at all. They are bound to take it into consideration supposing it tends, in their opinion, to show the ALASKAN BOUNDARY TRIBUNAL. original and effective understanding; but if I offered something which, in the opinion of the Tribunal, had no earthly tendency to show the original understanding, surely the Tribunal are not bound to consider it. Somebody must determine whether it does or does not tend to show that, and you cannot suggest anyone to settle that except the Tribunal that we are speaking to. Therefore, I take it that that is not a bit more imperative than the other, or, in other words, the Tribunal are to take into consideration all the evidence which they think may assist them. 467 Now, I doubt whether that adds anything to the common law or not, because if we are right in our construction, you always take into consideration in the construction of every agreement anything that tends to show the effective understanding of the parties, providing the agreement has some element of doubt in it. I quite agree in the rule of law which we have heard here more than once. It was said not to be a rule of law, but the dictum of an eminent Judge, who said: Tell me what the parties have done under a contract, and I will tell you what it means. That is all right if there is any doubt—any reasonable doubt— about what the contract means, but I think no maxim has been run into the ground more than that has. It has been imagined by people who desired to take advantage of it for their own benefit that you could always give such evidence, but that was corrected in a case in 1900, if it needed any correction. I have before me in the House of Lords Appeal Cases for 1900, at p. 264, a case in which the parties having acted upon a particular view of a contract for a period of ten years, which said they were only to pay a particular price, had for ten years been paying a less price, and the other side had been accepting it, and then there came a suit on the contract, and the other side said: Why, that is what we both understood by this contract, and you cannot claim anything else. But the Court said it would not make a bit of difference if it had been acted upon for fifty years; if the contract plainly said a different thing, the party who is entitled to claim under it can claim under it at any time, as it plainly means. For instance, to put a very simple case, if a lease provides for 100 dollars of rent, and for twenty years the man had paid only 80 dollars, the lessor can say at any moment, " Give me the 100 dollars." It might not be possible to get the back rent except for six years, but at any moment he could revert to the contract and claim his own, arid it would not be of the smallest use to say that both parties had had the same understanding of the contract. There have been leases in which there were contracts for the cultivation of land in a particular manner, and one party has said: " You are not cultivating this land as the lease calls for; it is not the kind of cultivation you are bound to make." The lessee said: " I have lived here for five years alongside of you; I have always cultivated it in that manner, and you have not objected to it, and it is not very plain what sort of cultivation the lease means." There the Courts have said that is the best possible proof of what this means; what this man has done, and what ARGUMENT OF CHRISTOPHER ROBINSON. 517 you have accepted as a performance is what you mean; but that is when there is no doubt as to what is meant. There have been cases also, I believe, where on the whole lease it was not quite clear when the rent was to be paid, say, on the 1st January or the 1st February, and you could not tell exactly which, but the parties had always paid it and taken it on the 1st February. There the Court would say at once, " That is what you both meant." But if the lease had stated in plain words it was the 1st January it would not make the slightest difference if it had been paid on the 1st February for a lifetime. That is the whole effect and bearing «of the understanding of the parties. Mr. Aylesworth. In stating the rule in the first place Lord Chancellor Sir Edward Sugden stated it as a rule applicable merely to the construction of ambiguities. Mr. Robinson. Yes, I think he did; but, as your Lordship knows, people have tried to apply it to everything. It cannot change a contract—that is the whole story. It may explain a contract where it is ambiguous, but it cannot do more. Then the only matter on which I had thought of saying anything about the negotiations was on that one question, which has been made to a very large extent really the foundation of the whole Argument on the other side. It is said in that Argument that this Treaty had for its primary object, and that what the Russians desired to get was, a continuous unbroken barrier of land. And that what Russia stipulated for and intended to get was an unbroken lisiere of land shutting out Great Britain from the sea. I have more than once taken 468 pains to collect every sentence which bears upon that question, because it really is, as your Lordship will see, to a large extent the foundation of the United States' Case. I will not say their whole Case, but practically their Argument as to going round the inlets is founded upon it. Perhaps that is a more correct way of expressing it. Now, I have read all those extracts. I will read them to your Lordships generally. I am not going into these different negotiations in detail, but my inference from them is that what they desired was this, and nothing more than this: they desired to prevent the establishments of Great Britain from coming too close to their establishments, because it is perfectly obvious that this would interfere with their trade. They could not afford to have an establishment on an island, and to have Great Britain with an establishment on the opposite mainland close to it. It is just like having a shop on the other side of the street. They could not afford that. Now, I venture to submit that you will find in all the negotiations no stipulation for anything more than that. Let me see if that is so. On the 3rd November, before the lisiere had taken shape, M. de Poletica, reporting to Count Nesselrode his conversation with Count de Lambert, who represented the Russian-American Company, says:— In fixing the ldngitude, 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 North-West English Company, whom a more intimate acquaintance with the country traversed by the Mackenzie River might easily bring in Jhe cpurse of time into the neighbourhood of our establishments. —■ Iff 518 ALASKAN BOUNDARY TRIBUNAL. m The reason there is, we do not want them coming near our establishments. I do not think that that has direct application, because it does not specify the lisiere at all, that was up north where there was no lisiere, and where they do not come to the coast. But it shows what they were thinking of. Now, you must remember that what we give them is 35 miles of a strip, and we may have no establishments on that 35 miles. Our nearest establishment must be at all times 35 miles from theirs, and surely that gives them protection enough. The fact that they desired nothing more than that is shown by their giving us the rivers. What was the use of giving us the rivers, and access to the sea by the rivers freely, if they intended to shut us out by the inlets? Or, rather, what was the use of shutting us out of the inlets, if they gave us full access by the rivers ? If we could form an establishment up fhe rivers, and were to have free access throughout the rivers, what object did they gain? Again, it is said that without the lisiere on the continental coast starting from the Portland Channel, the Russian establishments on the islands in the vicinity would have no support, and they would be at the mercy of establishments which Great Britain might form upon the mainland. Now, that to my mind is most expressive—" the Russian establishments on the islands in the vicinity." WTiat does " in the vicinity " there mean ? If you have an establishment on the mainland, our establishments are on the islands in the vicinity. ifij [Adjourned till to-morrow at 11 a. m.] « 469 TWELFTH DAY.—TUESDAY, SEPTEMBER 29, 1903. All the Members of the Tribunal were present. Mr. Robinson. I wish to recur for a moment to these Articles VII and VII and I taken together, to which we attach a great deal of importance, and which it is possible—in fact, I think more than possible—that I have not explained as fully as I desired to do in argument. Taking VII by itself first, I submit, on consideration, that it is very difficult indeed to sustain the only contention that I am aware of put forward by the United States. That contention I referred to— I think it is at p. 94 of their Argument—and therefore you will see exactly what it is, and, as I understand their contention, it is that this Article VII applies below 54 degrees 40 minutes, and only below 54 degrees 40 minutes, so far as the reciprocal stipulation is concerned by which England gives to Russia certain privileges. I have not forgotten the suggestion of the learned President, but, owing to circumstances they are aware of, I have not had the opportunity of discussing that with the Solicitor-General, and if you will allow me I hope to do that and ask that he will present any view that we may jointly agree upon. Now, take Article VII alone; it is not the contention, of course, of the United States that these two provisions—I mean the reciprocal provisions, giving the privileges by both—it is not their contention, of course, that both of these stipulations apply to the lisiere. If it does, I do not care where else it applies. That is all we care for. Their contention is, and must be, that by extending it to the 54 degrees 40 minutes they get this advantage. They say, " Oh, that Article is explained in this way: the privilege which Russia gives to England applies to the lisiere above 54 degrees 40 minutes, but the privilege which England gives to Russia applies below 54 degrees 40 minutes," where they say it has a proper application. She says England may very properly have given certain privileges to Russia. Now, in the first place, I submit that the reciprocal privilege is a very natural privilege, and a very probable privilege, in our view at ties had the map before them, which showed that the lisiere involved all events, to have been assented to with regard to the lisiere. The par- various inlets, which ran back many miles from the ocean. It is said to be 7Q miles, and I suppose they knew it ran back very far. Now, if it was understood between them that the line was to be drawn as we have contended for from the ocean, 10 marine leagues from the ocean, it was the most natural thing in the world. They were negotiating over this privilege referred to in Article VII for a long time, you will see by the negotiations, and it was a very natural thing for Russia to have said, " Well, there are certain inlets and some of them may run through the lisiere and beyond it into our territory. If you want us to give you the privilege of trading and fishing without 519 520 ALASKAN BOUNDARY TRIBUNAL. m mW restriction in our part, give us the same privilege in your part; and there is no difficulty in accounting for it if that was the view. Now, let us see if it is possible to apply that with any probability or reason below 54 degrees 40 minutes. In the firfet place below 54 degrees 40 minutes Russia had already got the right from the United States for ten years, and it seems almost incredible that she should have troubled also about getting it from Great Britain or thought of getting it from Great Britain; she had secured it down there by her Treaty with the United States for ten years. The only possible advantage she got by getting it from England—advantages I may say because you may suggest two, you may suggest it was intended to last a year longer with England, but I have said as to that I do not believe the United States would have tolerated it for a moment after the privilege under their Treaty ceased. 470 It was known that this territory below 54 degrees 40 min utes was in dispute between Great Britain and the United States, and it is just possible Russia may have thought, " Great Britain may get some territory there, and we had better secure this privilege in advance in case that should happen." Now, can anybody conceive that those are reasonable probabilities to have entered into the minds of those Contracting Parties? I venture to submit that they are not. Then with regard to Article I, suggestions were made to me, and I have looked at that Article again for the purpose of meeting them as far as I can. You know what.Article I says ? It says:— It is agreed that the respective subjects of the High Contracting Parties shall not be troubled or molested in any part of the ocean, commonly called the Pacific Ocean, either in navigating the same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the following Articles. In the first place, would it have occurred to anybody that a privilege given to be exercised in any part of the Pacific Ocean, that is to say, to navigate and fish in any part of the Pacific Ocean, and to land upon the coast at unoccupied places, was ever intended to apply to anything but the Pacific Ocean, that it ever could have been intended to give a privilege extending into the territorial waters of the Power which owned the coast? I do not think any lawyer, or any ordinary person, would think that for a moment. I do not believe it would have suggested itself. The trade in the Pacific Ocean means the Pacific Ocean, and to land at unoccupied places on the coast means to land at unoccupied places on the coast of the Pacific Ocean. Then, if that was its natural meaning, is there anything in the other Articles to affect it ? The second is:— In order to prevent the right of navigating and fishing, ^exercised upon the ocean by the subjects of the High Contracting Parties, from becoming the pretext for an illicit commerce, it is agreed that the subjects of His Britannic Majesty shall not 4and at any place where there may be a Russian establishment without the permission of the Governor or Commandant; and, on the other hand, that Russian subjects shall not land, without permission, at any British establishment on the North-West Coast. Does that not clearly apply, and is it not clearly confined, to the coast where they have the privilege of navigating and fishing, and how does that affect the application of the first Article in any way ARGUMENT OF CHRISTOPHER ROBINSON. 521 at all ? The first one says you may land at unoccupied places; and they say in the second, in effect, we know that both sides have establishments here, we know that the practice has been to pursue this illicit traffic in spirits and firearms and so forth, and we do not want that to be carried on. Therefore, let is keep clear of each other's establishments. I am not able to say how that affects the thing. Then we have Articles III and IV, which are not of importance on this question. We have Article V, which I have spoken of, and which is perfectly superfluous in this Treaty. Then we have Article VI, and then we come to Article VII. Now, Article VII says that it is understood that for a space of ten years, and bo on—I need not read that all again:— * * * The vessels of the two Powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, all the inland seas, the gulfs, havens, and creeks on the coast mentioned in Article III, for the purpose of fishing and of trading with the natives, under the restrictions and conditions specified in the following Articles. Now, can anybody say that that is a restriction on Article I, because I shall revert to these words particularly in that Article—" under the restrictions and conditions specified in the following Articles." Can anybody contend that that is a restriction on the privilege given by Article I ? It could only be so if Article I went up through 471 all the territorial waters, through all the territorial waters, which, I venture to think, in the absence of Article VII, Russia would most peremptorily have objected to; but the best proof that it was not intended as a restriction is Mr. Middleton's own statement in writing. In reporting all his negotiations and the result of them to Mr. Adams, he spoke of this as an extension of the general privilege embraced by the preceding Articles. I am bound to say that I do not think Mr. Middleton explains very clearly exactly what additional privileges he got, but he did get to my apprehension very clear additional privileges; he got these additional privileges, if we are right in our construction of the word " ocean,"—all the right he would have had in the inlets would have been first the right of innocent passage; and then as Mr. Middleton asserts, and as I rather think—I speak subject to correction—is a tolerably well settled principle of international law, that on unoccupied coasts all nations have a right of going. They would have had the right of innocent passage*, they would have had the right of trading in these inlets so long as they were absolutely unoccupied, but they would have been liable to have been put an end to by the formation of Russian establishments or the existence of Russians there; and as we know in the circumstances of this case, the Russian-American Company would have been very soon there, and they would have prevented it. Now, that is all I desire to repeat on those two Articles. I have forgotten to speak—it has been spoken of often enough, but I have made a memorandum as to the evolution of the term " ocean," and it is so short that, though made for my own information, I thought I would call the attention of the Tribunal to it. Now, this line—I mean the alternative line—is to be adopted when the mountains are found at a distance of 10 marine leagues from the ocean. First, it says, " from the sea towards the interior, at whatever distance the aforesaid mountains may be"; .that is at p. 87 of the British Appendix to their Case. Next it says that 522 ALASKAN BOUNDARY TRIBUNAL. it is to be done when it is " 10 marine leagues from the Pacifick {; that is at p. 116. The next is that it is to be adopted when it is that distance " from the Pacifick Sea "; that is p. 122. The next is (p. 128) when the mountains are at that distance " from the sea," leaving out Pacific. Then it ends in the Treaty by saying it is to be adopted when they are that distance from the ocean. There are two inferences you may draw from that, I think. Most writers that I have seen draw the conclusion that each one of those terms was changed deliberately and intentionally. Well, that may be. There is one thing perfectly certain, that when they were changed if either side had believed or if the Russians had believed that there was any material change they would have objected to it; but it may be suggested also that the Parties knew from the beginning that they meant the ocean, and did not care really whether they called it the Pacific, the Pacific Sea, or anything else not differing from what we call the ocean. Now then, with regard to the definition " ocean," my learned friends have insisted at different times that if we are going to define the term 1 ocean " that generally includes the outside edge of the islands. I admit that, I think in common language if there is nothing to qualify it that that would be so, but in this case there was an archipelago of islands, and it would be unfair on our part to attempt to include it here, as my learned friend Mr. Watson has expressly stated at p. 350, and as is an unquestionable fact. He says:— Owing, then, to the contiguity of the islands to the mainland, Russia not only had, by reason of her ownership of these islands—and the Tribunal will remember that while Sir Charles Bagot at one time desired to possess part of these islands— I recollect the sentence very well. That is a long time back— As well as Mr. George Canning did, it never was a serious question by Great Britain that they were entitled to have them. That claim was given up; and, therefore, as Russia was admitted to be the owner of this Alaskan group, it was absolutely necessary for Russia, in order to maintain her ownership there with credit and with profit to herself, that she should not only own the islands, but that she should own the adjacent shore, and that she should control whoever it was that was located on the adjacent shore in any way near to these islands. 472 We all know that that is no admission—I mean it is an " unquestionable fact. The whole basis of this Treaty, upon which it proceeded, was that Russia owned these islands, and she was intended to own them, and therefore I think we have to adapt our definition of terms to that acknowledged and admitted fact on both sides. The only other thing I wanted to note was that with regard to 54 degrees 40 minutes. I omitted to say that perhaps the strongest proof that it was not intended to adopt that as the line is the fact that that line is a purely imaginary one; it is a line across the high seas. I have looked at the map; there is no land 25 miles to the westward, and there is no land within 60 miles in the other direction from the starting point. It is of no earthly importance. No nation could protect or preserve that line. Then I find that Russia—when she explains what she owns in the Hudson's Bay lease, says her boundary is 54 degrees 40 minutes, or thereabouts. That shows that she never thought it was intended to ARGUMENT OF CHRISTOPHER ROBINSON. 523 be 54 degrees 40 minutes accurately. I think, further, that my learned friend, Mr. Watson, was compelled practically to give up that point when he said it really does not make any difference; you have to get to 54 degrees 40 minutes when you start, and yet on the other side you are not a bit better off with regard to the claim as to the Portland Channel, it still must go to the right Portland Channel. If it does, it makes no difference to either party; so much, then, for that. I return to what I was speaking of with regard to the question of barrier. The Tribunal knows exactly the construction we have always put upon it. The only thing they sought, the only thing they required, the only thing they intended to stipulate for, was simply that our establishments should not come too close to theirs. Anyone can understand that it would never do for them, if they had an establishment for trading on the island, to let us have an establishment on the mainland opposite, because the Indians coming down might stop to trade with us instead of going on to trade with them, and we might intercept them all, and I think the passage I have called attention to—where the term " vicinity " is used—shows this. Sir Charles Bagot in another place said that he had offered them the possession of all the islands and the waters in their vicinity, and that I understand to be waters in the vicinity of the chain of islands. Then they say, in the letter to Admiral Mordvinof (United States' Case, Appendix, p. 166):— Only one expedient presents itself, to establish, at some distance from the coast, a frontier line, which shall not be infringed by our establishments and trappers, as also by the hunters of the Hudson's Bay Company. Both sides, he adds, equally recognize the necessity of this measure. Now what was that measure, if it was not just what I say? And he says:— The width of the coast line necessary for the safe existence and consolidation of our Colonies * * * still form subjects of negotiation. And— The extent of the country between the coast and this frontier must correspond with the condition to what these establishments will, in all probability, in time attain, and by their means of own defence. Now, the United States say that this plainly shows the purpose of the Russians to have been to create for their own protection a land barrier along the entire front of the continent. I submit that it is susceptible of no such interpretation at all, and for two simple reasons. What is the object of saying this lisiere should not be broken by inlets when it is broken by rivers. They did not profess to keep the lisiere unbroken, so that we could not get to the sea through it. On the contrary, Russia has expressly given us the right to get to the sea by the rivers, and in three or four sentences your Lordships know she almost thrust it upon us. Remember, they said, we are always offering you this. We do not want to keep you away from the sea. You shall have the free navigation of all these rivers. Then you must remember also—and I shall be glad to give the Tribunal that case—that a river is an arm of the sea. We have the authority of Mr. Justice Story for that in a Massachusetts case which I have somewhere, and I 473 will give it before I stop. It is naturally an arm gf the sea— why should not it be ? It is water up which the sea flows possibly for 100 miles, and in that sense, as Mr. Justice Story says, a 524 ALASKAN BOUNDARY TRIBUNAL. m m river is an arm of the sea just as anything else. Well, if they give us all the rivers, and say they have no objection to the lisiere being broken by the rivers, which are arms of the sea, on what solid ground can they found any objection to its being broken by inlets? There are two other paragraphs as to the barrier which it is said they required, in which they say that if they are deprived of a strip of land from Portland Channel to the 60th degree of north latitude, they—that is to say, the Russian-American Company—" would be left without any means of supporting the establishments, which would thereby be left without any support, and could not have any strength or solidity ' (British Case, Appendix, p. 70), and that no settlements of this nature would be grounded upon the principle of mutual convenience. Then again they say that " any establishments formed on such islands "—we all know what " establishments " mean: they are trading posts—" would be left unsupported," and " at the mercy of those establishments which foreigners might form on the mainland." (British Case Appendix, p. 72.) And then we have also that paragraph which I read yesterday, speaking of their establishment on an island requiring their control of the adjoining mainland. When it is said they must possess not only a strip of the continent, but a lisiere, which will prevent the Hudson's Bay Company coming to their vicinity, I suppose that means the vicinity of that part of the strip which is nearest to them. Now, in offering a strip which will prevent our bringing any establishment of our own within 35 miles of theirs, what more can they possibly want in reason? I do not know that country well, but I believe some of us know it very well, and I should think that 35 miles in that country is very nearly as good as 100 miles in any other country when we consider its character; but to say that their establishments are in any danger because they have an establishment 35 miles off I venture to submit is not what they intended to say, and not what they reasonably could have said, or what they really required. And, again, I say if they did require it—if my learned friends are right, and they have extended this Argument over many pages in their various documents—if they are right in saying that that was the one thing that they were insisting on from beginning to end, the inference is irresistible that they did not get it, because there is not a word about it in the Treaty. You all know that by the ordinary construction of documents, you cannot infer what a person gets in an agreement by proving what he wanted; it is the last thing which we can infer if his want has been plainly expressed and strongly insisted upon. The very fact, then, that it is not expressed in the Treaty is the very strongest proof, if not irresistible proof, that he did not get it. There is authority for that, I think, in a passage which I have, that is very plainly expressed. It says that:— When two meanings are admissible, that is to be preferred which is least to the advantage of the party for whose benefit the clause is inserted, the presumption being that he who secures a special privilege will see that it is expressed as fully as it was intended. That is Section 388 of Mr. Taylor's work. It is simply enunciating as I understand it, a common principle of law. ARGUMENT OF CHRISTOPHER ROBINSON. 525 So far as I remember at this moment, that exhausts the subjects which I desire to discuss in connection with the meaning of the Treaty. Now I come to the question which is left. If the meaning of the Treaty is in our favour, as we have contended for, have we by anything we have done, omitted, or neglected, lost the right to insist before any Tribunal on having it carried out as we contend for ? The only distinction in this question that I can think of is, first, what did we do, and next, what did we omit. Now, they say—and I do not think there is anything they insist on so strongly as theseSnaps—they say that numerous maps have been published, and we have per- 474 mitted them to be so published, and we have never told the United States we do not agree with them, or admit the boundary that these maps represent; and that we have thus practically admitted the understanding of the Treaty which these maps show. Well, first, I should like to know, and I should like to find in some work on international law, and I recommend to any gentleman who proposes to publish such a book to treat it in his next edition: What obligation is there upon nations to supervise all the cartographers of the country, and see that they do not present anything erroneously. Speaking for myself, I do not understand what obligation there is upon the House of Commons, or upon any other legislative body, to admit the truth or accuracy of everything they order to be published. There is an investigation before the House of Commons, and for the purpose of understanding that investigation, which has nothing to do with the boundary, a map is produced before them, and they say, in order that people may all understand this question, let us have the map published, so that all the members may see it, or anybody else who is interested in the question. Can anybody contend seriously » t/ ^ v ms that that amounts to an admission by the nation that everything in that map is correct? Now, let me read the expressions which I find with regard to these maps in various places in the United States' documents. They say that the publication of these maps is an announcement by Great Britain of a like interpretation by her maps, as is shown by theirs; that the publication of these maps is an admission on our part of the accuracy—or an announcement, ratlier, which is more than an admission a good deal—of a similar understanding to theirs. Then, they say that other countries—England, the United States, France, Germany, and Spain—published similar maps; and this they say proves the general understanding of the enlightened world as to the sovereignty established by the Treaty of 1825 over all waters and coasts now in dispute; and they say further on—I can give the references to all thase documents if the Tribunal desires it—this is in the United States' Case, p. 85. They say:— But the universal method followed by cartographers in drawing the boundary line at 10 marine leagues from the shore of the mainland, shows that it was their opinion that no dominant range existed between that line and the sea. This belief, which was necessarily based upon very meagre data, has been fully confirmed by recent investigations. Could there be anything more baseless than talking about the opinions of cartographers, or than describing these maps as showing the opinion of the enlightened and civilized world? I do not want to dissociate myself altogether from the enlightened and civi- mm 526 ALASKAN BOUNDARY TRIBUNAL. 3*£fc*. lized world. I prefer to think myself a member of it, however humble, but I confess that up to three months before we came here I had no knowledge of any map of Alaska; and when a map is put into my hands here, and I am told that is the Russian map of 1826, and that it shows exactly what was claimed at that time, I can only say they might as well have put into my hands a page of the Hebrew grammar. I do not understand a word of it; and I am sorry to confess that if they put a German map into my hand, or a Spanish map into my hand, I should not have been much better informed. If there is to be produced a map published by a foreign country it wiH be necessary to send for an interpreter to see that everything is accurately described if we are to admit its accuracy, and yet they attribute to these maps what I have said. Well, now, do not let us use any exaggerated language. Let us see what these maps are. They are simply an imaginary representation of an utterly unknown country. They are nothing more, they are nothing less. We have heard of portrait painters who have made portraits of people whom they have never seen, from busts and from the description of friends and from various other things, but these maps are not only a representation of what the cartographers never saw but of what nobody else ever saw or could tell them anything about. My own conviction is that cartographers, under such circumstances, never ask or enquire, but invent, and if you want to know the value of these maps you will find it in chapter 12 of a book I have before me. 475 The President. What is the name of it? Mr. Robinson. Dr. Travers Twiss' " Oregon Question." At p. 228, Chapter 12, you will see some remarks about the uselessness of maps in the investigation of boundary questions. He says, even, it is to be regretted that they are ever appealed to. The President. Will you read it if you have it there? Mr. Robinson. It is on p. 228. I have marked it. He speaks of it in his preface:— Maps, however, are but pictorial representations of supposed territorial limits, the evidence of which must be sought for elsewhere. There may be cases, it is true, where maps may be evidence; when, for instance, it has been specially provided that a particular map, such as " Melish's Map of North America " shall be the basis of a Convention. That we all understand. But it is to be regretted that maps of unsurveyed districts should ever have been introduced into diplomatic discussions, where limits conformable to convenient physical outlines, such as headlands or water courses, are really sought for, and are understood to be the subject of negotiation. The pictorial features of the country which, in such cases, have been frequently assumed as the basis of the negotiation, have not unusually caused greater embarrassment to both parties in the subsequent attempt to reconcile,them with the natural features, than the original question in dispute, to which they were supposed to have furnished a solution. Then he speaks of " Nouvelle France' having been applied by cartographers generally to a certain district. But there is also cited in the preface what I take to be accurate, and what to me is a most amusing instance of the fallacy of these things—that in the Oregon dispute, which we all know about, Mr. Buchanan, the then President of the United States, writing on their side of the question to Mr. ARGUMENT OF CHRISTOPHER ROBINSON. 527 Pakenham, the British Minister, said very much what we are told here:— Even British geographers have not doubted our title to the territory in dispute. There is a large and splendid globe now in the Department of the State, recently received from London, and published by Maltby and Co., manufacturers and publishers to " The Society for the Diffusion of Useful Knowledge," which assigns this territory to the United States. The history, however— Dr. Twiss adds— of this globe is rather curious. It was ordered of Mr. Malby (not Maltby) for the Department of State at Washington, before Mr. Everett quitted his post of Minister of the United States in this country. It no doubt deserves the commendation bestowed upon it by Mr. Buchanan, for Mr. Malby manufactures excellent globes, but the globe sent to Washington was not made from the plates used on the globes published under the sanction of " The Society for the Diffusion of Useful Knowledge,'.' though this is not said by way of disparagement to it. The Society, in its maps, has carried the boundary line west of the Rocky Mountains, along the 49th parallel to the Columbia River, and thence along that river to the sea; but in its globes the line is not marked beyond the Rocky Mountains. Mr. Malby, knowing that the globe ordered of him was intended for the Department of State at Washington, was led to suppose that it would be more satisfactorily completed, as it was an American order, if he coloured in, for it is not engraved, the boundary line proposed by the Commissioners of the United States. The author would apologize for discussing so trifling a circumstance, had not the authorities of the United States considered the fact of sufficient importance to ground a serious argument upon it. Nothing of that kind occurs there, but it shows the utter fallacy of appealing to evidence of this description. That was a per- 476 fectly natural thing for Mr. Malby to do, just as natural as that Russia should mark the boundary in accordance with her notions. Now, when I looked at that Russian map, I must confess, if the line there drawn was what Russia thought of the boundary, I do not know where she got her ideas from. I have had it explained by Mr. Simon, who, I understand, is a master of the Russian language, and who is devoting his attention to this Case. It is a most difficult language, I have always understood. And then another map was referred to—Bouchette's map. Bouchette is referred to with some emphasis, as being a Canadian map. Now, I have not got the date of that map exactly. Mr. Aylesworth. 1853. Mr. Robinson. 1853. He was then not a Canadian surveyor in that sense. Canada then consisted of two Provinces—Upper and Lower Canada, Ontario and Quebec, and he was a Lower Canada surveyor. But the amusing part of that map is that it gives Queen Charlotte's Island as belonging to the Russians. Queen Charlotte's Island is coloured blue, as if it belonged to the Russians. Now, the Russians never made any more claim to Queen Charlotte's Island than I do, and that again is another striking and amusing instance of the absurdity of appealing to maps as having any value at all. We have always thought that we never could rely on whether the representations were true or not. I submit, therefore, there is not sufficient reason for attaching any importance to the maps. But your Lordship knows the boundary given by the Russian maps, and I need not refer to them again. The President. Yes. Mr. Robinson. It is said at p. 181 of the United States' Argument that while the other maps, of which they mention a very large num- 528 ALASKAN BOUNDARY TRIBUNAL. ber, may not have been handed to a representative of the United States' Government, as the map received from Lord Iddesleigh was, they had been promulgated for more than fifty years by the British Government. There is, at all events, an admission that they were never handed to us, and on the very first occasion when a map was called to our attention, and we were asked for a map-—namely in 1886, Lord Iddesleigh, in sending the map, said, you may recollect (it is at p. 255, British Case Appendix), and I need not read it again. We gave them thus notice as clearly as we could, but I should like to ask whether we are bound always to run after the United States and tell them what all the maps of the world mean? Is there not a corresponding obligation on their part, if they are interested in it, to come and ask us ? The moment they did ask us we told them, and I hardly understand the argument which says it is the part of one nation to maintain a constant supervision over all the maps of all the civilized nations in the world, and by the lapse of time to be. bound by what they say, but that there is no common obligation on the nation which is interested in them to come and ask. There is not even a shadow of evidence that the United States purchased on the faith of these maps, and when my learned friend, Mr. Watson, says that they bought this property and paid their money in good faith, thinking they would get the heads of the inlets, does he mean to say seriously that they would have hesitated half a second to buy the property if they had been told that the ownership of the heads of the inlets was not to be admitted by Great Britain? Does anybody mean to say they would have paid one penny less, or been allowed to pay one penny less? If you want to know what was thought at that time, if you look in the American Case you will find a letter from the United States' Representative in St. Petersburgh, Mr. C. M. Clay, to Mr. Seward, congratulating him upon this brilliant achievement. He says:— I congratulate you upon this brilliant achievement which adds so vast a territory to our Union; whose ports, whose mines, whose waters, whose furs, whose fisheries, are of untold value, and whose fields will produce many grains, even wheat, and become hereafter, in time, the seat of a hearty white population. I.regard it as worth at least 50,000,000 dollars. 477 They got it for 7,000,000 dollars, or something like that. Then he says:— And I trust I have aided indirectly in this final cession, which, by your address and secrecy, took me with a most agreeable surprise. It is useless, under these circumstances, to say that they were 7 7 ms ms induced either to buy or to pay money, or to pay less, by any such considerations as have been adverted to. We pass, then, from the maps to the United States' occupation generally, and I pass over the Russian occupation with these few remarks, that I do not think anybody can seriously contend that anything that was done by Russia before 1867, froip. 1825 onwards, really amounted to anything like taking possession of the country. Amd I want to bring this to the attention of the Tribunal and ask whether I am not reasonable and right in saying so; there was very little done, either by the United States or by Russia at any time here, which England, if she had known it and been told of it, would have made any objection to. What the Russians did was to try to keep *mm ARGUMENT OF CHRISTOPHER ROBINSON. 529 peace among the Indians, and to keep them in order. Well, if she had written to England in the most formal manner and said they were trying to keep peace with the Indians here, without making any reference to the boundary, and were trying to put a stop to quarrels wherever they could, I think England would have said, " Go on. We are very glad to hear you are doing so; it is in the interests of both countries. |^ And that is confirmed by their own instructions to Colonel Scott, which I shall refer to in a few moments. They were interested in doing that—what for? Not for the purpose of making a boundary, but for the purpose of facilitating their trade on the islands. The Chilkat Indians from the coast came down and traded on the islands, and they went up to them, for while the Chilkat Indians were engaged in killing each other they would not be very useful people to supply skins and so forth. It was very natural Russia should try to keep order; it was natural and right in their own interests and in the interests of civilization that they should establish schools, and do what they could to civilize and improve the natives. I suppose, if England had been told of it, she would have said, " We feel perfectly satisfied. The country is utterly unoccupied; do the best you can; it will be in our interest as well as in yours." There is nothing to illustrate that better than the Schwatka incident in 1887, when the United States took what was, perhaps, the most serious and unmistakable way of taking possession of the country by sending a military reconnaissance through it, and it was called to Lord Salisbury's attention, who said in effect, It has been called to my attention, and I had better call it to yours, that he has traversed British territory for a considerable distance, without giving any intimation to this country; but I have no doubt, if you had asked leave, you would have got it without difficulty. That is what would have been done in nine-tenths of these cases. Supposing, for instance, they had asked our leave to send surveyors up to survey Lynn Inlet, nobody would have objected to their doing it. But they have more than once—several times—spoken with a good deal of emphasis, and spoken seriously as to taking possession of this country and obtaining the allegiance of the Indians. Now, I should like very much to read a passage or two to the Tribunal which shows how that was done, and ask what they really mean by speaking of it seriously as going up and formally procuring the allegiance of the Indians and taking possession of the country. That is to be found in the Appendix of the United States' Case at pp. 338 and 339. It seems that their officer, Captain W. A. Howard, was sent up in one of their ships—he is an officer of the United States' Revenue Marine, and he says The President. WTiat page? Mr. Robinson. 338-339. He speaks of the Chilkats at the mouth of the Chilkat River as being the most powerful tribe, and perhaps the most warlike and most troublesome, on the coast, and then he says he found the English and Russian charts all wrong " per compass and otherwise." Then he goes on to say that:— 478 At 1.30 five large war canoes came alongside, one with the Hudson's Bay Company's flag flying, and Jack, pilot and interpreter, in full uniform of an English officer, came on board. The head chief soon arrived with S. Doc. 162, 5&-2, vol 7 530 ALASKAN BOUNDARY TRIBUNAL. his wife (daughter of the great chief of the Stikines), and were received in the cabin, where I had a long " talk " with him. He is a very quarrelsome Indian, and tries one's patience exceedingly. Whisky not being given him, he was much incensed, and said, " If I had no presents, coats, trousers, and shirts, why come? Talk without whisky was nothing; s'pose plenty whisky and presents, then talk good." Then he goes on to say:— I was ^ell aware of the character of this chief, and knew it was necessary to secure his good opinion and friendship for the Bostons (Americans), otherwise it would be unsafe for any small trader with the flag of the United States to go there. I felt exceedingly the want of presents for such occasions. I do not, however, asked the Department for any, nor the power to purchase. Whisky I had, but would not give him any, knowing it was the intention of the Department to prohibit all traffic in it. After an hour's talk he was convinced the ship was not a trader, but the great American (Boston) Chief sent to talk with him; that presents would be made him, provided he was true to the new flag; also being assured that traders would come at the proper seasons. Presenting him with a handsome and new overcoat, lined with red broadcloth, and fully trimmed with braid, tobacco, .molasses, and biscuit, an American flag and staff, which was fitted in the bow of his canoe, he departed much better disposed than I had anticipated. Several minor chiefs and friends of his (" Chatsquit") were made suitable presents, and all departed at sunset, kindly disposed towards their new rulers. The United States flag was hoisted at Chilcate within a few minutes of the time it was hoisted at New Archangel, as it was afterwards ascertained. Having attained the object of our visit, I next day steamed down Chatham Sound towards New Archangel, picking up as promised the Indian chief with a canoe loaded with venison, which was purchased for the ship's company. This night, being unable to find anchorage, kept under way all night. At 1.30 p. m. on the 19th October anchored in New Archangel, with the flag of the Union flying over the Government House. Having performed the necessary visits of ceremony to the new and the" past Governments, I turned my attention to the remaining duties assigned to me. I need not refer the Tribunal to the different passages, but you are all aware that that is seriously—almost solemnly—insisted upon as taking possession of this territory and getting the allegiance of the natives. I venture to say I could have gone with a keg of whisky the next day and got the allegiance of a great many more of them. Some of the Tribunal do not know the nature of the " noble red man " as we do, but was there ever anything more palpably ludicrous than talking of that as a solemn international act? Supposing they had written to Great Britain and told them all about it, do you suppose Great Britain would have thought it worth while to take any notice of it? She would have said, "All right, if you can give red broadcloth coats to these Indians, and tobacco, molasses, and biscuit, and get them to say they are Boston men, it does no harm. We can get them to say that they are King George's men." King George's men I think they call those Indians who own allegiance to us. I would not really have adverted to that if it had not been mentioned two or three different times as a serious act of taking possession of the country and getting the allegiance of the natives. It strikes me as simply a travesty of any serious act like that of an international character. Then, as to any other thing they did, one fact is beyond all question—England knew nothing whatever about it. I would like to show you the map which my learned friend has put before me of British Columbia and of this territory. This territory is 900 miles from our nearest inhabited plage in British Columbia, up a coast — ARGUMENT OF CHRISTOPHER ROBINSON. 531 which was then hardly ever visited by anybody, where there was little or no communication, and how was Great Britain to know? As to Canada, I may as well say now before I forget it, Canada had no more to do with this country before 1871 as a Dominion than 479 she had to do with Africa. British Columbia did not exist up to that time as a separate province, and I think it was first made a province in 1858. Vancouver Island and the mainland were under different Governments till 1866,1 think it was, and the boundary was changed on two or three different occasions; but Canada, until the building of the Canadian Pacific Railway, did not know as much of British Columbia as she knew of Egypt, because it was absolutely shut out from her by the Rocky Mountains. The only access British Columbia had to England was by San Francisco, by which she sent her mails and passengers, and we may as well dismiss the notion that Canada had any interest in the matter at that time or until 1871. What, then, under these circumstances, have we neglected? They say all those things were done and we never protested. Well, you cannot protest against a thing you have never heard of. What was there to call for protest if they had found that it was desirable that we should understand yvhat they were doing in a country of that kind ? I must urge upon the Tribunal that we have too much, in the consideration of this question, omitted to bear in mind the nature of the country. You cannot apply the same considerations to things done in this country as you would if it were civilized and occupied. It was an uncivilized and inaccessible country, where few people knew what was going on. They might just as well have done all this at the North Pole, and then when we had sent an expedition to the North Pole, we might as well have been told that they had done the same thing and obtained the allegiance of the Esquimaux a few years before. There is no reason for treating acts done in a country of this description and of this character, as if they were acts done in a civilized country or in an accessible country; and when in that Article III they talk of the understanding of both nations, the effective understanding of both nations, I may recur to that for a moment. I do not understand the word " effective " understanding in the sense which my learned friend, Mr. Watson, attributed to it. I think the original and effective understanding means the original understanding and the understanding that ought to be given effect to. That is the idea I have of it: the effective understanding is the effectual understanding, the understanding that ought to have effect on the construction of the Treaty. Well, now, how can that be an understanding by anyone but the two different Parties to the Treaty ? The understanding of the Parties must mean the respective Parties. How can what one Party understands, and the other Party is not shown to have known or understood or had communicated, to him as an understanding—how can that be an understanding of the Parties by any reasonable construction of the language ? I did not propose, and I do not propose now unless the Tribunal desire it, to go at any length into the different acts of occupation; I would rather treat it as a whole, and you will remember what has been read to you and what has been said. We have got the affidavits here and the evidence of all sorts of people as to what they understood. There is no doubt that the United States when they first went up there sent their ships ALASKAN BOUNDARY TRIBUNAL. to the head of the Lynn Inlet, and that on two or three different occasions they had their ships there again, and that they communicated with the Indians and tried to keep order and to prevent quarrels among them. Now just let me, in connection with that, refer to the United States' understanding. When they first got possession of this country and sent these expeditions of which I have just been speaking, the first thing they did, almost before the Treaty was concluded, was to send Colonel Scott there, with a view of ascertaining what Indians there were in that district, how many there were, what numbers they were, and, generally speaking, to get an intelligent account of the district which they either had acquired on the faith of an understanding or were just on the eve of acquiring, or knew they had purchased, and then what they told Colonel Scott was:— As it will be for the interests of British Columbia The President. What is the page, Mr. Robinson ? Mr. Robinson. P. 347 of the Appendix to the United States' Case. The President. Thank you. 480 Mr. Robinson: As it will be for the interest of British Columbia, as well as the United States, that pacific relations should be maintained with all these Indians who live near the boundaries of the two Governments, it is presumed that the officers of Her Majesty in British Columbia will facilitate your inquiries in regard to this matter. You will explain to them the object of your visit, and you are authorized to show these instructions to Governor Seymour, whom you will assure of our earnest desire to maintain peaceful relations with the native tribes in his colony, as well as in our own territory. The prosperity of both must depend, in a great measure, upon our securing this result. It is said that Indians living near the boundary line between northern British Columbia and the ceded Russian-American possessions, have made several hostile incursions into the settlements in British Columbia and Washington territory, which hostile incursions might have been checked, or prevented, by proper military force in the vicinity of Fort Simpson or Portland Canal. To accomplish this object it may be necessary for the United States to establish a military post within their own territory, on the north side of Portland Canal. You will carefully inquire into this matter. Now, I venture to ask if it is right, or fair, to rely upon that as a proceeding taken with the view of acquiring territory or establishing a boundary, or to found upon it any sort of claim to territory or to a boundary. Colonel Scott did exactly what he was asked to do. He went to the authorities in British Columbia, and his report shows that he obtained every information, every courtesy, and every assistance from the officials of the Hudson's Bay Company and from some officials he mentions of British Columbia. He saw Governor Seymour, the Governor of British Columbia, and Governor Seymour wrote him a letter, which has not been put in, and I am not aware that it is of any importance. Colonel Scott says:— I did not gain much practicable information from General Seymour in reference to the measures advised or taken by the British authorities to maintain peace between the Indians and the whites. Then he says:— My interviews with Dr. Tolmie were much more satisfactory— I forget exactly who he was at this moment— My interviews with Dr. Tolmie were much more satisfactory, and he has promised an early answer to my note, copy of which is inclosed, marked " E." His opinions are entitled to great consideration from the fact that he has spent N mm ARGUMENT OF CHRISTOPHER ROBINSON. 533 a long life among savage tribes, and has been for many years an eye-witness of the results of the policy pursued by our own Government towards the Indians in Oregon and Washington Territory. Colonel Scott, I remember, also gives a very high character to the Hudson's Bay Company, so far as regards their intercourse with the Indians and their manner of dealing with them, which I have always understood they are fully entitled to. I shall ask the Tribunal later on to contrast what has been said by another official, and compare it with the opinions expressed by Colonel Scott. But is it reasonable, now—and I do not mean it in any offensive sei^se—but is it reasonable to call this a proceeding which would give them the possession of territory on the information which Colonel Scott obtained and on what Colonel Scott did? If Colonel Scott had come and told us, I Some day or another we are going to claim that wherever I go and whatever I do with the Indians will inure to our benefit as claiming the territory," he would not have got this information, he would not have got this assistance. But it never was dreamt of, either by the one nation or the other, that whatever he did should be made use of in that aspect at all or for that purpose. Nevertheless, it is put in for that purpose, and it is mentioned amongst their acts of occupation, upon which they lay such stress. I cannot myself imagine what / X ms ms ms CD it was put in for. 481 It is also material to point out that everything they did about this territory was done on board ship, or almost everything. They sent their vessels of war or revenue vessels, as the case might be, once a year up the Lynn Inlet, and they saw the Indians, and attempted to keep them in order. As their papers show, the whole country north of the Chilkat River, north of Lynn Inlet, was closed to the white man until 1880; that is mentioned; and that one of their naval officers has the credit of having induced the Indians to allow the whites to traverse that country in 1880. Up to that time the Indians had shut them out. All they could do was to go up in ships, and the Indians could only stay with them one or more days, and go away again. How is Great Britain, on any ground of justice or fairness, to be affected with knowledge of such proceedings and acquiescence in them? If it was desired that we should acquiesce in them, and that they should get the benefit they now claim from such acquiescence, surely at least we should have had some notice of it; and there is not even a shadow of a pretence that we knew it. In all that is alleged against Great Britain here, there is nothing that England is accused of having done as a positive act; it all consists of neglect to protest and of omissions. I do not delay upon this further, though it is a point to which we attribute very considerable importance, because we feel that, to make use of all these things, of which we were utterly ignorant, as founding a claim against us in respect of any particular boundary or territory, is hardly reasonable. In the first place, there is no possibility of any boundary having been ascertained or claimed here, for the very simple reason that the Treaty itself makes the boundary uncertain. Until there has been a survey, you cannot tell whether it is to be a mountain boundary, and until you know what sort of line of mountains is required, or what sort of summit line, and whether that summit line exists, there could be no means of knowing whether it was 534 ALASKAN BOUNDARY TRIBUNAL. to be a mountain boundary or a surveyor's line boundary, and surely it is absurd to say there was any fixed boundary under these circumstances. I am not certain that I have said everything I wished to say upon this ground, which covers so many pages, so large a portion of my learned friend's argument; if not, I dare say I shall be a short time after lunch, and I shall take the opportunity of looking and seeing if there is anything more I desire to say. It is more in connection with the affair of the " Dryad " than anything else that I shall deal with the Hudson's Bay Company, and what they did. I atUude now to what may properly be described as the " Dryad " affair; that is,the main thing which calls for reference to them and to their position, and I may say what it shows. (See Appendix to United States' Case, pp. 267-315.) So far from the Russian occupation being an occupation avowedly in accordance with the Treaty, nothing is more plainly shown than the fact that the Russians, in dealing with that territory, were doing so utterly irrespective of the Treaty. The Russian-American Company stopped by force our steamer the " Dryad " going up the Stikine, in plain contravention of our Treaty rights, and when we protested, the answer we get from the officer in charge was (p. 267) :— The Treaty is not law for me; my orders are my law, and I do not care whether there is a Treaty or not; my orders are you shall not go, and I shall stop you by force. It is not so very extraordinary that officers living in a country like that, accustomed to unlimited control, should be very arbitrary, but to say that the Russians were doing everything they did in direct compliance with the Treaty is inconsistent with Baron Wrangel's account, and with that of the officer in charge of the place. I forget now who was the Governor there; I think it was at Port Dionysius, and certainly it is quite impossible to say that he cared for the Treaty one way or the other, or that what he did was done in accordance with the Treaty. The learned Attorney-General has stated that in some detail, and stated it with accuracy, of course. There is no doubt of that, because I have gone over this with great care myself and taken the different references, and it practically comes to this: the Hudson's Bay Company desired and intended to establish a post of their own up the Stikine River at 35 miles 482 from the mainland coast of the ocean, as they thought they had a right to do. They were stopped by force by the Russian- American Company and by the Russians, and a long correspondence ensued. The British Government took up the case of the Hudson's Bay Company, as was natural and right, because what had been done was, as they said, in direct contravention of the Treaty they had with Russia. They called the attention of the Russian authorities to it, and, as usual, a diplomatic correspondence ensued. Diplomatic correspondence seems to have been in those days what a suit in Chancery was. This correspondence went on for three years, or a little more. At the end of that time the Russians—having fenced very much, and having at first founded their claim on the Treaty, contending that we had no right to land at occupied places, and that passing their station on the river was landing—when it came to be reconsidered by the authorities there who were responsible, at once nmm ARGUMENT OF CHRISTOPHER ROBINSON. 535 in the most decided manner disavowed any such construction of the Treaty, and said they were utterly wrong. But at the end of three years or a little more, they seemed to assume that a very graceful acknowledgment of their being wrong would abundantly supply the place of the payment of any compensation, and then Great Britain said in effect, " That will not do. It is perfectly clear that you are wrong, as you say yourself. Our Company has been very materially injured and has lost a great deal of money. We cannot accept your acknowledgment in lieu of compensation." Then, at the end of some three or four years, they got to a point at which they would have begun to negotiate as to how much was to be paid, and that they saw would lead probably to some disagreeable differences between the two Governments, and I think it was the Russian Government which first suggested to the Russian-American Company, " Had not you better try and settle this matter with the Hudson's Bay Company. You can make some trade arrangement with them, and that will probably be better and relieve us from disagreeables?" And on the other side Great Britain suggested the same thing to the Hudson's Bay Company, and said it would be a sensible matter if the two Companies could manage to settle between themselves. Then the Companies met and signed an Agreement. Now, I am not going to detain you by going at length through that, but if you look at it you will see that practically what the Hudson's Bay Company got by their lease, which is on p. 150 of our Case, was compensation in some shape. They got the compensation of supplying the Russian-American Company with goods which they got from England, being able to carry them cheaper than they could, and they got some other privileges you have there, which it was convenient for them to have. You will see that these two companies were apparently sensible enough to be on very good terms. The Hudson's Bay Company did get some compensation, which they thought was better than the delays of diplomacy, which woulpl probably have kept them four or five years longer, and have got for them nobody knew what. How is it possible to found anything in the shape of an admission upon a transaction of that sort. The British Government said, I We have claimed for you; the Russians have said they are wrong; you had better settle it for yourselves; it will relieve us both of some inconvenience." I do not see for myself, speaking with great submission, that it would be an admission on the-part of the British Government if they had made the same bargain themselves. They would have said, " It is no use fighting any longer about this: you acknowledge you are wrong on the construction of the Treaty, and let us settle it one way or the other," without saying a word about boundary. How can that amount to any admission ? We have been told on numerous occasions that the Hudson's Bay Company was a representative of the British Government; but that is altogether a misconception. The Hudson's Bay Company got their Charter in 1670, and that was a Charter embracing all the territory watered by the rivers which flowed into Hudson's Bay. It did not go west of the mountains at all. All the writers tell you that in these Charters the description by boundaries is not marked by any great accuracy, but that is the construction that has always been put upon it. I myself would certainly have suggested strong doubts, >j&mffim 536 ALASKAN BOUNDARY TRIBUNAL. if I had been told that this territory had been embraced in theirs, whether the Hudson's Bay Company would have been for all purposes the representatives of Great Britain. Does anybody 483 pretend that the Hudson's Bay Company could have effected any arrangement affecting the territorial rights of Great Britain. Supposing the Bay Company, which is said to represent Great Britain, had done what Great Britain could have done without any knowledge, and said; " We concede a portion of this territory to some other Power." There cannot be a doubt that they would have had no right to do it, and could not have done it, for they were simply holding there under a Charter of the British Government, revocable when that Government should think fit, and they were not masters of the territory in any sense of that kind. They could not have affected the rights of Great Britain as a nation over any portion of that territory as against any other nation. However, there is no use pursuing that, because this territory was not included at all. jp Now, what happened was that, some time after—or rather before— the union of the North-Western Company and the Hudson's Bay Company, the Hudson's Bay Company wanted to get rights over this territory west of the Rocky Mountains, and they did get a right for twenty-one years of exclusive trading, which was renewed for twenty-one years in 1838, and you will find the renewal on p. 160 of the Appendix to our Case, where you will see exactly what it says. The Hudson's Bay Company, in this part of the world, could not have had any representative rights, as they may be argued to have had on the other side of the Rocky Mountains, and it is impossible to say they were anything more than traders, with an exclusive right to trade. We say, therefore, that nothing the Hudson's Bay Company could have done, or attempted to do, could have affected the British Government, or have amounted to an admission on the part of the Government as to this portion of their territory; and then, as my learned friend says, in any event, these rights expired in 1859. I do not deny that Great Britain probably knew" all about this lease. It was made, perhaps, partly at her suggestion, and it was the most natural thing in the world that Great Britain should have advised these two Companies to settle their quarrels on a business basis like sensible persons, without being charged thereby with anything which could deprive her of territory. I venture to think this argument cannot commend itself to any Tribunal. I am now going on to speak of what we attach a good deal of importance to—the notice by Great Britain to the United States of her claim to the inlets before 1898. Nothing can be of much more importance than this, and I have gone into it as carefully as I am capable of doing, which will enable me, perhaps, to be a little shorter. I do not wish to take the Tribunal through the details of what I have taken pains to ascertain myself. I ventured to think, when we first saw this statement, that they had had no notice of our claim to these inlets before 1898—I thought it had been made under a misapprehension and would be withdrawn. It was made very distinctly in Mr. Choate's despatch in the Appendix to the American Counter-Case, of the 22nd January, 1900, at p. 138, in answer to one from Lord Salisbury. He repeats it more than once. There are one or two inaccuracies in that despatch which made me doubt a little how much MM t.wm ARGUMENT OF CHRISTOPHER ROBINSON. 537 personal knowledge the writer of it actually had himself—unintentional inaccuracies. Now, I do not know exactly what is the necessary notice that is required as between nations. I should suppose it is notice by the one Executive Government, or the proper officer of one Executive Government, to the proper officer of another Executive Government. Now, let us see what took place here. In 1888 a Conference was going on in Washington, and this was one of the things specifically referred to that Convention. It was mentioned among the different things that were to be attempted to be settled. J think I am right in that; but I sometimes confuse a little between the Conferences of 1888 and 1892; that is what makes me not quite sure. It was suggested that it would be a good thing if two experts were appointed, one on the part of each country, to confer about this matter, and see if they could not possibly arrive at some arrangement. Mr. Dall was appointed on one side, Dr. Dawson was appointed on the other, and they had several conferences, which ended in a very decided difference of opinion on this one question, the width of the lisiere. Mr. Dawson expressly adopted Colonel Cameron's views, which he quoted in a letter of the 7th February, British Case Appendix, p. 259, to Sir Charles Tupper, who was then at Washington. He was both a Cabinet Minister at Ottawa and, I think, the Minister of Finance at that time, and one of the Commissioners appointed to represent 484 Great Britain at that conference, and Dr. Dawson naturally 7 ms reported to him what he thought about the matter; not the result of his conference, because I think he wrote on the first day, very possibly before he had the conference; and he placed before Sir Charles Tupper exactly the view which Colonel Cameron had taken, which could hardly be expressed in more precise language— that inlets have nothing to do with ocean, and that there was no claim on the part of the United States upon the proper construction of the Treaty to the inlets; and Dr. Dawson adopted that view, and expressly said so. Now, Sir Charles Tupper did what was natural. As the Executive Officer acting for Great Britain, he sent that communication of Dr. Dawson's, I think on the 11th (United States' Counter-Case, p. 156), which was after the Conference, and after they had disagreed, and after he knew they had disagreed—he sent that to Mr. Bayard, who was then the Secretary of State, and he said it was explanatory of Dr. Dawson's own views. I will come to that remark afterwards—it has not been particularly spoken of as yet; but could there be a more formal or international way of bringing these views to the attention of the United States' Government than that? The proper official, the Executive Officer of Canada and Representative of Great Britain, sent them formally and communicated them to the Executive Officer of the United States. If it had stopped there, and if Mr. Bayard had lost that letter, I should have thought it would have been somewhat difficult to contend that the United States never had notice. But there was nothing of the sort, because Mr. Bayard did not overlook the letter. On the contrary, he was very far from overlooking it. He treated it as affecting a matter of very great public importance, and transmitted Dr. Dawson's letter to the President with Mr. Dall's letters, which he had got some little time before, for Mr. Dall had written to Mr. Bayard, explaining his views ALASKAN BOUNDARY TRIBUNAL. and telling him that there were fundamental differences of opinion between him and Dr. Dawson on this subject of the width of the lisiere. Mr. Bayard, having both these documents, transmitted them to the President, saying expressly in his letter that he transmitted them " as bearing upon a matter of great international importance, and should be put in shape for public information." (See Congressional Report, 50th Congress, 2nd Session, Senate, Ex. Doc. No. 146.) I cannot understand any better way of giving a nation notice than to transmit to the Legislature of the nation—the people's representatives^—all the letters, saying it is a very important matter, and should be known to our people, saying to the Legislature that it involved a matter of very great importance, which ought to be made known to them. If it had stopped there, would it have been conceivably reasonable for the United States to assert that they had never heard of our claim to the inlets ? I do not know how better to give notice; but it did not stop there. On the contrary, I think it was in 1895 or 1896—I am trying to shorten this and not refer the Tribunal to what they know— I have got it all before me in detail and every reference. The President. We quite follow you, Mr. Robinson. Mr. Robinson. At any time you ask me for any reference, of course I shall be glad to give it, but a debate took place in Congress, and that debate is before the Tribunal; it is embodied in their Congressional Records. The subject was brought up and speeches were made by two different members, and the different speakers—one more particularly—spoke of this being the Canadian view of the matter. We have quoted this in our Case. He said the Canadian view of the matter claimed all these inlets, and there are expressions of surprise that we should be rash enough to make such a claim. They say the Canadians claimed all these inlets. Now, the shortest and best way I could give you information, should it be desired, is by reading to you the report of the Seattle Chamber of Commerce, which had investigated and looked into the whole question, and which was expressly made part of the debate, and is included in the record. Of course, Seattle, which is on the Puget Sound, was a part of the Union where they had most interest in the question; it interested them very closely because the trade of this country was then becoming of more or less importance; it did not become so much so until two years after. They having an inter- ^|sgtm *^ ^^ 485 est in it investigated it very carefully, and they reported their views upon it. I need not say their views were diametrically opposed to our own. Now, I venture to think that the Chamber of Commerce had probably acquired such knowledge in two ways. It is just possible that they had read the Congressional debates and so had acquired it in that way, but I should rather think myself that they knew it because it was as well known on that coast what our claim was as any other public matter which interested them. They probably knew it as a subject of general comment and general knowledge in that part of the world, but whether they knew it in one way or in another is immaterial; they had the debate upon it, and they state what our views were, and they answered our views. We are told, in the face of all this, that the United States never had official notice of our claim to these inlets until 1898. Is it possi- ARGUMENT OF CHRISTOPHER ROBINSON. 539 ble to contend that? They had it in 1888 communicated to their official representative; it was communicated by the President, the head of the nation, to the Congress of the nation, with the character attached to it which I have spoken of, and it was discussed and spoken of in Congress, and described as our claim, and yet they tell us they never knew we claimed these inlets until years afterwards. I cannot help thinking that if there is an argument which answers itself, it surely must be this. I do not know how to answer it, except by asking what it was we ought to have done, or should have done, or how it would be if the same thing had occurred in this part of the world. Supposing the King, for instance, had sent down a message to Parliament involving a matter of great public impor- tanc, and the thing has been debated in Parliament, and the message which he sent related to the claim of another Power to certain territory, and that had been debated in Parliament. Could we have said in the face of the world that we had never heard of that three years afterwards ? I do not desire to go more at length into that or to discuss this any more in detail, though, as I have said, I have got it all here, with extracts, and these are the facts; I do not repeat them, because these are facts that everybody knows, and that we all know here, that we are speaking about. That Congressional Record I have got, and all these things are set out in our Argument and, more or less, in our Counter-Claim. The President. Have you got a copy of the Congressional Record there ? I want to look at one document in it. Mr. Robinson. I have read it. I can get it, I know. The President. Give me the reference to it; do not trouble now. Mr. Robinson. I will get it, my Lord; I have seen it, and I can get it easily enough. It is a Congressional Record. The President. It is referred to in your own Case—in your Argument—between pp. 57 and 58. Mr. Robinson. Now, there is but one answer made to this, and it is the only matter which has not been particularly pointed out. That is in the despatch from Mr. Choate to Lord Salisbury of the 22nd January, 1900, the beginning of which—it is a long despatch—will be found in the Counter-Case of the United States on p. 138. At p. 15.1 it said: — It appears by Dr. Dawson's letter, upon which your Lordship relies, that he did not put forward this idea as originally his own, or o»e for which he was responsible— All I can say is that when he adopted them I suppose he made himself responsible for them— Or as a claim in any sense of Her Majesty's Government, but as the view of a Canadian land surveyor, General Cameron— That is treating General Cameron in a way that I do not think he would quite recognize— which he says in his letter to Sir Charles Tupper " may be substantially 486 adopted," and he courteously furnishes Professor Dall with a copy of the letter as stating clearly General Cameron's views. It was wholly immaterial whether Dr. Dawson adopted General Cameron's views or not; but Sir Charles Tupper, who was then in Washington, and was keenly alive to the • importance of everything bearing on the Alaska boundary, was in no mood to adopt them. He appears purposely to have refrained from doing so, for in 540 ALASKAN BOUNDARY TRIBUNAL. communicating to the Secretary of State a copy of this letter of Dr. Dawson, he refers to it as explanatory, not of the views of himself, or of the Canadian or the Imperial Government, but of Dr. Dawson's own views. I annex a copy of Sir Charles Tupper's letter. This letter, which is annexed, is in three or four lines (p. 156), in these words :— I 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. That is a letter addressed to Mr. Bayard at Washington, written from the British Legation. Mr. Choate goes on to say:— And Mr. Bayard refers to them as " certain views of General D. R. Cameron, as submitted in the letter of Dr. Dawson." Certainly, therefore, Her Majesty's Government made no such claim— That is the Imperial Government, I suppose— And if there was any purpose on the part of the Canadian Government of making it, such purpose was very studiously and successfully disguised. I think it will appear that neither the Canadian nor the Imperial Government adopted or put forward this claim until after the protocol of 30th May, 1898. Now, I would ask, what purpose could the Canadian Government have in disguising their claim ? It says that it was very successfully and studiously disguised by us. I cannot conceive why we should want to disguise it. It was a claim in our own fovour. Could we possibly suffer by simply announcing it as our claim ? Then I would ask again, if this was simply the view of Dr. Dawson, what purpose could Sir Charles Tupper have had in explaining it to the American Government? What difference could it make to the American Government what Dr. Dawson thought or did not think about the matter if they thought, and had reason to think, that neither the Canadian Government nor the Imperial Government intended to adopt his view ? Now it is a very significant thing that no one but the writer of this despatch took that view, for when Mr. Bayard transmitted the documents to the President he did not transmit this letter; the President had no doubt about it, because he never alluded to this letter when he sent the papers to Congress, and the only place in which I can find that it ever has been doubted is in this despatch. Is there any possible reason for doubting it ? I venture to think Sir Charles Tupper expressed himself in that letter with perfect accuracy, and as he wanted to express himself. He knew perfectly well that Dr. Dawson had differed from Mr. Dall, and he knew also that Mr. Bayard knew that they had differed. Dr. Dawson was our representative, and when he said that it embodied the views of Dr Dawson, what could it have meant except that they were his views as distinguished from the views of Mr. Dall. I submit, therefore, that there was no mistake whatever—that he simply said what he should have said, because if he had said anything else it would not have been right. Supposing he had used this simple formula:— These are the views of our representative. Dr. Dawson was our representative, they knew he was our representative, and at least he meant:— These are the views of Dr. Dawson, who is our representative. ARGUMENT OF CHRISTOPHER ROBINSON. 541 Now, in all reason, what more could he have said, or ought he to have said ? If they had had a doubt as to our intention to adopt 487 them, or supposed that we were committing what would have been almost the impertinence of sending to the American Government what we regarded only as Dr. Dawson's views, which we did not want to adopt, Sir Charles Tupper was at Washington, and it could have been settled in a moment; but it never occurred either to Mr. Bayard or the President that there was any question about it. WTien you take this in connection with the subsequent debate in Congress, I say there is no foundation for the assertion that our claim to the inlets was not made known to the United States before 1898. It is repeated, however, in different documents, and in three or four different places in this despatch of Mr. Choate's; and when you find a thing put forward seriously in that way, one must necessarily treat it seriously and say what seems to be necessary to say in answer to it; and this is the answer that I make. If that was not official notice from one Government to another I should like to know exactly what is, or what our Government ought to have done that it did not do, or were called, upon to de. They had notice which they accepted and acted upon, and we say they had official notice of our claim before 1898—all the notice that it could be necessary or proper for us to give. I was going to refer to the maps of Dr. Dawson, and the Tribunal will understand that in Sir Charles Tupper's letter he says that they follow the maps which he had sent the day before. Now we have that Congressional Record here with the President's Message, and it is curious that it has a list The President. What is the year of it ? Mr. Robinson. 1889. The President. 1889. Mr. Robinson. The Message of the President was on the 2nd March, 1889. The President. Yes. Mr. Robinson. And he says:— I herewith transmit a report of the Secretary of State, and accompanying documents, relative to the undetermined boundary line between Alaska and British Columbia. Then the letter by Mr. Bayard to the President says:— The Secretary of State has the honour to submit herewith, for transmission to Congress, certain documents and maps relating to the undetermined boundary line between Alaska and British Columbia. During the Session of the Fisheries Conference of 1887-88 in this city, it was suggested that an informal consultation between some person in this country possessing knowledge of the questions in dispute and a Canadian similarly equipped might tend to facilitate the discovery of a basis of agreement between the United States and Great Britain upon which a practicable boundary line could be established. To this end several interviews were held in this city between Professor W. H. Dall, of the United States Geological Survey, whose geographical and geological explorations in Alaska have associated his name with that territory, and Dr. George M. Dawson, an eminent Canadian authority on the same subject. Professor Dall's and Dr. Dawson's accounts of these conferences are herewith submitted, together with other documents, including a letter of Dr. Dawson to Sir Charles Tupper on the boundary question, a memorandum by Professor Dall on the same subject, and also a supplementary memorandum by him on certain views by -Major-General D. R. Cameron, as submitted in the letter of Dr. Dawson above referred to. 542 ALASKAN BOUNDARY TRIBUNAL. I i These documents are considered of value, as bearing upon a subject of great international importance, and should be put in shape for public informa- 488 tion. Accuracy being essential in the reproduction of the maps now enclosed, it is respectfully recommended that it be accomplished by photographic process. Then there is a list of the different documents enclosed which, as I have said, did not include that letter of Sir Charles Tupper to Mr. Bayard. No. 16 is " Dawson's Canadian Map, 1887, showing Conventional lines proposed by Canada." Well, surely that is a statement that Dr. Dawson was acting officially on the part of Canada and intended to represent Canada. There are several lines represented there, there is Conventional Line No. 1, which cuts Lynn Inlet near the head. I ought to explain that this map is not to be found in other references; it is only to be found in this Congressional Record, and the map is headed just in the same way: " Dawson's Canadian Map showing Conventional lines proposed by Canada." Your Lordship will see first the Aonerican line there, which is running around these inlets. The President. There is no copy of that except annexed to the Congressional Record ? Mr. Dickinson. Yes, United States Atlas 28, the third map from the top. Mr. Aylesworth. And it is stated in the Index to the United States Atlas to be taken from the papers that you are referring to— the Sessional papers. The President. It is what is called Dawson's Map of 1887? Mr. Dickinson. Just so. The President. Thank you,-Mr. Dickinson. ms J Mr. Robinson. Yes, it is right; I see now; it is shown in a different shape here. The President. What is the number of the map annexed to the Message ? Mr. Robinson. No. 16, but it is shown in a different way; I do not wonder at its not being exactly recognized because it is cut up for convenience, but it is a reproduction; that is all right. Well, now, what that does show is the United States line. It also shows another line; it also shows the line approximately as shown on. the United States Survey Map of Alaska, 1884. Now, Dr. Dawsori's comment on that is, as you will see, " This line disregards both the Treaty reference to mountains and that to the ocean coast." I do not very well know how our idea could have been better explained. The President. It is not unimportant, Mr. Robinson, if I am not interrupting you, that that map does show as of that date first the line approximately shown on the United States Case Survey, to which that note is attached: " This line disregards both the Treaty reference to mountains and that to the ocean coast"; and then also shows what I suppose was Dr. Dawson's notion of a line approximately following summits of mountains parallel to the coast. Mr. Robinson. I was coming to that, my Lord. The President. I beg your pardon. Mr. Robinson. Well, now, there you have that line which shows the line approximately following the mountains in the Treaty, and it cuts the inlets as we contend it should. That is all I want to show it to the Court for. ARGUMENT OF CHRISTOPHER ROBINSON. 543 489 Mr. Lodge. Would you allow me to look at the Congres sional document you are referring to? Mr. Robinson. So there is the map that was referred to by Sir Charles Tupper, when, in writing his letter to Mr. Bayard sending Dr. Dawson's report, he says it is " accompanying the maps," or " following the maps, which were sent to you yesterday "; and that is the map which had been sent to Mr. Bayard the day before. Mr. Bayard, therefore, had in his possession at the time a map by Dr. Dawson showing distinctly the boundaries that we claimed. It proves nothing except that they had notice of it; it does not prove that we are right or that we are wrong; it proves that they had before them, both by map and by letter, and by everything that we could give them, a distinct notice of what we'claimed—that we claimed these inlets. The President. You use this in support of the Attorney-General's Argument that they knew long before 1898 of this; you say eleven years before? mv - Mr. Robinson. Well, about ten years before. Of course, anything I am saying now is nothing but an attempted support of the Attorney-General's Argument. They recognize this map as official, because in their list of maps they say " Proposed by Canada "-—not I Proposed by Dr. Dawson." What Dr. Dawson thought, I do not know; Dr. Dawson is not here, but I do not know anyone to whose opinion the Canadian Government would have attached more importance. The President. You are quite right about that. Mr. Robinson. And when I am told that Sir Charles Tupper studiously avoided endorsing Dr. Dawson's view and General Cameron's view, I will venture to say that there is nothing Sir Charles Tupper would have been less likely to do, and, further, that there was not the slightest probability that Sir Charles Tupper would have any opinion of his own on the subject. A man in Sir Charles Tupper's position would not be expected to investigate this map, or to investigate this Treaty, and to say whether he agreed with Dr. Dawson or with General Cameron. When Cabinet Ministers or Governments appoint Representatives to report upon a matter which requires expert knowledge, and those officials report, Cabinet Ministers do not take the trouble, when it depends upon a question of survey, and the proper construction of a Treaty, which can only be construed by people having a knowledge of the country, it is not their part, to look into the matter and to form any opinion one way or another. Mr. Lodge. Mr. Robinson, may I ask you to what the Supplementary Memorandum printed in this document, No. 6,1 Supplementary Memorandum on the Views of General Cameron "—what report of General Cameron's does that refer to ? Mr. Robinson. I think that is the report mentioned in Dr. Dawson's letter. Where are you reading from ? Mr. Lodge. I am reading from the Senate document which you handed up, p. 23. Mr. Robinson. I do not know the date, but the letter, whatever it was, was supplied by Mr. Dall, and I am told it is referred to in the Appendix to the British case, p. 260. Mr. Lodge. He quotes here largely from General Cameron. Mr. Robinson. Yes, he does. ALASKAN BOUNDARY TRIBUNAL. 9 Hi l»u Mr. Lodge. Aoid I wanted to know what that report was of General Cameron. Mr. Robinson. Oh, I think that was a report by General Cameron. I forget the year exactly when that report was made; 1883,1 think it was; I am not quite certain. Mr. Lodge. When was the report made ? Mr. Robinson. I will ascertain, but that was a long report, dealing with a number of different things, and I do not think that report has ever been printed; that is my impression. Mr. Lodge. Is it a report made by General Cameron in 1886 ? Mr. Robinson. Yes, it is; General Cameron reported also in 1875; there are several reports of his. Mr. Lodge. Yes, that I am aware of, and what I wanted to ask, and intended to ask later was: if the Attorney-General would have the kindness to furnish the Tribunal with the report made in 1886 (to which reference is made in p. 162 of the United States' Counter-Case) of General Cameron, for I should infer that this Supplementary. Memorandum, which has been introduced here in the Senate document, related to that report of 1886. Sir Robert Finlay. I think it can be found. Mr. Lodge. I see from this that it has been printed. The President. Would you give the reference, Mr. Lodge, to the Attorney-General again ? Mr. Lodge. It is on p. 162 of the American Counter-Case; the reference is to a report#on the British Alaskan boundary, made in 1886, and as this document which has been introduced here refers to it very elaborately in that Supplementary Memorandum, I should like very much to see the original report, because this gives only extracts. Sir Robert Finlay. I am told it will be here after the midday adjournment. Mr. Lodge. Thank you; I am much obliged to you. Mr. Robinson. May I ask Senator Lodge what was the page to which he called mV attention ? ms Mr. Lodge. Page 162 of the American Counter-Case. Mr. Robinson. Oh, I thought it was the Supplementary Memorandum on the views of General Cameron as submitted in that letter of Dr. George Dawson to Sir Charles Tupper, but I think what that refers to is a Supplementary Memorandum on the views which General Cameron expressed, and which Dr. George Dawson copied in his letter to Sir Charles Tupper; that is aH. It does not refer to the whole report of General Cameron, plainly. Mr. Lodge. That Supplementary Memorandum quotes very largely from a report of General Cameron. What I should like to have furnished is the report of 1886, whether that is what refers to it or not. Mr. Robinson. I see; then I am told that the Supplementary Memorandum is to be found on p. 260 of our Case. 491 Mr. Lodge. The Supplementary Memorandum is here; it is one of the documents you introduced. mJ j The President. The Attorney says he will have it looked for. Mr. Robinson. Perhaps I may leave it till after the adjournment, and I will find out where the report is. Then another remark made by the United States on this question is (and you will find it in the United States' Counter-Case, p. 74) yiikw ofmmm ARGUMENT OF CHRISTOPHER ROBINSON. 545 • that in matters of such moment Governments do not make known their views by means of an informal meeting between two citizens or subjects, clothed with no authority either to speak or act for them, and (pp. 68 and 69) that it cannot be seriously claimed that what was said at such a meeting could be regarded as official. That would be very applicable, and would have force, if these conferences between Mr. Dall and Dr. Dawson had stopped with what they said to each other. Of course, what they said to each other at a perfectly informal meeting could not be held as an expression of the views of either Government, and if it had stopped there there would have been some force and some application in a remark of that sort. But they did not stop there; they went through all the processes that I have described—going to the Secretary of State, going to Congress, being debated in Congress—and that took them out entirely of the remark which is made here. There is no question that that conference . was an entirely informal conference: it was not mJ 7 intended that Dr. Dawson or Mr. Dall should have power to bind either Government by what conclusions they came to, and it was not ms ms 7 intended that their conference should be of that formal character which a Conference between formally accredited and authorized representatives of Governments usually are, but these communications passed entirely out of that category and out of that character when they went through the processes which I have endeavoured to call attention to. The President. We will break off now, Mr. Robinson. (Adjourned for a short time.) Sir Robert Finlay. I have got here the report of Major-General Cameron, for which Senator Lodge asked; I will hand it in. The President. Thank you. Mr. Robinson. I want to say a word about that cession—to which ms I have already alluded—of 1867, which they say, with some emphasis, was the time for us to speak. You remember their saying that when they referred to the map upon which Mr. Sumner relied. Now, we have got Mr. Sumner's speech; extracts from it are included in the documents. They cite a part of the speech from the Presidential message, and print it; and I suppose we may refer to other parts of it. Now, this is what Mr. Sumner says:— Perhaps no region of equal extent on the globe, unless we except the interior of Africa, or possibly Greenland, is as little known. Here I do not speak for myself alone. A learned German, whom I have already quoted, after saying that the explorations have been limited to the coast, testifies that " the interior, not only of the continent, but even of the island of Sitka, is to-day unexplored, and is in every respect terra incognita." The same has been repeated of the islands also. And then he quotes some poetry, which I need not repeat to the Tribunal, speaking about " the wolf's long howl from Ourialaska's shore." He says later:— 492 Perhaps the most precise and valuable information has been con tributed by Germany. And then he says:— If we look to maps for information, here, again, 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. S. Doc. 162, 58-2, vol 7 5 546 ALASKAN BOUNDARY TRIBUNAL. And then he says of the maps:— But the interior is little more than a blank, calling to mind "the pathless downs," where, according to Prior, the old geographers "place elephants instead of towns." I have already referred to what purports to be a " General Map of the Russian Empire," published by the Academy of Sciences, at St. Petesburgh, in 1776, and republished at London in 1787, where Russian America does not appear. I might mention, also, that Captain Cook complained, in his day, of the Russian maps as "wonderfully erroneous." On his return, English maps recorded his explorations and the names he assigned to different parts of the coast. These were reproduced in St. Petersburgh, and the Russian copy was then reproduced in London, so that geographical knowledge was very little advanced. Some of the best maps of this region are by Germans, who always excel in maps. Here, for instance, is an excellent map of Aleutian Islands and the neighbouring coasts, especially to illustrate their orography and geography, which will be found at the end of the volume of " Transactions of the Imperial Mineralogical Society," at St. Petersburgh, to which Is have already referred. Late maps attest the tardiness of information. This is merely expressing the same view which Mr. Bayard has since expressed much more emphatically, that the maps were abso-, lutely useless; they were merely conjectural. And all that bears upon the assertion that at the time of the accession was the time for us to have said something. What could we have said? We knew nothing—what could we have said? It must be remembered that their acquisition simply gave them the territory which Russia had acquired from Great Britain, and the copies of Articles III and IV describing the boundary are copied in the .American Treaty. Well, they knew all we knew; they had the Treaty under which Russia acquired hei* title, and they got all the title Russia had; and what possible obligation was there upon Great Britain, without being asked, to tell them anything more? I wish now to speak of Mr. Dennis' Report, for something has been said about that. In the first place, it is worthy of remark that that Report of Mr. Dennis was never submitted, so far as we have been able to ascertain, to the Government or brought to the attention of the Government; and the Government never by Order in Council approved of it or adopted it. But you must remember that that Report was in 1874; and you must remember also that was a very short £ime, three years, after the entrance of British Columbia into the Union. She did not become part of Canada till 1871. Mr. Dennis was a Dominion official, who probably had no very accurate information about the matter, and had not applied himself to the consideration or meaning of the Treaty to any extent; because if you look you will find that he had never looked at the maps; though I am bound to say he had looked at them about as much as the negotiators had in one respect, for he commits this curious mistake at p. 177 of the Appendix to our Case. He says:— 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 despatch from Sir Edward Thornton to Earl Granville, dated the 15th February, 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. 493 Well, he was as wise there as the negotiators were. They all thought that it went up the 56th parallel, and as one construe- A.RGUMIJNT OF CHRISTOPHER ROBINSON. 54' tion of that line would read, it went beyond it. But at the next page he says:— The most expensive part of the service proposed is involved in determining the crossing of the rivers mentioned by the boundary, as the same is to run directly parallel to the Pacific coast. That would seem to show that he entertained the opinion that we have always entertained. m) Mr. Aylesworth. Another instance of his error is in repeating that word " Isilcat," that unknown river. Mr. Robinson. Yes, there was no such river at all; that was a mistake. Then further on he says, at p. 224 in his instructions, paragraph 6:— It is assumed that the point on the river where a line would cross connecting the two highest peaks " of the mountains situate parallel to the coast" adjoining on either side of the river (if within the distance of 10 marine leagues from the coast, measured and estimated on a course at right angles to the general bearing thereof opposite) would give the crossing of the river by the international boundary at that point. " Ajid then in paragraph 7 he says:— The general direction of the coast embracing said 30 miles on each side of the Stikine, is indicated on the tracing D, and may be taken as north 32 degrees west. And so on. If you read the whole of the report you will see that Mr. Dennis, so far from expressing or entertaining any deliberate opinion contrary to our view of the matter, had really never considered the matter carefully, had never applied his mind to the construction of the Treaty or to the nature of the topography of the region. And he took those rivers from the despatch of Sir Edward Thornton to Earl Granville, which is found at p. 168, where Sir Edward Thornton simply quotes from Mr. Fish, and says that— On the 12th instant Mr. Fish informed me, in the presence of Admiral Provost, that he had since received from the Engineer Department a detailed report of the estimated expense of the survey on the part of the United States and of the time which it would occupy. That Department, it seems, states that the cost would be about a million and a half of dollars for the United States alone, &c. Now that shows that he was simply adopting the opinion which had been suggested by the United States, and which had been communicated by Sir Edward Thornton, who was our Minister at that time at Washington, to Lord Granville, who was the Secretary of State in London. And the report just comes to this: there are a great many expressions which are in our favour and confirm our view, more especially as to the line and the general trend of the line; hut they rely upon it because they say the line crosses the rivers running into the heads of the inlets—and it could not cross the rivers unless it went above the inlets. That remark of the learned Attorney- General is very apposite here:— I do not know how anyone is to understand what are the heads of the rivers and inlets, and what is the river itself. If the head of the inlet is an estuary of a river, it is very hard indeed to tell where the river begins and where the estuary ends. 494 As I think I have already said, that had never been Cana- dian territory until three years before, in 18(1. «/ ms 7 m 548 ALASKAN BOUNDARY TRIBUNAL. Mr. Dennis was a Dominion official at Ottawa, and probably had never seen the country. He was writing with the general knowledge that such a person might have—and, as I have said, as a matter of fact, I believe his report was never adopted, or concurred in, by the Government. The United States have constantly said that they have always adopted a consistent, uniform, unvarying view of this Treaty. Well, now, I refer in the first place to Dr. Mendenhall, who was appointed by the United States to be the head of the joint survey on their side, which was to be carried on under the Convention of 1892, and gave his instructions to his officials. (Appendix to British Case, pp. 273 et seq.) There were several of them, and all, I believe, engineers of experience, who were to assist him and form his staff. He says in his report that those instructions are the result of several conferences with these various gentlemen. And he gives, in the instructions to each, the two clauses of the Treaty defining the boundary. So that it was done with great deliberation, for there was plenty of time; it was some months after his appointment. They had met and considered this matter, and this was the result of his instructions. He tells them that the line is to be run in accordance with the general trend of the coast. Frequent verbal conferences— He says (p. 275)— have given you a clear idea of what is to be accomplished. Then he says, referring to the Taku Inlet (p. 276), you are to take " a point on the inlet or river," showing that he did not know where it would be, either on an inlet or river, " distant not less than 30 nautical miles from the coast of the mainland in a direction at right angles to its general trend." Nothing could well be more explicit than that, or come from higher authority; because he was the gentleman whom the United States had selected as the most competent and the most likely to know what that Treaty meant from an engineer's point of view, and how it ought to be construed. And here are his instructions. The United States seems to feel the importance of this, because they say, in their Counter-Case (p. 34), that while they appreciate that this might be construed into an admission on Dr. Mendenhall's part that he coincided with the view taken by the Canadians, it emphatically was not his intention, and he certainly changed his mind; and the way in which they say that Mr. Mendenhall changed his mind was by writing an article in a popular magazine four years afterwards. Well, if the point which we present was capable of no better answer, I really think it had better have gone unanswered; because I cannot argue with any seriousness, before a judicial Tribunal, which is the most entitled to be regarded as his final and deliberate expression of opinion—the directions which he gave to his subordinates in the discharge of his official duty, under a sense of responsibility, or the expressions which he used in a popular magazine article written four years afterwards. As to Dr. Mendenhall and the concluding paragraph of his magazine article, to be found at p. 277 of the Appendix to the United States' Counter-Case, which the learned Attorney-General has referred to, and founded his own comment upon, this one observa- iuwmhi ARGUMENT OF CHRISTOPHER ROBINSON. 549 iion occurs to me. It is very satisfactory to us to be told that Mr. Mendenhall is a gentleman who has changed his mind once, because it permits us to hope that he will change it again, and that he may see reason to drop the very unfavorable and emphatic views which he has expressed as to the character of British diplomacy. We must read this, however, in connection with a very comprehensive opinion which has been expressed by Dr. Dall, another official of our friends, in a work published by him in 1870, from which an extract is given at p. 321 of the United States' Case Appendix, as to " the insatiable Hudson's Bay Company—ever ready to extend their traffic by force, or fraud if necessary," and their " audacious idea " conceived in consequence. Reading this with the view expressed by Mr. Mendenhall, it occurred to me that I might properly pass over such things without comment; but when we find expressions of that sort put into print, served upon us, and brought to our attention, it seems to me 495 that they must have been thought to have some connection with this Case in some way, and that, therefore, we ought to consider and notice them, and give them such answer as we may. Well, I have only this answer to give—I believe we are anxious, in the part of the Empire from which I come, for reciprocity with our friends in almost everything; but we do not want any reciprocity in utterances of that sort; and when they tender us such opinions—as they have done here—I can only say that we have got nothing of the kind to give them in exchange. We do not understand such opinions. So far as I know, none of our officials have ever entertained or expressed them. I can only say, therefore, that these opinions must remain unanswered for whatever they are worth; and I do not profess the smallest regret for being obliged to leave them in that position. I do not desire to proceed further upon a topic of that sort, because while I say that our officials here have never expressed such opinions, which is absolutely true, I do not want anybody to imagine that I am claiming for every one in Canada and in England all the good sense and right feeling that people ought to possess. We have people, no doubt, on our side of the continent who are capable of writing such things just as well as our friends have; and no doubt when such expressions are used in either country, they are sure to produce similar expressions in the other. I will only add, I wish the same feeling prevailed everywhere outside this room in both countries which has prevailed here among us, and that we had not to deal with matters of that kind. Dr. Mendenhall, however, is not alone in his views as to the boundary line. Dr. Mendenhall repented and wrote an article in a magazine, but it is a curious thing that his predecessor, Mr. Thorn, expressed a precisely similar opinion, which is to be found at p. 268 of the Appendix to our Case. We speak of Mr. Thorn in our Case somewhere in the Appendix merely as a surveyor. I am told that is a mistake. As a matter of fact, he was Mr. Mendenhall's predecessor as head of the Geodetic Survey; this appears, my learned friend Mr. Duff says, from the previous letter at p. 267. I was told our description of him was a misprint. Yes, a letter addressed to the Minister of the Interior, Canada, and it is signed by F. M. Thorn, Superintendent. He, therefore, was Mr. Mendenhall's Superintendent in that important office. For some reason he — 550 ALASKAN BOUNDARY TRIBUNAL. came to precisely the same conclusion, and we do riot find that he ever changed his opinion in any way. I do not use this as showing that that is the right view. We do not care either what Mr. Mendenhall thought or what Mr. Thorn thought, so far as it goes to decide the question in issue before the Tribunal; but when the United States tell us that they from the beginning to the end have always adopted and avowed and announced one invariable, consistent, uniform view, all I can say is you cannot reconcile that with these two documents from their very best officials announcing distinctly the same view as ours. You cannot run this line parallel with the general trend of the coast and around all the different inlets, and they both thought it was to be run there. That proves nothing more than that they were not a bit more certain than we were how this Treaty was to be construed: the Tribunal has to construe it. And when they talk of Mr. Dennis having said this, and somebody else having said that, we say it is perfectly possible that in the fifty or sixty years that have elapsed some of our officials may not have taken the view that we take now. It is plain and beyond dispute that in 1892 their officials took precisely the view we take at present, and surely that disposes of any argument in favour of their unvarying consistency. Then I wish to say a word about the Conference of 1892, because^ we have always attached enormous importance to that, and I may go back first for some years to speak of our general conduct. We are told that from the beginning we have been neglectful, that we have misled them. There is no shadow of proof that they were misled by anything we did or did not do. But let us see what we did do. Up to 1871 no one will pretend that this was anything but an absolutely unknown, unoccupied country. The moment British Columbia came into the Dominion—when I say the moment she came in I mean the year after, or in 1872—the British Columbia Government took mJ 7 it up, addressed a letter to the Imperial Government, and said it was very desirable that this boundary should be laid out and ascertained. The American Government—and nobody blames m, 496 them—said what I think was a very natural thing to say—- that the country was not worth it—that it would cost a million and a half, and they were not willing to spend that money upon it. That was natural enough, but it was no fault of ours. WIe had called their attention to it, and Mr. Fish had stated, in effect: " I entirely agree with you; I think it is most desirable that should be done; but I do not believe we can get Congress to advance the money." And that went on for a very long time. I need not pursue all those investigations, because you will find that they have all been set out in our Case. But the pith of it all is that we were from time to time urging that this line should be ascertained. Ajid you will find a Message from the President, in 1872, referred to in Mr. Choate's despatch of the 22nd January, 1900 (Appendix to United States' Counter-Case, p. 138), in which he says that it was very desirable to have the boundary determined before any question *7 m m* J. arose—while there was no question pending between the two Governments, and while the country was unsettled and unoccupied, and of comparatively little consequence. I am not quoting the words—your Lordships are all familiar with them. Now, they construe that in this way; and I ask, is there any reason for it? Mr. Choate says it is absolutely certain that when ARGUMENT OF CHRISTOPHER ROBINSON. 551 the President said that no question had ever arisen, what he meant, in effect, was that every question had been settled, and he had no idea of there being any open question. Why, the real truth was that nobody up to that time had raised any question on the Treaty, or announced any view of the Treaty. We had never told the United States exactly how we construed it; they had never asked us, and they had never told us; and the President is absolutely right in saying that no question had ever arisen. That expression has been used in some other document; and it is always taken by them— our statement that no question has ever arisen—as a statement that all questions had been settled in advance. I cannot understand how language can be so entirely diverted from what would seem to be its natural meaning. If I had made an agreement with anybody else, and somebody had spoken to me and said, " What is the meaning of that Agreement, and what have you agreed upon \ about it ? "— I Oh! "—I should say—" no question has ever arisen; I have never been asked before." It does, not mean anything more. Does it mean to say I have settled every question about it with him? What is the meaning of saying that no question had arisen if it does not mean that there never had been any question up to this time to settle ? That is the fair and reasonable meaning of what was said on that occasion. No question had ever arisen. Then we had the Convention of 1892 (at p. 269 of the Appendix to our Case), by which it was agreed : That a coincident or joint survey (as may be found in practice most convenient) shall be made of the territory adjacent to that part of the boundary line of the Dominion of Canada and the United States of America dividing the Province of British Columbia and the North-West Territory of Canada from the territory of Alaska, from the latitude of 54 degrees 40 minutes north to the point where the said boundary line encounters the 141st degree of longitude westward from the meridian of Greenwich, by Commissions to be appointed severally by the High Contracting Parties, with a view to the ascertainment of the facts and data necessary to the permanent delimitation of said -boundary line, in accordance with the spirit and intent of the existing Treaties in regard to it between Great Britain and Russia and between the United States and Russia— The United States having then succeeded to the rights of Russia. Now, I venture to say if there ever was a time to speak, if the United States then thought and intended to say and urge that they had already settled the most important question here—that they had" settled that this boundary line was to run round the inlets by their conduct in the exhibition of these maps, and by what we ought to have ascertained from the maps, and that there was no necessity to ascertain anything more than that, but simply to run the line in accordance with that contention which had been established as our mutual understanding—if ever there was an occasion when they ought to have spoken, they should have spoken then. But the Convention itself, and the duty of the Convention, is utterly inconsistent, I venture to submit, with any such idea or thought; because what was required by that Convention was not to survey and lay out the line— but a preliminary survey to ascertain the facts. What was 497 the sense of a preliminary survey if, as our friends contend on the other side, the course of the line had been irrevocably 9 7 *7 established by the mutual understanding of the Parties, and must go, Wi ip £& HI 552 ALASKAN BOUNDARY TRIBUNAL. as they say, around these inlets. What did they want a preliminary survey for ? They merely had to send the surveyors into the country and ask them to run the line. But they said, and we said too, " No. We want to ascertain all the facts. Nobody knows anything about this country; we want to get the topographical data and information which is required, and then it will be for some Tribunal, or for us by agreement, to apply them to settle the meaning of the Treaty, and see if we can agree upon its construction." But if as a fact we were in such a position, by what had taken place by our assent and by our acquiescence, that a particular line had been agreed upon running round the inlets, what did the}^ want a preliminary survey for? What did they want a collection of data for? Why did they want any other further Tribunal to run the line? Their contention now is—not that they were to ascertain the meaning of the Treaty and how it applies to the line, but simply that they were to run the line on the ground in accordance with this construction, which they say has been established by our acquiescence. I submit, and I do not want to delay by emphasizing what has been said before, probably much better—but I submit that this is wholly untenable. I ask the Tribunal, in all fairness, if, after we had agreed to join them in a survey to ascertain a boundary in accordance with the spirit and the intent of the existing Treaties, it is possible to say that the intention of these Treaties had been settled between us by the facts they have appealed to. If we thought that they would say this there would have been no coincident or joint survey; we could not have agreed to it. We had announced our view in 1888, and they knew it. We had announced it as plainly as possible, and they must have understood that we were holding to that view, and that we would never acknowledge for a moment that we had been committed to a view different to that announced by Dr. Dawson; different from that communicated to the Secretary of State, different from that communicated to Congress and from what was understood by Congress as is shown by their debate. Therefore we say that the Convention of 1892 is absolutely conclusive—not in favour of our being right or wrong. I do not put it in that way the least in the world, but of our having a perfect right, here and now, to insist upon the construction of the Treaty which we had previously announced to them four years before. ms There is only one other matter which I desire to say a word about, and it is of comparatively little importance, for if we had announced our contention—as I submit we had announced it beyond question— in 1888, it is of no great consequence whether we announced it again or not in 1892. But we have a letter here from General Foster, of the 7th November, 1899—which is to be found in the Appendix to the American Counter-Case, p. 122—stating very distinctly that at the Conference of 1892 there was not a hint given by our Representatives of our claim to these inlets. General Foster, beyond all question, states his recollection just as it was—I am not questioning that for an instant—but we have to remember that this is General Foster's recollection of a conversation which took place seven years before The way in which that letter happened to be elicited is this: In Lord Salisbury's despatch he had stated that at the Conference of 1892—I have made a memorandum of the words, as it was a matter ARGUMENT OF CHRISTOPHER ROBINSON. 553 of which I wish to speak with entire accuracy—in Lord Salisbury's despatch to Mr. Tower, of the 14th August, 1899, which is printed in the Appendix to the United States' Counter-Case, on p. 135, it is stated—in answer to Mr. Choate's despatch, where he says that they never knew of our claim until 1898—that in the Conference of 1892 " the views of Her Majesty's Government as to the boundary were fully stated." Now, that is a statement made in the Minutes of the Conference which were kept by our Representatives, and are printed in our Dominion sessional proceedings referred to, and which are confirmed by Lord Pauncefote. Our system was to keep Minutes— apparently at the close of each day to make a Minute of what had taken place. Lord Pauncefote, *who was our Minister in Washington, and was present during the negotiations, confirmed, in writing, each Report, " I concur in the above Minute of Proceedings.—Julian Pauncefote." Now, Lord Pauncefote was not a man to con- 498 cur in anything as a statement of facts if he had not reason to know and believe that it was accurate. Then we have the same in substance in another Minute. I do not know how it is possible that the views of Her Majesty's Government could have been fully stated if they did not include a statement of the view which had been announced by Dr. Dawson, and had been communicated as I have mentioned. It is very unfortunate that ms none of the gentlemen who could have spoken to this as matter of mere recollection are yet with us. Neither Lord Pauncefote, Sir John Thompson, nor Dr. Dawson are now living. But we did what we could. We referred to Sir Mackenzie Bowell. Mr Dickinson. Mr. Robinson, permit me. We have never been furnished with a copy of that—it is not in your documents; it is referred to in the Argument. Mr. Robinson. You are quite right. I am told, however, that it has been served on you. Mr. Dickinson. If it concerns the statement of Mr. Foster I will make no objection to it. This, however, does not extend to any other new matter that may be introduced Mr. Robinson. I am not going to introduce anything. Is it not a fact that it was served upon you ? '10 Mr. Dickinson. I do not know; probably it was. Mr. Robinson. If it was served upon you Mr. Dickinson. I withdraw any objection, anyway. The President. You can read it, Mr. Robinson. General Foster. A copy was received after our arrival in London. Mr. Dickinson. Yes, that is what I thought—after our arrival in London. The President. Very well. Mr. Robinson. Well, all that is said in that, in substance, is this: General Foster says that there was no hint expressed at that itme of our claim to the inlets, and I gather from his statement—and he will know whether I am accurate in this—that his view was that there was no wide divergence of view on the subject at all. Now, what Sir Mackenzie Bowell says, in substance, is this—but really, if you have any objection I will not press it. Mr. Dickinson. No, I withdraw any objection. Mr. Robinson. Sir Mackenzie Bowell had nothing to do with this subject. Sir John Thompson was then Minister of Justice and 554 ALASKAN BOUNDARY TRIBUNAL. a lawyer of eminence; he had been a judge, and was charged with this particular subject, naturally enough, and, therefore, Sir Mackenzie Bowell did not pay any particular attention to it. He says that what he was astonished to hear was that there was no divergence of view upon this subject, because his opinion always was that there was a very wide divergence of view, and he gives in Sir John Thompson's Memorandum of the matter. He says:— I can have no hesitation in saying that I always understood that there was a clear divergence of view between the Governments of Great Britain and the United States on the subject of the Alaska boundary, and I confess to some surprise concerning that statement which is called in question. I think I have not explained to the Tribunal how it was that General Foster's letter was called for. When Lord Salisbury had 499 made this statement—this extract from the minutes—to show that Mr. Choate was not accurate in what he had said, Mr. Hay, then Secretary of State, called upon General Foster to state his recollection. That was in 1899, and General Foster wrote the letter then which is printed in their Case. The President. I really doubt, you know, whether that letter was evidence. It does not carry the matter much further one way or «/ *7 the other, Mr. Robinson. You have already referred to antecedent documents that are of far more importance than what happened in 1899. Mr. Robinson. Well, I am not anxious to press it. I thought it was right to refer to it because of what was stated in our despatches, and I thought we ought to justify those despatches. In the next place, we have this to look at—the presumption must be that Sir John Thompson, being specially charged with this matter, must have had a conference with Dr. Dawson (who was then alive) before he left Ottawa, but it is said that he went down there and said nothing about it. And it must be remembered that this is a statement not of what was said in a conversation seven years before, because I quite understand that a statement may fix itself upon the memory, but it is a negative statement that something which a person may not remember or may not have heard at the moment was never made. This, however, is a personal matter, and I desire only to state how that despatch came to be written, and what is the justification for it. If you refer to these Dominion records of ours, the Sessional papers, you will find the Minutes there, stating what Lord Salisbury said. Ajiother thing has been brought to my attention. I have been told by people conversant with such things in matters of government that where surveys are ordered, and there is any question about previous occupation or previous claims, it is always part of the directions to the surveyors to ascertain whether there is any occupation of the territory, or anything of that sort, or whether any previous claims have been made to it. Here it is plain that the surveyors were never intended to take cognizance of anything of the kind, and did not think of it. They were not expected to think of it or to pay any attention to it, and that is another circumstance confirming the idea that it was never intended to do more than to get the information which would enable the Tribunal, as we say, to define this boundary in accordance with the spirit and intent of the existing Treaties. And Mr. Mendenhall's instructions on p. 273 of the Appendix to our Case confirm that view of it. ARGUMENT OF HANNTS TAYLOR. 555 Now, I think I have touched upon everything that it seems to me I can touch upon with any sort of advantage. I have been pressed throughout with the considerations to which I alluded at my opening; it was impossible that they should not press upon me, and that I should not feel them in everything that I have said, because it has all been in its nature, in the form in which I have said it, if not in substance, a repetition of what the Attorney-General has said before; and I could not help feeling not only that, but that with a Tribunal such as I have now the honour of adressing, the form of an Argument is of very minor importance indeed if they are aware of the substance, and it is certainly not worth while spending any undue time in putting the same thing before members of a Tribunal such as the present simply in a different form. I have, therefore, only to conclude ; but I should like to add one word to what I have said, and perhaps said imperfectly, in my opening, because I wish it to be known in the part of the Empire from which I come that this Case has received not only the most ample and earnest attention, but the fullest justice at the hands of the Attorney-General and the Solicitor-General, and I wish to be sure that I have carried out the wish that was expressed to me by the Representative of Canada, that we fully appreciate and understand there the fact that this Case has received that attention and that justice it deserves at the hands of the head—or I might rather say the heads—of the English Bar, in what is our mother-country. I have to thank the Tribunal for the consideration which they have shown to me in the somewhat unfor- tunate circumstances which compelled me to lose a certain portion, of their time yesterday, which I very much regret. The President. Mr. Robinson, we are very much indebted to you for your Argument, and the very generous way in which you 500 have spoken of your colleagues makes it necessary for me to say that nobody knows better than I do the immense value of your advocacy and your judgment, of which Canada and Great Britain had the fullest benefit in the Behring Sea Arbitration. It is not given to many men to appear twice for their country in International Arbitration, and I am quite sure that both the learned Attorney-General and the learned Solicitor-General must have profited as much by your advice as the Tribunal will certainly profit by your Argument. Mr. Robinson. I am very much obliged to you, my Lord. Mr. Taylor. Mr. President,—Upon the face of the Treaty, under whose mandate this Tribunal has been constituted, the contracting Governments have declared their purpose to be the friendly and final adjustment of certain differences pending between them as to the true meaning and application of Articles III, IV, and V of a certain Convention executed between Great Britain and Russia in February, 1825. Then, in order to draw the mind of the Tribunal more explicitly still to the conflicting constructions to which these Articles have been subjected, this Tribunal has been called upon not simply to answer, but to answer and decide, seven clear and explicit questions which the Treaty propounds. There can be neither doubt nor cavil either as to the nature of the elements which compose this Tribunal or as to the manner in which its high functions must be exercised. There is no basis whatever for the idea that this is a Treaty of Arbitration, or that this is a Board of Arbitration, in the ordinary 556 ALASKAN BOUNDARY TRIBUNAL. acceptation of those terms. This Tribunal does not represent a group of diplomats convened to compromise a difference. It is a Judicial Tribunal, a Court, in the highest sense in which that term has so far been used in the law of nations. As impartial jurists of repute, you have been commissioned to pass judicially upon the questions submitted to your adjudication. That is, you must apply to the contested facts now pending before you, so far as they can be applied, the principles embodied in that code known as international law. I take it to be a fact full of hopeful significance that such is the constitution of the first International Tribunal in the history of tl\e English people, ever convened here in the old land to pass judicially upon a question of title to a part of the new. If, then, this be a •Judicial Tribunal, reference must be made at the outset to the nature of the rules regulating the admission of evidence upon which its judgment is to be based. No distinction is more elementary than that which divides the general principles of international law that apply at all times and among all peoples from those special and conventional rules agreed upon by two or more nations for the settlement of a particular controversy, or to dominate upon a particular occasion. If the makers of the Treaty of 1893 had seen fit to embody no conventional rules in this Treaty, you would have been governed, so far as evidence is concerned, by the general rules of international law, which regulate the construction of Treaties. And here I turn aside for a moment, to read to the Court a statement of the general rule, which would govern you as to antecedent facts, as propounded by Calvo:— 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 proces-verbaux, or to other writings addressed by the negotiators, -examining the motives and 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. If the criticism shall be made that that general rule applies only to facts preceding the Treaty the answer comes at once that the doctrine of acquiescence is a substantive element in international law, and under that doctrine of acquiescence you can inquire into every subsequent fact which is pertinent to the issue, showing the intent of the Parties by their subsequent acts. But in order to prevent any possible misapprehension, in order to widen the area and scope of the general rules of international law, the makers of this Treaty have seen fit to engraft upon its face three conventional rules— enlarging rules. And if your Honours will permit me— 501 although you have heard them—I would like to read those three conventional rules in their order. The first is:— Each Party may present to the Tribunal all pertinent evidence, documentary, historical, geographical, or topographical, including maps and charts, in its possession or control and 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 produced, the Tribunal may in its discretion order the production of the same by the Party having control thereof. The second is:— It is agreed by the High ContractingeParties that the Tribunal shall consider in the settlement of the questions submitted to its decision the Treaties respec- ARGUMENT OF HANNIS TAYLOR. 557 tively concluded between His Britannic Majesty and the Emperor of All the Russias, under date of 28th (16th) February, a. d. 1825, and between the United States of America and the Emperor of All the Russias, concluded under date of 30th (18th) March, a. d. 1867; and particularly the Articles III, IV, V, of the first-mentioned Treaty, which in the original text are word for word as follows. The third is:— l|| 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 the 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 the said Treaties. Therefore, when the question is asked, What are the rules that regulate the introduction of evidence before this Tribunal?—the answer must be made that they are the general rules of international law as widened and expanded and defined by the three conventional rules which the Treaty contains. And here let me, once for all, state a fact which every known book on international law contains, and that is, that the substructure of the whole international system is the Roman law as developed and embodied in the codes of the continental nations. We have absolutely nothing in the world to do with the common law rules of evidence in any shape or form. So we must recognize the fact that this being a Tribunal governed by the rules of procedure and the rules of evidence which prevail in Roman law tribunals, every fact is admissible which is pertinent to the issue, and its pertinence is a question to be determined by the judges themselves. In the light of that rule, which I hope I have correctly stated, let us test the two exceptions which the British Counter-Case contains to a great deal of the evidence offered on the part of the United States. The first exception is this:— This excludes all private action, and a fortiori, all private expressions of opinion, whether by map makers or others. The.answer is, that every map depends for its value upon the reputation of its maker and upon its intrinsic merits, and it is relevant •if it is pertinent to the issue. How far it is pertinent and valuable, this Tribunal must determine in each particular case in reference to each particular map. A more important exception is this:— It is not a question of showing what view was taken and contended for after the question was raised, still less who was in possession when the Treaty of Arbitration was entered into. In addition, the understanding which the action must tend to show is that of the | Parties," that is to say, of both Parties. Action by one Party not known to the other Party will not tend to show this. Permit me to test that exception by a practical illustration. Suppose that within two months after the Treaty in question was signed the British Admiralty had issued a secret order to the commander of every British ship, warning him not to enter into the interior 502 waters of the lisiere at the heads of the inlets, because under a Treaty which Great Britain had made with Russia, it is considered improper and inexpedient that a warship should so enter. And suppose that upon the same day the Russian Admiralty had issued an identical secret order to the commander of every Russian ship that might be stationed in that quarter to prevent the entry of any British ship there for the same reason. Now, suppose that after 558 ALASKAN BOUNDARY TRIBUNAL. the lapse of all this time these two identical secret orders construing this Treaty by the two Governments were exhibited here, could anybody be found who would argue that these contemporaneous official constructions by the two Governments would not be admissible ms because, perchance, at the moment when one secret order was issued by one Government it was not known to the other ? I take it that that exception bears upon its face its own refutation. In the light of the true rules regulating the admission of evidence before this Tribunal the practical difficulty is this. You are overwhelmed by the great sea of facts in which there are certain cardinal dominant facts which must be lifted up and disencumbered from the little facts by which they are pestered, so that a definite conclusion can be reached on the main issues. I deem it the duty of every advocate who appears before you to do what he can to simplify this controversy by attempting to eliminate from the mass the great facts upon which your judgment must be based. And in my feeble effort to aid the Tribunal in that respect, I cannot forget that wise admonition which was given long ago to every lawyer by one of the greatest of English novelists. WHioever has read Dickens's " Cricket on the Hearth '• will recollect at once the form of old Caleb Plummer, the toy-maker, whose business it was to manufacture Noah's arks. One day, as he was standing by his bench and filling the arks with ani- */ 7 O mJ _^ CD mals, he said to his blind daughter, " Bertha, the only thing that hurts my conscience in this business of making Noah's arks is that I am forced to make the flies and elephants all the same size." Fortunately for those of us who are engaged in the business of advocacy, we are not compelled to make the flies and the elephants of the same size. Now, my special duty in this case is to attempt to elaborate and to present to the Court—imperfectly as I must, but as clearly as I can—the questions of constitutional law which must be applied to the contested facts before you, and I shall not deal with the questions of fact in this record, save so far as they may be necessary to the application of the law propositions, which I shall attempt to illustrate to you. And we must bear in mind at the outset that when we speak of a Judicial Tribunal, we necessarily presuppose a system of law which that Tribunal must administer. There is but one system of law which you can possibly administer, and remember that international law is not a growth of yesterday. This is not the first © «.* jj Boundary Tribunal that has ever sat, and if we look far enough we will find that every question which has been raised here has been anticipated, and there is an international rule, if we will only avail ourselves of it, which will bring us to a clear, a logical, and a practical conclusion with reference to every question upon which you must pass. Primarily, this is an inquiry as to a question of title growing out of conflicts between European nations partitioning between them the soil of the New World. Therefore, is it not a logical necessity, as a preface to my argument, that I should refer very briefly to the source and nature of that law which regulated the partitioning of the New World? Long before this North-Western Coast was discovered, the heart of North America had been partitioned between England, France, and Spain on certain principles drawn from Roman sources of the vaguest and most unsatisfactory character. urn. - *www mm ARGUMENT OF HANNIS TAYLOR. 559 In Roman law the principle was known of appropriating res nul- lius through the principle called occupatio. Res nullius sometimes consisted of islands raised in the middle of a river, and, what is more to the point, of islands that had arisen off the coast of Italy, through volcanic action, to which that country was no stranger. It was to a limited subject-matter like that that the principles of discovery had been applied, and it was from these meagre and unsatisfactory sources that Grotius drew the principles which European nations attempted to apply to the partitioning of the New World. Out of that condition of things grew the law of discovery, the essence of which was that the discoverer indicated that he desired to occupy the res nullius, and that through occupatio he intended to retain. The practical difficulty in this doctrine of discovery was that there was nothing to indicate the extent to which the dominion of the 503 discoverer went and in the early stages of this doctrine there was a proposition that the discoverer should take possession, claim not only what he entered into, but everything necessary for the future development of the settlement which he made. Then the first modification that was made was that settlements upon the sea coast should extend only to the'watershed, and it was with that principle that the American Commissioners went to Madrid, in the great boundary controversy of Louisiana, in 1803-05, and it was that limitation of the «/ 7 7 watershed that passed into the international law of the world. But, as everybody knows, title by discovery was a complete and hopeless failure, and for that reason the publicists of the world soon understood that they had to drop the doctrine of title by discovery, and substitute in its place what was more practical and definite—the doctrine of occupation. And we have a document in this Case that has been more than once read to this Court, which is rich in historic interest, and that is the directions sent to the Duke of Wellington upon the eve of the conference at Verona, telling him that the best publicists of the world had come to the conclusion that this new doctrine of title by occupation was a better title than that by discovery. The irony of that instruction is that through it England, or Great Britain, was eliminating the one plausible basis of claim to the North- West Coast that she could hope to assert. But the doctrine of occupation also had the same inherent infirmity: it failed to define with any precision the point to which the occupier extended his possession. Therefore, the third and last expedient to which the publicists of the world addresed themselves to remove this great difficulty was the invention of Treaties of delimitation. I have indulged in this preface simply to show the process by which we come to the making of a Treaty regulating the extent of a piece of land upon the sea-coast so that the infirmities of title by discovery and the infirmities of title by occupation might be removed by a Treaty of delimitation, which did not indulge in a general expression about the watershed, but which defined once and for all the precise extent to which the occupier of the coast could go into the interior. Aoid when we go into this correspondence we see this described as a Treaty of delimitation, and when we look into the motive of Russia for making this Treaty as explained by Count Nesselrode, he said that the greatest anxiety and the greatest thing that Russia had to gain out of this transaction was the fixing by a Treaty of delimination just what her possession was to be. And in reply, as wa §m 560 ALASKAN BOUNDARY TRIBUNAL. my colleague Mr. Watson read to your Honours, Mr. Canning declared that there could be no subsequent doubt or question or difficulty as to what that title could be. So the motive which entered into the making of this Treaty was the desire to obtain such a positive and definite statement as to the area of occupation as should remove these Parties from all the difficulties which were inherent in the old titles by discovery and occupation. From this point of view this controversy is of immense importance to the peace of the world and to the future of international law, because to-day the partitioning of Africa is progressing with more rapidity than ever the partitioning of America went, and the European nations to-day in the light of American experience are attempting by Treaties of delimitation, called spheres of influence, to provide that the settlements which are now made upon the African coast shall never grow into future conflicts as to boundary by explicitly defining in advance what are the limits of those boundaries when the growing settlements shall come together.. And if time sufficed, I would be very happy to read from an English publicist a short exposition, but I will simply state it—that in the light of American experience, that in view of the fact that the titles of discovery and occupation in the new world had ended in boundary controversies which have become historical, and that in view of the imperfections of the old system, the European nations to-day are striving to keep the peace of the world by fixing in advance through Treaties of delimitation the partitioning of the great world that we call Africa. So I say that it is a matter of immense importance for us to know whether or not a Treaty of delimitation can be made—whether, when diplomats have laboured for years, when they have declared on all sides that all doubt is to be eliminated—whether a Treaty of Delimitation amounts to anything serious or not, or whether, in the; 504 language of the British Argument, it is a mere paper boundary which really signifies nothing serious whatsoever. Heretofore this particular clause in the British Argument (page 41) has been made the subject of discussion, and it was then treated as if it were a mere matter of words. I desire to read that clause: 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 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 full significance of that, what I think I may call, radical declaration, cannot be understood by reading the text alone. We must take in connection with it the scheme through which out of a sea of mountain peaks Great Britain proposes to construct what she is pleased to call a mountain boundary upon artificial and arbitrary principles. And here I desire to bring the mind of the Court to a thought or a question which I think is fundamental in this case. From the beginning of progressive history until to-day mountain boundaries—natural mountain boundaries—have been a feature in the history of mankind. They have divided people from people, nation from nation; they have affected the characters of people and of institutions; and if there is anything in the world stereotyped upon the mind of mankind it is that conception of a natural bound- ^M..lMMi in ARGUMENT OF HA.NNIS TAYLOR. 561 ary which comes when a real natural boundary is set up as a fence between two nations. Let us take the Pyrenees, dividing France from Spain. Here we have a boundary which changes the character of the French " Basque' from the Spanish " Basque "; here is a great natural line of demarcation, and all mankind comprehends what it means. Now, I say that the radical departure which Great Britain is attempting to make in this case is to take a purely artificial creation which has nothing in the world to do with a natural boundary of mountains, and to take arbitrarily a line of peaks out of which she can construct a purely artificial line, which, after she has constructed it, bears no more relation to a natural mountain boundary than a Hyperion to a Satyr. Aoid it is this circumstance which explains this passage, when a reference is made to facts and data. The proposition of Great Britain is out of certain facts and data to construct an artificial boundary Which, j so far as I have been able to ascertain, has no precedent in the history of mankind. I have tried to find out if in the history of the past any boundary has ever been made upon any such principle, if there is any boundary between any nations in the world constructed upon artificial and arbitrary principles of this kind which can be called a natural boundary, and so far as I can ascertain, this attempt has no prototype in the history of nations. Therefore, the proposition of Great Britain when correctly understood is that upon arbitrary principles she shall select certain mountain peaks and construct an artificial boundary and call it a natural boundary, and assume that the makers of the Treaty were contracting in reference to something which they could not possibly have comprehended. To give a practical illustration: suppose two men had made a contract two years before the invention of the telegraph, and two years after, when that contract came to be construed, there was an assumption that they contracted in reference to soihething of which neither of them had any possible knowledge. Now, I say that when these Treaty makers contracted in reference to a mountain range, they contracted in reference to that stereotyped idea which had been stamped for ages on the minds of mankind, and it is impossible to conceive that they could ever have contracted in reference to any such artificial creation which has no precedent in history. Therefore, I say that this proposition in the British Argument, if construed in connection with this assumption, is simply an effort to make a new Treaty, to go and get hew facts and new data, and to construct a line which is called a boundary line of mountains of which the makers of this Treaty could not by any possibility have conceived. Therefore, I say upon the threshold of this inquiry that this Court, considering the meaning of a Treaty of Delimitation in international law, and considering the efforts which the publicists of the world are now making to save the peace of the world 505 through Treaties of Delimitation, should set its face against any such construction as that embodied in the British Case, which, in plain English, is. that a Treaty of Delimitation when it comes to be enforced is simply a starting point of a new controversy, that it settles nothing, that it is a mere boundary on paper, and that when the time comes for its enforcement we can reach out and S. Doc. 162, 58-2, vol 7 6 562 ALASKAN BOUNDARY TRIBUNAL. take fresh facts and new data and construct a new boundary of which the Treaty makers never dreamt, and reduce the original Treaty to zero. I say that that is the heart of the British contention, and that is the proposition that lies at the root of that Case. Having now briefly reviewed the history of title bv discovery and by occupation, and the growth of Treaties of Delimitation as a remedy for their imperfections, let us inquire next as to the character of the two great governmental agencies known as the Hudson's Bay Company and the Russian-American Company, out of whose controversies this suit arose. You have all heard heretofore discussions as to the relation of the Hudson's Bay Company to the British Empire, and as to its power to take knowledge for that Empire and bind it by its acts. It is affirmatively stated in the British Argument that the Hudson's Bay Company has no power to do acts which will influence the Empire. I will read the precise language:— The President. What page? Mr. Taylor. Page 16. Great Britan asserts that the Hudson's Bay Company were not entitled to commit the British Government to any particular interpretation of the Treaty. That there should be no misconception I will read from the Argument of the United States two extracts which show the position which is taken up in antagonism to that position. 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 neutrality on the North-West 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. So the issue is clearly made that the Hudson's Bay Company bears such relations, political and legal, to the British Empire, that its acts, certainly in these two particular matters, the making of the lease, arid the making of this Treaty of Neutrality with Russia, were such as to bring home absolute knowledge to the Empire, and bind Great Britain by its subsequent acts as a means of interpretation. My purpose is to show that nothing can be further from the truth than the idea that these companies are private corporations in any sense of the term. By the international law of the world they are subjects of international law, and as political agents of the Empires which they represent they were the hands and arms through which these Empires acted in grave matters of State. As all the world knows, when the House of Tudor quit the throne of England, and the House of Stuart came on, the British Empire did not exist. The British Empire—I speak of the vast possessions outside of these islands—is a creation since that date—the work in the main of private companies. Let me read a short passage from a great English statesman and publicist, who is very near to us in the United States—I speak of Mr. James Bryce, the author of the "American Commonwealth," who says:— Within the period of the last ten years, under the last of the Tudors and the first of the Stuarts, two trading Charters were issued to two trading Companies ARGUMENT OF HANNIS TAYLOR. 563 of English adventurers. One of these Charters is the root of English title to the East, and the other to the West. One of these Companies has grown into the Empire of India, the other into the United States of America. 506 Therefore, let us inquire at the outset as to the legal and political relations of this Corporation, the Hudson's Bay Company, to the Empire which it helped to build up. Among the modern English publicists next to Hall, there is no English book so popular in the law schools of the United States as that of T. J. Lawrence— I The Principles of International Law "—and I know of no work which gives, in a narrow compass, such a clear comprehension of the international law of the world as it stands to-day. I read first from p. 55:— In a list of subjects of international law, No. 4, he names " Corporations," and then he defines first what he means by Corporations as being subjects of international law, and then he gives a perfect picture of the relations of such a Company as the Hudson's Bay Company to this Empire. On p. 79 he says:— Thus far the matter is simple; but we enter upon a sphere of great complexity when we endeavour to describe the international position of those great chartered companies which have been called into existence within the last few years by some of the colonizing Powers, especially Great Britain and Germany, to open up enormous territories recently brought within the sphere of their influence. We refer to such privileged corporations as the German East Africa Company, the British East Africa Company, the Royal Borneo Company, the Royal Niger Company, and the British South Africa Company. The last is probably the strongest of them all. Then, in describing their characteristics, he says:— It is easy to see how the natives must regard a body of men armed with such authority as that granted to the British South Africa Company, and possessed of skill, energy, scientific machinery, and weapons of precision. To them the Company must be all-powerful. They know little or nothing of the Imperial Government; and, indeed, the control exercised by the Colonial Secretary, though it looks imposing on paper, must from the nature of the case be merely nominal, except in very great emergencies. He is thousands of miles from the scene of action, his information is what the Company gives him, and he is busied with a multiplicity of other and more pressing matters. Practically the Company rules its territories in so far as they are ruled at all. It legislates, it administers, it punishes, it negotiates, it makes war, and it concludes peace. As regards the native tribes, it exercises all the powers of sovereignty. And what is true in fact is true in theory also. Powers of internal government are expressly given by the Charter, and some kind of authority to settle external affairs is implied in the provision that the Colonial Secretary may dissent from the dealings of the Company with foreign Powers. Yet all this vast fabric of supremacy rests upon the foundation of a Royal grant, which is subject to be revoked at any time if the advisers of the British Crown are dissatisfied with the conduct of the Company, and is exercised from day to day at the discretion of a Royal officer, who has power to disallow the Company's acts and insist upon obedience to his requirements. And then, in conclusion, he says:— We may extend the simile and make it apply to all the other chartered companies of which we spoke. They are sovereign in relation to the barbarous or semi-barbarous inhabitants of the districts in which they bear sway. They are subject as regards the governments of their own states. History comes on this point to the aid of abstract reasoning, and by showing how England's great East India Company ruled a mighty empire, and yet was subject from time to time to British legislation, and was at last swept away altogether by the action of Queen and Parliament, confirms in a striking manner the view we have ventured to take of the position in international law of its imitators and successors. 564 ALASKAN BOUNDARY TRIBUNAL. Finally, on p. 291, in summing up the power of companies like this to bind the parent state, he says:— Whatever may be thought of the policy of allowing private associations 507 to exercise many of the powers and prerogatives of .sovereignty in their dealings with barbarous races, it is clear that the international responsibility for their wars belongs to the State which has delegated to them so many of its functions. Their force is its force; their wars are its wars; and their political arrangements are its political arrangements. Now, when we look into the constitution of the Hudson's Bay Company, this creature of the Crown, we find that it has all the attributes which is there described—to adjudge, to administer, to legislate, to make war and peace. In other words, it took the British Empire upon its back into Canada, and became the State. And so, when we look at the Russian-American Company, we find that, in its Charter is embodied a territorial system, so that when we see these two great Companies, that are called Trading Companies, we find that, under their skins there are two great political organizations, which stood there as the representatives of their respective Empires. And what I want to show to this Court by the record is the remarkable fact that, whenever these Empires dealt with each other, they did not deal through their Foreign Offices, but they dealt with each other through the Presidents of these Companies as Plenipotentiaries. When we look at the lease, it is in form half diplomatic. When Wrangel met Simpson at Hamburg to make this lease, there is no question that Wrangel went there as the Plenipotentiary of Russia, armed with the full powers of the Russian State, and further, the Russian historian—his name is G. B. Tikh- menief; if I pronounce it correctly—in the citation that we have published in our Appendix, he makes the point-blank statement as part of the history of the transactions that Wrangel would not deal with Simpson until Simpson was first appointed as the Plenipotential|| of Great Britain. When we look into this lease we find that on its face, that after communicating to each other their respective full powers found in good and due form, just as Ajnbassadors exchange their full powers, those two representatives of these two Empires entered into a contract which, as I shall show, was purely and strictly a political act which never could have been consummated, never could have bound either Empire unless it had been done with the supreme Imperial authority. Now, what was the effect of this agreement? We have not to speculate on that subject. The British Argument has made an admission as to the effect of this lease which relieves us of all difficulty. They say in so many words that this lease was a temporary cession. "The lease was accepted as a way out of the difficulty created by the subject of the 'Dryad'; the fair view of it is that it was accepted as a temporary cession of the Russian territory, whatever it was," which lasted for 27 years.- So here is the political representative of one empire attempting to make a temporary cession of a large slice of the territory of that empire to the political representative of another empire. Have I to persuade any international lawyer that such an act was strictly and highly political, and that it could not have had the slightest validity unless it was executed by those two political agents as the representatives of their Sovereigns? The two,kinds of testimony which I can offer to the ARGUMENT OF HANNIS TAYLOR. 565 Tribunal as to the correctness of that statement is Sir George Simpson's letter, which I can give the reference to; on the face of it he expressly describes this act as a political transaction. He speaks of it is political, but what is far more to the point is that in Article VII of the Treaty there is an express recognition upon the face of the document that it was a political transaction. Why do I say so? Article VII says:— It is further agreed that should a declaration of war or hostilities unfortunately break out between Great Britain and Russia hereafter during the existence of this Agreement, then and in that case such national hostilities shall not become a pretext for the non-payment on the part of the Russian- American Company of the drafts of their Agent on the North-West Coast of America in favour of the Hudson's Bay Company, but that all pecuniary matters of account between the Contracting Parties shall be liquidated and discharged honourably and in good faith as if their respective nations were in the most perfect amity. How could two private companies contract in reference to a condition of a state of war, or as to the relations of their empires in a state of war? 508 The President. I quite understand your argument about the position of the Hudson's Bay Company, but I should have thought that that clause showed that they were contracting as two private individuals, because they say they will make their payments whether there is war or not, which certainly would not have been the position if they had been Contracting States. Mr. Taylor. When the enforcement of this agreement became necessary, instead of the British Empire going through the Foreign Office through the Permanent Secretary, it delegated to the President of the Hudson's Bay Company the power to make a Treaty of neutrality in the midst of war with the President of the Russian-American Company. I want to say that when the war actually came, extraordinary and astounding as it may seem to be, instead of the Russian Government dealing with the British Government through their Foreign Offices, Count Nesselrode obtained from the Czar permission for the President of the North-Western Company to act, and I will read from the Appendix the documents from the Counter-Case, because they are very interesting and very unique in the history of international law. Mr. Aylesworth. You will find it at p. 14. Mr. Taylor. 14. . Mr. Aylesworth. But, Mr. Taylor, surely I have seen just a similar provision to this Article VII in an ordinary policy of life insurance issued by a Company in New York City to a foreigner, to a man in Canada; it is not an uncommon provision. Mr. Taylor. Well, let us assume that that is so, but your Honour has never seen a case where two private parties, after a war broke out, were armed with the power to make a Treaty of neutrality. The President. That is another point. Mr. Taylor. Were delegated as Plenipotentiaries by their respective Governments to make a Treaty of neutrality in the midst of war. Mr. Aylesworth. Happily there was no war. Mr. Taylor. I beg your pardon? Mr. Aylesworth. There was no war. Mr. Taylor. That may be. But we have got to deal with the case before us, and I want to show that when the war came these two 566 ALASKAN BOUNDARY TRIBUNAL. Empires intrusted in the midst of yvar the extraordinary Treaty- making power to the Presidents of these two Companies, and it was done in a very peculiar form. Let us look first on p. 14 as to the statement of Count Nesselrode:— On the North-Western Coast of America on the islands and Sitka, where a great part of the Company's property is concentrated, the Company has not at its disposal means of defence sufficient to sustain the attack of a British squadron. The Board of Directors therefore thought it advisable to enter into direct communication with the Hudson's Bay Company, whose settlement is close to our own, and invite that Company to obtain from the British Government a grant of neutrality for the ships of both Companies and their possessions on the North-West Coast of America. Judging from the statements of the agents of the Hudson's Bay Company, made when the lease to that Company of a strip of land, a part of our possessions, was negotiated, there is reason to believe that they will use their utmost endeavours to obtain the proposed grant of neutrality, especially since the condition of that Company is inferior to ours. "Note, His Majesty ordered this to be done. Then let us see what was done by the Crown of England. This is from the Foreign 509 Office, p. 18 of the Counter-Case, from Mr. H. U. Addington, Permanent Under-Secretary of State, the 22nd March, 1854:— «/ 7 Sib,—L am directed by the Earl of Clarendon to acknowledge the receipt of your letter of the 28th February, inclosing a copy of a letter from the Russian- American Gompany, suggesting that an arrangement should be entered into for a state of neutrality being observed as regards the possessions and ships of the Hudson's Bay Company, and the Russian-American Company on the North- West Coast of America. You state that it would be satisfactory to the Governor and Committee of the Hudson's Bay Company, if some such arrangements as that suggested could be made, as it would relieve them from anxiety and risk. I am to state to you in reply that, under the peculiar circumstances of the case, Her Majesty's Government will consent to the proposed arrangement being entered into between the two Companies, and instructions will accordingly be given to Her Majesty's naval officers and others not to commit hostilities on land within the Russian dominions on the coast of America. I am to add, however, that the proposed neutrality will, as far as Her Majesty's Government is concerned, be territorial only, and confined to the land, and that its operation will not extend to the high seas, but that all the Russian vessels and goods thereon, whether the property of the Company, of the Government, or of individuals, and whether going to and from the possessions of the Russian-American Company will be liable to capture by Her Majesty's ships, and that the coast and ports of those possessions will be liable to naval blockade. I am, Sir, your most obedient humble servant, H. U. Addington. (Not addressed.) A true copy with the Governor of the Hudson's Bay Company. Here was the British Empire in a time of war delegating to the President of the Hudson's Bay Company the power to make a Treaty of neutrality of what kind ? Limited to the land. Have I to say to international lawyers that the war made every citizen of Great Britain, every corporation of Great Britain, the enemy of every citizen and corporation of Russia, and that by a state of war the lease of the lisiere would have been instantly dissolved ? In the light of that statement, is there any mystery, is there any difficulty in understanding why Great Britain authorized the making of that Treaty of neutrality? It was to save from annihilation the lease of the Hudson's Bay Company; it was to save it from perishing in the state of war. So I say that this great political corporation which stood as the representative of Great Britain, holding a part of the sover- ARGUMENT OF HANNIS TAYLOR. 567 eignty of Russia in its hand, was delegated during a state of war to make a Treaty of neutrality, territorial and circumscribed, so as to preserve this lease from annihilation from the status of war. Is it possible that the description given by an English publicist, as to the relation of the Hudson's Bay Company and the East India Company to this Empire, is a false statement of law ? So far as these transactions are concerned, this lease is brought home so closely to Great Britain, that in my humble judgment when we consider the structure of the English Constitution working the diplomatic machinery and its Treaty of neutrality, Great Britain is as formally bound through knowledge and acquiescence as if she had ratified that lease through her Secretary of State. Having now attempted to outline the relations of the Hudson's Bay Company to the British Empire, I shall glance for a moment at the cause which first brought these trading Companies into collision with each other. That is the Ukase of 1821, and the doctrine of mare clausum. It is very easy when principles have pased away from the world, and from the minds of men, to assume that they never existed; to assume that their assertion was a monstrosity, but when we look back we find that the doctrine of mare clausum was the law of mediaeval days, and almost of the modern world down to very recent times. It was under that principle that Venice claimed the Adriatic; Genoa, the Ligurian Sea; France, a great extent of sea 510 coast westward from her frontier; Great Britain, from Stad- land in Norway, to Cape Finisterre, in Spain; Denmark, the sea between Iceland and Norway, on the one hand, and on the other, the Baltic, in joint ownership with Sweden. When the European nations passed over to the New World Spain at once claimed the Pacific and the Gulf of Mexico, and Portugal, the Indian Ocean and the route around the Cape of Good Hope. It was as much a part of the law of the world down to a very recent time as the law of the 3-mile limit, which is the residuum upon the shores of nations of the doctrine of mare clausum. When, in 1609, Grotius first stated the doctrine of mare clausum, a great cry came from this kingdom, and in 1635 the English put out, through Selden, as mare clausum the claim that the Dutch had no right even to fish on these coasts for a long expanse of sea, and even down so late as the making of the Treaty of Utrecht, as late as 1713, Great Britain and France contracted for a great strip of coast 100 miles wide. It was a prototype of this Ukase off the coast of Newfoundland. So as we approach the Ukase we must not imagine for a moment that Russia was setting up a claim to something that Was unknown in the international law of the world. There was nothing that could be said against that claim except that something which may be said with so much justice against each one of us—it was growing a little old; it was becoming what Bishop Stubbs, the great constitutional historian of this Kingdom, would call an archaism, but it had not passed from international law. There had been no repudiation of the doctrine of mare clausum, and the best evidence of that is the fact that Russia, to protect her dominions, to protect the trade of her North-West Company, deemed that she had the right to resort to the doctrine of mare clausum against the American traders. Bear in mind we were the people who were invading Russian preserves. It was really against the illicit traffic which our Government said they would not countenance; it was 568 ALASKAN BOUNDARY TRIBUNAL. really a fiscal measure to protect the coasts of Russia that this doctrine of mare clausum was set up, and if it had been set up in its full force Russia would have claimed from 45 degrees on the Asiatic coast down to 51 degrees—would have claimed the whole sea across, 4,000 miles. But as the doctrine was a waning doctrine she limited it to this claim of 100 Italian miles, and one of the best evidences that it was a subsisting principle of international law is that when our Secretary of State, Mr. Adams, was confronted with this doctrine of mare clausum, he did not pretend to say that Russia had no right at all to assert it. He took up no such position. He said he thought that she had asserted it in rather an extreme form; that she had made her band of coast too wide; that was the only issue Mr. Adams raised, and he had more interest in challenging the doctrine than anybody else. It was against us that Russia issued the Ukase, and the American Secretary of State, as reported, I think, in the correspondence of the day, never attempted to go any further than to say that he thought Russia had pressed the limit too far. Mind you, she was using it to protect her coast against fiscal invasion, and nothing is better settled or has a more respectable position in the law of nations than the idea that any State may extend its jurisdiction beyond the 3-mile limit for fiscal purposes. My purpose in making this statement of the doctrine of mare clausum as it existed in the international* law of the world at that time was to show that when this transaction began Russia had something material and substantial to give up. England and the United States were struggling in the interest of their advancing commerce to break it down, but no international authority had ever said that the doctrine of mare clausum, was dead, so that when Mr. Adams began to challenge the doctrine, he simply said that Russia had stated it a little too strong. Therefore, I think the great fact that we must lay hold of in the beginning, is that Russia had a substantial right which rested upon immemorial international law, and while it was growing old, while it was subsiding, while it was shrinking, it was something so substantial that the American Secretary of State never saw fit to challenge its existence. He simply said it was overstated. What did the doctrine of mare clausum rest upon ? It rested upon the theory that the party who asserted it owned the title to the shore, because it grew out of the fact that when the northern pirates came down upon the European sea-coasts each nation had to patrol and protect its coasts each one of them marked off a great 511 distinct stretch of territorial waters, which it called its own. Therefore, the water to which the mare clausum extended had to be claimed to be appendant to the land. Hence, any nation that saw fit to challenge the doctrine of mare clausum had primarily to contest the title to the shore to which the right was annexed. And in that we have the beginning of the controversy to title as to the North-West Coast, and as we approach that subject, I desire to call the Court's special attention to an authority to which my learned friend, Mr. Christopher Robinson, has alluded, and one to which I shall more than once allude with unusual satisfaction. All publicists know that in the last seventy-five years England has had three great publicists who have overshadowed all the rest.: Sir Robert Phillimore, Sir Travers Twiss, and William Edward Hall. Sir Travers Twiss was the successor of Sir Robert Phillimore, and ARGUMENT OF HANNIS TAYLOR. 569 his book on the Oregon question received the approval of Sir Robert Phillimore, for he often quotes it in his work. Sir Travers Twiss was the Professor of International Law at Oxford, and a Queen's Counsel, and through long professional relations with this Foreign Office as the expounder of England's claim to the North-West Coast, in that book on the Oregon question he has made the most authentic, the most judicial, and the most powerful statement in favour of Great Britain to that North-West Coast that has been made by any man, living or dead. Sir Travers Twiss was the advocate of the British Empire in vindicating her claim of title to this North-West Coast. Therefore I say that in citing this book, when we can show an admission against Great Britain made by Sir Travers Twiss, when he tells that the international law was so and so, or a Treaty was so and so, and an admission against the interest of Great Britain, I say that it should fall upon the ears of this Court like a solid shot. I have found nowhere so good a history of the discovery and occupation of the North-West Coast as is contained in this book on the Oregon question. When we look at that history its two dominant features are these: Russia came down from the north, and Spain came up from the south, The primary.discoverers and possessors of the North-West Coast were Russia and Spain. According to Sir Travers Twiss, so far down had Russia extended her dominions that in 1779 or 1780, just before the making of the Convention of Escurial, generally known as the Naval Convention, she had got down to the inlet of Nootka, and the reason that the Spanish ships happened to be at Nootka in time to get involved in the controversy which brought about the Convention of the Escurial of 1780, was because the Spanish Crown had sent its ships to Nootka to arrest the advance of Russia. Up to that time Great Britain had made no advance towards the sea-coast closer than such as had been made by Mr. Pelly, whose uttermost settlement was 100 miles from the coast. Great Britain's next experiment in acquiring a right on that coast was by an expedition which, under the auspices of the East India Company, sailed from Calcutta, and it was the arrival of these British vessels at Nootka, when the Spanish ships had gone there to arrest the advance of the Russians, that caused the incident which brought about the release of those vessels and the making of the Convention of the Escurial. I think it is significant to show how far south Russia had gone in her attempt to occupy the country, and how that incident was the cause of the presence of the Spanish ships that took the British vessels that led to the making of the Treaty of the EscuriaL Nothing that I can conceive of is more impossible than the idea that Great Britain acquired any real title to that coast through the Nootka Convention. Sir Travers Twis», with his judicial candour, tells us in this book why it was that Spain made the Nootka Convention. He says that the ally of Spain—France— had stood away from her for the moment, and he puts it in nice language, but the English Parliament had threatened war, and Sir Travers Twiss admits here very clearly that the concession made by Spain was at the cannon's mouth—such concession as was made—but it simply amounted to a release of the ships, without any admission of title in Great Britain to the country which she claimed, and, as Hall sets it out very clearly in one of his notes, that the United States Government, in the subsequent controversy always held that Great Britain 570 ALASKAN BOUNDARY TRIBUNAL. w I* had no title or claim through the Nootka Convention, it was a mere construction that she derived some right through that kind of 512 cannon's-mouth Treaty, so that I say that the primary owners of that coast were Spain and Russia, and that at the moment of the Nootka Sound Convention, Russia had advanced down to Nootka, and that was the reason of the incident which led to the making of the Treaty. The United States had made a claim of discovery and settlement upon the "Columbia River, and upon that rested such title as she had at that time. Great Britain had nothing by discovery or settlement by the advance of the posts of the Hudson's Bay or North-West Company, because they had not come to within a hundred miles of the coast." She really had acquired no right under the Nootka Convention, so it seems when her claim is viewed in the light of this great English authority, that if anything is plain it is that Great Britain, of all claimants, had the least and most shadowy title to that coast. And I do not think that the title of the United States was any better than hers up as far as 54 degrees 40 minutes until that important event the Treaty of Washington of 1819, by which we acquired Florida, and by which we became the assignee of the title of Spain, who had the best title to that country, who had gone up and put the name of Revillagigedo, Cape Chacon, and Cape Muzon, and endless other Spanish names upon this very land. She, by discovery and settlement, had won the best title to that coast, and when the United States, in 1819, became the assignee of Spain, then we became the holders of the best title to that coast except the title of Russia. I desire specially to call the attention of the Court to one thing, and one thing which is illustrated with great force by Sir Travers Twiss, which I think is of critical importance in this case, and it is of importance with reference to the construction of Article VII in reference to reciprocal trading rights. I am very grateful to my distinguished friend, Mr. Christopher Robinson, for the very great frankness and emphasis with which he put the fact that there was no kind of difficulty about these reciprocal privileges, so far as Russia and the United States were concerned. When we look at the record of yesterday, I would like to read just what he says on that subject. He says:— Mr. Robinson. What page? Mr. Taylor. Page 449. He says:— Then allow me to put it in another way. In the application of this Article- that is to say, in the United States' Treaty of 1824—by which the United States is given the reciprocal privilege, there is no difficulty. Of course, we all know there is no use adverting to it constantly, but one reason of the difficulty that we find in these Treaties is that the two Treaties were copied from one another, when they related to wholly different subjects. There is no possible difficulty in construing Article "VII and its application in the United States' Treaty, because the United States' Treaty applied to the North-West Coast, and it had simply a line for a division, and there is no difficulty in applying it there. But it is almost impossible to apply it here, except upon our construction. For this reason. The United States' Treaty expired in 1834. It was from April if I recollect rightly, 1824. Here we have the clear and positive admission that the United States was in a status to give the reciprocal privilege to Russia to hunt and fish below 54 degrees 40 minutes. We have that clean cut, with the denial that Great Britain was in any such position to do the ARGUMENT OF HANNIS TAYLOR. 571 same thing. W'hat was the status of Great Britain and the United States from 1818 in reference to the title below 54 degrees 40 minutes ? In the language of the street, they had pooled their issues. They had made the Treaty of 1818, in which they had admitted certain rights in themselves as to that coast, and as to other nations, and Sir Travers Twiss is specially helpful in giving us the interpretation of the Treaty of 1818 upon that very point which we have now to discuss. And I will refer to p. 203, where he discusses the Convention of 1818:— These negotiations were brought to a close by the Convention of October 20th, 1818, in which, however, nothing definite was concluded in regard to the settlement on the Columbia River. By the third Article it is agreed that any 513 such country as may be claimed by either Party on the North-West Coast of America, on the continent of America westward of the Stony Mountains, shall, together with its harbours, bays and creeks, and the navigation of all the rivers within the same, be free and open, for the term of ten years from the date of signature of this Treaty to the vessels, citizens, and subjects of the two Powers: it being well understood that this Agreement is not to be construed to the prejudice of any claim which either of the two High Contracting Parties may have to any part of the last-mentioned country, nor shall it be taken to affect the claims of any other Power or State, to any part of the said country—the only object of the two High Contracting Parties in that respect being to prevent disputes and differences amongst themselves. It thus appears that by the Treaty of 1818 Great Britain and the United States had put themselves in such a status that they had coequal rights to that coast, and they were not exclusive of the rights of the other Powers. Therefore, the precise measure of right which the United States had to give Russia, reciprocally under Article VII, is jnst the precise right vested in Great Britain. We have the exposition here of the meaning of that very clause by one of the most authoritative of recent English publicists. So it is impossible, I think, to find, any difficulty in the world in that matter, as Counsel j—« _ _ ms ms 7 for Great Britain admitted that there was no question of the power of the United States to make reciprocal concessions. Sir Travers Twiss kindly steps in and settles the question, that whatever right the United States had to do it on that coast was vested in the British Empire by that Treaty. Then let us glance for a moment at the making of the Treaty of 1824 between Great Britain and Russia. When we look into the record we find that Russia considered, according to the declaration of Count Nesselrode, that she had been in litigation with two Powers; she was in litigation with the British Empire, and she was in litigation with the United States, and both of them wanted a Treaty out of her. And what was the essence now and substance of that Treaty of 1824 ? The United States wanted a waiver on the part of Russia of the claim of mare clausum, which Mr. Adams had admitted was simply an exaggerated statement of the right of Russia and not a repudiation and in return for that the United States wanted to get certain trading and fishing privileges in reference to that part of the country above 54 degrees 40 minutes, in reference to which she had had contestation with Russia. That term is used, Count Nesselrode shows, when he says he is in litigation with these two countries and making a statement through which he was to buy his peace, he must make to each certain concessions in reference to the subject matter which had been in litigation, and that was that strip of territory from 54 degrees 40 minutes up to about 59 degrees or 60 In 572 ALASKAN BOUNDARY TRIBUNAL. degrees. So the United States upon her part wanted Russia to give up the claim to mare clausum, and then the United States wanted to gain from Russia this concession of mutual trade privileges. Well, do not you see in a moment, under the Treaty of 1818, the United States was bound and hampered and limited as to the grant of reciprocal privileges, just to the same extent precisely that the British Empire was, because, as I say, they had pooled their issues, they had put their claim into a common pot, and yvhatever one had the right to enjoy the other had the right to enjoy. Whatever one had the right to give the other had the right to give. So the United States entered into this contract and made that stipulation, and gave to Russia this reciprocal trade privilege, in reference to which there seems to be no contest here. Such was the condition of things when the negotiations were going on between Great Britain and Russia which culminated in the making of the Treaty of 1825. I propose to deal with these negotiation for a single purpose. It will become my duty, a little later on, to discuss the rules of construction, the rules which international law prescribes to you for the construction of that Treaty. I cannot possibly make a practical application of these rules unless I extract from the preceding negotiation what I consider the essence of the subject matter to which the leading rules of constructon must be applied. And here I must make a comment upon one line of argument pursued by the very distinguished advocate who has just preceded me. He has given us a good admonition upon the subject of using epithets and I think it is wholesome, and I accept it from a Nestor of the Bar— such as he is—in the spirit in which it is given; but while we 514 cannot use any epithets, I hope he will concede to us occasionally the privilege of expressing immense and uncontrollable surprise. And I must say that one part of his argument yesterday filled me with such immense surprise that I hardly know how to express it here. And that was when he claimed in substance that the Treaty of 1825 was made by Mr. Stratford Canning, who was sent to St. Petersburgh with the express direction in his letters of authority to wind up a transaction and conclude it—which somebody else had made—a gentleman who wrote his first letter to his principal here on the 1st February, in which he says: " Last night I had my first interview with Count Nesselrode," and in sixteen days afterwards he sent the Treaty, signed and completed, and in that time there was no negotiations properly so called. He had simply closed up one little point of difference about the limitation of the mountain line, which he carried cut-and-dried from London. He did not go there to negotiate; he went there to close and have the papers signed of a negotiation that somebody else had been carrying on for three }^ears, and still the line—the tenor—of that argument was that we can look only at the face of the Treaty; we cannot look to the negotiations for its interpretation, because with the coming of Mr. Stratford Canning all prior negotiations ended. He is said to be the man who made the Treaty, and he has left no mJ 7 tracks behind him; there is no negotiation, and consequently there is nothing to look to. That is all the dead matter of the three years past; we have got nothing concerning that, and the whole effort was to sever and eliminate and cut off, as I may say, the head from the body, and to treat this closing up of a transaction which other people ARGUMENT OF HANNIS TAYLOR. 573 had made as a cutting off of the head from the body of the transaction iself. I admit there is an intense motive for that line of argument, because the very essence of this controversy is a definition of the character of the lisiere, and the character of the lisiere does not appear upon the face of the Treaty. Its character and attributes must be plucked out and gathered up from the preceding negotiation, and it would be very hard if we could not refer to that preceding negotiation. But I will not extend my argument upon that point, because the most eloquent reply and convincing that could be made to my distinguished friend is contained in the printed Argument of Great Britain, to which he is a party. There is a declaration in that Argument that so far as the character of the lisiere is concerned we can go to the negotiations for its proper description and definition. So if there is to be any contest of that proposition, my distinguished friend must make it with this prined Argument, which the Counsel for Great Britain has prepared for the guidance of this Court. So I take it that there can be no doubt or question that the meaning of one part of this Treaty, which it is my province to discuss, more particu-. larly as to the character of the lisiere, must be drawn and gathered out of the three years' negotiations which culminated in the making of the treaty of 1825. I do not intend to weary the Court in this case by reading papers or by reading extracts from the record. I am only going to read one paper, if I am permitted, and that will be a short one, but it will be so helpful to me in the subsequent course of my Argument, in applying the rules of interpretation, that I have tried to make the best digest I could out of these negotiations of the reciprocal statements of the negotiators, showing first that the intention in making the lisiere was to make it a barrier, a buffer State between these two, and the second that it was the intention to grant identical privileges to Great Britain and the United States And if the Tribunal will bear with me I will read that one single paper— it is not many pages—and may prove of convenience hereafter. Essence of negotiations between Great Britain and Russia, preliminary to the Treaty of 1825. The general statement will scarcely be denied that the primary purpose of Great Britain in the making of the Treaty of 1825 was to obtain from Russia a Concession of her maritime claims, as ascertained under the Ukase of 1821; and that the primary purpose of Russia was to obtain from Great 515 Britain a reciprocal Concession as to certain territorial rights on the mainland of the Continent. Mr. G. Canning in his note of the Sth December, 1824, to Mr. S. Canning said:— I The whole negotiation grows out of the Ukase of 1821. So entirely and absolutely true is this proposition that the settlement of the limits of the respective possessions of Great Britain and Russia on the North-West Coast of America was proposed by us only as a mode of facilitating the adjustment of the differences arising from the Ukase, by enabling the Court of Russia, under cover of the more comprehensive arrangement, to withdraw, with less appearance of concession, the offensive pretensions of that Edict. It is comparativey indifferent to us whether we hasten or postpone all questions respecting the limits of territorial possessions on the Continent of America. I It is not on our part essentially a negotiation about limits. It is a demand of a repeal of an offensive and unjustifiable arrogation of exclusive jurisdiction over an ocean of unmeasured extent; but a demand qualified and 574 ALASKAN BOUNDARY TRIBUNAL. mitigated in its manner, in order that its justice may be acknowledged and satisfied without soreness or humiliation on the part of Russia. We negotiate about territory to cover the remonstrance upon principle." (App. Am. Case, 208-212.) As to the motives of Russia we have the words of Sir 0. Bagot who, in his letter of the 17th March, 1824, said to Mr. G. Canning:— "This basis of negotiation being willingly accepted by all parties, I stated that, so far as I understand the wishes and interests of Russia, her principal object must be to secure to herself her fisheries upon the islands and shores of the North-West Coasts of North America, and the posts which she might have already established upon them." (App. Am. Case, p. 154.) In order to secure those interests from British aggression Russia desired to establish a barrier between the territorial possessions of the two Empires. M. Poletica—who had conferred with Count de Lambert, the representative of the interests of the Russian-American Company—said in a letter of the 23rd November, 1823, to Count Nesselrode, that:— ^J " 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's Bay and North-West English Company, whom a more intimate acquaintance with the country traversed by the Mackenzie River might easily bring in the course of time into the neighbourhood of our establishments." (App. Am. Case, pp. 137-138.) " That Great Britain clearly understood that such was the dominant motive of Russia is fixed by the declaration of Sir C. Bagot, who in his ' Reply to observations of Russian Plenipotentiaries' [sent 24th February (7th March), 1824] said that the British Plenipotentiaries did not hesitate to offer another (line) which would secure to Russia not only a strip on the continent^, opposite the southernmost establishment which she possesses on 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." In explaining his amended proposal to Mr. March, 1824, Sir C. Bagot further 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." (App. Am. Case, p. 155.) In a letter of the 11th April, 1824, written to Mordvinof, after the second ■period of the negotiations had come to an end, Count Nesselrode, in explaining the Russian attitude, said:— (App. Am.13ase, p. 163.) Canning, in his letter of 17th 516 By the right of first discovery, and by that which is still more real, the first establishment of habitations and human activity, our Cabinet demands possession of both the islands and the Western Coast of America from the farthest north to the 55th degree of latitude." And, referring to 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." (App. Am. Case, p. 167.) In summing up the situation in a letter to Count Lieven of 17th April, 1824, Count Nesselrode further said: | This proposal will assure us merely a narrow lisiere (strip) upon the coast itself, and will leave to English establishments all the needed space for increase and extension." (App. Am. Case, pp. 172-175.) In the draft Convention submitted by Mr. Canning, he says the desire is to proceed " upon the basis of mutual convenience," and Russia has already explained that that meant to her an absolute barrier. In accepting that explanation, Mr. Canning, in his letter submitting the draft, 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." The chief of such motives, as specially stated in the counter draft by the Russian Plenipotentiaries, was this:— 1 The principal motive which constrains Russia to insist upon sovereignty over the above indicated lisiere (strip of territory) upon the mainland (terre m^ ARGUMENT OF HANNIS TAYLOR. 575 ferme) 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 support ('point d'appui') and could have no solidity." (App. Am. Case, p. 158.) Sir C. Bagot, in the amended proposal which he submitted after rejecting the counter-draft of the Russian negotiators, stated of the proposed boundary % 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 139 degrees longitude, would deprive His Britannic Majesty of sovereignty over all the inlets and small bays lying between latitude 56 degrees and 54 degrees 45 minutes, where several (as there is every reason to believe) communicate directly with the establishments of the Hudson's Bay Company, and are, consequently, of essential importance to its commerce; while, on the other hand, the Russian-American Company possesses no establishments on the mainland ('terre ferme') between the two above-mentioned parallels, or even on Prince of Wales Island, or on the islands located between the latter and the mainland." (Ibid., p. 159.) In their observations on that amended proposal the Russian Plenipotentiaries said:— I On the other hand, the Russian Plenipotentiaries have the honour to remind him, once more, that without a strip of land on the coast of the continent from Portland Channel, the Russian establishments on the adjoining islands would be left unsupported, that they would be left to 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." (Ibid., p. 161.) In their final decision the Russian Plenipotentiaries said:— "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 the latter." (Ibid., p. 164.) 517 IL As the price of her concessions as to the boundaries of the lisiere Great Britain demanded of Russia—according to the letter of Count Nesselrode to Count Lieven, of 31st August, 1824, refusing the demand as one " utterly impossible for us to accept"—" 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 degrees of north latitude to 54 degrees 40 minutes." In giving his reasons for his refusal Nesselrode said:— "Now, the United States is the only Power to which we have ever granted any, and those which we have guaranteed to her by the Convention of the 5th (17th) April of the present year are to last only ten years. We would, therefore, satisfy the demands which England herself has presented to us by guaranteeing the same privileges to her for the same space of time. Besides, how could we consent to grant to British subjects privileges of this kind which we have just refused to American subjects. The British subjects, and we cannot repeat this too often, have never pushed either establishments or their commercial operations as far as the North-West Coast. The evidence of the latest maps published in England reveals and proves this fact. If the Hudson's Bay and the North-West Companies have approached the coast it is only within the last three years, whereas the American subjects have constantly frequented these waters, and it is their enterprises that have given rise to the discussions which we are labouring to terminate. Would it be possible for us, after this, even if our interests permitted it, to give them for ten years [only] what we would give for ever to the British subjects? ******* 1 We have, consequently, confined them to the 54 degrees 40 minutes, and to prevent any new dispute from arising on this point we have permitted one of 576 ALASKAN BOUNDARY TRIBUNAL. I 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 for ever 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. * * * * * * * " Russia's right of sovereignty over the North-West Coast, beginning at 59 degrees of north latitude, have been disputed. Hence, between that degree and the parallel which would form our southern boundary, we hasten 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, hunt, and trade with the natives of the country, and we will make the same concession in favour of His Britannic Majesty; but it must be well understood that this concession will only comprise the space inclosed between latitude 59 degrees and the southern boundary of our territory, to wit, latitude 54 degrees 40 minutes, for to the north of the 59th 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. ■ " Our counter-draft carries our boundary from the 51st degree of north latitude to 54 degrees 40 minutes. It leads to the establishments which the English Companies may form thereafter on the North-West Coast all the territory situated to the south of Portland Channel." (App. Am. Case, pp. 202-204.) Mr. G. Canning in his letter of the 8th December, 1824, to Mr. S. Canning expressly states, as a part of the final negotiations:— I Russia cannot 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 518 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." "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." (App. Am. Case, pp. 210-211.) The result was that Article IV of the American Treaty of 1824 reappeared as Article VII of the Treaty of 1825. Referring to the Treaties of 1824 and 1825, Sir Richard Webster said (Fur Seal Arbitration, Vol.13, 167) : "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" (Am. Arg., p. 28.) Essence of the Treaty of 1825 between Russia and Great Britain. After the Treaty was concluded, Mr. Middleton, on the very day on which£ Mr. S. Canning transmitted the Treaty to Mr. G. Canning—17th February, 1825—wrote to Mr. Adams, after a conversation with Mr. S. Canning, a description of just what had been done. This contemporaneous exposition of the Treaty coincides exactly with its terms. Mr. Middleton said to Mr. Adams:— " I have the honour to acquaint you that a Convention was signed yesterday between the Russian and British Plenipotentiaries relative to navigation, fishing, and commerce in the Great Ocean, and to territorial demarcation upon the North-West Coast of America, ford Canning I have learned In a conversation held this day that this Treaty is modelled in with a great Mr. Strat- 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 £§§ ARGUMENT OF HANNIS TAYLOR. 577 navigation secured for ten years upon the North-West 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." (Appendix American Case, p. 224.) The President. Shall you want more than to-morrow ? Mr. Taylor. No, Sir, I will hardly consume the whole day. The President. Then you will be able to go on on Thursday, Mr. Solicitor ? Sir Edward Carson. As your Lordship pleases. (Adjourned till to-morrow at 11 a. m.) S. Doc. 162, 58-2, vol 7 7 519 THIRTEENTH DAY.—WEDNESDAY, SEPTEMBER 30, 1903. All the Members of the Tribunal were present. Mr. Tayeor. Yesterday, before the adjournment, I presented to the Tribunal a paper in which I had collated as carefully as I could certain passages from the negotiations which from my point of view illustrate most clearly two .intentions on the part of the negotiators. First,'that it was their purpose to create a boundary or buffer state called a lisiere which in their own language was to stand as a barrier between these two great trading companies; second, that it was the purpose of Russia to grant to Great Britain the identical privileges of trading and hunting that had been granted to the United States in the Treaty of a year before. These represent the two cardinal considerations which I hope the Tribunal will take with them and hold in their hands, now that we have reached the point at which we must consider the meaning of the terms writen^on the face of the Treaty itself, and at that point we encounter what is one of the most important and interesting questions of international law in this case. When the rules which publicists have drafted for the construction of Treaties are applied to them, does the mind of the construing Tribunal stop at the phrases on the face of the Treaty, or can they regard, or to what extent can they they regard, it as a mere digest and summary of all that has passed previously ? How far, under the rules of international law, have you the right to look through this Treaty as if it were glass, into the faces of negotiators who made it, and to take from their lips the articulate thoughts which ripened into words? That is the scientific question of international law which we must now consider. With the very founding of the modern international system began the formulation of rules of construction, and I desire here to say that just as it is true that international law knows nothing of common law rules as to the admission of evidence, so international law knows nothing of any common law rules for the construction of Treaties, excepting so far as these common law rules have been adopted by publicists or incorporated into the rules which publicists have made. Therefore it is of the greatest importance, whenever a Treaty is to be construed, for us to select out of the mass of rules which have been provided for that purpose such as are most authentic and most relevant to the work in hand. When we look out on the sea of rules which publicists have drafted, beginning with the special chapter in Grotius devoted to that purpose, all the way down to the elaborate statements made by Hall and Savigny, it is a matter of great difficulty to select from this mass of rules those that are most authentic. To analyse, to compare, to reconcile these rules is a work rather for the closet than the forum. In order, therefore, to spare your attention we have done our best to formulate, in a narow and convenient form, the rules which we think 578 ARGUMENT OF HANNIS TAYLOR. 579 should guide you on this subject, and without reading the preface to these rules, I desire the Tribunal to bear with me until I read the text of the rules themselves which we feel you should apply in the interpretation of this Treaty. 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, tke dominant intention or motive of the transaction—"la raison d'eixe de Facte " (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 520 circumstances surrounding them at the time it was made and the objects which they evidently 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, greatr 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 a manner as they mutually understood each other. When we sum up all that the scientific jurists have to say upon this subject, it is simply the epitome of that common-sense rule which a plain man would always observe in the interpretation of any transaction, and that is to consider its antecedents and the environment of the parties in such a way as to enable the party who has judicially to construe the final act to lay his hand upon the central intent of the transaction, and so hold it up before him that the dominant purpose can clearly be ascertained. Then after that dominant purpose has once been firmly laid hold of, all subordinate matters should be so construed as to work out in an harmonious way, the general result by so grouping of all the parts together as to make a harmonious tableau. Having now commented in this general way upon the construction of the Treaty as a whole, I shall consider with more or less detail the application of these general rules to the particular questions with which we have to deal. As to the question, what is intended as to the point of the commencement of the line, I shall simply say that we cannot make an elephant out of that proposition. I think we may dismiss the refined discussion which has been elaborated upon that point to that school of philosophers who, under the lead of Dun Scotus, used to discuss how many angels could stand upon the point of a needle. I think that point is too refined for discussion at our hands. The next question is one of substance. What channel is Portland Channel ? That brings us to the first practical question in this Case, and it is to that point which I desire especially to invite the Tribunal's attention. I was very much impressed the other day when his Lordship, in speaking to the Attorney-General, said:— Mr. Attorney, it is very difficult to apply the general rules of international law to a coast whose formation is so singular and peculiar as that one with which we have to deal. 580 ALASKAN BOUNDARY TRIBUNAL. In that observation his Lordship put his finger upon, a point which should be especially observed, because it is always difficult to apply general and abstract principles to exceptional cases. Therefore, international law has been careful to recognize the.fact that there are peculiar coast lines; that the physical geography of certain coasts are so peculiar that they have to be considered on their own merits and under what, in some respects, may be called exceptions to the general rule. That idea I will have occasion to elaborate more carefully here- after. But the main point which I desire to emphasize at the outset is that the clue to the solution of the questions with which we have to deal on this peculiar coast is in the geology and in the physiography of the coast itself, in those peculiar forms which nature has made in a special way, and the first thought to which I desire to call the attention of the Court is as to the geology and physiography of this coast with which we have to deal. And when I speak now of " coast," I am speaking of the inner line regardless of the archipelago, with which I will deal later on. I will speak first in reference to the geology of the region. 521 As the geologists tell us, these inlets and bays are submerged valleys, and the main point which I want to make is that each one has its own identity. The Lynn Canal is a distinct thing from the standpoint of geology and geography, as much as Lake Superior or Loch Lomond, or the Lake of Geneva. It is an indivisible whole. It is a sheet of water of so many square miles, as Portland Canal is, and if, perchance, the surface of one of these fjords, or estuaries, is broken up by islands, the islands no more destroy its identity than the presence of a thousand islands in the St. Lawrence destroys the identity of the St. Lawrence river, and on that subject of physical geography I desire to read from scientific authority. The first point to which I desire to call the attention of the Court is that on the coast of Alaska the word " canal " has a local and special meaning, and at the outset we must understand what that meaning is* In the geography of Alaska the word " canal' has a local and special meaning. It signifies not a special channel, but a great arm of the sea. The President. What page are you reading from? Mr. Taylor. I am reading from the brief of the United States' Case, at p. 29. I The President. You mean the Argument? Mr. Tateor. Yes; I will now just read a passage with regard to the physical geography of this district:— Along the coast of Southern Alaska and pritish Columbia, submergence has led the sea far into the valleys of the mountainous highlands. Some of the inner longitudinal valleys beyond the outer ranges are now under water, forming1" canals " of great value for coastwise navigation. Viewed as a whole, the coast has a general trend in a north-westerly 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 1 to 3 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." (From Professor Wm. M. Davis, in the "International Geography," p. 667.) Now, may it please the Court, I will ask yon to imagine yourselves visiting the coast of Alaska and looking at these fjords, absolutely ARGUMENT OF HANNIS TAYLOR. 581 regardless of the fact that Vancouver ever was there. So far as we have any evidence, there has been no change in the physical conformation of the country from the days of Vancouver to these. Any traveller to this coast will see the country with the fjords just as Vancouver saw them. With the aid of the geologist and the geographer, let us look at the character and nature of these fjords in general and the nature of Portland Canal in particular, bearing in mind that the term " canal' is a technical geographical term to describe the arm of the sea or fjord as a whole. What is the nature of the channel or the fjord named Portland Canal ? What according to modern geographers, is the character of the two channels of that fjord? Without- pausing, as I cannot put my hand on the technical description for a moment, when we look at the description which the geographers give of the Portland Canal, we find there is a large channel, something like 2^ miles wide, which is broad and spacious, and deep and navigable. There is also a narrow channel, which is tortuous and rocky, and no use at all for purposes of navigation. That any traveller can see, regardless of any information which he can get from Vancouver. My own purpose in this preliminary statement is that we may put ourselves in a position to know what it was Vancouver saw when he visited that coast, so that, upon the very threshold of this part of the Argument, we may ask ourselves the question. What means have we of knowing what Vancouver saw, or what did he think in reference to this part of the territory? Ajid that brings up the question, 522 did the negotiators have before them simply the maps or charts of Vancouver, or did they have before them the Narrative itself ? The United States' Case has challenged the fact that there is any evidence that they had the Narrative of Vancouver before them. The Counsel for Great Britain have taken up the challenge, and they have attempted to demonstrate to this Tribunal that there is positive and affirmative evidence that the Narrative was before the negotiators. Therefore, we deem it our duty to criticize and examine what the British Counsel claim is the evidence that shows affirmatively that the Narrative was before the negotiators. The first specimen of what they call evidence to prove that fact is this The President. Is it your case, Mr. Taylor, that the Narrative was not before the negotiators ? Mr. Tayeor. We hold th&t there is no evidence that it was. The President. Yes, I know, I quite understand that. Mr. Tayeor. I want to make myself very clear upon that point. The President. I only want to follow you, that is all. You contend it was not before them ? Mr. Taylor. We claim that there is no affirmative evidence. We do not deny that it was a possibility. The President. That is not quite the point. I only want to know so as to follow you. I quite understand that you criticize the evidence, but do you contend it was not before them ? Mr. Taylor. Well, I think a fair statement for me to make in reply to your Lordship is to deny that there is any affirmative evidence. The President. Very well. Mr. Taylor. I do not deny the possibility, and your Lordship will see in the progress of my argument the importance of the dis- wT 582 ALASKAN BOUNDARY TRIBUNAL. tinction as to whether there is affirmative evidence as distinguished from a mere possibility. The first thing which is offered as a specimen of evidence is the passage in Baron Tuyll's letter written nearly three years before the Treaty was made, in which he makes a certain reference to the mouth of Observatory Inlet. Our contention is that the only possible way to interpret Baron Tuyll's statement is to assume that he knew the maps and charts of Vancouver, and not the narrative, because on the maps and charts the mouth of the Observatory Inlet, as we claim Observatory Inlet to be, falls precisely where he say a it was, and if you test the question by the narrative, then Baron Tuyll's statement is absolutely in conflict with it if Observatory Inlet is the body of water we claim it to be. Therefore, so far from that letter of Baron Tuyll's supporting the British contention that there is evidence of knowledge of the narrative, it is an absolute refutation of that contention, and a proof that Baron Tuyll simply knew of the maps and not of the narrative. The second specimen is taken from the letter of M. de Poletica to Mr. Adams, of the 28th February, 1822, which states:— In 1763 the Russian establishments had already extended as far as the Island of Kodiak. I think it was sufficiently ventilated in the discussion that Coxe's narrative was entirely the foundation of that statement, it being known that M. de Poletica drew his information from Coxe's narrative, so that utterly fails as evidence to show that the narrative was known to the negotiators. 523 A far more important claim is the third one, which is the assumption that Pelly's Memorandum was in the hands of the British negotiators. Mr. Canning, it is said, intended to send it to Sir Charles Bagot together with an instruction addressed to the Duke of Wellington. Sir Charles Bagot, in his reply, 10th February, 1823, said:— I ought to state that in the copy of the instructions given to the Duke of Wellington by your Despatch No. 6 to His Grace of the 27th September last and which was transmitted to me in your Despatch No. 5 of the 31st December, the opinions of Lord Stowell and of His Majesty's Advocate-General upon the subject of this Ukase, and the other paper therein referred to, were not inclosed. And still there is an assumption, which we claim is an unsupported assumption, on this direct statement that he did receive the papers which, he says, he actually did not. We contend that the only possible basis on which any such theory or assumption could be founded would be in proof that Sir Charles Bagot subsequently showed that he had the information which those papers contained. What possible evidence could be given if there is no manifestation that he ever had in his mind any such information? We say there is affirmative and conclusive proof that he never did have such information, because upon the most vital part of his work, upon the subject of whether Portland Canal ended in a great River system connecting it with the territories of the Hudson's Bay Company, a subject which he says was of paramount interest for him to deal with, he makes the statement right in the teeth of Vancouver's declaration, which is that he went to the head of Portland Canal; and it is to be supposed that he went there especially in search of the ARGUMENT OF HANNIS TAYLOR. 583 river of which people had long dreamed, and that he found it was not there. He found that Portland Canal ended in the low marshy ground at such and such a situation. I cannot conceive of any two statements more absolutely irrecon- cileable than the statements of Sir Charles Bagot and Vancouver, and if the Counsel for Great Britain fail to reconcile the irreconcileable then the inevitable conclusion is that Sir Charles Bagot never knew of the narrative of Vancouver. If that is true the whole theory breaks down, because, as all the world knows, Mr. Stratford Canning had nothing to do with the negotiations, certainly so far as Portland Canal was concerned. If Sir Charles Bagot never knew, how can it be supposed that the Russians knew of this English publication, of which their experienced Ambassador was ignorant. So the Attorney-General made the great effort of his speech in the attempt to reconcile the irreconcileable, to remove that great difficulty in his theory of presumption, and I feel that I would like to say, and I think it is proper that I should say, that in his masterly presentation of the British Case, in his masterly handling ^and marshalling of the facts during all those seven days in which he exhibited his splendid powers, he excited on this side of the Chamber the unqualified admiration of us all. But it did seem to me when he undertook to lead that forlorn hope that even with his splendid powers he was attempting to do the impossible—to reconcile the irreconcileable, and he simply presented the classical image of a strong man struggling in a bog, unable to be aided by a friendly hand; and the more this strong man struggled, as it seeemed to me, the deeper he sank in the low marsh land which Vancouver had discovered at the head of Portland Canal. Upon that forlorn hope he went down, because no human power can explain the unexplainable; no man can reconcile a statement, made deliberately by Sir Charles right square in the teeth of the narrative. And in reference to that part of the Argument of the Attorney-General I desire to call the Court's attention to a passage in his speech which I think should be preserved as one of the curiosities of literature. Reading from p. 9, he says:— All the maps which could have been before the negotiators used the expression " Portland Canal." I can verify that by reference to the maps if it is desirable. The first edition of Vancouver, in the French translation of that edition, used the expression " Portland Canal." " Portland Channel" is the expression used in 524 Vancouver's second edition, which appeared in 1801. There was no French translation of his second edition, and it would seem to follow that the Russians used this English expression, which they introduced into a document drawn up in French—must have taken it from the second English edition of Vancouver, which therefore must have been before them. I respectfully claim, may it please the Court, that no ten lines in the English language can anywhere be found which contain so many extraordinary requests. Let us analyse them—and I beg the greatest attention to this part of the Attorney-General's Argument—let us see what he is asking of the Tribunal. Here are people, he says, who are writing in French. Here he admits that there is a French edition of Vancouver. Here are the Russians, who perhaps of all people in the world are most addicted to the use of the French language, and who, perhaps, at that time were least familiar with English terms. What is the first step in his request? He wants this Tribunal, in the first place, to assume that the Russians who are writing in French BOUNDARY TRIBUNAL. discredited the French edition of the book, which must, of course, have been before them, and that they did not extract the words which they found in the French edition while they were writing from the French book. Then his second request is that you should assume that they took the English version of Vancouver in preference to the French. He asks in the third place that you must assume that these trained critics who had been mousing through these heavy tomes and criticising the words and phrases in a critical spirit adopted the spurious and interpolated edition of Vancouver, which was published after he was dead; he asks that you should take the English edition of 1801, in which are these words he desires to lay hands on, this phrase I Portland Canal,' interpolated after Vancouver was dead. In the fourth place, he asks you not simply to take the interpolated edition, but he wants you to take the interpolated wTord which Vancouver never used and never saw, he wants you to say that these trained critics took the base money in preference to the good when both were presented. • Mr. Aylesworth. But they did in fact take the word " channel." Mr. Taylor. That is the very point I should deny, may it please your Honour, and say there is not the slightest evidence that they took that word from the interpolated English edition. } Mr. Aylesworth. But the word " channel " is there. Mr. Taylor. Well, but we say there is no evidence that they got it from any such source. Mr. Aylesworth. Where did they get it? Mr. Taylor. That is assuming the very point in the Argument as to which we say it is the most violent of human presumptions to assume that men who knew French, with a French book before them, should have rejected the French edition which had the correct word and should take the interpolated English edition and the spurious word out of the English edition when the true word was in the French edition just before them. That, we say, is a most extraordinary idea. The story goes that when Dean Stanley was about to be married, he, having possession of Westminster Abbey, set his heart upon the most brilliant lady of this splendid Court, one who was endowed in mind and body in such a way that she had won the heart of Her Majesty herself, and that when the time came for the Dean to ask for her hand at Her Majesty's feet that she heard him through and then asked him: " Dean, do I understand that you want to possess Westminster Abbey and Lady Augusta too ?' I think if the scholarly Dean were present here to-day and could see these immense draughts which the learned Attorney-General in this particular is trying to draw upon the credulity of this Court, the Dean would be shocked at his own moderation. It seems to me that I never have heard of a proposition in which any man ever asked so much of a Tribunal as the Attorney- General does in this particular. 525 In reference to the last point, I shall say but a word in refer ence to the knowledge drawn from the despatch of Mr. Mddle- ton to Mr. Adams, as you have had it thrashed out before you, whatever the merit of that contention is. And now may it please the Court, while we have deemed it our duty to criticize what the Attorney-General has been pleased to call affirm- 'WW ARGUMENT OF HANNIS TAYLOR. 585 ative evidence, my purpose is to show to this Tribunal that my argument rests upon the assumption that,, admitting that this narrative was before the negotiators, and admitting that they had every fact and every word of the French and English versions before them, it demonstrates as clearly as sunlight the contention which we make as to Portland Canal, and it will be mainly upon the allegations of that narrative that I found my argument. The first point which I tried to make out at the outset, as a matter of physical geography, is that every canal on that coast is an arm of the sea, that they are interchangeable geographical terms, and we must remember that words are things, especially when they are used by a man of science, a trained geographer who is supposed to know the full significance of the terms which he employs. When we look at the narrative of Vancouver, what is the most striking thing we find in reference to Portland Canal? I am reading now from the authorized version, which is the genuine thing, the first English edition. This is what Vancouver wrote before the interpolators changed it after he was dead. The President. What page? Mr. Taylor. Page 371. " In the forenoon "—mark those words:— I In the forenoon we reached that arm of the sea " The President. Which volume, Sir? Mr. Taylor. This is the second volume, please your Lordship, p. 371. The President. Thank you. Mr. Taylor : 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 about 70 miles, which, in honour of the noble family of Bentinck, I named Portland's Canal. What did he name Portland's Canal ? He named, he said, the 1 arm of the sea," the entire estuary, the fiord—he named it Portland Canal: and it is a singular fact that, as far as we know, Vancouver never used any other word except Portland's Canal. Portland's Channel was a gratuitous addition after he was dead. This is the term that he used to describe it, and, mind you, it is the word of a trained geographer and a scientific man using a technical term to describe an arm of the sea, whose precise definition is that of Portland's Canal. It was at least two days after he had named that body of water Portland's Canal before he ever applied any name to the branch of it known as Observatory Inlet. Let us read now from p. 375 of the authorized version:— 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 I beg the Tribunal to note the word:— 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. He named the entire body of water, the whole estuary, Portland's Canal. 586 526 ALASKAN BOUNDARY TRIBUNAL. The President. Well, but, Mr. Taylor, if you are arguing this and readng the passage—the passage just above what you have read, says in terms:— The west point of Observatory Inlet I distinguished fey calling it Point Wales. Mr. Taylor. If your Lordship pleases, it is the whole point of my argument to explain that; I will deal specially with that in a moment. I am coming to that point. If that was not there, there would be no necessity for me to make any argument at all. I want to show to this Court that it is absolutely consistent when it is properly construed, and that is the very point I am coming to when I have laid the predicate. I say here he named the entire body of water the Portland Canal, and two days later he named a subordinate part of it Observatory Inlet. We say that the record makes the fact that it is a subordinate part clear for two reasons. The word " inlet" itself represents a subdivision of a larger whole, a part of a great estuary as contradistinguished from a canal. If he had applied the word " CanalI and said Observatory Canal, to indicate that he was dealing with one single indivisible thing, that would have been another matter, but he uses the word " branch," and he uses the word " inlet " to show that Observatory Inlet was simply a subordinate subdivision of the greater whole that he had named two days before. Let us go a step further and see what conception Vancouver had of the channels into which Portland Channel was subdivided. Remember that our contention is that this whole body of water, as an indivisible whole, had two channels in it. Well, the beauty of Vancouver's narrative for our purposes is that it distinctly and in detail describes the two channels in Portland Canal in contradistinction from the body of water as a whole. Let us look first at p. 327, where he describes his entrance into the big channel to the north, as he says:— This island, in the direction of N. 20 W. is 15 miles long and 5 miles broad from east to west. To this island I gave the name of Dundas's Island, after the Right Honourable Henry Dundas. To the north of this island we had a distinct view of the ocean to the westward. Mark the term:— Through a spacious channel that appeared free from interruption; and by sunset we entered the arm, up which we expected to find this extensive inland navigation. To its south-east point of entrance I gave the name of Point Mas- kelyne. And so forth. Let us look again at p. 378:— The route to 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 had passed in the boats, we weighed with the intention of directing our course thus about 6 in the morning; but having a strong gale from the southward, we made little progress windward. At p. 345 he says:— This disappointment occasioned us no small degree of mortification, since we had already been absent from the ship a whole week, with the finest weather the season 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 13 leagues in a right line from the ships to the entrance of ARGUMENT OF HANNIS TAYLOR. 587 this inlet, and that in a south-west 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 527 much longer; indeed, the appearance of the evening indicated an unfavourable alteration, which made me apprehensive that probably the finest part of the season has been devoted, in our late pursuit, to a very perplexing object of no great value or consideration. So here we have an explicit description of the big channel, and the little channel, with a most complimentary term applied as to the spaciousness of the big channel, and the opposite to the narrowness and inefficiency of the little one, which he dismisses with the reflection that the time he had spent upon this little channel was wasted. If we will hold the correct use of these terms clearly in our minds that the name given to the whole arm of the sea was Portland Canal, and consider, as Vancouver makes it plain beyond all question, that the Observatory Inlet was merely a branch of the main body, it is not of the slightest consequence whether the mouth of that branch called the Observatory Inlet ends at Port Wales or not. There is nothing in the world inconsistent with the idea of an inlet, which is a subdivision of the whole, in the fact that its mouth extends to a particular point in the main body. Vancouver's narrative is simply his first tentative expression, his field notes. His revised and completed work was embodied in his maps and charts,, and whenever we come to investigate the narrative, or field notes, of an explorer like this, and see his finished work, we must not take any one fact in isolation, but we must take all the facts together, and see his revised thought, and get the picture upon his mind, not from one isolated fact, but from the whole tableau of facts." To make a practical illustration, the other day when the Attorney- General was speaking, I am sure that my colleague on my right was making notes—we will call them field notes. Very likely they were his first reflections and ideas upon the subject of the Attorney- General's speech. When the time comes I know he will present a finished argument to this Court which presents his ripe thought that will be printed in the record. Suppose after that is completed, Mr. Watson and myself should fall into a dispute as to what Mr. Dickinson thought and what he said about this Case, and Mr. Watson should take up one of the sheets from this table upon which his first impressions, his field notes, were entered, manifesting a certain line of thought, and suppose I take from that table the finished record of his speech, and say, " Mr. Watson, that is the finished product of Mr. Dickinson's mind, that is what he said; there is his map and chart which shows the final review, the final estimate that he made of this whole Gase," could there be any question of my having the best of the argument ? So I say when you construe, and the contention of the Counsel of Great Britain is that you must construe the narrative and the maps together, his completed work shows that he meant the name applied to Portland Canal to be applied to the body of water as a whole, and that the name Observatory Inlet was to be strictly limited to that branch which ended at Port Ramsden. The next step I desire to take is as to the maps which the negotiators had before them. Let us assume now that they had the narrative and the maps before them, so they could see what it was ALASKAN BOUNDARY TRIBUNAL. > Vancouver thought, and I would specially ask the Court, and I would like very much for you to look on the printed reproduction in the Argument of the United States of certain maps to which I desire especially to call your attention. I refer to p. 35. The Attorney- General has been good enough to state, in his Argument at p. 91, that all the maps which could have been before the negotiators used the expression Portland Canal. He says all the maps to which they may have had access use the name Portland Canal. We know that there were i\ye maps before them. There was the Langsdorff map, which throws no light; there was the Russian Quartermaster's map, which throws no light. Then we have three maps which throw a flood of light: the Arrowsmith map, the Faden map, and the Vancouver map. I ask your Lordship's attention to the facsimile reproduction of the printing and arrangement of the names Portland Canal and Observatory Inlet, on the Vancouver Map No. 7, Atlas 1798. According to the rules of map makers, the name of a body of water, as I understand it, is to be as near the centre of the body to be distin- 7 mJ guished as possible. Let us apply that rule in reference to 528 the arrangement of the names. Then it is also a rule in the making of maps that the great bodies of water should be designated by capital letters, and the subordinate parts by smaller letters. If you take the words " Portland Canal" with their thirteen letters, ms 7 and put them in a straight line and take the words " Observatory Inlet" in the small letters and put them under it, you will find that the sixteen letters occupy just one half the space that is occupied by the thirteen. Could there have been any more careful illustration by the map maker that he intended to do what he says he did in his narrative, that he named the arm of the sea which is the whole estuary " Portland Canal," and that he named this branch " Observatory Inlet" ? How could there be a clearer confirmation of what he says in his narrative than by what he says in his map ? When we look at the Faden map you will see on the same page the same thing is reproduced there with great distinctness that the Observatory Inlet is applied simply to the branch, and when we look at the Arrowsmith map we see with still more distinctness the same indication. Now, the Attorney-General has been good enough to admit that if there were any pther maps before the negotiators, of which we knew nothing, all such maps contained the name " Portland Canal." If Vancouver knew what he meant, if he knew the ordinary terms of geography, could anybody dispute the fact that when he used the words " Portland Canal " he meant it not as a simple description of that miserable, unnavigable and narrow little part of Portland Canal contended for by Great Britain, but that he was trying to do honour to the noble family of Bentinck by naming the whole arm of the sea, which he designates as such, Portland Canal. Therefore, I claim that it is as clear as sunlight that Vancouver named the whole body of water " Portland Canal," and that he named I Observatory Inlet " the mere branch of it, and that he has described with particularity and detail the two channels which were in Portland Canal, one of which he says was a miserable affair, and he never went up it with his ships, never traversed the whole of it in his boats, and he tells us that the real channel, the channel of the American contention, was a ARGUMENT OF HANNIS TAYLOR. 589 channel two and a half miles in width at its entrance, and that was the only one which he ever entered in his ship. Therefore we claim that the demonstration is perfect, that the negotiators, having before them these maps, understood that what Vancouver named was the Portland Canal as an entire body of water. At that point I desire to draw the Court's attention to the order in which the word " Portland Canal " occurs in the negotiation. I Portland Canal" first appears in the Counter-Draft of the Russian Plenipotentiaries, Sir Charles Bagot to Mr. Canning, March 17, 1824, Appendix to the British Case, p. 70. It appears a second time in the amended proposal by Sir Charles Bagot, Inclosure 2 in No. 44, Appendix to the British Case, p. 70. Thirdly, the word "Portland Channel" is first used in the observations of the Russian Plenipotentiaries on Sir Charles Bagot's amended proposal, Inclosure 3 in No. 44, on p. 71 of the British Case Appendix. Fourthly, in the reply by Sir Charles Bagot to observations of the Russian Plenipotentiaries, Inclosure 4 in No. 44, Appendix to British Case, p. 72. Fifthly, it appears in the letter of Count Nesselrode, announcing the final decision of the Russian Plenipotentiaries, Inclosure 5 in No. 44, on pp. 74 and 75; he refers to it as Portland Canal. That is in the Appendix to the British Case, p. 76. Sixthly, in the letter from Mr. George Canning to Sir Charles Bagot, June 12, 1824, their draft Convention inclosed has the term " Portland Channel," Appendix to the British Case, pp. 85 to 87. So there you have in regular order the only occasions upon which the words " Portland Canal," the Portland Channel are used, and it is certainly a significant fact that Sir Charles Bagot, like Vancouver, never did use the word " Portland Channel." Sir Charles Bagot always used the word j Portland Canal." And I would like to call the attention of the Tribunal to two mistakes in the British Case—one at p. 70, the amended proposal by Sir Charles Bagot, Canal de Portland is put " Portland Channel " where it ought to be I Portland Canal." Then in the reply of Sir Charles Bagot to the observations of the Russian Plenipotentiaries, on p. 73 of the British Case, ihe Portland Canal is improperly translated Portland Channel. There are two places on p. 70 and p. 73 of the British Appendix where the English version—it is hardly necessary to change it because the French stands there to speak for itself, using the word " Canal' where the word " Channel " is put 529 in the English form, so that so far as the negotiators could be influenced by the maps they saw that the word " Portland Canal" was used upon all of them. The Attorney-General says not only upon those that we know to have been before then, but he admits in every one of them that might have been before them, the word " Portland Canal" was used. Certainly it is significant that the word " channel" was introduced by the Russians. Is it con- ms ceivable that after the word " Canal" had been used by Sir Charles Bagot twice, the Russians would have substituted a word in the sense in which British Counsel claim it, narrowing their right in the way which such an adoption would have brought about. That I claim to be perfectly incredible, the Russians used it simply as an equivalent of the word " Canal," and the supposition, of course, upon the basis upon which we are now arguing the Case as to the source from which " Portland Channel" was taken is absolutely im- ALASKAN BOUNDARY TRIBUNAL. : material. It is plain from the context that there is no discrimination made by the negotiators in meaning between " Channel' and " Canal." It was simply substituting the new word of the Russians, who were the first to introduce it as a ucmre equivalent of " Canal." Sir Edward Carson. I admit that. Mr. Taylor. Therefore we say that when the Treaty .was made this word " channel" was used in the Treaty to designate the whole body of water which Vancouver had named Portland Canal. It seems to be a natural inference, and if that was true, if it were true that the negotiators so used the term, of course the consequence would-be under the law of nations, as I shall hereafter try to explain it, that it was the big channel that was the dividing line in this great arm of the sea. I shall now beg the attention of the Court to maps subsequent to the making of the Treaty, which we claim throw a flood of light upon this transaction. First, the Arrowsmith map on the American Atlas No. 12. This appears to. be the first British map published after 1825, showing Wales and Pearse Islands to be Russian, as claimed in the American Case. Secondly, let us refer to the Brue map, published in the American Atlas No. 13. The line of demarcation is there drawn so as to include Wales and Pearse Islands in Rus- .sian territory. Let us next look at the British Admiralty Chart No. 25 British Atlas, and that is of the greatest importance. Nothing in this Case is more extraordinary to me than that the authority of this map should be in any way challenged or questioned by the postmortem inscriptions which seem to be written upon it, and which, so far as I can see, do not at all impair its value. The President. What is the number ? Mr. Taylor. No. 25; and I beg -special attention to this because I want to compare this map with the narrative of Vancouver. Here the great broad channel, the Portland Channel and Portland Canal which Vancouver went up in his ships, which he said was broad and spacious and navigable, is made the great central part of the picture, and the poor little strip of water which Vancouver denounced as a worthless labyrinth of rocks is treated by the British Admiralty even with more contempt than it was dealt with by Vancouver. The President. That is an Admiralty chart, Mr. Taylor, and you know what Admiralty charts are used for. Mr. Taylor. If your Lordship pleases that is the very point, that, it was so insignificant, that it was not worthy even of a survey or a name. The President. Very well. Mr. Taylor. That it was not worth even a survey or a name in the estimation put upon it by the British Admiralty in sending out its charts to guide the movements of the greatest navy in the world, put it just where Vancouver had put it as a worthless thing 530 that was not within the purview of navigation, and was not worthy of a survey or a name; and when we go further, and look at the British Admiralty Chart No. 33, we see substantially the same thing, except that this condition of things is brought down by the English Admiralty to 1884, and I should like very much for the Court to look upon that map. There we have the same distinctness, the great channel marked and the other one ignored. There we have ARGUMENT OF HANNIS TAYLOR. 591 Observatory Inlet put in its proper place as a mere branch, and you see the names written as Vancouver had written them, in such a way as to indicate beyond all possibility of doubt that Observatory Inlet was considered as a mere branch of this one body. Let us then turn to the Canadian map, No. 41 in the Atlas of the American Counter- Case, and let us see how the Canadians view the question; they were nearest to it and most interested. Mr. Turner. What particular map are you looking at now ? The President. No. 40. Mr. Taylor. Map 41 of the United States' Counter-Case. This is a Canadian map to show the Canadian view. Now let us turn to No. 31 of the British Atlas, the map of British Columbia. As late as 1884 there is the line running in such a way that there can be no mistake in favour of the United States. Mr. Aylesworth. What number is that ? Mr. Taylor. No. 31. Sir Edward Carson. 31 of the English Atlas. Mr. Taylor. The British Atlas, No. 31. It is a Canadian map and is described as: " Map of the Province of British Columbia, compiled and drawn by Edward Mohun, C. E., by direction of the Honorable W. Smithe, Chief Engineer of Lands and Works, Victoria, B. O, 1884." So that is a very moderate statement to make, that after the making of this Treaty the interpretation given by subsequent maps, British and English, is to show that this channel claimed in the British Case as the Portland Channel was ignored not only by the British Admiralty but by the Canadian map makers and the matter made so plain that there could be no doubt or question about it. I was very much touched yesterday when the distinguished advocate Mr. Robinson, who preceded me, made such a sharp outcry upon the subject of maps. After hearing his dissertation, one felt that maps were of no consequence or authority in the world anywhere, and, by an allusion which was evidently directed at myself, he indicated that if any commentator upon international law should ever issue a second edition, he would like^very much to have some light on the proposition of whether citizens of the world ought to supervise all the map-makers of the world and see whether they make proper and correct maps; and, further, he complained of the great outrage of expecting a man to examine maps in a foreign language, and he made a pitiful plea that he could not read Russian, and also he said he could not understand maps in Spanish or in German. That may be so. However, admitting, for the moment, that there is no obligation of international law for the citizens of one nation to supervise and examine the maps of other nations in languages which they do not understand, L confidently claim that Mr. Robinson has demonstrated to us here by his lucid and powerful argument that he is a master of English prose. He certainly understands how to read the English language, and therefore he must be assumed to be able to read the maps issued by the British Empire, especially in the Province of Canada, of which he is such a distinguished ornament. He must read the maps issued by his own country; he must know their contents, and he must respect their authority. He cannot undertake to assail the official English maps or the official Canadian maps unless he proposes to take the position that the map makers of Canada and the British Empire have been attempting to perpetuate a fraud on all mankind. 592 ALASKAN BOUNDARY TRIBUNAL. Wm I say he is bound to respect the maps of his own country, and 531 nothing was more cheering to me in this Case than his pitiful outcry, because it carried with it a ring of genuine pain; he showed that he felt these cruel, indisputable British and Canadian maps were crushing the Canadian Case to death. I sympathize with my friend in the assaults which he has made on the map makers of this world: they have done him a hard turn in this Case. 7 ms If the Court please, what I have tried to say so far has been intended as the prelude for an argument based upon international law. What I claim that I have demonstrated beyond all question to this Tribunal is that the boundary set by the Treaty between these two nations was that the estuary, that arm of the sea which is one unbroken whole, a fjord, a canal, which had in it two channels, and that there was no kind of designation or inscription intended to indicate which one of the subordinate divisions, which one of the channels of the invisible whole was intended as the boundary. Therefore, I say that no case has ever arisen between nations where there was a more ideal basis, a more perfect predicate upon which to apply the doctrine of the thalweg, to discriminate by operation of law which one of the two channels is the real boundary, when the body of water as a totality and an indivisible whole was set up as the boundary. It was with a sense partly of amusement and partly of surprise that I saw the very gingerly and cavalier manner in which the Attorney-General attempted to deal with one of the elementary principles of international law. One felt from the way in which he tried to waive away the doctrine of the thalweg that it was-some novel and unsupported invention, some fancy that had no place in international law, that the whole thing was a confusion that he could hardly understand, and, without offering the slightest authority to combat the high masters which we have offered in support of our contention, he just attempted to waive the thing away as one of the things that was entitled to no serious consequence. If we could dispose of the elementary principles of international law on that basis it would be very easy for me to attack the doctrine of the 3 miles zone by simply saying, " I do not like thee, Dr. Fell: the reason why I cannot tell," that I think the 3-mile zone should have no place in international law. It would be just as easy for me to attack the doctrine of the 3 miles zone, and I could do it with as much hope of success as the Attorney- General has attacked the doctrine of the thalweg. It was born with modern international law, it comes down from Grotius's time as one of the elementary principles, and the only modification that has been made in it is a modification which is very much for our convenience, and has been thus stated by that great English publicist, Sir Travers Twiss, who said:— 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 mid-channel— And that is the simple meaning of the channel— the valley in the middle. If there be more than one channel of a river, the deepest channel is the mid- channel 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. (" The Law of Nations," i, pp. 207-208.) ARGUMENT OF HANNIS TAYLOR. 593 Then he goes on to speak of the Treaty of Argovie, and he cites Bluntschli; and Hall is to the same effect, but what I desire to call the Court's attention especially to in reference to the particular contingency with which we have to deal is the application of the doctrine of the thalweg to an arm of the sea which is a boundary like this as distinct from the estuary of a river. I think that has been made the subject of discussion—I believe his Lordship will bear me out in the statement—by the greatest Ajnerican publicist that has lived since the time of WTieaton, and one to whom, perhaps, European publicists have assigned more position and authority than to any American publicist of our times. I speak of David Dudley Field, who has received the laurels of the publicists of Europe as one of the greatest expoundens of modern international law. I know of no person who can be put up above him, except perhaps Bluntschir or Calvo, and I want you to note that in formulating this principle that applies strictly and completely to this case, that David Dudley Field based his statement on the authority of Bluntschli. And let me read what he says in his " International Code," in which he has summed up all the principles of international law. He says:— 532 Boundary by stream 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 mid-channel; or, if there be several channels, to the middle of the principal "one. That is the clean-cut, definite statement of David Dudley Field as 7 ■ %J to an arm of the sea that is a boundary between two countries, and he rests his statement upon the authority of Bluntschli. Have you heard one word of suggestion from the Counsel of Great Britain to show that there is any publicist, continental, American, or English, who has ever said a word anywhere to challenge the doctrine of the thalweg as thus defined? The President. Mr. Taylor, I do not think it is of any real importance, because I agree with you that if you establish what is called Portland Inlet or the Portland Canal includes both branches that is enough for your purpose; the doctrine of the thalweg applies, but I am bound to say I do not think that even David Dudley Field him- ms ms self—and Dudley Field was a very great authority—means to say what you put upon him, because he refers to Bluntschli, who is there dealing with rivers. Bluntschli has got a separate chapter on arms of the sea. Do not think I am referring to this to dispute what you suggest, but simply because I do not think that is authority to support your view. I have read Bluntschli. Mr. Taylor. I am very glad to hear that. The attempt to draw any distinction between two channels of an estuary which is the mouth of a great river system as contradistinguished from an arm of the sea is a distinction which rests upon no possible foundation in logic or in law. Suppose for illustration there was a great river system, as was supposed, coming into Portland Canal, how could that possibly affect in any way the question of the boundary so far as the arm of the sea extended—whether the arm or a river ran S. Doc 162, 58-2, vol 7 8 ?*3j w 594 ALASKAN BOUNDARY TRIBUNAL. into the head of it or not—what possible difference would it make upon principle or in practical convenience ? And I say that the idea of attempting to draw any distinction as a matter of international law between an arm of the sea which is an estuary of a river system and one that is not is one that rests upon no reason or basis whatever, and no authority can be found, in my judgement, to justify the distinction. But even if there were, we have got the clean-cut, positive authority that in the case of an arm of the sea which is not an estuary that doctrine of the thalweg applies just as we claim to apply it in this case, and that is the great value of the explicitness of all this authority, because it does not rest on any such distinction whatever. Now, Halleck says:— But where the j*iver 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. I have not a moment's apprehension of any difficulty in the mind of this Tribunal as to what the rule of the thalweg is. The question that we have to argue is the question whether the Portland Canal was an entire body and named as such and intended as such in the Treaty; and that there are two channels in it. When we come to compare the channels with each other, there is no basis for controversy; there is no question of weighing evidence as to which is the big channel and which is the little channel; which is the navigable channel and which is the unnavigable channel. The proof is so well established on that subject that there is no ground 533 for controversy; the minute it is proved that an arm of the sea was the dividing line between these territories generally, and that there were two channels in it, international law steps in at once and designates the middle of the big channel as the line of boundary. The strongest confirmation of that conclusion is, that the whole concensus of the map makers, especially of the official map makers of the British Empire, points out to all the world that the big channel is the channel. It employs the name of Portland Canal and Portland Inlet, and ignores, as unworthy of a name or of survey, the miserable little labyrinth of rocks which Vancouver himself denounced as unworthy of his time and attention. ms My second proposition is that the only possible basis upon which the Counsel for Great Britain can hope to found a Case, the only theory upon which they can attempt to succeed so far as the thalweg is concerned, is this. At the outset of my argument I defined the elementary distinction between the general principles of international law which apply in all cases and those especial or conventional rules which a nation may make upon a particular occasion for a particular purpose. I am inclined to admit that when the negotiators were making the Treaty, if they had considered the whole subject and said they would not follow the general rule of international law: " We will not let the international law of the world designate the great channel as the boundary, the thalweg, we will make a special - ARGUMENT OF HANNIS TAYLOR. 595 and conventional rule by which we will suspend the general rule of international law, and we will designate by special Agreement this little channel as the boundary " that would have been perfectly competent. As every lawyer knows, every man who attempts to show in his particular case that the general law was to be suspended, whether it be municipal or international, the burden is upon him to show that by an express contract the intention of the parties was to substitute for the general law a special and conventional rule which was to take its place, and when this Case is examined from a scientific point of view, when the British contention is looked at correctly, that is the basis upon which the English Case depends. The real contention in the British Case is, that when that Treaty was made it was the purpose of the negotiators, by a special agreement, so to designate the little channel as to suspend the operation of international law, and make the little channel instead of the big one the boundary. I am especially anxious to have the attention of the Court directed to that proposition, because that is the real basis upon which the British contention here depends. It is an assumption that, by special agreement, the makers of this Treaty made an international rule, by which the unnavigable Portland Channel, as claimed by Great Britain, was intended to be substituted for the general rule, as laid down in international law. The attempt to establish that special contract by agreement is put upon three bases. The first is the untenable contention that by the designation of Point Wales there was a purpose to treat this indivisible body of water as two distinct parts, and to treat Observatory Inlet as a distinct body. We say that when the narrative is tested by the maps, that theory utterly collapses and breaks down. The second item upon which Great Britain relies, to show that a special agreement was made to designate the little channel, as contradistinguished from the large one, is this phrase, which occurs in the amended proposal of Sir Charles Bagot. It is shown by the Russian archives of the 24th February, 1824, and I shall ask the attention of the Court while I read that passage, because that is one more than any other on which Great Britain relies to maintain her special Case:— That a line of demarcation drawn from the southern extremity of Prince of Wales Island to the mouth of Portland Canal, thence up the middle of this canal until it touches the mainland (terre ferme), thence to the mountains bordering the coast, and thence along the mountains as far as 139 degrees longitude, would deprive His Britannic Majesty of sovereignty over all the inlets and small bays lying between latitudes 56 degrees and 54 degrees 45 minutes, whereof several (as there is every reason to believe) communicate directly with the establishments of the Hudson's Bay Company and are, consequently, of essential importance to its commerce. That is really the main item upon which the Counsel for Great Britain rely to prove that there was a special intention in the 534 minds of the negotiators to adopt the little channel instead of the large one. The plain answer to that is that within two months after that proposition was submitted Count Nesselrode closed his contract, his Treaty with the United States, in which 54 degrees 40 minutes was adopted as the southern boundary, so that whatever weight there was in that proposition was disregarded because it was never accepted by Russia. The second is a plain point that this phrase had no reference to Portland Canal whatever; it was simply —— 596 ALASKAN BOUNDARY TRIBUNAL. • I intended to measure a certain part of the sea coast opposite Wales Island, and has no reference to this subject-matter. Now, the next item on which Great Britain relies to show that it was intended to designate the little channel instead of the big one is that later on Baron Tuyll, nearly three years before the making of the Treaty J makes a reference to Observatory Inlet, and makes a statement that -m • can only be supported upon the theory that he was relying on" and referring to Observatory Inlet as claimed in the Case of the United States. So, then, we claim that the conclusion, when this matter is looked at from a scientific point of view, as acute professional diplomatists should look at it, that the only way in the world in which Great Britian could escape from the operation of the general law in this Case was by proving affirmatively to the Court that the negotiators intended to make a special conventional rule, whereby this little worthless gut of water, which the British Admiralty do not survey or name, was intended as the entire body which Vancouver named after the noble family of Bentinck. The plain answer is that the whole case breaks down on that point, because Great Britain has utterly failed to bring to you anything that can be called proof to show that there was any special agreement by which this little worthless channel was to be substituted for the great channel which the international law of the world designates, and there it is that their whole Case goes to ruin and breaks down because there is no evidence in the Treaty itself, there is no evidence in the negotiations that the negotiators intended any such thing. Certainly, there is no possibility of drawing any help from Vancouver. Why should Vancouver, who wanted to do honour to the noble family of Bentinck by naming a great natural object after it—why should he have limited this name of Portland Canal to a branch of the Canal? He would have used, in that event, the word " inlet." Why should he have limited this name which he says in so many words was applied to an arm of the sea? Does it not violate all human probability to suppose that he should have limited and circumscribed that name down to this little worthless channel instead of applying it, as his narrative tells you, and his maps show you, to the whole body of water which he calls an arm of the sea ? But if there can be any doubt left on the question it is -utterly removed by the fact that this southern line of Russia as to the British Empire and the United States was fixed at 54 degrees 40 minutes, and that 54 degrees 40 minutes runs right into the mouth of the big channel, the channel of the American contention. I say if it can be proven to you that Russia fixed her southern boundary at 54 degrees 40 minutes as against both nations, then there is an end of this controversy, because we have run the 54 degrees 40 minutes line right into the correct canal. On that point I feel that I can offer you one of the most conclusive authorities that can be presented. I had occasion yesterday to refer to the great authority of Sir Travers Twiss, not simply as an English publicist, but as an advocate of Great Britain in defending against the United States her title to the North-West Coast. I think I am keeping in bounds when I say that no Englishman, living or dead, has ever had a more comprehensive and perfect knowledge of this subject than Sir Travers Twiss. Practically and scientifically, he has written a book as the advocate of Great Britain. Any ARGUMENT OF HANNIS TAYLOR. 597 statements that he gives solemnly in this book against her interests in clear and explicit terms seem to me should carry considerable weight with this Tribunal. Now, I want to read from Sir Travers Twiss on the identity of the southern line of Russia, as defined in the Treaty of 1825 between Russia and the United States. I tried to demonstrate yesterday, by his authority, that under the Treaty of 1818 the two countries had pooled their issues, and that they had agreed among themselves that whatever title the United States had on that 535 coast should be the title of Great Britain. And, therefore, there was every reason to believe that Russia should have made the same provision against both. WTiat earthly motive could have induced Russia to make an eccentric divergence in the two boundaries, so that there would be a little triangle about 6 miles in width at its base, and 70 miles in height, intervening between the boundary of Great Britain and that of the United States ? Well, I read first from p. 4. He is describing now the general conditions of this coast:— The most northerly, commencing at Behring's Straits, and of which the extreme southern limit was fixed at the southernmost point of the Prince of Wales's Island in the parallel of 54 degrees 40 minutes north, by Treaties concluded between Russia and the United States of America in 1824, and between Russia and Great Britain in 1825, forms a part of the dominions of Russia; whilst the intermediate country is not as yet under the acknowledged sovereignty of any Power. Now, that is his first general statement, that the 54 degrees 40 minutes parallel fixed the line by Treaties between Russia and the United States of America in 1824, and between Russia and Great Britain in 1825. But later on he gives us something that is much more definite and explicit on the same subject. || I read from p. 382:— Both the United States, however, subsequently to their acquisition of their derivative Spanish title, and Great Britain, have recognized, by separate Treaties in 1824 and 1825, the territorial rights of Russia as far south as 54 degrees 40 minutes north latitude, founded on the use and enjoyment of the coast by Russian subjects, during the intervening period between Vancouver's visit and the publication of the Imperial Ukase of the 16th September, 1821; so that the rights of Great Britain to form settlements under the Convention of the Escurial are thus limited by her own act to the parts of the coast beween 38 degrees and 54 degrees 40 minutes, and the United States, by a similar act, have confined their derivative title to the same northern boundary. Here we have the most explicit and detailed declaration that by the Treaty of 1824 and 1825 the boimdary of Russia as against Great Britain and the United States was identical and that it was fixed at 54 degrees 40 minutes. Why should Sir Travers Twiss, as the advocate of Great Britain, defending, her contentions as against the United States, have taken so much pains in two places in his advocacy of Great Britain's claim to make, in such terse and positive English, the admission which we claim? There was no sort of controversy at this time on the point—and here we have the calm declaration of one of the most eminent English publicists who has lived since the time of Sir Robert Phillimore— construing these two Treaties. If there is any attention to be paid to that avowal, if it is true that that line is at 54 degrees 40 minutes, as Sir Travers Twiss says, then it marches right into the mouth of the true Portland Canaf and relieves any possible doubt that might be left upon this subject. Upon the question of Tonga ss Island, of which something has been 598 ALASKAN BOUNDARY TRIBUNAL. attempted to be made, I shall say only a word in passing because I think that is a mere make-weight that was simply taken by Russia for convenience as one of the points for trading and had no relation to the question of fixing the boundary, and has no kind of weight or authority one way or the other. The next question is as to what course should the line take from* the line of commencement to the entrance of Portland Canal? The minute that we solve the question as to what Portland Canal is that question is answered, and it has been to that subject that I have been devoting myself for what, I have no doubt, seems to you a very long time. So if I have made good the contention of the United States that the real channel is the real Channel—the navigable channel— and the channel so recognized by the British Admiralty— if those maps are correct, and the interpretation which I have endeavored to put upon Vancouver is correct, then that question is answered. Mr. Lodge. Mr. Taylor, before you leave that point I under- 536 stood you to state that " canal' was the technical expression for estuaries or fjords of the character common on the Alaskan coast. Mr. Taylor. Yes, Sir; I gave authorities. Mr. Lodge. Can you tell me what the authority is for that ? Mr. Taylor. Well, I read you; I can cite to your Honour again— it was from the " International Geography " I read. The President. Of what date? Mr. Taylor. It is within recent years. The President. That does not say that it generically means that " canal " means that. Mr. Lodge. You did not find your note at the moment, and if you will kindly point me to the authority you give for that—-— Mr. Taylor. I will go back to that again. Mr. Lodge. Page 29 of the American Argument. Mr. Taylor. Well, the particular quotation I read:— Along the coast of Southern Alaska and British Columbia, submergence has led the sea far into 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. That is the " International Geography," from the article by Professor Wm. M. Davis, p. 667. Mr. Lodge. Well, do vou understand that that intends that the word " canal'' is used under any circumstances—is used as a technical expression for the species of estuary? Mr. Taylor. I so understand it, Sir. I will get that book, and there is a very much larger treatment of the subject in it. Mr. Lodge. I should be very gl^d if you would. Mr. Taylor. Yes, I will get that book. I did not have it out because I thought there would be no contestation whatever of that point, and that the word " canal " had that technical meaning on that coast, as was clearly shown in the short reference; but I do not think there can be any kind of difficulty on that point. Mr. Lodge. I have sent for the " Century Dictionary "—I find that the Foreign Office has not got the " Oxford Dictionary "—and I find no such definition given for the word " canal" in that dictionary. Mr. Taylor* Being a geographical term. mjmm ARGUMENT OF HANNIS TAYLOR. 599 Mr. Lodge. Whereas I also find that the Russian w-ord for " channel " is " canal "; so that the word " canal " was undoubtedly applied by the Russians to all the channels on this coast. Now, I should like to know if it is a technical word—it seems to me a point of some importance-—if it is a technical word, as you allege, I should like very much to hear the authorities on that point if you would be good enough to bring them in. I^i Mr. Taylor. I am very glad your Honour called my attention to that: I did not imagine that that question would be contested 537 at all. The term " canal 1! is used by Vancouver, and one of * «/ 7 the best practical illustrations is, that he uses it in reference to all these greater canals, and then says:— £p| In the forenoon we reached that arm of the sea, * * * which, in honour of Bintinck, I named Portland's Canal. ^f^p^ I I will now give the following conclusive definition from " Webster's International Dictionary ":— Canal [Add.} 3. A long and relatively narrow arm of the sea, approximately uniform in width; used chiefly in proper names, as Portland Canal, Lynn Canal [Alaska].—Supplement, p. 34. That should be taken in connection with the " International Geography " heretofore cited. The President. Perhaps you will get us that book, and we shall be able to judge first as to the authority of it, and, next, ascertain that which is very important, the date of it. Mr. Taylor. I will be very glad to do that. The next question is, " 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 those points?' I intend to go very briefly into the answer to that question. We have arrived at one practical result, that the line follows the course of the canal up to its head. Then comes the divergence. The contention of Great Britain is that that is the end of the line, and that its future progress towards the 56th is not to be influenced by the direction which it has followed up to that point. The contention, on the other hand, of the United States is that it must follow the general direction, and two lines have been laid down by the United jStates which diverge so little as to leave an inconsiderable wedge-shaped piece, which grows out of the difference of direction by following up the valley in one instance, or following exactly the line of direction of the canal. But that divergence is too slight to be a matter of any practical importance. We have had everything said that ingenuity perhaps could suggest in the way of verbal criticism upon the French text. I do not feel that I can add anything to that discussion. I think that the criterion by which that question should be tried more than any other is this— what is the testimony, what is the consensus of view of the map makers from 1825 down to this time ? Somebody must have known after that Treaty was entered into whether that line was to sweep along as we find it in a north-easterty direction to the 56th, or whether it was to go in that strange and eccentric w**y 57 miles, until it touches the ends of an imaginary line of mountains which is to be constructed on artificial principles. I say that the testimony of the map makers after that time is the most potent testimony which should guide the mind in the interpretation of the direction of that 600 ALASKAN BOUNDARY TRIBUNAL. line. And in looking over the maps subsequent to the Treaty illustrating a wide strip of territory on the mainland sweeping round the heads of the bays and inlets, some of them bounding such a strip by mountains, others with the alternative line only—(rom an observa- 7 ms tion of those maps I find that the overwhelming consensus is a line always sweeping to the north-east from the head of Portland Channel substantially as in the Ajnerican contention. Then I desire—I will not trouble the Court to read them—but I desire to submit here a list of twenty-eight maps, compiled from the leading nations of the world. There is established here the most overwhelming consensus of opinion, and when you look at those maps, if we had some physical appliance by which we could look at those twenty-eight-maps in succession, we would see two things: first, that this lisiere, with a width of about 10 marine leagues, begins by sweeping around the heads of all the bays and inlets, with a line extended from the head of Portland Canal easterly to the 56th with a consensus of view which is absolutely unbroken down to the Dawson map—so-called—of 1887. 538 'W Maps subsequent to the Treaty illustrating a wide strip of territory on ^\ the mainland sweeping around the heads of bays and inlets, some of i them bounding such a strip with mountains, others with the alternative line only. Line always sweeping to the north-east from the head of Portland Canal, substantially as in American contention. 24 25 26 27 28 Part of Russian Admiralty Chart No. 1266,1826 Part of Arrowsmith Map. London, revised to 1833 Brae Map of North America. Paris, published 1833 Part of Map of Noi*th America. Philadelphia: Tanner, 1839.. Greenhow. Philadelphia, 1844 _ «. Duflot de Mofras. Paris, 1844 Bouchette Dept. Sur. Gen. S. C. 1853 (boundary of BritMl and Russian territory). Meircator Map (Spanish). 1857 Map drawn by Devine (Canadian). 1857 Map in Twiss' "Oregon" Tikhmenieff's Russian Map. St. Petersburgh, 1861-1863 Mercator's Map of the World. Gotha,1863 Russian Admiralty Chart No. 1345. Revised to 1864. _ British Admiralty Chart No. 2461. Corrected 1866 (boundary between British and Russian te3rritory). United States' Coast Survey Map. 1867 Sir George Simpson's Map around the World. 31847 S. S. Hill's Travels in Siberia. London, 1854 House of Commons' Maps. 1850andl857 Part of Official Map of British Columbia from Parliamentary "Blue Book." 1S>7. Imray and Son's Map. London, 1869 Official Canadian Map (Dpt. Int.). 1878 Map: Manitoba, Keewatin, British Columbia. Montreal, 1880. Official Canadian Map published by Department of Railways. 1882. By same authority. 1883 British Columbia and North-West Territory (Stanford's London Atlas, 1887). Part of Map of Western Portion of Dominion of Canada, Manitoba, British Columbia, Mr. Johnston's Royal Atlas. 1894. Part of a Map of the Western Part of the Dominion of Canada in " Scottish Geographical Magazine." 1898. Part of Map of British Columbia, Plate 39 E of Black's General Atlas. 1898. United United United- United United United United States' States' States' States' States' States' States' Atlas, Atlas, Atlas, Atlas, Atlas, Atlas, Atlas, No. 11. No. 12. No. 13. No. 14. No. 15. No. 16. No. 17. United States' Atlas, No. 18. United States' Atlas, No. 19. United States' United States' United States' United States' Atlas, No. 20. Atlas, No. 21. Atlas, No. 22. Atlas, No. 23. United States' Atlas, No. 24. United States' Atlas, No. 3£| United States' Atlas, No. 34. United States' Atlas, No. "5. United States' Atlas, No. 36; Line as to Portland Canal. United States' Atlas, No. 37. United States' Atlas, No. 39. United States' Atlas, No. 40. United States' Atlas, No. 42. United States' Atlas, No. 43. United States' Atlas, No. 44. United States' Atlas, No. 45. United States' Atlas, No. 4fl| United States' Atlas, No. 47. 539 There is nothing, so far as I know, or have been able to ascertain, upon any map, in any language, prior to 1887, that even gives any colour or countenance to the extraordinary line, 57 miles long, which is run in this peculiar fashion from the head of Portland Canal down to the head of the imaginary line of mountains artificially constructed. So you must set aside an unbroken consensus ARGUMENT OF HANNIS TAYLOR. 601 among the map makers of the world, interpreting this Treaty from 1825 down to 1887, before you can get the slightest colour or basis for the deviation involved in the British line. Mr. Aylesworth. Let me know, Mr. Taylor, as to the importance you are attaching to maps, whether you would regard the testimony of maps as of any higher weight or different character than statements of writers discussing the Treaty, and stating where, in their opinion, the boundary lay. Mr. Taylor. I will answer your Honour in this way; the authority ' would depend upon the authority of the individual map as it would upon the authority of the individual man. Mr. Aylesworth. Yes. Mr. Taylor. Suppose we had spread out those twenty-eight maps Mr. Aylesworth. Yes, equivalent to statements of the writers. Mr. Taylor. Yes; that would be like twenty-eight people, each one having its own character; each map is a part of the history of the time, and its value depends upon the reputation of its maker and upon its intrinsic excellence. We might say that in almost every one of those maps there was some serious mistake; and so if we had twenty- eight men examined as witnesses, we might say that there was some serious moral defect in either one of the twenty-eight. But if we found those twenty-eight men united in one consensus, if they stated one fact without any deviation, the conclusion would be almost overwhelming, and although exceptions could be taken to the characters of the individual men—that the uniting of these individual minds upon one single proposition would be almost overwhelming. So I say when we take twenty-eight maps of varying degrees of authority and accuracy, and when we see that during the sweep of years from 1825 down to 1887 there is a perfect consensus, a perfect agreement in general terms—there may be a little deviation one from the other— but where the general picture is set forth by all as substantially the same, I say that such an interpretation of the Treaty as to where that line should run from the head of Portland Canal down to the Dawson- Cameron invention—I say that that concurreut testimony is final and conclusive. Now we come to the next question:— Was it the intention and meaning of the said Convention of 1825 that there should remain in the exclusive possession of Russia a continuous range, fringe, or strip of coast on the mainland, not exceeding 10 marine leagues in width ? It is impossible to discuss that question with any completeness without considering it in connection with the sixth, which in a logical sense at least is a part of it, and, as I have some special comments to make upon that Section 6,1 would like to call the Court's attention specially to its terms. Mr. Lodge. Mr. Taylor, before you take up that new subject—I may have missed it—I tried to listen to your argument closely, but I may have missed your dealing with the passage in Vancouver's narrative which is printed at p. 146 of the British Case Appendix. Mr. Taylor. If your Honour will indicate to me the passage. # Mr. Lodge. It is the one in which he speaks of the west point of Observatory Inlet; you, no doubt, covered it, and my attention may have been withdrawn. i8S% • 602 540 ALASKAN BOUNDARY TRIBUNAL. Mr. Taylor. My contention was twofold. First, that when we have established the proposition that Portland Canal meant the whole body—and there I would like to say, in connection with what has just been said, that we are relieved of all difficulty as to the sense in which Vancouver used the words " Portland Canal," because he defines it for us—he says it was the " arm of the sea " that he named Portland Canal. Any dictionary which you may consult leaves you in no difficulty as to what is the meaning of " arm of the sea." The general equivalent to " arm of the sea " is " fiord." So Vancouver defines his term for us when he uses it. He says, " This arm of the sea I name Portland Canal." So he fixed it beyond all question that he meant by " Canal" in that particular instance " the arm of the sea," which is equivalent to " fiord." Mr. Lodge. That was not the point. Mr. Taylor. I am saying that incidentally in reference to the other question. I am coming to the point then of what he does afterwards, when he names Observatory Inlet and calls it Observation Inlet, ^ffe uses the word " branch." Well, that word " branch," we claim, shows conclusively that it was a subdivision of the larger whole; that, we say, is carried out by his maps, and was a subdivision of the larger whole. We say that the use of the term " inlet 1 also indicates that it was a subdivision of the larger whole. Therefore we say it is not of the slightest importance where he puts Point Wales; it makes no difference where the Observatory Inlet may end if it is a subdivision of the larger whole; that is of no importance whatever, because it does not contradict the one point that we want to establish, and that is that he considered Portland Canal the whole, of which Observatory Inlet was a subdivision. Mr. Lodge. Of course, I appreciate the strength of your contention ; I see what your contention is. The precise point that I wanted to hear you upon a little more fully was that line on p. 146 of the British Appendix, near the bottom:—He " did not reach the entrance of Observatory Inlet until 2 o'clock in the morning of the 20th, a distance of not more than 13 leagues from Salmon Cove," which brings it down, as I understand it, opposite Point Wales. Mr. Taylor. That is very true. Mr. Lodge. I wanted to hear *yoxL particularly upon that point of denominating that entire tract of water from Salmon Cove to Point Wales " Observatory Inlet." Mr. Taylor. Our answer is that the effect of that utterly disappears the minute we establish that Observatory Inlet, no matter where it ended, was a subdivision of the total body of water. If that is true; if it is a subdivision of the total body, it does not make the slightest difference where the mouth was. The President. You say it is a local name for one channel out of the inlet; that is all you contend? Mr. Taylor. A local name; it has no significance, because all I want is to get a predicate upon which we can found the principle of international law; and if we have a body of water with two channels the operation of the law is irresistible upon the larger one. Unless you can establish a special and conventional agreement, which shows there was an intention to suspend the law, and to designate the smaller channel Ijy a conventional rule ARGUMENT OF HANNIS TAYLOR. 60S Mr. Lodge. You will excuse my asking you again to speak of it. Mr. Taylor. I am very happy your Honour gave me the opportunity. Mr. Lodge. It seemed to me to be a most important point. 541 Mr. Taylor. That was the conclusion to which my whole Argument was directed, to showing that his narrative was mere field notes, to be revised and corrected. We could not grasp the tableau in his mind until we saw his final picture as made by the maps; and whatever little confusion we might have been under by looking at his first Memorandum, when you hold up the map, on which he shows you, beyond all question, that Observatory Inlet was a mere branch, and fixes it by the lettering and subdivision—then it does not make the slightest matter, where you carry this mouth, because it is still a subdivision of the greater whole, and then the significance of that point absolutely disappears. That is the whole result I was driving at; and if I am right in that, the question solves itself. Mr. Lodge. I understand that is the point. Mr. Taylor. It solves itself when the principle of international law is applied, and the only remaining hope of Great Britain on that branch of the Case is to prove a Conventional Agreement. The heart of our contention is that there was no special agreement. Great Britain, in her effort to prove a special agreement, reaches down from the Treaty to vague expressions two or three years before it was made to show that the negotiators intended to designate the smaller channel, and that was the explanation of the desperate struggle to get out of that interpolated edition the word Portland Channel interpolated after Vancouver was dead; because that is one of the vital links, and when she loses that, as she must lose through the impossible contention which she is setting up, then the main ground work of all that fabric is gone. Mr. Lodge. I wanted to hear you, merely as you have spoken with reference to that precise point. Mr. Taylor. I am very glad your Honour has given me the opportunity to re-express what I had to say upon that subject. Mr. Aylesworth. Well, Mr. Taylor, let me see if I have grasped the idea. Is it that the stretch of water between Point Ramsden and Point Wales is common to both Observatory Inlet and Portland Canal? Mr. Taylor. Well I would rather put it this way—that the whole body is one entity, and tha£ at Point Ramsden Observatory Inlet begins and goes off as a branch. Mr. Aylesworth. But Observatory Inlet stretches down to Point Wales. Mr. Taylor. In one sense it might be so. The President. Surely your other argument was far the better one, that the whole thing is called Portland Channel? Mr. Taylor. Portland Canal. The President. Portland Canal, and that Observatory Inlet goes down to the sea, but still is part of Portland Channel? That is the strongest way of putting it. Mr. Taylor. It might be put in that way if it were not for Vancouver's maps. 604 ALASKAN BOUNDARY TRIBUNAL. Mr. Aylesworth. That south branch was common. Mr. Taylor. That is, was one whole. That is perfectly consistent according to our theory. The President. If you say it ends at Point Ramsden this passage is terribly against you, you know; but we understand your point. 542 Mr. Taylor. If any confusion should occur in the tentative and preliminary statement of Vancouver, then it must be the revised form of his work as interpreted through his maps that should be the criterion to fix what his ultimate intention was. I had just reached, and I would like the Court to permit me to direct its attention to, this particular, point, because I think there has been some obscurity in it as to the true meaning of this Section 6:— If the foregoing question sliould 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 width of the lisiere was to be measured (a) from the line of the general direction of the mainland coast, or (6) from the. line separating the waters of the ocean from the territorial waters of Russia, or (c) from the heads of the aforesaid inlets? I agree with the Attorney-General in his contention that (1) was first a statement of a general proposition, and then that (2) was a re-statement of it, and then we have (2) divided into three conditions. Aoid I beg the Court to note the fact that I say " conditions," and not " alternatives." Our friends on the other side have presented us with three alternatives. I am afraid to use that expression; because there used to be a mighty man in this kingdom named George Washington Moon, who wrote two little books, one called the " Dean's English," and another called the " Queen's English," and he was the terror of my youth; and George Washington Moon said it was a crime against the Queen's English to speak of three alternatives, he said the expression was an Irish bull: and I hope the Solicitor-General will listen to what I am saying, hecause I want to protect him when he comes to speak, against the crime of putting out upon us in that form what has been put into the printed Argument. So I speak now of the three conditions which that part of the Treaty contains. When we take 5 and 6 together we cover the entire subject of territorial waters involving the meaning of that vital word " coast." And here as we approach what may be called the very centre of this Case, I would like again to refer to the remark made by his Lordship as to the difficulty of applying the general rules of international law to a coast which is so peculiar. We have to begin our enquiries here with physical geography, and the first question on that head which we have to consider is this—if we have a coast like that which is fringed with an archipelago of many islands, what difference does that make in the application of international law to that coast? I notice that Mr. Charles Sumner, in his great speech upon the adoption of this Alaskan Treaty, says that the same island formation that we have in the West Indies—down on the other side of the continent—is reproduced in this island system upon the coast of ■^ ARGUMENT OF HANNIS TAYLOR. 605 Alaska. And it is a little singular—perhaps a natural coincidence— that when we turn to a great English publicist for a rule to interpret for us the manner in which we should deal with a case of this character, he should go for illustration to the coast of Cuba to find a parallel archipelago, so that he can illustrate to us how international law shall deal with a coast of this kind. And now I beg leave to state to the Tribunal a very simple and short proposition which I consider of vital interest in solving this problem. If it is true, it is a complete solvent of all the difficulties involved in this problem. It is terse, it is compact, and, I claim, rests upon the highest authority; and if it is sound, it vindicates every position which we take as to " coast." If it is false, the Counsel for Great Britain can deal with it in a very simple and concrete form, and eliminate it from the controversy. That proposition is this: that the question of what a coast is is purely a question of international law. And it is necessarily so. Nations in their relations to each other present frontiers. That is the point of contact; that is the place where questions of international law arise, and there is 543 nothing so vitally important as a definition by international law of what a coast is. It is a highly technical question, and one of supreme importance in the international system. And, yesterday, when I was listening to my distinguished friend on the other side giving us a definition of what " ocean " is, by the impression of some gentleman walking down from the interior, and looking at it, and giving us his kerbstone opinion, it made me think, that possibly, if his Lordship was passing upon some intricate question of contingent remainders, that he might send for some workman in the courtyard to come in and tell him what a contingent remainder really was. Now, we do not want any kerbstone opinions, or opinions from people in the street, upon one of the most highly complicated and scientific principles of international law. This is one of the places where we must escape from the empiric. We must get down to the basis of scientific definition of a subject which is exclusively within the jurisdiction of international law. And I desire to state this simple proposition to the Tribunal, so that it may be accepted if it is sound, and so that it may be exposed if it is unsound. What I desire to submit to the Tribunal is this, that there are but two possible coast lines known to international law. One is the physical coast line traced by the hand of nature, where the salt water touches the land, which exists for the purpose of boundary: the second is the political coast line—that invisible thing superimposed upon the physical coast by the operation of law, which exists for the purpose of jurisdiction. The proposition is so simple that nobody can misunderstand it: that there are but two coast lines which international law knows or deals with; one is the physical coast made by the hand of nature through the contact of the salt water with the land, and that exists for the purpose of boundary; the second is the political coast line, which the law superimposes upon the outer physical coast for the purpose of jurisdiction. They exist separate and apart, and there is no chance of confusing one with the other. The President. I follow that, Mr. Taylor, and it is a very useful argument indeed. I should like you just to tell us in which of those categories—how you would deal with an estuary like the Orinoco, 606 ALASKAN BOUNDARY TRIBUNAL. for instance? I quite follow your argument, but I should like to know how you apply it. Mr. Taylor. That is the very purpose of my argument—to answer your query. I am just at the end of the predicate. Now, to make it clear, although it is one of those self-evident things that proves itself. There is always a certain sanctity about a thing that is read out of a book, especially if you read it out of a French book or a book written in French. But your Honours knew that Rivier, the great Swiss publicist—although he writes in French he is not guilty of being a Frenchman, if there is any guilt in that condition. Rivier, in his treaties, which is so authoritative throughout the world, has given us a fine simple statement in his " Principes du Droit des Gens," of this definition I am speaking. Speaking of " la mer littorale " The President. What page are you reading from? Mr. Taylor. I am reading from the brief of the United States. The President. What page will it be? Mr. Taylor. The United States' brief, p. 17. Speaking of " la mer littorale." Now, this explanation is especially important. " Le caractere d'un accessoire "—and it cannot be taken independently of the coast (" independamment de la cote.") Speaking of " Ies frontieres," 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." The distinction between the physical and political coast line is drawn with a distinctness that cannot be mistaken, and the fact that the poltical coast line is a mere accessory to the physical coast 544 line—that it is something superimposed upon it—cannot be mistaken. As a practical illustration I desire to call the attention of the Tribunal to the coast of Maine, which gives one of the best object lessons for illustration. If you take the coast of Maine from the south-west point up to the north-east, and take what would be called the trend of the coast as the political coast line runs it is about 400 kilom. long. If you take the physical coast line with all the sinuosities where the salt water touches the line it is about 4,000 kilom. long. Let me read the brief description of it from the 1 Nouveau Dictionnaire ":— On the Atlantic Coast Maine presents an uninterrupted succession of peninsulas, 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 kilom. in a straight line from the south-west to the north-east—so deeply cut up that we measure on it more than 4,000 kilom. of contact with the deep sea. All these bays of Maine are also fjords— And I will call the attention of the Court, as we were speaking of that definition— all these bays of Maine are also fjords, 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. Here we have a good basis for illustration. The coast of Maine, as this geographer expresses it, fixed by the contact of the deep sea ^SB^" ARGUMENT OF HANNIS TAYLOR. 607 with the land—that is, the physical coast line of Maine, as made by the hand of Nature—is about 4,000 kilom. long. You must have the physical coast line as the basis. It is on the physical coast line that the international law superimposes as an accessory, as Rivier expresses it, the political coast line, which cuts across the heads of all the bays and inlets. So when you take the political coast line there, the 3- mile zone, the barrier which the United States presents by international law to he world, the political coast line is about 400 kilom., and the physical coast line is about 4,000. Those two entities are too distinct to be mistaken. So when we have to deal with the coast— no matter whether it is the plain normal coast or one with an archipelago—the very first thing we have to settle, that is, the starting point of the controversy, where do we put the political coast line? That is the first question, and your Honours will notice a map before you in which, according to our contention, the political coast line is outside of this.archipelago. Why is that put there? The English publicist Hall, to whom I have often had occasion to refer, has been good enough to solve that question for us in a way which cannot be mistaken: On the south coast of Cuba there is the Archipielago de los Canarios, stretches from 60 to 80 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 inclosed 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 banJcs. I would be very happy—it is not very long—for you to see just what Hall says, for I think it will be helpful, if you will permit me to read it, to see just what criterion he lays down as to the political coast line in a country where there is an archipelago:— 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 form a line more or less parallel with land or compose systems of their own, in both cases inclosing 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 545 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 60 to 80 miles from the mainland to La Isla de Pinos; its length from the Jar- dines Bank to Cape Frances is over 100 miles. * * * In cases of this sort, the question whether the interior waters are, or are not, lakes inclosed 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. At an earlier day we had a great English authority in the Case of the "Anna," an Admiralty opinion pronounced by Lord Stowell (Rob. Adm., 373), in which the question arose at the mouth of the Mississippi River, whether the mud islands which are formed away out in the Gulf—whether that is the outside line of the State of Louisiana Lord Stowell in that notable case, a case of capture dur- ALASKAN BOUNDARY TRIBUNAL. ing war, held that you had to go to the uttermost limit of these mudbanks in order to find the point from which to measure the political coast line. Now, I have gone into that explanation simply to make the general subject more precise and familiar; but it was unnecessary, because the British Case has given us a positive and emphatic admission that the coast line in this Case—the political coast line—is outside of the Alexander Archipelago. We have the admission in the British Argument that our statement that that is so is the truth. The settling of that fact is of immense importance, because just as it is true in physics that two bodies cannot occupy the same place at the same time, it is true in international law that a political coast line cannot be in two places at the same time. If there is a political coast line outside of that archipelago there cannot by any possibility be a political coast line inside of it. Every nation sets up a rampart of that sort against other States outside of it, for one purpose, and for one purpose only. If, then, the political coast line is situated outside of the archipelago, the inevitable result—and if there is any one fact that I can impress upon the Court, I would rather lay emphasis upon that than any one in the Case—that if the political coast line is outside that archipelago, the interior coast line marked black is the physical coast line defined by the hand of Nature, where the salt water, touches the land. When we take the authority of Rivier explaining those two coast lines, he says that it is the physical coast line that exists for the purpose of boundary, and that it is the political coastline that exists for the purpose or jurisdiction. Nothing can be more illogical, nothing can be more indefensible, than a system of organized confusion which attempts to mix a political coast line with a physical coast line. Nothing is more indefensible than the attempt to put a political coast line outside of that archipelago, and at the same moment to assume that there is a political coast line inside of that archipelago. And the contention which I desire most to emphasiz|| is that this attempt of Great Britain to establish a coast line or to run that line of mountains parallel with what is called " the general trend of the coast"—is basing it upon an assumption which has no existence in international law, and cannot have any existence in international law. There is no such thing as a general trend of a coast apart from the political coast. It is a contradiction in terms; it is an anomaly in logic and in law to talk about any general trend of the coast as a thing recognized in international law, unless it is the political coast line. The political coast line may have a general trend. Why? Because it can cut across the heads of bays and inlets; and it*is the political coast line alone that has the power to cut across the heads of bays and inlets. So it is a contradiction in terms to talk about a general trend of the coast, or to talk about it as a thing that international law recognizes, unless it is where the political coast line exists. There has been an anomaly; there has been a confusion in this Case throughout. It is put down in the British Argument, but it is put very gingerly and very tenderly, that there is not only a political coast line outside of the archipelago, but a political coast line along the lisiere, and it is only by that fact that this muddled sixth question can be explained. And that is something to which I would like to ARGUMENT OF HANNIS TAYLOR. 609 call the attention of the Court. First, I will refer to the British Argument, and I want to read to you from p. 29:— 546 In the same way, it is not necessary to controvert the allegation made on p. 31 of the United States* Counter-Case, that the " political coast" in this region at the present time follows the islands. There is the admission that it is outside the islands:— This is so because the mainland facing the islands is the United States' territory also. At the time, however, when this Treaty was being negotiated Russia had obtained, or at least obtained very early in the negotiations, a recognition of her right to the islands. It remained to consider the mainland opposite, and I ask the special attention of the Court to this statement:— 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 1 political coast" of its own. So here we have the remarkable contention that it is possible, after the political coast line is out here, for this interior coast [indicating on map] which borders what Hall properly calls the salt water lakes that there can be a double political coast line—one inside. I respectfully contend that that is one of the most unique and impossible contentions that can possibly be suggested to the mind of a publicist. The idea of the existence of an interior political coast line in here when it is admitted that the coast line is out here—outside of the archipelago. The President. Are you not going rather too far ? It is not necessary for your argument. There is for some purposes a political coast line between the islands and the mainland. Mr. Taylor. If your Lordship please, my purpose is respectfully to contend that no such thing is possible, and that it is not supported hy any authority in this world or by reason. The President. Very well. Mr. Taylor. That is the very object of my demonstration to make good that position. The President. I do not think it is necessary for you to go so far, but still Mr. Taylor. Well, I do not hesitate to go so far if your Lordship please, because I am so confident of the soundness of my position. The President. Very well. Mr. Taylor. It is impossible for my mind to grasp the idea that an interior political coast line can exist for any purpose—because the minute you go behind the political coast line out here, as Hall says, all within is a salt-water lake, it is all territorial water; every spot and part of it is territorial water just as an interior lake in Russia would be territorial water. The political coast line could not exist within, because the raison aVetre of a political coast line is simply a rampart that a nation puts out against a foreign nation. There is no principle upon which it can exist. There is no authority by which its existence has ever been countenanced. What I claim is that it is this confusion of thought in the British Case—the assumption of the existence of something in international law that no book in the world has ever said existed—that is the fundamental confusion which underlies this interior line which Great Britain is attempting to set up. S. Doc. 162, 58-2, vol 7 9 ALASKAN BOUNDARY TRIBUNAL. And that is the explanation of that Section " B' in this question. Now, I would like to read it again: (A.) From the line of the general direction of the mainland coast. That means such a line as is drawn now on the British maps. 547 The second section is: From the line separating the waters of the ocean from the territorial waters of Russia. That Section " B " is on the theory that there is a political coast line along the lisiere and that it divides the territorial waters of Russia from the ocean here. The third section is the measurement from the headlands. It is only upon the assumption that it was possible that a political coast line could be in those interior waters that the idea of this line following the general trend of the coast could be given a plausible existence. And what I respectfully contend explodes the whole British theory and overturns the coast line they pretend follows the trend of the coast. It is setting up a phantom of which international law knows absolutely nothing—something that cannot be supported by any authority in the world, and one which cannot exist upon any principle It is to that point to which I am trying to direct the attention of the Tribunal—to the impossible assumption of the British Case in taking the general trend of that interior coast in order to build up the theory of a political coast line in those interior territorial waters where it cannot possibly exist. And to make what I say more concrete, will the__ Court be good enough to look at these red lines on this large map ? I am going to ask them to look at the British map—that is simply a reproduction of the British map showing the line. The President. We understand. Mr. Taylor. What does that mean? It means that at a certain point they say that is 10 marine leagues above the place where Lynn Canal is 10 miles wide, that is 10 marine leagues from a place where it is 6 miles wide. What does that mean? It means that the whole doctrine of a political coast line as to the heads of inlets can be applied in here where a political coast line cannot by possibility exist. The whole thing is based upon an organized confusion in defiance of every known principle of international law. (Adjourned for a short time.) On resuming, - Mr. Taylor. Mr. President,—Since we have had rest and refreshment, I have reason to feel that it is a favourable moment, and I should like to take advantage of such a moment to make a special request. We are now at the very crux of this Argument, and if the Court will give me thirty minutes of its close and undivided atten- tion I will promise to cut the rest of my argument comparatively short. I think it will be a profitable investment for the Court itself, because if I can make good my proposition it will establish the American contention as to the western boundary of the lisiere, and demolish the English line; while if I state an unsound proposition and the contention can be annihilated great difficulties will pass out of the Case. Therefore, I make this special request. The simple proposition that I have been trying to emphasize is that this political coast line is outside that archipelago, and when a political coast line ARGUMENT OF HANNIS TAYLOR. 611 has been once established Jby a country as against foreign nations it is impossible for any political coast line to be established behind it. I say that that is a self-evident proposition, because according to the statement of Hall all these interior waters are nothing but salt water lakes. And it is no extreme statement, because if my proposition is true, this statement is true; it is just as irrational to talk about a political coast line in Loch Lomond as it is to talk about a political coast line back of that archipelago. If I am right one position is just as untenable as the other. So that I say if the British Counsel shall undertake to contend that under any circumstances or for any purpose an interior coast line can exist here they have to maintain their proposition on one of two bases: they have to support it by reason, or they have to support it by authority. It has to have something to rest upon. I say it is absolutely repugnant to reason, because the whole " raison d'etre " of the political coast line is a barrier or bulwark set up by a nation so that it may have territory for 3 miles from its coast just as if it were land for the purpose of protecting itself against 548 foreign States. That is the reason of its existence, and in the great case of the Franconia, where the most exhaustive investigation ever made in the history of international law was made, as to the existence of that line and its "raison d'etre,"nothing could be more clearly illustrated, if it requires illustration, than that the purpose for which it exists is the purpose of a bulwark against foreign States. The authority of Rivier, if authority is needed, is a demonstration ms 7 m7 7 that the political coast line is simply a legal creation; it is a fiction of law. It is an imaginary line which the law superimposes upon the physical coast line as a basis. But for the purposes of international law, instead of following all the convolutions and sinuosities of the coast, it is permitted to go across the heads of bays and inlets, and it is in that particular that the rlile of international law comes in as to the width of bays and inlets, either 6 or 10 miles. We are not encumbered with that question, because the British Case contends that they must be 10 miles, and we do not dispute it, and these outside inlets are 10 miles. So we are not encumbered with that question. It is a legal fiction imposed by the operation of law as an accessory, as Rivier puts it, to the political coast line. The minute you establish it, the minute you fix it, all waters back of it, whether they are waters in the Archipelago there of Alexander or the Archipielago de Los Canarios, of Cuba, they all became, as Hall says, saltwater lakes: they are just as much interior waters as the interior waters of Loch Lomond, and there is no earthly principle, so far as reason is concerned, by which any human being could claim that there could be a political coast line back of a political coast line. Then, if there is no reason for it, is there any authority for it ? I respectfully call upon the Representatives of Great Britain to go, if they can, and search the international jurisprudence of the world, and see if they can prove from the treatise of any publicist in any nation that anybody has ever put into any book anything in the way of authority for the proposition that a political coast line can exist back of a political coast line. I say that it is absolutely impossible upon the basis of reason or authority to establish or to give any 612 ALASKAN BOUNDARY TRIBUNAL. ggggig colour to the idea that such a thing exists. It cannot exist under the existing principles of international law. If that is true, the only coast line that can take the general trend of the coast is the political coast line. The interior coast line is a physical coast line, and has the character and attributes of a physical coast line which exists for the purpose of a boundary merely. There can be no conflict there of precedent or authority. A physical coast line is made by the hand of Nature where the salt water touches the land, and that is the explanation of the word " sinuosities." These people ' were dealing with a question of boundary; they were not dealing with a political coast line for the purpose of jurisdiction; they were dealing with a physical coast line, as Rivier says, for the purpose of boundary. Therefore, as the physical coast line must bear the marks put upon it by the hand of Nature, the physical coast line follows the sinuosities as Nature made them. And when you put the political coast line out here [indicating on map] it is impossible to have it there. The whole confused and fundamental misconception upon which this whole British line is based is that you can run a political coast line in here. And there you have a positive demonstration. To talk about a line going across Lynn Canal, whether it is 6 miles or 10 miles, becomes empty jargon unless it is a political coast line, for no other coast line can cross the head of a bay or inlet, and all this is unintelligible jargon in conflict with the very fundamentals of international law. It rests upon that fundamental confusion, the idea that there is a trend of the coast of which international law knows nothing. There can be no trend of a coast except the-trend where the political coast line is. If that be true, then the conclusion is irresistible that such is the coast—and there is no use in our confusing ourselves by the word " ocean." The primary inquiry is: What is the; physical coast? That is the technical question to be denned, and physical " coast " is where the salt water touches the land. The only difficult question that can arise is when a river flows into an arm of the sea. There is a point at which you can go up an arm of the sea into a river and reach a certain point where the sea ends. I must refer here to something in the British Case which would be very serious to us if it had any real foundation. We have the case of Peyroux v. Howard (1833), in the 7th of Peters, p. 343, the 549 decision of the Supreme Court of the United States, cited against us in reference to the point at which an arm of the sea into which a river opens ceases to be sea. When I came to read the 'case I confess I was somewhat amused because there were so many reasons which could be urged against its application. There is an old story about a young advocate who was called upon to defend a sheriff who was threatened by a rule nisi for not bringing a prisoner into court. In the zeal of his advocacy he gave twenty-three reasons to the presiding judge why he should not produce the body of the prisoner in court, and when he came to argue his case, with a great brief almost as big as one of ours, it was found that his first proposition was that the prisoner had been long dead, whereupon the presiding judge said that he would excuse him arguing the remaining twenty-two reasons. 1 shall not argue all of the twenty-three reasons I have against the. application of this Case, because the first one is that the Case in question has been long dead. Fifty-two years ago it was solemnly over- ARGUMENT OF H ANN IS TAYLOR. 613 ruled by the Supreme Court of the United States, and the principles upon which it was founded were eliminated from our national jurisprudence. The reason of that was this: In the early days of our history, when it became necessary to define the Admiralty jurisdiction of the United States., in that Case, and in almost every other, we wisely adhered to the rule of the mother country, and we took the rule as to our Admiralty jurisdiction as to the rise and fall of the tide. The men who lived at the mouths of the Hudson and the Mississippi assumed that the same rule should govern us which prevailed at the mouths of the Thames and the Mersey. The leading case under that rule was the case of Thomas Jefferson, in the 10th of Wheaton, p. 428, in which the English Admiralty rule was adopted, and we lived under that rule for forty years. Then when our commerce • mJ m/ extended to the mighty rivers, and the great interior lakes, where there was no rise and fall of the tide, lakes upon which great armadas could float if necessary7, some Western lawyer said, " This old English *> * m7 7 CD rule of Admiralty is utterly irrational as applied to this country "— that we should have a new test, that we should substitute the navigable character of the water for the rise and fall of the tide, and a great discussion took place in the Supreme Court of the United States, which is an epoch in our judicial history. The Court, speaking through Chief Justice Taney, said they would disregard the rule of the Thomas Jefferson Case, as no rule of property was fixed by the decision, and they rooted up and overturned the case of Thomas Jefferson, and this case, which was a mere satellite to it, and eliminated it from our jurisprudence, and established, instead of the principle of the rise and fall of the tide, the principle of the navigable character of the water as the test of Admiralty jurisdiction. But our friends on the other side have not lost anything in the world by the annihilation of the case in question, because if it was in full force it would not have the slightest application. It was a case testing the question whether Admiralty jurisdiction existed at New Orleans 110 miles, by the winding of the river, from the estuary. To avoid any possible question, instead of going 110 miles up some river beyond these inlets, we have stopped at a point at which there can be no claim or controversy. It would be just as easy to prove that the Admiralty Courts of Great Britain had no jurisdiction at the mouth of the Thames as it would be to prove that the water in question is not sea up to the point at which we claim. My distinguished friend Mr. Robinson likes to set up popular criteria as to the test of these questions. If, therefore, there is any doubt on that point I would like to call as a witness the Prime Minister of Canada, Sir Wilfrid Laurier, who, in the Canadian Parliament, discussing this question—and he used a word of which he seemed to be enamoured, about the " ocean terminus," which he repeats, I think, four or five times in one document—has told us what the terminus of the sea is at that particular place. Mr. Lodge. What page ? Mr. Taylor. I will just read it from the Appendix to our Counter- Case, p. 171. He says:— We had either to take the route by the Lynn Canal and Dyea, or the 550 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 614 ALASKAN BOUNDARY TRIBUNAL. 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 hou$e, 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 point 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 the 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. Now, I will not recriminate here; this is not the time nor 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. Under such circumstances Dyea was practically in American territory—at all events, in possession of the Americans, and, therefore, if we had undertaken to build a railway from Dyea to the Yukon country, we would have been placed at the mercy of the American authorities with regard to the bonding privilege. We would have been in this position: that though we had built a railway, the " ocean terminus " of that railway was not in our own country, and we could* not send a ton or a pound of goods over that railway unless we had the permission of the American authorities. Mr. Turner. The accepted pronunciation of the town there mentioned is Dy-a. Mr. Taylor. Thank you. But whatever we majrcall it, this I am simply giving as a popular interpretation, and it concurs exactly with the scientific, that the end of the head of the inlet is the ocean itself, the " ocean terminus," and if they had built down to Dyea a railroad, it would have been there; the " ocean terminus " would be right there where the technical rule of international law says that the ocean ends. I say that it would be just as impossible for an Admiralty lawyer of Great Britain to stand before this Tribunal and deny that the estuary of the Thames is a part of the ocean, the sea, as it would be to deny that the head of Lynn Canal is a part of the sea. The popular interpretation, as given by the Prime Minister of Canada, is in perfect harmony and accord with the definition of international law. Therefore I say, that if anything can be made the subject of legal demonstration, it is, that after the admission has been made that the political coast line is outside there, there can be no political coast line inside. If there is no political coast line in the interior waters, we have nothing to deal with but the physical coast line, and the physical coast line means the point where the salt water touches the land, and it is at that point that the ocean ends. If that be the sound law, unless that proposition can be overthrown—and that is the point to which I want to call the attention of the Tribunal—if the advocates of Great Britain cannot bring to you any authority that international law knows any coasts in the world except the political coast, and the physical coast-—my classification is exhaustive and complete. It is true or it is false; if the proposition is true it is a solvent of the whole question; if it is false let our friends on the other side bring authority to expose its fallacy. If, ARGUMENT OF HANNIS TAYLOR. 615 then, I have made that clear, then our contention as to the western boundary of the lisiere has been completely vindicated. The next question that we should consider is whether this lisiere was intended as a barrier, and whether it was the intention of 551 the Treaty-makers, that it should be substantially 35 statute miles wide except where it is narrowed by the approach of the mountains. Upon that subject I shall have very little to say, but there is one thought which to my mind is more cogent in that connection than any other, and as it will take a very brief time to state it, I would like to read to the Court a summary in the order in which they occur of the propositions in the negotiations as to the making of the lisiere. I want to entitle it " The Evolution of the Eastern Line or Boundary." First; The lisiere first proposed, and the mountains as its eastern boundary in counter-draft of Russian Plenipotentiaries (American Appendix Case,, p. 158, February, 1824) motive stated (" point d'appui"). Second: Amended proposal of Sir C. Bagot, who proposed as a substitute a 10-marine league line:— Thence extending in the same direction on the mainland to a point 10 marine leagues from the coast, the line would run from this point towards the north and north-west, parallel with the sinuosities of the coast, and always at a distance of 10 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. (Appendix to the American Case, p. 159, February, 1824.) Third: In view of the proposed resumption of the negotiations broken off earlier in the year, a third scheme was embodied in the " pro jet' of a Convention inclosed by Mr. George Canning to Sir Charles Bagot (No. 26, the 12th July, 1824), in which the seaward base of the mountains was proposed with the limitation that when they receded more than 10 marine leagues from the ocean, a 10 marine league line should govern. First suggestion of a limiting line. Fourth: Count Lieven, in rejecting that suggestion (July-August, 1824, American Case Appendix, p. 189), because of the possibility | that mountains chosen for boundary lines should extend by an imperceptible declivity to the very edge of the coast," said that " it is always the summit of the mountains which constitutes the line of demarcation." Fifth: After Sir Charles Bagot had been instructed to consent if necessary to a line along the summit, the Russians offered, in September, a counter-draft proposing a 10 marine league line without reference to the mountains. The lisiere (strip of territory) on the North-West Coast belonging to Russia, from Portland Channel to the point of intersection of the 139th degree of west longitude (meridian of Greenwich) shall not be wider on the continent than 10 marine leagues from the shore of the sea: (American Case Appendix, p. 194.) Sixth: When negotiations were resumed after the appointment of Mr. Stratford Canning, he was instructed by Mr. George Canning (the 8th December, 1824, American Case Appendix, p. 210) to adopt the mountains with an alternative boundary of a 10 marine league line. This, he said, Russians could not reject, because they had first proposed the mountain boundary. Count Nesselrode finally accepted HP1 616 ALASKAN BOUNOABY TRIBUNAL. the suggestion of England in that form. (Letter of the 13th March, 1825: Appendix to the American Case, p. 227.) That is the series of propositions in the order in which they occurred, and with the result stated. To my mind, the most cogent fact in that tableau of thought is that both sides made the proposition that the lisiere should be 10 marine leagues in width, regardless of mountains. For me that establishes the fact that the width was a fundamental consideration on both sides, because both sides proposed it. The only reason that was not fixed absolutely was that Great Britain in the end wanted a natural boundary of mountains, and she felt that if at any point they came nearer to the coast than 10 m/ A. «/ marine leagues she must have the benefit of that fact, specifying that if they departed from it the 10 marine leagues should govern. So, for me the central and fundamental thought in the transaction is that the lisiere should be substantially 10 marine leagues in width. And that is fortified by the array of maps made since the transaction, in which we see from the pictures on the maps that the universal consensus of mankind was that that lisiere should be substantially that mg width. I think the most conclusive thing that that was the common understanding of mankind is to be found in the fact that when 552 we bought this territory—British Columbia being the Party interested, the Party who would be apt to resist any effort upon our part to acquire this land, when the discussion first began in 1867 as to the purchase of this property by us,—in a very decided article that appeared in the " Colonist." in British Columbia 'the admission was made that such was the width of the lisiere. I should like to read from p. 180 of the Appendix to the Counter-Case. This is from the " Colonist " of British Columbia:— Our special despatch announces the ratification of the Treaty, whereby Russia agrees to sell, and the United States agrees to buy, all that tract of land lying north and west of the 60th degree of latitude, and known as the Russian Possessions in North America. The importance of this purchase cannot be overestimated. It opens to American enterprise the inexhaustible fisheries and the^ extensive fur trade of that region, besides giving the United States control of a strip of seaboard 10 leagues in width, from Fort Simpson to the 60th degree of latitude. Award that Power San Juan Island and Great Britain will have scarcely a foothold of coast on the Pacific that she can call her own, or with which, in case of war with our neighbour, she would not find it next to impossible to communicate. John Bull, in America, is being hemmed in by Brother Jonathan in a manner much more forcible than agreeable, and if the Duke of Buckingham really stated, as reported, that the cession of the Russian territory to the Americans is a matter of indifference to Her Majesty's Government, he was either ignorant of the subject on which he spoke, or the Home Government is trying to rid herself of her Colonies. The understanding between the United States and Russia is cordial, and although the cession of this territory does not indicate an alliance offensive between the two Powers, it would seem that Russia is preparing for trouble on the Eastern Question, and is endeavouring to buy the moral support and sympathy of America in the struggle which the whole world is aware must soon take place.. If it was not the common knowledge of all mankind that this lisiere was of the width which we claim, why should the neighbour who had the deepest interest in the question, in discussing our purchase, admit that that was what we were buying, and it was because of the extent of that valuable territory that they had reason to apprehend trouble. One word more on that branch of the Case. A good deal has been said on the subject of the lisiere not being an unbroken barrier because it is crossed by rivers. I think that when properly understood the ARGUMENT OF HANNIS TAYLOR. 617 permission which Russia gave to Great Britain to cross and navigate—because there was but one really navigable river across the lisiere, and that was the Stikine—is the most positive confirmation of our claim that it was a solid barrier. And it is a subject which bears a very interesting relation to the emancipation of the river systems of the world. You will all remember that international law was founded on the basis that every state through which a river passed owned it within its limits just as it owned a lake, and from the beginning of the modern international system the attempt of an upper state to pass through the river of another state to the- sea was a trespass, and it was under that inclosed system that if you went through your neighbour's river you had to pay toll, and it was on that close system that the European rivers rested down to the French Revolution. The first effort at emancipation was in the Congress at Rastadt, 1804, when the Rhine tolls were abolished; then, in the making of the Treaty of Paris in 1814 the cause was advanced, and in 1815 in the Treaty of Vienna the whole European river system was emancipated. I state that to show what was the condition of the law of nations as to the international right to traverse a river at the time this Treaty was made. So when Russia's title was fixed to the Usiere, Great Britain had no more right to go through the Stikine to the sea under the acknowledged principles of international law than a person would have a right to pass through this house without the permission of its custodian. The fact that Russia gave to Great Britain a special licence by Treaty to pass with her boats practically only down the Stikine, because that is the only navigable river crossing the lisiere, is conclusive that the lisiere as an entirety was the property of Russia. In 1867 it was admitted by Great Britain that, by reason of the sale to the United States, her licence to pass through the rivers 3^53 of the lisiere lapsed, and in the Treaty of Washington of 1871 there was a new licence granted in which we not only renewed the licence to go down the Stikine, but we added the licence to go down the Porcupine and the Yukon, which did not cross the lisiere. That completed the process which began in 1804, because after the Treaty of Vienna emancipating the European rivers, there came the emancipation of the Mississippi and the St. Lawrence, then the South American system, and then the emancipation in 1871 of these AJaskan rivers and the rivers of Africa, which took place about the same time. That completed by Treaty the emancipation of the river navigation of the world, and it was an acknowledged fact that nobody could pass through Russia's rivers any more than you could go through a man's house without a special licence. It was the most positive recognition of her title to the lisiere that could possibly ha\Te been given. And so far from breaking up the idea of the solidity of the lisiere as a barrier, the fact that there had to be a special Treaty licence to pass through that river was the strongest and most affirmative recognition which Great Britain could have given of the title of Russia to the land. Upon the subject of what are the mountains, I shall add only a word, as that subject will be thoroughly discussed by my colleague who follows me. The more I reflect upon one idea that I stated to the Court at the outset, the more it takes possession of what I am jteased to call my mind, and that is, that the conception of moun- «»>:' 618 ALASKAN BOUNDARY TRIBUNAL. <\m tains which these negotiators had in mind was a natural boundary made by the hand of Nature, and not an artificial contrivance worked up by civil engineers to execute a theory. I cannot conceive of any method of argument by which it cah.be demonstrated that this mountain boundary, evolved out of a line of peaks, artificially manufactured, can be held to come up to the definition or conception of a natural boundary as it has stood for all time in the comprehension of mankind. I say it with all respect; but that is one element in this Case I have never been able to consider seriously. This line which Great Britain presents has never looked to me like a serious proposition. I conceive that the only real questions in this Case are the questions about Portland Canal, involving the application of the doctrine of the thalweg, and the question of the meaning of " coast I in fixing the western boundary of the lisiere. I can never believe that this Court will have any difficulty in coming to the conclusion that Lord Salisbury reached on the question of mountains. After discussing the fact whether there was such a mountain chain there as the Treaty contemplated^ he said in substance that it was not worthy of discussion; he knocked it out by his directions to the Canadian Commissioners and dismissed it from consideration, and I can neyer doubt that this Court will do the same thing. If there is anything that I can feel certain about in this Case it is that the line which breaks up and destroys the lisiere of the Treaty, by the creation of an artificial conception of which the negotiators could never have dreamt, and which builds up upon purely arbitrary and artificial principles a condition of things of which the Treaty never conceived, will not be established. If that line can be established, then the British contention in their Argument that the boundary in question is a mere paper boundary, and that the Treaty can be torn up and destroyed, is a proposition that will be fully vindicated. Another thing that I can feel certain of in this case is that by no chance, under no theory, will any set of publicists ever pay any attention to that line. I deem it one of the rarest privileges of my life to have known long and well one who, in my humble judgment, was one of the greatest English historians, living or dead. I refer to Edward Augustus Freeman, the historian of the Norman Conquest and of Federal Government. If ever there was an Englishman to the core it was Mr. Freeman, with all the firmness of opinion, with all the kindness of heart, and with all the strength of prejudice when he did not like a man or a thing. One day I was sitting with him dining in an hotel in St. Louis, and knowing of his lifelong antipathy to Mr. Froude, I asked him \rery innocently a question. I said, " Mr. Freeman, what is your estimate of Mr. Froude as an historian?" He looked at me in a strange kind of way, and then said, " Mr. Taylor, I will tell you this about Froude. If you ever read anything he writes, read it with care, read it over and over and over again, and fix it in your mind so that you will never forget it, for you will then know one thing for certain—that by no possibility did it ever 554 happen in that way." The only thing I can feel certain of in this case is that, however that line may be drawn, by no human possibility can it ever be drawn in that way. That hunchback of 57 miles shows the dreadful travail of its birth; it came into this world like King Richard—" deformed and but half made up." That ARGUMENT OF HANNIS TAYLOR. 619 line, I feel, can never be, whatever may be the conclusion to which this Court may come. And now a few words on the last question of international law, as to which I must speak, and then I have done. That point is as to the question of acquiescence. I shall make no allusion to the American occupation or to the Russian occupation, which my able colleague will handle; but I simply want to refer to the fact that down as late as the making of the speech of Sir Wilfrid Laurier, from which I have just read the acquiescence of Great Britain was admitted. Sir Edward Carson. That is 1898. Mr. Taylor. I will not trouble to read the speech again, but down to 1898, the Prime Minister of Canada, standing in the Parliament of his nation, with all the responsibility of his great office, declared to his own people that from time immemorial first the Russians and then the Americans had been in possession, that no protest had been made, and that however much it might be regretted, there was the fact of this unbroken and continuous possession. He seemed to be enamoured of the use of this word " immemorial," for he used it three or four times, as you mav have noticed in the extract. For 7 ms mJ the purposes of my argument it is absolutely immaterial whether notice of a claim was given to the United States in 1888 or in 1898. In the one event they would be holding this immemorial possession for sixty-three years, and in the other case they would be holding it for seventy-three years, and for the purposes of the law of acquiescence sixty-three years is just as good as seventy-three. But what is singularly valuable in Sir Wilfrid Laurier's statement as to the notice to the United States' Government is that in 1898, ten years after the time when it is so earnestly claimed that we had the notice, the Prime Minister of Canada declares that we had not. It was very regrettable, he said, but he made the public declaration in the Parliament of his nation that we had not received either notice or protest. For the purposes of my argument it is entirely immaterial whether it was sixty-three years of acquiescence or seventy-three. When the international system was founded—I always mean the modern international system dating from the grea^ Peace of Westphalia—the title of every Government of Europe to land rested largely upon immemorial possession of it. Therefore one of the first things to be set up was the doctrine of prescription, drawn from the Roman law. But the difficulty which beset prescription at the outset has beset it all through its history, and that is that as there was no common law-maker among nations, nobody could fix the length of time that a prescription should last as a statute of limitations. Publicists could say that fifty years ought to be long enough to make a prescription, but as there was no common sovereign of all the nations who could legislate and fix it, prescription was always a vague and ineffective doctrine of international law, because nobody could define the time that it had to last. So in that condition of things the publicists of the world removed the difficulty by a very wise expedient. They built up alongside of prescription a new doctrine which they called acquiescence, and the great cardinal characteristic of acquiescence is that it does not require any particular length of time to perfect it; it depends in each particular case upon all the circumstances of the case. The primary value of acquiescence S>M 620 ALASKAN BOUNDARY TRIBUNAL. is its value as a means of interpretation. I do not know of any tribunal in the world which has the same authority or the same opportunity of defining the international rule of acquiescence as the Supreme Court of the United States. Why do I say so? Because it is the only court that has ever existed in history that has had at once the supreme power to apply international law to the boundaries of States sovereign to each other and at the same time the sovereign Power to enforce its authority through a coercive process. WTien the colonies were first grouped together and boundary controversies arose in our history the Court of Appeal was the Judicial Committee of the Privy Council. They were all brought here, 555 and in many respects to the constitutional historian that Judicial Committee of the Privy Council is the prototype of the Supreme Court of the United States. Then when the colonies broke away from the mother country the right to try boundary controversies was vested in a Committee of the Continental Congress, and when the time came for the present Constitution to be adopted there were twelve or fifteen boundary controversies between the ms Colonies awaiting solution. So that one of the gravest questions in defining the original jurisdiction of the Supreme Court of the United States as fixed by the framers of our present Constitution was to find some way in which the Supreme Court of the United States could try as original cases boundary controversies between the several States, and could deal with them as Sovereign States, and that is the principle of the jurisdiction. In the Supreme Court of the United States, States are treated as foreign nations, just as much as if they were France, Germany, or Great Britain, and the law which the Supreme Court of the United States administers is purely international law, just as an international Tribunal would administer between foreign nations. I make that statement to show the special value of the case| Indiana v. Kentucky, passed on not so many years ago by the Supreme Court of the United States, in which judgment was delivered by the eminent jurist, Mr. Justice Field, and in that opinion we have one of the best, if not the best, definitions of the-international doctrine of acquiescence which can be found in any treatise, and I shall turn to our brief to cite an extract from it, in which this comment is made. The President. What page? Mr. Taylor. Page 201, your Lordship; at the bottom. The President. Thank you. ms Mr. Taylor. The comment there, is:— The case of Indiana v. Kentucky grew out of a conflict as to the 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 never 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 ARGUMENT OF HANNIS TAYLOR. 621 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 556 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 o\jer 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). See also the proceedings of the Commission under Article 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 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, with the above exception; and, notwithstanding these facts were in evidence before the Commissioners of the two nations under Article V 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'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 IVth Article of the Treaty, under which this Honourable 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 ALASKAN BOUNDARY TRIBUNAL. to these islands under that Treaty, and can be considered in no other light than as a mutual contemporary exposition of the true interest 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 I 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 557 furnish an Argument that the United States have no claim at this day to any of those islands. .So no matter whether you listen to the correct exposition of the law as laid down by the British Counsel in that Case or as it has been expounded by the Supreme Court of the United States, the doctrine is that long acquiescence—without fixing the length of the time of the acquiescence—is the clearest, the most conclusive, and the most needful criterion by which the original interpretation of a Treaty can be made. In any possible event, there has been sixty-three years of acquiescence according to the Canadian contention; under our contention there has been seventy-three years of acquiescence in the meaning of this Treaty. And I claim that there is no rule in the whole range of international law, no one upon which the peace of nations depends, no one upon which the security of society depends, which demands such strict enforcement at the hands of an international Tribunal as the one which directs it to construe Treaties by the acts of Parties emphasized through their acquiescence. I thank your Honours, one and all, for your patience and courtesy. The President. Mr. Taylor, we thank you very much indeed for your Argument, and for directing our attention to those views of international law, which will certainly be of assistance to us in deciding this Case. Will you begin now, Mr. Solicitor ? Sir Edward Carson. If your Lordship pleases; just as it suits the Tribunal. The President. Yes, you have an hour; we shall be glad to hear you. Sir Edward Carson. My Lord, I think at this stage of the proceedings I am entitled to assume that the Case of both sides, so far as the oral Arguments are concerned, has been fairly and fully developed, and as I understand the position in which I now find myself, it is this: that I have heard, as the Tribunal has heard, the Arguments of all the points upon which the United States relies, just as all the Arguments on the points upon which we rely have been put before the Tribunal, and I do not understand that there is any addition to the American Case remaining still to be traversed by the eminent Counsel who appear for them. The President. Except in reply to you. £)ir Edward Carson. Except in reply to our Argument. Mr. Dickinson. Pardon me, Mr. Solicitor-General, I think I ought to say that our Case has been fully developed in our written Argument, and in the oral arguments, and I shall not advance any theory of the case that has not been fully brought to the attention of Counsel on the other side, but on account of the shortness of the arguments ARGUMENT OF SIR EDWARD CARSON. 623 of my colleagues—they have not gone into all the questions which were raised in the written Argument. I shall argue some of the questions which are presented there, which have not been fully argued in the speeches of my colleagues. The President. I do not think, Mr. Dickinson, that that is what the Solicitor-General meant. Mr. Dickinson. I do not know, but I want to be entirely frank. The President. If you start entirely fresh ground we should have to consider whether the Solicitor-General would be entitled to comment upon it. Mr. Dickinson. I assure you nothing of the kind is contemplated. 558 The President. It is only to safeguard against any fresh ground being broken. Mr. Dickinson. I desire to do nothing of the sort. The President, I am quite satisfied that we shall have no difficulty in dealing with it if the necessity arises, Mr. Dickinson. Sir Edward Carson. I only made the observation because perhaps there is some little difference in the procedure—in the way in which the matter is presented by our friends on the other side, and by ourselves, because I noticed a phrase constant^ in the course particularly of Mr. Watson's Argument in which when he had just got up to the eve of something which seemed to be of importance, he seemed as if he ought at once to avoid it because he might be treading upon the domain of some of the other counsel that were engaged with him, and therefore what I really want is to assure myself that I am deal- ing with the full Case of the United States as it is to be presented by this Tribunal, and of course if anything in the nature of a surprise is brought upon us I wish to reserve the application that would necessarily have to be made so as to meet the matter. Now, my Lord, as I am saying, at all events so far as I can see, the last word on behalf of the British side of the Case, I desire to take the matter very much in the order, though not at all in the same way, as the Attorney-General has done. I do not think it in the least necessary to go into the details that he went into; it would be really leading this Tribunal on in a circle to which there was no end if I were to do so, and it is particularly unnecessary in this case, because your Lordship has had from day to day, and the Tribunal has had, the oral Argument printed in great detail, and therefore any arguments of the Attorney-General and any of the facts and details upon which he «/ ms JL relied are open to the Tribunal to look at and to refresh their minds by at any time, and my going over anything that he said in detail would be simply to have twice upon your notes the notes that were made for the presentation of this Case. My Lord, we have listened this morning to very interesting speech, bringing our minds back to many questions connected with international law, and all those questions have been presented not only in a most erudite, but in an extremely clear manner by the distinguished jurist who has just addressed us. My Lord, some of these matters I shall not find it necessary to go into, and I shall explain why as I come to the principal questions with which they deal. Some of them I shall have to refer to when I come to my own arrangement of the principal matters to which they apply. But to lay down some rules, as did my friend who sits beside me, in his able Argument yes- 624 ALASKAN BOUNDARY TRIBUNAL. terday relating to the way in which we are to approach these questions, having regard to the provisions of the Treaty and Convention under which you are acting—particularly the clause in the third paragraph, at the end, that you are to take into consideration the action of the several Governments and their respective Representatives preliminary or subsequent to the conclusion of the Treaties. My Lord, may I say I am not going into these rules; they have already been sufficiently dealt with. They are, I think, plain and clear, and in accordance with common sense, and if I say anything upon that part of the Hlrd Article, all I would do is this: in the midst of these vast rules and arguments that have been put forward in the course of this discussion may I make a poor little plea for something to be said on behalf of the Treaty, as outside and above and beyond all these rules of which we have heard so much in the course of this Argument. And I myself would content mvself by laving CD «/ ms ms ms CD down this: Take the Treaty, never leave the Treaty, until you find yourself in such a difficulty that it is necessary to sro into antecedent ms */ «/ CD or subsequent matters. But let us have the Treaty, the whole Treaty, and nothing but the Treaty, and with that simple introduction I think we will get perhaps as well into the questions which we have to solve as by any elaborate rules that may be laid down and which are always very much easier to state than they are to apply to the consideration of a case of this kind. Now, my Lord, the first question in the Case, just to remind 559 the Tribunal of it, is, WTiat is intended as the point of the commencement of the line? Upon that subject there is no dispute. I am not sure that there is any other subject in the Case, as far as the Argument has gone, upon which I can so far congratulate myself. I thought there was one other matter, but Mr. Taylor has dissipated my hopes upon that question; but I think it my duty at the outset of the first question to observe this, that while we are both agreed as to the answer that is to be given to that question, we are also agreed on this, that for the purpose of starting you may discard 54 degrees 40 minutes, because beyond all doubt the agreement is that you have to start somewhat below 54 degrees 40 minutes upon the surveys that have been made. My Lord, I do not think that is unimportant, having regard to the Argument that Mr. Watson presented before the Tribunal. And it is important also for this reason, that, as we both admit and both agree that you have to start, not from 54 degrees 40 minutes, but from a figure which is not mentioned in the Treaty at all, it is quite plain that it is the description that governs, and not the latitude. That is all I have to say as regards the first question. Now, the second question is, What channel is the Portland Channel? The only note I had made of it up to this morning was that the Attorney-General's argument was not answered, and I was going to save the Tribunal from any further mention of that point, because anybody who wishes to see the complete Argument upon it has only to turn to the print of the Attorney-General's Argument which he elaborated at great length upon this point. But I really am astonished at the argument that is presented this morning by Mr. Taylor. Mr. Taylor takes up two points. First, he said it is not shown that the negotiators ever knew at all of Vancouver's text.: Secondly, he says that even if they did, it does not make the least matter, because ARGUMENT OF SIR EDWARD CARSON. 625 even according to Vancouver's text, the Observatory Inlet, plus what is now called Pearse Channel, constituted the arm of the sea which he called Portland Channel. That is as I understood his argument. Now he based the first portion of that argument upon a statement in a letter of Sir Charles Bagot to Mr. Canning—the letter of 10th February, 1823—in which he said that— In the copy of the instructions given to the Duke of Wellington by your Despatch No. 6, to His Grace, of the 27th September last, and which was transmitted to me in your Despatch No. 5 of the 31st December, the opinions of Lord Stowell and of His Majesty's Advocate-General upon the subject of this Ukase, and the other papers therein referred to, were not enclosed. Therefore, he says there is no evidence that Sir Charles Bagot ever got these papers or knew anything about them. Would the Tribunal look at p. 55, and I think it completely answers in a word that contention, because it shows that the contention is not well founded in fact. . At p. 55 of the British Case Appendix—and mind, this is a statement of M. de Poletica to Count Nesselrode and the version of his conversation with Sir Charles Bagot; therefore it is not our version. And what does he say there? 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. He then told me that, according to all the researches which had been made in England, and the opinions expressed by the most learned lawyers, the possession of the North-West Coast of America below the 60 degrees of latitude was anything but well established; that the only legitimate title to any territorial possession was, according ro the opinion of the English publicists and that of the lawyers who had been consulted— Lord Stowell's opinion which had been referred to, the papers having finally reached him— the right of Russia to the possession of the North-West Coast of America below the 60th degree of latitude was anything but well established; that the only legitimate title to any territorial possession was, according to the opinion of the English publicists and that of the lawyers who had been consulted, not the first discovery, nor even the taking possession in accordance with the ancient formalities. Ajid so on. Then he goes on, and he says:— 560 In support of what he had just told me Chevalier Bagot read me an opinion of the King's Counsel, in London, drawn up in the sense which he had stated, and to prove to me that the claims of Russia to the possession of the points below the 60th degree of latitude on the said coast were of very recent origin, the British Ambassador read to me some portions of the correspondence (which occurred in 17390) between Count Florida Blanca and Mr. Fitzherbert, afterwards Lord St Helens, at the time of the difference which had arisen between Spain and England with regard to Nootka Sound. (See the Annual Register for 1790, pp. 292-301.) Now, my Lord, that was a curious reference for a Russian to make, but if your Lordship will look and observe Mr. Pelly's Memorandum on p. 27, you will see how the Annual Register, 1790, pp. 292-301 come in, because you will see that that is the very passage in the Annual Register which was in Pelly's Memorandum, which meanwhile Chevalier Bagot, as he is called—Sir Charles Bagot—had received with the opinion which is previously referred to of Lord Stowell. The President. Where is that? What page? S. Doc. 162, 58-2, vol 7 -10 ALASKAN BOUNDARY TRIBUNAL. Sir Edward Carson. Page 27. Neither Cook or Vancouver mention these settlers. So little did the Court of Madrid know of the settlers at Nootka that in its State paper to Mr. Fitz- herbert— The very thing he has been just referring to— it mentions that they were informed that Russia intended forming establishments. (See Annual Register, 1790, pp. 287-305.) The pages referred to in the Annual Register, 1790, are pp. 292-301, and I say that if this even was not there, I should have thought that it would be not a very violent conclusion to ask the Tribunal to draw that when certain information had been asked from the Hudson's Bay Company, and it was meant to be sent on, and it was said that it was sent on, and the Plenipotentiary writes to remind them that it was not sent on, he very probably got it even if we had nothing to establish the fact. But you have there not merely a conclusion to be drawn, but you have the two documents referred to, which were the documents which he said he did not get. I shall not dwell any further upon that matter. I notice that that is the one point which my learned friend challenges as regards the proof—the long list of proof that the Attorney-General gave that the text of Vancouver was m7 CD known to the negotiators in this matter. He finds no fault with the other portions of the evidence, but dwells upon that alone, and I claim to have proved that he is entirely in error in the conclusion that he attempts to draw from that. But there was one other matter. He said what right had we to assume, as the Attorney-General did, or to draw the conclusion as the Attorney-General asked you to draw the conclusion, that the introduction of the words " Portland Channel " had any importance, and why should you assume that Russia introduced " Portland Channel I from the second edition of Vancouver's book, which, I think, was published in 1801 or thereabouts? Well, I do not know why one should draw any conclusion about anything at all. All we say is this, and we can trace it no further—it may be strength or it may be weakness—all we say is this, that we find that all through the negotiations up to a certain point " Portland Channel "was used, and we find that so far as we know, the only person in the whole world at that time who ever used the words " Portland Channel" was Vancouver, or those who edited the second edition of Vancouver; and we say that it is not an unnatural assumption that, if you can give no other explanation of the facts, it is not an unnatural assumption to ask the Tribunal to make, that in their inquiries, the Russians, being naturally industrious upon a matter in which they had so much concern, looked up the various books which dealt with this matter; they found in the second edition, which I suppose was considered to be an improved edition, the term " Portland Channel," and then they bring it into the Treaty, or the negotiations for the Treaty, for the first time. 561 Mr. Lodge. Mr. Solicitor, you are aware, of course, that there was a second French edition corresponding ? Sir Ed\vard Carson. To the second English edition. Mr. Lodge. To the second English edition ? Sir Edward Carson, Yes, Sir. ARGUMENT OF SIR EDWARD CARSON. 627 Mr. Lodge. I have not compared them, but I know there are two such editions. Sir Edward Carson. Yes. Mr. Lodge. Can you tell us how it is stated in the second French edition ? Sir Edward Carson. I am afraid I cannot; I have not seen that second French edition; I do not know the book. Mr. Lodge. T have seen the book; I have not examined it to see if it follows. Sir Edward Carson. I cannot say at the present moment, but I will be able, probably, to tell you, Sir, to-morrow. The President. I think it can be looked up, Mr. Solicitor? Sir Edward Carson. Oh, yes. The President. Because I think Mr. Rowlatt had the second edition. Sir Edward Carson. Oh, yes; personally myself I have never seen it. Mr. Lodge. The probability is that the Russians used the French edition. Mr. Taylor. Mr. Solicitor-General, pardon me, the Attorney- General made the statement that the French edition used the word S Portland Canal." Sir Edward Carson. If that is so, no doubt he had looked at it. Mr. Taylor. He stated it in his argument. Sir Edward Carson. That may be so; that was the first French edition, I think. Of course the real strength of our case is that the Russians used the English phrase—they used the English phrase because where could they have got the English phrase from except out of the English edition? Mr. Lodge. In the first French edition they found the English phrase, but I do not know whether the second French edition took the phrase from the second English edition. I mean they used the English words. Sir Edward Carson. Yes, quite so. Mr. Lodge. In the first French edition. Sir Edward Carson. In the first French edition; I do not know whether there Was a second. Mr. Lodge. Now, do they use the English words in the second French edition, from the second English edition? 562 Sir Edward Carson. I really am not aware that there is a second French edition. Mr. Lodge. Yes, there is; I happen to have seen one the other day printed in a similar form small octavo. Sir Edward Carson. I will see if I can give you that information. Mr. Lodge. Thank you. Sir Edward Carson. Now, I ask the Tribunal to say that without other explanation the only conclusion you can draw is that they saw this in the text and so they adopted it. Well, then, the next argument which was used by Mr. Taylor (because Mr. Watson did not really grapple with this matter at all) — the next argument used by Mr. Taylor was that even if you come to concede that Vancouver's text was before the negotiators, it carries you no further. Well, now I must say that that really is a little astonishing. I am not going to do what the Attorney-General did 628 ALASKAN BOUNDARY TRIBUNAL. with such elaboration upon the last occasion, that is, take you through the whole description of what Vancouver did. I will only make this observation, that if you look at p. 345, or in our Appendix at p. 144, where they give the extracts from Vancouver, yom will find that it was upon the 27th July (p. 143) that Vancouver started to go from the Observatory Inlet—from the top part of Observatory Inlet, from Port Ramsden—to explore the upper part of the Portland Canal, which is admittedly Portland Canal or Portland Channel, therefore I may use that phrase. You will find that he traces through from that date all he did in going up there until he came back, and back through straight down from the top of the admitted Portland Canal down by the point above Port Ramsden, until he came back down on the morning of the 2nd. Then it goes on:— We set out early and passed through a labyrinth of small islets and rocks along the continental shore; this, taking now a winding course to the southwest and west, showed the south-eastern side of the canal to be much broken, through which was a passage leading south-south-east towards the ocean. We passed this in the hope of finding a more northern and westerly communication, in which we were not disappointed, as the channel we were then pursuing was soon found to communicate also with the sea. And you will notice he also says just before that— Showed the south-eastern side of the canal to be much broken? That is the place he was passing through, so that you have both the words there, " canal' and " channel," used in relation to the place he was proceeding through at that time. Then he completes the going through there, and he says that " in the forenoon we reached that arm of the sea, whose examination had occupied our time from the 27th of the preceding month to the 2nd of this month." Now, that is very important, and that sums up the whole matter, because the only arm of the sea, and it is arm of the sea that my learned friend relies upon in this context, the only arm of the sea that he was investigating from the 27th to the 2nd was what we now say is Portland Channel, and I defy anything to be taken out of his narrative which can in any wise lend controversy to that statement. Now, if that is so, if we are only dealing there with an arm / 7 mJ CD of the sea, " whose examination had occupied our time from the 27th of the preceding to the 2nd of this month "—just read the next sentence—" the distance from its entrance to its source is about 70 miles, which, in honour of the noble family of Bentinck, I named Portland's Canal." Can anything be more clearly demonstrated that «/ CD */ what he named Portland Canal was what he had been dealing with from the 27th July to the 2nd August ? It is impossible to find words to make it clearer. Then he says it is 70 miles. It is really 80, but, when you remember his latitudes, he places the head in 54 degrees 45 niinutes. In reality it is 55 degrees 55 minutes, exactly a difference of 10 miles. You have the distance exactly corresponding. 563 Therefore you have the arm of the sea demonstrated as what we now say is Portland Channel. You have the distance exactly stated, and, in the face of that, we are asked to say that the arm of the sea he was dealing with was the entire arm, of which he does not give any such measurement in the context at all. I pass from that Mr. Root. Before you pass from that, Mr. Solicitor, I wish you would tell me what your view is as to the paragraph which appears sss ' ARGUMENT OF SIR EDWARD CABSON. 629 on p. 146 of the British Appendix, in which Vancouver, after returning to the ships, which were in the Sir Edward Carson. Cove. Mr. Root. In the eastern branch, Salmon Cove, says: This branch obtained the name of Observatory Inlet? Sir Edward Carson. This branch of the sea? Mr. Root. This branch. Sir Edward Carson. Yes. Mr. Root. He appears—there is quite a discussion at the beginning of p. 141 as to the two branches of the main inlet. He says that it was seemingly divided into two or three branches. He says that " a branch of the inlet we were now navigating—referring to Observatory Inlet- " Sir Edward Carson. Yes. Mr. Root— Was not of greater width, nor did it appear likely to become more extensive than that to the westward of us just discovered. This made it uncertain which to consider the main branch. Sir Edward Carson. Yes. Mr. Root. Then he says this branch obtained the name of Observatory Inlet. Sir Edward Carson. Yes. Mr. Root. Is that quite reconcilable with these other expressions? Sir Edward Carson. I think so, Sir; I think it is. Mr. Root. I would like to know how you reconcile it. Sir Edward Carson. I think so, Sir. What he says is: I found two different ways up. He calls them branches. Mr. Root. Yes. And he says one branch receives the name of Observatory Inlet. Sir Edward Carson. Certainly, but he says the other he calls Portland Canal, and, therefore, unless you can show, assuming that you are to take it all as one open arm of the sea, with two distinct branches, unless you can say that he gave some particular name to the whole branch, there is no argument which can be founded upon it. And my case is that we trace out, if you like, what are the two mJ . m) 7 branches of that sea. We trace them both out, and I say as regards the one he gave the name of Portland Canal in honour of the family of Bentinck, as he says. As regards the other, he gave it the name of Observatory Inlet. It may be, Sir, that in doing so he gave no common name (as he did not) to what altogether might be the two, if you were to class them as one arm of the sea. But that will 564 not bring you into naming either the bottom part of Observatory Inlet, which is the case that I understood the United States put forward, nor the whole arm of the sea either Observatory Inlet or Portland Canal. If you are able to show what it is that he actually gave these names to, then you get no further by saying that they were pnly branches of a common arm which he might have named and did not. But I say I have demonstrated that he named the channel which passes between Pearse Island and the mainland Portland Channel, and I say that, exactly following out the same thing in regard to Observatory Inlet ■ 630 ALASKAN BOUNDARY TRIBUNAL. Mr. Turner. Sir Edward, before you pass that point, which is giving me a litle trouble in connection with this quotation to which you are referring; according to that quotation, after Vancouver had left the channel which you call Portland Canal, he stopped at a little cove. He stopped at it on the night of the 3rd, and he said it was about half a league from Point Fox. On his return to the ships he again stopped at this litle cove on the night of the 14th August. Now, if you take the later charts of that region—for instance, the British Admiralty Chart—you will see the point at which he stopped that night was only about 5 miles in an almost due westerly course from the point where he emerged from this channel. Sir Edward Carson. Yes. Mr. Turner. Now he says early on the morning of the 15th, his exact language is this: Here we rested for the night; weather more temperate than we had reason to expect, and early on the following morning we again bent our way towards the vessels. Sir Edward Carson.- Yes. Mr. Turner. Now, his natural course in bending his way towards the vessel would be to go towards the large channel which would make him pass by this smaller channel at right angles. He probably would not be any closer to it at any time after he had started out that morning than he was at the very moment of starting. He would be unable, probably to get any closer, because it would be out of the course of his direction to go towards it, yet we find it was not until some time in the forenoon that he reached this arm of the sea, which he said he called Portland Channel. That appears to me to be a little inconsistent with the idea that it was this particular channel which is claimed by you that he reached in the forenoon. I am merely suggesting that for your consideration. • Sir Edward Carson. I am afraid I do not quite follow that. In the first place I put out of sight, on this question altogether, the Admiralty chart. That has nothing to say to the Case. Mr. Turner. Well, the later Admiralty charts show what the true situation was at the time. Sir Edward Carson. Yes, but that is not the way in which you can deal with the narrative of an explorer. You must remember each inch he went on, he was exploring. He did not know all these convenient ways of getting in or out as we do now. We may now say it was more natural he should have gone down here or you would expect him to go down there. You cannot argue upon that now. It is all very well now, when we have the Admiralty charts and when we know thoroughly the districts, but this was a man going up there without any charts. Mr. Turner. I simply referred to the Admiralty Charts to show what the true relations of these points were as they must have appeared to Vancouver when he was on the ground. Sir Edward Carson. I really, with great respect, cannot admit that that is a fair way of testing his narrative to say " as they 565 appeared to him," because you do not see all at onde the actual lay of any channel or of any island, or of any place which you are exploring for the first time. Of course, it is quite easy, once 3rou know it, to say that it must have appeared so-and-so the first ARGUMENT OF SIR EDWARD CARSON. 631 time, and so-and-so and so on. I dispute that as an accurate proposition, and I say the only thing you can take is his own argument. Mr. Turner. Do I understand you, then, to insist that when he started, or, as he says, " bent his way towards his ships," he went back towards this little channel that he came out of and followed that to his ships ? Sir El ward Carson. I say he never left that from the 27th to the 2nd. Mr. Turner. Do you not think that naturally he made his way to this large open channel, which would take him up to his ship, "and that did not take him towards this little channel at all. Sir Edward Carson. I do-not admit that he went that way at all. Mr. Turner. I ask you, is it not natural to suppose he went towards the large channel which he knew would lead him up to his ship Sir Edward Carson. I do not really see- Mr. Turner. I do not want to embarrass you, Sir Edward. Sir Edward Carson. Oh, not the least. Mr. Turner. I do not want to insist upon anything that you do not want to follow. This is a matter, however, that is troubling me somewhat. Mr. Ayleswort. It is to be remembered he was traveling with oars, or a small sailing boat, and he has told us that he experienced the night before a very thick fog and very nasty weather. Early in the morning it was a little more temperate, but is it likely he would have pursued a channel of the width of the lower one with such facilities for travelling and in weather like that when he had a much safer way which he had just traversed ten days before in going towards the sea ? Sir Edward Carson. What I put shortly in answer to what Mr. Senator Turner has been good enough to put to me is, you must take the position of an explorer who is exploring a place for the first time. When he got out to sea, going through what we now call Pearse Canal, the narrow passage, when he got into the sea all round from that to the entrance to the larger inlet, as we now know it to be, was absolutely unexplored by him. He knew nothing about it, and I do not think it is an unnatural thing that an explorer should go back through the place he had just come out of and of which he was well aware, rather than attempt to go round the outside of these islands which he had never explored, where he was attempting to make an accurate reconnaissance of that channel next the mainland on which he had been occupying himself for so many days. And I cannot see how the statement which is put forward now affects that when he says:— In the forenoon we reached that arm of the sea whose examination had occupied our time from the 27th of the preceding month to the 2nd of this month. Surely that was not a matter that was applicable to this Observatory Inlet as a matter of description of what he was doing, but I base my answer to the point not only upon the matter that you find there, but also upon his subsequent reference to Observatory Inlet:— We did not reach the entrance to Observatory Inlet until two o'clock in the morning of the 20th—a distance of not more than 13 leagues from Salmon KOSK 632 ALASKAN BOUNDARY TRIBUNAL. ii Cove. The west point of Observatory Inlet I distinguished by calling it Point Wales. 566 Now, I say if you take these two descriptions together it is as plain as anything can be plain that he gave two names, and two names only, one name to the channel which runs between these two islands, Wales Island and the other island which is near it and the mainland, calling that Portland Channel, and calling the other Observatory Inlet. I do not think it is possible to make that any plainer than I have attempted to make it except to make one further observation, because I really thought it was conceded that if Vancouver's narrative was taken to be before the negotiators, it settled this question of the Portland Canal. And I know that Mr. Dall, who has so frequently argued the case in articles in State papers upon behalf of the United States—I know that at p. 99 of the United States' Counter-Case Appendix, he says:— It is certain as anything can be of which we have not documentary evidence that the maps used by the Agents of the Contracting Parties were those of the French translation of the official edition of Vancouver's report and atlas. This translation was issued in the same form as the original, at Paris, in 1799. There are others, but of later date, more or less abridged or modified in the translation. French being the diplomatic language, the French rather than the original edition would have been used. Then he says, going on at p. 104:— In reading over his whole account of the survey of this inlet and its branches ("Vancouver," official English edition, Vol. II, pp. 329, 330, 331, 334-340, and 371), he seems to have varied a little in his notions, but his-final treatment of Observatory Inlet extends it to Points Wales and Maskelyne, while in another place he seems to regard it as beginning at Point Ramsden (cf. op. cit., II, p. 375). On the other hand, he treats Portland Inlet as continuing to the sea behind Wales and Pearse Islands. So that, if the Treaty is to be tried by Vancouver's text, it will result in giving to Great Britain the above-mentioned islands and some other small ones. That is the opinion of Mr. Dall, who is himself a very experienced gentleman in these matters. Now, I would ask you, referring to that passage, to look at the map in that French edition to which Mr. Dall refers. I am only going to refer you to two maps, because you have them all on the note as the Attorney-General went through them, but if you will look at this map in the French edition you will see that he brings the name of " Entree de l'Observatoire," you will see he brings it right down to the Observatory Inlet exactly as he states. We have several copies of this if you will kindly hand them up. The President. Thank you. Sir Edavard Carson. Now, there is only one other further point which I have to deal with on this point in the Argument by Mr. Taylor. The Attorney-General referred to all the maps here I think up to 1867 or 1868, certainly up to the time that the United States purchased from Russia, and I think he showed you—and I am not going back over them now—I think he showed you that either the maps were in accordance with the theory that we put forward as being the true conclusion to draw from the text of Vancouver, or that they were neutral, that you could make nothing out of them one way or the other. But Mr. Taylor has referred to three or four subsequent maps. Now, I should like the Tribunal in relation to those subsequent ARGUMENT OF SIR EDWARD CARSON. 633 maps to have laid down in their own mind—to have laid down some rule about dealing with those subsequent maps. I say with regard to these subsequent maps, unless they are founded upon surveys, or something which renders them of actual value as giving some new information, they are absolutely unreliable for drawing any conclusions which can give us the least assistance in the Case. Mr. Taylor referred, for instance, to one map after the Treaty—I forget now which it was—in which he said it showed that Portland Canal only referred to the upper portion and not to the lower portion of that narrow channel. Well, I can produce maps exactly in the contrary direction, and I wish to produce one, and one only. The President. I think we are all agreed that although it is 567 quite right to comment on later maps for certain purposes, the important maps for this purpose Sir Edward Carson. Which were before the negotiators. The President. are those which probably would have been before the negotiators. Sir Edward Carson. Probably they were before the negotiators, but, my Lord, as the observation has been made about these subsequent maps, to show how little you can rely upon them, I should like to point now at this stage to one map which was referred to by Mr. Watson, and I refer to it for this reason, that he told us that on the occasion of the cession from Russia to America a Committee of the Senate, I think he said, had investigated this matter in the light of the maps that they had then before them with the greatest possible care, and he mentioned the four maps that he said they had before them. I shall have to deal with these afterwards. I do not know where he got the statement of the maps they had. I cannot find it anywhere in the evidence; but to show you how little can be adduced from the maps, I would ask your Lordship to look at Map 17 in the United States' Atlas, which was one of the four that the Senate had before them to tell them what it was they were buying. And so far from this arm of the sea being given the one distinctive name of Portland Canal, the only name that I can find upon it is " Observatory Inlet," and written from the sea as if Observatory Inlet was the whole arm of the sea. And that is one of the maps on the faith of which they bought. The President. Are you going to a fresh point ? Sir Edward Carson. Yes, Sir. The President. The members of the Tribunal have just learned with the deepest sorrow of the death of Sir Michael Herbert, His Majesty's Ambassador at Washington who, on behalf of Great Britain negotiated and signed the Treaty by which the Tribunal is constituted and under which it is at this moment sitting. I cannot trust myself to attempt to express the feelings of grief which this announcement has caused to every member of the Tribunal and to many others who hear me, who had the great privilege of Sir Michael Herbert's friendship. A worthy successor to the great men who have filled the high office he held, he brought to his duties not only great ability but the most charming personal gifts. I, and others who hear me, have in the course of our public life been brought into close official and personal connection with him. It is no language of exaggeration when I say that no man ever brought to the discharge of his duties higher ideals, and few, if any, greater 634 ALASKAN BOUNDARY TRIBUNAL. qualifications. His Majesty and the British nation have lost a devoted public servant. Many of us have lost a cherished personal friend. Mr. Dickinson. Mr. President, the Coimsel for the United States have heard with very great regret of the death of Sir Michael Herbert, and sympathize most cordially with all the remarks which your Lordship has made; and if it will not interfere with the course of the Argument of the Solicitor-General, I respectfully move, if I may be permitted to do so, that the Session of this Tribunal for to-day be now adjourned in honour of his memory. Sir Edward Carson. My Lord, on behalf of the British and Cana- «/ 7 dian Counsel in this Case, I need hardly say I adopt every word that your Lordship has said. It comes as a shock to myself personally to learn this news, and I can only say that I believe the country has lost one of its greatest public servants, and I believe that that is a loss which is felt peculiarly under the circumstances in which we meet, when your Lordship refers to the fact that he was the Ambassador who brought about this Treaty from which we hope such good results in leading to the most amicable conclusions in the relations between the two neighbouring countries—Canada and the United States. (Adjourned till to-morrow 11 a. m.) 568 FOURTEENTH DAY.—THURSDAY, OCTOBER 1, 1903. All the Members of the Tribunal were present. The President. Before the Tribunal commences, I think they will be interested to know that I telegraphed to Lord Pembroke in the name of the members of the Tribunal yesterday, and that I received this telegram from him late last night:— We are deeply touched by the kind sympathy of the Members of the Alaska Boundary Tribunal with us in the loss of my brother, who was so much interested in your work. Mr. Lodge. Mr. Solicitor, before you begin—we were speaking about these books yesterday. It appears that there was a French edition which you have here—a quarto published in the eighth year of the Republic, which is 1800. Two years later, in the year ten of the Republic, there was published this small French octavo which I hold in my hand, the one to which I referred yesterday, and I find on looking at the third volume, on p. 370—it is rendered in this way— the passage which has been quoted so often:— Je 1'ai nomme " Canal de Portland " en respect et & l'honneur de la famille de Bentinck. Sir Edward Carson. They adhered in that edition- Mr. Lodge. They adhered to the first edition apparently, and I suppose the first French edition is the same. Sir Edward Carson. The first French edition is, I think so. Now, I only want to make one or two observations about this question of Portland Canal. I do not know really why both Mr. Watson and Mr. Taylor brought back into this question of the Portland Canal the 54 degrees 40 minutes. I cannot understand the adherence to this 54 degrees 40 minutes idea at all, after it is demonstrated that 54 degrees 40 minutes, taking the latitudes as fixed on Vancouver's charts, does not bring you into the centre of the Canal. As long as it was possible to make an argument that 54 degrees 40 minutes would support the theory that you were to go to the centre of the Observatory Inlet, as I call it, then I think there is something to be said in favour of 54 degrees 40 minutes, but the moment that is disposed of I fail to see why 54 degrees 40 minutes is brought in at all. It is said you create a kind of wedge. Mr. Watson demonstrated that on the map, if you take a different figure for the American Treaty and for the English Treaty. I do not think the wedge is of the least importance, for I would point out this, that even if you take the same parallel on each Treaty you will still have a wedge, and it would be a wedge on the mainland, which would be very much more important. The President. A wedge on the sea does not matter. Sir Edward Carson. It does not matter. 635 636 ALASKAN BOUNDARY TRIBUNAL. The President. A wedge on the mainland might be of more importance. Sir Edward Carson. Might be of some use. Now, so far for the arguments which have been used pri the other side. There is 569 one point Mr. Taylor made. He again argued the doctrine of the thalweg. Now, I submit to the Tribunal that the doctrine of the thalweg does not come into the case all. WTiether we are right or whether we are wrong about what is Portland Channel, it is not a case of fixing it by any general rule or general theory; it is a specific fact which we ask the Tribunal to find, and it is not to be found by any general rule of international law at all. At the same time I think it is right to say this—and if I had to discuss, which I do not intend to do, this doctrine of the thalweg, I would not agree with the view which has been expressed here—that you do apply that doctrine to the open sea where it is 25 or 26 miles wide, but the raison aVetre of the doctrine would, in my view, at all events, have no application to such a state of circumstances as exists at the entrance of this Portland Inlet, as it is now called. It is further to be observed that if you were to attempt to apply that doctrine at all you would have to enter into a further consideration, namely, what we are to do with the Wales Island and the Pearse Island. It is quite plain, however, that the real question in the case is not one of a general nature of that kind, but it is the specific finding, the finding of a specific fact of what the negotiators meant when they used the word " Portland Channel." Now, there are, I think, two other matters to which I should like to refer and then I shall leave that question. One is that I shall ask the Tribunal to note, and I am not sure, looking through the Attor-. ney-General's Argument, that he called attention to this fact, I should like the Tribunal to note that while there was considerable negotiation and considerable attention paid as to the small portion of the Prince of Wales Island, which by running the parallel at 55 degrees would be taken off the Island in dividing it, I should like to point out this, that while that concession was made for the purpose of preserving Prince of Wales Island intact to Russia as part of her dominions, we never find during the whole negotiation any mention whatever made of Wrales Island and Pearse Island, and so it is impossible to imagine for a moment that where they were paying so much attention to the bringing the latitude below 55 degrees, for the purpose of introducing that small portion of Prince of Wales Island, it is impossible to suppose, without one word of comment or one word of suggestion from Russia, that the negotiators were willing to go further and include the two islands, which are important islands, as standing at the entrance of this channel, such as Wales Island and Pearse Island are. Now, I say, in that state of facts, and in those circumstances, and in the state of the evidence at the present moment, you have not a particle of evidence before you as to anything else being Portland Channel except the channel that passes between Pearse Island and the mainland—not a particle of evidence. It is not suggested that anybody ever knew anything else as Portland Channel except the channel that passes between Pearse Island and the mainland, and I say, in that state of facts, that the- argument of the Attorney-General is unanswered in this, and to give any other answer than that which ARGUMENT OF SIR EDWARD CARSON. 637 you asked me to give here would be a matter of speculation, without one particle or scintilla of evidence to support the view that this entrance of the larger channel was ever known as Portland Channel to the negotiators who made this Treaty. Now, the third question to which I pass on will take me very little time:— What course should the line take from the point of commencement to the entrance of Portland Channel? I should have thought it unnecessary to comment upon that at all, were it not for an observation of Mr. Watson's, because he propounded the most extraordinary theory, and I think the most useless one that */ m7 s could be propounded for solving this Treaty. Now, what did he say ? He admitted you have not to start at 54^ degrees 40 minutes, because the point at which he started was below that latitude, and he admitted that when you got to Portland Channel, you had to leave 54 degrees 40 minutes, so that you have to start off that latitude, and you have to leave that latitude at the end, but he said, for some reason or another, you must get on to that latitude between the two points; in other words, you get on to it for the purpose of going off it, and he put forward a very peculiar doctrine, that depended upon the word " remontera." 570 He said " remontera' made it necessary that you should swap horses in the middle of the ocean. I think, if he will pardon me, he is wrong in his view of the French. It does not mean I to get up again on your horse," it simply means " you get up on your horse." But I really think it is going a little too far to ask the Tribunal to hold that, and I labour this point to the extent to which I do for this purpose, that what is 54 degrees 40 minutes now is different from what it was when these charts were before the negotiators. I do not want to have any finding upon the face of answers to this question, and I say that 54 degrees 40 minutes is not a thing to be got on to at all, because it would create probably as much confusion afterwards as does the present Treaty which we are trying to solve here. Now, note, Mr. Watson says what are the words put in for? On p. 390 of his Argument he asks this question: " Why are the words put in?" He says he has never got an answer to that question, and he says he does not believe any answer is possible. May I suggest a simple answer, which I think the Attorney-General has already given, that the reason they were put in was simply that this 55 degrees of latitude was the agreement between Russia and England? It was found that a small portion of the Prince of Wales Island was below that latitude 54 degrees 40 minutes, or thought to be—the latitude that would just bring you below Prince of Wales Island—and for that reason, and for that simple reason alone—54 degrees 40 minutes was put in. If you look at the British Case Appendix, p. 76, I think it is as clear as anything can be made in that letter of Count Nesselrode to Count Lieven, because he says here:— The Emperor, however, having been convinced that about the same time the English Company of Hudson's Bay had formed settlements in the 53rd and 54th degree of north latitude, and that these settlements were not even very far from the coasts, authorized us to give, at the very opening of the negotiations, a proof of his conciliatory intentions by declaring to Sir Charles Bagot ALASKAN BOUNDARY TRIBUNAL. that we would hold to the limits assigned to our American possessions by the charter of the Emperor Paul; that therefore the line of the 55th degree of north latitude would constitute the southern frontier of His Imperial Majesty's possessions ; that on the continent and towards the east this frontier could run along the mountains which follow the windings of the coast as far as Mount Elias, and that from this point up to the Arctic Ocean we would fix the boundaries of the respective possessions. There you see the specific statement that all Russia was asking, and Russia wanted, was that the 55th degree of north latitude should constitute the southern boundary of His Imperial Majesty's possessions. And then it gives the reason which my friend Mr. Watson referred to: In order to avoid intersecting the Prince of Wales Island, which, according to this arrangement, should belong to Russia, we proposed to carry the southern frontier of our domains to the 54th degree 40 minutes of latitude, and to make it strike on the continent the Portland Canal, the mouth of which on the ocean lies at the height of Prince of Wales Island and the head inland bewteen the 55th and 56th degree of latitude. That is the sole reason given. Then Mr. Watson goes on and says* that Mr. Canning accepted the 54 degrees 40 minutes not in the sense we put it at all, but as a general line put to regulate the whole of this frontier, and he says that he put it into the draft which was forwarded for the acceptance of Russia; but I think if Mr. Watson had looked at the letter which sent that draft, it exactly bears out the construction we put, because if you will look at p. 85 of the British Case Appendix, you will find the'54 degrees 40 minutes is merely an element in the description of the southernmost part of Prince of Wales Island; in fact, he gives the go-by to it altogether, and what he says is this. He does not even mention it as such. This is what he says:— After full consideration of the motives which are alleged by the Russian Government for adhering to their last prepositions respecting the line of demarcation to be drawn between British and Russian occupancy on the North-West Coast of America, and of the comparative inconvenience 571 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 resolved to authorize your Excellency to consent to include the south points of Prince of Wales Island with the Russian frontiers, and to take as the line of demarcation a line drawn from the southernmost i>oint of Prince of Wales Island from south to north through Portland Channel, till it strikes the mainland in latitude 56 degrees. Now, you see, in accepting that he never mentions 54 degrees 40 minutes at all, but he takes it in the way in which it was given; I think it was only given as a latitude so as to include the southernmost part of Prince of Wales Island. The President. What page? Sir Edward Carson. Page 85, my Lord. Now, that being so, just look for a moment at the way the matter is expressed in the Treaty:— Commencing from the southernmost point of the island called Prince of Wales Island, which point lies in the parallel of 54 degrees 40 minutes. The French is:— Lequel point se trouve sous le parallele de 54 degres 40 minutes. That is, if it happens to be in that. But would they have put in such a description as that if 54 degrees 40 minutes was to be the limit ? Why should they have referred to the Prince of Wales Island ARGUMENT OF SIR EDWARD CARSON. 639 at all ? They would have simply said 54 degrees 40 minutes, and that would, by itself, have given Prince of Wales Island. But they have a subsequent clause, which gives Prince of Wales Island in its entirety to the Russians. Therefore, I think on this point it is hardly necessary to dwell further. It seems to me a perfectly clear one, and I think what Mr. Taylor said yesterday was perfectly fair about this. I think he introduced 54 degrees 40 minutes for some reason I did not appreciate at the time, and I have not had the opportunity yet of seeing the note of his speech. Still, he did so, and I think he agrees with us in this, that when you find Portland Canal, and you have there the description of Prince of Wales Island, you are to draw your line from the southernmost point of Prince of Wales Island to whatever you find to be the entrance to the Portland Canal—the Portland Oiannel. I think he said so yesterday, and I think in that he and I are agreed, at all events, though I did not understand Mr. Watson to argue it in quite the same way. Well, then, if that is so, we get to the end of the first three points. Now, the next question is, to what point on the 56th parallel is the line to be drawn from the head of the Portland Channel, and what course should it follow between these points? Now, upon this point what we say is this, and our case is, I think, a very simple one. We say that when you get to the head of Portland Channel you must draw your line to the 56th parallel where it meets the ridge of mountains which you select as being mountains which fulfil the conditions of the Hlrd Article of the Treaty, and I do not believe if we were to be at it for another month you would find any other practical method of solving the Treaty. It is said that you must take the line much further than the head of Portland Canal because it is admitted that it does not go within 15 miles in a straight direction—within 15 miles of the 56th degree of latitude. I deny that there is anything in the Treaty to compel you to take it in that way. The 56th parallel is put in, but the real description is the head of Portland Canal, and the way it is argued, or was argued by Mr. Taylor, certainly deserves some criticism. Mr. Taylor says that the word " passe " has a peculiar meaning. He says that " passe'' takes you on to the 56th degree. He says that the word " passe " is purposely used, so as to get over the difficulty of following the water. But what is the direction you get, even assuming.that is so, which I do not admit for a moment? Here is what he says:— 572 Why, the word J passage " was put into the Treaty. And why did they put it there? Simply to make it absolutely certain that if the channel stopped 10 or 15 miles short of the 56th degree the passage would carry you up to the 56th degree, and the line, being coterminous with the passage, would go to the call, the 56th degree. I submit with great deference to everyone who shall disagree with me in reference to that, that while it is true that out of almost every contract, or will, or paper drawn by human being you may by ingenuity and skill evolve constructions which are startling in their consequences and support them by the most ingenious reasonings, but however ingenious that reasoning may be I come back to the simple words of the Treaty. Yes; but if you come back to the simple words of the Treaty, the Treaty simply says " along Portland Canal." It uses, no doubt, the phrase 56th parallel. Why this is to take you in this easterly direction is a matter that I fail entirely to apprehend. Through what is it to go? There is no channel after that. Mr. Watson implies that ALASKAN BOUNDARY TRIBUNAL. there may be a valley—I am not sure—I do not know whether there is or not, or whether the negotiators thought there was. I believe some of the maps, as a matter of fact, represent that there are two valleys which you may go through with this new idea of the word " passe " to the 56th degree. Now, this a matter of some importance on the subsequent branch of the case. You will notice there if you take up the largest of Vancouver's charts and proceed to draw this line as Mr. Watson would have you draw it, from the end of Portland Canal to the east along the 56th parallel you must go right through the mountains. The President. We have that before us. Sir Edward Carson. And that is " la passe' right through the mountains. Now let me show the Tribunal the importance of that on Mr. Watson's argument, with which I shall have to deal later, as regards the mountains. He says the negotiators looked upon these as real defined mountains. That was the whole burden of his argument. I call in aid this very argument of Mr. Watson's, that if his construction of this question as to passing on to this 56th degree is right it is plain they looked upon these as conventional mountains, upon which I shall have a good deal to say when I come to that part of the case. But why you are to go and break through what he calls a definite, defined range, which is to be read into this Treaty, as I shall show you afterwards, why you are to break through that for the purpose of afterwards bringing it back again and then going on is a matter I fail entirely to understand, but Mr. Watson further said that the negotiators themselves said you were to go to the east when you got to the head of Portland Canal. Now, my Lord, I should like to examine that very extraordinary statement. Of course, if that were true, it would go a very long way, and now what does he rely on ? On p. 401 of his Argument he quotes.; a passage which your Lordships will find in the British Case Appendix, p. 71:— Fo these reasons the Russian Plenipotentiaries have proposed as the limits- on the coast of the continent, to the south, the Portland Channel, whose head is about the 56th degree of north latitude, and to the east the chain of mountains Which follow, at a very small distance, the windings of the coast. That means the eastern frontier boundary for Russia, but Mr. Watson dwelt eloquently upon the fact that that demonstrates that when you get to the Portland Channel you are to go to the east, but that is not what the passage is referring to at all. Here is what Mr. Watson savs:— ms Allow me to call your attention to Faden's map> which Mr. Canning said was the most reliable map that was out. You remember that map, upon which I shall have something to say presently. 573 There is the head of Portland Channel Iindicating on map]. You go on north until you come on to the 56th parallel and the chain of mountains. Was it because Iindicating on map], the Russians designated it as a chain of mountains? That is Map No. 10, Sir, in the British Case, and I do ask your Lordship to follow me for a moment in reference to this. That is from the head of Portland Canal [indicating on map], you run up the 56th parallel, and then you take a chain of mountains. And how do the Russians say that you take the chain of mountains? You take the chain going to ARGUMENT OF SIR EDWARD OARSON. 641 the east. You will notice those are the exact words—and to the east the chain of mountains" which follows at a very short distance the sinuosities of the coast The President. It is obvious that is not the meaning of the word in that passage. Sir EDyvARD Carson. Of course not. The President. They are referring to the eastern boundary there. Sir Edward Carson. They are, my Lord. Mr. Aylesworth. It is in contrast to " au sud." Sir Edward Carson. Exactly, and I think I shall have to take many passages from Mr. Watson's argument to show that however plausible it may seem when it is being delivered with the great force and eloquence which he displayed before us, when you come to examine it you will find in some places a fallacy of the same kind underlying it if you investigate the portions and the passages that he read, and I may tell you the great importance of this is this, that Mr. Watson all through the course of his argument was leading up to the one point, and it is the only point which carries the American case the full way, and it is this: that you are to read into this Treaty a definite specified defined line of mountains and whether the mountains are there or not there, you are to take that line as the boundary between the two countries at the present time, as being the meaning of the negotiators. My Lord^he has strained passage after passage, as I shall show you, to try to get to that result. Now, another way in which the same point is made is in the United States' Case. I am not sure it is made in Mr. Watson's argument; I think he did make it, but I have not found it up to the present moment, but at all events it was made in the Case. In the account Mr. Middleton gives in his interview with Mr. Canning, he says that Mr. Canning explained to him that the Treaty said that from the top of the Portland Caiial they were to go east. Well, all I can say is that if we are to act in that way in construing a Treaty, that somebody goes to somebody else and tells him what the Treaty did, and that somebody else reports his view and his recollection of what took place at that interview, I think it would be much better to have no Treaties at all. It is the evidence of the recollection of another person as to a long and complicated Treaty which he tells us without going through the words of the Treaty at all, and you are asked upon that to construe the Treaty. Well, I said yesterday I put in a plea for the Treaty itself, as I do all along in the course of his argument. Mr. Aylesworth. Mr. Middleton's description of the line is that it turns east when it readies 56 degrees. Sir Edward Carson. Well, there is another version that shows again the danger of going away from the Treaty itself. The President. Which is an impossibility. Sir Edward Carson. That, of course, is impossible. And, now, my Lord, Mr. Watson made another very curious mistake in 574 this matter. He criticized our line; and what was his criticism upon it? He made this criticism The President. As to its coming down south, you mean ? Sir Edward Carson. He said, " But look at their line," and he says it descends, and at another page (p. 396) he says, " They make it run south from the Portland Canal." He really said it so often S. Doc 162, 58-2, vol 7 11 ALASKAN BOUNDARY TRIBUNAL. that I tried to find an explanation of how he was ever misled into that, and I found it, I think, in this, that he had the map turned upside down. The President. Yes, I think that confuted him at the time. The map was east and west, instead of north and south, a Sir Edward Carson. The map was running east and west that he put up there, and when he looked at our line he thought it was the most preposterous one he had ever seen, because it. was running south; as a matter of fact it is running north, of course, because it was below the 56th degree of parallel. Mr. Lodge. Your line when it leaves the point of Portland Channel there, much where you think it ought to start, surely does not run north; it runs west, does it not ? Sir Edward Carson. No, it runs north. Mr. Root. A few degrees north of west, 10 minutes north, something of that kind. It runs north about 5 miles in 57. Sir Edward Carson. That is what it does, but it certainly is not an apt description to say it goes south, because certainly then it could not conform with the Treaty, which says it is to go north— " au nord "—and really the only answer you can give to this question, however long one may discuss it, and I certainly do not want to be longer than I can help, the only answer you can give is a similar kind of answer to that which is given as to the line between Prince of Wales Island and Portland Channel, " Find your mountains and then draw your line," and, of course, it is very important for Mr. Watson, as his whole theory is based upon what I lielieve to be an utterly false view of this Treaty, or what I suggest to be an utterly false view of this Treaty, that you have a defined line fixed by the negotiators. That is the reason that he props up his theory from time to time by giving this extravagant and, I think, unnecessary argument to the Tribunal, which is not founded on a true apprehension of the passages to which he himself refers. Now, my Lord, I come to a matter which I know has given me a great deal of trouble in this Case, and that is as to the fifth, sixth and seventh questions. The President. Just wait a moment, Mr. Solicitor. Would you mind my putting before you No. 30 of the Ajnerican Atlas? Now, in the left hand sheet of that you will find the northern end of Portland Channel. Sir Edward Carson. Yes. The President. Now, we need not discuss your argument, which I thoroughly follow; it is that when you get to the end of the water •you go away west a few degrees north until you strike the mountains. That is your point? 575 Sir Edward Carson. Yes. The President. What I want your help about is this; Assuming we are not able to adopt that contention—I am not in the least expressing any opinion of any kind, as you understand, but that we have to get to 56 degrees. Sir Edward Carson. Yes. The President. Have you anything to say as to which valley we should go up ? It is such a very small point that it is scarcely worth the breath it takes to put it to you, but one must put it because I do not want it to be said that I did not put it to you. ARGUMENT OF SIR EDWARD CARSON. 643 Sir Edward Carson. Exactly. The President. The right-hand valley up which the dotted line is drawn was the right-hand valley which goes a little more to the left until you reach 56 degrees, and if you would just take, Mr. Solicitor- General—I have had it looked out for you—if you take the British survey and have it before you at the moment, you will find the right channel, what I will call the easternmost channel, is called Bear River. The westernmost one is called Salmon River? Sir Edward Carson. Yes. The President. And it does look as though Salmon River does seem to come in a little lower down, rather below the head. What I really want to know is, whether you have any view as to whether, if we did not adopt your argument to get to 56 degrees, you ought to go either up the one valley or the other, or on to those mountains which are between the two. It makes so little difference that I say it is scarcely worth while putting it, but I did not like not to ask you. Sir Edward Carson. You only put the difference to me between the two channels? The President. Yes. Sir Edward Carson. Of course, there is a great difference between them, and the whole Argument—-— The President. I am not talking about yours; I am assuming we could not adopt your vie'w of going away west from the water. Have you any view about going up one channel or the other ? Sir Edward Carson. I really have not except that I should like to say this, that I protest against going up either of them because, I say, in the first place, I do not think either of these rivers is the Portland Channel. They are rivers flowing into the Porland Channel, but I do not think that they are the Portland Channel. The President. You have answered what I wanted, Mr. Solicitor. Sir Edward Carson. And before I deal with this fifth question, I will follow Mr. Watson in dealing with the three questions 576 practically together, because you cannot go over each of them separately, and I do ask the serious consideration of the Tribunal to some observations that I will make upon the questions themselves. Now the fifth question, Mr. Watson said, meant this: " In other words Question 5 which is submitted to you is virtually, shall the eastern line run around the heads of these bavs and inlets ? Does it run around the heads of the bays and inlets, and I think your Lordship rather accepted that that was the view of the question. The President. Yes, that was a fair expression of what the question means. Sir Edward Carson. I think, my Lord, what Mr. Watson said is open to several meanings. If he means that the question is that, no matter what the survey showed, and no matter what the topography of the place might be, must it run round the head of every inlet in the whole lisiere, then I assent. I say the proper way to put it is, must it necessarily run round the heads of these inlets, and must these bays, ports, inlets, havens, and waters of the ocean be necessarily divided, no matter what the topography of the place shows from the British possessions ? Now, my Lord, I submit that it is impossible to so hold if I am right in my construction there, because look what would happen. 644 ALASKAN BOUNDARY TRIBUNAL. You would ha\Te to hold that, no matter what you found when you came to survey, if you found, for instance, taking Mr. Watson's own words and his own theory, if you found a dominating continuous range running along the coast up to the side of each or all or any of these inlets you would in every case have to say that you must so arrange your line that you go round the heads of the inlets. I say that is an impossible construction. I say you cannot, considering the way in which the Treaty itself is drawn, to which I shall have to refer afterwards, you cannot come to any such conclusion, and therefore there is at the bottom of this question really this question of construction. I think that is really what the question means—must it necessarily run? are you to start with this, that the negotiators may not, under any circumstances that might turn out, leave a single inch* of any inlet to the British Government ? The President. I was not excluding that when I put it to you. Sir Edward Carson. Perhaps not. The President. I quite assume that if there was a continuous range within the meaning of the Treaty which guided you across an inlet, by your contention you might Jiave to follow that. Sir Edward Carson. Your Lordship sees—^-1 will have to advert to it subsequently—we rather get off the realities of the Case by always confining our attention to the Lynn Canal, as if it was the only ms CD ms 7 «, inlet in the place, and the Lynn Canal is a very particular kind of inlet, rather different in some respects from some of the other inlets along the shore, but not that the answer to this question, if it is given in the affirmative, cuts us off from every inlet of every kind. If you s m7 ms ms take m all the various bays that are there, it, of course, demolishes entirely every portion of Mr. King's line if this is sustained, and the result must be that even if you got your mountain range coming up to the very narrowest inlet, and had it going on again at the other side of the inlet, you must still in that case say, " No, that won't do, we must give clear possession of the whole of these to Russia under the Treaty." That is what it would come to, and you are not enabled by the question—and this is what I wish particularly to call attention to—you are not enabled by the question to distinguish an • •*/ ml ^ ± ^ O inlet which is formed by promontories abutting out into the sea from inlets which indent the coast by seeming to break it and go inward into the land; there is no distinction, and your answer has to be for one and for all in relation to that matter. 577 And then mark the result. If that is the true meaning of this question, and that you are to so necessarily deal with the inlets, mark the result. Then you must come to the conclusion that it was the meaning of the negotiators that all along this lisiere, so far from the limit being 10 marine leagues, certainly in many places they were to have a lisiere of 100 miles or more. Is that the meaning of the negotiations ? Is that possibly the meaning of the negotiations in relation to this question? Of course, I will come to that in a few moments, but I only want to point out the result that would follow— that it was necessarily intended they should have in some places over 100 miles of lisiere, because, in some places—take, for instance, Lynn Canal—you would get your 35 miles behind it of the lisiere; you would get the Lynn Canal itself 80 miles long, and in that case you would have 115 miles of lisiere, and you have only to look at the map in which the American line is drawn to see, when you take these ARGUMENT OF SIR EDWARD CARSON. 645 inlets as being necesarily included in the possession which is to be given to Russia under this Treaty, the large expanse of lisiere which they claim and which you would give to them,,and say was necessarily meant to be given to them by the negotiators if you adopt this line. There is one other matter to which I should like to call attention. The wording of that question says nothing, of course, about how you are to draw the line; but if that question were answered in the affirmative, would it be open to argue that as regards these inlets, whilst you divide them from the British possessions, you can divide them by drawing lines round the sinuosities—would it be open, if you give an answer to that question, or how is that to be settled afterwards? Because it occurs to me and I suggest it to the Tribunal, so that each member of the Tribunal may have it present to his mind when he is coming to a conclusion upon this question, that the net result of that would be to draw a line straight across at the top of the inlets; and if that question is answered in the affirmative, it certainly will be contended that the result is that the inlets are themselves matters which give the indication to the breadth of the lisiere. The President. I do not really think that is so, Mr. Solicitor; but I think there are two boundaries contemplated by this question: the one in question, I mean the crest of the mountains; the other, a line not more than 10 marine leagues parallel to the sinuosities of the coast. I think that that question—I quite agree with you that the answer in the affirmative would mean that the boundary would run round the heads of the inlets. I do not think it follows that it would not follow the sinuosities of the coast, whether it was the mountains or whether it was the other line. Sir Edward Carson. My Lord, the previous part of the question merely recites the Treaty. The President. It is because it recites the Treaty that I think you must read those words " continuous branch or strip of coast not exceeding 10 marine leagues " with reference to the previous words. Sir Edward Carson. Yes; well it may be so. I am only pointing out the importance of bearing in mind what is the result of giving an affirmative answer to it, and if an affirmative answer is given, I know perfectly well we will be met with this: You yourselves say that it was impossible to draw a line according to the sinuosities of these inlets which it (in practice) is having regard to the 10-marine-league limit, and how it will have to be drawn I doubt if we will be any more forward towards the conclusion of this matter between Canada and the United States if it is to be dealt with in this way. However, that is not probably for us now, that is for diplomats, but I only wish to point out the very great importance of the consideration of the question itself, even before you come to the question how you are to solve it. I wish your Lordship would look in connection with this at the contour map, which shows Holkham Bay, Endicott Arm, and Tracey Arm—it is the second map in the British set—because I think "it is better to have the map before you when you are consider- 578 ing what would be the effect of your answer to the question. Now that will illustrate very well the points I am trying to bring home to the Tribunal. The entrance at Holcombe Bay is between 3 and 4 miles, you see, looking at it—perhaps not so much. The President. Yes. ALASKAN BOUNDARY TRIBUNAL. Sir Edward Carson. If you have a dominating range running along the coast all through the part there coming up to the entrance to Holkham, joining again upon the other side, going then across the continent, are you to say that it was necessarily meamt that that dominating range should be discarded, and that you must then go back from your dominating range and include those various arms ? Then I ask how on earth is it to be done? I say the thing is an impossibility. How are you to draw the line around Endicott Arm and Tracey Arm on the other side? I say it is an impossibility, unless the question means that the line is to be drawn straight across. This is what I particularly want to guard the Tribunal against, because that plainly is not the meaning of the Treaty whatever may be the meaning of the question. Now, my Lord, I come to the next question which, I think, is full of even graver difficulties:— If the foregoing question should be answered in the negative,— If you answer the other question in the affirmative this does not arise— 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 width of the lisiere was to be measured. I pause there for a moment to explain my view:— And in the event of the summit of such mountains proving to be in places more than 10 marine leagues from the coast. From what coast ? That is the first question that arises. I cannot say, and I put this as a matter for the serious consideration of the Tribunal. I cannot say how this coast is to be decided where there is ms no power in the Tribunal to define what is coast. Now I go on:— 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. Now, I think there must be some misapprehension about this: That first question seems to be an additional one to No. 2, and not an alternative one, because I think that deals with the case where you are not affected by any inlets or indentations. I pause there to ask what is the " ocean strictly so called'' ? We heard an elaborate argument yesterday from Mr. Taylor that there could be no ocean here at all, because we are dealing with seas. With that I will deal in a moment, but what is the mainland coast of the ocean, strictly so-called? Which of our contentions does that support ? I do not know; I fail to see. The 4-ftorney-General asked Mr. Dickinson to send in a map marking what he says was " the mainland coast of the ocean." Just look at it, if you have it there; it goes round every indentation there. On the other hand, we have marked a map with what we say is " the mainland coast of the ocean," which is entirely different; and, on the other hand, Mr. Taylor rather disagrees with us both, and says ARGUMENT OF SIR EDWARD OARSON. 647 we are all wrong, and says there is no ocean at all; that is inland seas. Well, supposing you answer that in the affirmative, 579 or supposing you answer that in the negative, what is the result? Unless it means that the very Treaty under which we are dealing has itself fixed. it in some way or other what is the meaning of "mainland coast of the ocean"? But may I point out this: that there is not in this Treaty the power that is given in the Hague Treaty; it was purposely left out. It has not given any power to you to decide even your jurisdiction in relation to the matter. There is a clause in the Hague proposals to that effect, but it it is not here. I am not raising this as any quibble or technicality or anything of that kind, but I want to know, and I want each member of the Tribunal to consider what will be the effect of his answer, yes or no, to that question upon the contention between the Partes, and when you go on there to the next branch, which I submit deals with the case of there being indentations, we come to this and say:— ' ■ ''iM^e 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 from the line of the general direction of the mainland coast? Now we come to the same difficulty: what is " the general direction of the mainland coast" ? Supposing you say it was to be from " the general direction of the mainland coast," which I understand to be more or less the contention here, was the coast that ran up there at the side of the Lynn Canal the general mainland coast? Is the Lynn Canal included because it is simply a sinuosity of the coast itself and not an indentation? That is the view which Mr. Watson put forward, and he said: " You have no difficulty. Take the coast; there it is; you go round it; there is no difficulty about it." Well, if you answer that, which is the only thing I can ask you to do, in our favour in this question, " from the line of the general direction of the mainland coast," if you give me the answer in my favour, will that include the Lynn Canal, will that be holding that Lynn Canal is not mainland coast? I think the misfortune of the thing is, there is no power in the Tribunal to say one way or the other, and if you are to say we are to have the mainland coast, I do not see we are very much more forward in the matter, because they may afterwards say that is not the physical construction of the Lynn Canal at all, and that it is simply a continuation of the coast, a promontory, and nothing more. It enables you to draw no distinction, as I said before, between that and other inlets. Or (b) from the line separating the waters of the ocean from the territorial waters of Russia. What is that? WTiere do the territorial waters commence so far as it has any effect upon this Case and where does the ocean end? That is, " ocean " in connection with this matter. Mr. Taylor argued yesterday that there was no ocean in these inland seas, that they are all territorial waters, as I understand it. He said you have no more right to treat the waters along Stephens passage and thereabout as " ocean " than you have the right so to treat the Lynn Canal. He said they were all territorial waters, but if that is so, what is the ngt ALASKAN BOUNDARY TRIBUNAL. land separating the water of the ocean from the territorial waters of Russia? Mr. Aylesworth. Can you help us at all, Mr. Solicitor, on that last paragraph, paragraph (b)% That is the one that has occasioned me the most trouble. Is there any explanation of the meaning of that line other than a line outside of all the islands and from which the 3-mile limit would be taken? Sir Edward Carson. Well, that, of course, was not even in contention between the Parties, and why that should be put in I do not know. I do not know, but I would submit that the meaning of that was that the Treaty itself treated as ocean the waters 4nside those islands. I will explain the reason why I think that would be so in a few moments, and I think that (b) there is to be taken to be the case where you draw a line across the entrance to an inlet, joining 580 the headlands, and you treat the water outside as ocean and the water inside as territorial water. I cannot conceive for a moment that the negotiators of this Convention under which we are acting thought that we were in any wise contending for any of the waters outside these islands. Ajid now, as regards (c), " or is it to be drawn from the heads of the aforesaid inlets? " Now, mark there again. If you answer yes to that, what are the inlets? Are you to give one answer to that, and are you to say that the inlets, that are plainly marked as indentations in the general line of the continent, to use a neutral term, are you to say that they are all exactly in the same position ? The misfortune of that is, that if you give an answer at all, it'comes to exactly what I said before as regards the fifth question; it comes to the same thing; you have to put it in relation to every inlet, and I cannot see, taking this, how it can help arising in relation to every inlet, or certainly in relation to every inlet that is of any length, because where are you to look for mountains? You do not expect to get mountains in the middle of the inlet, or in portion of the water. That would be absurd, and, therefore, you are asked, assuming that the mountains are so far away, that you have to apply the 10-league rule—are you to measure only from the head of the inlet? If the theory upon the other side is right, all the land which is touched by salt water is coast. That is the mainstay of their Argument. If you answer this question in the affirmative, that you are only to measure from the heads of the aforesaid inlets, what becomes of the line of coast round these inlets ? Will that be a judicial decision that they are to be discarded ? I fail entirely to see how the answer to that question can be satisfactorily given by a mere yes or no. The President. I think, Mr. Solicitor, that what has happenedi here is that which has not unfrequently happened in other International Treaties of the kind. They have put in all the questions that anybody suggested, and they have practically put the fifth question in over again at the end, and the last part of this (c)is very like the fifth question over again, but including the possibility of mountains. Sir Edward Carson. With deference and respect, my Lord, I think it goes a great deal further. I think (c) certainly includes the idea, to which I called attention, which I think might be included in Question 5, taking the sides of the inlets into consideration. The President. Well, possibly. ARGUMENT OF SIR EDWARD OARSON. 649 Sir Edward Carson. I really am very anxious upon this point that you should know exactly where you are in giving answers, because it does seem to me that unless one goes very, very closely into the matter, the answering of one of these/questions may lead very much further; an answer yes or no may lead one very much further than is intended upon the construction of the Treaty. For myself I suggest to the Tribunal that the question (c) means the American line as far as I can see. The President^ Possibly. Sir EDyvARD Carson. Certainly as far as I can see the American line, and certainly I think that is a line which it will be impossible to hold in the present Case. May I make one observation here as to what I think in considering these questions the Tribunal ought to have before their minds ? All I can say is I hope they will be able to give a clearer view about it than I have done, though I have given many hours' consideration to it. May I make an observation at this stage about this question of "ocean' and "coast," because it becomes extremely material just here ? Mr. Taylor argued yesterday that there was no political coast on the mainland, and he argued, if I understood his argument, 581 that all the waters there belonged to and wrere territorial waters of Russia, and that you could only look for the political coast outside. Now, my Lord, there is a fact overlooked in treating of the subject in that way, and it is this: whatever may be the truth of the position now, what you have to consider is what was the legal status of Russia when Russia owned the islands only, and the mainland was not Russian, and did not belong to Russia. That seems to me to be the whole fallacy underlying the Argument upon the other side. Of course once the Treaty is concluded you have the Russians in possession both of the coast and of the lisiere, of the coast and of the islands, and they have the waters upon both sides, but you cannot, with great deference to the argument of Mr. Taylor, you cannot treat it as though that was what the negotiators had in view at the time when Russia was not in possession of the mainland. What you really have to consider is the effect of this Treaty, and the meaning of this Treaty, having regard to the fact that it was being negotiated by the Russians, standing as it were upon those islands, having in their possession all those islands, and opposite to them, an unoccupied mainland, or the mainland if you like belonging to an unknown person or claimed between a number of persons. Am I to be told that under these circumstances there Was no political coast on the mainland? Am I to be told there was no ocean there ? It seems to me the moment you get yourselves back to what they yvere really negotiating about, and put yourselves in the real position of the negotiators, and do not take merely the position that the Russians have entered into both sides, both the islands and the mainland, I think you get an entirely different view of the situation. It is from that point of view you have to consider the Treaty. Mr. Lodge. Mr. Solicitor, did not Russia claim from the beginning to be the owner of all the coast, mainland and islands and everything? Sir Edward Carson. I admit she claimed to be. Mr. Lodge. Well, all through, was it not stated that the Emperor of Russia was laying aside his claim of strict right and that for the 650 ALASKAN BOUNDARY TRIBUNAL. >Hp hfs purpose of promoting friendliness he would agree to the line of the Convention ? Sir Edward Carson. Both sides laid aside strict rights. The mainland was claimed by Russia, it was claimed toy England, it was claimed by America above all and more strongly tlian anybody else; and they said, " Let us lay aside this question, and hang it up, and let us deal with it on that basis'as a matter of mutual convenience." The basis of the Treaty was not Russia's ownership; that is my point. Of course, Mr. Watson devoted a considerable amount of time to this question because he was leading up to this very point, he was leading up to the conclusion on this very point, and it is the point that Mr. Taylor mainly relies upon, and I shall have to devote considerable time, now that point has been raised, to showing how the matter stood as regarded that particular matter. From my point of view it would be sufficient to show that the mainland was in dispute, because unless the Treaty was concluded upon the basis that Russia was the owner of it, the question of these being the territorial waters of Russia cannot aid or assist us in this matter at all and cannot aid Russia in the matter at all. Mr. Root. Was the mainland any more in dispute than the islands west of Chatham Strait ? Sir Edward Carson. Oh, yes; the islands were conceded to Russia at a very early stage because Russia had an establishment down at Sitka as far as the 56th or 57th degree of latitude. Mr. Lodge. Which was east of Chatham Strait? Sir Edward Carson. Which was east of Chatham Strait. Well, all the islands were conceded to belong to Russia. 582 Mr. Lodge. Why, surely not Prince of Wales Island, about which there was a specific agreement ? Sir Edward Carson. With the exception of a small portion at the bottom that they had to relax from the 55 to bring in, because it was a part of that, and they had Sitka, which was in the latitude I have mentioned. That is a matter I shall have to go into in greater detail, but what I want to press here, when I am merely considering the question here, is that that is a vital point to consider, if I am right in relation to your answering these questions, and it gets rid of the whole of the idea that you cannot treat the mainland coast there exactly as if the islands were out of the question, because if the Treaty was not made upon the basis that that mainland coast was conceded to be the property of Russia, then I say you had a political coast. I say you had the ocean there in the ordinary sense quoad that coast, and, of course, the bearing of that, when you come to consider in the Treaty how far you are to form your coast and what answers you are to give to these questions, is absolutely vital in this Case, because you have to determine what was meant by " ocean I1 in the Treaty, the ocean being a matter that fixes, as I shall submit to the Tribunal, the question of coast. Mr. Lodge. Is your contention, Mr. Solicitor, that Russia had no undisputed ownership of the mainland—nothing but a claim ? Sir Edward Carson. Nothing below Prince William's Sound. Mr. Aylesworth. Nothing below the 60th parallel. Sir Edward Carson. I think I will prove that, and I think I will prove it in the most satisfactory way by the statements of Americans at the time—the statements of the Americans themselves. ARGUMENT OF SIR EDWARD OARSON. 651 My Lord, passing from the construction of Question 6—I wish I were past it altogether—passing from the construction of Question 6 to Question 7, I should like to say a word upon that. Now 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 from the coast, are declared to form the eastern boundary? Now, that question is not so simple as it might appear at first sight. Under that question you must find the mountains all the way, whether they are within 10 leagues or not; you must have the mountains because it is not left for you to determine what is " coast," or whether they are near the coast or far away from the coast. The President. Well, but incidentally we shall have to consider I coast' in answering that question; it is just the same point over again. What is coast? We shall have to consider it, and make ur> our own minds about what it is. Sir Edward Carson. Yes, you will have to make up your own minds one way or the other: but that does not bind in the least either ms 7 of the countries The President. Well, I am not so sure. Sir Edward Carson. Wlio are parties to this. The President. All I mean is, that in considering the seventh question we shall have to make up our minds, and, if necessary, to make clear what we mean. Sir Edwtard Carson. All you will do is to report what are the mountains. 583 The President. Yes. Sir Edward Carson. Very well, you will report what are the mountains; but before the two countries agree whether they are 10 marine leagues from the coast or not, they must have the mountains the whole way. This does not merely say that you are to find the mountains which are within 10 marine leagues. It says exactly the contrary. It says: What, if any exist, 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? It means the mountains all along. The President. Well, it may be all along, but supposing—I only put it for example—supposing we said we can find mountains between the Lynn Canal and Snettisham Harbour, and we have not sufficient knowledge as to the coast below, that has got to be found out. There is no reason why we should not say it. Sir Edward Carson. Well, you may say it, my Lord. I do not think it will be very satisfactory. The President. And to that extent both countries will be bound. Of course I am assuming that the whole Tribunal come to the conclusion, or a majority of them. Sir Edward Carson. I cannot admit that, with great deference. The President. The Treaty says so. Sir EoyvARD Carson. I cannot admit that, nor do I admit it. My contention is that you must find the mountains the whole way, and unfortunately it is not left to you to find the mountains which are within 10 marine leagues of theN coast. It is unfortunately not left 652 ALASKAN BOUNDARY TRIBUNAL. to you, nor is it left to you to find what is " coast," and I must assume—I have nothing to say to diplomacy, and I care nothing about it. The President. But, Mr. Solicitor, supposing that south of Taku Inlet was a plain, and there were no mountains. Sir Edward Carson. Yes. The President. If between Taku Inlet on your line crossing the Lynn Canal, or the Aonerican line to Mount St. Elias, there were mountains, why should not we say so ? Sir Edward Carson. I do not know why you should not. The President. I mean, why does not the question permit us to say so? Sir Edward Carson. Because the question says, " if any exist,- what are the mountains referred to? " The President. Well Sir Edward Carson. You may say that none exist. The President. We may say they exist half of the Way or a quarter of the way, and indicate it. «/ 7 Sir Edward Carson. You may; all I say is, it does not determine the question. It is suggested to me, my Lord, that we are at 584 cross purposes. I do not know whether I have made myself clear, or whether I have understood your Lordship, I am sure, but what I am trying to press upon your Lordship is that what we have to do is to try.and find the mountains for the purpose of applying Article III of the Treaty. The President. Certainly. Sir Edward Carson. Certainly. The President. And I really was not differing from you, I was only wanting to say that, as I understood, your proposition seemed to me to put too narrow a construction upon the seventh question. Exactly the same point occurred when Mr. Watson was arguing. Mr. Watson said, if you cannot find a range the whole way, mountains are gone, and I ventured to point out to him that that seemed to be going much too far. Sir Edward Carson. With great respect, I do not think that Mr. Watson quite meant that. What he meant yvas, that you must find a range within the 10 marine leagues the whole way. What the question says is, that you are to find the mountains the whole way, if they exist, whether within 10 marine leagues or not. *7 7 CD The President. It does not matter, for this purpose, if they are outside 10 marine leagues. Sir Edward Carson. Now, if you find that no mountains exist, there is no question at all as to what is to happen. The President. Certainly. Sir Edward Carson. We must bear the consequences. We must simply praise diplomacy for leaving these questions open. Mr. Root. What is to happen, then, would depend upon the answers to the fifth and sixth questions, or to the fifth or sixth question. Sir Edward Carson. No, with great respect. I have not made myself clear—with great respect not. Our contention is—and it is hardly worth pursuing, because it is not open to the Tribunal—our contention is that if the mountains fail there is no Treaty—the Treaty does not operate. If the American contention is right, the ARGUMENT OF SIR EDWARD CARSON. 653 Treaty does operate—but that is not left for the Tribunal to decide. That is the point that I wish to make upon this question. The President. That is the point the Attorney-General made, too. Sir Edward Carson. You see, the importance of this contention I am making now is that the Americans, in the United States' Case (p. 106), say that the answer they ask you to give to this question is that there are no mountains within 10 marine leagues. That is not an answer to the question; that is not the question put, therefore it is no answer to it; and I submit that the whole of this shows that this Treaty—and I am entitled to use it in this way—that this Treaty was based upon the hypothesis that these mountains did exist; otherwise you must.have been asked as to what was to happen if there were not any—yvhat was the proper construction of the Treaty. And may I, in the view I put of this question, call your attention to the curious condition of the Ajnerican line there, because they do not profess that they have ever surveyed the country between their line and the ocean at all. Whether this chain exists nobody knows, and the reason of it is that because in 1892, when the survey was made, which is the survey which we have in evidence, and which contemplated this subsequent hearing after it, nobody ever thought of going back there to survey the mountains; and it certainly, to put it in the most forcible 585 way that I can—it certainly would be a curious thing that you should find in favour of a line which, for all we know, runs direct through nothing to mountains, and at the same time say there are no mountains, which is really what it may come to so far as the American line is concerned. Now I come to consider these Questions 5 and 6 dealing with Mr. Watson's argument upon them, and I think I am entitled to assume that Mr. Watson's argument presented everything that the United States relies upon as regards the antecedent negotiations. He did not profess, except in one observation, to go any further than the date of the Treaty; he did mention one matter afterwards to which I will come subsequently, and I am going to attempt to show you that nothing that he has said can in the least degree take you away from the Treaty, and the Treaty only, in the determination of this matter. Now, just to take what I consider to be the general line of his Argument. What he says is this: First, he attempts to prove that before the Treaty Russia had admitted exclusive sovereignty, at least down to 55 degrees, of the North-West Coast. That is his first point, and that point is now, as I have said before, become of extreme importance in this Case, having regard to Mr. Taylor's argument. Secondly, he says that the negotiations show that England actually offered terms which necessarily included all the interior waters. Of course, if he is right in* that, he has gone a very long way, and I shall have to examine his statements in relation to that. He said over and over again in the course of his argument, "Are not these the very waters we are contending about here?" whereas my contention is that, so A ^3 mJ ' far from that being the case, these inland waters were never mentioned at all, were left an indefinite factor in the Case to be brought out as regards this line according as the survey turned out one way or the other. And finally, he says that the negotiations show the intention of a barrier such as negatives the line crossing the water. ALASKAN BOUNDARY TRIBUNAL. Upon this point I think that is a fair result of the argument that Mr. Watson used. Now, I take first his theory that Russia had the admitted exclusive sovereignty on the mainland down to 55 degree^. He uses it in this way. He said if Russia had that coast along there, she necessarily had these inlets. Why should she give them up when she was getting that piece of the coast? And, of course,' if the premises were right, the conclusion would be, I will no say irresistible, but would bring you a long way. Therefore, upon that point, as well as the one which Mr. Taylor made, it is extremely important to examine this claim which is now put forward as regards Russia. Now, I take it in two ways. I say it is not true in fact, which of course is quite sufficient if I satisfy the Tribunal. I say, secondly, apart from its not being true in fact, that the negotiations proceeded between the various Powers concerned upon the basis that it was to be considered as disputed territory; and that carries me just as far as the other, so far as Mr. Watson's argument is concerned. Now, Mr. Watson says that Russia—I should like to read this passage because it is rather an impressive one, and I will commence towards the bottom of p. 346:— Let me call your attention as briefly as I may to what the situation was as to the respective claims of Great Britain and of Russia to the North-Western Coast, and see if I cannot satisfy the Tribunal that at one time when the discussions were going on the American claim to this North-Western coast down to the 55th degree of latitude was practically admitted by England, and was overwhelmingly proven in her favour, except as to the extent and width of the territory inland to which she was entitled to go, and that England never put in a claim except in the most formal way, which was practically afterwards retracted to any portion of the North-Western Coast down to the 55th degree of latitude; because if that is so, if there was practically an admission of Russia's ownership of this North-Western Coast down to the 55th degree of latitude— the Tribunal will notice we are discussing to-day only the boundaries down on the mainland to the 56th degree—and if it is true that Russia then was admitted to be the Sovereign of the whole North-Western coast down to the 55th degree, and she yielded a part of it to start her line on the mainland at the 56th degree. I apprehend that the proof must be overwhelming that will induce the 586 Tribunal to believe that she not only did—that she not only gave up her claim to the 100 miles at sea—and not only gave up her claim to the four degrees of additional latitude—but the proof would have to be positively overwhelming to induce any person to believe that Russia gave up the heads of the bays and inlets where her trade and her fishing and her hunting was done, and agree to a line which would cut them in two, giving to England the heads of the bays and inlets, and only to herself .just the mouth, and then cutting into her hunting ground the exclusive right which had been given to the Russian-American Company. Now, let me see if I can briefly refer to the proof which sustains, I think, this proposition: first, that Russia was the owner, the admitted and exclusive owner, of this North-Western Coast down to at least this 55th parallel. Russia claimed that her titles—and this was re-asserted in the letters of M. de Poletica and Count Nesselrode—she claimed that her title was perfect in three different ways: first, that she had discovered North-Western America; next, that after t^he discovery she had claimed in a public formal way, of which all nations of the earth have noticed, and in which they all acquiesced; and, thirdly, that she had followed that up with such an occupation of the North-Western Coast as was consistent with the purposes for which it was useful. Now, it is certainly true that as early as 1741—and the Russians claimed as early as 1648, and possibly in 1728— that Russia discovered this North-Western Coast; but, coming down to 1741, Captain Behring and Captain Cherikoff certainly, in July, 1741, discovered this North-Western Coast, Cherikoff on the l§th July, 1741, in latitude 55 degrees 21 minutes north, and you notice how close he was down to the first Russian claim; and Behring on the 16th July, 1741, at Mount St. Elias. ARGUMENT OF SIR EDWARD CARSON. 655 Now, every single statement made there I traverse—and I look upon this as very vital to my case; because I see fully the force—and there is never any use in blinking one's eyes to the force of an argu- ment that is made against one, and it is not the way to meet it. I see fully the force—I see fully what Mr. W'atson is driving at, and there- mv ml cD 7 fore I must proceed to see what foundation there is for the fact that the Treaty was based upon this assumption, that there was an unde- nied sovereignty in Russia of this portion of the coast. Now, the first thing he takes is the discovery in 1741. I venture to think that I shall O ml be able to show that that assertion—I say groundless assertion—was ms CD exploded both by Great Britain and by the United States in the course of the negotiations. I turn first to the United States' Case Appendix at p. 48, which is the letter written by Mr. Adams to Mr. Middleton. I am taking now the confutation of this very bold and daring proposition by the United States themselves. This letter from Mr. Adams to Mr. Middleton was the letter written immediately after the Ukase of 1821 had been published and notified to the various Governments. Now what does he say at p. 48 ? From the tenour of the Ukase, the pretensions of the Imperial Government extend to an exclusive territorial jurisdiction from the 45th degree of north latitude on the Asiatic coast to the latitude of 51 degrees north on the Western Coast of the American continent. The latitude of 51 degrees 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. The United States can admit no part of these claims. Their right of navigation and of fishing is perfect, and has been in constant exercise from the earliest times afer the peace of 1783, throughout the whole extant of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial jurisdictions, which, so far as Russian rights are concerned— . Now, I call Senator Lodge's attention to this, as he put the question to me— are confined to certain islands north of the 55th degree of latitude, and have no existence on the continent of America. Then he goes on to the passage I was reading, and I merely read from the end of that passage:— 587 • From the article in the " North American Review | it will be seen that the rights of discovery, of occupancy, and of uncontested possession, alleged by M. Poletica, are all without foundation in fact. And I now ask the Tribunal to notice that those being alleged by the United States to be without foundation in fact—discovery, occupation, and uncontested possession are exactly the three words that the United States' Counsel now use as going to show that that was the conceded position of Russia at the time that this Treaty was made. The President. Your argument is, I suppose, that they got the lisiere by concession from Great Britain at this time? Sir Edward Carson. Certainly. The President. And not by previous occupancy? Sir Edward Carson. And not by previous occupancy at all; they got it by concession. America was not concerned in j the lisiere; America at a very early stage in the negotiations withdrew her claims to far below the lisiere; and they were not concerned with ALASKAN BOUNDARY TRIBUNAL. the lisiere. With them it was merely a question of conceding certain rights—they never defined the lisiere, in fact; it is sufficient to put it in that way. Mr. Lodge. Do you contend that the mainland coast then belonged to Great Britain, or that it simply belonged to no one? Sir Edward Carson. No, I do not, I think we had a better claim to it than Russia; because you will see as I go along that Vancouver took possession of it in the name of England a long time previously; and I think if it came to be fought out upon the question of title— I think England had a better claim than Russia had. Mr. Lodge. But they were both claimants. Sir Edward Carson. They both claimed; yes, they both claimed; so did Spain; and so did the United States; but what I want to disprove is Mr. Watson's argument that Russia had an undisputed sovereignty. Mr. Turner. Now, what would be the effect of the Treaty of 1825 if each nation had conceded the right to that other nation to that particular part which the Treaty gave to them ? Sir Edward Carson. That is my point. Mr. Turner. If that Treaty did—if that was the effect of the Treaty—then the lisiere was Russia's even before the conclusion of the Treaty. Sir Edward Carson. Why? Mr. Turner. I asked you if the effect of the Treaty was not that each nation conceded that that portion of the territory which the Treaty gave to them was their own by reason of previous acts. Sir Edward Carson. No, bv reason of the Treaty; by contract'. Mr. Turner. Do you hold that Treaty as parcelling out a piece of territory that was not owned by any nation on earth ? ms «/ */ 588 Sir EdWx\rd Carson. I should have thought that if there was anything that was clear in the negotiations here, and anything that was perfectly easy to understand from the earliest time of reading them, it was that the effect of the Treaty was to parcel out portions of that lisiere to the various nations who were making claims to the whole. Mr. Turner. To draw a line between the rights of the respective Parties. Sir Edward Carson. No, a great deal more than that. Not merely a line between the respective rights of the Parties; but to draw a line between the territories, which is the important point. But to say that that Treaty or to suggest that that Treaty recognized any previous title in any of them is, I venture to say, with very great respect, absurd. It was based upon the fact that they were to apply themselves to mutual convenience; I can show you that over and over again in the negotiations; but because they agreed to that, it is certainly a curious way of arguing backwards that because you agree that a man is to be possessed from a certain date of something, therefore you are estopped from saying that before he got it from you he had no title. I venture to think that it is an "unheard way of arguing. Now this letter goes on:— In M. Poletica's letter of the 28th February, 1822, to me, he says that its first charter in 1799 he gave it the exclusive possession of the North-West Coast of America, which belonged to Russia, from the 55th degree of north latitude to Behring Strait. ARGUMENT OF SIR EDWARD CARSON. 657 In his letter of the 2nd April, 1822, he says that the charter to the Russian- American Company, in 1799, was merely conceding to them a part of the sovereignty, or rather, certain exclusive privileges of commerce. This is the most correct view of the subject. The Emperor Paul granted to the Russian-American Company certain exclusive privileges of commerce— exclusive with reference to other Russian subjects; but Russia had never before asserted a right of sovereignty over any part of the North American continent, and in 1799 the people of the United States had been at least for twelve years in the constant and uninterrupted enjoyment of a profitable trade with the natives of that very coast, of which the Ukase of the Emperor Paul could not deprive them. It was in this same year, 1799, that the Russian settlement at Sitka was first made, and it was destroyed in 1802 by the natives of the country. There were, it seems, at the time of its destruction three American seamen who perished with the rest, and a new settlement at the same place was made in 1804. Now, then it goes on about certain matters in reference to trading within these points, and then he says on p. 50:— It is necessary now to say that this impression was erroneous, that the traffic of the citizens of the United States with the natives of the North-West Coast was neither clandestine nor unlawful nor irregular, that it had been enjoyed many years before the Russian-American Company existed, and that it interfered with no lawful right or claim of Russia. Now mark this:— This trade has been shared also by the English, French, and Portuguese. In the prosecution of it the English settlement at Nootka Sound was made, which occasioned the differences between Great Britain and Spain in 1789 and 1790, ten years before the Russian-American Company was first chartered. It was in the prosecution of this trade that the American settlement at the mouth of the Columbia River was made in 1811, which was taken by the British during the late war, and formally restored to them on the 6th October, 1818. By the Treaty of the 22nd February, 1819, with Spain, the United States acquired all the rights of Spain north of latitude 42 degrees; and by the Illrd Article of the Convention between the United States and Great Britain, 589 of the 20th October, 1818, it was agreed that any country that might be claimed by either party on the North-West Coast of America, westward of the Stony Mountains, should, together with its harbours, bays, and creeks, and the navigation of all rivers within the same, be free and open, for the term of ten years from that date, to the vessels, citizens, and subjects of the two Powers, without prejudice to the claims of either Party, or of any other State. Now, there is the Case of the United States itself, and you will notice that, with that letter, Mr. John Quincey Adams sends to Mr. Middleton, the Envoy at St. Petersburgh, the inclosure, which is set out at p. 51; but I only call attention to the words—" For other inclosures, see the American State Papers, Foreign Relations, Volume 5, pp. 436-438." And, as our attention was drawn to that, we have printed them in our British Counter-Case Appendix; and I must now call your attention to one or two passages in them. Now, at p. 4 of the British Counter-Case Appendix—mind this is a paper taken from the United States' Papers on Foreign Relations— at p. 4:— Extract from the letter of Count Fernan Nunez to Mr. Montmorin, Secretary of the Foreign Department of France, Paris, June 16th, 1790. You will'note that Mr. Watson fixed the Russian ownership of this country at 1741 in the passage that I have read. Now, what is said here ? I have the honour to address you with this, a faithful extract of all the transactions which have hitherto passed between my Court and that of London S. Doc. 162, 58-2, vol 7- -12 658 ALASKAN BOUNDARY TRIBUNAL. sgsga m m on the subject of the detention of two English vessels, which were seized in the Bay of St. Lawrence, or Nootka, situated in the 15th degree to the north of California, and which were afterwards taken to the port of San Bias. You will observe by this relation— " 1. That, by the Treaties, demarcations, takings of possession, and the most decided acts of sovereignty, exercised by the Spaniards in these stations, from the reign of Charles II, and authorized by that monarch in 1692, the original vouchers for which shall be brought forward in the course of negotiation, all the coast to the north of the western America, on the side of the South Seat as far beyond what is called Prince William's Sound " That I directed attention to before; it is very much more north— " Which is in the 61st degree, is acknowledged to belong exclusively to Spain." Now, I ask you to notice this particularly:— That the Court of Russia having been informed of this extent of our bound-; ary, assured the King, my master, without the least delay, of the purity of its intentions in this respect, and added, " That it was extremely _ sorry that the the repeated orders issued to prevent the subjects of Russia from violating, in the smallest degree, the territory belonging to apother Power, should have been disobeyed." That is the territory which is said to have been Russian territory. Now, here is the American comment upon it:— By these papers it is demonstrated—that, at that time, the claim of Spain to- exclusive possession of the North-West Coast extended beyond Prince William's Sound in latitude 61 degrees— That is, over the whole of this lisiere— That the Court of Russia had been informed of this extent of the Spanish boundary; had disclaimed any intention of interfering with it, and 590 added expressions of its sorrow that its repeated orders to prevent the subjects of Russia from violating the territory belonging to another Power had been disobeyed. So far was Russia, in 1790, from asserting any claim whatsoever to territory; on the continent of North America. Then at p. 7, just one paragraph towards the end:— These observations thus supported by reference to indisputable document! are made with a view to the following conclusion: That the United States can in nowise admit the right of Russia to exclusive territorial possession on any part of the continent of North America south of the 60th degree of north latitude. Now, may I compare that statement with Mr. Watson's bold assertion :— The Ukase of 1799 of the Emperor Paul asserted that Russia, by the right of discovery in past times, and also by recent and subsequent possessions, was the sovereign owner of this entire North-Western Coast down to the 55th degree of latitude, and it is true that neither Mr. Canning—neither Mr. George Canning nor Mr. Stratford Canning nor Sir Charles Bagot have denied it. It is true that this claim of sovereignty, of this claim of Russia in this Ukase to grant the exclusive right of trading and the hunting and the fishing along this coast, was never denied by England or by any other nation. The only way in which you can give the least force to that statement is that it did not consider the United States—in the document that I have referred to—was a nation making a serious objection. Mr. Aylesworth. I do not want to anticipate you at all, Mr. Solicitor, but it just occurs to me at that point to ask if you have referred to the volume mentioned in M. de Poleica's letter to Count Nesselrode, in which he says that on the 2nd October, 1823, Chevalier Bagot, as ARGUMENT OF SIR EDWARD CARSON. 659 he calls him, had referred him to this very circumstance, and had pointed out to him that that was an abandonment of Russia's claims. Sir Edward Carson. I was coming to that in a short time. I was dealing first Mr. Aylesworth. I was only asking if you had referred to the yolume which is there mentioned—the Annual Register for 1790— or if one was accessible. Sir Edward Carson. Those are the extracts out of that volume; those are the extracts taken out of that very volume. You will see ml at p. 3, at the top, Extracts from the memorial of the Court of Spain, delivered June 13th, 1790." It is the very correspondence referred to in the course of that statement. Now, all this information that I have been reading in dispute of Russia's title was sent m by Mr. Middleton to Count Nesselrode; so that it was not merely i statement made by the United States, but it was sent on so as to ground their contention; and if you look at p. 59 of the American Appendix—my friend Mr. Watson referred to some of these passages ihe other day—you will see the conclusion that Mr. Middleton draws, md which he puts before the Russian Government. The President. This is the truth, which is not to be concealed md wnich they will not mind? Sir Edward Carson. This is " the truth." 591 The President. That is the motto at the head. Sir Edward Carson. " Great men never fear the truth and pyish nothing to be concealed from them." The President. Yes. Sir Edward Carson. Now, here is what he says:— It is proved by the pieces produced in this discussion that the claims of Spain extended to the other side of Prince William Sound, situated in the 51st degree of north latitude. So that I said, I think, if we had to fight it on title, we would be in a better position than would Russia. However, I do not read the rest of that paragraph. The next one:— From what precedes, it will be readily perceived what was the relative position of the three Powers in their claims upon the North-West Coast of America in the year 1790. Russia confined herself on the other side of the 30th degree of north latitude, whilst Spain and England had conventionally Ixed their respective rights in all the parts of the North-West Coast situated from the last establishments of Spain to the south of Cape Mendocino to the 30th degree inclusive. Now, just let me say this—that that is very much the position that England was taking up as regards the Hudson's Bay Company to the coast west of the Rocky Mountains; because there, you will remember, the licence which was produced merely gave them power to trade to the exclusion of other English subjects in that part. And you will see, if you look at the Faden map, upon which Mr. Watson so much relied—though I notice he did not rely so much upon this particular matter in connection with it—if you look at the Faden map you will see that they put English pretensions upon that map— which was before these negotiations, and which was before the negotiators—they put the English pretensions as reaching to this degree of parallel—and showed by the colouring upon the face of the map that at all events up to the Lynn Canal it was" then marked as Eng- 660 ALASKAN BOUNDARY TRIBUNAL. lish territory, and that the Russian or other territory was coloured s*rx *7 S ,, differently beyrond that. However I will have to say something about it, because really the cartoon which is produced here as an enlargement of Faden's map, I will show you, is not an enlargement at all when I come to deal with the matter. Then he says:— From these facts, incontestibly proved by historical 'documents, an irresistible conclusion follows, which agrees with the declaration of Russia in 1790; and it ought to appear definite that she had no right to claim, either under the title of discovery or of possession, on the continent of the east or south of Behr- ing's Strait about the 60th degree of north latitude. That is the conclusion which he draws. Then at p. 62, the second paragraph:— The Russians have an establishment upon the island of- Sitka, in latitude 57 degrees 50 minutes. This fort, built in 1709, was destroyed three years after by the natives of the country, and re-established in 1804 by Mr. Lisianski, who called it New Archangel. Russia cannot, however, avail herself of the circumstances of that possession to form a foundation for rights upon the continent, the usage of nations never having established that the occupation of an island could give rights upon the neighbouring continent. The principle is, rather, jhat the islands ought to be considered as dependent upon the continent, than the inverse of the proposition. Now, I say here, upon the true facts, Mr. Taylor's argument inverses that proposition, because he trys to make out that the possession of the islands settles the whole question of the political coast, and the relation of the islands to the continent. Then he says:— ms 592 It appears, then, that the position of Russia relative to her rights upon the North-West Coast of America had not at all changed since 1790. Up to 1790 she had no claim, and it has not changed since then— We have already seen in the summary of the dispute between England and? Spain what was the decision of Russia upon the first point. It cannot be for us to repeat it. As to what regards the real occupation, one may be convinced, on having recourse to the charts officially published by the Russian Government, that the only establishment on this side of the 60th degree is that which is found on the island of Sitka, situated under 57 degrees 30 minutes of latitude, and consequently more than 6 degrees from the southern limit fixed by the Ukase. The conclusion which must necessarily result from these facts does not appear to establish that the territory in question had been legitimately incorporated with the Russian Empire. Now, taking on the United States' proceedings in the negotiations, if you look at the Unted States' Case Appendix, p. 71, you will see that the only way in which this difficulty was got over—it is an account of the various conferences given by Mr. Middleton to Mr. Adams:— Count Nesselrode received me by appointment, at his own house, on Saturday, the 9th February, at 8 o'clock in the evening. He opened the business of the North-West Coast negotiation by declaring that he believed it would be best for us to waive all discussion upon abstract principles of right and upon the actual state of facts, and that we must endeavour to settle the difference which had arisen between our Governments " on the basis which might be found most corn- portable to our mutual interests." And I claim—and I could show the same as regards the English negotiations—I claim that so far from there being what Mr. Watson ARGUMENT OF SIR EDWARD CARSON. 661 called the admitted sovereignty—that that point was as hotly contested as it could be, both by the Americans—and I think with o-obd s ms Bj grounds—and by the English also with good grounds; and it is quite sufficient for my purpose to show that that was not the basis of the Treaty, and I do not see that the Tribunal will be called upon to decide whether America or England or Russia were right in their various contentions—and I am perfectly sure some members of the Tribunal at all events do not wish to decide these American controversies more than is actually necessary. The President. There is one passage—it is only exactly what you said with regard to admission—one passage which you did not read of that " Foreign Relations " in the Appendix, as late as 1824, where they refer to 1816:— That the United States in no wise admit the right of Russia to exclusive territorial possessions. Sir Edward Carson. Yes, my Lord, I did read that. The President. Oh, did you read it? I beg your pardon. That is much later. Sir Edward Carson. Yes. I did not call attention to the date, but I read the passage. Now, looking again at the United States' Case Appendix, at p. 82, at the top:— By a Convention with Spain of the 20th February, 1819, the United States acquired all the rights, claims, and pretensions of that Power to all the North- West Coast lying north of the 42nd parallel of latitude. The claims of Spain appear to have rested on prior discovery as far as the 59th degree north. So far, then, as prior discovery can constitute a foundation of right, the North- West Coast as far as the 59th degree north belongs to the United States by the transfer of the rights of Spain. 593 And the reason I read that is that it is in this:— With regard to territorial claim, separate from any system of exclusion, they are willing to agree to the boundary line within which the Emperor Paul had granted exclusive privileges to the Russian Company, that is to say, latitude 55 degrees. But it is quite plain that in the particular letter in yvhich they are doing that, they are doing it as a matter of mutual convenience, and mutual concession, and at the same time ascertain that they have a better title themselves upon the mainland. Now, the next point Mr. Watson made was that there was a formal claim down to 55 degrees, and that England admitted it; and the way he tries to work that out is this—he refers to the Ukase of 1799^ and he says that no nation ever disputed the rights under that Ukase. Well, I am not going to refer again to the passage I have already read, in which the United States gave the true construction of that Ukase, and I think I am entitled to say this: That the very fact of the Ukase of 1821 being published at all shows that the Ukase of 1799 was not being acquiesced in, and had not been acquiesced in by any of the nations concerned, and the Ukase of 1821 was the first assertion, of sovereignty by Russia in relation to this mainland coast, and the moment it was issued—almost within a few days—Russia was pounced down upon by the United States and by England, both asserting that Russia had no title, and that they had a superior title. Then Mr. Watson.goes on to say that Great Britain never went near the North-West Coast before 1821, and never traded there. That is pp. 341-2. He says:— WI m 662 ALASKAN BOUNDARY TRIBUNAL. And I am now free to admit that Great Britain was not involved in these acts of piracy. Great Britain, so far as we know, never went near that Northwestern Coast prior to 1821. Now, I would like to know what he says to the British Case, p. 12—which is a statement that has never been challenged—a quotation from Bancroft. And I set it up against him p. 12, the quotation from Bancroft :— At every point eastward of Kadiak, where he had endeavoured to open trade, he had found himself forestalled by English and American ships, which had raised the prices of skins almost beyond his limited means. And Mr. Watson in the face of that says that prior to 1821 England had never gone there with a single ship, and had never taken a single pelt out of the place. Well, that is the history; I set that history, which is not confuted by any other statement, historical or otherwise—I set that over against Mr. Watson's very bold assertion in the attempt to prove the foundation of his Case here. And I am reminded that a number of the expeditions in detail that the British made are set out in those same papers that we have printed in the Appendix to our Counter-Case, on the first page, but I am not going through them now. Then he says that we never made a claim. He says:— */ ml * I now turn to show, both affirmatively and negatively, that England never set up a claim to any part of this Alaskan Coast, and never in any way alleged that she was the owner of it, until after this trouble arose, and then she did so in the most formal way, and she did not assert that claim with any force or for any length of time. On the point I have just left Mr. Simon reminds me that I had forgotten a pasage in Vancouver, vol. iii, p. 498—British not trading on this coast before 1821—you will find this:— In the year 1792, the fur trade, between the North-West Coast of America and China, gave employment to upwards of twenty sail of ships and vessels * * * Then you will see a list of them given. The first four gives the commanders, the country to which they belonged—London; 594 the next one, " Ship j Jenny Baker,' Bristol." Then it gives some from Bengal, some from America, some from New York, some from Portugal, and some from France; and if that is not sufficiently exhaustive proof that there was a general trade apart from any Russian interference, it is difficult to see how you are to prove it. But upon this point, in which he asserts that "England never set up a claim to any part of the Alaskan coast, and never in any way alleged that she was the owner of it until after the trouble arose, let me read from p. 285 what Vancouver says in regard to it, Volume III:— Jg In the event of the two parties meeting and consequently a finishing stroke being put to the examination of the shores of North-West America, within the limits of my commission. Mr. Whidbey had my directions to take possession of the said continent, from New Georgia north-westward to Cape Spencer, as also of all the adjacent islands we had discovered within those limits, in the name of and for His Britannic Majesty, his heirs, and successors. This, on the parties stopping to dine, was carried into execution, the colours were displayed, the boats' crews drawn up under arms, and possession taken under the discharge of three vollies of musketry, with all the other formalities usual on such occasions, and a double allowance of grog was served to the respective crews for the purpose of drinking His Majesty's health. .«MK14.., ,jjj. ARGUMENT OF SIR EDWARD CARSON. 663 Then if you turn to the Faden map, which is stated on the face of it to have been compiled from Vancouver, amongst other sources, you will see that it is marked upon the map in the colours, the portion—at p. 11 you will see the colouring from Cape Spencer—at lest from the head of what is now called Lynn Canal. The President. Both 10 and 11. Sir Edward Carson. 10 and 11, yes; but in both the colouring is the same really. Now, is not it in the face of that, and in the face of the map itself, which was the map which Mr. Watson was relying upon, which he had up there before you (but had not coloured in this way, I am bound to say, because he had it for another purpose—for showing out some of the mountains blacker than the other ones)—is not it, on the face of that map, an extraordinary statement to make, that there never was a claim on the part of England to any part of this coast, when that is the portion taken possession of? And what is more, there could be no mistake, because the inscription which I mentioned before is upon the map:— Possessed by the British North-West Company, extending from latitude 48 to 57 north. Mr. Root. That map, Mr. Solicitor, seems to dispute Russia's title to the islands equally with the mainland. Sir Edward Carson. Yes, it did at that time. The President. It did at that time, undoubtedly. Sir Edward Carson. It did at that time. The President. There are passages which say that the Russians had never been on any island except where Sitka is. Sir Edward Carson. King George's Island. The President. And that Great Britain had discovered some of the others. The name " Prince of Wales' is mentioned among them; but it does not very much matter. ml Sir Edward Carson. But, of course, the real centre of Russian activity, as everybody knows, was up among the Aleutian Islands; that is where the real centre of their activity was, and not down 595 The President. Upon this point it is sufficient for your pur pose to show claims by Great Britain. Sir Edward Carson. That is sufficient; I am disputing allegations made by Mr. Watson. Now, he says, only a formal claim was made, and withdrawn. First, I must call your attention, as Mr. Watson did, to the Duke of Wellington's letter, in which he used this phrase, at p. 24 of the British Case Appendix:— This is the sense in which I propose to act at Vienna upon this part of the instructions, and it is desirable that I should be informed whether we have any claim to territory on the North-West Coast of America, and what are the opinions and reasonings of the civilians upon the question of dominion on the sea. Mr. Watson formed an opinion upon that, that because the Duke of Wellington asked for information, it showed that we had no title; but he did not refer to the Memorandum which was inclosed. On that request for information he got a memorandum which is at p. 30, and in which this is stated:— Now, we can prove that the English North-West Company and the Hudson's Bay Company have for many years established forts and other trading stations 664 ALASKAN BOUNDARY TRIBUNAL. m 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 degrees to latitude 60 degrees. This Company likewise possess factories and other establishments on Mackenzie River. The President. It is rather pleasant to me, Mr. Solicitor, to hear Mr. Watson say that we never claimed anything; because in all the previous cases I have been in we have always been.attacked for claiming too much. I thought we had mended our ways. Sir Edward Carson. I know, my Lord. I could even find passages in the United States' Case at the present moment in which some of their witnesses, while they pay very pleasant compliments to us as individuals, rather think our tendency as a nation is to be _ *7 too grasping. But at all events, there it is. It is quite plain there:— Thus in opposition to the claim founded on discovery, 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. .And on p. 32 you will see that exactly the same thing happened as happened with the Americans; because you will find that in the confidential Memorandum on- p. 32:— However that may be however that may be and that is on whatever the same discussions about the title— force these circumstances may lend to Russia's title, His Imperial Majesty will not deviate in the slightest degree, at this juncture, from his accustomed political system. That is after arguing that they had some ground for their title. Then he says:— His most cherished wish will always be to prevent all contention, and to strengthen more and more the friendly relations and the perfect understanding which he congratulates himself on maintaining with Great Britain. 596 In consequence, the Emperor has directed his Cabinet to state to the Duke of Wellington (without permitting this declaration to prejudice his rights in any degree should it not be accepted) that he is ready to settle, by means of friendly negotiations and upon the basis of mutual agreement, the degrees of latitude and longitude which the two Powers shall regard as the outside limits of their possessions and of their settlements on the North-West Coast of America. Mr. Aylesworth. Mr. Pelly said in his letter of the 25th September, 1822, that up to 1821 the whole trade from the 49th parallel to the 60th had been carried on by the British North-West Company. Sir Edward Carson. Yes. It really took me somewhat by surprise when I heard this argument. I thought it was a matter we might have left out of the case. I know the Attorney-General, after considering the thing, thought that negotiations made it perfectly clear, and he need not go into that part of the case. But your Lordship sees the great importance—how it is attempted to be worked against us, both with regard to the two points of ocean and coast, and upon the point that Russia never could be conceived to have ceded these inlets which were her undisputed property, at the time of these negotiations. Now I ask the Tribunal to say that the real state of facts at that B^Wfcih-l«i33 j .... .iuiiiiiw ARGUMENT OF SIR EDWARD CARSON. 665 time was that Sitka was the only settlement, and that that was not on the mainland at all, but pn the islands; that there was no claim admitted to the mainland; that no claim could be substantiated to the mainland; and that really the interests of Russia were very much further north than anything that was being claimed in this lisiere; and therefore we will be entitled, I think, to approach the consideration of the argument upon the Treaty—which is what I am coming on to—with this, that up to the date of the Treaty, the mainland was not the possession of Russia; and we must consider what are the rights of the Parties internationally if it is conceded that the islands were Russia's, that the mainland was not Russia's, and what effect that has upon the waters that intervene between the two. Mr. Turner. What effect do you give to the language of the Treaty itself—where in the preamble it says that it is desirable to settle the limits between the possessions of the respective Parties upon the North-West Coast ? Sir Edward Carson. Yes. Mr. Turner. In Article III it says that the line of demarcation between the possessions of the High Contracting Parties upon the coast of the continent, and so forth, shall be drawn—— Sir Edward Carson. Yes. Mr. Turner. Is not that an admission that each of them have possessions there? Sir Edward Carson. No. Mr. Turner. An express provision in the Treaty ? Sir Edward Carson. It is an arrangement by Treaty. But may I read you these words, which probably you have not observed:— By means of an agreement which may settle upon the basis of reciprocal convenience. Mr. Turner. Whether on the basis of strict right or reciprocal convenience, it is an admission by each Party that the other Party had possessions there. 597 Sir Edward Carson. Yes, they would have them after the / ms ___ Treaty—nothing else. That is the Treaty. The Treaty ml CD ml ml effects that, I think. But to argue that because its possessions are settled by a Treaty that that is an admission that those possessions existed in that condition before The President. It probably is—I think the Senator puts it rightly—an admission that each Party had some possessions. It is no admission that this particular coast was the possession of Russia for this purpose. Sir Edward Carson. I think what it means is that there were claims made along here we wish to settle. The President. Claims made by both, and a wish to settle them. Sir Edward Carson. But the title of each to the absolute ownership and occupancy of each portion of this lisiere is settled by the Treaty, and by the Treaty alone. That is all the extent to which I apply them. I do not know whether it would be convenient for your Lordship to adjourn. I am coming to an entirely different point. The President. Certainly; we will adjourn now. [Adjourned for a short time.] On resuming— Sir Edward Carson. I come now to Mr. Watson's next contention, 666 ALASKAN BOUNDARY TRIBUNAL. S^oK?"-*" in which he professed to show that, during the negotiations, England offered all the waters, including the inlets and the heads of the inlets, and he draws this conclusion, which, I think, is not an unreasonable conclusion to draw if his premises were right; he says at p. 376:— Now, is it possible, is it within the range of any human probability, that Russia, standing on this portion, and refusing to make this Treaty, for that reason turned round to make a Treaty in which she gave the heads of all these inlets to Great Britain? And I have no doubt that that would be a perfectly true observation if he could show, in the course of the negotiations, that any of the passages say that these inlets and the heads of the inlets were all to be included in what was being given by the Treaty to Russia. Now, my general criticism as regards the passages he cited, which I will take—there are only three of them, but my general criticism as regards them is this, that it leaves the waters all through the negotiations exactly where they are in the Treaty, and, if that is so, I think I am right in saying that you never get out of one difficulty by getting into another one, and you will have exactly the same difficulty in treating of these negotiations and in construing them as you have in construing the Treaty. Therefore, I shall ask the Tribunal, after I have examined these various passages, upon which Mr. Watson relies, to say—which is the result that I am coming to—that you have to go to the Treaty itself. Now, the first passage that he relies upon will be found in the British Case Appendix, p. 57. Now, here is the passage; it is at the top of p. 57, and it is in the letter from M. de Poletica to Count Nesselrode:— Matters of secondary importance, but which I cannot pass over in silence, were incidentally mentioned during the discussion. In this way, Chevalier Bagot, after informing me of the plan of demarcation devised by his Government, agreed unhesitatingly that when the boundaries between our respective possessions were once established, we would be perfectly free to introduce into the territory allotted to us such administrative regulations as our own 598 wisdom might suggest; that is to say, that we shall have full liberty to permit foreign navigation in our waters, or to reserve them exclusively for our own use. Your Lordship will recollect that at that time the lisiere had not been proposed at all, and this is in relation to the first offer. But the whole relevancy of that quotation are the words " our waters," and you cannot solve the question by saying that there, in the course of the negotiations, what Chevalier Bagot meant to say was, that all the waters of the inlets are included in that. Of course, if you assume that, and then read out the passage with sufficient emphasis, you make a very considerable argument. But if you take it, and simply try to construe the words, as I said before, you are exactly where you were in the Treaty. Mr. Aylesworth. fcC Our waters," Mr. Solicitor, in the original French is " dans nos parages." Sir Edward Carson. " Dans nos parages "—I had not noticed that. I noticed that in connection with the subsequent one, about which I interrupted Mr. Watson, and as that is mentioned, " parages " in the plural means " tracts," and it is used really throughout these negotiations several times. It means the area that they were disputing about; it means generaly the area that they were disputing about, which included waters and land. 'And if you look at p. 87 of the ARGUMENT OF SIR EDWARD CARSON. 667 British Case Appendix you will see an instance of that. You will see, looking at Article III of the Draft there, that it is translated:— That the navigation and commerce of those rivers of the continent which cross this line of coast shall be open to British subjects, as well as to those inhabiting or visiting the interior of- this continent, a^ to those coming from the Pacific Ocean, who shall touch at these latitudes. That is the translation, but the words are— • - I Qu'a ceux qui aborderont ces parages du cote de l'Ocean Pacifique." Now the second passage is on p. 71 of the British .Case Appendix. It is this:— In order to remove this inconvenience and to confirm in favour of Russia the absolute sovereignty over these waters and over all the islands and the 2oast where there are actually to be found Russian establishments, Great Brit- lin would propose to take as a line of demarcation between the territories of the two Powers a line running from west to east through the middle of the channel which divides the Prince of Wales Island and the Islands of the Duke )f York from all the islands lying to the north of the said islands until it strikes the mainland. Now, I think that even reading that, even taking the word 'waters' there, "ces parages' cannot possibly there refer to the nland waters at all, but he has to show that it does specifically refer ;o them and to no other, and to all of them. If you read the previous section you will see that the waters they were talking of were ml ml CD mtirely different:— In accepting the terms of the proposal made by Sir Charles Bagot, in his irst conference with the Russian Plenipotentiaries, there would be (as it tppears) only one inconvenience to Russia, that which might arise from the •ight which the United States would perhaps claim, in virtue of their Conven- lon with Great Britain of the year 1818, of free navigation through the vaters between the Island of King George and the mainland, thereby interfering in some way with the trade of His Imperial Majesty's subjects in these vaters. I say that there is nothing on earth in that passage to suggest that hese inlets or the whole of these inlets or parts of these inlets were to belong to Russia. 599 Now, the third passage which he quotes is in the British Appendix, p. 73. It is really only another version of the same proposal. It is the second paragraph:— And from thence to Mount Elias, or to the intersection of the 140th degree of ongitude, and to propose another line which would secure to Russia not only a {trip of coast on the continent, opposite to the southernmost establishment which she posseses on the islands, but which would secure to her also the possession )f all the islands and the waters adjacent, or which are to be found between his establishment and the mainland. Well, if that refers to anything specifically, it refers not to the nland waters at all, but to the waters which will be found between he islands and the mainland. Then the last paragraph, to which I *efer as being quoted by him, is at p. 86. He points out that Mr. Can- ling, in his despatch enclosing the draft Convention, says:— Your Excellency will be careful to make it understood that this limitation of :ime cannot in any case extend to the use by Great Britain of the harbour of few Archangel, still less of the rivers, creeks, &c, on the continent, the use of ill which is in the nature of a compensation for the perpetual right of ternary granted to Russia, and therefore must be alike perpetual. 668 ALASKAN BOUNDARY TRIBUNAL. Mr. Watson, in his argument, says that that means all the inland waters. Here is the passage:— There was Mr. Canning's assertion that in the draft itself of the Treaty there should be the recognition of Great Britain's right to go into these rivers and creeks, &c, on the continent. That is, all the inland waters. There is no such thing. It means that whatever inland waters the Russians got they refused to give a perpetual right, and, of course, granting a lisiere in the way in which we say it was granted. Anybody has only to look at our line, which we say was in accordance with the Treaty,' to see that there are inland waters there, to which, ml 7 7 ^&p not only the Treaty but these words perfectly well apply And the only reason I go into it is that Mr. Watson says he undertook to prove from the negotiations that the negotiators had specially in mind this question of these inland waters, and by these passages, he says, the inland waters were conceded as belonging to Russia. I pass from that second point, then, which he made, and I say that there was nothing done in the course of the negotiations to show that the negotiators had in mind the giving of these inland waters at all. Now, then, I come to his third argument, in which he supports his theory that you must allow these inland waters to Russia upon what he was pleased to call the barrier theory; that is, he says that the barrier involves going round the inlets. Now, I do not mind very much—it is purely a matter of words—whether you call this line a barrier or not. The question is whether you are able to find out anything in the negotiations or in the requirements from this barrier which support his theory, which is that the barrier must be something which does not include any water, and it is there exactly that I join issue with him. Now, in the first place, he says that the barrier was necessary to prevent collision between the Hudson's Bay Company and their establishments and the establishments of Russia. Well, I will accept for the moment that that was one of the objects— I do not think it was the real object at all. I will quote the passages in relation to the reason why the lisiere was wanted,—but accepting that as a true statement of the facts for the moment, how does his barrier any more than ours bring about that object? In the first place, you will notice that in the barrier for which he contends you cannot prevent the Hudson's Bay Company and the establishments of the Russian Company coming side by side, because the very first dispute that arose, shortly after the United States had obtained possession in the cession from Russia, or one of the very first disputes, was between the Hudson's Bay Company and the Russians in regard to the establishments that were formed side by side on the Stikine. "That was before the United States purchased. Therefore, what is the use of saying that you deduce from the object of preventing collision, that therefore the inlets must have 600 been granted, because the lisiere for which Mr. Watson himself contends brought the Hudson's Bay Company and Russian Company side by side. You could not prevent it. The moment you state that the lisiere might run across rivers, and that these rivers might be occupied by the Hudson's Bay Company, it is really only a question of drawing a distinction between two establishments set up side by side on a river, and two establishments set up side by side on an inlet, and therefore, so far as he draws any conclusion m ARGUMENT OF SIR EDWARD CARSON. 669 from his barrier theory, I say that it is entirely unsound in that respect. Then I take the other point. Was the barrier to prevent the Hudson's Bay Company approaching the ocean? Plainly not, because one of the stipulations which England insisted upon, and which was never in dispute with Russia at all, was that they were ever to be free to navigate the rivers for the purpose of approaching the ocean. Mr. Turner. But not for the purposes of trade. Sir Edward Carson. No, but for the purpose of approaching the ocean, I am saying. The purposes of trade I deal with in. the establishments going side by side on the river. But what I say is that, so far as a barrier was necessary for the purposes of keeping them from the ocean, such a thing was never in contemplation, because they could navigate down to the ocean through the river. And as regards the question of whether land or water was more important in keeping them from the ocean, they really had the same effect, because whether you had land or whether you had water, exactly the same thing happened. If you have land as the barrier, well, then you have the right to go over the rivers and navigate down to the ocean. If you have water—viz., a portion of any of these inlets—as the* barrier, you have the right of innocent passage over the water exactly in the same way down into the ocean. Therefore ml ml I say that, whether it is land or whether it is water, exactly the same result follows. Mr. Turner. I do not understand that anybody has ever contended that it was for the purpose of keeping the Hudson's Bay Company's servants from the ocean, but that it was for the purpose of keeping their establishments from approaching the ocean for the purposes of trade. Sir Edward Carson. To keep their establishments from approaching the ocean ? Mr. Turner. For the purposes of trade. Sir Edward Carson. I never heard that. Mr. Turner. Now, would a water barrier prevent that ? Sir Edward Carson. Prevent them approaching the ocean. Mr. Turner. For the purposes of trade ? Sir Edward Carson. No ; a water barrier would not prevent them. But it was never said that that was the object, so far as I know, from what I can see in the negotiations. I will read to you what the negotiations said in a moment. Mr. Turner. I am not saying what the negotiations say. What I say is that I do not understand that the United States have ever contended that the purpose of the lisiere was to prevent the Hudson's Bay Company approaching the ocean through their servants, but that it was for the purpose of preventing them approaching it for the purpose of trading with the Indians. Sir Edward Carson. All I am doing for the moment is saying that whether you had land or whether you had water the barrier made no difference so far as getting to the ocean was concerned, 601 That is all I say, and I say that that is a sound proposition. But the result of taking the theory put forward by the United States is a very curious one when you come to analyse it, because they claim not merely a barrier by land, but to add to that a barrier by water, because they say that you are to measure your lisiere from the Wx>>--~ ■ 670 ALASKAN BOUNDARY TRIBUNAL. tops of these inlets, and when you ha\re got over the lisiere, and therefore passed what one^would really think was the barrier that was meant, you come on to their territorial waters before you can get near the ocean at all, and you must go over another barrier. So that they claim really in effect to have two barriers, a barrier by land and a barrier by water, and—which is a serious matter—one which I can ml 7 find no trace of all through these negotiations. Now, Mr. Watson made a very curious mistake, something like that one about the eastern boundary, in a matter which he commented upon with some emphasis at pp. 382-3. It was to prop up the idea that, so far as the British Government were concerned, they did not mind giving from 50 to 100 miles from the coast. I should have thought that the particularity with which they fought out the 10 marine leagues afterwards disposed of that idea, because you will recollect that Mr. Canning, in sending the draft Convention, left the number of marine leagues in blank, and asked Mr. Stratford Canning, who was negotiating at the other end, to get as small a distance as possible put in. But Mr. Watson, at p. 382, quotes a passage not of an offer that was ever submitted, but from a letter from Mr. Canning to Sir Charles Bagot. It is at p. 62 of the British Counter- Case Appendix, but I will read it from Mr. Watson's speech:— 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 straight would strike the mainland near Mount Elias, the lowest point of unquestioned Russian discovery. But if that were too much to insist upon, the 135th degree of longitude, as suggested by your Excellency, northward from the head of Lynn's 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. Now mark the criticism which Mr. Watson makes upon that:— It would, however, in that case be expedient to assign with respect to the mainland southward of that part—I ask your attention to this—a limit of say 50 or 100 miles from the coast beyond which the Russian post should not be extended to the eastward. Do you notice that he does take now by this line a portion of the Lynn Channel, and he makes that neutral territory—that is, I mean it belongs to both. But now, when you get up here, you take this line to go to the southward, and give to Russia from 50 to 100 miles to go round all these inlets and bays every one of them. As if he were dealing with something southward along the lisiere that we are now speaking of. He goes on and says:— It would not go round Lynn Canal, because you run the line up there, but the line to the southward would run round these inlets and bays all round down to the 56th parallel. That is a most astounding construction to put on this. At the time what Sir Charles Bagot was proposing was—if you look at the American Atlas you will see it is the second proposal that Sir Charles Bagot made—what he was proposing was that you were to run a line from the top of Lynn Canal, across, up, near—on this Map No. 3 you see they have marked the different proposals, and this is the second line proposed by Sir Charles Bagot; it is the line which runs through Chatham Strait, up the Lynn Canal, and then across to the 140 degrees of latitude. But what Mr. Watson says, is that CD ml / while he was conceding that patch of territory—and this was at a time when he was trying to get the latitude as much north as ARGUMENT OF SIR EDWARD CARSON. 671 possible—in addition to that the English Government were themselves proposing to give 100 miles of coast to the south of that, running down the whole way to the 56th degree. Of course, that 602 is absolutely absurd. That is not the meaning of it at all. What it really does mean, if you look at it, is:— ml 7 ml 7 Mr. Dickinson. Mr. Solicitor-General, I do not want to interrupt you, but perhaps you will be glad to have me call attention to the fact that this letter which you are reading is dated the 15th January, 1824, and the line to which you refer in the United States' Atlas, No. 3—the proposal of Sir Charles Bagot—is the 28th February, 1824. Sir Edward Carson. That is quite right, I have that noted here myself; I am much obliged to my friend. Mr. Dickinson. I merely want to call your attention to it. ml ml Sir Edward Carson. I have it noted here myself. What I mean ml ls that after this letter we pass on to p. 62, and you will find that Sir Charles Bagot sent on to Mr. Canning the proposal that he made mi the faith of that letter in which he translates what he understood that to mean. But before I come to that, may I ask you just Lo look and see what the real meaning of this passage is:— If your Excellency can obtain the strait which separates the islands from :he mainland as the boundary, the prolongation of the line drawn through :hat strait would strike the mainland near Mount Elias—the lowest point of mquestioned Russian discovery. But if that were too much to insist upon, the 135th degree of longitude, as suggested by your Excellency, northward from :he head of Lynn's Harbour might suffice. Then it is suggested that he adds 100 miles to that by these words:— It would, however, in that case, be expedient to assign with respect to the nainland southward of that point. The point is Mount St. Elias, because all that he says there is:— Would strike the mainland near Mount St. Elias, the lowest point of mquestioned Russian discovery. And when he is talking of it, all he says is— Mind you, if you give that tract, doing it in that way, going up the Lynn 3anal, we must have some limit in the interior which I do not mind being 50 or LOO miles south. But it has no reference whatsoever, and could not be construed to lave any reference, and never was understood to have any reference ;o this—that in addition to giving them that, when Sir Charles Bagot md Mr. Canning were fighting every inch of this lisiere, they were dso going to get 50 or 100 miles southward of that point, meaning Lynn Canal, along down to the whole 56th degree, as Mr. Watson 3ointed out. If you read the matter in its plain sense, there is lothing whatever to support that. Mr. Turner. What page is that on? Sir Edward Carson. At the bottom of p. 62. Mr. Aylesworth. The idea that that suggested to my mind, Mr. Solicitor, was rather different from what you are contending for. Sir Edward Carson. There is another way. Mr. Aylesworth. Possibly you were abput to suggest it. Sir Edward Carson. I was going .to say, that the other way of looking at it is, that when he went up on the line north, he was talk- 672 ALASKAN BOUNDARY TRIBUNAL. ing of the south, because he came back. I do not know whether that is the idea in your mind, but I think the real construction is the one I have given. 603 Mr. Aylesworth. This idea occurred to me, that they were not very certain at that time about where the 135th meridian would fall. If you refer to Arrowsmith's maps, that is very marked. AjTowsmith places the head of Lynn Canal on one map almost under 135, and in his subsequent map he gets 135 away to one side, and I thought that what Mr. Canning mean there was to say that, if you take the 135th meridian as the boundary from the head of Lynn Cainal to the Frozen Ocean, you must take care, in case the 135th meridian should turn out to be somewhat to the eastward of the head of Lynn Canal, that there should be a limitation of 50 or 100 miles south of the Lynn Canal, beyond which under no circumstances should the Russian territory extend. Sir Edward Carson. Well, that may be so, but in either view of the case what they want to lmit is the number of miles that they were to have in what I may call the lisiere then being proposed. Mr. Aylesworth. Fifty miles below Lynn Canal would only come about to Berners Bay—only about half-way—a hundred might take them to the mouth. Sir Edward Carson. Yes, something of that kind, but on p. 67 you will see how that is construed. This is the wav Sir Charles m> ms Bagot looked at it:— 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 North-West 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 the posts upon the continent belonging to the Hudson's 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 north-west to the 140th degree of longitude west of Greenwich, and thence along that degree of longitude to the Polar Sea. This proposal was made by me verbally, and was taken for consideration by the Russian Plenipotentiaries, who at our next meeting offered a " contre- projet," which I afterwards requested might be reduced to writing, and of which I inclose a copy. Now, you see, he took the proposal to be the drawing of a line from the Lynn Canal, thence north-west to the 140th degree of longitude west of Greenwich, and, so when you take that line, it does put a limit upon the coast—on the territory that was being assigned—because, if you take it in that way, it is not necessary to go into the 50 miles, or the 100 miles, at all. By fixing it with this latitude up to the 140th degree, it really carries out what was intended by Mr. Canning in the letter which I have just adverted to, and to spin out of that stage of the negotiations that there was an intention on the part of Great Britain, when they were fighting every inch of that continent there, and making proposal after proposal, that in addition to that large tract of territory they were going to give 100 miles all along down to the 56th degree, is really an absurdity. Now, it has been said .that the object of this barrier, as it is called, is to give Russia this mainland, for the purpose of establishing ARGUMENT OF SIR EDWARD CARSON. 673 posts, and that if you allowed the Hudson's Bay Company to come down on to the same mainland, near these outlets, you would have them there competing together with the posts and establishments they made. Now, may I ask the Tribunal to look at the passages, in which it is clearly stated what Russia's object was, and in that context, might I also ask you to remember that at this time Russia was possessed solely of the establishment at Sitka, oh Baranoff Island. 604 Now, if you look at p. 70—and I go through this again as the point has been made, although "these points are no doubt perfectly familiar to the Tribunal—it will be seen that— The principal motive which forces Russia to insist upon retaining the sovereignty over the strip of land described previously, on the mainland from the Portland Canal as far as the point of intersection of the 60th degree of latitude with the 139th degree of the same, is that, if deprived of this territory, the Russian-American Company would be left without any means of supporting the establishments, which-would thereby be left without any support, and could not have any strength nor solidity. The only establishment that they had was at Sitka. I ought to 3all attention to the fact that in the paragraph the words " retaining the sovereignty," which would look as if it was conceded that they svere retaining something they had, is a mis-translation. The words ire: " Insister sur la souverainete." Now the next passage is at p. 72:— On the other hand, the Russian Plenipotentiaries have the honour to remind tiim, 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 je left unsupported, that they would be left at the mercy of those establish- nents which foreigners might form on the mainland, and that all settlement of this nature, from being grounded upon the principle of mutual conveniences, tvould offer only dangers to one of the Parties and exclusive gains to the other. And on p. 73, again, there is:— To propose another line which would secure to Russia not only a strip of x>ast on the continent, opposite to the southermost establishment which she possesses on the islands, but which would secure to her also the possession of ill the islands and the waters adjacent, or which are to be found between this establishment and the mainland; in a word, the possession of anything which in the future might become of some utility either on account of its stability or for its prosperity. And on p. 74:— The Emperor instructs his Plenipotentiaries to declare once again to the Am- jassador of England: That the possession of Prince of Wales Island without a portion of territory m the coast opposite this island could not be of any use to Russia. And at p. 77:— If the Prince of Wales Island remains ours, it must be of some utility to us. Now, according to the view of the English Ambassador, it would be only a burden to us, and almost an inconvenience. Indeed, this island and the establishments which will be founded by us, would become altogether isolated, ieprived of all support, surrounded by the possessions of Great Britain, and at the mercy of the English establishments on the coast. M\ The cost of maintenance and of supervision would be ruinous, the burden of which would not be relieved by any'compensation. Would an upon the principle of mutual conveniences? S. Doc. 162, 58-2, yol 7 13 agreement of this nature rest 674 ALASKAN BOUNDARY TRIBUNAL. Ajid at p. 78 he says:— Really it cannot be insisted upou too much, that according to the evidence of the most recent maps, England does not possess any establishments, 605 neither at the head of Portland Channel, nor on the shore of the ocean, and that when Russia persists in claiming the reservation of an unimportant strip on the mainland, it is only as a means to enhance the value, nay more, not to lose the adjacent islands. So that the fact is that she was now claiming the mainland for the sake of the mainland; it was as a means of protecting the establishments upon these islands, and I suggest that with that language before you it is absurd to say that it is necessarj^ to go back the whole length of, say, 70 miles, and then back 35 miles behindr-that again, as is claimed here, for the purpose of getting a point of protection for the establishment on Baranoff Island, which was the chief matter they had then in view. Now, my Lord, I come to consider another part of Mr. Watson's argument, perhaps the most important point, viz., what he said about the mountains. As I understand Mr. Watson's point upon the mountains, it is this, that this Treaty which we are now construing was made with reference to maps, and that because it was made with reference to maps you must take it that the mountains were defined both as regards their situation and as regards their formation. I think that that really is what his argument came to. He says that you must select the very mountains that the negotiators had in view, and that you can take no others. You are not to get them nearer the sea, and you must not get them in any different relation toiihe inlets. I think that that is the result of what he said. He produced a map, and he said: There it is, all as clean and as neat as possible, and I will show you what it is that you must get. He used the phrase over and over again— Mountain or no mountain, there you have the line. That is what he said; that was his case. Then he said also that it must be a range because the picture which he showed had a range, or he said it had a range, and he says that the British view leaves this line wholly unascertained, and the Treaty therefore of no use. He also said that the negotiators believed in the maps, but they thought that the mountain range might be sometimes farther off from the shore. Now that is, I think, a fair statement of the way in which Mr. Watson puts it; I shall substantiate it in a few moments by quotations which I shall have to comment upon. Now, what is our case—and it is well that one should state their definite case—as regards the mountains? What is our case? Our case, to put it in a short phrase, is this: that the mountains are defined, but they are not identified, and we say that no negotiators could make a boundary closer or more definite than that in a country which admittedly on all sides had never been surveyed. We say, secondly, that the maps were not incorporated, as Mr. Watson says, with the Treaty; we say that you cannot read them, as he says you are to read them, into the Treaty; and we say tnat the mountains might be nearer the coast as well as farther from it, because there is nothing in the Treaty which says anything one way or the other ARGUMENT OF SIR EDWARD CARSON. 675 as regards that. They could not be farther; we get that much by putting in 10 marine leagues. I will call your attention to what the Russians said after the %7 Treaty was signed about how little we were prepared to gamble in the chances of the mountains, because we were not willing to take them wherever they might be found. We also say that Mr. Watson's argument is fallacious, because, if he says that the Treaty named specific mountains as the boundary, and those specific mountains are not found, then the result cannot be that the line is to be drawn where the mountains are not, in fact, but that, upon his argument, the line must fail altogether. That is the result of it. He says, " Here you have a picture; you must read this picture, which was before the negotiators, into the Treaty." He said over and over again, " You must read the maps into your Treaty." And he says, " Unless you are able to find the mountains, which the negotiators believed were there, you cannot find any 606 others." Arid then, seeing that they are in that difficulty, that if that is the condition of affairs, you really can fix no line at all, because, ex concessu, the mountains are not there, in what way do they try to get over it ? They say, " Well, then, as you do not find the mountains, which we say the negotiators had in view, you must ,fall back upon the 10 leagues from the sea," and Mr. Watson says that the 10 leagues will bring you exactly up to the same place, and it was fixed at 10 leagues, because the negotiators saw that the 10 leagues would practically correspond with the line of these mountains. Now let me only make this observation about that. Iri the first place, the maps do not show that the mountains are 10 leagues; you may take bits here and there; in the second place, before you assume anything at all about that, you must assume what particular mountains the negotiators were talking about; in the third place, you must give the go-by to the fact that everybody who was acquainted with these maps must have known that these were conventional mountains, because it is an admitted fact that nobody had ever penetrated the country up to where these mountains were at all; in the fourth place, the negotiations show that the fixing of the 10 marine leagues had aothing whatever to say to the place where the mountains were supposed to be, because in the very last draft that was sent by Mr. Can- ling to Mr. Stratford Canning he left a blank for the number of eagues, and he says " the outside you can put in is 10 marine leagues, )ut get less if you can;" in the fifth place, if you take these maps and compare them, and assume that what the negotiators were talking about vas the conventional line of mountains shown as the boundary to the naps, and compare them—compare even two of Vancouver's as the Attorney-General pointed out; I am not going to stop now, because rou have it on the note—you will find that even Vancouver varies as egards particular points, as to the number, as to the distance these onventional mountains were from the shore in reality. Of course, it nattered nothing to him, because they were only conventional moun- ains; he never professed to have surveyed this place. If you read lis narrative you will find that all he said was that as he came up he aw immense mountains here, there, and everywhere, and he put in pon the map purely conventional mountains to show that there were lountains in the district. 676 ALASKAN BOUNDARY TRIBUNAL. m 1 But if I understand Mr. Watson's argument aright, you must start with it, that these negotiators believed that these were real genuine mountains, that the only difficulty they had was as to where that exact range of mountains was so beautifully pictured upon the map in a manner that mountains have never existed anywhere in the world— that you must take it that the negotiators believed that there was such a configuration on the earth's surface, and that the one and only place in the world where it was was in Alaska where they were settling these matters, and coming to that conclusion you must find these or find no others. And if I understood Mr. Watson's argument aright, even if you found these mountains, but found that they ran along the shore or along the lisiere nearer to the coast, you could not take them as the boundary in this case, because that was not what the negotiators meant. They meant you must either find these mountains or must fall back on the 10-marine leagues which he says will bring you to the same place, and he says, " Mountains or no mountains, you have the line there that the negotiators had in view." Now the passages to which I refer in Mr. Watson's argument are as follows. At p. 396 he says:— There was a range on the maps. And remember now, you are back in 1825. You are not drawing this Treaty with all the information that you have since with reference to this. You are back in 1825, you are believing there was a mountain range there, and here you have now right on the Faden's map, which Mr. Canning regarded as the most reliable, this mountain range cutting the 56th parallel, and directly at a point where the line projected from the head of Portland Canal would touch it, and yet exactly in accordance with the words -o£-the Treaty that the line shall'ascend to the parallel, and it shall then seek the mountains. That is exactly in accordance with it, and instead of striking the British line in accordance with that, why, they start the British line from the head of Portland Channel, and instead of going north as I have said, they run it south. 607 Now, I quarrel entirely with that passage of Mr. Watson's, and I do not agree with Mr. Watson that he is entitled to take it that the particular line on that Faden map was the line of mountains to which the negotiators were attending at all. The President. The difficulty I had in following Mr. Watson was that the line of mountains do not agree on the two Faden maps; they do not agree with the Arrowsmith of 1822, which he says was before them; they do not agree with the Russian map, which certainly was before them; they all show a different chain of mountains, and one of them quite close to the coast. Sir Edward Carson. Yes; but even on the Faden map itself The President. We have compared them, Mr. Solicitor. Sir Edward Carson. Yes, but what I want to point out upon this map, which was not apparent upon the map produced, is that the mountains along the coast there—there is a well-defined The President. There are other mountains shown on Faden's map between that so-called range and the coast. Sir Edward Carson. Yes, between that range and the sea. Now, take that map: is it conceivable that any man standing in front of that map could imagine for one moment that the configuration at the back, which, mind you, runs not merely along this lisiere, but runs right down along the whole of the coast that is depicted there,—is it conceivable that any man standing in front of that map thought that it happened as a matter of coincidence that every place which Van- <*V'mn "mm-lmmmpfmmfl ARGUMENT OF SIR EDWARD CARSON. 677 couver and these other discoverers had put upon charts necessarily had behind it these hundreds of miles of continuous range of mountains ? The thing is impossible. And if you look along through Vancouver's charts, you will see all along every chart he made—because he was only an explorer exploring the coast—he always borders them with these ranges of mountains, I believe. I am told that right down to California you will find the one long continuous range, all the way along, everywhere he surveyed, all along this conventional boundary. And I suppose the last man on the face of the earth who could possibly have made such a mistake as that is Mr. George Canning, who we have yet to learn was one of the most ignorant Ministers of Foreign Affairs that ever presided over that office in this country! At p. 397 Mr. Watson says:— The United States contend that it was the meaning and intention of Great Britain and Russia, under the Treaty of 1825, to carry the line of demarcation up to the 56th parallel from the head of the Portland Canal, and thence that it should follow the course of the mountains parallel to the coast, as shown on Faden's, Vancouver's, and the Russian maps—all of which were before the negotiators—it should go up to and get on those mountains, and follow those mountains from the 56th parallel to the 141st meridian. The mountains referred to were a continuous chain or ridge or range running from the 56th parallel up to the 141st meridian. It might be that, in that distance of some 500 miles, they ran, as in all mountain ranges and mountain chains there were passes—it might be that rivers might intercept them, but whatever the facts were as to that as shown on these maps, it was the intention to go to a certain definite fixed chain of mountains, which was the outline, along the coast of which this line was to be drawn, and when it got there—and I surely may press this upon the Court—when it got there, it got into a certain definite fixed location, about which there could be no dispute whatever. Now, is not that an extraordinary way of asking you to construe a Treaty in relation to a matter in which we know there never 608 was a survey or into which region, so far as we know, never a soul had penetrated as far as this line at all—that you were to take it that there was a certain definite fixed location. Then he says at p. 399:— NoW, what did that mean? Why, certainly, it meant that it was left entirely open for the future to select mountains, along which the line should be drawn. I think it is perfectly apparent from the British Argument, they do not say that the specific mountains are named in the Treaty. We say they are; they say they are not. They say that the negotiators did not refer to any specific mountains; we say they did. They say that the question was left open to determine, to suggest the mountains hinted at. We say no; the range of mountains was fixed and determined at the time the Treaty was made, and that it was the range that was on the Faden map, on the Russian map, and on the Vancouver map. Take it as you may, and qualify the position of Great Britain as you may, is not it true that Great Britain's position is that this line was doubtful and uncertain, to be fixed only as the future would determine in the topographical survey and exploration of the country; and then it was to be fixed along certain mountains that were parallel to a datum line along the coast which was to be drawn. That is their contention. Now, taking this entire line, rising from the 56th parallel up to the 141st meridian, you have I do not know how many hundreds of mountains, but certainly hundreds and hundreds of mountain peaks in the neighbourhood. Now, you are to select—the British position is from those different peaks— some forty, fifty, sixty, or seventy peaks, along which the line is to be drawn at points where there are from four or five or six different peaks where you might select any one of the four or five or six. Did Mr. Watson really believe that even if you had found the definite range, the conventional range that is on these maps, there would be only one peak which you could take for 500 miles ? Did the nego- pis* Siggjdfl W* ■ 678 ALASKAN BOUNDARY TRIBUNAL. tiators look at that map of Vancouver's—the large map which shows what he says was a range, which I do not admit at all, and if you like, take this one, the outside, how many peaks do you count there? Why, he has even pictured in six or seven, all in a row, all along the whole way. Of course it is an impossible picture, quite an impossible picture. But if he says to me, " Look at what you are asking us to do; did you ever hear such an outrage upon a Treaty that you have actually to select the mountain peaks upon which you are to draw your line? "—I refer back to that, and I say, upon which of these mountain peaks are you going to draw your line ? The President. There are more than 100 peaks in most of the maps, many more. Sir Edward Carson. More than 100—yes. Nobody knew how «/ ml many there would be, and this difficulty of selecting your peaks can be got over; it is not a tremendous feat, after all, to select the peaks. And, my Lord, although this is a little out of the order of my argument, may remind the Tribunal of this, that it was not the mountains that were to be the boundary, it was the line along the summits of the mountains. That is a very important matter to bear in mind in going through the whole of this matter in connection with the mountains. Therefore, when he says— Now you are to select—the British position is from these different peaks— some forty, fifty, sixty, or seventy peaks along which the line is to be drawn at points where there are from four or five or six different peaks where you might select any one of the four or five or six—you are going to select one of them only— well, I say you cannot draw the line across two if the two are in the same line perpendicular to the coast, you must select one; there is no way out of it if you are to take a line at all. ml ml I can only add this, that certainly so far as the selection is concerned, the Ajnericans haye not given us much assistance, 609 because you will notice that they do not allege that there are any other peaks which, they say, would satisfy the Treaty. That is a case that I could understand. But what they say is" this, that although between our line and the sea there is nothing but mountains, and that is the configuration of the place so far as we know it from the survey, although we could not walk over one single inch of our line without going up over mountains and through mountain passes, and although the whole place right along the lisiere is one mass of mountains or sea of mountains, we ask you to wipe the whole of that out, and to say that there are no mountains there at all which can satisfy this Treaty; and they leave themselves particularly free from comment as to the way in which they propose to draw their line through these mountains, because although the line must necessarily go through these mountains they give us no idea at all and no description of how the line will be drawn as regards the mountains, or how it will be effectually carried out. Then at pp. 401-2 Mr. Watson gives a passage to which I have already drawn your attention so as to give more colour to his argument—that you were to take the picture from these maps. At pp. 401-2 he makes that extraordinary point that the Treaty directs you to go east on to the mountains from the Portland Canal. Then your Lordship will find that at p. 406 he says this:— Mr. George Canning thought and believed that there was a range of moun- « ARGUMENT OF SIR EDWARD CARSON. 679 tains substantially as shown on these maps, which run around the heads of all the bays and inlets. He did not have any doubt about the fact that there was a range: it was not that; his sole doubt was that possibly the maps migln; have depicted that range as nearer to the sea than it really was. And at p. 410 he says this:— Had they not to rely upon the maps as to whether the mountains were there? What other information had they? What other information could they rely upon? If they turned to Vancouver's narrative, which our friends on the other side say that they relied upon, and if that is to be regarded in the Case, or if they turned and read Vancouver's account of this lofty chain of mountains, which ran from this 56th parallel to the 141st meridian, but with the exception of Vancouver's narrative, and probably Langsdorff's narrative, and it may be some other books in reference to that locality, they could not go to any place except the maps for the location of these mountains. -And even the narratives do not pretend to locate the mountains. Could there be a stronger argument in favour of the proposition that I am urging? If the man could not locate the mountains in his narrative, how could he locate them in his map? But still he asks you to believe that they were located in the map, and that is the whole basis of his argument here, and he winds up the conclusion to which he comes, or to which he asks the Tribunal to come, on p. 415:— And now I come to the Treaty itself, and I ask you to follow me for a little while when I outline what seems to me significant of the argument that I am making—to wit, that this Treaty referred to the certain and definite fixed range of mountains shown on Vancouver's map, Faden's map, and the Russian map, and that these mountains are the mountains referred to in the Treaty, and that these mountains run around the heads of all the bays and inlets. Now I put this upon those passages to the Tribunal. I ask why should the negotiators have believed in the maps as he says ? I say he has given no reason for that. They are plainly conventional on the face. As I said before, he has produced no evidence that anybody had ever put a foot upon this part of the continent with the view of locating the mountains; and why should the negotiators have assumed that the map could only err by putting the mountains too near the coast and not too far, because you will recollect that that was the sole objection that was made to the mountains, and if they assumed that they might be too near, is it not a conclusive argument that they did not look upon the mountains as being definitely specified and 610 located in the way in which he says? And it is quite clear if you look at the negotiations themselves. So far from there being any belief in these mountains, you will find that almost at every turn there are observations entirely the other way. If you look at the British Case Appendix, p. 78, Mr. Pelly says:— Neither party have any very accurate geographical information with respect to the country in the immediate neighbourhood of the sea, and if the intentions of the Russian Government are fairly to be inferred from the words used in their proposal, the most satisfactory manner of settling this point probably would be by inserting in any Article providing for the boundary on the mainland the nearest chain of mountains, not exceeding a few leagues of the coast. At p. 81 you will see that Mr. Pelly again says:— If it is intended to conclude any Treaty with Russia under the present circumstance, the copy of the communication which I saw yesterday embraced all the points which appear necessary to secure the objects of the Hudson's Bay Company with the exception of a more particular description of how the mountains range with the sinuosity of the coast, as it is possible that those mountains represented in the charts as closely bordering on the sea, and described by the Bus- 680 ALASKAN BOUNDARY TRIBUNAL. sians as a " tres petite distance," may really be at a very considerable distance from the coast; and to provide for which case the distance ought to be limited, as Sir Charles Bagot proposed, to a few leagues, say, not exceeding 10 from the shore. Again, at p. 86 he recites the experience and the difficulty that was found on the other side in another matter where they were incorrectly laid down on the maps. Before that point that I have referred to to show that Count Lieven was just in the same position as we were as regards to these mountains, at p. 91 in his Memorandum on the North- West Coast Convention, what he says is this:— In the case now under consideration the word base, by the indefinite meaning which it presents, and the greater or less extension which can be given to it, would appear hardly suitable to secure the delimitation against subsequent disputes ; for it would not be impossible, in view of the little exactness of the geographical ideas which we as yet possess as to these regions that the mountains designated as the boundary should extend, by an insensible slope, down to the very border of the coast. So that, you see, we really come to this proposition that the way it stood on each side was: England feared that the mountains Were depicted too near the coast, and that they might turn out to be further away, Russia was afraid they might be so near the coast that they would go down to the very water's edge, and so they insisted upon the the mountains, which was then agreed upon. Then at summit p. 131 :— 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 10 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 those countries, such an arrangement would have offered an entire equality of favourable chances. That is what I think the Attorney-General called " gambling on the question of the mountains," but that passage of itself is an absolute answer to my friend Mr. Watson's whole theory. What gamble was there, whether you had mountains or whether you had line, if you ran the line by reading these particular maps into the Treaty ? The President. That is more important than the others, because that is after the Treaty. m ^^^ m* Sir Edward Carson. I was just going to say that that is after the Treaty showing its effect, and you will note that after the Treaty, he stiH talks of the mountains bordering upon the coast, which is the observation he made. Now, then, Mr. Watson's next point. He says that having got to this conclusion that you read these maps into the Treaty, he says you really have got an answer to Question 5, and of course if he had carried the Tribunal with him thus far, he probably would. I will just read what he says, p. 405:— If you go to these maps and you say that the negotiators had the least faith in them and believed that there were mountain ranges as shown upon these maps, then so far as your answer to the fifth question is concerned, it is practically indifferent whether you take that bold dominant range or whether you take this interior range around nearer to the sea. Each one of the ranges all around the "bays and inlets. One gives to Russia larger lisiere, but each gives to Russia the exclusive jurisdiction in all these waters. Now, the criticism has been made by Great Britain on these different maps that all the negotiators did not believe in them at all. They did not confide in them. There ARGUMENT OF SIR EDWARD CARSON. 681 were several marked differences; there were such peculiarities connected with them that to such men as were the negotiators they entirely threw the maps out of consideration, and did not treat them at all. Now, in a moment I will refer you to the testimony. * * * And so he goes on, but I am only referring to that to show that he says that settles Question 5. The President. That is his principal argument that you are coming to, that because this range goes round the inlets, therefore, that must be so; that is his principal argument. Sir Edward Carson. Yes, and having satisfied himself about that he makes this statement:— And don't your Honours see how much work I have relieved you from, if I have only satisfied you of the fact that the Parties, when reading these maps into their Treaty, did intend that the line should run along this crest of mountains? It answers all questions except 54 degrees 40 minutes, and the Portland Canal will settle the matter definitely and determinately. Now, look how clear that is, and look how simple it is. Well, of course, if he has drawn the conclusion that you are to read these maps into the Treaty as he says, it may be very clear and i ml ms 7 %J %J it may be very simple, but, of course, what I say—and I say this is the most serious point of this case—coming to the very closest quarters withiiim, that it would be an outrage to a Treaty to have read CD ml these maps, or to read any part of them into the Treaty. I say that it would be going behind the Treaty even to use these maps as a picture of what the negotiators intended. And I will tell you why. If it was intended that apart altogether from the" question of the mountains or the question of the line being there, if it was intended that the line should be fixed in such a way as he, taking a selection of this range of mountains says it ought to be, across and above these inlets, then, was there anything simpler in the whole world than to fix that line either by a line drayvn across the map annexed to the Treaty, or taking the proper latitude and longitude, in point of fact, printed upon the face of the Treaty itself. And I say that is the one matter above all others that the negotiators most deliberately decided not to do and which I say now you cannot do in the face of that deliberation. And look what trouble it would have saved the negotiators if that was their intention; look what trouble it would have saved them instead of having to put in these alternative provisions and having these questions which arose at the end between Mr. Stratford Canning and the Russians as to whether you were to have the alternative proposal at all. You would have had the one simple proposal. Draw your line where the conventional line of mountains is shown upon Vancouver's map; where it is shown upon the Faden's map, if you like, or any map, or draw a line within 612 certain latitudes and longitudes, or attach a map to the Treaty, and put the line upon it, but I say, was there any act more deliberate in the whole course of these negotiations between the Parties than the exclusion of these maps and the line which was shown upon the maps, whatever line it was that they were dealing with, when they were pointing out these various proposals one to the other ? Now,' I .venture to press upon the Tribunal that this is the very most critical part of this case. Of course, if you are prepared to hold that you must get some kind of line that you first formulate in 682 ALASKAN BOUNDARY TRIBUNAL. your minds that the negotiators meant to adopt out of these maps, and that you must read, in some way or other, that line into the Treaty; of course, if you come to that decision, I admit you have gone a long way against the contention that we have, but I do press- upon this Court that nothing could be more serious than to give any effect whatever, I do not care how slight, to the incorporation, or the attempted incorporation, of something in the Treaty, which I think it is demonstrated as clear as can be any fact in this case, that ms s the negotiators themselves never intended. They left it absolutely, to use the words of Count Nesselrode— To the chances of the situation as might be shown how the mountains came. And I say, leaving it to the chances of the situation, when you find these mountains, if you find these mountains along the lisiere there in such a way that you are able to trace the boundary up to any of these inlets, or all of these inlets, the only way in which you can treat it is to carry the boundary over the inlet; or if you take the other alternative of saying you cannot find mountains within 10 leagues, there you take the 10 marine leagues for the purpose of measuring up from the ocean where the line is to cross. But, either way, you must take it unless you are prepared to say that we have a picture here before us, a picture which was looked on as a real picture, as showing a definite line of mountains, as Mr. Wratson puts it, and we are going to read that into the Treaty. I say that that is the very last thing any Tribunal has a right to do, because if you take the Treaty, which is framed with considerable care when theyHiound out that they had nothing reliable in relation to the geographical features of the country, I say the real way to interpret it is, what would a surveyor do who was given that Treaty and asked to go and draw the line, putting the negotiations out of view for a moment ? Would he have the least difficulty in going down there and finding these mountains and fixing the line, going round none of the heads of these inlets ? Mr. Turner. Mr. Solicitor-General, if this line of mountains did, in fact, exist as it was pictured on the maps, then would this Treaty sufficiently identify that as the line? JijM Sir Edward Carson. The Treaty ? Mr. Turner. If the line of mountains did actually exist, as depicted on these maps, would this Treaty then identify that as the line? Sir Edward Carson. WTiich ? Mr. Turner. Pictured on the Faden map, say. Sir Edward Carson. There are two or three other ranges. Mr. Turner. Let us get on to one. Sir Edward Carson. That is what I want. Mr. Turner. Supposing the line of mountains depicted on the Faden map was actually there in conformity 613 Sir Edward Carson. Which line? Mr. Turner. The continuous line. What I want to get at is whether or not you concede that this Treaty would fix this particular line laid down on the maps, if, in fact, that line of mountains was there. Sir Edward Carson. If, in fact, that line of mountains was a physical fact? • '"ww. U ■>,«*■» '.'■*.■ <■"■• m* miPK ARGUMENT OF SIR EDWARD CARSON. 683 The President. Yes. Mr. Turner. Was a physical fact; then would this Treaty identify it? Sir Edward Carson. It would, subject of course to the 10 marine leagues. Mr. Turner. That is all I ask. Sir Edward Carson. And also subject to this Mr. Turner. If it were identified if there, then why does it not identify it as the line in contemplation even if not there? Sir Edward Carson. Because it is purposely left out and you do not find the mountains^there. The President. But what the Senator means, Mr. Solicitor, and I think it does want an answer, is this, if there was a range of mountains, we will say 5 miles instead of 10 leagues from the coast, which, going from summit to summit, did establish a line approximately parallel to the coast, whatever that would mean, this Treaty would fix that as the boundary. Sir Edward Carson. Certainly, I said so. ml 7 Mr. Aylesworth. If there were no other mountains nearer the sea. The President. I was putting that. Sir Edward Carson. I said so. That would certainly be so, but I wish to qualify it with this, that if in the course of your survey you found that there was a nearer line of mountains along the shore then I would not concede that the Treaty meant to adopt the particular line or any particular line you might select and which had been discarded and not put into the Treaty by the negotiators. Supposing you had got (to use Mr. Watson's phrase) a dominating continuous range nearer to the shore between these two, I say the negotiators having left it open as a matter of survey and description, you would have to take what you found as the actual fact there nearest the sea and not of the one that you say or may guess was the one they had in mind in framing this Treaty. But, of course, if you turn to Faden's map, or to any of these maps, you cannot tell which of the mountains they were talking about, because you will find along the shore in Faden's map, almost continuously along the shore, you will find mountains quite up to the shore, and I decline to admit that they were talking of what they knew to be the conventional boundary, and talking of that in language which implied that they were real mountains, that is the whole foundation of the difference between myself and Mr. Watson. Now, let me put it in another way. I am asked what would be the effect of finding the mountains there as depicted upon the maps. Let me put another question to Mr. Watson, in reply, of a similar character. Supposing the only line found along there was such a line in this exact position as Mr. King is able to trace, what is the result ? Will you discard it ? Would you then say, 1 Oh, that is not the line in the Treaty, because you have got to select one out of a unmber of difficulties"? 614 Of course, Mr. Watson would jump at it if it happened to be in that position. It is not the fact that you have to jump from one summit to another; it is not the fact that you have to take mountains which in one sense are continuous, though in another sense are not a range or a continuous range. That is not what he objects to—that is not realy what he objects to. What he objects to is the m 11 —*-•*- 684 ALASKAN BOUNDARY TRIBUNAL. situation of the mountains, because they happen to come closer to the coast. Mr. Watson says the Treaty gives no direction as to these mountains unless the maps are incorporated. He says there is a certain specific well-known chosen range of mountains. But I entirely deny that the Treaty gives no directions. I say that the Treaty gives many directions as regards these mountains. And there was one observation which I ought to have made, perhaps, when I was treating of the question which was put forward just before I passed to the Treaty upon this subject, there was one observation I ought to have made as regards Mr. King's line in relation to the question of barrier. I ask, why is not Mr. King's line—that is of one mountain after the other, and always recollecting that there are not ' ms CD isolated peaks; if you look at the contour maps you will see you are always on the mountains, except when you get down into the valleys near the shores—higher or lower, but I ask on the barrier theory why is not that as good a barrier as the mountains which would be on a continuous observation ? The President. I think that is a fair observation, Mr. Solicitor, but of course the great question which we have at present to decide, which you have yet to touch upon and which you are coming to— crossing the inlets or not it is quite possible to draw Mr. King's line in one way if it is intended to cut the inlets, and in another way if it is intended to go round the inlets as a mountain line. I am only speaking of it as a mountain line at present. Sir Edward" Carson. Well, I cannot conceive that, because then you will not be so near the shore. The President. Well, I am not so sure of that; that wants looking at. j Then I will put it to you in another way: it is quite possible to take a line of summits nearest the shore which crosses the inlets, and a line of summits nearest the shore which goes round the inlets; the mountains to great extent concur in many places. Sir Edward Carson. Well, I am afraid your Lordship and I would talk of shore in a different sense. The President. I know; that is why I said you are coming to it. Sir Edward Carson. Yes. The President. Once get whether you are to cross the inlets or not, then it seems to me it is quite easy for Mr. King or Mr. Tittman, or anybody else, to draw a line which will still be in every sense that you ml ml } ml ml have put a line of summits of mountains near the shore. I only mention that; it is not, to my mind, a great difficulty. Sir Edward Carson. I do not think I am really in accord with your Lordship. The President. Very well. Sir Edward Carson. I will tell vou why; because I do not know, • a mJ ml 7 7 when you are talking of the inlets, whether you are treating the shore of the inlets as coast. If you sav you are treating the shore of the inlets as coast, I admit your proposition. The President. Yes, that is exactly what I meant; that is all I meant, that if we cannot give effect to the British contention— 615 I am onfy putting it for the purpose of making clear to you that the particular point that you are arguing does not seem to me to present the difficulty that is suggested by the other side. I can quite imagine a skilled surveyor drawing a line of mountains bordering the coast crossing the inlets, and the same skilled surveyor draW- ww* ARGUMENT OF SIR EDWARD CARSON. 685 ing a line of mountains bordering the inlets. In each case it will be ,to a great extent the same mountains, but they will not cross the inlets. Sir Edward Carson. I can only imagine that being done upon one assumption, which I say is a,t the root of this question. The President. Yes. Sir Edward Carson. That you treat the shore of those inlets as coast. The President. Exactly; and that is exactly what you are coming to, I mean to say. Sir Edward Carson. I will come to that. I will come to that presently. m7 I come, then, to what the Treaty says about the mountains. My Lord, what it says is this:— 7 ml La ligne de demarcation entre Ies possessions des Hautes Parties Contrac- tantes sur la cote du continent et Ies lies de FAmerique Nord-ouest, sera tracee ainsi qu'il suit. That is, the line shall follow— * * * la cr§te des montagnes situ§es parallelement & la c6te. It is not that the mountains parallel to the coast are to be the boundary. He does not point out that there is of necessity continuity, and I point that out particularly here, because not only do they say that that is not so, and do not come in fact to " la ligne " at all, but they say that you must read in a " dominating range." I am sure I do not know what " dominating range'! exactly means. One has a general idea of what is meant in the argument, but what it would mean if it were in the Treaty I am sure I do not know. A dominating • ml CD range—a range—a dominating range may mean one of several ranges, all behind the other, and one being higher than the other. I am sure I do not know exactly what they meant by it, but it is only for me to say that I have an impression that I can draw a line along these mountains, and that there are no such words in the Treaty either as dominating or range. And I wish to make a particular observation as regards that—as regards the question of range, and it is this, that if you look at the British Case Appendix, p. 128, you will see on comparing the draft as settled by M. Matusevich that he was correcting the draft which ml CD he had before him, something which was a translation of an English version of " range." The Treaty sentence said this—p. 116, you will see Draft Convention embodying Mr. Canning's final instructions. Here is the way he puts it; first he says:— From the point where the line of demarcation strikes this degree it shall be carried along the summit of the mountains parallel to the coast as far as the 140th degree of longitude west of the said meridian; thence the said meridian line of 140th degree west longitude in its extension so far as the Frozen Ocean shall form the boundary of the British and Russian possessions on the continent of America to the north-west. Provided, nevertheless, 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 Pacific, then that, for that space—" 616 And so-and-so. That was translated on p. 122. This was translated into French and submitted to the Russians, and here is what it is that is translated in this way:— * * * jusqu'a ce qu'elle touche a la c6te de terre ferme au 56e degre de latitude nord, depuis ce point-ci ou la ligne de demarcation touche au 56e degre, 686 ALASKAN BOUNDARY TRIBUNAL. elle suivra la create des montagnes dans une direction parallele a la cote, jusqu'au 141e degre de longitude ouest (m§me meriden) ; et de Ik la ligne meridienne du 141e degr6 du longitude ouest, dans son prolongement jusqu'jt la. Mer Glaciale, formera la frontiere entre Ies possessions respectives des deux I Puissances; pourvu, neanmoins, que si la crete des susdites montagnes, dans quelque partie que ce soit de leur etendue, se trouvera situ^e That is " of their range," " extent." Very well, it comes, then, that that was submitted to M. Matusevich, that you will see is Article III strikes that out:— La ligne de demarcation, pour cet espace, sera une ligne parallel© aux sinu- osites de la cote. | But he strikes out that is all I am on at present—he strikes out all reference to this word " range." Now, I ask again here when in the penultimate draft this word 1 range' [ is struck out, is it to be seriously contended that it is the intention of this Tribunal to put it in ?. I really think there has been throughout the whole of this argument upon this point by the other side a latitude in the ideas of what negotiators are and what the effect of an ultimate Treaty ought to be, which seems to me to wipe up the Treaty and set up the negotiations, because here you have, positively in the very last draft, you have purposely and specifically struck out all reference to range, and you are to put it in again. Mr. Aylesworth. Struck out and left out. Sir Edward Carson. Struck out and left out. I do not know, what is the use of ever reducing in writing and making alterations if you are to be at liberty to go back upon the negotiations and write all in that has been struck out. It certainly is a novel mode. It may be a rule of international law which my friend Mr. Taylor told us differed entirely from the rules of evidence as between parties in contractual relations. Mr. Root. Do you think that M. Matusevich meant to refer to a different crest from that which Mr. Canning referred to ? Sir Edward Carson. I think he meant not to embarrass the Treat}-' with the idea of a range; I think that is what he meant. Mr. Root. You think he had the same crest in mind that Mr. Can- had? Sir Edward Carson. He had the crest. Mr. Root. The same meaning of crest that Mr. Canning had ? Sir Edward Carson. It is yrery hard to say what each of them had in their minds, but I think very likely that what M. Matusevich thought was that when you come to consider it may be difficult to ascertain what it exactly does mean—I will assume now the words were in—when you were talking of a range of mountains forming the boundary, which is nearly 600 miles long, and he thought it was mJ 7 ^ ^ ml ^ CDs A CD quite sufficient to put m the mountains. The line was to follow the direction parallel to the coast; according to the way he fixed it, the line was to follow the direction:— Dans une direction parallele II la cdte. That was the line with him; that was slightly altered afterwards. 617 The President. And, of course, your observation is very much strengthened if you once grasp that the Treaty contemplates that it might be a place that they were obliged to leave the mountains because they were too far away. mng ARGUMENT OF SIR EDWARD CARSON. 687 Sir Edward Carson. Certainly. The President. It is obvious that " range'' in the ordinary sense of the word could not be intended. Sir Edward Carson. Certainly. I think it is perfectly clear that the word was struck out purposely, and I think if it was there it would give a great deal more difficulty. Mr. Root. Do you mean you would strike out " la crete " ? Sir Edward Carson. No : I do not know why you say that, Sir; I suppose you have some reason; I do not see why you say I strike out I la crete." Mr. Root. You spoke of following the mountains, but in both Mr. Canning's draft and the draft as corrected by M. Matusevich, and the final Treaty is " la crete des montagnes "; the " summit" not I summits." I Sir Edward Carson. Yes. Mr. Root. " The summit" ? Sir Edward Carson. " The summits." Mr. Root. Not " the summits," but " the summit " of the mountains which extend parallel to the coast; you say summits. Mr. Aylesworth. Singular. Mr. Lodge. Not " summits." Sir Edward Carson. Summits which are situated in a parallel direction to the coast. Now, " la crete " does not mean 1 the summit." That I deny. I say it means the summits. I have had this submitted—it is not my own. I do not profess to be a French scholar, but I have taken some considerable trouble to find out what the French of it is literally. m7 Mr. Aylesworth. Is not a better translation of it, the English word " the top?" Sir Edward Carson. The tops. Mr. Aylesworth. But if you say the top of the mountains ? The President. It cannot be one top, it must be the tops of the mountains. It does not matter, they must be joined by some sort of line. Sir Edward Carson. But, as we have to take the French word, let me read a note upon the subject which I submit. The Tribunal can make any inquiry about it, and see if it is accurate. I have asked one of the best French scholars about the matter, and he assures me that it is perfectly sound, but that is a matter that can be easily decided. \ La crgte des montagnes situ6es, &c. 618 The use of the article (for " des = de Ies ") gives more value to " montagnes'' and makes it a true noun. The translation is, | the summits of the mountains situated, &c." N. B.—It is perfectly justifiable to render the singular " la crete ' by the plural, " the summits," for the singular is generally used in French when one of each is meant. That is the point. Now notice the example: " ' la cime des montagnes est couverte de neige'"—and that is what is used in some of the negotiations—translated into English " means ' the tops of the mountains are covered with snow.' | J On coupa la tete aux prisonniers.' It does not mean that 20 prisoners or 100 prisoners would only have one head between them; 688 ALASKAN BOUNDARY TRIBUNAL. it means they cut off the heads of all the prisoners. We would say in English,' They cut off the heads of the prisoners.' " The President. I really do not think it is very necessary to go very far, though I quite agree with that. We have Sir Louis Jette, but in the draft Convention, they speak of " La base vers la mer des montagnes." Sir Edwtard Carson. " Dans la base vers la mer des montagnes." The President. We do not say " the bases of the mountains." Sir Edward Carson. I was just going to say I have it here on my note at p. 87, you will find they talk thus of | la base vers la mer des montagnes," because they mean by that the base of all the mountains. The President. The base of each mountain. Sir Edward Carson. Yes, the base of each mountain, and so far as that point is concerned, and so far as—— Mr. Lodge. Mr. Solicitor, do I understand you to say that " la crete' I is always used and never the plural, that the plural is never used of " la crete ? " Sir Edward Carson. Oh, I do not say any such thing. I say you may use it. Mr. Lodge. You may use the plural. Sir Edward Carson. You certainly may, so I am told; it is not the correct way if you are referring to such a thing as mountains or as in the case I quote " la tete," taking a similar case you take it distributively with reference to the number of the noun which you mean to indicate. Of course, I do not say that you might not say " Ies cretes." Mr. Lodge. Well, I find here in Littre Elevons-nous, avangons vers Ies grandes cretes vers Ies sommets escarpes des grandes chaines. Sir Edward Carson. Very likely. Mr. Lodge. That is in the plural chain of mountains. Sir Edward Carson. Very likely. Mr. Lodge. So it is quite possible to use it. 619 Sir Edward Carson. Very likely. Mr. Lodge. I do not know who the French scholar is you are quoting. The President. I do not think it is followed by mountains. Mr. Lodge. Chain. Sir Edward Carson. Chain is a different thing. It may be very right to use it; you may have a number of " cretes " along the chain, no doubt. There you are using the singular " la chaine," but what I say is, if you use the plural, the mountains, the proper way to describe the tops of these mountains is "la crete des montagnes." The President. This Case will not be decided by the grammar of that phrase, anyway. Sir Edward Carson. No; what it really means is that you take one " crete " for each mountain. It means that just as you take one head off each prisoner when you are cutting it off. Senator Lodge seems sceptical about this but he can no doubt verify it one way or another. The President. We have a good authority on the Tribunal, therefore you need not trouble, ARGUMENT OF SIR EDWARD CARSON. 689 Sir Edward Carson. Another example that I might give: Cet inconnu * * * avait erre quelque temps dans le milieu de rile, montant sur le sommet de tous Ies rochers. That is a quotation from Fenelon which was given to me. It is the same idea, but it is not worth while pursuing it further. It can easily be decided among a number of French people. Now, I say the Treaty gives you here all the guidance you need, but if you are to refer to the negotiations, I say you find there abundantly that we are right in the way we draw this, as being nearest the coast in a parallel direction, 1 situees parallelement a la cote." Those words are in the Treaty. . ms The President. Article IV. Sir Edward Carson. But in the negotiations themselves you will find this over and over again. They have been referred to, you will find, " qui bordent la cote." You will find " une tres petite distance." You will find the words " nearest the sea." You will find " closely bordering." You will find the " seaward base." Mr. Turner. I wish you would identify that expression " nearest the sea "; I do not remember that " nearest the sea." Mr. Aylesworth. That occurs in Mr. Canning's letter on p. 85, at the foot of the page, the last line but one. Sir Edward Carson. Yes, it is in Mr. Canning's letter to Sir Charles Bagot, p. 85:— The 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. Mr. Root. He explains that in the same letter over the page on p. 86 as meaning the seaward base. Sir Edward Carson. Yes, the seaward base. 620 Mr. Root. It is the base nearest the sea, not the mountains nearest the sea. Sir Edward Carson. No, I do not think that is meant to be the explanation. He says there are two points to be settled— 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. Mr. Root. That is the same thing that he referred to. Sir Edward Carson. " This is done by 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." After all, what is the seaward base of any mountain ? You do not talk of the seaward base of mountains when you come 35 miles in because you see the side towards the sea. Mr. Root. It is the base opposite the landward base. Sir Edward Carson. Well, then, you might take a mountain anywhere inland, and, having ascertained that the one side of it, if you went far enough, went to the sea, call it the seaward base, but I ask you to take the two things together, which is really the fair way to do S. Doc. 162, 58-2, vol 7 14 i%isv . 690 ALASKAN BOUNDARY TRIBUNAL. it; he quotes the mountains nearest the sea, and then he talks of seaward base, and I do not think that, taking the two together, you have any difficulty. The President. You are rather doing what you/ criticized Mr. Wat-, son for doing, going back to the negotiations instead of the Treaty. Sir Edward Carson. No, my Lord, I purposely pointed out The President. What I meant to point out is that at the time of the Treaty and immediately afterwards they speak of it as the mountains bordering on the coast; that is better than all the rest put together. Sir Edward Carson. That is better than all the rest put together, but, my Lord, I prefaced my observations upon going back on this by saying there it was in the Treaty. The President. Yes. Sir Edward Carson. And I say in relation to it if you want more, and I am* not calling it to bring anything new into the Treaty, that there it is; that the Treaty points out exactly the same thing as the negotiations, and I say that in drawing any line, and this is a justification for Mr. King's line here, it is impossible to draw one except taking the mountains nearest the sea. You will get into any amount of trouble and difficulty in drawing it and making an impossible line, not the Treaty line at all; if you do anything, take the seaward mountains. Now, my Lord, I shall be proceeding to consider the question of coast. The President. Will you be able to conclude to-morrow, Mr. Solicitor ? Sir Edward Carson. I am not certain, my Lord. The President. You will do your best. 621 Sir Edward Carson. I will do my best. The President. We will sit later if necessary. Sir Edward Carson. No one is more anxious to conclude than I am. The President. We know, Mr. Solicitor, and we* will sit later, if necessary, to-morrow. (Adjourned till to-morrow at 11 a. m.) 622 FIFTEENTH DAY.—FRIDAY, OCTOBER 2, 1903. All the Members of the Tribunal were present. Sir Edward Carson. My Lord, I was last night going to pass on to the consideration of the Treaty, in relation to the coast, that we have to examine here. My Lord, before I do that I would like to make one remark; I did remark it with reference to another matter yesterday, and that is to ask the Tribunal to bear in mind that it is not merely the mountains that were parallel to the coast, as I said yesterday, but they were drawing a line along the mountains which were parallel to the coast. I said that yesterday in relation to Mr. King's line and in support of it, but I wish to apply the observation in another way; also, that it gives an indication, at least I suggest to the Tribunal that it gives an indication, that there is no reason in the world, if you thought there was the line of mountains coming along to the inlets and then the mountains going along upon the other side, there is no reason why you should not draw the line across. Of course, there may be differences in different places, but I shall take, for instance, just to apply my point, a very narrow inlet, a very narrow indentation in the coast going a long way in, as I say that the Treaty itself allows you to do; in that case you may draw a line across the inlet, if you find the summit of the mountains which you require on each side; and, if I am right in that, that I think is an additional argument why you cannot answer the fifth question in the affirmative, because, as the place was unsurveyed and it was entirely unknown to what extent these inlets would run and what was the exact configuration of them, it would be impossible to say that, no matter how narrow or how long the inlet might be, you were not to do what the Treaty enables you to do—draw a line across from one mountain to the other. My Lord, I pass on now to the question of coast in the Treaty. Now, let me say here in approaching that we must, as Mr. Watson says, put ourselves in the position of the negotiators. There is no use attempting to find out what the negotiators meant by that, by taking the rights as they exist after the Treaty. You must take it as the rights exist after the Treaty was negotiated, and that was one of the reasons why I took up so much time yesterday in attempting to disprove—and I think I disproved it satisfactorily—the allegation of Mr. Watson that Russia was ever the owner of the mainland coast on which what is now called the lisiere is situated, and it seems to me that that consideration puts an end entirety to the whole basis of Mr. Taylor's argument that he put forward here. At the same time, with great respect to Mr. Taylor, who is one of the most eminent authorities on international law—I quite freely and frankly admit it—I 691 692 ALASKAN BOUNDARY TRIBUNAL. Wmi fe decline entirely to be bound by this, that, when you come to see what was meant by the negotiators of the Treaty, you are to suppose they at every moment at which they were framing the Treaty, bandied the proposals from one to the other, using language and phrases which may have a certain meaning amongst publicists such as Mr. Taylor, that they had at their elbow some gentleman equally eminent with Mr. Taylor, explaining to them that there only existed, to the knowledge of writers on international law, two kinds of coast, namely, the political coast and the physical coast. And you ought to bear in mind that, as the political coast is something imposed or superadded to the physical coast, if you cannot get a political coast you can get no trend of the coast within the meaning of the phrase that is used in the documents. I do not know whether your Lordship really follows the way in which Mr. Taylor pressed that. He makes the meaning at all events perfectly clear in the passage at p. 551 in which he says:— 623 If there is no reason for it, is there any authority for it? I respect fully call upon the Representatives of Great Britain to go, if they can, and search the international jurisprudence of the world— Well, my Lord, I have not done that since Mr. Taylor's speech, and I think I shall show you why I have not asked you for an adjournment to do that— international jurisprudence of the world and see if they can prove from the treatise of any publicist in any nation that anybody has ever put into any book anything in the way of authority for the proposition that a political coast line can exist back of a political coast line. I have already said that does not arise here at all, because at the time the mainland was not the possession of Russia, and the mainland must have had a political coast, if you can define what a political coast really means. I say that it is absolutely impossible, upon the basis of reason or authority, to establish or to give any colour to the idea that such things exist. It cannot exist under the existing principles of international law. If that is true, the only coast line that can take the general trend of the coast is the political coast line. Then that interior coast line is a physical coast line, and has the character and attributes of a physical coast line which exists for the purpose of a boundary merely. There can be no conflict there of precedent authority. A physical coast line is made by the hand of Nature where the salt water touches the land, and that is the explanation of the word " sinuosities." If Mr. Taylor puts it in that way, I should have liked him to go on to explain how he can draw his line parallel to the sinuosities. If the conclusion of his argument is that you are driven to nothing but the sinuosities, and that he makes out of Article IV something different in the parallelism from what there is in Article III, I really think his line must fail altogether. Then he goes on:— A physical coast line is made by the hand of Nature where the salt water touches the land, and that is the explanation of the word | sinuosities "; it was to indicate that these people were dealing with a question of boundary! they were not dealing with a political coast line for the purpose of jurisdiction; they were dealing with a physical coast line, as Rivier says, for the purpose of barrer. Therefore, as the physical coast line must follow the marks put upon it by the hand of Nature, the physical coast line follows the sinuosities as Nature made them, and when you put the political coast line out here [indicating on the map] it is impossible to have it there. ARGUMENT OF SIR EDWARD CARSON. 693 The whole confused and fundamental misconception upon which this whole British line is based ig that you can run a political coast line in here. And there you have a positive demonstration. To talk about a line going across Lynn Canal, whether it is 6 miles or 10 miles, becomes empty jargon unless it is a political coast line, for no other coast line can go across the head of a bay or inlet, and all this is unintelligible jargon in conflict with the very fundamentals of international law. And it is upon that fundamental confusion, the idea that there is a trend of the coast of which international law knows nothing. There can be no trend of a coast except the trend where the political coast line is. If that be true, then the conclusion is irresistible that the coast— and there is no use in our confusing ourselves by the word " ocean." The primary inquiry is: What is the coast? That is the technical question to be defined, and " coast" is where the salt water touches the land. Now, my Lord, if it was necessary for me to argue in the way Mr. Taylor has argued, all I can say is, I think I could devote considerable time in pointing out that'as there was a political coast, because the mainland had then a political coast, and as there was a political coast, as the coast did not belong to Russia, and as, if I take Mr. Taylor seriously in saying, that there can be only a general trend to the political coast, all I can say is, that for the twenty or thirty years for which this matter has been debated between the Parties, I 624 could bring abundant evidence that eve^body had admitted that there was a general trend of the coast, and if that general trend could only exist in relation to a political coast, and if that political coast would, according to the assumption of Mr. Taylor, cross the Lynn Canal, I think I could base a very good argument to show that, upon Mr. Taylor's own showing, the general trend of the coast would go in the way in which I have marked it out. CD ml But, my Lord, I protest against reading these twisted views of the writers upon international law into a Treaty of this kind, which was not dealing with these questions in the way in which these particular matters of political coasts are worked by writers upon international law, but was using plain language, the language of the negotiators, which they themselves perfectly well understood without going into these refined distinctions of writers on international law. Now, my Lord, what is the effect of what Mr. Taylor asks you to do, Having satisfied himself that there is no political coast, and that there can only be the general trend of a political coast and that, therefore, there can be no general trend here, having satisfied himself of that he comes to a perfectly satisfactory conclusion, and he says you may discard the word " ocean " altogether. That is the result of the whole thing; you may discard the word " ocean " altogether. That is, of course, what he is leading up to in his argument, just as Mr. Watson said that the moment you read the map into the Treaty, he was able to tell you the exact line of Vancouver or Faden, that the negatiators had on the map. He said the whole thing was perfectly simple. All you had to do was to draw your line here; you were not bothered with " ocean" or " trend of the coast' or anything else; and so here Mr. Taylor says:— Just blot out coast; you have come to the conclusion there is no political coast; blot it out; and then the whole matter is absolutely simple, and you decide the question that way. My Lord, that will not do; you have to go to the language of the Treaty, the language in its plain ordinary sense, and you have to try to see what is meant here by coast. ms ms 694 ALASKAN BOUNDARY TRIBUNAL. And now, my Lord, let me put very shortly what I say about that. I say in the first place we are to get what is " coast " from the Treaty itself, and not from the definition of writers on international law. I say here that the coast is the edge of the ocean? and I say that no other possible construction can be given to the Treaty if you are to read Articles III and IV together, because what Article IV says is this:— 2nd. That whenever the summit of the mountains which extend parallel to the coast, from the 56th degree of north latitude to the point of intersection of the 141st degree of west longitude, shall prove to be at the distance of more than 10 marine leagues from the ocean. Now, I say they put in that word especially, not " from the coast," because that would have left some question to be decided; there might have been a difference. A man may talk of the coast in a very loose way. As was said by Mr. Robinson, a few days ago, he may talk of going to the coast when he is really going to some inland water or water that may approach the sea, but they put in the word " ocean," " 10 marine leagues from the ocean." The limit between the British possessions and the line of coast which is to belong to Russia, as above mentioned, shall be formed by a line parallel to the windings of the coast, and which shall never exceed the distance of 10 marine leagues therefrom. That is from the coast, but it must also mean " from the ocean," because if you are to measure the mountains 10 marine leagues from the ocean you must measure the line from the same place, and if that is so, if I am right in that, and I believe no other possible construction can be given to that fourth Article, then I say that I demonstrate from the Article itself that the coast is the edge of the ocean; otherwise I cannot see how the Article itself is to be worked. 625 Mr. Aylesworth. Do you mean the line where the water ms touches the land or what is called the political coast ? Sir Edward Carson. No, I do not; I mean from the ocean, what is known as the ocean. What I say is the coast is the edge of the ocean, what is ordinarily and usually known as the ocean, which I understand to be the largest division of water which is known in our language. It is the water which separates great continents one from the other. That is " ocean " in its ordinary sense. All other waters, m ml J the minor waters, have their own specific names, whether you call them seas or whether you call them inlets, or whether you call them canals, or whatever else you may call them. I say that everybody knows perfectly well what " ocean'' is as contradistinguished froni these smaller seas, and they specially put in there the word " ocean," so that there might be no ambiguity about it. I go further into the Treaty to prove this. I say that the " ocean' means something which does not run up the inlets; and I prove that by the Treaty itself, because it says you are to draw a line parallel to the coast which is the edge of the ocean, and I say that if you are to take it as being the edge of the salt water you have only to look at the contour maps or at any of the maps to see it is absolutely impossible ever to have expected that mountains should run " parallele- ment' to these various inlets, and it has always been admitted by anyone who has investigated this matter it is absolutely impossible to draw a line " parallelement" to these sinuosities. You will see that afterwards; I dare say you have it already present to your minds. ARGUMENT OF SIR EDWARD CARSON. 695 Then I say that I have a right to construe the word " ocean' reference to the questions you have to answer; and here, again, I am afraid I am going back upon something I said yesterday, but it seems to me to be of such vital importance in this Case that I must go back upon it. I look at the question in this Case, and I say that the questions in this Case must mean something; I say they must mean something which was agreed upon by both parties, as the basis upon which the question in dispute between the two Governments could be settled, and I say that these questions, when you look upon them, at least assume that there can exist the general trend of " coast." I think that " general mainland coast" must be something in contradistinction to inlets. Now, just look at the questions for one moment. (1) From the mainland coast of the ocean strictly so called. What did the parties mean by that ? Did they mean where the salt water touched land, as Mr. Taylor said? It is impossible. It is impossible they could have meant that. That is not " the ocean strictly so- called." And then it goes on:— Or (2)— f Mm f: f ■ was it the intention and meaning of the said Convention that where the mainland coast is indented by deep inlets— Does not that show that they previously meant the coast without taking into account the indentations ? And then they go on:— (a) From the line of general direction of the mainland coast, or (6) from the line separating the waters of the ocean from the territorial waters of Russia, or (c) from the heads of the aforesaid inlets. Now, my Lord, just let us see to what the construction of the other side would lead us. I may use this in aid of my contention, that the my ml 7 Parties agreed before they came here that these questions arose upon the Treaty, and from the verv fact that they do not leave it to the ml 7 ms ml Tribunal to determine what is mainland coast or what inlets there are, they must be taken to have been assenting, because nothing else can be deduced from these questions; they must have assented to the difference I am drawing between the coast, without taking into consideration the indentations that may be found in it and the indentations themselves, and if I am right in that I think I have generally established what I say that " ocean " here has the ordinary, the large wide meaning which it has in our own geography—of the largest description of water that we know undivided, and not the limited meaning that is put upon it by Mr. Taylor. 626 But just look at the result which would follow if you take the contention on the other side. When we asked Mr. Dickinson to draw his line of the coast, he drew the coast round all these inlets. Well, then, I suppose, my Lord, I may ask the Alaska Boundary Tribunal to answer the question: 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?— with the affirmative answer: It was " from the general direction of the line of the mainland coast." That is the only answer you can give us, and that is the answer we ask. And I do not see, if their 7 696 ALASKAN BOUNDARY TRIBUNAL. construction was right, if there was no such thing as " the mainland coast" and if " the general direction of the mainland coast" meant such a line as runs round everywhere where salt water touches—that is what in form they have given as their definition of it—I cannot see what is the object of the two questions. The Heal question, then,* would have been not whether you are to measure it " from the general direction of the mainland coast' (which, according to Mr. Dickinson, runs round the inlets) or from the inlets, because the two things would be identical; but what the Parties would have asked was, as to running up the mainland, what do you mean by " mainland ^? That would have been really the question, and the answer that Mr. Taylor, as I understand this argument, asks you to give is that there is no such thing at all as mainland coast, but that is not one of the questions submitted. Therefore, I submit that on this word " coast," which I have defined as the edge of the ocean, you find the Parties, by the very questions which they have framed here, admit that there is a general trend of the coast which I say is contrasted with the inlets themselves, and it is impossible, on the agreement that has been come to here under which the Tribunal is holding this investigation, to say that the Parties before they came here did not say that the real question was, are you to measure from the tops of the inlets in that manner, or are you to measure from what we call the general trend of the mainland coast? It is useless to proceed with an Arbitration of this kind unless some meaning is to be taken out of these questions, and if you get any meaning at all out of the questions it must be in the manner that I have already said. I really have gone back to that, because, as I said yesterday, I am extremely anxious, in the first place, that each member of the Tribunal should fully realize the extent to which it pushes them in giving his answers, and because, I see, however the Tribunal may solve it, the very great difficulty of.giving answers, yes or no, to any of those questions, and it may be if one goes outside the questions, having regard to the diplomatic correspondence which took place before this investigation came up, in which the Parties refused to submit any general question to the Tribunal, that with this very limited reference in going outside of the questions, or attempting to answer them otherwise than in the way in which those who framed them expected that answer would be given, you would only be landed in further trouble beyond what we have at the present moment, and that, of course, I am particularly anxious should be guarded against in the interersts of both Parties. Now, when Mr. Taylor tells us that we are all really talking nonsense when we talk of the general trend of the coast here, because he and the other great authorities on international law know of no general trend of the coast, except of a political coast, what were the Parties talking of all these years? How was it nobody ever found out, notwithstanding all the hands through which this passed, that it was impossible to find any other general trend of the coast except this political coast? Wliat a number of fools have been engaged in this transaction! There is Mr. Mendenhall, whose instructions were read at considerable length by the Attorney-General. Mr. Mendenhall, I believe, is a very distinguished man. I believe that he was a man very much trusted by the United States—certainly a ml tl _*' , man not very friendly to my country, but I forgive him for that. ARGUMENT OF SIR EDWARD CARSON. 697 The only way he saw of carrying out the Treaty when the Convention of 1892 was entered into—mind you, the very Convention which has led to this Tribunal being appointed—the only way he saw of carrying it out was by directing his surveyors to find the general trend of the coast, and then to make their surveys, and the whole surveys have been based upon them, and there has not been one 627 word said about that by either of the learned Counsel who preceded me in this matter, and I am entitled to presume there is no answer to it; and he proceeds, and gets all these questions gone into—it is a matter that took years—upon this mistaken basis; whereas all he had to do was to ask somebody of intelligence, who would have told him, " Why, there is no such thing unless you get a political coast, and there is no political coast here "; and so the whole matter has gone on, and here we are now in the Convention of 1892, having been appointed to fix the data upon which this Tribunal might determine this matter; they go on and yvaste all this expense upon the assumption that they can get the general trend of the coast, which was taken as the one which we now suggest by Mr. Mendenhall himself in his instructions to his surveyor. He never thought for a moment of going back as the American line goes back. You will find that his surveyors never reached it at all. Why? Because he surveyed the 30 miles back from the general trend of the coast and from no place else. That was pointed out by the Attorney-General as he went through the contour maps. Well, if you are to cast all that aside, and if you are to accept Mr. Taylor's argument, I suggest to the Tribunal the proper report to make to the respective Governments is that we have all gone on a wrong basis. The President. But, Mr. Solicitor, without going into geographical books and things of that sort, I do not think it can be denied that there is such a thing as the general trend of the coast. You find it in geographical books o'ver and over again. Sir Edward Carson. I know. The President. The question is what does it mean here. It is beyond argument to say you can have a general trend of the coast. Sir Edward Carson. I read out to you the passage. I must deal with the United States' Argument. The President. Certainly. Sir Edward Carson. I have to deal with the United States' Argument, and I do so for this reason all the more because it is not merely the arguments of Mr. Taylor that I am dealing with, but I am dealing with the map which has been put in, and which Mr. Dickinson relies upon as pointing out to you what is the general trend of the coast. Mr. Dickinson. I do not want to interrupt you, but you are probably misleading yourself, and I think perhaps I had better correct you. That map is not put in as showing the general trend of the coast. The President. You said it was to show the line to which you were to run a parallel. Mr. Dickinson. We call the coast the line in the Treaty, but the Solicitor-General is labouring under a misapprehension if he thinks that represents the general trend of the coast, and I want to correct him. Sir Edward Carson. If I misrepresent my friend I am very sorry. 698 ALASKAN BOUNDARY TRIBUNAL. ■ Mr. Dickinson. Not misrepresents; I only wanted you to understand the point, so that you may discuss it. Sir Edward Carson. Really, then, I should like to know 628 what is their view of the general trend of the coast. I am entitled to ask that. If he can explain when he comes to speak, I think we are entitled to know. He says it is all the sinuosities, and I thought he meant that it was all the sinuosities of the coast. Then, again, you find that Mr. Bayard also talks of the general contour of the coast, and that Mr. Phelps talks of the coast itself being indented, which, of course, is a thing which really I claim in this Case that the Treaty itself shows, as I have already attempted to point out, that the coast is the edge of the ocean, that the ocean is something which is different from the salt waters, if you please, which fall into the indentation, because it certainly would be a novel thing to lay down that the ocean was everywhere where you found salt water touching land. I do not know where we would be stranded; I do not know whether we ought not to go out and look at the ocean now, if we are to take " ocean " to extend as far as the salt water goes. Now, if that is so, if the coast, then, is something to which a parallel can be drawn, I will only leave this by saying it is impossible to draw a parallel to the coast that has been marked, as it has been marked by Mr. Dickinson, or those who advise him, and I should like him to point out what he thinks is the general trend of this coast, which*is the matter upon which the whole survey has been made, and if we are not enabled to use that survey, I do not know what we are enabled to use. Now, I say, passing from that, the negotiations, so far as you can gather anything from them, show that I am right in my construction CD ml CD 7 CD ml of coast as being the edge of the ocean, and draw a distinction between the ocean and the waters of the inlets. I say th,at, because we have several times during the negotiations, the head of Portland Canal treated as " dans Ies terres," and not treated as coast at all, and I think that Portland Canal is a useful instance, because it is in configuration, when you look at the maps, much more like the Lynn Canal than any other inlet along the lisiere. I am not going through the various passages, which have been already referred to by the Attorney-General; I will only cite one of them again, just to remind you of it. If you look at p. 76, it is:— Afin de ne pas couper l'lle du Prince de Galles, qui, selon cet arrangement, devait rester & la Russie, nous proposions de porter la frontiere meridionale de nos domaines au 54 degres 40 minutes de latitude, et de la faire aboutir sur le continent au Portland Canal, dont 1'embouchure dans l'ocean est a la hauteur de l'lle du Prince de Galles et l'origine dans Ies terres entre le 55e et 56e degre de latitude. Well, nothing is more explicit than that phrase " l'origine dans Ies terres." Am not I entitled to apply these words as a description of Lynn Canal? Supposing the negotiators were describing Lynn Canal, what reason is there that they should describe it any differently from the way in which Portland Canal is described ? I have here a photograph of a portion of the top of it, or near the top of it. The President. Wliere is it taken from, do you know ? Sir Edward Carson. It is taken from the summit of a moun- — ARGUMENT OF SIR EDWARD CARSON. 699 tain—Mount Davidson. It is taken at a height of over 6,000 feet, and it was taken in 1894. The President. Yes. Sir Edward Carson. It was not taken for the purposes of this investigation, but it looks to me a curious kind of ocean. (The photograph was handed to the Tribunal.) Sir EoyvARD Carson. Now, is not that the kind of thing 629 which I might fairly use for the description " dont l'embou- chure est dans l'ocean," and also of the words " l'origine dans Ies terres." It seems to me to be exactly the same, but you are asked here even to go a great deal further than this, because you are asked to take not merely that but to say when you go up higher, and you go up into the Taiya Inlet, that that is " their ocean," and into the Chilkat Inlet on the other side that that is " ocean," and that any inlet is the ocean. I say that the thing is absolutely impossible, and if you look at the configuration of the heads upon these contour maps—you have seen them before, and I am not going to stop to examine them—I say the thing is monstrous. If you look at the whole of the correspondence, the index we get is really upon this Portland Canal, and if that is the description of the Portland Canal and I say also of the Lynn Canal, it is even much more applicable to Endicott Arm than any of the indentations along this liszere, which as I showed you yesterday branches out into various shapes on both sides. It was on the contour map we looked at yesterday. I submit that these words are apt for the description of this, and this is remarkable, with reference to the description as to Portland Canal, that, when on two occasions Mr. George Canning used the description about the line touching the coast at the head of Portland Canal, he was at once corrected, and the words were put back, similar to the ones which I have just quoted, to the Tribunal. When*we put in " touching the coast of the continent," it was at once corrected. However, I am not going to stop to dwell upon that, and, while I point to that as a strong argument, to show what the negotiators had in their minds when they were using " coast" and when they were using " ocean," in relation to Portland Canal, I ask my learned friend, when he comes to reply in this Case, to tell me what he relies upon in the negotiations to show any different meaning in the treatment of these inlets along the line of the lisiere. There is one matter which I should like to call attention to if we are to go back to the negotiations to explain this word " ocean "—I mean to the various drafts. In the draft that was submitted by* Mr. Canning in his final instructions to Mr. Stratford Canning, he used the word " Pacifick." You will find it at p. 116. Provided, nevertheless, 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 That was translated in the Treaty to " Ocean," showing that it means the Pacific Ocean. That is at p. 116 of the British Case Appendix; so that you have to apply the word " Pacifick." There is one other observation that I should make about this Portland Canal, and that is that when Mr. Bayard, in the letter read to the Tribunal, comes to talk about Portland Canal, he calls it the inlet, as it plainly was and plainly is. 700 ALASKAN BOUNDARY TRIRUNAL. Now, I come to say a few words as regards Article VII. It has been referred to frequently in the course of this Argument, and I really would like to press the argument upon this Article VII as much upon the Tribunal as I can, because it will be at once seen that it is a very important argument which arises upon it. Now, Article VII certainly refers to the lisiere. I do not think anybody can dispute, as a proposition, that it certainly refers to the lisiere. The question is—does it refer only to the lisiere? Can you show that it refers only to the lisiere, so as by that to make the provisions of it applicable only to the lisiere, and show that the Parties so agreed because they contemplated that each Party would have bays and creeks, havens, seasj and gulfs in the lisiere. Now, I start with this, that it certainly applies to the lisiere. I go further, and I say that it applies only to the lisiere; and I say if I am right in that it carries me the whole way in this Argument that it was contemplated by the Parties that a portion of these inlets might belong, when the line came to be marked out, to Great Britain, and that they might have mutual rights along the lisiere in relation to these inland waters, and that it was necessary to give reciprocal advantages, one Government to the other. Now, I have traced through this correspondence and, without wearying the Tribunal by going through it, I make this assertion, that from beginning to end you can point to nothing in the cor- 630 respondence which shows that that would refer to anything but the lisiere. If you look at p. 104 you can see objections that were alleged to arise upon the draft that had been submitted :— I have made in some marginal notes some remarks as to minor points, and 1 reserve to myself the duty of making, in this despatch, the most 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 coasts which constitutes the subject of the discussion, and which extends from 59 degrees of north latitude to 54 degrees 40 minutes. 2. Liberty to English subjects to hunt, to fish, and to trade with the natives of the country for ten years on another part of our coasts and islands, from latitude 59 degrees north latitude to Behring Strait. * * * Now, I point the Tribunal's attention to the fact that the whole matter it refers there to the coast from 59 degrees north latitude to 54 degrees 40 minutes. It does not go 1 inch below—which is the point, if it is the point—of Prince of Wales Island from which the line was to run. Now, what does he say about that ?— 7 ml 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 51st degree of north latitude might be the subject of a doubt. We, have consequently, confined them to the 54 degrees 40 minutes, 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 coast where our rights have been disputed, the profits of hunting, fishing, and trading with the natives. We offer the same advantages to England; but to grant them for ever would be to obtain the recognition of our rights of sovereignty only to abandon the exercise of them. . That can only mean the lisiere down to 54 degrees 40 minutes. Then he says:— Russia's rights of sovereignty over the North-West Coast, beginning at 59 degrees of north latitude, have been disputed. Hence, between that degree and ARGUMENT OF SIR EDWARD CARSON. 701 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 he same concession in favour of the subjects of His Britannic Majesty; but it must be well understood that this concession will only comprise the space inclosed between latitude 59 degrees and the southern boundary of our territory—to wit, latitude 54 degrees 40 minutes, for to the north of the 59th 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 Now, my Lord, what does that show? It shows that Russia was willing to treat about these rights upon the lisiere, but absolutely refused to treat above the 59th degree of latitude, on the ground that the coast line from that degree northwards was never in dispute, and that nothing would induce them to give rights upon any portion of that to England. Very well, that being so, and that being the way all through the correspondence, they never departed from it, but were insisting upon it and never brought into discussion what was to be the extent to which the right for the ten years was to be given in anything but the lisiere, because I defy anybody to find out one word right through the whole correspondence bringing it beyond the lisiere, or bringing it below 54 degrees 40 minutes or bringing it above the 59th degree north. CD 631 You then come to the Vllth Article. And how is it argued that the Vllth Article applies to something out of the lisiere? I must say I find very great difficulty in following the Argument, but what is said is this, as I understand it. They read Article VII:— During the period of ten years, to date from the signing of this Convention, the vessels of the High Powers, or those belonging to their respective subjects, shall have equally the right to frequent, without any let or hindrance whatever, all the interior seas, the gulfs, havens, and creeks in those parts of the coast mentioned in Article III, in order to carry on fishing and to trade with the natives. Then they say you come back to Article III; and the Article takes you to " the coast of the continent and the islands of America to the North-West." Well, but is it not demonstrable that that is not the meaning of it upon the negotiations? Is it not demonstrable that the North-West Coast beyond 59 degrees never was in controversy in this matter at all, and are you to say that what the Vllth Article refers to in Article III is the North-West coast, although it does not say the North- West Coast—is it not impossible to say that this refers, in talking of the word " coast," to the North-West Coast, as though that were the only coast mentioned in Article III ? You cannot limit it, you cannot say, " I take the North-West Coast as being what is referred to there as J coast.' But then I superimpose upon that the negotiations which show that it did not mean the whole of the North-West Coast, but meant only a portion of it from 59 degrees downwards, and meant perhaps something at the other end from 54 degrees 40 minutes." You cannot do that, because there is nothing to enable you to divide the North-West Coast there if you take it at all; but in addition to that there is no reason in the world why, if this was to be the North- West Coast, they should have taken the trouble to put in a reference to Article III. If you eliminate the North-West Coast as a whole, 702 ALASKAN BOUNDARY TRIBUNAL. as I say you must to give any meaning to it, I say looking at the Article itself it carries you the whole way. But I think there is a stronger argument even, and that is— that if you look at the penultimate draft you will see that there was no mention of any coast at all except the lisiere. If you look at p. 129 of the Appendix—the one that was settled by M. Matusevich— if you look at Article VII, there it is j during the period of ten years * * * ." The President. You have read the wrong one. You meant to read the earlier one; that is the final one. Mr. Aylesworth. That is the English, with M. Matusevich's corrections. Sir Edward Carson. That is the English of it, my Lord. The President. That does mention, you see, " coast" mentioned in Article III. You were saying the earlier draft did not mention it, I think. Sir Edward Carson. No, but I say Article III does not mention the North-West Coast; that is the point. The President. Yes. Sir Edward Carson. As I understand the argument the way they got out of Article VII is by going back to the North-Wrest Coast. The President. Yes, I follow you. Sir Edward Carson. I may be wrong in that, but that is what I understood was the answer to the argument. But I point out here that Article III, on p. 128, merely says:— 632 The line of demarcation between the possessions oflhe High*Contract ing Parties on the continent and the islands of America to the north-west shall be drawn in the manner following. It does not say I on the coast," nor does it say that the coast shall be divided or anything of that kind. Therefore, when it talks here in Article VII of these parts of the coast, I say you have no coast mentioned at all except the coast which is defined as the lisiere. Mr. Aylesworth. There is the expression in Article III in the last line, I parallele a la cote." Sir Edward Carson. Parallel to the coast at the point of intersection of the 141st degree. Mr. Aylesworth. That is the only coast mentioned in the Article. Sir Edward Carson. That is the only coast you get out of that Article, and the final form of the Article does not matter to me. You may say, " Oh, but the final Treaty uses the word jj coast'; " you may say that if you like, but it is just as good, whatever form you may have the Treaty in, if I show you that the gentleman who has taken care to go through and put the thing in its final shape contemplated that a portion of the inlets, and gulfs, and havens might, upon the topography being known, belong to Great Britain and that it was necessary to reserve rights—that is quite sufficient for me. That is quite sufficient for me if I show that in the course of the negotiations, and there may be some answer to that; but I submit to the Tribunal no answer has been given, and I myself can suggest no answer to it. Mr. Aylesworth. It is M. Matusevich who put it into that shape by breaking up Article III. Sir Edward Carson. He put it into that shape, and, until it was put into that shape, there might have been always a possibility that ARGUMENT OF SIR EDWARD CARSON. 703 they yvere referring to some other part of the coast, but he himself purposely broke it up, and in doing so he. took away the argument which might have been made, that there was a reference there, not to the lisiere, but to some other coast, and it is impossible he could have framed Article VII, I submit to the Tribunal, in the form in which it is there, unless he contemplated in his own mind that England might have rights to give away upon a portion of these inland waters when you come to draw the boundary line according to the Treaty. When it is suggested that we are to take it, that that refers to some other part of the British possessions, I should also like to see anywhere throughout the negotiations where they ever made any claim CD CD ml ml to get anything from us in relation to any other parts of the British possessions. I do not know of anything in relation to it, therefore I submit that you cannot discard this Vllth in construing the Treaty. I think, my Lord, Mr. Watson himself said, in speaking, that this referred to the lisiere, and that the Russians would not allow it to apply to anything but the lisiere, so far as Russia was concerned. You notice in the letter to which Mr. Watson referred, Mr. Canning says:— Your Excellency will be careful to make it understood that this limitation of time cannot in any case extend to the use of Great Britain of the harbour of New Archangel, still less of the rivers, creeks, &c, on the continent— and the Draft Convention inclosed in that letter had two Articles in it. The IHrd Article gave to British subjects free navigation for ever along the lisiere and along the neighbouring islands. And then the other Article, that is Article V, referred to:— * * * the other parts of the North-West Coast and the islands adjacent thereto, belonging to either of the two High Contracting Parties. * * * 633 In that Article III " for ever \' is changed to 1 ten years," while Article V is struck out altogether, and the result is that the IHrd Article is fixed by M. Matusevich, and it does seem to me ml 7 that it will require some answer why M. Matusevich thought there were some inlets, creeks, havens, and harbours which might belong, or part of which might belong, to Great Britain. What answer is to be given to that when they say that it was in the contemplation of the Parties that we were to be entirely shut off from the sea, and not ml 7 allowed to get to the sea where these inlets were ? Mr. Aylesworth. I suppose this material that we have before us is Bxhaustive as to all documents that exist, but I observe, Mr. Solicitor, that there is a change in the wording. The introduction of that very word " ocean " that you were referring to occurs after this final draft, as revised by M. Matusevich. You observe that M. Matusevich uses the words " la mer," and uses them twice in the Article about the width of the lisiere. Sir Edward Carson. Yes. Mr. Aylesworth. Then, when it comes to the final Treaty, it is changed into " l'Ocean." Sir Edward Carson. It is changed into " the ocean " in that final Draft, which was sent by Mr. Canning. It is called Pacific. Mr. Aylesworth. That is earlier than M. Matusevich's work. Sir Edward Carson. That is earlier than M. Matusevich's work. Then he changes it into I mer," and " mer " is changed to " ocean.' Mr. Aylesworth. In the final Treaty, 5? 704 ALASKAN BOUNDARY TRIBUNAL. ■ Sir Edward Carson. Not putting in Pacific. Mr. Aylesworth. But he leaves, in Article VI for instance, the phrase as to the rivers that take their course toward "la mer Pacifique." Sir Edward Carson. Yes. Mr. Aylesworth. He leaves it there, but changes it in the other Article. Sir Edward Carson. He leaves it there and changes it in the other place. Now, I have nothing further to say upon this matter. I submit I have made good what I tried to deduce from the Treaty. I submit that everything in the negotiations goes to supporfcthe distinction between the inlets and the ocean proper—what I call the ocean proper—or what the questions call " Ocean strictly so called," and 1 submit that Article VII supports the whole contention. Now, my Lord, I pass on to an argument of Mr. Watson, which was the first argument he used, and upon which he laid great stress, and ] must, of course, notice it before I conclude my observations. H< 7 ml made an argument as to the purchase by the United States in 1867 and at p. 327 of the notes says this; this is his very first observa tion:— In the year 1867 Russia asserted that she was the owner of a large portion o the North-Western Coast of America, and she defined her boundary-line a beginning at 54 degrees 40 minutes, running up Portland Channel to the 56t] parallel, and thence by a line around the heads of all the bays and inlets. And, my Lord, upon that he founds the argument—he says tha upon these representations, which were weQeknown to Englan< 634 and Canada, they bought, and that it is too late now for Eng land or Canada to make objections. My Lord, where does Mr. Watson get all these representations Where does he get the representation that Russia told him that Eng land and she had agreed that the line was to run round the-heads o the inlets—that is his first statement—that Russia had discoverei this place in 1741; that she had occupied it since 1790; that he claim to the sovereignty down to the 55th degree, was undisputed, a he said, by every nation on the face of the earth from 1799 to 1867 and that England admitted the claim from the 55th degree round th heads of the inlets, and had never challenged Russia's pretension and that this contract for the purchase of the inlets, &c, was with th knowledge of Great Britain? That, my Lord, I submit is a most imaginative picture. I submi there is not a word of foundation, there is not a particle of 'proof i the case, and all I can say is that if Russia made any such represents tions, I find no trace of them. If Russia made such representations all I can say is that they were representations which were false i fact, as I hope I demonstrated to you yesterday, particularly a regards this imaginary title. But I am entitled to go a step f urthei and I am entitled to say, as regards the bulk of these representation: that no one knew so well as the United States themselves if thev wer mJ made, that they were false, because, as I showed yesterday, it was on of the mouth, so to speak, of the United States that I proved tha Russia never had this undisputed possession or this title at all. And may I go a little further and say this: That so far from th argument being true, in fact, that England knew of all this an assented to it as he says, or that the contract was made with th ARGUMENT OF SIR EDWARD CARSON. 705 authority of Great Britain; may I say that so far as I can see, if there was anybody they wished to keep out of the whole negotiations it was Great Britain. If you look at Sumner's speech in the United States' Counter-Case Appendix at p. 198 you will see a paragraph headed "Anticipation of Great Britain ":— Another motive to this acquisition may be found in a desire to anticipate the imagined schemes or necessities of Great Britain. And then he asks you to say that Great Britain was a party practically to these negotiations, that she knew of the representations of Russia, and that she stood by the whole time as those representations were made! Again, if you look at p. 333 of the United States Appendix, you will see that, so far from any evidence being forthcoming of these representations, which could have been quoted, if you will look at the last paragraph in the extract given there from a speech of Mr. Sumner, you will see he says:— Few treaties have been conceived, initiated, prosecuted, and completed in so simple a manner without protocols or despatches. The whole negotiation will be seen in its result"—that is, in the Treaty—" unless we except two brief Notes, which constitute all that passed between the negotiators. These have an interest general and special, and I conclude the history of this transaction by reading them. Neither of them, my Lord—I have gone through them—neither of them contains the representations which Mr. Watson suggests, so that this Treaty was carried through in order to anticipate, to a certain extent, Great Britain, and Mr. Watson calmly wants you to assume that, not only all these representations were made, and that the United States believed that England was perfectly aware of it, but that England and Canada assented to it, and that, therefore, in some way we were stopped. The whole thing is to be seen, Mr. Sumner says, in the result. Then what is the result? The result, my Lord, is the Treaty, and the one thing that England would see was the Treaty, and if they looked at the Treaty they would find that so far from Russia making any representations in the Treaty, she took special care, I should think, not to make any representations in the Treaty, for the Contracting Parties copy out in the conveyance, in the concession from one Government to another—they copy out the exact words, leaving everything just as open as it had been before, and the whole basis of the 635 argument falls to the ground when you look at the Treaty, because all England would be at the most bound to do—I do not know that she would be bound to do even this—would be to read the treaty to see that there was nothing being inserted in the Treaty which would in any way militate against her interests. If she had taken up the Treaty she would have found there was no obligation upon her, and things remained exactly as they were. Then, my Lord, Mr. Watson went on to say that we must be bound by what was done then, unless we could show something in the nature of a flaw upon his title right on the face of the documents themselves. Well, the whole ground of his argument was that he referred to some maps; but if you refer to the maps, and if you refer to the Treaty, S. Doc. 162, 58-2, vol 7 15 706 ALASKAN BOUNDARY TRIBUNAL. I should have thought that anyone would have been put upon sufficient inquiry with regard to what it was they were really buying. My Lord, may I call attention to one of the maps that he referred to, so as to show you that the maps, so far from giving this imaginary picture which he has drawn, really raise the whole question. The first map he referred to was the map of 1826, drawn after the Treaty had been made. No. 11 was the first one that he referred to. That is a map drawn by Russia immediately after the Treaty, and if Mr. Sumner had worked on this map, what would he have found? He would have found in the first place that right inside the line—at all events on a great portion of this boundary—there were mountains, and he would have had to inquire, reading the Treaty with this; he would have had in inquire how did the line come to be drawn there when there were mountains upon it, between it and the sea ? But in addition to that, if he took it that this map was the picture making the full representation of the Russian Government, he would have seen the line there going off to the east, right away to the Rocky Mountains; the line passess Portland Canal, and then runs right down to the Rocky Mountains. Does Mr. Watson suggest that that was the representation of Russia, that that was what they were buying? He must have known there was no possibility, within the years that elapsed between this and the Treaty, of making any survey at all to carry out the boundary of the Treaty. Then the map of Arrowsmith. He says—I do not know where he gets that—these were before the negotiators in 1867; it does not appear anywhere. Mr. Sumner refers to a map, but Mr. Watson says these four maps were taken by a Committee of the genate, and were examined by them, and that they are the ground of their title. He refers to the Arrowsmith map of 1833. The President. No. 12; the next map, it has got the note on it. Sir Edward Carson. It has got a note on it. I should have called that " notice on the face of the title," to use Mr. Watson's expression, but that also shows—certainly shows—a question arising, I should say, as regards Portland Canal. There can be no doubt it does. It does not trace a line, excepting one end of it. But there it is qu|P clear that that has notice on the face of it. Then he refers to the Bouchette map of 1853, which is No. 17 in the atlas, which is still more peculiar, and which offers us the representation, I suppose, from Canada. I will have to call your attention in a moment to the fact that Canada did not exist at that time, although no doubt there was some government in Canada, but not Canada as we know it now—and look what Mr. Sumner would have seen if he had looked at this map. Would he have got any notice there that there was any question about the drawing of the line ? Why, if he went to look for his boundary he could not have found Portland Canal, for one thing, and, in adition to that, if he wanted, as he says, to investigate this matter, if he really thought this was the map, they really hsast have thought they were buying Queen Charlotte's Island, because that is marked upon this map as being part of the possesions of Russia. Then he referred to what has been called the House of Commons' map by Mr. Robinson. Mr. Robinson dealt with that; I shall say nothing more. That was the map made to show the House of Commons the position of the land held by the Hudson's Bay Company; and ARGUMENT OF SIR EDWARD CARSON. 707 he referred lastly to what was called Mr. Sumner's map, which Mr. Sumner called " the handiwork of our accomplished bureau." 636 And what did that show? That was a map prepared to illustrate the concession. It was Map No. 24 of the concession from Russia to the United States, and all I can say about that is, if anyone would look at that map I think the first thing he would ask was how is it you come to put a coast line of mountains right along the whole way and draw your line miles outside it, and I think they would have been put upon the very fullest inquiry upon that map as to what would become of the boundary. But really all this imaginary representation is put an end to, I think, by one fact that is stated by Mr. Bayard, in his letter at p. 249 of the British Case Appendix, where he says this:— I am not aware that any question concerning the true location of the line so stipulated ever arose at any time between Great Britain and Russia prior to the cession of Alaska to the United States. If any such question had arisen, and was pending at the time of the cession, the United States would naturally have succeeded to the Russian interest therein, just as to any other right of Russia affecting the ceded territory. This Government, however, had no intimation then, and has had none since, from Her Majesty's Government that any such question existed. It is not thought likely, however, that question in this regard could have existed, as the inlet— That is Portland Inlet— .i_--..-_- S and the country through which the boundary line of 1825 ran were, in 1867, still practically unexplored. WeR, if the boundary of the Portland Canal and the whole country through which the line was to go, was practically unexplored in 1867 what is the use of attempting to rely upon these maps as making the representations which Mr. Watson suggests ? Now, my Lord, in addition to that, when they came to read the Treaty they must have seen all these questions that are arising now, questions dependent upon the topographical features of an unsur- veyed country, and they must have known the questions that arose upon the alternative fixing of the line in Questions 3 and 4, and the only other observations I shall make as regards this theory of Mr. Watson is this, that when he says there was not one Word from either England or Canada in relation to the matter it is necessary to bear in mind what the state and condition of the territory was at that time, because Canada as a matter of fact did not exist; the Federation was not proclaimed until the 1st July, 1867. British Columbia was not incorporated with Canada until 1871. England had no political organization in British Columbia at all, because you will recollect that, although to the east of the Rocky Mountains you had the Hudson's Bay Company, and some kind of political powers and political organization to the west of the Rocky Mountains, the Hudson's Bay Company had no such powers at all. All they had was a licence to trade as against the other British subjects, and they had no political organization whatsoever. Therefore, I say that to try to attempt to make out in the graphic language and the very emphatic language which Mr. Watson used, that there was some kind of fraud being perpetrated upon America by England and Canada standing by and allowing Russia to make fraudulent misrepresentations, and allowing the innocence of America to be traded in that kind of way I 708 ALASKAN BOUNDARY TRIBUNAL. is really as far-fetched an argument as could be made in a case of this kind. Kl My Lord, the next matter with which I should like to deal is what Mr. Taylor in his speech called the question of acquiescence. I do not think, although we have had the matter searched up, and I have a note upon the subject, I do not think it is the least use going here into the question of prescription. No question of prescription arises, and I think Mr. Taylor agreed with that view that this was not a case in which the question of prescription arose at all. In point of fact, even if we had to go into it, I doubt very much whether you would find very satisfactory results from going into the various authorities on the subject of what prescription in international law exactly means, but Mr. Taylor preferred to base the claim of the United States on acquiescence. Now, of course, acquiescence is a matter which has to be ascertained from a number of considerations and a number of facts. It may be very easy to prove acquiescence, it may be very difficult to prove acquiescence. At what time are you to come to the con- 637 elusion that there was acquiescence ? What acts show acquiescence? All these are matters which you have to consider in coming to a conclusion about acquiescence. And let me put this one general principle which I say is the one applicable to this case, that you never can rely upon acquiescence so long as you show that the question is open between the Parties in reference to the district as to which you are alleging that acts have been acquiesced in, and I say here, that while the American case does show certain acts done by assertion of authority in portions of this lisiere, I think the bulk of them are with reference to the Lynn Canal. I say it is necessary, at the same time as you consider these acts that are relied upon, to see what was the state of the negotiations between the Parties, so as to see whether, in reality, the question was not an open one, which was being pressed for settlement at the very time that these acts which are said to have been acquiesced in were taking place. I say, that you must bear that in mind here, and I am not going through the various acts that have been relied upon, with the exception of one or two, which have been all that have been mentioned by the United States in the oral argument. I say, when you treat them in a general way, it renders it absolutely unnecessary to go through these acts, because I am prepared to admit—and it is not necessary to go into these for the purpose of establishing that which I am prepared to admit—that from a certain date, from a certain time which I shall specify, there are two or three attempted acts of government, no matter how slight they may be, two or three attempted acts of government on the part of the United States in this region at the top of Lynn Canal; but, at the same time, I am also prepared to show that these acts do not in the least degree help the United States' case. At the very moment at which these acts were going on, the negotiations were open for a settlement of this boundary line, and, in point of fact, it was admitted, even by America herself, that one of the reasons for fixing this boundary line was, that the people were beginning to settle-and beginning to develop industries along portions of this lisiere, which portions of the lisiere were, as we know, the portions nearest to the coast and along the head of the Lynn Canal. ARGUMENT OF SIR EDWARD CARSON. 709 The President. You mean all the American acts were substantially after 1886 ? It that your suggestion ? Sir Edward Carson. That is my contention, and as regards the period, did your Lordship say after 1886 ? The President. Yes. Sir Edward Carson. Well, they were a little before that. The President. I did not say all; I said substantially after 1886. Sir Edward Carson. Substantially; I think you may take it that anything substantial at all done was about 1885, something thereabouts. There were no doubt cases of sailing up and making charts, and having conferences with the Indians and matters of that kind, but what I will show*you is that Mr. Bayard himself said that the reason for fixing this line, or one of the main reasons, was that people were beginning to settle along this lisiere and develop industries, and that it would be well the boundary were fixed before this came to any considerable extent. Now, my Lord, I am not going in very long and great detail into the negotiations to which I refer, but I mean to call your attention to a few matters. The British North-American Act, as I said, was in 1867. At that same time the Hudson's Bay Company's lease expired. Up to that, hardly any questions could arise as regards the-acts done by the Russians, because practically, you see, under the Treaty, if we are right on Clause VII, under the Treaty for ten years, which was afterwards renewed, each party had the right to go into these inlets. From 1840 down to 1867 the Hudson's Bay Company were in occupation of the whole territory and therefore really no question could arise, 638 or did arise, as Mr. Bayard said in his letter, between the two nations. Then in 1871, for the first time, this part was incorporated with Canada, and then you had for the first time real political organizations side by side. The United States owned the Alaskan territory, and when I talk of the Alaskan territory I do not mean simply this lisiere, because you are not to^pufc down everything that was done in AJaska by the United States as having reference only to this lisiere. They had bought an immense tract of country from Russia, and you had, therefore, for the first time the two great political organizations of these two countries side by side. Now, my Lord, it was not very long under this state of facts before the Parties began to see the necessity for a boundary, and the first matter to which I refer is as early as 1872, at p. 163 of the British Case Appendix, the letter from the Hon. Joseph William Trutch, who was the Lieutenant-Governor of the Province of British Columbia, to the Secretary of State for the Provinces, in which he says :— 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 III and IV, &c. Now, that was communicated to the Home Government in England, and as the result, there was a communication between Sir Edward Thornton, the Minister at Washington, and Earl Granville, and eventually there was a meeting between Sir Edward Thornton and Mr. Fish, the American representative; and Mr. Fish stated, when he put these facts before him, that he was perfectly satisfied as to the 710 A3LASKAN BOUNDARY TRIBUNAL. expediency of suoh a measure;- but he feared Congress might not be willing to grant the necessary funds. He said:— That he had since received from the Engineer Departm<smt a detailed Report of the estimated expense of the Survey on the part of the United States. Now, my Lord, I should like you to remember, in going through any of this correspondence that is necessary, that what was really at the root of the difficulty of getting this line settled was that nobody looked upon this portion as being of any great value, In point of fact you will find expressions that it would cost more to survey than the whole thing was worth—expressions of that kind. And of course it is very difficult for us now, who have our minds concentrated on the top of Lynn Canal as the most burning question in the whole world, and the most valuable place to both nations in the whole world—it is very hard for us to realize that at the time we mw are talking about nobody had their mind concentrated on Lynn Canal or any of the other inlets at all; and the whole question was of getting in a place which was practically valueless some modus vivendi between the nations. The President. And it certainly would look, Mr. Solicitor—no doubt Mr. Dickinson will deal with that—that President Grant in 1872 did not think that the whole thing was cut and dried in favour of the United State's; because he practically speaks of the importance of having the boundary settled. Sir Edward Carson. He sent a Message to Congress. The President. A Message to Congress about it. Sir Edward Carson. And what is more he says in it, " I therefore recommend * * * " And you will find that a Bill was brought in in the United States' Congress—at p. 166—for the purpose:— Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that for the purpose of surveying and marking the line of boundary. Well, it was thought of so little importance and so little value that the Bill apparently never went further. I suppose they had more important things to do in Congress than passing that Bill. Such things often happen in our own Parliament; we bring in Bills and do not pass them. 639 Well, then, the next thing of importance in the negotia tions—and this is a matter I must deal with because it has been referred to by the other side—the next thing of importance is a despatch of Sir Edward Thornton to Earl Granville—it is on p. 178—in which he says—the 15th February, 1873—that a proposal has been made by the United States. He says:— That the Department, it seems, states that the cost would be about a million and a half of dollars for the United States alone, and that the survey could not be completed in less than nine years in the field and one more year in the office. But the 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 Yukon and Porcupine. Now, my Lord, this is relied upon as showing that we practically admitted that the heads of the inlets belonged to America. Now, I s ARGUMENT OF SIR EDWARD CARSON. 711 ask you to notice in the first place that this is a proposal that came from America. I ask you also to notice that it was a proposal made for the purpose of settling something which would avoid the necessity of determining the line under the Treaty. It was really only a conventional line, and when that matter is submitted to the Canadian Government and the English Government they at once asked Captain Cameron to make a report of what would be the probable expense of carrying out such a proposal as the Ajnericans had made of merely taking certain boundaries at the tops of these inlets and making the line run in that way. Captain Cameron was to make an estimate; he was to make some kind of investigation as to how the survey could be made, and he was to report. Meanwhile, pending his Report, he having called, as you will see on pp. 173 and 174, for the various documents which would be necessary to give him the details, says:— I have also to request that application may be made to Her Majesty's Government for a copy of the map by which the negotiations of the Treaty of 1825 between Russia and Great Britain were guided in their description of the boundary, and also of any correspondence which may throw light upon the subject. It would also be desirable to obtain a copy of the map upon which the proposition of the United States' Government is partially founded, and of the details of their estimate. And he describes it higher up. What he understands he is to estimate for is " a temporarily efficient marking of the line." Well, then, pending his report the matter went to Mr. Dennis, and this is what is so much relied upon by the United States. It is important to notice that Mr. Dennis had before him the Treaty and a tracing from the official map published by the United States' Government. My Lord, that is the map to which I have already referred of 1867, which was made for the purpose of illustrating the cession:— Map published by the United States' Government of the survey of the North- West Coast of the Pacific/ and showing the whole boundary from the head of the Portland Canal to the Arctic Ocean. Now, I ask that to be noticed when you come to criticize what he says:— 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 despatch from Sir Edward Thornton to Earl Granville, dated the 15th February, 1873, that is to say 1— 1. The head of the Portland Canal, or the intersection of the same by the 56th parallel of north latitude. 640 That is the proposal of America, and then he gives these: 1 Shoot," fi Stakeen," " Taku," and " Isilcat," and " Chilkaht," none of us have been able to find " Isilcat." Mr. Aylesworth. It is a myth. Sir Edward Carson. It is a myth, yes—" the most expensive part " so and so. Now, will the Tribunal observe as regards this that when it is said that that was an admission by Mr. Dennis that the heads of the inlets belonged to America, will you notice that what he had before him was the American map of 1867 which, he says, shows the whole line? And is it not as clear as noonday that all he did was to take up the American map ? He looked at it find he said," If that is the 712 ALASKAN BOUNDARY TRIBUNAL. line or a line anywhere near where the thing is to be run, true enough there it goes behind all these inlets." And he then and there says this: | It will be quite sufficient if that is the kind of line, it will be quite sufficient to mark it in that way." But to say that a Government is to be bound to a cession of territory from the one country to the other, because having before him a map of this kind which it is admitted had never been prepared upon any survey whatsoever— because I read you the passage from Mr. Bayard's letter in 1885 in which he said that in 1867, the very year in which that map had been made, not even the Portland Canal, let alone all the line along, had ever been surveyed at all—I say it is pressing the question of admission rather far if it is in the least degree to bind the interests or the rights of the Parties. But I go further, and I say that the view of Mr. Dennis was never acted upon by the Canadian Government, and even if it was to be held to be any admission, it does not in the least follow that because he, looking at the American map, gave certain advice to his Government, which the Government had never adopted, that you are to Sold that that was an admission upon the part of the Government that the heads of the inlets belonged to Ajnerica. But then, my Lord, look what happened subsequently on this same part of the negotiations. They get the Report from Major Cameron, who is asked to examine upon this, and in his letter of 18th February, 1875, he says that— An explanation is due from me of the delay which, I very much regret, has occurred in furnishing the Report called for by His Excellency the Governor- General. Then he says it was not until May that he had received the necessary information, and, therefore, that delayed him. And then he sends the Report. And now I do ask the Tribunal to look at his Report, because it shows the way he treated the proposal of Ajnerica that you should mark this boundary line merely at the tops of the heads of these inlets, or of the rivers that flowed into them. And I point out that, as it is printed in the Appendix here, it leaves out a most material portion of the Report upon this matter, both in the middle and at the end. The Attorney-General read a portion of what was left out at the end, but there is also a very material portion on this point left out in the middle. The way the Tribunal will recollect that it came to be left out was this. In preparing this Case, we simply took the document as it had been presented to Congress, and it was not the whole Report, but we had it printed in from the document that was presented. When we came to examine it, it became quite plain that it was necessary, if it was to be relied upon in these negotiations, which the Tribunal will find form a very large portion of the American Case, it was necessary, in consequence of a sentence in the middle of that p. 181, to look at the original, because there you will find what he says about the United States. ml Mr. Lodge. What was the date of the Report, Mr. Solicitor ? Sir Edward Carson. 1875. I do not know if the Tribunal would care for copies of the full Report ? We have some prints here. The President. Thank you, we should like it; it was the one of which you had the orignal handed to us, was it ? 641 Mr. Lodge. No. The original which was handed to us was the Report of 1886. ARGUMENT OF SIR EDWARD CARSON. 713 Sir Edward Carson. No, the Report of 1875. The President. No, we have not had the full copies; hand them in. Sir Edward Carson. You have not had full copies ? Mr. Lodge. But the Attorney-General handed us the other day an original copy. Sir Edward Carson. That is another one. Mr. Lodge. Yes, that is another one. Sir Edward Carson. But there has also been handed in—it was handed in by the Attorney-General in the course of argument—one of 1875. I think it was handed in. I think I am right. Mr. Dickinson. Yes, that was handed in. The President. Read the passage, Mr. Solicitor—which page ? Sir Edward Carson. It is at p. 181 of the Appendix; you will see this passage:— The plan contemplated by the United States' Government is one which, at first sight, would appear to render the operation of an expedition simple, expeditious, and economical; all the stations named, excepting perhaps the Porcupine River, might be reached by water, and three seasons—April to October inclusive— would suffice to complete the work. Now, when we read the words " at first sight," it made us look at the original to see how he went on, and that you will find on p. 2 of that print, which I have handed up. The Report is continued towards the end of p. 2:— But the adoption of this plan involves a previous agreement being arrived at between the British and United States' Governments as to the extent to which the terms of the Treaty may be modified. A most important matter, because it shows that he, having looked into the Treaty and having looked into the various documents, thought that the fixing of the line up there was not the fixing of the line according to the Treaty at all, and that it would require a modification. Then he goes on, and says:— To ascertain what points in the named river-courses are at 10 marine leagues from the sea will necessitate little more than a survey of the rivers themselves, and of the coast line in the neighbourhood of their mouths. But such points may be, and it is believed would generally be, beyond the limits of a line determined by the mountain summits. To remove doubt upon this head, and to determine the direction of the line at the river crossings, it would become necessary, in the absence of an agreement, to modify the terms of the Treaty, to prosecute the survey of the coast belt itself, and the economy of the procedure would be very questionable. It has already been remarked that for the reasons connected with the distribution of supplies the smallest efficient organisation is desirable. Whether the terms of the Treaty be strictly adhered to, or a modification of them be accepted, the employment of one astronomical party and two surveying parties is recommended. An estimate of the annual cost of maintaining such an organization in the field is appended, and upon it is founded the conclusion that the total cost of the work would not be less than 1,000,000 dollars, or approximately 642 206,000Z., and may amount to as much as 2,250,000 dollars, or approximately 463,000L, according as the United States' scheme or strict adherence to the terms of the Treaty shall prevail. And, of course, it was with reference to that that I made the observation that no doubt everybody at the time thought that it would be much cheaper to take a line which really was a conventional line, and which both Parties might agree upon than to adhere strictly to 714 ALASKAN BOUNDARY TRIBUNAL. the Treaty and go to the expense of carrying out such an extensive survey. Then he says:— But in view of the comparatively small value of the country in which the boundary is to be marked, the very great cost of the undertaking, and the incomplete character of the demarcation involved in the lower of these two estimates, it may be deemed deserving of consideration by the Governments concerned whether or not the existing stipulations may be altered with advantage to both British and United States' interests. Then he goes on, and he makes certain suggestions for conventional lines, and then at the end of the Report you will see there is also left out something in which vou will see that he rather went closer into CD ms the matter, because he savs:— / ms In concluding this Report it may be advantageous to direct attention to certain points about which an interchange of views between the United States' and Her Majesty's Governments in some cases, and definite instructions to Her Majesty's Commissioner in other cases, may prevent subsequent costly delays and references. Then he goes into the question of Capes Muzon and Chacon, which— * * * have been described as being the two most prominent .capes which put out into Dixon Entrance from the American Islands. It appears to be certain that Cape Muzon is an island separate from the Prince of Wales Island, to the extreme south-west of which it lies, and although Admiralty chart " 2431, Cordova Bay to Cross Sound," indicates that Cape Chacon may be connected with the Prince of Wales Island, the topography of the chart shows that the existence of a connecting isthmus had not been verified. Then he says:— Would Cape Chacon, commonly supposed to be the southernmost point of the Prince of Wales Island, be found to be really part of a detached island, and many miles more southerly than any part of the Prince of Wales Island? What course is the boundary line to follow? Amd so*he goes on through the questions, and he says:— But Vancouver, the first explorer of these waters, and the person who named Portland Channel in honour of the Bentinck family, clearly and minutely describes it as being distinct throughout its course from both Portland Inlpt and Observatory Inlet, as these are indicated on the Admiralty chart. The question affects the territorial right to Pearse Island, Wales Island (not the Prince of Wales Island), and a number of nameless islets. An extract from a French edition of Vancouver's work bearing upon this point and a tracing of the map illustrative of the text is annexed. 2. Vancouver refers to a mid-channel island in the course of the Portland Channel. The. question of territorial right to this and others similarly situated is one upon which a prearranged understanding between the two Governments may prevent delay. Then he goes into Article III. He says:— 3. In Article III of the Treaty of 1825 it is laid down that " * * * la dite ligne remontera au nord le long de la passe dite Portland Channel, jusqu'au point de la terre ferme ou elle atteint le 56e degre de latitude nord; de ce dernier point la ligne de demarcation suivra la crete des montagnes 643 situees parallMement k la cote jusqu'au point d'intersection du 141e degre de longitude ouest." There is some ambiguity as to whether the words 1 ou elle atteint le 56e degre de latitude nord " refer to the Portland Channel or to the line. And he raises that point. Then he goes into the Admiralty chart; then he says:— Between the head of Portland Channel and the coast line to the west of it the country is a collection of mountains. ARGUMENT OF SIR EDWARD CARSON. V15 Raising that point, and he says:— Amongst these it cannot, in the nature of things be expected that a line answering to " la cr§te des montagnes | will be found naturally defined. It is understood that when Sir Charles Bagot was engaged in negotiating with the Russian Government on this subject, he was instructed "to admit" as the line of demarcation " a line following the sinuosities of the coast along the mountains nearest to the sea as far as Mount St. Elias." Sir Charles Bagot's negotiations having failed, Sir Stratford Canning renewed and finished them, but it does not appear that the description " la cr§te des montagnes situges parallSlement k la c&te" received any further definition, or that it was accepted by the two Contracting Parties as referring to the mountains nearest to the coast. Then he goes through the negotiations. Then in Question 5 he asks:— Do the words "winding of the coast" imply that the line is to be parallel to the ocean low or high water mark, following indents in bays and long tortuous inlets? There is another definition he gives of " ocean ":— Some of the mountains of this region have been alluded to as being washed t)y the sea. And then he goes on raising that point. The President. In fact he discusses every question before the thing has been surveyed. Sir Edward Carson. Before the thing has been surveyed. Now, [ will tell you why I have taken up the time of the Tribunal in reading that: lor this reason, that acquiescence, I say, is impossible after that. It may be retorted to me that at that time, as early as 1875, Cameron's Report was not furnished to the United States. That is no answer so far as regards acquiescence. Acquiescence is really implying that the one person has deliberately refrained from asserting a right, and I say that with these facts known to the Government svho had that Report with these questions raised upon the Treaty, it is impossible to say that anything that was done, so long as this question remained open, and until the survey had taken place, could 3ome within any possible doctrine of acquiescence that can be put forward here; and while I admit all along that there were matters ?oing on at this time—at least slight matters—increasing in gravity ifterwards along the course of this lisiere and along the inlets which ied ultimately, when the gold yvas found, to the establishment of these towns at Dyea and Skagway, away up at the top of Lynn Canal in 1896 or 1897, whatever the year was—while I admit all that, what [ want to bring the minds of the Tribunal to is, however difficult that may make the carrying out of the Treaty, it does not really affect ;he rights upon any doctrine of prescription, acquiescence or occupation because you had the matter open to the minds of the Parties here. What they meant in pressing for a demarcation of this line was that they wanted to have settled these very questions which Major Cameron raised in this Report so early as the year 1875. Then in 1875 and 1876 disputes began to arise about the 544 Stikine. I believe gold was found there. It often raises these questions, and brings the Parties into conflict. And there irose in 1878 these cases on the Stikine. There was the case of Peter Martin, into which I do not think it is necessary in the least that I should go. All I would point out is this, that it led to Hunter's 716 ALASKAN BOUNDARY TRIBUNAL. Report. That is really, I think, the important point of that part of the case, and the instructions which were given to Hunter have some bearing upon the controversy here. Now you wijl see the instructioap that were given to Mr. Hunter there. He is told that:— Having identified Rothesay Point, on the coast, at the delta of the River Stikine (shown as point A on tracing D), you will assume it as the point from which to commence the survey of the river, also, for present purposes, as marking the point from which to measure or estimate the distance of the 10 marine leagues from the coast referred to in the Convention. Mr. Dennis, at all events, there understood " coast" in the sense in which we understand it. The 10 marine leagues is from Point Rothesay—not from salt water, or anything of that kind. Then he says:— 5. 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 10 marine leagues of the coast) by a line, in the words of the Treaty, I following the summit of the mountains parallel to the coast," 6. It is assumed that the point on the river where a line would cross connecting the two highest peaks "of the mountains, situate parallel to the coast," adjoining on either side of the river (if within the distance of 10 marine leagues from the coast, measured and estimated on a course at right angles to the general bearing thereof opposite) would give the crossing of the river by the international boundary at that point. And it is upon that that Mr. Hunter makes his Report. I am not going through it now. The Attorney-General has already gone through it, and no answer has been given to the observations that he made upon it. But I will only say this, that when the United States say, "Yes, but now your mountains are not the mountains which Hunter had," the very palpable answer to that is a two-fold one; in the first place he was not making a general survey, in the second place what he was told to d.o was to take the two highest mountains that he found. And both Governments admitted at the time that Hunter's line was to be merely taken as a provisional one. But while it was accepted as a provisional one it does occur to me as an observation to make that it was never contended then by the United States, as Mr. Watson has contended here:, Oh! if you go through all the maps you will see there has been one uniform line settling the boundary between us, and if you look at that line, you will get the whereabouts of the line to put upon the Stikine. No one suggested such a thing—no one even, looked upon that fine as being other than a purely theoretical one, and whatever other contentions were raised, it was not contended that the maps really showed anything at all which enabled them to Ox this boundary. Nor was it said at the time that you must get a mountain range back by incorporating the maps—which was so much relied upon by Mr. Watson. Nor even had they at that time before them the theory of Mr. Taylor that you could not have a general trend of the coast, because there was no political coast. You find none of these matters referred to, and they are the only answers that have been given by the United States in this case. Therefore, I say, in that respect the survey of Hunter is of importance in the negotiations in this case. And may I call your attention to one observation, which I think is a very appropriate one, that was made by Mr. Fish in the course of that dispute in Martin's case, which led to Hunter's survey. It is at p. 198, where he is commenting upon the view that the judge ARGUMENT OF SIR EDWARD CARSON. 717 presented to the jury at the trial; that because it was not known in which territory it was, therefore they might come to a conclusion they might properly try him. He says this, and I commend this to the Tribunal as a very just observation:— 545 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 ipon either a jurisdiction beyond the point where such line should, in fact, >e. That is the boundary which the Treaty makes the boundary; surveys make t certain and patent, but do not alter rights or change rightful jurisdiction. And that really is the answer to all that Mr. Watson was putting— hai the English case, he said, gave up the Treaty altogether and ren- lered it nugatory and of no avail—that is the answer to him. It does lot render it of no avail. You required the survey to mark upon the ground what was actually defined by the Treaty, and I say that that s the proper rule set out by Mr. Fish in that letter— ;hat that is the boundary which the Treaty makes the boundary; surveys make t certain and patent, but do not alter rights or change rightful jurisdiction. Now, I pass on from 1877. There are some other letters, from time o time, calling attention to the fact that this line is still left with- >ut being assented to; and I come down to 1884, to the letter of Mr. 3all to Dr. Dawson, which is printed on p. 248 of the British Appen- lix. He says:— The matter of the boundary should be stirred up. The language of the ?reaty of 1825 is so indefinite that, were the region included, for any cause, o become suddenly of evident value, or if any serious international question rere to arise regarding jurisdiction, there would be no means of settling it y the Treaty. That is not an encouraging statement to a Tribunal which is asked o do what he could not do. He says:— There being no natural boundary and the continuous range of mountains ►arallel to the coast shown on Vancouver's charts, like a long caterpillar, laving no existence as such, the United States would undoubtedly wish to all back on the " line parallel to the windings of the coast, and which shall tever exceed the distance of 10 marine leagues therefrom " of the Treaty. It reuld, of course, be unpracticable to trace any such winding line over that sea of mountains." And then he suggests— A new Treaty should be made stating determinable boundaries. It does not appear what was done upon that; but it is quite plain hat Mr. Dall also put himself into communication with Mr. Bayard, »r Mr. Bayard got to him in some way, and then, my Lord, came Mr. bayard's letter. The importance I attach to Mr. Bayard's letter is his: I read somewhere in one of the diplomatic despatches—I annot lay my hand on it at this moment; but I make the observa- ion my own—I say that after Mr. Bayard's letter the English Government were entitled to treat the whole case as open. That I ay is the importance of the letter; and the observation is made, - think, in one of the letters from Lord Salisbury. And it is an exraordinary thing that, while they say now that they ooked upon the question of the heads of these inlets as one of the maters to be settled, there is no reference to that; but, on the contrary, Mr. Bayard points out the difficulties of drawing the line as the Treaty 718 ALASKAN BOUNDARY TRIBUNAL. indicates, having regard to what ? Having regard to the sinuosities, which, according to him, are the inlets. So far from saying there is no difficulty about the iidets, because you are to draw a line at the head of them, you will see that one of the points he makes is that it is the inlets that cause the difficulty; and the only question he says that he believes is considered by America as settled is the one about Portland Canal. He says this, which is rather remarkable, because I should have thought it was as unsettled as anything could be—he says:— 646 Shortly after assuming the duties of this office my attention was drawn to the circumstance that the existing boundary line between the territory of Alaska and Her Majesty's possession of British Columbia~4s not only open to doubt in certain quarters, although not in doubt so far as tfeis Government is concerned, in respect of the water boundary from Prince of Wales Island through the Portland Channel, but that it is, also, with regard to the inland frontier, which is supposed to follow a mountain range, an unpracticable one to survey, if not a geographical impossibility. Now, you see there the one thing that he looks upon, that America considered as settled, was the Portland Canal; and the reason he does that is perfectly apparent from the subsequent part of his letter, in which he gets on an entirely false scent; because, if you look at p. 251. here is the way he works that out. He says:— The facts that the parallel of 54 degrees 40 minutes, by the most recent surveys, enters the mouth of Portland Inlet, that the most navigable channel trends thence directly inland in an almost straight line, that Prince of Wales Island is in terms excluded from British territory, and that the name used in the Anglo-Russian Convention of 1825 is found on all existing maps possessing authority, applied to Portland Inlet, or Channel, and not to Pearse Channel, lend reason and force to the conviction that it was the intention of the negotiators that the boundary line should directly follow the broad and natural channel. You see there the error he makes. In the first place he says 54 degrees 40 minutes, if you trace it along on the most recent surveys, brings you to the centre of what we call Observatory Inlet. But he gives the go-by there entirely to the fact that the Vancouver survey showed something quite different. Then he mixes up Prince oi Wales Island—as he does in other parts of this letter—with the Wales Island. The President. Of course, the moment you have got into your heads that Wales Island was the same as Prince of Wales Island, there was no dispute at all. Sir Edward Carson. There is no dispute. The President. It colours the whole thing. Sir Edward Carson. Yes; that is the one question that he said was settled. Then I have already drawn your attention to the fact that he says that even the Portland Channel or any of the countries through which the boundary line ran were, in 1867, still unexplored. They were all still unexplored. He says:^- The boundary was then— And this is the description of that boundary line which Mr. Watson relied upon so much in the maps— The boundary was then, as it is still, a theoretical one, based, as it is fail 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. wmLm — ARGUMENT OF STR EDWARD CARSON. 719 Then he admits that no question had arisen since 1867 between the Governments of the United States and Great Britain in regard to this boundary. Now, further on, not to weary the Tribunal, he refers to President Grant's Message, and he says:— The suggestion of President Grant was not then acted upon by the Congress, and does not appear to have been since revived before that body. Since that time the condition of increasing settlement apprehended by President Grant, has assumed marked proportions. A territorial Government 647 has been organized for Alaska, and enterprise and capital are slowly but steadily making their way toward those distant shores. Now, I ask the Tribunal to consider that, in view of the fact that they set up now as acquiescence the fact that there was slow but steady progress on the shores. So far from relying upon that, or saying that could be relied upon, Mr. Bayard says that is one of the reasons we ought to settle the question; and how can you afterwards, when you find the United States themselves, through Mr. Bayard, saying that because we all know that there are settlers going there into this disputed territory, that is the reason we ought to settle it? And what he refers to there is " the shores," i. e., the only place where there have been settlers, because there have not been settlers in the interior. How can you, then, when he says we both know that settlers are going into this disputed territory, say, in the face of that fact, that since settlers were there, and that that was not objected to by Great Britain, that was a reason for acquiescence on the part of Great Britain ? I say that is impossible, having regard to the statement made there by Mr. Bayard. Then I pass over the other parts of the letters, which have been read over and over again, and he then quotes Mr. Dall, on p. 252, the portions that have been already read several times. I would only point out that Mr. Dall says:— We have no good topographical maps of this part of Alaska, but having been engaged nearly nine years exploring and surveying the territory, I assert, with- Dut fear of contradiction, that nothing of the sort (depicted by Vancouver) exists. We have instead what has been aptly called a " sea of mountains," composed of short ranges with endless ramifications, their general trend being parallel with the general curve of North-Western America, but, so far as their local parts are concerned, irregular, broken, and tumultuous to the last degree. In certain places, as from Cape Spencer to Yakutat Bay, we have the nearest approach to such a range, but even here there are broad valleys penetrating an mknown distance*, and lateral spurs given off in many directions. These Alps rise conspicuously above their fellows, but to the eastward. Another peculiarity of the topography is that the hills or summits are nearly uniform in aeight, without dominating crests, and few higher peaks. The single continuous range being non-existent, if we attempt to decide on :he "summit" of the mountains we are at once plunged into a sea of uncertainty. And he goes through the various difficulties, and he says then:— In short, the " summit of the mountains " is wholly impracticable. We may hen fall back on the line parallel with the windings of the coast. That this is what the United States want to do at the present noment—fall back upon the line running parallel with the windings )f the coast:— Let anyone with a pair of drawing compasses, having one leg a pencil point, Iraw this line on the United States' Coast Survey Map of Alaska (No. 960, of -884), 720 ALASKAN BOUNDARY TRIBUNAL. I That is the same as the one which was presented to Congress with the papers subsequently:— 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. The line actually drawn as the boundary on that map omits the intricacies and is intended merely as an approximation. It would be subject to almost insuperable difficulties for the surveyor. Ajid the observation of Mr. Bayard upon that is that Mr. Dall is a practical man, he says that that line is as evidently conjectural and theoretical as was the mountain summit line traced by Vancouver. It disregards the mountain topography of the country, traced the line on the paper about 30 miles distant from the general contour of 648 the coast, so he found no difficulty in adopting that phrase. And you will observe there in that passage, too, in reference to what I was saying yesterday, Mr. Bayard perfectly understood that the charts of Vancouver were conjectural and theoretical. That is the way he describes them there. Then Mr. Phelps forwards that to Lord Salisbury, and I say that from that day forward to be bound by any act of occupation, any act of assertion of government, pending the delimitation of this boundary, is absolutely impossible on any doctrine of acquiescence that we know, either in international law or in domestic law; it is absolutely impossible. Then the next date of importance is that in 1887 Lord Salisbury writes of having received a copy of a report made by Lieutenant Schwatka, which had been sent to him in 1886, in which he referred to a reconnaissance made by him in Alaska in 1883. Lord Salisbury pointed out in this correspondence:— Lieutenant Schwatka, in the course of his military reconnaissance in Alaska, appears to have traversed British territory for a considerable distance; but, so far as Her Majesty's Government are aware, no intimation of such a desire on his part was conveyed to any of the British authorities. They do not attach any importance to this fact, and no doubt had their acquiescence been asked it would not have been refused. 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 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. That protest is conveyed to the United States' Government. The moment we hear of this fixing of these points that is conveyed to the United States' Government, and we are told afterwards solemnly that they never had the least intimation down to 1898 of our claim—that they did not know but that we conceded that the line was to be drawn ml round the inlets. We then come in 1888 to the correspondence which was included in the documents submitted to Congress, and really it is not necessary that I should go through that correspondence in any detail. If you look at the documents which were submitted to Congress, you will see in them a very complete account of the negotiations at that time, and you will recollect that there is affixed also in that book Vancouver's map, the map from the French edition, and at p. 260 here in the letter from Dr. Dawson to Sir Charles Tupper, one of the documents submitted to Congress, you will find the extract from that Report of ARGUMENT OF SIR EDWARD CARSON. V21 Major Cameron, which is the one, I think, that you referred to as having been handed in the other day. You will find the extract from that Report, which gives most emphatically notice that the word ' ocean " is wholly inapplicable to inlets:— Consequently the line, whether marked by mountains, or only by a survey ine, has to be drawn without reference to inlets. Had it not been so clearly provided against by express stipulation in the second clause of the IVth Article of the Convention, and by the accepted prin- ?iples of International Law, it might, in the case of the absence of mountains, t>e argued that the lisiere should be measured from the sea-water's edge, wherever—in inlet or elsewhere—it outlined the continent; and that this yeing the coast line where no mountains exist within 10 leagues, is equally the x>ast line whence to determine the mountains nearest to the coast. But, as said above, inlets in either alternative, the occurrence or non-occur- •efiee of mountains within 10 leagues, are not part of the coast line determin- ng the boundary. Now we are asked why we never gave a notice to America that we iisputed the line over the inlets. I should ask, why did America, when they submitted these papers to Congress, when they took the trouble to do that, never say, " Why we consider the whole of this question of inlets a thing that is settled; it is settled; it is conceded as having been acquiesced in as having been held by Russia 549 and Ajnerica for 100 years between them'! ? Not one word, and I protest against any Government being called upon, svith this dispute pending, to keep saying to a Government: " Take this point or that point or the other point along the line; but we must mter a protest against this being considered that it is anybody's property but ours pending the negotiations." I have not the least ioubt if gold had been found somewhere in there nearer the American line instead of at the Yukon they would now say: " Oh! all this time you have never said you claimed that portion of the land." Of course we did not; there was nobody tjiere, it was of no importance. We did not come into collision, there was no question raised between as. And I cannot understand how a Government is to be each year saying: " Mind, every inch along such and such a place—mind, that is all disputed territory," and we were no more bound, because of the yiew indicated in Cameron's Report of .1875, to keep saying to the Ohited States: " Recollect the top of Lynn Canal is still in dispute " than we were bound to say that from 100 miles somewhere behind Stephen's Passage was still in dispute. Then that goes too. Of course nothing is said about it, nothing so far as I can find is said about the question raised there. I am not going more minutely into the negotiations between Mr. Dall and Dr. Dawson. All I will say is that apparently both of them thought the only way of settling the matter was by a conventional line. And the next protest that we find was also in 1888, and although the protest was only^ conveyed in general terms to the United States, it is important to look at it, so as to see that England was no acquiescing—in her own mind, at all events—in the tops of these inlets at Lynn Canal forming part of the American territory, because Mr. Burgess wrote to Sir John Macdonald, and said:— Captain Moore, of Victoria, British Columbia, who was for some time a member of Ogilvie's Expedition to the Yukon, has reported to the Government of British Columbia that he believes certain persons are about to receive a Charter S. Doc. 162, 5&-2, vol 7- -16 BMKI . 722 ALASKAN BOUNDARY TRIBUNAL. 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 Chilkodt Pass, is in Canadian territory. In view of the well-based contention on our part, that the heads of the larger inlets which penetrate that portion of Alaska, which consists of the coast line from Mount St. Elias to Portland Channel, and more particularly the head of Lynn Canal, are within our territory, it would appear to be important to protest against the granting of any rights by the United States, or Alaskan Governments, at the heads of these inlets. Well, I admit that was not in those terms communicated to America, but I say that that was the case and the contention, because that very matter is sent on to Sir Sackville West, who was then the Minister at Washington, and I freely admit he did not send his protest in those terms, but he sent a protest against any of the territory which England claimed or which was in dispute being granted away to any Company, and I say I am entitled to rely upon that as showing that it was the contention, according to the view of England at that time, that the heads of these inlets did not belong to the Americans. Then, in 1888, you have, I say, the letter addressed by the Superintendent of the United States' Coast and Geodetic Survey—I think it was a Mr. Thorn—to the Honourable the Minister of the Interior of Canada. I will only read one passage:— From some informal discussion of the matter, it is understood that the Hon. Secretary of State will be likely to require that the preliminary survey shall, among other things, accurately establish in latitude and longitude, and permanently mark, such a number of accessible points at certain distances from the coast or along certain mountain summits as, together with such topographical reconnaissance as may be practicable, will afford the geographical information requisite to the proper negotiation of a Treaty establishing a boundary. Now, all I point out with reference to that letter is that there they do not think it would be such a dreadful calamity that you would ml ml have to take certain mountains to form the boundary between the Parties. 650 And then the last letter of protest to which I will refer you to is the letter of the 5th June, 1891, from Sir Julian Pauncefote to Mr. Blaine, in which, having observed a paragraph in the Report of the United States'- Coast and Geodetic Survey, he writes to call attention to it. The thing is this:— The Governor-General of Canada has lately brought under the notice of Her Majesty's Government the following passages in the last published Report of the United States' Coast and Geodetic Suiwey, in which the Director writes as follows:— By recent Congressional enactments, a preliminary survey of the frontier line 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 north-westwardlj**, 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. Now, I ask you to notice there, that having read that, the protest is this:— The Dominion Government have expressed the 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 consid- ARGUMENT OF SIR EDWARD CARSON. 723 erable correspondence, and that the actual boundary line can only be properly determined by an International Commission. Now, there again, I call one more witness in that paragraph, Mr. Thorn, the predecessor of Mr. Mendenhall, to the general trend of the coast. Then comes what is perhaps the most important document in the whole of this case, the Convention of 1892, which is the foundation, I say, of our proceedings here to-day, and I should like to raise this question. If there was to be urged against us that at that time, and for some years prior to that, there were settlements upon the heads of these inlets, and there were acts done by the United States in reference to these inlets, which practically showed such an acquiescence upon our part that they must be taken as being United States territory, if ever there was the time to raise that, it was when this Convention was being agreed upon. But, if you look at the Convention, it makes no exception. The High Contracting Parties agree that a coincident or joint survey (as may be found in practice most convenient) shall be made of the territory adjacent to that part of the boundary line of the Dominion of Canada and the United States of America dividing the province of British Columbia and the North-West Territory of Canada from the territory of Alaska, from the latitude of 54 degrees 40 minutes north to the point where the said boundary line encounters the 141st degree of longitude westward from the meridian of Greenwich, by Commissions to be appointed severally by the High Contracting Parties, with a view to the ascertainment of the facts and data necessary to the permanent delimitation of said boundary line, in accordance with the spirit and intent of the existing Treaties. Now, I submit that that is not the language that would be used if the two Parties, or either of the Parties, in their own minds thought that there was something that had been already settled by occupation and by acquiescence. It says, " in accordance with the spirit and the intent of the existing Treaties." If it was to be in accordance with the spirit and the intent of the existing Treaties, how could it be that it could be taken that any part of the Treaty had been conceded? And, mind, there is nothing in that about prior acts or subsequent acts, or anything of that kind. And then the last paragraph is that:— 651 The High Contracting Parties agree that as soon as practicable after the Report or Reports of the Commissions shall have been received, they will proceed to consider and establish the boundary line in question. And that is what we are doing now. Then upon that you have the instructions of Mr. Mendenhall to carry out that Treaty, I am not going through them again, in which is pointed out the method in which he construed the Treaty and asked to have the surveys made. Now I would only say this: if the principle is to be taken as all along wrong, we have never had the survey made on any other principle, we have never had any survey of the United States line; if the whole of this is to be thrown over by an argument which has been made by Mr. Watson and Mr. Taylor, that there is to be no general trend of coast line in the sense in which everybody has acted all through in this matter, and in the sense in which this Convention was carried out, all I can say is you will find a very great difficulty in getting material for the purpose of drawing the line as you are asked to do here. (Adjourned for a short time.) Ill 724 ALASKAN BOUNDARY TRIBUNAL. On resuming Sir Edward Carson. My Lord, I have referred to the terms of the Convention of 1892. Now, a report was made by the Joint Commission, appointed under that, and still no suggestion, was put forward that everything was settled. It is said that that was merely the fixing of a line, that there was nothing to determine about as to the construction of the Treaty. But my point is that that remained over, that you were to have the data, then you were to have the Commission which they undertook to appoint to determine what arose upon the Treaty, and, taking these data, to enable you to apply them. I think that is perfectly plain. I think I can make that perfectly plain if I ask you to look at p. 287 of our Appendix, where you will find that, after they had received the report of the Convention of 1892, in 1897 they entered into a Convention to fix the point to the north of Mount Elias. Now, I just ask your attention to the terms of that, because it seems to me to conclude this point. They say:— And whereas the location of the said meridian of the 141st degree of west* longitude between the terminal points thereof defined in the said Treaties is dependent upon the scientific assertainment of convenient points along the said meridian, and the survey of the country intermediate between such points, involving no question of interpretation of the aforesaid Treaties. And so they proceeded in the interim, having got the report, and before the Treaty was entered into setting up the Tribunal which I now have the honour of addressing—they proceeded with this one matter, which involved no question of interpretation of the Treaty, but merely the scientific determination of the boundary line; they set up a Commission or Tribunal to determine that merely scientific point. How can it be said, therefore, that the object of the 1892 Treaty was merely to determine a scientific point or a mere scientific line which had merely to be mapped out upon the terms of the Treaty without involving its interpretation? It seems to me to be perfectly conclusive upon that point. Now, I have taken that a little out of its order just to contrast the two matters, but as it is ^aid that we never made any mention of these 7 ml inlets—that the American Government did not know of our claim before 1898, after the gold had been found—may I also direct the attention of the Tribunal to what I do not think has yet been mentioned, viz., the fact that in 1896, on 3rd January and 12th February, there seems, according.to the Congressional Records, to have been a debate in Congress with reference to this very question. I have the debate here, but it will be found sufficiently set forth, I think, at pp. 57-58 of the British Argument—in the quotations. There you will find:— 652 It appears from the Congressional Records of the 3rd January, 1896, that the Alaska boundary question was on that day brought before the Senate by Senator Squire, who read a Report fi-om 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 ci*ossing 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 ARGUMENT OF SIR EDWARD CARSON. 725 on that day the subject was again discussed, this time in the House of Repre- marine leagues. If the members of the Tribunal wil llook upon the sentatives. 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." The importance of that is that it cannot be said that the Canadian claims were not thoroughly known before the gold was discovered, for the gold was not discovered at that time, and I entirely repudiate the charge that some new claim was put forward because the gold was discovered. In point of fact, the reality is that it was after the gold was discovered that the United States took up the point that we had never put forward this claim, and that therefore we ought to be shut out altogether from contesting it. My Lord, when the report of the survey was obtained, or some time after the report was obtained, you will find set out in our Appendix, at p. 299, a— Memorandum on the part of the United States' Government containing its views on the subjects set forth in the Protocol, signed the 30th May, 1898, between the Representatives of the United States and Great Britain. The delimitation and establishment of the Alaskan boundary. This topic has already been the subject of conventional arrangements, and the Report of the Joint Commission is now available, and has made it possible for the two Governments to carry out the stipulation of the last clause of Article I of the Treaty of the 22nd July, 1892, to " proceed to consider and establish the boundary in question." The Government of the United States will expect the Joint High Commission to seek to execute this stipulation by an Agreement as to the boundary as fixed by the Anglo-Russian Treaty of 1825, and by the American-Russian Treaty of 1867, and, as far as possible, to delineate the same upon proper maps; and, further, to provide for the fixing of boundary marks by a Joint Commission to be hereafter appointed. There, you see, they do not put any limitation—that the heads of the inlets or anything of that kind belonged to America—but they say they are quite prepared to proceed on the basis of 1892, and certainly at that time they had had the whole matter before them in the debate in the two Houses, and they had the other materials to which I have called attention. Now, the only other document that gave rise to any doubt to which I need call your attention is a couple of months later than that, and that is with regard to the Conference at which the late lamented Lord Herschell was present and the instructions given by Lord Salisbury. My Lord, a good deal has been said from time to time by the Counsel on the other side—I do not in any way com- 653 plain of it; it was a very fair observation—as to one statement in that letter of Lord Salisbury's. It is on p. 298, and you will recollect that Mr. Watson relied very strongly upon it as an admission that there were no mountains. The passage is this:— With regard to the southern portion, however, wide divergence exists between the views of the two Governments. From Portland Channel to 726 ALASKAN BOUNDARY TRIBUNAL. 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. I suggest that that is not a statement of Lord Salisbury's; it is a statement of a contention. If you look at Mr. Bayard's letter, which is very likely what he turned to—that is a statement made by Mr. Bayard in his letter, and what I suggest is that Lord Salisbury was putting the contention and his instructions before the representative, because that that could have been his vieyv is impossible. If you read the last paragraph cited on that page:— They have only to remark that the boundary line must, in the first instance, be sought in the mountains which border the coast. The President. It is perfectly obvious that this statement by Lord Salisbury that there are no mountains cannot bind us or anybody else. It may have been used as an expression of opinion on some information before him that he thought there were no mountains; to that extent it is possible to use it, but I do not think it carries even so far as that. Sir Edward Carson. What occurred to me as being the real explanation was that he turned up the correspondence. If you look at Mr. Bayard's letter, on p. 251, you will see an expression used by him, " there is no such range of hills," and what occurs to me is that Lord Salisbury turns this up, and presents this fact in his instructions, and he goes on to say there:— They have only to remark that the boundary line must, in the first instance, be sought in the mountains which border the coast, and that the important condition that the line is nowhere to exceed 10 marine leagues from the ocean governs it throughout. Now, I say that, having regard to these various matters, it is not necessary for me to examine the acts of settlement or the acts of government by the United States in these disputed territories. I say it is unnecessary, and I say—let there be no mistake about it—that I admit that from 1884-5 onwards there were attempts—I think they were very poor attempts—but there were attempts to exercise some government over this portion of Alaska. Your attention has already been called to the passages in the Appendix to the British Counter- Case taken from the Reports of the American Governors—even from recent Reports of the American Governors themselves—in which, talking of the whole of Alaska, they say (I will take one which I happen to open on—the Report of 1888; there are some later) :— Aside from the partial administration of justice by the United States' District Court and the four 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. That is talking of the whole of Alaska, not merely these distant parts, and that is a thing that has to be borne in mind all through this Argument, viz., that this lisiere, although a very important part, is a very small part of the American territories which constitute Alaska. Then again, on p. 24, in the same Report, you will find:— As a matter of course, when the Act creating a civil government for Alaska went into operation, the civil superseded the naval or military authority, and, in consequence, the people of more than two-thirds of the territory, because of the Argument of sir edwakd caeson. 727 reasons already suggested, have ever since been practically without any government, and beyond the reach of any authority whatever. 654 I will call attention only to one other, which is ten years later, to show how little they had advanced in the meantime. This is the report of 1897, on p. 29, in which it is said:— The inhabitants were thoroughly alarmed, and sent a petition to the authorities of British Columbia to send a man-of-war at once to protect their lives until they could obtain protection from their own Government— This is near Sitka— The " Osprey " was sent off at once, and afforded the people protection until relieved by the U. S. S. "Alaska." But every effort emphasized the fact that Alaska was without any civil government. And while admitting that, for the purposes of the Argument of the United States, that they should allege that they were attempting to exercise acts of government, and that I do not dispute it at all, still you must not take it that there was anything like a proper system of government set up throughout the yyhole of Alaska, let alone in these distant parts, at the top of the Lynn Canal, and so forth. Now, there is only one other statement which has been made on which I wish to say a word. There was an extraordinary statement made by Mr. Watson on, I think, the first day of his argument. It is at p. 330. He said this—and this is a kind of observation that would, no doubt, strike a Tribunal such as I have the honour of addressing:— And without stopping to go into the detail in reference to them, I want to call the Tribunal's attention to the fact that in 1900, when our census was taken with reference to Alaska, we had 20,000 citizens residing within this lisiere, principally along these inlets, half of which are now claimed by Great Britain. And'at the close of the second day after, when we asked him for the census, he told us (p. 426) this:— Oh yes, Sir, I will give you the whole thing, but I want to say to you that some person nad put 20,000 there, and, wanting to follow my brief, I named that figure. As a fact it ought to be 11,332, and I have a. Memorandum to call your attention to it I am not suggesting for a moment that Mr. Watson was not intending to give the exact figures as he had them; that is not the point I am making now. But that brings the 20,000 down to 11,332. We then got the United States' census, and we found the census given of Southern Alaska. If you will look at the description of what Southern AJaska means, you will see that it is there defined. They divide Alaska in two: Northern AJaska and Southern Alaska. The northern district embraces the valley of the Yukon, and all territory to the north of it, and the southern district embraces all the remainder of the territory, including the AJaskan Peninsula, and the adjoining AJeutian Islands. If you look at the chart No. 1 in the American Atlas you will see what an immense territory is included in Southern Alaska, because it goes out to the AJeutian Islands, which were the original settlements at which the trade of the Russians mainly was. It is really the southern half of the big peninsula up to where their line goes, all those islands, and all the way down the coast from there. We have been anxious, as far as we could, to test what was the true condition of affairs as regards those who might be settled 728 ALASKAN BOUNDARY TRIBUNAL. on the disputed territory. Mr. Watson said that the majority of these, the greater part of these, were settled upon these inlets. Well, we have got the official bulletin, which the Tribunal have seen, and we have here, at p. 246 of the census, the various towns, with their populations, which bring out the total of 33,000 as being the whole population—not citizens alone—in the whole of Southern Alaska. Very well. Then we have to get the number out of that that are on the inlets. We have gone through it—at least, I have not gone through it, but it has been gone through by Mr. Wade, who knows the country about that district; he has investigated every one of these towns and villages which are mentioned as bringing up the total of this census, and so far as he can ascertain, the only ones that 655 we find on these inlets are Dyea, which is set down with 261 inhabitants—I will have Something to say about that in a moment—that is in the census of 1900; then Haines, 85; Skagway, 3,117 that is the largest of them; Sandpoint Village, 16; that is 3,479 of population altogether. Then there are two small places, Saxman and Shouing; we do not know where they are; they are the only ones we cannot identify, but we add them on for fear of making a mistake; they have between them, I think, some 470 inhabitants. Adding those on, we find that the number of inhabitants upon these islands is 3,957 out of the 11,000 that were put forward in the corrected figures by* Mr. Watson. Mr. Lodge. Those are all on the Lynn Canal. Sir Edward Carson. No, on the inlets anywhere inside the line of Mr. King, which is the only part with which we are concerned now. Mr. Lodge. You exclude Juneau, for instance. Sir Edward Carson. Oh, certainly; that is admittedly American territory. There is no question about that here. We take every place that we can find inside that line, because, of course, the argument of Mr. Watson was—look what a thing it is to give an award which affects 11,000 citizens, or nearly 11,000 citizens. Well, then, but there is an affidavit in this Case by Mr. Wickett, which is to be found in the British Counter-Case Appendix, pp. J5 to 76, and, you will find from that, he went up and investigated the state of the population in the spring of this year, and everybody knows the population at the top of Lynn Canal has been decreasing since 1900; in fact, Dyea, I believe, it is a noteworthy fact, now has one or two inhabitants only. He says that it has practically ceased to exist. Before the railway was made, it was a kind of base of supply for getting into Klondike and that district, but, since then, I believe, it has practically ceased to exist. I take, of course, the information that is given to me, but I am told that it had only one inhabitant and that he was in gaol. I was a little incredulous about that, because that would seem to imply that there were, at least, two. But, be that as it may, it is really a city that has practically gone, and Skagway has, I am told, dropped to about 1,000 inhabitants, instead of 3,117. Mr. Root. I suppose if there were but one inhabitant and he remained in gaol it would indicate very effective government, would it not ? Sir Edward Carson. Oh, very effective indeed, except that there is this to be said, that the gaoler might do then what he liked. But that brings down this enormous population of citizens which, if mmmmmm ARGUMENT OF SIR EDWARD OARSON. 729 you acceded to our views, you were going either to drive out of the place or to put under another government. That brings down the whole population to about 1,500—population, not citizens—but I am told—and I am sure the Tribunal know a good deal more about this than I do—that there is a great difference up in Skagway and these places between the population and American citizens, because if there was any inquiry it would very likely be found that a considerable proportion of the population might be British subjects, or even Canadians, or, for all I know, as you generally find them everywhere, they might be Irishmen. Therefore, if you discount it in that way you come down to an extraordinarily small number of American citizens. Then you have another matter to consider in relation to this, and that is that Skagway at all events was a city founded after the debate in 1896 in the two Houses of the American Parliament, it was founded after that and, therefore, at that time it was public knowledge—at all events it was in the knowledge of the Government as to what the claim of Canada was, and so they went into disputed territory. If you withdraw the number of citizens in Skagway you bring the thing down to an infinitesimal matter. The importance of it, of course, is—and I am not sure that it may not be one of the weaknesses, and not an unnatural weakness, of any such Tribunal as that which I have the honour of addressing—that there is very great difficulty in any Tribunal by its decision stating 656 that any large number of citizens of one country are to be put under the authority and power of another country. There is no doubt about that. Most men feel that—I do not care how strong they may be as members of a Tribunal, they must feel that to make changes of that kind is a matter of extreme importance, and I am not at all sure that in these international arbitrations which now are becoming so extremely fashionable and popular—you will find an eulogy of the one at the Hague in this morning's paper—I am not at all sure that one of the greatest difficulties may not be in the end that human nature, that patriotism—natural patriotism—is such that each man shrinks from handing over his own fellow citizens to the government of another country of which he is not a member, and it is there that the strength and power of the Tribunal becomes so important in the Case we are investigating here. All I can say is that if we have given much time to this matter, and if anybody says that our proceedings have been spun out and have taken time beyond the value of this question as it may appear to the public, I ask them to remember that we are attempting here to make a settlement of a matter which for thirty or forty years has been an outstanding question between two great nations. We are trying to settle a question which over and over again it was said to be impossible to settle upon the terms of this Treaty, and that is no light work for any Tribunal to enter upon. Whatever the time spent upon it may have been, whatever the expense, and whatever the care—and there has been great care taken o\Ter this matter—I can only express the wish that the great object of entering into this Convention may be achieved out of these sittings by the removal of one of the causes of difference between two great and friendly nations. The President. Mr. Solicitor, haying conquered Ireland and annexed England, you now proceed to bring one of the principal 730 AL ASK All BOUNDARY TRIBUNAL. colonies of His Majesty under your influence. We all know tie circumstances under which you had to undertake this task—that at the last moment you took the place of Mr. Blake, a distinguished advocate who could not appear for Great Britain. Much as we all regret that Mr. Blake's state of health did not permit him to appear before the Tribunal, we feel that the Case has in no way suffered, and we thank you very much for the argument which you have addressed to us. Sir Edward Carson. I am much obliged to your Lordship. Mr. Dickinson. Mr. President, when we adjourned yesterday afternoon, my understanding was that the Solicitor-General would continue throughout the day. In the effort to economize the time of the Tribunal, he has doubtless abbreviated his notes, and for that reason I have to come on somewhat unexpectedly. Possibly, I should not regret this, as it gives me an additional claim upon the patience and forbearance of the Tribunal, all of which I shall need. There is one ground on which I feel that I ought to be persona grata to all who are participating in this hearing, and that is that I am the medium through which this long debate is to be brought to a close. When I say " long debate," I do not by any means mean to imply that it has been a tedious one. We have all been highly entertained by the very able arguments of all the gentlemen who have preceded me, and for my part I freely acknowledge that I have been very greatly instructed. I think that the most unsympathetic hearer would say that upon every other ground I am entitled to compassionate sympathy. It is my duty to endeavour to glean in a field that has been harvested by five most diligent and skilful reapers, and if my success is to be gauged by my ability to discover or to exploit anything new, I can hardly hope for even the poor reward of Gratiano, the three grains of wheat to a bushel of chaff. I feel, Mr. President, that if I am to give any aid to the Tribunal or contribute anything that will be of real value in the investigation which they have before them, I must address myself to an effort to meet the arguments that have been advanced on behalf of Great Britain. I have listened to them very intently. Coming, as I do, so -shortly after the argument of the Solicitor-General, it will 657 hardly be possible for me, certainly this afternoon, to comment upon any of the propositions advanced by him. I am sure that no one who has listened to the very facile and elegant argument of Mr. Robinson, whose style is at once a source of admiration and despair to all those who have heard him, or to the very able speech of the Solicitor-General, would, as applied to either of them, advise me, by way of friendly warning, to touch Ralph de Vipont's shield as my easiest bargain. I am forced by the fact that the Attorney-General has gone so fully and so elaborately into all these questions, and also for the reason that I have had some opportunity for studying his argument, to ring the Templar's shield, and try conclusions with him. I do not speak in any spirit of bravado or confidence. Indeed, as was said upon an occasion where the disparity did not appear so great as now, I say, Mr. Attorney-General, in all sincerity:— Les palmes dont je voie ta t§te si couverte Semblent porter ecrit le destin de ma perte. i mini. ARGUMENT OF JACOB M. BlCKlNSOtt. 73l Would that I might add in the language of the Cid: Ton bras est invaincu, mais non pas invincible. I would not have anyone suppose that I would rashly choose to enter upon such an undertaking. It is a responsibility that has been forced upon me by the necessities of the occasion. So far from feeling any sense of confidence, I am in a position to very deeply sympathize with the feelings of the Confederate soldier who, when the battle line was sweeping forward in the last fearful charge at Chick- amauga, and a rabbit jumped up and ran through to the rear, cried out, " Run, cotton-tail! If I did not have any more character at stake than you have I would run too." Coming to the consideration of the questions that are submitted for discussion and decision, we cannot ignore the character of the country with which these negotiators dealt, and the attitude in which they were. We would be proceeding upon a false basis if we assumed that they were just in the position with regard to the subject-matter of this rreaty that we are in to-day. First, the country; it was vast, unknown, and of little value. The fringe in regard to which they treated was a mere selvage, a border upon a continent which stretched mross for a distance of 4,000 miles. That, I think, may be an expla- lation of the character of the terms used in the negotiations in regard ;o the lisiere. They used diminutives and expressions which ought not :o be taken literally, but which ought to be viewed from the stand- Doint of the comparison with which they dealt. I shall have occasion ;o advert further on to that. I merely call attention now to the fact hat when they spoke of " a small fringe," when they spoke of " point 1'appui," when they spoke of " a mere strip of coast," they were speaking of the border of an immense, vast continent, and what they •eferred to was infinitesimal when compared with the great continent yith which they were dealing. Therefore it will not do to give words )f that character too much importance. Indeed, I have never thought for a moment that any Tribunal of trained lawyers would deal with hese questions upon a mere critical examination of the meaning of certain words, or that their decision would depend upon scholastic ;riticism. But where you have words used in various associations, md these all develop one grand and central idea, you can deal with he idea and get the dominant and controlling features. Thinking as I do in regard to mere verbal criticism, I shall not sxpend a great deal of time upon a mere critical discussion of the neaning of words. Of course, they have their significance, and they >ught to be given their due proportion and weight. I shall endeavour o evolve the central and controlling ideas upon which the minds of he negotiators met, and if I am able to demonstrate what these ideas vere,I shall care very little for a mere discussion upon words that may lave been used, as we often use words, without their having been crit- cally chosen, not expecting that persons would take them up and turn them about and look at them from every point of view, as you >58 would the facets of a diamond. I do not believe that great questions and great principles are ever settled in that way. I lo not want to minimise the value of particular words; all that I do nean to say is that I do not believe that the decision here is going to £o off upon mere questions of grammatical structure or narrow dis- inctions as to the use of particular words. 732 ALASKAN BOUNDARY TRIBUNAL. It is not to be supposed that the gentlemen who conducted these negotiations addressed their minds to all the points of controversy which have been brought forward in this discussion. We all knoT\ that after a controversy has arisen and any statute or will has come into dispute, and great questions hinge upon them, lawyers focus their minds upon them, and that there is a wonderful amount devel oped which probably the framers of the instruments never thought of. It will never do for us for a moment to construe this Treaty by supposing that any one of the negotiators understood matters as we understand them, or that he examined these maps with magnifying glasses as we have examined them, and we all know that not a single man among them had all the correspondence before him as we have it. We should therefore be proceeding upon a false idea if we under took to get at the meaning that these men had in their minds bj assuming that they knew all about the matter that we know. If we are guided by any such principle as that we will be led to an erroneous conclusion. I think I may also here remark that it never entered into the mine] of a single one of the negotiators just how the line was going to be drawn parallel to the sinuosities of the coast.. I do not believe for a moment that anyone of them ever followed out the idea to a practical conclusion, whether you take the coast to be the general trend on the entire physical coast. I do not suppose that anyone of them ever followed it on any map in all its sinuosities, and then said: " We will draw the line parallel to this." And yet the Attorney-Genera] assumed in his argument as one of his strong points—I am rathei anticipating in saying this, but this is a general observation that 1 am making—as one of the reasons why they could not have mean! the entire coast, that a line parallel to its sinuosities cannot be drawn, that it is an impossibility, and that, therefore, they did not intend to mean that sort of coast, but that they meant a kind of coast to which a line could be drawn parallel. That seems to proceed on a false idea and on a false premise. \ It cannot be supposed either that they studied the acreage that was in these promontories, and that when they were determining the width of the lisiere they considered whether or not drawing the fine parallel to the sinuosities of the coast would give a little more or a little less land to Russia on account of the promontories All these discussions are interesting and ingenious, but I submit that they do not advance us one step towards the idea which was in the minds of these negotiators, and thej^ do not help us at all in solving any of the problems that are presented for our consideration. I think another principle that we should bear in mind is this: that, unless some overruling reason shall appear, we must proceed on the assumption that they used words in their usual and ordinary sense, that they never searched out for a moment recondite meanings of words, and that they never intended to apply a word in a sense that was so unusual that in the matter of the delimitation of territory, so far as I have been able to discover, it was never so used before and never has been so used since. I, of course, refer, as the members of the Tribunal understand, to the use of the word " coast." I shall have occasion to speak of that more particularly when I come to the ARGUMENT OF JACOB M. DICKINSON. 733 discussion of that question. When they were talking about " coast," and using the word " coast," I cannot for a moment appreciate the justness of the suggestion that they intended in the Treaty to use the word " coast' when they were dividing up territory by a line striking the continent, all to the north of which was to go to Russia, and all to the south to Great Britain—and all to the east of a certain lisiere was to belong to Great Britain—in the peculiar sense that is now attached to it, and that they did not mean a coast border- ing the water, but a coast crossing from headland to headland. That is a meaning which, so far as I know, has never been attached to the word " coast," except for the purpose of jurisdiction. It is used to secure a mere appurtenance to territory where the ownership has already been determined. I am sure that if there had 659 ever been a case in diplomacy where the word " coast' had been used in this sense in delimiting territory, it would never have escaped the ingenuity of the able gentlemen on the other side. Still they ask you to say that in using the word " coast," which has an historical meaning attached to it, in respect of this very matter in controversy, as I shall undertake to demonstrate, when they came to delimitate this territory they used it in a sense in which it has never been used, except for jurisdictional purposes, to define an appurtenant to an existing right, and in a sense never before used for the purpose of establishing or dividing a territory. Now, if that be sound, can we proceed upon the idea that they attached this unusual meaning to the word " coast" without some explanation of it? I admit that they might have used it in that sense, but are we to assume that they used it in that sense unless we have some internal evidence of the strongest character that it was made use of in that way or unless there is something in the negotiations to show that it was meant to be used in that way? The discussion has proceeded largely upon the assertion upon the part of Counsel for Great Britain that the United States' Case depends in some way upon asking this Tribunal to interpolate something into the Treaty. The Attorney-General said, on p. 11 of his argument:— I submit to the Tribunal that the Treaty must speak for itself. The negotiations you may look at to throw light upon what the Parties meant by various objects designated in the Treaty or to give help in the elucidation of what may be obscure when taken by itself and without the surrounding circumstances. I agree entirely with that. It seems to me to be a perfectly comprehensive and sound statement of principle. He proceeded:— But the negotiations cannot be invoked for the purpose of varying that which the Parties have embodied in the Treaty. I agree to that. I admit that if we appeal to the negotiations for the purpose of changing, varying, or adding terthe Treaty, or for the purpose of explaining anything that is plain—that of course would be a contradiction in terms, because if it was plain it would need no explanation—we would have no standing for any such proposition. But where the interpretation is doubtful, then the principle is that the members of the Tribunal are to put themselves as nearly as they can, in the light of all the evidence that is before them, into the shoes, to use a common phrase, of these negotiators, looking at the matter with their eyes, and then undertake to say what they meant. We - ml 7 •-■-■*'* know that it is a difficult task at all times to go back and put your- 734 ALASKAN BOUNDARY TRIBUNAL. W. 1 self just into the intellectual atmosphere that surrounded a person at a particular time, but still Courts have to do that, and, even if justice miscarries, the whole idea of interpretation is based upon doing that very thing. Now he proceeds:— And I venture again, with respect, to submit that a very considerable part of the Case of the United States will, I think, be found to trench upon that canon, which I submit is fundamental in construing any document, either as between nations or as between individuals. I do not recall that the Attorney-General pointed out any word that we wanted to read into the Treaty, and, so far as I am authorized to speak for the United States—and surely my associates have said nothing that would militate against it—I want to say that we stand upon the words of the Treaty just as they are. When you come to apply those words, that is a different question. That is where interpretation comes in. When the application is made you do not have, from the standpoint of our contention, to read into that document one single word. On the other hand, it seems to me that the contention of Great Britain depends upon reading into that Treaty words, and those words are either " general coast" or " general trend of the coast " or " mainland coast," or words to that 660 effect. I am not quite sure that I understand the view that the Solicitor-General holds in regard to these negotiations. At one time he seemed to take the position that they could not be looked to at all—that they were entirely valueless. I cannot quote from his speech, but I got that impression. But when he was in hard lines he did not hesitate to refer to the negotiations, and if you strip his argument of the sustaining force that it gets from the negotiations, I say, with all respect, that you have taken the main prop from under it. This controversy has arisen mainly as to the application of the words " coast" and " ocean " and the interpretation of those words. In order to get that, we look to the Treaty itself. Looking to the Treaty alone, we cannot apply it. Is there any doubt? If there were no doubt, why would this Tribunal be here? If there be no doubt, why would we have all this long argument? The very fact of this trial shows that the Treaty, on its face, is in doubt. The fact that you are acting under another solemn Treaty between two great nations for the purpose of answering the questions propounded shows that it is in doubt, and calls for interpretation and application, and we look to everything surrounding the parties to reach that interpretation. With these preliminary remarks I come to a discussion of the questions, and shall be as brief as I can consistently with the magnitude of the questions and the great multitude of aspects in which they have been presented. I shall ask the Tribunal to bear with me if I weary them, but when I speak my last word that will be the finale, so that every step I take brings you nearer the promised land. The first question I pass over as being practicaly without controversy. It has been agreed in the Case of the United States, and also in the Case of Great Britain, that the point of departure is Cape Muzon, and I assume that where the Parties themselves have agreed, and where you have so many other complicated questions to deal with, you are not going to trouble yourselves to search out another answer to that question. The next question is, what channel is the Portland Channel, and umnu ■SUM ARGUMENT OF JACOB M. DICKINSON. 735 1 think we are agreed when we say that that means the channel that the negotiators meant when they put those words into the Treaty. With the testimony that we have before us, we have to try to find nut, first, what they meant, if we can, and then, if we cannot find nut what they meant, but find that the answer is one of doubt, and that it is a question of interpretation, we have then to see, if we can, whether or not the Parties themselves have put any interpretation upon the words. Of course, it is understod that the arguments on behalf of Great Britain are to sustain the contention that the Portland Channel, as meant in the Treaty, is the channel which lies north nf the islands Sitklan, Wales, and Pearse, and that the contention yt the United States is that the Portland Channel meant in the Treaty, as interpreted by the Parties, is that body of water which passes south of those islands. The Treaty provided that the line from the point of beginning =hall proceed—I think the language is " au nord le long de la passe lite Portland Channel." Mr. Aylesworth. That is right. Mr. Dickinson. And we say that the reasonable construction of that is that it was not to begin at once from the point of commencement to proceed " au nord "; that they were not dealing with such Jose and accurate expressions as that; but that the words " au nord ' grammatically—though I submit an opinion upon that subject with 5ome degree of doubt in the presence in which I stand—apply to the Portland Channel and on to the 56th degree, and do not import the idea that the line must proceed at once " au nord " from the point of beginning. And yet is is advanced in the British printed Argument and—although I cannot turn to the passage, if my memory serves me right—by the Attorney-General, that the line from the point of beginning was to proceed " au nord." The importance of that lies in this, that if the line from the point of beginning was understood to proceed to the north, that is to say, if you are convinced that they intended that it should at once begin to proceed to the north, 661 it helps to demonstrate what Portland Channel was, it helps the British contention, because if it proceeds from the point of beginning at once " au nord' and so continues, it would strike nearer the northward channel. Therefore, the contention, if sustained, is not without some value. In view of subsequent statements by the Attorney-General, and especially after what has been said by Mr. Robinson, it is not a matter of very great importance. And yet 1 feel that I ought to discuss it, for it may have found some lodgment in the minds of some of the members of the Tribunal. The argument is, that the Treaty provides that the line from the point of commencement was to proceed " au nord," that they meant the words " au nord " to qualify the line from the beginning, for otherwise they never would have inserted into the Treaty the words which appear in Article IV:— Que l'ile dite " Prince of Wales " appartiendra tout entiere k la Russie. They say that it proceeds at once from the point of beginning to the north; that it was manifest to all inasmuch as the southernmost point was at the southwest, that this would cut the island, or might cut it, and because they- thought it would cut the island they put in that saving clause, or, to invert the argument, the putting in of that 736 ALASKAN BOUNDARY TRIBUNAL. saving clause proves that they thought it would cut the island. Now, I think I will be able to demonstrate that, whatever the reason may have been for inserting these words, that was not the true reason. I do not think I am bound to give a good reason. If I can demonstrate that the reason they have given is not a sound one, that is as far as, under the limitation of time imposed upon me, I ought to be expected to go. If you look at the first draft of the Convention made by Mr. George Canning on the 12th July, 1824—you will find it on p. 183 of the United States' Appendix—you will see that the line was to commence at the two southernmost points, and proceed to the north of the pass called Portland Channel. The language is:— En commengant des deux points de l'lle dite du Prince de Galles, elle remontera, au nord, par la passe dite le " Portland Channel" jusqu'a ce qu'elle touche k la c6te de la terre ferme situ£e au 56° degr6 de latitude nord. The line was to start from the two southernmost points of the island, but still the expression is that it was to go to the north. Well, now, it is perfectly plain, if it started at the two southernmost points one being Cape Muzon and the other Cape Chacon, it would not cut the island, and that the words "providing that the island should belong entirely to Russia," which were added to that draft by Russia, were not put in because it was thought that the provision that the line should proceed " au nord' would make the line cut the island. Then, if they were not introduced to save the island frpm being cut, it does not demonstrate that they thought the line was going north and would cut the island. That saving clause was put in in the Russian counter-draft, which preserved the language " of two points," and the provision that the line was to go north from these two points, and still they put in the saving clause which is on p. 192 of the United States' Appendix. The language is:— A partir des deux points qui forment l'extremite meridionale de l'lle dite Prince de Galles, laquelle appartiendra tout entier e k la Russie, points situes sous le parallele du 54 degres 40 minutes de latitude nord. They certainly did not put these words in, because they thought that the line drawn from those two points was going to cut the island. Why have they put them in ? Of course, it is a matter of conjecture. I have an idea on the subject. It may not be worth much, but still I will contribute it for what it may be worth. They probably thought that, associated with that island, there being an archipelago, there were some dependent islands that were merely appurtenant to it, and that some question might arise as to whether those islands would go along, and so they put in these words. Now, as it turns out, Cape Muzon is on one of these dependent islands, and it might have 662 been in the light of this controversy and argument a little better for the United States if it had said that the line should start from Cape Chacon, because that would obviate entirely all this argument about the island being cut by the line proceeding to the north. That may have been the reason, viz, that they wanted everything that was appurtenant to that island to go along with it. There is another reason, or, rather, a suggestion. Mr. Turner. That would have been an inartificial way of dealing with a dependent island. ARGUMENT OF JACOB M. DICKINSON. 737 Mr. Dickinson. Certainly it would, but, if this* Treaty had not been made in an inartificial way, we would not be here to-day. The whole profession of the law has its life simply because people deal with and write things in that way, and nearly every controversy in the law books calling for construction or interpretation is simply because people do not anticipate and do not write documents properly. I remember that on one occasion I submitted a paper to a lawyer in whose office I was. He said, " I do not think that is quite clear." " Wliy," I said, " this means so-and-so." " Oh yes; I understand it, and you understand it, but that is not the way for you to draft it. You must write it so that no fool can misunderstand it." I admit that it might have been an inartificial way, and that may not have been the true reason. I only started out to demonstrate that ml the reason given by the Attorney-General was not a good one. I thought I ought to offer a selection, and acting on that idea, I proceed to give one more, and it is this. I do not put it as having any great force. If this Treaty had been made between English and American negotiators, familiar with the administration of one land of law, one system of evidence, they would have said at once that when you say the line shall begin at the southernmost point of Prince of Wales Island, at 54 degrees 40 minutes, the words 54 degrees 40 minutes are mere words of description, and when you have designated the natural monument, that prevails over mere words of description, as stated by the Attorney-General. I would agree that as between American and English lawyers there would be no controversy about that, but I do not know Avhether these were lawyers at all or not, and whether M. Matusevich, who seemed to have such a facile way of altering this Treaty, was a lawyer. He may have thought this: " This line is to start at the southern part of Prince of Wales Island at 54 degrees 40 minutes, and some controversy may come up about this, and the question may be in doubt whether it was really to begin at the end of the island or at the 54 degrees 40 minutes." He might have anticipated that Mr. Watson would argue that it was to begin at 54 degrees 40 minutes, and that somebody else, the Attorney-General, for instance, would say it is to begin at the end of the island. And so, as he did not know which view would really prevail, he, ex abundanti cavtela, inserted the saving clause. I do not know how a Russian lawyer would look at it—they may have attached more importance to the parallel than we do. It may be that the very converse of the rule that prevails with us prevails with them. So he may have written that in because the whole island was, in any event, to go. As I said, I do not attach very great importance to that suggestion, but I do insist that when the original draft of the Treaty provided that the beginning should be at the two southernmost points, and still it said the line is to go north, and then the Russians put in the saving clause about the island, they did not do it because they understood that it was to go at once " au nord." While that position was taken in the Attorney-General's argument, and enforced with a great deal of ingenious reasoning, for the purpose of demonstrating which was the proper channel, and although S. Doc. 162, 58-2, vol 7 17 738 ALASKAN BOUNDARY TRIBUNAL. ■ the Attorney-General in his opening argument gives weight to it, yet I feel that he has almost taken it out of the controversy, as appears on the 50th page of his argument. A colloquy took place between him and Mr. Aylesworth—Mr. Aylesworth said:— «/ ms 663 Before leaving that letter, Mr. Attorney, can anything be said in the way of explanation of the phrase in the opening paragraph?—"A line drawn from the southernmost point of Prince of Wales Island from south to north through Portland Channel." Sir Robert Finlay. Well, that is a matter on which I have thought a good deal, and the conclusion I can arrive at is this, that the point at which the.line was ultimately to get at the head of Portland Channel is a good deal to the north. The President. Yes. Sir Robert Finlay. And therefore he sa^s this to get to a point to the north. The President. In a northerly direction, so to speak. The passage continues to the middle of p. 51, and the substance of it is that his line goes a little to the north, which he says is a concession to the words of the Treaty. He says: But after all the true meaning of this article is that the line gets to a point very considerably to the north of that at which it started. But if what has been said bv the Attornev-General does not take it ms m7 out of controversy, I think Mr. Robinson has done so entirely. Mr. Aylesworth. Perhaps, if it will not interrupt your argument, I would point out what was in my mind at the time of that colloquy, and what occurs to me upon your discussion of this parenthetical provision about the whole of Wales Islands belonging to Russia, notwithstanding they were starting from two points. There were two points as shown by Vancouver which were very nearly in the same latitude. They were proposing to make the two of them the southern extremities of the island, the point of commencement. There might be discussion some day as to whether the eastern or the western was to be the actual starting point. If they took the western, and the line from it were to ascend " au nord," there would be danger of cutting off some part of the island, and that is what they were guarding against. Mr. Dickinson. I can hardly conceive that where they said two points they thought that a line could be drawn so as to cut one of them off. I think the only way would have been to draw it from one ml ml to the other, and then go to the next point. Mr. Aylesworth. That would be starting from the eastern point of the two. Mr. Dickinson. Yes, and if they started from the easternmost point you could not cut the island. Now, Mr. Robinson said, on p. 453 :— Now, there is no doubt in the world that that is not a description which any lawyer, or any intelligent surveyor, or any lawyer's clerk would put in a deed. It could not have been framed by anybody who had before him, or in his mind's eye, the features of the country, or thought exactly what he was speaking of. But I have never seen myself that there is any serious difficulty about it. If I may illustrate it by a very common example:—If I were standing on Pall Mall, for instance, at the foot of St. James's Street, and I asked a man where Leicester Square was, and he said, "Why, you go east along Piccadilly "—well, I should have thought the first thing for me to do was to get to Piccadilly; and I think here the direction is implied—go to Portland 664 Channel, and then go north along it, that is all. I cannot understand exactly—I do not mean to say, as I have said before, that any man, ARGUMENT OF JACOB M. DICKINSON. 739 thinking, you know, and laaving the things before him, would have drawn such a thing; but I think it simply means, " Go to Portland Channel, and go north along it." You cannot go north along Portland Channel till you get to it, and you are told to go north along it. Well, it seems to follow that it is an invitation to go to Portland Channel, and then go north along it. And that is the way in which I should have looked at that without any question. Now, for me to attempt to add anything to that argument would be like gilding refined gold. I shall not attempt to do so. It takes away whatever force there may be in the contention that the provision to go north is demonstrative of what they meant by the Portland Channel. The second proposition advanced at very great length by the Attorney-General to sustain the yiew that by " Portland Channel" they meant the northern passage, was that Vancouver's narrative was before the negotiators. And I take it that he meant not merely that it was known to the negotiators and before the negotiators, but that it was before them in such a sense that this Tribunal would be authorized in saying that it affected their minds, and that they were guided by it in using the language which they did, for otherwise there would be no value in the suggestion. To say that anything is known to a man, or that it is before him, in an argument of this sort, it must be shown that it was before him in such a sense that we can assume that he was instructed and influenced by it. The Attorney-General says on the 9th page (83) of.his argument:— Now, what is suggested on the other side? It is said there is no evidence that Vancouver's, narrative was before the negotiators, and that the narrative may be injected—that only the charts are what the negotiators probably looked at. Now, in the first place, I submit that the probability is absolutely overwhelming that Vancouver's narrative was not only before the negotiators, but had been most carefully considered by them. And then at p. 85 he says: I think I can give the Tribunal affirmative evidence that that narrative was before the negotiators. Now, mark the words " carefully considered by them." That is the proposition that he started out to prove, and I take it that it is an important one in connection with this argument. If he has demonstrated to this Tribunal that the negotiators did have the narrative before them and that they carefully considered it, of ml ms J course it goes a long way to sustain the British contention in regard to Portland Canal. I think that I will be able to show that no such demonstration has been made; that it is either of a purely negative character, or at least insignificant so far as it tends to sustain that proposition. The first evidence that he adduced was based upon a letter written by Baron Tuyll, in October 1822. That letter has been read. I shall not trouble the Tribunal by reading passages from it now that are familiar to them, but the letter, which is at p. 112 of the United States' Case Appendix, mentions Observatory Inlet, and, after suggesting another line, it suggests that the line be drawn— * * * better still, at the southern point of the archipelago of the Prince of Wales and the Observatory Inlet, which are situated almost" under that parallel. Now, let us see how that sustains the proposition that the narrative was not only before the negotiators, but " carefully considered by them." In the first place, is there any evidence that Baron Tuyll 740 ALASKAN BOUNDARY TRIBUNAL. had ever read'Vancouver's narrative? The Attorney-General says on p. 27:— But I call attention to this passage, not merely for that purpose, but also for the purpose of showing that Baron Tuyll had really read Vaucouver's narrative. Observatory Inlet was described minutely by Vancouver, and named by him as extending to the sea; and we find the Russian Minister as early 665 as October 1822, proposing as the two points the southern point of Prince of Wales Island and Observatoiy Inlet. That must be the mouth of Observatory Inlet. It cannot be any point of Observatory Inlet opening into another inlet or away from the sea. It must be the mouth where it opens into the ocean. That he must have got from Vancouver, and that proposal was thrown out. Let us see if that is a sound proposition. He says:— The mouth of Observatory Inlet must be where it opens into the ocean. Well, suppose it was, in fact, away from the ocean, as we contend. The mouth would be wherever the mouth was, and if the mouth of that inlet was sixty or seventy miles from the great ocean, it is useless talking about it not opening into any arm of the sea, and saying that it must have opened into the ocean. I contend, so far as this letter is concerned, that everything he says there he could have got from the examination of Vancouver's map. Look at Vancouver's map, and then look at the letter of Baron Tuyll's. He says that Observatory Inlet lies under the 55th parallel. Look at the 55th parallel, and look at Vancouver's map, and you will see that the mouth of Observatory Inlet falls on that map exactly under the 55th degree. It is true that Baron Tuyll also says thatethe southern part of Prince of Wales Island falls under the 55th degree, but, as a matter of fact, it does not. It did not on the Vancouver map, and it does not on any map. If he properly designated one place where it fell, why should we not take it as conclusive that he got at least that much from the map, and not undertake to show that he meant some other inlet by pointing out and relying upon a mistake as to the location of Prince of Wales Island in reference to the parallel? He could have got that location of Observatory Inlet from the map. There is no evidence there that he ever got it from Vancouver's narrative at all. Mr. Aylesworth. Let me, Mr. Dickinson, direct your attention to what I conceive the Attorney-General was arguing from that letter. I might premise by sajdng it does not occur to me that there is anything in that letter which he could not have got from Vancouver's map, but he seems to be suggesting two alternative lines to his principal, Count Nesselrode. He says: " Get as far south as 55 degrees if you can, or, better still, go to the southernmost point of Prince of Wales Island and Observatory Inlet": and I understood the ml 7 Attorney-General's point was that that was a line practically parallel to the 55th degree, and shows that Baron Tuyll, the writer of the letter, understood the mouth of Observatory Inlet to be opposite the southernmost point of Prince of Wales Island. In other words, at the sea. Mr. Dickinson. That is hardly consistent with his very positive statement that the mouth of Observatory Inlet is situated almost under that parallel, and if we look at Vancouver's map we see that it is exactly that way. Mr. AYLEsyvoRTH. But he says the two of them—that is,.the southernmost point of the archipelago and the inlet—are situated MH ARGUMENT OF JACOB M. DICKINSON. 741 almost under that parallel, and one is, in fact, just as near to the parallel as the other. Mr. Dickinson. But neither the southernmost point of the archipelago nor the mouth of the channel that Great Britain contends was Observatory Inlet was situated under the parallel. Mr. Aylesworth. That is certainly true. 666 The President. However, you say you may take 55 degrees for Observatory Inlet, and negieet it for the Prince of Wales Island. That is your argument. Mr. Dickinson. I say if he looked at the map he saw that Observatory- Inlet falls just under 55 degrees. If he had wanted to designate that body of water he could do it by looking to the map alone, and therefore he designates it, looking at the map, as Observatory Inlet, which falls exactly under'the 55th degree. The President. Very well. Mr. Dickinson. But I do not regard that matter as one of very great consequence, because Baron Tuyll was not one of the negotiators, and, even if he had read the narrative, and made this statement to Count Nesselrode, it would not be proof that Count Nesselrode had ever read the narrative at all, and it seems to me a matter of the utmost insignificance, because one man had read the narrative and made a statement to another man, that it goes to prove that the latter had read the narrative. If we are going to assume the erudition of people in that way, we would, all of us perhaps, get the reputation of being more learned than the greatest pundits. If, when people have told us of things in the books they had read, all the knowledge that is contained in those books is then to be imputed to us, the British Museum would hardly contain all the information that we would be supposed to possess. But that evidence would not be considered for a moment in any issue—I do not care if the matter in dispute was less than 5 dollars—to prove that one man knew what was in a book because another man had read the book and mentioned something that was in the book to him. I then pass to the next evidence, that Vancouver's narrative was not only read, but carefully considered, by the negotiators, because that is the proposition that I am dealing with—and that is a letter by M. de Poletica. Of this the Attorney-General says, on p. 87 of his argument:— Now, the next point that I desire to bring forwai'd in this connection, as showing that the narrative must be taken to have been before the negotiators, is the despatch of M. Poletica to Mr. Adams, dated the 28th of February, 1822. That will be found in the United States' Case Appendix, p. 33. It begins at p. 32. It is 1 paragraph in the middle of p. 33. It begins:— " In 1763 the Russian establishments had ali'eady extended as far as the Island of Kodtak (or Kichlak). In 1778 Cook found them at Ounalaska, and some Russian inscriptions of Kodiak. Vancouver saw the Russian establishment in the Bay of Kinai. In fine, Captains Mears, Portlock, and La Peyroux unanimously attest the existence of Russian establishments in these latitudes." Now, I Kenai" is the Russian name for " Cook's Inlet." In the first place, that has no reference whatever to Portland Canal. Vancouver wrote three volumes. M. de Poletica, who took part in these negotiations, was examining into the question of establishments, occupation, ownership by discovery. Now, if, examining as to. those features, he had read that part of the narrative, would that be any evidence that he had read any other part of it? How often 742 ALASKAN BOUNDARY TRIBUNAL. do we go to books to find a particular thing, and when our eye is travelling over the pages in such search we read of many things, but they make no impression upon us. They go through the eye, but they make no impression on the mind. A lawyer's mind would be overburdened if it was loaded with all" he saw when he was following the track of a particular inquiry. So there is no evidence in the world that M. de Poletica, because he traced that particular feature, even if he read Vancouver's narrative, and got his information from it, ever read anything about Portland Canal. Vancouver 667 refers to these settlements in his third volume, p. 140. - He treats of Portland Canal and Observatory Inlet in the second volume at p. 325. Yet the Attorney-General says that that is evidence that the negotiators had not only before them Vancouver's narrative, but carefully considered it; of course, he meant carefully considered it in connection with this question of Portland Canal, for that was the matter of inquiry. The President. We will break off now. [Adjourned till Monday at 11 a. m.] 668 SIXTEENTH DAY.—MONDAY, OCTOBER 5, 1903. All the Members of the Tribunal were present. The President. As some members of the Tribunal will no doubt wish to attend the service at St. James's Palace, and no doubt others who are not members of the Tribunal, at 2 o'clock, we think it will be most convenient if we sit at half-past 10 to-morrow till a quarter past 1, and then do not come back again in the afternon. Mr. Dickinson. That will be entirely satisfactory, Mr. President. The President. That will be convenient to you, Mr. Attorney ? The Attorney-General. Certainly, my Lord. Mrl Dickinson. Mr. President, when the proceedings adjourned on Friday afternoon I had just closed that part of the discussion which dealt with the argument of the Attorney-General upon the letter of M. de Poletica, which he relied on to show that the negotiators had read Vancouver's narrative, and I was proceeding to discuss the same proposition that he advanced in connection with other proofs that were relied upon by him, and I think it is proper that I should restate it. It was that the negotiators not only had before them Vancouver's narrative, but, as he expressed it, carefully considered it, and the inference was that it influenced them in the determination of the question particularly under consideration, and that was what was intended in the Treaty by the term " Portland Channel." The next point that he made in this connection appears upon the 25th page of his oral argument, which I will read:— Now, that is important, because in the materials laid by Mr. Pelly, on behalf of the Hudson's Bay Company, before Mr. Canning, there was included the Memorandum inclosed in his letter which is set out at pp. 25 to 28 of the British Case Appendix; and in that Memorandum reference is repeatedly made to the researches and discoveries of Captain Vancouver. Now, a point is made, and if it can be established it would be a very important one in the United States' Case, that the Vancouver narrative was not before the negotiators. It is asserted that it is not shown that it was before the negotiators. Now, in this Memorandum of Mr. Pelly's, reference is over and over again made to Vancouver's narrative in terms which leave no doubt whatever. That Memorandum formed part of the materials laid before the Duke of Wellington, and the Tribunal will find that the very same terms which were laid before the Duke of Wellington were materials afterwards to be supplied to Sir Charles Bagot for his use in the negotiations. Now, in these materials were references to Vancouver's narrative. And again, on p. 32 of his oral argument, he says:— Exactly, my Lord, and the particular point I wish to emphasize at present is that he [Bagot] had Vancouver's narrative. 669 I insist that it is a far-fetched conclusion to say that either Sir Charles Bagot or Mr. Canning had Vancouver's narrative, simply because it is shown that they had before them Mr. Pelly's Memorandum, which referred to it. At any rate, taking it as a 743 744 ALASKAN BOUNDARY TRIBUNAL. 1 HTel probative fact it would go no further than to show that their attention had been called to the existence of such a book as Vancouver's narrative. That is all that this circumstance would prove, but if they examined the narrative at the pages to which reference was made it is very clear that it had nothing whatever to do with the question of Portland Canal; the references referred merely to settlement and occupation. Now, doubtless, for the purposes for which they were then looking at the Memorandum, they satisfied their minds by inquiries on that subject, and it is not to be presumed because their attention was called to a particular part of Vancouver's narrative that they went away from the particular subject-matter suggested to their minds and read all through the narrative. The very opposite is a reasonable conclusion, it seems to me. Where persons in that position, overwhelmed with the vast details of the demands of their office, have laid before them a Memorandum made by a competent person on a particular point, the presumption is that reliance is put upon the Memorandum for the particular purpose for which it was made, anel that they satisfied themselves with it, and made no personal investigations at all. I say that that is the natural inference that would follow from the ml fact that they had such a Memorandum before them, and. so far " 'a from showing that they went further than the Memorandum and made researches into other matters that had no reference to it, the fair conclusion is that they took the Memorandum as entirely satisfactory on that point, and did not go behind it. But this Memorandum is absolutely valueless as evidence that anyone read A^ancouver's narrative except the person who made the Memorandum. I mean to say, that if that were presented as evidence upon the trial of such an issue, it would not prove that people who had read the Memorandum had also read Vancouver. The most that can be said is that it proves that the person who made the Memorandum had read Vancouver. And still that is adduced as a very important piece of evidence to establish the fact that those negotiators, because some of thehi saw this Memorandum, had themselves read Vancouver. But suppose that they had read Vancouver in respect of the particular matters called to their attention. That would not show that they had read Vancouver's entire narrative, and had acquired such intimate knowledge of it as would justify the Attorney-General in the statement he has made, that that is evidence to establish the fact that they not only had Vancouver before them, but relied upon it in making the Treaty. In his oral argument, on the 90th page, the Attorney-General said:— Now, I come to the knowledge of the American Minister, Mr. Middleton, and I will cite from a Memorandum which he prepared, dated the 1st December, 1823, which was for communication to the Rusian Government, and was actually delivered to the Russian Government, in which a reference is made which must be to Vancouver's laarrative. I will give the reference first to Vancouver's narrative and then show that it was transmitted to the Russian Government. This was not evidence of anything except possibly that Mr. Middle- ton had read Vancouver's narrative, and, as we all know, Mr. Middleton was not one of the negotiators. Then it was entirely valueless to establish the proposition which the Attorney-General advanced that the negotiators not only had before them, but relied upon, Vancouver's narrative on the subject of Portland Channel. ARGUMENT OF JACOB M. DICKINSON. 745 The Attorney-General's argument seems to proceed upon the idea of constructive notice, that is to say, if you bring to one's attention a certain paper, you not only affect him with knowledge of the contents of that paper, but with the knowledge of everything to which that paper refers. That is a very safe principle to apply in a case of lis pendens. That is to say, if a person enters into relations in respect of property which is in litigation he is affected with knowledge by constructive notice of everything that has taken place in those proceedings. So, if a man is examining a title, and in the chain of title there is a reference in a deed to a will or another deed, whether 670 or not he sees the will or deed, he is presumed to know the contents of such instrument. The Attorney-General seems to apply that doctrine to this nature of proof, and to assume that, because this Memorandum referred to Vancouver's narrative, every one who saw the Memorandum must have read the narrative, and must have acquired an accurate knowledge of all the statements made in it. The next point relied on for the purpose of showing that Vancouver's narrative was known to those negotiators is one upon which great stress is laid by the Solicitor-General, and that is that in the second English edition of Vancouver's narrative, the words " Portland Channel" appear instead of " Portland Canal," which had appeared in the previous edition, and that inasmuch as " Portland Channel" was first used by the-Russian negotiators, it is to be concluded absolutely, without admitting the probability of any other explanation whatever, that these Russian negotiators must have got this knowledge out of the second English edition, and that because they got it out of the second English edition they must have read it carefully and studied out the whole line of travel pursued by Vancouver, and all the minutiae relating to the naming of Portland Canal and Observatory Inlet. ml The Attorney-General refers to this in his argument, but he does not by any means lay so great stress upon it He observes on p. 40:— I ought to observe, in passing, that I think the expression " Portland Channel '! hei*e appears for the first time in the course of the negotiations. Sir Charles Bagot had used the expression " le Canal de Portland," and the Russian Plenipotentiaries, in their first " contre-projet," had spoken of the Portland Canal. Well, it is a small circumstance, but it goes, with a laumber of other circumstances, to show that Vancouver's narrative was before the Russian negotiators, because it will be found that the expression " Portland Channel " occurs for the first time in the second English edition of Vancouver. Now, he admits, and I think we will all agree with him, that it is a very small circumstance, but he says, that if this circumstance be taken in connection with other circumstances, it goes to make out a chain of evidence. But what are these other circumstances ? I have already discussed them. One is Mr. Pelly's Memorandum, another is the letter of M. de Poletica, and another is the Memorandum of Mr. Middleton, and I say that they have no probative effect whatever, and so this "small circumstance V is collocated with other circumstances which have no significance whatever, and stands alone and unsupported. It is entrely too slender a foundation on which to build such a superstructure and such a conclusion. Now, it may be that the Russian negotiators got this term from the second English edition; that is a possibility. It may be that they got it in some other way. The name " Portland Channel' ™ ■ 746 ALASKAN BOUNDARY TRIBUNAL. tion. )? appeared in the written negotiations after a verbal conference with Sir Charles Bagot, in which it was suggested that the terms of the pourparlers be reduced to writing. . It is entirely possible that he may have used the term " Portland Channel |j in this interview, and so when they prepared their " contre-projet," they may have used this term on account of what was said at this colloquy. Well, I do not say that that is the true explanation, but where a thing may come about in so many different ways, are we to assume absolutely that because they used that term they must have gotten it in one particular way and ignore every other possibility ? We know from our own personal observation how often things happen to which plausible explanations are given, which explanations, however, upon a full knowledge turn out to be erroneous. To illustrate that idea, I remember once that I was with a Professor of conchology, and we were pretty high above the bed of a river, and found a snail, which he grasped yvith the greatest eagerness, saying that it was most wonderful. I asked him what the wonder was, and he said it was that that snail should be at that elevation, as a snail of that species had never been found at that elevation in that territory, and he was going to write a treatise on the subject. " Well," I said, " Professor, you see those waterworks up there; there is a leak in the reservoir; do not you think that the snail may have been pumped up out of the river and got into the reservoir, and came down 671 through that crevice and thus got so far above the river bed ?' He said, " Yes, that is an absolute solution of the whole ques- Jumping to a positive conclusion in a matter of this importance, and giving such effect to such a circumstance and saying they must have read Vancouver's narrative because they used the word "Portland Channel" is to exclude every other possible explanation. I do not say that it did not happen in that way, but I say we cannot presume conclusively that it happened in that way, and deduce from it such serious consequences as would follow in this case. As against this presumption, as against all of these other fragile proofs that they read Vancouver's narrative, I mention one fact that stands out in great prominence, and that is, that although they referred to his charts, there is not a single word from the beginning to the end of these negotiations whereby they referred to Vancouver's narrative. I do not say that that proves that they did not read Vancouver's narrative; not at all: that would be drawing, I think, an unwarranted conclusion, but it is just as strong proof to my mind— indeed, it seems stronger proof than the evidence which has been adduced to show that they read Vancouver's narrative. Another point is made to show that they read the narrative. They used his charts. The narrative and charts were bound together. It is said that inasmuch as they examined the charts, and the narrative was bound with them, it follows that they must have read the narrative. That seems to be.a non sequitur. If you look at maps for a particular purpose, and if they answer that purpose, it does not follow that because a long narrative is bound up with them that you have read the narrative. Now, let us weigh that proposition and consider it. It must be borne in mind that there was no controversy whatever about the location of Portland Canal, and it is not probable that the mind of any MM ARGUMENT OF JACOB M. DICKINSON. 747 of the negotiators was addressed to any particular differentiation in regard to the two bodies of waters, which are the subject-matter of this controversy. If there had been a conflict, then we might well assume that they would not have acted without exhausting all accessible information on the subject. But yvhere there is no controversy, people do not put themselves to the unnecessary labour of investigating something which really has no sgnificance to thier minds. If the maps furnished them at a glance generally with the information that was sufficient to determine the particular thing that they had before them, it is a strained argument to say they must have gone beyond the maps which were sufficient, and that they burdened themselves with a minute investigation about something in regard to which probably they did not need any additional light. If one of these negotiators, after they looked at the maps which satisfied their purposes, had said to the others, " Have you carefully and minutely read all that Vancouver's narrative shows upon this subject of the Portland Canal?" it is not at all improbable that he would have received an answer, on account of the seeming unimportance of the proposed investigation, yrery much in line with an epistle which Mr. Lavard received. He had asked the Imaum Ali Zadi in ms regard to certain statistics, and his inquisitiveness was not only rebuked, but the answer which he received illustrated how useless it is, when one is satisfied with a particular condition of affairs, to burden himself with unnecessary investigations. The reply of the Imaum was as follows:— My illustrious friend and joy of my liver. The thing you ask of me is both difficult and useless. Although I have passed all my days in this place, I have neither counted the houses, nor have I inquired into the number of the inhabitants; "and as to what one person loads on his mules, and the other stows away in the bottom of his ship, that is no business of mine. But, above all, as to the previous history of this city, God only knows the amount of dirt and confusion that the infidels may have eaten before the coming of the sword of Islam. It were impossible for us to inquire into it. Oh! my soul! Oh, my lamb! Seek not after the things which concern thee not. Thou comest unto us, and we welcomed thee; go in peace. Of a truth, thou hast spoken many words, and there is no harm done, for the speaker is one and the listener is another. After the fashion of thy people, thou hast wandered from one place to another, until thou art happy and content in none. We (praise to God) 672 were born here, and never desire to quit it. Is it possible, then, that the idea of a general intercourse between mankind should make any impression on our understandings? God forbid! Listen, oh my son, There is no wisdom equal unto the belief in God. He created the world; and shall we liken ourselves unto Him, in seeking to penetrate into the mysteries of His creation? Shall we say, behold this star spinneth round, that star, and this other star with a tail goeth and cometh in so many years? Let it go. He from whose hand it came will guide and direct it. But thou wilt say unto me, " Stand aside, oh man, for I am more learned than thou art, and have seen more things." If thou thinkest that thou art in this respect better than I am, thou art welcome. I praise God that I seek not that which I require not. * * *—The meek in spirit.—Imaum Ali Zadi. It seems to me if anyone had suggested, when they had before them on the maps all the nformation that was necessary, that they should go into a minute examination of Vancouver's narrative, it would have been said that it was entirely useless, and that they would not seek that which they did not require. Looking at the different evidences which have been adduced by the Attorney-General, so far as I have been able to find them in this and I have gone over it diligently, I think this conclu- Argument, *4ttS ALASKAN BOUNDARY TRIBUNAL. sion which he reached is entirely unwarranted. He said on p. 94:— Well, I submit all these circumstances, when they ai*e added to the overwhelming probabilities of the case, tend only to establish completely that the negotiators must be taken to have arranged the terms of their Treaty with Vancouver's narrative before them. I do not know what the overwhelming probabilities are, because he did not enlighten us upon that point, but I have undertaken to analyse the different proofs relied upon by him to show that Vancouver's narrative was before the negotiators and relied on by them, but I respectfully submit that they entirely fail to establish any such proposition. He has found some comfort, however, in the fact that the United States, in its written argument, referred to Vancouver's narrative, and he commented upon it in these words at p. 97 of his Argument:— I may just add, by way of clinching this matter, that I observe that in the United States' Argument they refer to the narrative as throwing light upon the negotiation in one or two passages. Of course it is perfectly plain why the United States referred to Vancouver's narrative. The position taken by the United States— I would like to be understood upon that—was that it was not shown that Vancouver's narrative was before the negotiators and relied upon by them. Of course we did not know what might be developed in the Argument on this subject; we did not know what view this Tribunal would take upon the question, and in the event that they should conclude that the narrative was to be looked to, we wanted to get whatever benefit might result from such a conclusion, and therefore conditionally we referred to it. We did not thereby admit that it was before the negotiators and was relied upon by them. Now, my own idea—it may be entirely valueless—on this subject of the narrative is this: I do not think that it is to be presumed for a moment that such able and enlightened men as Mr. George Canning, Mr. Stratford Canning, and Sir Charles Bagot knew nothing of Vancouver's narrative; I do not wish to impute such crass ignorance as that to them. Vancouver was a captain in the English navy; he had made one of the most memorable voyages of discovery that had ever been known, and I think the presumption is irresistible that every enlightened man of the time knew in a general way about Vancouver's narrative, but knowing about Vancouver's narrative and knowing all the minutiae and details with regard to the naming of these inlets are entirely different propositions. If the negotiators had before them sufficient to enable them to proceed in the consideration of this Treaty without spelling out everything in connection with that narrative there is no reason to suppose that they read it in that connection. 673 I have no idea that any man of that time, unless he was some navigator or some geographer, gave half the consideration to Vancouver's narrative that the lawyers in this case and the members of this Tribunal have given to it, and I will venture to say that not one of us has up to this time read the whole of Vancouver's narrative. When the issues were made up, it was necessary to read the passages therein bearing on those issues, but we cannot assume ARGUMENT OF JACOB M. DICKINSON. 749 that everyone who sought to inform himself on those issues was affected with the knowledge of all the information contained in those three volumes. I think we would all say that such a suggestion would not for a moment receive any credence, and yet when the necessity was much less, when, in fact, there was no necessity at all (as I shall show when we come to consider the maps), we are asked to assume that the negotiators must have mastered the details of the narrative. There was one proposition advanced by the Attorney-General which is a little foreign to the particular line of thought that I am now following, but as it stands apart by itself, it may be just as convenient to take it up now as at any other time. He put forward the theory—a novel one, as it seemed to me—one which, if there is anything in it, entitles him to the credit of being its discoverer—that the line was not to go up Portland Channel at all, and that the words I le long de la passe " -did not mean along the water of the channel, but upon the land. On the 99th page of his argument he says:— Well " le long de la passe," I apprehend, rather indicates going to the side of the pass than in the middle of it. I am sensible that French is a native language in many parts which are concerned in this conti'oversy, and I speak with deference, but I apprehend that when one speaks of " le long de la passe," it corresponds really to the English expression " along the pass," and rather suggests going by the side of it, so that I suggest to the Ti*ibunal that even if this view here thrown out were to prevail, that you have regard to the pass, that what they were dealing with was not the details at this point, but the mainland, if that view were to prevail that " le long de la passe " should be drawn to the north of Pearse Island. Sir L. Jette. Well, that is exactly the meaning in French. " Le long de la passe " would mean on land. Mr. Dickinson. I would not, of course, question such a high authority upon the French language; but I will undertake to show that the negotiators were not as good French scholars as your Honour, and that they attached an entirely different meaning to the expression. I am just coming to that point, but I will conclude the statement of the Attorney-General. He says on pp. 110 and 111:— It seems extremely impi'obable that they should have taken a channel of that kind,which is divided naturally into two,without saying which it is they meant; but even if that view could be accepted for one moment, I call the attention of the Tribunal again to the fact that it is nowhere said that the line is to run in the middle or in the deepest part of the channel. The expressioia is that the line is to go " along the Portland Channel." I apprehend that the words "along the Portland Channel" would rather denote by the side of it, and as everywhere fixing the boundary of the mainland. Well, if the whole body of water were Portland Channel—and that is one view that may be drawn from the maps—it does not show on which side it would go, and it might go on the southern side as well as on the northern side and in fact there is good authority, as I shall show afterwards, why it might go on that side. 7 ml *D CD _ Sir L. Jette. If you put it on the south side you would have to cross Observatory Inlet ? Mr. Dickinson. Yes, certainly, but if Observatory Inlet were a mere subordinate part of Portland Channel, and that is the 674 view in which I am suggesting it, if it were a mere subordinate part of the great arm of the sea it would be swallowed up in the general term Portland Channel, But I think it is hardly nee- \ E* Up' ■^ * 11 ' 750 ALASKAN BOUNDARY TRIBUNAL. essary to pursue that line of investigation. We have evidence of exactly what the negotiators meant by that term. I am quite certain that the ideas advanced by the Attorney-General- would have been very surprising to Mr. George Canning or Sir Charles Bagot, for they have both put upon record what they meant by this expression. Mr. Lodge. Mr. Dickinson, just before you leave that, supposing it had been drawn along the north side of the channel, north of the island, would it not have crossed a large inlet? The objection was made that if it were drawn on the southern side it would have crossed a large inlet, but is not that equally true on the northern side? Mr. Dickinson. Yes; there appear to be two inlets there, unnamed inlets. Mr. Lodge. Is there more than one ? Mr. Dickinson. There are two inlets. Mr. Lodge. I mean, is it not true that the objection that it would cross an inlet anywhere is just as effective on one side as on the other? Mr. Dickinson. The only difference is that Observatory Inlet is ml ms named, and these two were not named. Mr. Lodge. Were not named then. Mr. Dickinson. But in every other respect I think that the criticism is a just one, but I think that there is a complete answer, and that is found in what the negotiators themselves put on record in regard to the way in which this line was to proceed. Sir L. Jette. They both say—Sir Charles Bagot and Mr. Canning—I believe they both say—they speak of ther middle of the channel. Mr. Dickinson. I was just going to read. Sir L. Jette. But this was not accepted in the Treaty. The words in the Treaty are, " le long de la passe." Mr. Dickinson. Yes, but the language was never changed, and when they referred to these exprssions, the middle of the channel, they referred to the proposition as it was then made, and that proposition was never changed or altered. Sir Charles Bagot in his amended proposal at p. 159 of the Appendix to the American Case says:— ml 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 pi*oposal made by the Russian Plenipotentiaries, that a line of demacation drawn from the southern extremity of Prince of Wales Island to the mouth of Poi'tland Channel, thence up the middle of this channel until it touches the mainland. Sir L. Jette. He calls the mainland the head of the channel. 675 Mr. Dickinson. The head of Portland Channel; he calls that the mainland, but the understanding very clearly expressed by him was that it was to proceed not on the land to the north, but that it was to proceed up the middle of the channel. Sir L. Jette. Oh no. Mr. Dickinson. And there is a despatch to the same effect on p. 181 of the Appendix to the American Case. There is a statement made by Mr. George Canning, in a letter to Sir Charles Bagot, in which he says that— His Majesty's Government have resolved 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 ARGUMENT OF JACOB M. DICKINSON. 751 southernmost point of Prince of Wales Island from south to north through Portland Channel till it strikes in latitude 56 degrees, thence following the sinuosities of the coast. I say there can be no doubt whatever as to what both Mr Canning and Sir Charles Bagot understood as to the way that line was to proceed in respect of Portland Canal. Sir L. Jette. But in some other parts of the despatches you will find that Sir Charles Bagot was very anxious that England should preserve both sides of the channel. He mentions that himself. Mr. Dickinson. Not subsequent, however, to this—not subsequent to this proposition—at least, I cannot recall any such reference as that. . After the proposition was made by Count Nesselrode, as I shall undertake to show in another connection in regard to the line proceeding up Portland Channel, there never was any controversy on that question, and never any point made as to how the line should proceed up Portland Channel. Now, with the language put in by Mr. Canning himself, and with this explanation put on record as to how the line should proceed, it seems to me if we are going to say that, in the face of that declaration, he wrote down these words on the understanding that it was to proceed along the land instead of along the channel, then in all the negotiations you might as well strike out the significance of every term and every expression that can be evoked to throw light upon the meaning of the Parties in reference to the language subsequently put into the Treaty. I now come to the proposition that, there having been, as I contend, a total failure to demonstrate that the narrative was read and relied upon by "the negotiators, and it .being highly improbable where there was no controversy, and where the maps were sufficient for their purpose that they went to the narrative for the purpose of explaining a matter which, so far as they then could have regarded it, was perfectly plain upon the face of the maps, we must look to the maps as of the utmost significance in reaching the conclusion as to what they meant by the term " Portland Channel." We have every reason to believe that the Vancouver maps were before them. The Langsdorff map has been referred to as having been before them, but that map is, as we all concede, entirely valueless, and we may eliminate it from all consideration. The Arrow- smith maps which have been published in the Atlas of the United States and of Great Britain may have been before them, and in determining the question of what the maps speak, they cannot be ignored or thrown out of consideration. The Arrowsmith maps are referred to in the negotiations. In addition to these maps, undoubtedly there was before them the Faden map, that is. to say the map published in 1823 by Wylde, the successor to Faden. This map is one of the utmost importance, and if it can be shown with reasonable certainty that it was before the negotiators, and considered by them, it goes very far towards enabling the Tribunal to reach a solution of the most vexed questions under consideration. There are certain evidences that this map was before the 676 negotiators, and I shall now proceed to call them to the attention of the Tribunal. Sir Charles Bagot, in an interview in October 1823 with M. de Poletica, placed himself before the geographical map which was at hand, and designated on that map the intersection of 135 degrees west longitude with the 57th parallel ALASKAN BOUNDARY TRIBUNAL. north, and M. de Poletica says that that was the exact location of New Archangel. Now, we have that fact standing out uncontro- verted. If you will turn to the Faden map—I will, not trouble your Honours to do so now, because the inquiry will require an examination of all these maps—it will appear as a fact tfeat the Faden map is the only one of the maps which we have any reason to believe was before the negotiators which shows the coincidence of these two lines at the point where New Archangel was shown to be situated. Mr. Aylesworth. Mr. Dickinson, I have the Russian map of 1802 before me, and I think that statement would be true of it. The President. That map certainly was before the negotiators. It is referred to in terms Mr. Aylesworth. And it would be the natural one, one would think, that M. de Poletica would have in his own office. Mr. Dickinson. I think that a careful examination will show that your Honour is probably mistaken as to that. Mr. Aylesworth. Of course, New Archangel is not shown Mr. Dickinson. It is not shown. Mr. Aylesworth. By the mapmakers. Mr. Dickinson. I understand, but the point I made was that New Archangel was shown on the Faden map, and that he indicated the point where New Archangel was, which was where the parallel and meridian crossed. Mr. Aylesworth. I understood the letter of M. de Poletica to mean this—that the point on which Sir Charles Bagot put his finger would, in fact, be New Archangel—not that New Archangel was marked at that point. Mr. Dickinson. The passage is in the United States' Appendix, p. 140 :— Chevalier Bagot then placed himself before the geographical map which we had at hand Mr. Aylesworth. " Which we had under our eyes " is the original. It does not signify. Mr. Dickinson. I presume that it meant the same thing. Mr. Aylesworth. Certainly. Mr. Dickinson. " Had at hand " would be a figurative expression for the statement 1 they were looking at it ":— 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. Mr. Aylesworth. Not appeared to be on the m ap. Mr. Dickinson. Now, this Russian one of 1802 is a chart, and the one of Faden is a geographical map. So if you give effect to the exact terms used that he placed himself before a geographical map—and the Faden map was a geographical map, and not a chart—it seems to me that that goes to sustain the contention that it was the Faden map which they had. That is a matter, I take it, however, that the members of the Tribunal will look into for themselves. I have not asked for a comparison of the maps, because it would unduly waste the time of the Tribunal. It was stated by Mr. George Canning, prior to the negotiations of February and March, that he considered it the most authentic, and Mr. Pelly had the ARGUMENT OF JACOB M. DICKINSON. 753 Hudson's Bay Company's posts marked upon it, as he stated to him in his letter of the 16th January, 1824—that occurs in the British Case Appendix, p. 65. Now, is it not reasonable to suppose that, as Mr. Canning stated in the correspondence*—and Mr. Canning was the head of the British affairs in these negotiations—that this was the most reliable map; certainly it would have been looked to by the British representatives in concluding the Treaty? That is additional evidence. I admit that it is not conclusive, but it is a strong circumstance taken in connection with the other facts to which I will allude to establish that they had before them and relied upon the Faden map. The Faden map shows that the boundary extended north from Portland Canal to the ridge of the mountains approximately where the chain intersects the 56th parallel. If you will examine the Faden map and extend the line north from Portland Channel, it strikes the mountains just about the foothills, not at the crest,-but it strikes the mountains if you go immediately north to the 56th degree.- I have ml CD ml O laid down upon this map in pencil the 56th degree. Everyone who has been studying these maps understands that you cannot look with your eye and locate latitude accurately; you must take a scale and make the measurements. I have had that done, and I am sure that it is accurately done, and if you follow up upon this map the prolongation of the middle line of the channel of Portland Canal in the direction which it appears to pursue, you will see that it intersects the 56th degree, just about at the foothills of the mountains. I am looking at No. 10, but No. 10 and No. 11 are exactly the same; they are made on the same plates. The President. Yes, but they are turned different ways; if you will kindly look, the words you are looking at—Walker's Cove. ml 7 ml CD Mr. Dickinson. That is to the left. The President. I know it is; it is not on the same position. Is that on the line of 56 degrees or south of it ? Mr. Dickinson. It is a little south of it. The President. I was not suggesting that was the point you meant Mr. Dickinson. I only wanted to identify where you put the 56 degrees. Mr. Dickinson. Will you look at it? The President. Yes, we will look at it. No doubt it is right. It is only just above Walker's Cove. Mr. Dickinson. Yes, just above. That map is only on a very small scale. The President. Just through the letter " N," just above Walker's Cove. 678 Mr. Dickinson. Yes, and just about coincident with * the shading of the mountains. Now, they evidently thought when they made the Treaty, that Portland Canal would reach about to the mountains. Vancouver's map showed the mountains between the head of Portland Canal and the 56th degree, so if any significance was given to the idea expressed by them that they were to reach the 56th degree about the head of Portland Canal, it seems to me that in this matter they must have been largely controlled by what appeared upon the Fadan map, and that is another circumstance going to show that they had this map before them, and relied upon it. S. Doc. 162, 58-2, vol 7- -18 754 ALASKAN BOUNDARY TRIBUNAL. Now, one other thing. Sir Charles Bagot, in his amended proposal in the United States' Case Appendix, p. 159, suggests a line through the channel north of Prince of Wales Island and Duke of York's Island, and when it reaches the coast, extending inland 10 marine leagues. If the members of the Tribunal will look at the Faden map they will find that the mountains at this point are approximately 10-marine leagues from the coast. The President. What point? ~Mr. Dickinson. The point referred to in Sir Charles Bagot's amended proposal, where the line was drawn north of Prince of Wales Island, extending inland 10 marine leagues. The President. I follow that entirely, Mr. Dickinson. JVhat I asked you was the point at which you say that 10 marine leagues was. Mr. Dickinson. From the mainland coast. The line was to go to the mainland coast, and then to go in 10 marine leagues, and the mountains there are just about The President. Would you kindly have your Assistant mark it and show it? I want very much to see what you say is 10 marine leagues on that. Do not stop now; it can be done afterwards. Mr. Dickinson. It does not appear on that wall map, but on the Faden map. The President. Very well. Mr. Dickinson. This is significant, because the Treaty was made in reference to the mountains, and it is very clear that the idea ran through the minds of all them that the mountains would be about 10 marine leagues distant, and it was for that reason that they put the check upon the mountains that if they should recede and go further from the coast than 10 marine leagues the line was to be drawn through that space in the interval parallel to the sinuosities of the coast. Now, when we consider that they contracted, in reference to the mountains, that the 10 marine leagues was to be a check upon the mountains, and then look at this map and see th^it when Sir Charles Bagot proposed to draw a line extending inward 10 marine leagues, the point reached is almost coincident with the mountains as they appear on this map, that is an additional circumstance going to show that this map was before them. There is one other fact that I desire to call attention to: In his reply to the Russian observations, Sir Charles Bagot states:— It seems that a line drawn from the southern extremity of the strait called Duke of Clarence Sound, &c. Now, that is quoted in the French text (United States' Appendix, p. 162) as § Duke of Clarence Sound." The same expression is used by Count Nesselrode in his letter to Count Lieven on the 5th 679 (17th) April, 1824 (United States' Appendix, p. 170). If the Tribunal will look at all the niaps—I do not want to unduly detain you—you will find that the Faden map is the only map of the period using the word " Sound " to designate that passage. The Vancouver chart uses the word 1 Strait." The Faden map appears in the British Atlas, and was not adduced in evidence by the United States. I do not supose that it was known to the United States until it appeared in the British Atlas. The evidence is almost overwhelming that the Faden map was not only before the negotiators, but was relied upon by them in fixing the terms of the Treaty. I shall undertake hereafter to show that is a map of very great significance. ARGUMENT OF JACOB M. DICKINSON. 755 Mr. Root. Would you give me that reference to the expression " Duke of Clarence Sound " again ? Mr. Dickinson. United States' Appendix, p. 170. Mr. Root. Page 170? Mr. Dickinson. Page 162, and then again in the United States' Appendix, at p. 170. In the first reference it wa&so used Mr. Root. United States'1 Case or Counter-Case? Mr. Dickinson. Case. The first reference was made by Count Lieven. Mr. Root. The first is by Sir Charles Bagot. Mr. Dickinson. Yes, Sir Charles Bagot, I should have said. The next is by Count Nesselrode. ml Mr. Lodge. The other reference is p. 170. Mr. Dickinson. Yes; the letter was 170, United States' Case Appendix. If, in considering this question, members of the Tribunal, although proceeding upon the presumption that Vancouver's work was generally known to the educated men of the time, should conclude that the probabilities are that it was not examined minutely by the negotiators, there being no occasion for it, in view of the maps which were before them, and in view of the fact that no reference was made to it, it becomes then highly important to look at the maps that were before the negotiators, and to attempt to deduce from them the message that was spoken upon their face. These maps have already been commented upon by the Attorney-General, and he has done so with the utmost frankness and fairness. Yet he has commented upon them from his point of view, from the standpoint of the investigations which he has pursued, and they have spoken in a somewhat different manner to him from what they have spoken to us. Mr. Lodge. On that map of the Clarence Strait or Clarence Sound I observe on the Vancouver map that Clarence Strait appears without the word " Duke." Does that occur on the other map—on the Faden map—do you know? Mr. Dickinson. I really could not answer, but I will examine that. Mr. Root. The word " Duke' is round to the westward of the Prince of Wales Island. Mr. Lodge. It is Duke of Clarence Strait. Mr. Root. It is Duke of Clarence Strait. 680 Mr. Lodge. Then it does appear on the Vancouver map. I could not trace it. Mr. Root. It is to the west of the north end of Prince of Wales Island, the word " Duke." Mr. Dickinson. On the large Vancouver map it reads " Duke of Clarence's Strait." Mr. Lodge. Yes, I see the name is carried round. Mr. Dickinson. That is No. 7. Mr. Lodge. Then it is carried round, I see. Mr. Dickinson. The name is carried round the bend. Mr. Lodge. Oh, I see. Mr. Dickinson. I feel some reluctance to weary the Tribunal with an examination of these maps, but it will not be very long, and I feel that it is very important to our Case that they should be examined with the comments that we have to make upon them. They have not yet been exhibited in the Argument of the United States. No special comment has been made from our standpoint. As I have 756 ALASKAN BOUNDARY TRIBUNAL. said before, the Attorney-General's criticisms have been exceedingly fair, but he has failed to bring out some things which we think ought to be brought out and he has drawn some conclusions which we think are not entirely warranted. Now, taking them up, if you will be kind enough to look at Vancouver's general chart No. 14, which is No. 1 of the British Atlas, you will see that the names " Portland Canal," " Observatory Inlet," are in letters of about the same size, those in " Portland Canal," being a little larger, a little more emphasized. Mr. Turner. What map is this you are talking about? Mr. Dickinson. No. 1 of the British Atlas. There is nothing on this map to indicate especially that either name is intended to apply to the whole body of water down to Dixon Entrance. Mr. Turner. In that map, " Portland Canal" is twice as large as the words " Observatory Inlet." Mr. Dickinson. Have you British Atlas No. 1 ? Mr. Turner. Yes; that is what I am looking at here. Mr. Dickinson. As I have stated, they are somewhat larger. Mr. Turner. The " Observatory Inlet' I is infinitesimal almost as compared with " Portland Canal." Mr. Dickinson. Well, of course, that is a matter about which one will have to form his own opinion. They certainly are larger; there is no doubt they are larger, but I would hardly have expressed the contrast in so emphatic a way as that; but, at any rate, they are before the Tribunal, and they can look for themselves. I think there 681 is nothing to indicate specially that either name is intended to apply to the whole body of water down to Dixon Entrance except two circumstances. One is that the letters " Portland Canal I are, as I have said, more emphasized, and that is clearly shown by the fact that " Observatory Inlet' has a greater number of letters compressed into just about the same space. A more significant fact than that is that the Portland Canal is the longer arm. ^ow, I understand that it has been a general rule among cartographers that where there are two arms named in that way, and there is a body ml 1 m/ of water where they unite; the name given to the longer arm is intended to apply to the whole body of water from the point where they come together out to the sea. When you take that in connection with the difference in the character of the lettering, I should say that that map would import that the whole body of water was intended to be named " Portland Canal." Now, on looking at that map alone, one of two views might be taken of it. One is that the name " Portland Canal " was intended to apply to the whole body of water out to the sea, this being based upon the circumstances of it being a longer arm, and being indicated in larger letters, and the other is that the names were intended to be confined to the respective branches down to Ramsden Point, and that from there out to the sea, the body of water was an unnamed arm of the ocean. If the former view was taken by the negotiators, they understood when they spoke of " Portland Channel' that it meant the whole body of water out to the sea. If the latter view was taken, then from Ramsden Point, no name being given, and it beingan open and unnnamed arm of the sea, and they having designated Portland Channel, the consequence would be that in going up to Portland Channel the line was intended to proceed up the open and navigable ARGUMENT OF JACOB M. DICKINSON. 757 part of this unnamed arm of sea until it reached the designated channel. It is impossible from this map to understand that Observatory Inlet reached to Dixon Entrance. Looking at this map, you will see under the shorter arm the letters " Observatory Inlet," and that the map does not carry any such message as that Observatory Inlet was intended to reach out to the ocean. What it may say, it does not ml ml J say that, and looking at the map they never, understood that the body of water from the ocean up to Point Ramsden was any part of Observatory Inlet. That, I think, is a conclusion that may be safely stated. There is another feature of this map which helps to indicate what they meant, and that is that up this larger open channel is indicated the line of travel pursued, by Vancouver's ships. If they regarded that as an unnamed arm up to Ramsden's Point and the two branches as being designated only down to Ramsden Point, the conclusion would follow that if they are going to reach Portland Channel, they would reach it by the line of travel that had been pursued in the open way by Vancouver's ships. There is one circumstance to which attention ought to be called in this connection, and that is that just south of Ramsden Point, between that and Pearse Island, the way does not seem to be clear. At first sight, that would appear to be a circumstance against my argument, but if you will examine the map you will see that just at that point there is a coincidence of the parallels of latitude and longitude, and that they really blot out the passage, and that the stoppage, as it appears upon this map, is really the crossing of the lines of the parallels of latitude and longitude in the channel just south of Ramsden Point. I think that explanation is sufficient, and that if they looked at all they would see that it was not intended to indicate that Pearse ml Island was connected with Ramsden Point, but that there was an open channel there. If the members of the Tribunal will examine the original Vancouver map you will find that that way is shown clearer on it. This is a reproduction, and is a little blurred just at that point. The original does not show the stoppage which appears here upon this map. The next map which they may have had before them is Vancouver's Chart No. 7. It appears in the British Atlas No. 2. It also appears in the United States' Atlas No. 4, and it may be more convenient for you to refer to that Atlas. I pass up some sheets of this map. They are on a little larger scale, and may be more convenient. This is Vancouver's detailed chart of this portion of the coast, and shows the features quite distinctly and nearly accurate as to the general features as compared with modern maps. On this 682 map the name Observatory Inlet is distinctly subordinate. You will notice that the lettering is very much smaller. It O ml does not occupy more that half the space in length that the name Portland Canal does. But the most significant fact of all is that the name is upon this promontory of land between the waters of Portland Canal and Observatory Inlet, upon that tongue of land which terminates at Ramsden Point. This is almost conclusive. It never could have been supposed that this name so placed was intended to designate any body of water reaching south of that promontory. I mentioned the fact that the space occupied by the words " Observatory Inlet" is only about half that occupied by the words : ; 758 ALASKAN BOUNDARY TRIBUNAL. I Portland Canal." I call further attention to the fact that there are sixteen letters in the name " Observatory Inlet'' while there are only thirteen letters in than of " Portland Canal," and that the space devoted to the latter is more than double that devoted to the former. It cannot be said that this name " Observatory Inlet" was put upon that tongue of land for the reason that it could not be put anywhere else. If you look on the opposite side the shading of the mountains would not have interfered, for it is no heavier than it is on this tongue of land where the name is placed. There is sufficient space to have put the name on that side without crossing any of the inlets. So it is a matter of the utmost significance that this name appears upon the tongue of land, and not upon the side which extends to the sea. Looking at this map you will say that it is absolutely impossible to draw from it any lesson that "Observatory Inlet I could have applied to the body of water south of Point Ramsden. Mr. Turner. The word " Observatorv Inlet' might have been ms CD printed in the channel itself; it is small enough. Mr. Dickinson. The name " Portland Canal'' being in larger letters, and being placed upon the land which extends to the sea, the message spoken by this map was either that the whole ho&y of water south of Point Ramsden was Portland Canal, or that from Point Ramsden south it was an unnamed body of water, and that the name | Observatory Inlet" could not possibly have been intended to apply to it. There is one other circumstance to which I call attention on that map. The northern inlet now known as Pearse Inlet, which Great Britain contends is Portland Canal, is upon this map almost closed at the mouth. The President. Well, now, there again if you look at the original map—I saw both the points that you referred to before, Mr. Dickinson—if you look at the original map of Vancouver, the channel more open than it is there, it is largely due to the blurring in the printing. Just as you pointed out that the | Ramsdem " is not so sufficiently done—both the maps, you want to look at the originals. Mr. Dickinson. At any rate, while there may be some blurring in the reproduction, it is quite certain that when you compare the two channels even on the other map The President. That is quite true. Mr. Dickinson. That the southernmost channel is by far the wider and clearer passage. The President. Of course. Mr. Dickinson. Then if you go on further and look at the channel indicated by the marks on the chart to have been navigated by Vancouver's ship, the conclusion is almost irresistible, that if they looked at that map, they could never have thought that it meant to 683 indicate that Observatory Inlet was to go to the sea. Much stress was laid in the Argument upon the French edition ot Vancouver's atlas of 1801. I think I shall have to pass this up. The President. Certainly: is it in either of the atlases ? ml * * Mr. Dickinson. No ; it is not in either of the atlases. The President. What is your point, Mr. Dickinson ? Mr. Dickinson. I will make my point. It is this: Plate III of this atlas is intended to reproduce Plate XIV of the first English edition, the general chart of the North-West Coast from 30 degrees ARGUMENT OF JACOB M. DICKINSON. 759 to 60 degrees north latitude. The reproduction is intended to be on the same scale; but in the copies examined the French edition is a little smaller, perhaps from greater shrinkage in the paper after printing. The geographical features seem to have been copied with care. The most noticeable difference is the greater size and prominence of the mountain ranges on the French copy of the original map. There is a slight difference in the arrangement of the names 1 Portland Canal " and " Observatory Inlet." In the case of the first, that is Portland Canal, the difference is very small; but when you look at Observatory Inlet, the difference is quite striking. The eastern shore of Observatory Inlet is broken by Nass Bay and by Alice Arm in such a way as to somewhat interfere with the convenient placing of so long a name. When they put the name " Observatory Inlet," the word " Inlet " could come after " Observatory." On the original map " Observatory " was put between those two arms. Now, he preserved that same method of naming on this map; but as the translation of " Observatory Inlet' is " Entree de l'Observatoire," he put the " Entree " on the other side of " Observatory," towards the ocean, but still preserving the word " Observatory " between those two arms. So I think that this explains why the name " Entree de l'Observatoire "extends somewhat south of Ramsden Point. The President. I was only going to say that I attaech no importance to this printing of names, because I have seen them vary so much; but if you do take that map by itself—if you are going to criticize, there is no doubt that the mapmaker put " Entree de l'Observatoire " to go down to Port Maskelyne. I am only speaking of that mapmaker taking him by himself. Mr. Dickinson. I understand. I think that there is quite conclusive evidence that that mapmaker did not so intend. I have undertaken to explain the lettering on this particular map. Now, if you will turn again to the French Atlas, Plate No. 7, you will see that it is on a larger scale, and that there is ample room for placing the names as desired, and that they are located very nearly as on the original Vancouver chart. Portland Canal is here " Canal de Portland," and begins wTell north of 55 degrees, and the name " Entree de l'Observatoire ' is confined to the space between Nass Bay and Alice Arm. If they had the French maps before them and had that map and the other map, they could see a very good reason why the name " Entree de l'Observatoire' in the smaller map extended down, and when they considered the two maps together, they could not have said that that mapmaker intended it to apply to the whole body of water down to the ocean, because there he distinctly places the whole name, the scale being larger and admitting of it, north of Ramsden Point. The map in the British Atlas, No. 5, the Quartermaster-General's map of 1802, was known to be before the negotiators, but this map conveys very little. information on this point, because, as the members of the Tribunal will remember, neither body of water has any name attached to it. All that can fairly be said to be deducible from this map is that the passage south and east of Pearse and Wales Islands appears somewhat broader and clearer than the passage north and west of 684 these islands, indicating that it was probably intended to form part of a continuous channel reaching to the head of Portland Canal. Part of the same map including this region is again repre- 760 ALASKAN BOUNDARY TRIBUNAL. sented in the British Atlas, No. 6. It differs from that on the preceding page only in regard to the colouring of certain parts of the coast line above Portland Canal. So that map could not have been of any particular significance, and if they had looked at it in determining what was Portland Canal they could have reached no conclusion, because neither arm was named. I pass over the Langsdorff map, having already indicated that it was entirely valueless, and that has been also stated by the Attorney-General. ml ml No. 8 on the British Atlas is a part of a map of America, by Arrow- smith, of 1822, with additions to 1824. This is practically identical with a similar map revised to 1823, and reproduced in the United States' Atlas, No. 10, except that the latter is uncoloured. On this map the name " Observatory Inlet" runs off into the interior from the head of Alice Arm of that inlet. The name Portland Canal is brought down well to Ramsden Point. Looking at this map, the negotiators could never have said that it was intended that the name " Observatory Inlet' should apply to that body of water entirely out to the ocean. One of two conclusions must have been reached from it: either that Portland Canal, being a longer arm of the sea, and the name passing down by the side of it towards the sea, included the whole body of water out to the sea, or that from Point Ramsden out, it was an unnamed inlet of the sea. In either event, there would be nothing to sustain the British con- CD tention; but the deduction from either would be entirely in favour of the United States. The next are British Atlas, No. 9, 1822, and British Atlas, No. 12, 1824. These are Arrowsmith maps. They differ somewhat in respect to the tinting. The name " Observatory Inlet' on these maps is substantially as upon Map No. 8, except that the letters are larger. The name is placed in an easterly and westerly direction from a point near the head of Alice Arm. There is nothing to indicate that it was intended to apply to the body of water reaching out to the sea. The same conclusions and observations with regard to these maps should be made as were made in respect to Map No. 8. Now we come to Faden's maps, British Atlas, Nos. 10 and 11. As I stated before, these maps are the same; they are upon the same base. No. 11 shows in the interior some mountains and additions that Map No. 10 does not show; but an examination shows that they are printed from the same plate. Upon these maps the name "Observatory Inlet" is written in small italics, and runs off to the eastward. The name " Portland Canal j comes distinctly down below the 55th degree, below Point Ramsden. I think the conclusion deduced by the Attorney-General was that this indicated that the name was intended to apply to the channel along which it extended, and that it could not by any possibility apply to the southern channel. If it had been intended, upon a map of this scale, to indicate that Portland Channel embraced both bodies of water, how else could the name possibly have been put? It might have been extended further toward the sea; but the same argument would have been made, as is made now, that that confined its application to the northern channel. There is not room to put it in the water. So if it had been the purpose of the maker of this map to indicate that it embraced the whole body of water reaching out to the sea, the name ARGUMENT OF JACOB M. DICKINSON. f61 could not have been placed differently from the way in which it is placed. On the other hand, when you look at the name of Observatory Inlet, the declaration on the map is just as plain as it can possibly be that it was never intended that the name should extend to and embrace that body of water reaching south of Ramsden Point. So that the most that you can say is that there is no indication south of Ramsden Point. If that be true, then it would be an unnamed arm of the ocean. Being unnamed, no designation of it could be given by name at least in the Treaty, and as the Treaty called for Portland Canal, the natural inference would be that it would follow up this unnamed body of water until it reached Portland Canal, and thence proceed on in the general direction of the line. Mr. Aylesworth. You would have in that event two unnamed bodies of water in that map, would you not? 685 Mr. Dickinson. No. Mr. Aylesworth. One on ether side of Pearse Island ? Mr. Dickinson. No. I would say that that smaller body would have been ignored, the tracing on the Vancouver's charts showing that his ships went up the southernmost channel. It is shown here that the northern channel is almost, on this map, entirely blocked up, the passage being very small—hardly a tenth of the width shown in the southernmost canal. They would simply have regarded that as merely appurtenant to the larger channel, if their attention had been addressed to it. In the argument of the Attorney-General, attention was called to a map in the United States' Atlas, published in 1807 by Walch. I do not think that his inferences in regard to this map, or Map No. 8 in the United States' Atlas, or Map No. 9, are entirely justified, for there is no evidence whatever that either of these maps was ever before the negotiators. If they speak a different message from the other maps, we can hardly proceed upon the idea that where they had maps that we know were before them, they disregarded them, and followed maps which there is no evidence to show were before them at all. I might make some criticisms on these maps, but, in view of the fact that there is not the slightest evidence that they were before the negotiators, it is entirely unnecessary that I should weary the Tribunal by discussing them. I have confined myself to the maps that we have every reason to believe were before them, and largely to the Faden map, which we have every reason to believe that they chiefly relied upon in reaching their conclusions. The Attorney-General commended Mr. Dall very highly as an expert and man of learning; and when he quoted him as a witness in his behalf, he gave him a very high endorsement. On the question of these maps I want to use his own witness against him, and show what Mr. Dall says in regard to them. On p. 105 of the United States' Counter-Case he says:— But on Vancouver's charts the names of Portland Canal and Observatory Inlet are not extended southward to the main body of the inlet south of Point Ramsden. They are attached to the two bifurcations extending northward, of which Portland Canal is the longer and most important This is especially marked on Chart 7, where there is abundance of room for extending the names southward if that had been desired by the cartographer. On the other chart, that of the North-West Coast in general (No. 3, French edition), which is on a very much smaller scale, the names, especially " Entree de l'Observatoire," do extend some distance south of Point Ramsden; but when compared with the 762 ALASKAN BOUNDARY TRIBUNAL. larger and much more detailed Chart 7, where this is not the case, the inference by a non-critical observer would be merely that there is not room for the name on Chart 3 alongside the inlet northward from Point Ramsden, and that the extension was merely accidental. At all events, the larger and more detailed chart would be likely to produce the strongest impressio^.on the minds of those examining both, and we may be quite certain, in view of the education at that time in vogue, that none of these gentlemen were geographers or qualified, geographical critics. There will therefore be little improbability in the assumption that the longer northern part and the broader southern part were regarded as one inlet, under the name of Portland Channel or Canal, to which Observatoiy Inlet became tributary at Point Ramsden. This on the same principle, by which of a newly mapped river the largest and most important ramification is selected to bear the river name from its source to the sea, while others are regarded as tributaries. This is the natural view to take, as nobody would mouse out the minutiae of Vancouver's text when they had, as they might justly infer, the resultant of it in the graphic foi'in of his detailed chart. This view I believe to have been taken by the negotiators, as it certainly has since been taken by the British Admiralty Office, on its charts (1853), and by everybody else until the present revival of controversy:— It will hardly be denied that, in the construction of the meaning of the Treaty, we are to be guided by what the negotiators had before them, and 686 the ideas they held, rather than by what was unknown and unconsidered by them. It cannot be assumed that these gentlemen, after the manner of antiquaries or philologists, made searching investigations into Vancouver's nomenclature or microscopic comparisons of his charts one with another. The most reasonable, indeed, we may fairly say, in view of all the evidence, the only reasonable conclusion is that they took as a basis for their discussion, without research or special comparison in details, the two charts (Nos. 3 and 7, French edition) in Vancouver's atlas which related to the region concerned; that they assumed their essential correctness for the purpose, and were well aware that no other charts existed to which a higher grade of accuracy could be assigned. Now, Mr. Dall was quoted as a very high authority upon the proposition that if Vancouver's narrative alone were looked to, it was very clear that Observatory Inlet extended out to the sea. As he has received such high endorsement, I ask the Tribunal to take into consideration the opinions advanced by him as an expert and a .geographer as to the message which was delivered to those who examined these maps for the purpose of making the Treaty. I observe that Mr. Dall did not have before him the Faden map. If you take the Faden map in connection with Vancouver's charts, and out of them all resolve fairly what they indicated to them, it is impossible to conclude from these maps that the negotiators understood that Observatory Inlet went out to the sea. Either one of two conclusions must have been reached by them, and that is that " Portland Channel' applied to the whole body of water, or that from Point Ramsden south the body of water was unnamed. In either event, the contention of the United States as against that of Great Britain would, upon the evidence of the maps, be fully sustained. Mr. Aylesworth. Before you leave the maps, Mr. Dickinson, would you let me call your attention to the Arrowsmith map which appeared in 1818, No. 8 of the United States' Atlas? Mr. Dickinson. I have it, you Honour. Mr. Aylesworth. That map, we have almost positive evidence, was in the hands of Sir Charles Bagot, because in his letter of the 29th October, 1823, at pp. 129 to 131 of the United States' Appendix, he says that he had, in his discussion with M. de Poletica, proposed a line at Cross Sound, and he goes on to say, " as it is laid down in ARGUMENT OF JACOB M. DICKINSON. 763 Arrowsmith's last map "—he mentions there the longitude of Lynn Canal in a way that identifies this particular map almost exactly, as between the two Arrowsmith maps; so that it seems reasonably evident, it occurred to me, that that particular map of 1818 was in Sir Charles Bagot's hands at the time he wrote that letter, and at the time of his interview with M. de Poletica. Now, if he were looking at that map, you will notice he would find Portland Canal extending practically to the ocean, and certainly far below Point Ramsden. If, then, he found maps not corresponding in the position in which they marked the name " Portland Canal," is not it reasonable to .think he would at once resort to the narrative of the man who had attached the names? It was only twenty-five years old at that time, and one would think he would be very remiss in his duty if he did not investigate that narrative when he was entering upon the negotiation of an important Treaty of this character. Mr. Dickinson. Well, I think you might also say that if he had consulted the narrative he would have made some mention of it; that is to say, if there was such a doubt in his mind that would drive him ms s to the narrative, then, surely, there would have been some mention made of the narrative. This map I pass to, but it is from Pinker- ton's Modern Atlas; it is after Arrowsmith's map of 1818. Observatory Inlet is placed up at the end of the body of water. It runs off to the eastward, and that map certainly could not have indicated that Observatory Inlet went out to the sea. It is confined to that body of water, and it is above Nass Bay. 687 The name Portland Canal parallels the western side of the northern arm about midway of the entire length of it. I believe, Mr. President, you called attention to that fact—it reaches below the 55th degree to the westward of Pearse Island. Now if Observatory Inlet could not by any possibility—the way this map indicates—apply below Ramsden Point, then it seems that the name " Portland Canal," coming down below Ramsden Point, would be regarded as applying to that entire body of water. Mr. Turner. Is this Map No. 8 the American reproduction ? Mr. Dickinson. Yes. It is from Pinkerton's Modern Atlas, published in Philadelphia. Mr. Turner. I understood the Counsel for Great Britain to insist that this map was not bef ore The President. It is an Arrowsmith map. Mr. Dickinson. It is an American reprint of an English map. It was after Arrowsmith's map—that is to say, based upon information; not a reprint, but based upon the information given by Arrowsmith's map. But I am not willing to concede that it appears that this particular map was known to the negotiators \ but if it was known to the negotiators, and- if there were such doubt as is indicated by his Honour, Mr. Aylesworth, raised by this map in the minds of any of the negotiators as to drive them to the narrative, it is a most remarkable fact that no mention whatever was made of the narrative. Mr. Turner. Do you think they would first be driven to the other maps, in view of the minute character of this one ? Mr. Dickinson. My own view as to all the maps would be that Vancouver had made the voyage; that he was the discoverer upon whose information all these maps were made; that they looked primarily to the Vancouver map, and then, as has been shown by the !WH 764 ALASKAN BOUNDARY TRIBUNAL; strongest kind of evidence that Faden's map was not only before them, but was relied upon; they looked also to the Faden map. Mr. Root. Would not the most natural thing to them have been to ask the Russian negotiator what he meant by Portland Channel? I think that is the best way to find out, if there was any doubt about it. Mr Dickinson. Of course the answer to that question—if such a question had been asked—would have to be sought by us in the negotiations themselves. After having discussed the question as to whether or not the narrative was before them—the improbabilities all having been considered—and then having looked at the maps, and having considered what the maps in all probability said to them, and what unequivocal message they spoke, I shall now ask your Honours to follow me in a discussion in regard to the negotiations, which will be very brief. The first mention of Portland Canal was made by the Russians in the Counter-Draft of 24th February, 1824. This appears in the United States' Case Appendix, p. 158. The language is:— Pour completer la ligne de demarcation et la rendre aussi distincte que possible, Ies Plenipotentiaires de Russie ont exprime" le d6sir de lui faire suivre le Portland Canal jusqu'aux montagnes qui bordent la cote. "That was the very first time in the negotiations that the expression | Portland Canal' was used. Sir Charles Bagot reported on the 29th March, 1824, to Mr. Canning a request that had been made of him by Count Nesselrode, that the final decision of Russia should be submitted to the British Government. Count Nesselrode stated that he intended to inform Count Lieven of the course of the nego- 688 tiations, and instruct him to converse with Mr. Canning on the subject. If you will turn to the United States' Case Appendix, 156, the fourth paragraph from the top of the page, this passage appears:— Count Nesselrode then inquired whether I should object to transmit to my Court the final decision of himself and M. Poletica as it is declared in the inclosed paper (Inclosure 5), and whether I did not think that His Majesty's Government, seeing how slight our disagreement was, might hot be disposed to furnish me with such further instructions as would enable me to meet the views of the Russian Government, informing me at the same time that it was intended to acquaint Count Lieven, by the courier who is to be despatched to-night to London, with the course which the negotiation had taken, and to instruct him to hold, some conversation with you upon the subject. On 24th April, 1824, Mr. Canning wrote to Sir Charles Bagot, and he acknowledged th? receipt of the despatch of 29th March, with inclosures, and stated that he had referred the whole, question of this negotiation to the Governor of the Hudson's Bay Company, and that he was waiting to learn the tenour of the instructions sent to Count Lieven. You will find a verification of this statement in the United States Case Appendix, p. 175. Count Nesselrode, in a letter 5th (17th) April, 1824, to Count Lieven, reviews the negotiations, and states on p. 170 of the United States' Appendix: Nous proposions de porter la frontiere meridlonale de nos domaines aux 54 degres 40 minutes de latitude, et de la faire aboutir sur le continent au Portland Canal, dont l'embouchure dans l'ocean est k la hauteur de l'lle du Prince de Galles et l'origine dans Ies terres entre 55 degres et 56 degres de latitude. That was the statement made by Count Nesselrode—that they proposed to carryT the southern frontier of their domains to 54 degrees 40 minutes of latitude, and to make it strike the continent at Portland mmjmmm ARGUMENT OF JACOB M. DICKINSON. 765 Canal, the opening of which into the ocean was a la hauteur—which I understand to mean the same parallel—of the southernmost point of Prince of Wales Island. The President. Not the southernmost point—at the same parallel as the island. There is nothing about southernmost point there. Mr. Dickinson. Well, the island, of course, is a very long island. The President. Yes. Mr. Dickinson. I take it that when he speaks of drawing the line, so as to place it at the height of the island, he did not, inasmuch as they had been treating solely of the lower part of it, mean the top of it. The natural conclusion would be that he meant the latitude of the lowest part of the island. The President. Very well. Mr. Dickinson. Especially when we take it in connection with the fact, as I shall show hereafter, that from the map which they had before them, and probably relied upon, they understood that the southernmost point of that island was at the parallel of 54 degrees 40 minutes. Mr. Aylesworth. You remember that the writer is the very man to whom Baron Tuyll made that observation—that the southernmost point of the island was practically at the same latitude as the mouth of Observatory Inlet. Mr. Dickinson. Yes, I think that he found, when he had more light upon the subject and examined the maps, that Baron Tuyll was mistaken. The fact that that statement was made erro- 689 neously two or three years before could hardly have influenced his opinion when he came to deal with the question directly, and in the light of the maps that he had before him. This letter to Count Nesselrode of 5th (17th) April, 1824, is the one in which he reported the conclusion of the United States-Russia Treaty, the influence of which on the British negotiations he referred to as follows:— - Nevertheless, the Cabinet of Washington has admitted that our boundary should come down as far as 54 degrees 40 minutes. 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. There we have the statement of Count Nesselrode, communicated to Mr. Canning through Sir Charles Bagot, that they proposed to bring their line down to 54 degrees 40 minutes to make it strike the continent at the mouth of Portland Canal at that point which was opposite, as I claim, the southernmost point of Prince of Wales Island. Mr. Canning at that time was made aware of the terms of the United States' Treaty, which fixed the line as between Russia and Great Britain at 54 degrees 40 minutes. Now, that he was aware of it is evident from his letter of the 5th (17th) April, 1824, which appears in the British Case Appendix, p. 80. My associate, Mr. Lansing, calls my attention to the fact that it is a letter of Sir Charles Bagot to Mr. Canning. Sir Charles Bagot says:— I avail myself of the opportunity of the departure of this courier to transmit to you the enclosed copy, which I have received confidentially from Count Nesselrode, of the Convention which has been agreed upon between him and M. Poletica on the one part, and Mr. Middleton, the American Minister, on the other, respecting the North-West Coasts of North America, and which 766 ALASKAN BOUNDARY TRIBUNAL. Convention is, I.believe, to be definitely signed this morning by the respective parties. WTieii you couple the statement of Count Nesselrode which was before Mr. Canning with a knowledge of the fact that a Treaty had been settled between Russia and the United States, fixing the boundary between the Russian territory and that of the United ml ml _ States at 54 degrees 40 minutes it will be seen that he had before him all the information which would convey to his mind what ml '■ '*•*& Count Nesselrode meant, and what he intended, when he made.that proposition as to Portland Canal. Here we have the facts which pointed out and designated clearly to Mr. Canning what Count Nesselrode meant when he said that he wanted to carry the line so as to strike the continent at Portland ml Canal at 54 degrees 40 minutes. CD ' In the light of that proposition and the understanding that he knew Count Nesselrode must have had in regard to it, Mr. Canning, on the 29th May, .1824, wrote to Count Lieven that after mature consideration of the two despatches from Count Nesselrode—here he had this very despatch—he would send instructions which would meet in a great degree the wishes of Russia. He did send instructions. He set forth certain changes in regard to the proposition of Russia, but not one change in respect of Portland Canal, and the changes which he made'have no reference whatever to Portland Canal. They appear in the United States' Case Appendix, p. 180. Now, on the same day—on the 29th May—Mr. Canning wrote, to Sir Charles Bagot, and the letter appears upon pp. 180 and 181 of the United States' Case Appendix. He said:— I transmit to your Excellency a copy of a letter which I have addressed to Count Lieven upon the subject matter of two despatches from Count Nesselrode to Count Lieven, which that Ambassador communicated to me, and copies of which I also enclose. Your Excellency will learn from my letter to Count Lieven that you may expect definite instructions very shortly, both for the conclusion of the negotiation relating to the North-Western Coast of America and to the proposed Conference on the pacification of Greece. I hope to despatch a messenger to your Excellency with these instructions in the course of the next week. 690 Meantime, the inclosed paper will put your Excellency generally in possession of the sentiments of His Majesty's Government upon these several subjects. But your Excellency will not take any steps upon them until you shall have received my promised instructions. States' Case Appendix, p. 181, he On 12th July, 1824, United writes to Sir Charles Bagot:— 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 be drawn between British and Russian occupancy on the North- West 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 resolved 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 degrees. Now, what did he mean by " Portland Channel" ? He had received the communication from Count Nesselrode to Count Lieven in" which he had proposed Portland Channel—Portland Channel opposite -i*8fc ARGUMENT OF JACOB M. DICKINSON. 767 Prince of Wales Island. This proposition was to make the boundary line strike upon the continent at 54 degrees 40 minutes. He never criticised it and never suggested any change, but accepted the proposition in the terms in which it was made. There is a sound rule for construing transactions of this sort, and getting at the intentions of the Parties. If you find out what a man means when he makes a tender of a proposition, and that such facts were communicated to the other side as showed that it must have been understood in the same sense, and that the proposition was accepted without any variation, then the rule is that it was accepted with every fair inference to be drawn from it in respect of the meaning that the party had when he proposed it. Now, can there be any doubt as to what Count Nesselrode meant by " Portland Canal " ? He meant the Portland Canal which he himself designates, as coming out to the ocean at parallel 54 degrees 40 minutes. Mr. Canning could not have supposed for an instant that he meant any channel which would have reached the ocean at an essentially higher point than that. Mr. Aylesworth. If Count Nesselrode by the phrase 1 Portland Canal'j meant the body-of water which has its outlet at 54 degrees 40 minutes, would not the natural expression for him to have used in that letter to Count Lieven have been not the mouth at the ocean is abreast the island—of Prince of Wales—but is at the same latitude, or approximately the same latitude, as that mentioned. Mr. Dickinson. Of course, there may be various ways of writing the same thing.* I hardly ever saw one man draw a contract to submit to another that the other did not have some different ideas about writing it. The question is, " Wliat is the fair deduction to be drawn from what he said?" If we find upon looking at the maps, looking at all the maps that were before them, that 54 degrees 40 minutes came nearer the southern than the northern channel, I think we might fairly7 infer that it was the southern channel which was CD ml meant. Ajid then, besides, he said, " strike upon the continent." They were not dealing about " islands "; they were not dealing about 1 ocean' then in the dividing territory. They were dividing the coast on the continent, and the line would strike the continent near 54 degrees 40 minutes. Mr. Aylesworth. Well, that is just the point. It seems to me that is evidence that he did not understand that body of water to be Portland Canal, because the true Portland Canal, as he understood it— Vancouver's Portland Canal—not being under 54 degrees 40 minutes the line would strike the continent not at 54 degrees 40 min- 691 utes, but at a higher latitude in the channel of what Vancouver called Portland Canal; and therefore he could not use the expression which otherwise would have been the natural one. Mr. Dickinson. Well, if you assume that they were speaking from the narrative, there would be a good deal of force in the suggestion; but we have no evidence, as I have undertaken to show, that they had the narrative before them, or acted upon the narrative; and now when I come to the maps—when I come later to speak of these parallels of latitude even upon Vancouver's maps—it will appear that the lower channel comes nearer the 54 degrees 40 minutes than the upper channel. Mr. Aylesworth. Is that so ? 768 ALASKAN BOUNDARY TRIBUNAL. Mr. Dickinson. That is the point I make. Wliether or not it is correct is a matter for the Tribunal to determine. The point I wish to make is, that it clearly appears that a proposition was made to carry the southern boundary to 54 degrees 40 minutes, and make it strike the continent at the mouth of Portland Channel, which comes into the ocean opposite the southern point of Prince of Wales Island—that this proposition was understood by Mr. Canning just as it was understood by Count Nesselrode, and that it was accepted by Mr. Canning and written by him into the first draft of the Treaty which he made. He inclosed a draft of the Treaty, which apjpears upon the United States' Case Appendix, p. 183, in which he says:— Commencing from the two points of the island called "Prince of Wales Island" which form the southern extremity thereof, which points lie in the parallel of 54 degrees 40 minutes, and between the 131st and 133rd degrees.of west longitude (meridian of Greenwich), the line of frontier between the British and Russian possessions shall ascend northerly along the channel called Portland Channel till it strikes the coast of the continent lying in the 56th degree of north latitude. If there is a reasonable inference as to what Count Nesselrode meant, and as to what Mr. Canning understood, and if he accepted that proposition and incorporated it in the Treaty, then no refinements and no mere conjecture ought to destroy a contract which was understood in the same sense by both sides. The boundary line through Portland Channel was never thereafter the subject of discussion. Count Nesselrode said, in his letter to Count Lieven of the 31st August, 1824 (United States' Case Appendix, pp. 202, 203, and 205), (and this throws some light further upon the understanding of Count Nesselrode upon this subject) :— 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 51st degree of north latitude might be the subject of a doubt. We have consequently confined I think there is some significance in that word 1 confined "; that means that they had withdrawn from the claim that they had made up tQ a higher point:-— • . ;:fg We have consequently, confined them to the 54 degrees 40 minutes, 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. And lower down at the bottom of the page:— Russia's rights of sovereignty over the North-West Coast, beginning at 692 59 degrees 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. The President. But, Mr. Dickinson, I point out to you—at least it occurs to me you ought to answer itr—you cannot use 54 degrees 40 minutes in that sense; because on your own contention the moment they get to the coast they go right up to 56 degrees, and they do not follow 54 degrees 40 minutes; and therefore, in a sense, you are argu- ARGUMENT OF JACOB M. DICKINSON. 769 ing that the 54 degrees 40 minutes was to go into the continent; it is obvious that is not the sense in which he was using it. Mr. Dickinson. No ; it went only to a point from which the Treaty designated it should go somewhere else. They were not dividing the continent; they were dividing the coast; and when they got to a point where they gave a new departure for the coast, of course they left 54 degrees 40 minutes. Now I am not using this for the purpose of showing that the line from the southernmost point of Prince of Wales Island is to travel along 54 degrees 40 minutes. Whether it shall go all the way along the parallel or on the parallel to a point from which it would leave the parallel to reach the mouth of Portland Channel seems to me immaterial. If the members of the Tribunal should hold that the northern channel is the passage, it is immaterial, it seems to me, whether it is to go along 54 degrees 40 minutes, and turn up, or go direct from Cape Chacon The President. I quite agree. Mr. Dickinson. I am using this merely to show how 54 degrees 40 minutes was connected with the transaction and how it indicates the location of the mouth of Portland Canal. That is why I am using 54 degrees 40 minutes here, and it is for that purpose that I am reading this passage. I will begin at the beginning of the sentence:— 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 favour of the subjects of His Britannic Majesty; but it must be well understood that this concession will only comprise the space inclosed between latitude 59 degrees and the southern boundary of our territory, to wit, latitude 54 degrees 40 minutes, for to the north of the 59th 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. Again, on p. 204, in the same letter, he says:— Our counter-draft carries our boundary from the 51st degree of north latitude to 54 degrees 40 minutes. These expressions show clearly his understanding that 54 degrees 40 minutes was not limited to the point of commencement; and I will elaborate that. His reference to confining Russia's claims to 54 degrees 40 minutes necessarily refers to the claims on the continent, because that was the matter in dispute, and in consequence it is fixed at 54 degrees 40 minutes as a limit on the continent, and not merely at a point on an island. And it fixes it by making it, as he stated, coincident with the mouth of Portland Channel—the body of water named which was to be the natural boundary. His reference to 54 degrees 40 minutes as the ml CD m southern boundary certainly carries it beyond a mere point of commencement on the island, because he used expressly the terms " strike the continent" at 54 degrees 40 minutes. His reference to carrying the boundary from 51 degrees to 54 degrees 40 minutes necessarily relates to the boundary on the continent, because, as I stated, the point in dispute was not as to the island—there never was any controversy as to that—but was as to the continental shore. 693 This letter of Count Nesselrode was submitted to Mr. Can ning. It was annotated by him, and so far as the references to Portland Channel are concerned it was accepted without criticism or dissent. S. Doc. 162, 58-2, vol 7 -19 |9a*WW"MSW"WH^WlP 70 ALASKAN BOUNDARY TRIBUNAL. There are some conclusions which, it seems to me, can be justly drawn from these transactions. They seem to be absolutely clear upon the following points:— First.—The Russian Plenipotentiaries proposed that to complete the line and make it as distinct as possible it should follow Portland Canal. Second.—Count Nesselrode explained what body of water he meant. The southern frontier was to be carried to 54 degrees 40 minutes, and abut upon the continent at Portland Canal. The opening of this canal was into the ocean, and it was " a la hauteur " of Prince of Wales Island. Third.—This explanation of what he meant by " Portland Canal' was communicated to Mr. George Canning. Fourth.—Mr Canning accepted the proposal in the terms in which it was made, without any modification or indication that he under- 7 ml stood any different body of water. He put the name of " Portland Channel " into his draft of the Treaty. Fifth.—It must be accepted that if he understood, or had good reason to understand, what body of water Count Nesselrode meant— then the Treaty was concluded upon such understanding, or, if he knew what was in Count Nesselrode's mind, and did not accept it in the same sense, certainly he would not have allowed him to proceed upon any erroneous idea, but would have corrected him, and shown that he himself had a different understanding, and was not willing to conclude the Treaty on any such basis. But there never was any further reference in the negotiations at all which would indicate any CD ml change of meaning as to what body of water was meant to be designated by the term " Portland Canal." Now, there can be no misun- ml . 7 derstanding at all. The President. Are you going to some other point, Mr. Dickinson ? Mr. Dickinson. Yes, Mr. President. (Adjourned for*a short time.) Mr. Dickinson. Mr. President, you spoke before the adjournment of Atlas No. 4, Vancouver Map No. 7. Being on a somewhat smaller scale it makes the channel appear somewhat narrower, but if you will look at the original Vancouver, J think you will see that the passage to the north of Wales Island appears to be very much obstructed with rocks, and, allowing for the difference in the scale of the map, I think the obstruction is substantially the same. The President. Certainly. Mr. Dickinson. In determining what Count Nesselrode meant by the term " Portland Channel" and what Mr. Canning probably understood him to mean, it seems to me that the maps that were probably consulted by the negotiators would throw some light upon the inquiry. On the 116th page of the oral argument of the Attorney-General appears a table giving the latitudes of the two points of Prince of Wales Island, namely, Cape Muzon and Cape Chacon, and also the latitudes of Portland Canal and Observatory Inlet as they are designated in the British Case. I have had this table verified. I think that it is substantially correct, that it is as nearly correct as possible. To make up a table on maps of that scale very accurate measurement is required, and the difference in the width of a line would make a difference of about a minute as expressed in figures. I use that table and reproduce it, changing it so-that what he has ARGUMENT OF JACOB M. DICKINSON. 771 called " Portland Channel' I will make read " Pearse Inlet," and what he has called " Observatory Inlet " I will make read " Portland Canal." | . || eg1 ■ 694 Latitudes from the Maps in British and United States' Atlases. Map. Vancouver (General Map) Vancouver (part) Do Russian, 1802 Do Arrowsmith, 1822- Arrowsmith, 1824. Dc - Do Faden, 1823 Faden, 1824. Reference. Br.No.l ... Br.No.2 ... U.S. No. 4.. Br.No.5... U.S.No.6.. Br. No. 9... Br.No.8 ... U.S. No. 10. Br. No. 12 .. Br. No. 10 .. Br. No. 11 .. Cape Cape Pearse Inlet (Mouth). Muzon. Chacon. o / o / 1 o / 54 43 54 45 54 45 54 424 54 424 54 454 54 424 54 42| 54 454 54 44 54 46 54 49 54 424 54 444 54 474- 54 43 54 41 54 49 1 54 434 54 434 54 474 54 44 54 44 54 474 54 42 54 41 54 47 54 414 54 394 54 45 j 54 4l£ 1 54 40 54 45 1 Channel 54 414 54 4U 54 4U 54 44 54 434 54 444 54 434 54 44 54 m 54 41 54 40 If the members of the Tribunal have a copy of the Attorney-General's printed argument and will turn to p. 116, they will be enabled somewhat more clearly to follow the point that I am endeavouring to make. It will be borne in mind that Count Nesselrode stated that the line would strike the continent where Portland Channel comes out into the ocean, at 54 degrees 40 minutes. Now, please look at that table, understanding that the last column refers, so far as my remarks are concerned, to what we call Portland Channel—that is, the southern channel—and that next to the last column refers to what is called by Great Britain Portland Channel and what we call Pearse Inlet. Look at the bottom of the table, the last two maps, the Faden maps of 1823 and 1824. I have called attention to the fact that these maps are made upon the same plate. The latitude of Cape Muzon is given exactly the same on each map. It is 54 degrees 4LJ minutes. Cape Chacon is given at 54 degrees 39^ minutes for the map of 1823 and 54 degrees 40 minutes for the map of 1824. This difference would be one of measurement, and even persons equally skilled might make that slight variation. Turn now to the next to the last column, to what we call Pearse Inlet. It will be observed that the latitude of the mouth is given as 54 degrees 45 minutes for both maps. In the last column the southernmost channel, which We designate Portland Channel, is given in respect of the Faden map of 1823 at 54 degrees 41 minutes, and the map of 1824 at 54 degrees 40 minutes. If Mr. Canning, who had already declared that this was the most — • CD 7 ms reliable map, when he received Count Nesselrode's letter looked to the map to see where the line would strike and to see what Count Nesselrode had in his mind when he spoke of " Portland Channel," it is too clear for argument that he understood that he referred to the southernmost and not to the northernmost channel. Looking at all the maps, he could not have understood on any reasonable construction that Count Nesselrode referred to the northernmost channel. In the map of 1823 Mr. Aylesworth. Would you think that the corner of Wales Island could be properly spoken of as " the continent " ? Mr. Dickinson. The corner of Wales Island ? m jgJL^VA'JASJWg 772 ALASKAN BOUNDARY TRIBUNAL. Mr. Aylesworth. The southernmost corner. Mr. Dickinson. I should say not; at least, I do not think 695 that they were using the term " continent " with that nice precision. He was dealing with " the continent' as contradistinguished from the island, and probably he meant the mouth of Portland Channel, which was at the continental coast. I do not know just how that is. There is another thing that I ought to observe, and that is, it is quite difficult to say just what was the mouth. It depends upon how far out you call the mouth of Portland Channel, and there may be a slight variation there. But, looking at the Faden map, he could not have understood, in any sense, that the mouth at 54 degrees 40 minutes was the mouth of what we call " Pearse Inlet," and what in the Case of Great Britain is called " Portland Canal." If they looked at the other maps the Southern Channel on every one of them was nearer 54 degrees 40 minutes than was the Northern Channel. The difference between the latitudes given for the Northern Channel and 54 degrees 40 minutes was variously from 5 to 9 degrees. While none of them, except the Faden map, put the mouth of the Southern Channel exactly at 54 degrees 40 minutes, the difference on the several maps is only from 1| to 4J degrees. The Vancouver maps make a difference of only 1^ degrees, and even this variation depends upon locating exactly where the mouth is, and this location is somewhat a matter of opinion. Now, I say that a non-expert examining these maps, even casually, could not have thought, with the declaration of Count Nesselrode before him, that Mr. Canning meant that the northern channel was the " Portland Channel." That is the evidence of the maps upon this particular point, and the conclusion is almost irresistible, looking to the statement of Count Nesselrode, and looking to all the maps, that Mr. Canning must have understood him to mean that Portland Channel reached the ocean through the southern channel, and not the northern channel. If we knew exactly what the negotiators had before them, if we knew just how much weight, if they had the narrative, they gave to it, and with what minuteness they read the narrative, if we knew exactly what maps they relied on, and what maps they laid aside, probably we should have no difficulty in coming to a correct conclusion as to what they had in their minds. But the whole question is one of surmise largely, and is to be settled upon probabilities as to what directed and controlled their minds on this question. Take the Vancouver narrative. If any one has undertaken to follow the voyage of Vancouver after he left .Salmon Cove, unless he 'studied it out, made it a matter of painful enquiry, and followed it upon the maps, and probably with some assistance, he got no idea at all as to just what bodies of water he meant by Observatory Inlet v ml ml i and Portland Inlet—I say that if the narrative is studied out minutely, and a person's mind is addressed to the whole narrative, it points to the conclusion, as stated by Mr. Dall, that Vancouver probably intended to name—certainly at the time that he wrote that nar- • -m 1 rative and made his notes—the lower channel Observatory Inlet and the northern one Portland Canal. But for us to rest upon that as a basis for our own conclusions we have to assume that an accurate examination was made, for without that the ordinary mind could «"*»mrr AKGUM3EN3I3 OB1 JACOB M. DICKINSON. m not follow his journey and apply what he says. If you give that narrative to any person to read who does not make a study of it, and if he reads it over casually, he would be in a maze on the subject and would have no conception as to the course Vancouver travelled. Without following the course pursued, on the map he would get no idea at all as to what body of water Vancouver meant to name Observatory Inlet and what body Portland Canal. Looking to all the testimony that probably was before the negotiators^—looking to the narrative and looking to the maps, I mean—there is a question of doubt upon the subject. I cannot say that it has been demonstrated conclusively on behalf of the United States, beyond any peradventure that they did mean the southern passage when they said Portland Channel. I think that the weight of evidence strongly points that way. I do not think that it can be asserted on behalf of Great Britain that it has been demonstrated that they meant the northern passage. The matte^ is in doubt, whether we look to the Treaty or to the Treaty in connection with the negotiations. It then becomes of the utmost importance to inquire whether or not the Parties interpreted it. 696 There is one significant thing to be considered in connection with this interpretation, and that is, that those who came after the negotiators and interpreted the Treaty had just as much opportunity for consulting Vancouver's narrative as did the negotiators. They were men of intelligence. It is fair to presume that if it was thought necessary to go to Vancouver's narrative when the negotiators were dealing with this question, it was just as necessary to go to Vancouver's narrative when the official maps of the respective countries were being made. But before I get to the question of the maps, because that will be taken up with some detail; and while I am on this point of interpretation, I will discuss some of the arguments that were advanced by the Attorney-General to show that upon the part of Russia and the United States an interpretation was put upon the question as to which channel was Portland Channel. I quote from his oral Argument, p. 126, where he says:— Now, the point to which I am going to call attention relates to what was done with regard to the island of Tongass. Tongass is a small island situate to the north of the mouth of the Portland Canal, not very far from Cape Fox. The President. We know it, Mr. Attorney. Sir Robert Finlay. And the Russian-American Company, in the year 1835, speaks of Tongass as being on the frontier of their straits. The document that I refer to will be found in the United States' Case Appendix, at p. 233. This document is a communication from " the Governor of the Russian-American Company to the Commander of brig j Chichagoff,' Lieutenant Zarembo, 8th March, 1835." In the third paragraph of p. 233, he says:— I. Occupation of a Station.—As we may say that the only place in our straits visited by the foreigners is Tongass, you must select this bay as the place of your sojourn. Here you may always hear from the Kolosh about the appearance of some vessel, and consequently having your brig always ready to set sail you will always be able to proceed to where the foreigner will show herself. And at the bottom of that page— It is known to you that the most important influx of furs to the southern parts of our straits is at Tongass, and that in April and up to the middle of May in Tongass and the neighbouring localities all the Kolosh are absent as "774 ALASKAN BOUNDARY TRIBUNAL. they go to Nass with their furs. It is consequently absolutely necessary to reach Tongass during March so as to catch the inhabitants on the spot. Now, that is a matter of absolute unimportance, so far as tending to show what they regarded as their boundary. They were not _ _ _ *7 CD m jml ml there tor the purpose of laying down or delimiting boundary, and no significance whatever can be given to that act for any such purpose. The reason why the station was to be established there is made perfectly plain by this letter. It was established on Tongass Island for the purpose of trading; it was established there because that was where the natives came. I submit that where an establishment was made simply for commercial purposes, no question of delimitation of boundary being raised at all, it is absolutely without significance as showing an official act on the part of a Representative of the Russian Government signifying that that was their southern boundary. Then again in his oral Argument, on p. 127, he says:— Then, to follow up this question of Tongass, it will be found that in 1869 General Thomas, of the United States, speaks of Tongass as being on the boundary. Now, there is a distinct statement by General Thomas in the year 1869— two years after this territory had been taken over by the United States from Russia, that Tongass is at the southern end of the Alaska Archipelago, and is on the boundary between Alaska and British Columbia. 697 I submit that it is quite impossible that that language could have been employed if the boundary between British Columbia and Alaska had been constituted by the Observatory Inlet of Vancouver, as is now contended. General Thomas was merely a military officer. He was not charged with any question of settling and determining boundary. To take an expression of that sort in a letter or communication that had no reference to the establishment of boundary, and say that it was declaration on behalf of the United States that that was the limit of their boundary, is pressing this sort of evidence entirely too far and laying a burden upon it that it was never intended to bear. If boundaries between nations are to be upset or established by declarations of that kind in a matter not appertaining to the question of boundary, there would be no stability whatever and no certainty in regard to national boundaries. Again, in his oral Argument, on p. 127, he refers to General Davis and says:— In 1870 General Davis writes a letter, dated the 20th August, which will be found at p. 357 of the United States' Case, the page before that to which I was referring just now. He says— And then he quotes from General Davis— " Within the past few months I have visited in person most of the tribes living on the islands forming the Alexandrian Archipelago, as well as the mainland east and north of them, from Fort Tongass to the Taku and Chilcat Rivers. I have also visited those in Cook's Inlet, Island of Kadiak, and several of the Aleutian Islands, including St. Paul and St. George in Behring Sea. With the exception of the two last named (which will be more fully reported upon in detail hereafter), I found a very satisfactory state of affairs existing among the natives." Now the Attorney-General proceeds:— There Tongass is referred to in a way, I submit, which seems to indicate that it was the southern part of the United States territory. <*te ARGUMENT OF JACOB M. DICKINSON. 775 If that is the only evidence that can be adduced by Great Britain to show the interpretaton put upon this Treaty by the United States, it is of a most unsubstantial character. General Davis was there for a purpose entirely dissociated from the question of boundary. His statement, even if he had believed that that was the boundary, would have been nothing more than that of a private citizen. He had no authority for making any declaration in regard to boundary. There is nothing to show that his mind was addressed to anything except merely a comment upon the Indians that he was visiting. Incidentally he speaks of them as being at the southern boundary. Again on the same page the Attorney-General says:— And in 1898 ari official of the United States' Education Department, in a document which will be found at p. 481 of the Appendix to the United States' Case, referred to the position of Tongass with reference to territory. Then he reads the paragraph upon which he predicates the conclusion that there is something here which was an official act of the United States' Government to show an interpretation of this Treaty upon the question of Portland Canal. In 1885 I sent Mr. and Mrs. Lewis Paul as missionaries of the American Presbyterian Church to Fort Tongass, on Tlekhonsiti Harbour, at the extreme southeastern point of Alaska, where they remained for several years. In 1895 this Mission was transferred to Saxman, on Tongass Narrows, where Mr. James W. Young and the Rev. Edward Marsden were in charge. Then Tongass is again mentioned near the end of the document, where he says that " a detachment of the United States' Army had encamped at Kadiak, Kenai, Sitka, Fort Wrangell, and Fort Tongass from 1867 to 1877 inclusive." Then he goes on:— Upon the withdrawal of the military in 1877 a naval vessel—at first the "Jamestown" (Captain Henry Glass), afterwards the "Adams" and the 698 " Wachusett," the latter commanded by Captain Lull—was stationed at Sitka, cruising, as circumstances required, to preserve order among the natives from Fort Tongass in all the inlets to the head of Lynn Canal. Now, what was the conclusion he bases on that ? He says:— / mJ Now in these two passages this gentleman, an official, writing as an official, describes Tongass as at the extreme south-eastern point of Alaska, and refers to the cruising, which was done for the purpose of preserving order, as being from Fort Tongass in all the inlets to the head of Lynn Canal—again obviously indicating that Fort Tongass is treated as the southern point of the United States' territory. This man was merely an educator sent out there to superintend the establishment of mission schools, and had nothing on earth to do with questions of boundary. He was in no sense a representative of the United States for any such purpose as that, and even if he had declared in the most explicit terms, which he does not, that that was the line, it would not have been an interpretation by the United States, or by anybody who had a right in that particular matter to speak. No agent can speak beyond his actual or his implied authority. The man who is charged with the duty of promoting education and extending missions has nothing whatever to do with the expression of an opinion as to where a boundary is. But there is no reason to **i ^ suppose that he was intending to express it in the narrow and technical sense that is now insisted upon, or that his mind was at all upon the point as to actually where the line of demarcation ran. It would 776 ALASKAN BOUNDARY TRIBUNAL. be unreasonable to base any conclusion upon anything which was said or done by him that the United States thereby gave in the remotest degree an interpretation in regard to where this line was to run. The next act relied upon by the Attorney-General in the way of interpretation by the United States is a comment on Scott's sketch map of the United States. He says, on p. 128:— Now, there is another reference to Fort Tongass contained in a report which was made by Major Scott in the year 1867, with which I ought also to deal with at this point, as I submit it bears out our contention with regard to the position of Tongass as the extreme limit of the frontier. It will be found in the Appendix to the Case of the United States at p. 437 and the following page. And with this despatch should be looked at a sort of rough sketch, or rough chart, which he drew. It is numbered 31 in the atlas appended to the' Counter- Case of the United States. At least, it is numbered 31. The numbering of the United States' Counter-Case is consecutive; they run on from the Case to the Counter-Case, No. 31. This island is here referred to under the name of Ton- nis—it seems so to be spelt; it is marked off the point. Wales Island is marked by name. Sitklan and Kanaghunut are also shown, and various islands; and then to the south the words 1 Portland Channel" appear as applied to Vancouver's Observatory Inlet. Now, he concludes by saying (quoting from the report on the Portland Canal) :— The Portland Channel is an important inlet for trade with the iiaterior tribes. It is desirable as a means for developing the counrty, and for the purpose of affording protection to our traders and revenue officers, as well as to pi*eserve peace within our own and the British Indians, to establish a small military post on or near the channel. Such an establishment would also have a good moral effect upon the tribes living or trading for many miles around the vicinity. He concludes then:— That Colonel Scott, when he selects a post, as he is directed to do, on the north side of Portland Canal, chooses Tongass. Colonel Scott shows why he chose Tongass. Pearse Island, Wales Island, or Sitklan Island afforded no sufficient convenience for 699 establishing a military post, and he selected Tongass because it answered the purposes that he had in view when he established a military post, and not for the purpose of laying down and indicating any boundary. Military posts were not selected witK a view of establishing a boundary, but with a view of being at a point where they would subserve, as intended here, the purposes of controlling the channels and the trade. No doubt, on account of the characteristics t)f the country, it was also selected as affording sufficient facilities for the establishment of a fort, and for everything that would be incident to it. On these rocky islands there were no conveniences at all for the purpose. Therefore, the establishment of a fort at Tongass has no bearing whatever on the question of boundary. But if you take Colonel Scott's Report, you must take it altogether, and you must take his Report along with his map. If you look at his map on p. 31 of the United States' Atlas, you find that he marks the body of water south of Wales Island distinctly as Portland Channel. If he had any information on the subject of the Treaty between Russia and the United States and that between Russia and Great Britain, and was attempting then to delimit the boundary under that Treaty, and knew that the Treaty called for Portland Channel, what is the whole effect of what he did ? We look to the significant thing that when he made his map he laid down Portland Channel as the body of water that we claim was Portland Channel. Certainly, ARGUMENT OF JACOB M. DICKINSON. 777 foat ought to have more weight and bearing than his establishing i military post upon Tongass Island. Mr. Aylesworth. Do you think we can rely upon the place he Duts Portland Channel any more than we could on the place he puts Salmon Cove? Mr. Dickinson. You can rely upon it that he thought it was Portland Channel, and if he thought it was Portland Channel then le could not be supposed to be making a declaration as to the bound- iry by establishing a military post on Tongass Island. He could not nterpret and construe the Treaty unless he knew something about it. The President. I do not think any of these are put as declarations is to boundary, Mr. Dickinson; I think you are reading into the Attorney-General's argument something he never intended; he was pointing out that these are consistent with his case, not inconsistent; le never spoke of that as a declaration of boundary. Mr. Dickinson. Well, I do not see that they are relied on to have my other effect. The President. I quite agree with you that these people were not considering boundaries at that time, but they were considering what luty they had to perform. Mr. Dickinson. I cannot understand, Mr. President, why they are illuded to at all. They must have been brought forward as significant facts. They wTere dwelt upon at very great length, and a large part of the Attorney-General's argument yvas addressed to developing these acts of the officials of the United States, and I cannot see for what purpose they were introduced into the argument, except to show that after the Treaty they were significant acts as indicating the interpretation put by officials of the United States upon the Treaty. The President. That is quite right; that is different altogether. Mr. Dickinson. And I take it that the language that I have quoted from the Attorney-General clearly bears out that conclusion. Comment is made at considerable length upon the establishment of storehouses on parts of Wales Island in 1896. In his oral argument at p. 147 the Attorney-General says in regard to this:— 700 Now, that is the act which is relied upon as evidence of possession by the United States. Well, in the first place, it happened in the year 1896, when the controversy had been long pending, when surveys had been held with a view to settle some parts of the boundary, and an act done at that time, I submit, cannot possibly have the slightest bearing upon the controversy now in existence between the two Governments, having regard to the Treaty by which the preliminary or subsequent acts of the Parties are to be taken into account so far as they throw light on the original and effective question—I am quoting from memory, but I think accurately—of the Parties to the Treaty. Now, if the matter was sub juclice in 1896, of course these comments would be very proper, and I would accede to them. I shall undertake, howeyrer, in another part of my argument, to show that the matter was not in controversy at that time. The Attorney-General relies upon the act of Gaillard after the storehouses were erected for the purpose of showing that he understood, and had in his mind that we were taking possession of something new, and that we were going through the solemnity that is sometimes gone through with when a country acquires new territory. He emphasizes the fact that in the report it is stated, " and then" again the salute, the three cheers, and the uncovered heads, and the flag is hoisted." The instructions that PM5WWBWWBW 778 ALASKAN BOUNDABY TBIBtTNAL. were given to Gaillard are not shown in the record, but the character of them sufficiently appears on p. 301 of the British Appendix. He says:— Orders and instructions directing uae to proceed to Porl&and Channel (Canal), Alaska, for the purpose of making a preliminary examination of the same and of constructing four storehouses on its western bank were received just before noon on the 17th August, 1896, and I left Washington, D. C, that night for Seattle, Wash., vnt Portland, Oreg., the stop at the latter place being necessary; to consult with Captain W. L. Fisk, United States' Corps of Engineers, engineer of the Thirteenth Light-house District, in reference to the light-house tender, " Manzanita," which had been ordered to be placed at my disposal at Seattle, Wash., for the transportation of myself, labourers, and materials from that point to Alaska and return. I arrived in Portland on the morning of the 24th August, 1896, conferred with Captain Fisk, and left on the afternoon of the same day for Seattle, where I arrived at midnight and found the " Manzanita " awaiting me, provisioned for the trip and with her coal-bunkers filled. Conversation with her efficient commander, Captain William E. Gregory, and inquiries made in Seattle showed that, unless enough coal for the entire trip could be carried from Seattle, serious inconvenience and delay would result, as no coal could be purchased in Alaska nearer than Juneau, distant about 400 miles from the head of Portland Canal. There is nothing there indicating that Captain Gaillard was sent for the purpose of taking any formal possession. He was simply sent for the distinct purpose of erecting certain storehouses within what the United States conceived to be its own territory. Undue significance is given to the fact that after he erected these forts he went through some sort of a ceremony, and because the ceremony there was similar to that which was observed when Alaska was taken over at Sitka the inference was drawn that possibly his instructions were of such a character that he understood that he was entering upon territory that hitherto had been foreign to the United States, and that the acts that he then performed demonstrated this. Mr. Lodge. Mr. Dickinson, I do not know whether vou read it— 7 ml perhaps you did—but does not the letter of the Secretary of State for War contain the exact statement to send to the Senate a report of the preliminary survey ? Mr. Dickinson. What page are you reading from? Mr. Lodge. Page 300 of the British Case, " To send to the 701 Senate the report of the preliminary survey of the Portland Channel in the Territory of Alaska." It is not spoken of as boundary. Mr. Dickinson. So far as it goes, it does not indicate the full instructions, but I take it that if there had been any instructions given at that time which indicated that Captain Gaillard was to proceed in such a way as would indicate that the United States was entering upon territory which it had not yet claimed, it would appear in those instructions. There is nothing in the record to indicate that Captain Gaillard was sent for the purpose of doing anything except erecting those storehouses. When he came to report there was nothing of very great moment, and in order to make his report as interesting as possible, when he reported the fact of establishing these forts he also gave all the minutiae of what took place when the flag of the American nation was run up. Saluting the flag with cheers and uncovered head does not indicate to the American mind anything such as is suggested by the Attorney- ARGUMENT OF JACOB M. DICKINSON. 779 General. There is nothing in our country and under our form of government of hereditary rank associated with the nation and around which the respect and affections of the people centre. The flag is the only continuing symbol of national life. It always is the avatar of our sentiments of loyalty. For each citizen it stands as the emblem of his ideal of the loftiest sentimente of pure patriotism. Every schoolboy in the remotest parts of that vast country from earliest childhood mounts the rostrum, and filled with vague aspirations for the future, open to all alike, declaims: 'Tis the star-spangled banner, Oh! long may it wave O'er the land of the free and the home of the brave. It would have been unnatural and un-American not to cheer and salute with uncovered heads When the flag went up. The fact that they saluted and cheered is, to my mind, one of absolute insignificance, so far as the idea of taking possession of new territory is concerned. But great importance seems to have been attached to it by the Attorney-General, and I can see very well, from his standpoint, that this should be the case. My associate, Mr. Lansing, calls my attention to the fact in this connection that when Storehouse No. 4 was erected it was near.the head of Portland Canal and on the west side, and in territory about which there could possibly be no doubt, and that there they went through the same formal ceremony that signalized their proceedings on Wales Island. Mr. Aylesworth. That is doubtful territory, Mr. Dickinson. That is territory that the Tribunal here will have to decide about. Mr. Dickinson. Yes? Mr. Aylesworth. Storehouse No. 4 is between the two forks at the head of the canal, and it depends upon where the line comes. The President. Between Salmon River and Bear River. Mr. Aylesworth. You would be quite right, however, as to Storehouse No. 3; there is no question about it. Mr. Dickinson. I made a mistake in calling attention to No. 4. I should have said Storehouse No. 3, on the west side of Halibut Bay, and the remarks that I made as to Storehouse No. 4 are entirely pertinent to that. Now, I shall ask the Tribunal to answer the interpretation that we say was put upon this Treaty in respect of Portland Canal by the official maps of the several countries, and as these maps have not been commented upon from our point of view, and have not been exhibited to the Tribunal by our side, I shall have to call your attention to suggestions that I think are material. The first that I shall deal with are the official Russian maps. Mr. Lodge. Mr. Dickinson, before you leave that map of Captain Gaillard's survey entirely, do you happen to have the extract from the Statute authorizing the appropriation ? 702 Mr. Dickinson. I am not prepared to answer the question. I will make a note of it and see. Mr. Lodge. Of course the appropriation was made by a clause in the Appropriation Bill by which Congress authorized the survey. Mr. Dickinson. I have it not at hand. I am informed that We may be able to get it, but we did not bring it with us. Mr. Turner. As that Gaillard incident goes, Mr. Dickinson, I observe, in the preliminary part of his report, he describes Portland 780 ALASKAN BOUNDARY TRIBUNAL. il Canal as named by Vancouver, and describes it in such a way that he evidently had in mind the Portland Canal of the United States, and, if he thought that then no significance is to be attached at all to the raising of the flag, because everyone would have known that it was United States' territory ml Mr. Dickinson. As I observed, he lays down on the map Portland Canal to the south of these islands. He must have understood that the United States' claim was to that Portland Canal, and that was as strong a form of declaration as could be. Mr. Turner. Gaillard describes the Portland Canal also as showing that he meant the same canal in the commencement of his report. Mr. Dickinson. The first map to which I call attention is the Russian map in the United States' Atlas, No. 11. In presenting this question I shall only deal with the official maps of the several Governments—those of Russia, the United States, and Great Britain. This is the Russian Admiralty Chart, No. 1,266, published in 1826. On this map the names Portland Canal and Observatory Inlet appear to apply only to the narrow upper portions of the two arms named Portland Canal, exending north-east from the head of that arm, while the name Observatory Inlet runs to the eastward from a point near the head of Alice Arm, the lower part of the inlet—the common entrance of the two arms named is draAvn relatively too wide, and ml 7 has no name whatever. Two small islands appear nearly midway in the passage a little to the north of Work Inlet,but cannot be identified with certainty owing to the inaccuracy of representation. A boundary line drawn northward from Portland Canal, if~~this map were the sole guide, would necessarily pass through the middle of this broad, open channel to the entrance of the narrower portion beginning at Point Ramsden There is nothing in this map that seems to be of special significance, except that the longer channel is named Portland Canal. Upon the theory that I have already discussed, that character of designation would imply that Portland Canal extended to the whole body out to the ocean, or that from Point Ramsden it was an unnamed arm of the sea. The next map is No. 20 of the British Atlas. This is the Russian chart of 1853. This map was referred to by the Attorney-General, and it is claimed by him that it supports the British contention on account of the way in which the name Portland Canal appears. You will observe that it extends below the Point Ramsden down by the side of the channel running north of Pearse Island in the direction CD of the sea. On the other hand, Observatory Inlet is limited to Point Ramsden. If it had been the understanding that the body of water out to the ocean from Point Ramsden was Observatory Inlet, there mJ 7 was plenty of room to have printed the name below Point Ramsden. Now, looking at that map, what conclusion would be drawn? Absolutely and clearly that it was not intended to indicate that Observatory Inlet went out to the sea. As to what it indicates with respect to Portland Canal there may be some difference of opinion. If that whole body of water was treated as one body of water, there is just as much reason for carrying the name down along the north channel as along the southern channel. Whatever may be said of this map, it absolutely negatives the idea that Observatory Inlet was to extend south of Point Ramsden. ARGUMENT OF JACOB M. DICKINSON. 781 In the British Atlas No. 15 there is a Russian Admiralty chart of this part of the North Pacific Ocean, originally published in 703 1844, revised to 1864. Is also given in the United States' Atlas No. 22. This is a small general sailing chart, which gives the details of this part of the coast with considerable precision. The name Portland Canal runs eastward from the head of the arm. The name Observatory Inlet runs on a curve a little to the north of east from a point north of Nass Bay. By the position or appearance of these names, little information is conveyed as to the extent of the arms to which they are respectively intended to apply. The most that can be said in regard to this map is that Portland Canal being the longer arm, under the usual rule which I understand to apply to cartography, the name either applied to the whole body of water §&th of Point Ramsden, or the water from Point Ramsden out to the ocean was an unnamed arm of the sea. So there is nothing specially significant, I submit, in regard to any declaration appearing upon this official Russian map. A very different result, however, will be shown when we consider ml j % 7 the official maps of Great Britain and of Canada, and I first ask your consideration of map No. 21 in the British Atlas, which appears also in the United States' Atlas, No. 35. I think that this may be 7 ml fairly considered as an official map. It was published with a Report of the Select Committee of the House of Commons on the Hudson's Bay Company, and was ordered to be printed on the 31st July and the 11th August, 1857. It has been said that the investigation there was in regard merely to the acts of the Hudson's Bay Company in this remote country, and that it had no particular relevancy to the question of boundary. Yet here the attention of the House of Commons was drawn directly to a map interpreting the Treaty in accordance with the views of the United States, and without any declaration of a contrary purpose or understanding this map was published by order of the House of Commons and given to the world. It may be fairly said that that was an official act of Great Britain putting an interpretation upon this Treaty. This map confines the name of Observatory Inlet north of Ramsden Point, and the name of Portland Canal is brought down below Ramsden Point to a point opposite what appears to be an island— possibly Pearse Island. It clearly negatives any conclusion that it was intended to indicate that Observatory Inlet was to apply to the body of water extending out into the sea, and on the other hand, it may be said that it indicates that Portland Channel was to apply to the entire body of water extending out to the sea, because it was a longer channel and there is no passage- shown between the islands and the mainland through any northern channel. The map is drawn, however, upon a very small scale, and probably very great significance oughp not to be attached to that fact. There is hardly any channel whatever indicated to the north of these islands, and the inference would be, looking at the map, that Portland Channel applies to the whole body of water. The United States' Atlas, No. 19, is a Canadian map. I may omit that map. There is some question about it being an official map. However, as I have mentioned the map, I will call attention to it. It is a map of the north-west part of Canada, Hudson's Bay and Indian territories, drawn by ■■"■iiui i 782 ALASKAN BOUNDARY TRIBUNAL. Thomas Devine, by order of the Hon. Joseph Cauchon, Commissioner of Crown Lands, Toronto, March 1857. It is published in the same volume as the map last referred to. On this map the name Observatory Inlet is so placed as apparently to apply to the narrow upper portion of the passage beyond Point Ramsden. The name Portland' Channel does not appear, but the international boundary line on the land is represented as starting from the head of Portland Channel. It sufficiently indicated to anyone familiar with the Treaty what Portland Canal was. It applied to the north-west arm, as is shown by the beginning of the boundary line. That map, however, I do not regard as of any special importance, or as speaking in very plain terms. Map 36 of the United States' Atlas is an official map of British Columbia from the Parliamentary Blue Book, 1859. Mr. Aylesworth. 1869, is it not? Mr. Dickinson. In 1859 it was published. Mr. Aylesworth. The map is printed in the United States' Atlas in 1869, I think. 704 The President. No, 1859. Mr. Dickinson. No, 1859, and that is the proper date. I hold in my hand the official publication, the title page of the volume, or part of the volume, immediately preceding where this map appears. It is entitled " Papers relative to the Affairs of British Columbia, Part II. Copies of despatch from the Governor of British Columbia to the Secretary of State for the Colonies, and from the Secretary of State to the Governor, relating to the government of the Colony, presented to both Houses of Parliament by command of Her Majesty, 12th August, 1859." Now, here is an official map presented to both Houses of Parliament. Let us see what that map shows. The name " Observatory7 Inlet' is in much smaller letters than " Portland Canal. It is confined distinctly to the body of water north of Ramsden Point—in fact, it does not come within some distance of the southernmost part of the peninsula upon which Ramsden Point is situated. The letters " Portland Canal " are very much larger; they are all in capitals, all of the same size, very distinct, and extend from the head of the canal down almost opposite Ramsden Point. There are two very significant features in this map: one is that below Ramsden Point appears the name " Portland Inlet." That is a distinct official declaration that that body of water was not Observatory Inlet. The name " Portland Inlet " is in the water directly south of Ramsden Point. Now, there could not be a plainer declaration by the Government of Great Britain, the attention of «/ 7 Parliament being directly addressed to the question, that that body of water was not understood to be Observatory Inlet. But that is not all. If you look upon this map you will find that the boundary line—a fine dotted line—is indicated here running south of Wales Island, and through the southern channel of water which the United States claim is Portland Canal. There could not be a more distinct and unqualified declaration by an official map on these two questions: first, that Observatory Inlet could not have been understood to apply to that lower body of water, because another name is given to it, and then that the boundary line as they understood it at that time ml ml -a to run, ran south of the island in controversy and along the channel that the United States claim as Portland Canal. The next map to which I wish to call attention is United States' ARGUMENT OF JACOB M. DICKINSON. 783 Atlas, No. 39. This is a map of the Dominion of Canada, showing the extent and situation of its public lands, also its geographical relation to the British Isles. Now, can it be said that this map is not official ? It was published by order of the Honourable Minister of the Interior. When you examine that map it will be neeessary to examine it under glasses to see it distinctly. There is no name at all given to that arm which we all agree, at least down to Point Ramsden, is Observatory Inlet, and the name Portland Canal appears in distinct lettering, reaching down opposite Point Ramsden. From this map it is a fair inference that the name Portland Canal was intended to apply to that entire body of water. The next map is United States' Atlas, No. 41. This does not appear in the British Atlas at all. This is a geological survey map of Canada, entitled a map of part of British Columbia and the north-west territory from the Pacific Ocean to Port Edmonton, to illustrate a Report by Dr. Geo. M. Dawson. . Now, it must be borne in mind that this Mr. Dawson is the gentleman who is very much relied upon by Great Britain for having very clear and, as I shall undertake to show, very advanced views for his time, upon this Alaskan Boundary question. An examination of the map shows a line marked along Dixon's Entrance, " presumed boundary," and leading into the body of water called Portland Inlet. This body of water is just to the east of what would be Pearse Island. It does not show the body of water which we all concede to be Observatory Inlet, nor that body of water to the north of Point Ramsden, but it names that bodv of water south of * ^^ ml Point Ramsden, and which Great Britain claims to be Observatory Inlet, Portland Inlet. So there is a distinct and positive negative made at that time, that there was any understanding that Observatory Inlet had any application to the body of water south of Point Ramsden. Mr. Aylesworth. You will find that in all maps after 1853, will you not ? ml 705 Mr. Dickinson. I beg your pardon. Mr. Aylesworth. You will find that the condition in all the maps after 1853,1 think. Mr. Dickinson. After 1853 ? Mr. Aylesworth. After the British Admiralty map of that date. Mr. Dickinson. I think very likely that is true; and I think it is a very significant fact that from 1853 all along, after the Amer- • «/ C CD 7 ^_^ ican purchase, no effort was ever made upon the part of either Canada or Great Britain to affix the name of Observatory Inlet to any water ml ml south of Point Ramsden. Amd that is the very point which I now seek to enforce, that beginning at a period long prior to the American purchase, so far as the official maps of these countries were concerned, down to the time that this controversy began, there was one unbroken and continuous line of interpretation put upon this question. The next map is No. 32 of the British Atlas. It is a map of the Dominion of Canada. It is the geological map to which the Attorney-General referred in his Argument. Now, this map shows that the countries not geologically coloured are United States territory. Just at the bottom of the map you will see that statement. There is nothing geologically coloured in the channel except an island which seems to be put there, out of place so far as all the other maps are concerned. I am told that it is Somerville Island, and that it is in 784 ALASKAN BOUNDARY TRIBUNAL. British territory—conceded to be. But this map distinctly declares that the body of water south of Portland Canal is not Observatory Inlet. The name Portland Inlet is given to this body of water, and extends on, up, and into, and becomes a continuous body with, Portland Canal. The name Portland Canal, along the upper part of that arm, is in heavy and emphasized letters and capitals, while the name Observatory Inlet, which begins north of Point Ramsden, is in very much smaller letters. If it had been desired to indicate that the body of water south of Point Ramsden was Observatory Inlet, there was room to have placed the letters in the water, because the scale upon which the map is drawn, and upon which the letters are made, distinctly admits of the name having been so placed. The next map is United States' Atlas, No. 42. It is a map of the Dominion of Canada of 1882. This map has, substantially, the same points as those upon which I commented in connection with the last map. It is not necessary that I should make any other observation in addition to what I have already made, because the features in the map under discussion are identical. British Atlas, No. 31, was an official map of British Columbia issued by the Commissioner of Land and Works in 1884. This map lays down the boundary line, beginning out in Dixon's Entrance, passing to the south of Wales and Pearse Islands, and then on up through the body of water which we understand to be Portland Canal. The name Observatory Inlet is so placed on the east side of that arm, above Nass Bay, and in small letters, as to confine it manifestly to that body of water. The name Portland Canal similarly seems to apply only to the upper arm; but then, the boundary line being drawn from the ocean and through the channel, as we claim it, gives a distinct impression favourable to the United States. There is another map, United States' Atlas, No. 28. We have the original map, if it is desired to see it. This is a map of the province of British Columbia, compiled by J. H. Bramwell from the latest maps and surveys from all the reliable sources of information to date, by the direction of the Hon. F. G. Vernon, Chief Commissioner of Lands and Works, Victoria, British Columbia, 1893. Mr. Turner. You say this is one of the maps on p. 28 ? Mr. Dickinson. One of the maps on p. 28; at the bottom of the first page. This map shows the name Observatory Inlet confined apparently to that body of water which terminates at Point 706 Ramsden. Portland Canal is indicated on the opposite side, but not as extending down to the ocean from where it joins what on the maps has been hitherto called Portland Inlet. There is a mere indication by dotted lines of a possible opening out to the ocean, but no one would draw the conclusion looking to the name and looking to the character of the inlet shown by the body of water that it was intended that this name Portland Canal should apply tc that body of water which is merely a conjectural passage designated by broken lines. The fair inference would be, I think, that it was intended to apply to the fair and open channel out to the ocean. II is a mere conjectural passage laid down there, and not indicating, as I submit, that it was any part of the Portland Channel. The next map is No. 28, the one at the top of the second page 28 United States' Atlas. It is a map of the Province of British Colum ARGUMENT OF JACOB M. DICKINSON. 785 bia compiled by direction of the Honourable G. B. Martin, Chief Commissioner of Land and Works, British Columbia, 1895. This map gives the name Observatory Inlet to one side, clearly indicating that it was intended to apply to the body of water terminating at Ramsden Point. If that alone were on the map, it would be a clear declaration to that effect, but if that inference be not plain, the conclusion is absolutely established by the fact that in the body of water from Ramsden Point south the words " Portland Inlet" distinctly appear, making a clear negative that Observatory Inlet was intended to extend south of Ramsden Point. And on this map I call further attention to the fact that the body of water which is now claimed by Great Britain to be Portland Channel lying north of Pearse Island is marked Pearse Canal. I come to the British Admiralty charts, and I will speak of them all together. The first is that of 1853, Chart No. 2168. This is the chart of the American North-West Coast, Queen Charlotte's Island, and adjacent coasts, and is based upon the survey by Captain Vancouver. Mr. Turner. Where is it found? Mr. Dickinson. I will pass this up to the Tribunal: it is cited in the Appendix to our Case. Mr. Turner. It is not reproduced in any of the atlases. Mr. Dickinson. No; it is not reproduced, but I will pass it up and then comment upon it. I call attention to the fact that this chart extends north only to the parallel of 55 degrees, which is shown as cutting across at Ramsden Point. The broad entrance south-west of that point is marked " Portland Inlet." That map purports to be based upon Vancouver, and being based upon Vancouver they name the body o,f water south of Ramsden Point Portland Inlet which seems to be at least an indication that the Admiralty officials at that time understood that Vancouver intended to apply Portland—whether inlet or channel—but certainly the name Portland to that body of water south of Ramsden Point, and it is an absolutely plain declaration that they did not intend to ml JL ml extend Observatory Inlet there, because they gi\re it another name wholly inconsistent with the contention that they understood Observ- ml ml- atory Inlet extended down that bodv of water to the ocean. ml mJ The next map is that of the United States' Atlas, No. 23, and it is a part of Admiralty Chart, No. 2461, of the Pacific Ocean from Cook River to the Gulf of California. This map lays down the boundary line, with an inscription on it:— Boundary between British and Russian territories. It begins north of Portland Channel, runs round Lynn Channel, and so up to Mount St. Elias. The significant part of this map, so far as the present question is concerned, is that the name Observatory Inlet is put at the extreme north of that body of water. Mr. Turner. What map is that ? I did not catch it. 707 Mr. Dickinson. I beg pardon. No. 23 of the United States' Atlas. The name is at the extreme northern part of the body of water, and extends off to the side, whereas the name 1 Portland Can'," in letters somewhat heavier and darker, extends down towards the ocean almost to Point Ramsden. Now, the northern passage way S. Doc. 162, 58-2, vol 7- -20 786 ALASKAN BOUNDARY TRIBUNAL. ■ as shown upon this map is almost entirely obstructed, and the ocean channel is the southernmost channel leading up to Ramsden Point, and around that into Portland Canal. Certainly, if there was any understanding at that time that Observatory Inlet extended down to CD ml # the ocean, the name never would have been indicated as it is indicated here on this map. On the contrary, from the way in which " Portland Can'" is printed on the map, it might well be said that it was intended to extend to the entire body of water down to the sea, but if that were not so, then the other conclusion would be that it extended to the point opposite Point Ramsden, and that from Point Ramsden out to the sea it was an unnamed inlet to the ocean. Attention is now called to British Atlas, No. 23, Admiralty Survey of Portland Canal from Ramsden Point and Portland Point to the head. It is entitled " British Columbia Portland Canal from the Admiralty Survey of 1868." Now, mark it; this is a survey of the Portland Canal, and when we come to see what is surveyed we find it is that body of water reaching down and round below Ramsden Pont. Now, what person, looking at this map, would for a moment say that Portland Canal stopped at Ramsden Point? It makes it run round and come right into the large body of water that goes out to the sea. Then, on the other hand, that body of water which is claimed by Great Britain to be the Portland Channel is ml m merely indicated by conjectural lines, showing it was never intefhded that this northern passage was any part of Portland Channel. The next is British Atlas, No. 24. Here we have a survey of Observatory Inlet, and now let us see what they bought they were surveying as Observatory Inlet. They bring it down almost to Point Ramsden, and then they have it cut off with a line drawn across. That line, I am informed, is put there to show the width, and probably the observation I was about to make that it was intended to indicate that Observatory Inlet stopped there would not be justified. This purports to be a map of Observatory Inlet. It is taken from the Admiralty Survey of 1868, and yet when they give a picture of Observatory Inlet, and a survey of it, they do not carry it one inch beyond Ramsden Point, and there was no idea, it seems, at that time, and no understanding by anybody whether they had read Vancouver's narrative or that Observatory Inlet was to extend out to the ocean. The next is British Atlas, No. 25. This is a survey entitled I North-West America, British Columbia, Port Simpson, to Nass Village from the Admiralty Survey of 1868." Now, at the top of the map, you observe Observatory Inlet is indicated clearly. The significant feature of this map is that Portland Canal is brought round from the body of water which is the the northernmost passage distinctly down to Ramsden Point, and from there out to the ocean it is indicated as Portland Inlet. So it makes Portland Canal at least come around Point Ramsden, and is a distinct negative that it was intended to indicate that Portland Canal passed out by that body of water indicated merely by dotted lines showing that there was some kind of a conjectural passage out to the ocean, but not Portland Canal. I submt if any importance whatever is to be attached to the official maps of this character that a declaration could not possibly be more distinct and unequivocal than has been made here upon this map, ARGUMENT OF JACOB M. DICKINSON. 787 both as to what was Observatory Inlet and as to bringing Portland Canal round through and into the southern channel leading out to the sea. No'matter what you call the body of water, whether you call it Portland Inlet or whether you call it Portland Channel, or whether you give it no name at all, Portland Canal comes in and flows out through it, and under the Treaty if you call this Portland Inlet you have to go up that body of water before you have the coincidence with Portland Canal, and are able to carry the line up through Portland Canal as the Treaty provides. Now, this is the map upon which Mr. Wharton made his note in 1886. I call attention to the fact that that note was made about the time that Mr. Cameron made his Report. Mr. Cameron's 708 report was in 1886. Cameron made this map. He must have made his Report after he made this map. You will observe that this map is signed " D. R. Cameron, Colonel." After he had made this map with the clear declaration that Observatory Inlet did not extend down to the sea, he seems to have thought over the question, and, in his private capacity at least, to have expressed a different opinion, which I shall undertake to show was never taken up and adopted by the British Government. Now, this note of Mr. Wharton's was made at that time, that is to say after the map was made and about the time of the Cameron Report. We have not the exact date that this caveat was made in the note of Mr. Wharton's that in some way or other away back this Portland Inlet was inscribed without authority upon the body of water south of Ramsden Point. So far as the record shows, that note was never promulgated. Indeed, as I shall show, after that time, notwithstanding this notation, maps were published by Great Britain substantially in the same way upon this important question. So that note made in 1886 was merely held to be a private opinion which was not given to the public. It should have no significance whatever as putting the public upon notice at that time that Great Britain dissented from the declarations that had been made by these maps. The Solicitor-General asked, in the course of his speech, " Is the Government of Great Britain, or is the Government of any country, to superintend all the mapmakers of the world ?' No, I say it is not, but it is bound to superintend its own mapmakers. At least that obligation rests upon it, and I think that it did superintend these map- makers, and what is said here is in entire accord with the interpre- :ation put upon this Treaty by Great Britain down to a comparatively recent time. There was no inconsistency whatever between the message spoken by these maps, and all the other acts and declarations ^hich were made in regard to the interpretation of this Treaty. The next map is the United States' Atlas, No. 38. This is the British Admiralty Chart No. 787, published in 1877. On this map he names " Observatory Inlet" and " Portland Canal" are both in talic letters of about the same height. Both names run to the northeastward from the respective arms, Observatory Inlet from the head, between its two branches, Portland Canal from a point a little south )f the head. There is thus no name indicated for the broad approach Prom Dixon's Entrance to these two arms, but the map gives no uncertain testimony to the fact that the southern, broad Channel was considered the principal entrance. Its shores are drawn in bold lines, ts waters represented as clear and unobstructed, while the passage ho 788 ALASKAN BOUNDARY TRIBUNAL. back of Pearse Island is represented as a supposititious one, by dotted lines only. No one studying this map, and wishing to draw a boundary-line from Dixon Entrance to enter Portland Canal, could suppose that such a line would proceed otherwise than through the broad, open, navigable channel marking the plain and obvious entrance to Portland Canal. Now, as late as 1903, we have this same map. I can pass it up. Then the next, the British Admirality Chart No. 2430. That is not in the Atlas. It is entitled " Queen Charlotte s Island and adjacent Coasts of British Columbia." I will pass one copy of this up to the Tribunal. Sir Edward Carson. Can you give us a copy ? Mr. Dickinson. Certainly. It is cited in our list of maps. This map only extends along towards the upper part of Pearse Island, but the body of water which is now called Observatory Inlet is there ml ms named Portland Inlet, and the body of water which Great Britain now claims as Portland Channel is named upon this map Pearse Canal. Now, please turn to British Atlas, No. 33. This is Admiralty Chart 2431, Cordova Bay to Cross Sound, 1865, with corrections to 1884. This chart repeats and confirms the statements of the Admiralty Survey of 1868 already cited. The name Observatory Inlet is along the side of the body of water north of Ramsden Point, and from Ramsden Point south the name Portland Inlet is given, negativing, as I have hitherto said repeatedly, the idea that Observatory Inlet was understood to extend out to the sea.. * 709 We have the 1902 edition of this map, which is practically thexsame, the body of water from Ramsden Point south being named Portland Inlet, and that north of Pearse Island and Wales Island being named Pearse Canal. This map, I observe, has not Mr. Wharton's note on it, although Map No. 33 of the British Atlas has Mr. Wharton's note. The next map is the British Admiralty Chart No. 2,458, which is from Fort Simpson to Port McArthur, published in 1896. This map, I call atention to the fact, was published under the superintendence of Rear-Admiral W. J. L. Wharton. I pass this map up to the Tribunal and will then comment upon it. The significant feature of this map is that the body of water from Point Ramsden south is marked " Portland Inlet"—a clear negative that it could be intended to apply to Observatory Inlet, while Observatory Inlet is confined to that body of water north of Ramsden Point. The name Portland Canal is applied to that body of water north-west of Observatory Inlet and north of Ramsden Point. Pearse Canal is so marked upon this map. Now, here are two distinct statements:— One is thafr the water from Ramsden Point out to the ocean is not Observatory Inlet, and the other that the body of water north of Wales Island and Pearse Island is not Portland Canal. The last British map to which I call attention is the British Admiralty Chart No. 2,431. It was first published in 1865, and was republished in 1868, 1869, 1898, and 1902. It is like the other charts, and entirely supports the contention of the United States. Now, while no definite conclusion can be drawn from the Russian maps, they being small and rather vague and indefinite, yet wfyen you take the British official maps and the Canadian maps down to the ARGUMENT OF JACOB M. DICKINSON. 789 Lime immediately preceding this controversy, the declarations made repeatedly and unequivocally are that the body of water south of Ramsden Point was never understood by the British Government to apply to Observatory Inle't. Now, I ask attention, and I will be brief on that, to the United States' official maps. The first map to which I call attention is the map of 1867, as prepared by the United States' Coast Survey at the time of the purchase. It appears on p. 24 of the United States' Atlas. This map does not !*ive the name of Observatory Inlet at all, but it does give the name of Portland Canal in large, heavy-face letters reaching from a point above the head of that canal down almost to the ocean, and the significant part of this map is that the islands south of the channel which Great Britain denominates Portland Channel, are coloured as American territory. m7 Now, I recall, of course, and I have not forgotten, that his Honour the President said that not much importance was to be attached to the colouring. I suppose he meant where the colours are shaded into 3ach other in the small maps, but I think importance is to be attached to the colouring here. The colouring on this map of these islands is just as distinct as any other part of the map, and it could not be accounted for by any suggestion as to hand colouring, or that the 3olours shaded into each other. It is clear and distinct. It is a ieclaration, just as plainly as if it were written on the map, that the islands in question were the territory which the United States understood she was purchasing from Russia, and that Portland Canal, which was the natural boundary between Russia and Great Britain, was that body of water running south of those islands. This map was published. I do not suppose it will be contended for a moment that it was not known to Great Britain. We all know that Governments which are on the alert, as all these great Govern- nents are, are just about as well posted as to what transpires in-matters oi this sort as those who do the acts. When we take into consideration that they were official publications, I do not suppose the idea will be idvanced or attempted to be maintained by anyone for one moment that Great Britain did not know this map of that territory, and what it purported to claim. The President. It is not very important, Mr. Dickinson, for the reason I gave, but although they are very small, as showing you how mrelessly the colouring is done, the small islands to the south there, which are undoubtedly British, are also coloured brown—there is ao dispute about them. They are quite small ones, I agree, but they have got the brown colour upon them. riO Mr. Dickinson. Yes, I see it; they rather appear to be black. The President. I only show you one; we have had it over and yyer again; I do not think this was hand colouring, but people did not imagine that they were making these State declarations that you nave been referring to when they were colouring these maps. Mr. Dickinson. These islands you refer to, Mr. President, appear to me to be a black colour, not the same colouring, but at any rate they appear to be quite small. The President. They are. Mr. Dickinson. And the other island is large and distinct, and §br 790 ALASKAN BOUNDARY TRIBUNAL. the colouring is brought out just as emphatically as it is on the mainland. The President. That is a fair observation to make. Mr. Dickinson. Still I made the observation I intended to make, and present it to the Tribunal, and of course it will carry as much weight as it is entitled to. The President. I understand. Mr. Dickinson. The United States' Atlas, No. 31, is a sketch accompanying the Report of Colonel Scott. I have already called attention to that map in connection with the discussions on Fort Tongass, but this map shows that at that time when Colonel Scott made his sketches there he brought Portland Channel down south of Wales Island, and the other islands in controversy. This now concludes all that I have to say upon the Portland Channel. I have no doubt the Tribunal feel very much relieved that we have got over the tedious examination of these maps. It seems to me to have been established that there is no evidence as claimed by Great Britain that Vancouver's narrative was not merely known—I admit that it was known, at least there is the presumption that it was known to the negotiators—but that it was relied upon by them in determining the terms of this Treaty and their application. To proceed to the next point. When we look to the maps that were known to be before the negotiators, the result of all of these maps, and certainly the result of the Faden map, would be to impress upon their minds the fact that the channel which Count Nesselrode referred to when he spoke of Portland Channel was the onejyhich came out to the ocean nearest to the parallel of 54 degrees 40 minutes. Some comment has been made upon the significance of 54 degrees 40 minutes, and I have but one suggestion to make in regard to that. Russia, in the Ukase, of 1799, had claimed down to the 55th degree. When she issued the Ukase of 1821 the claim was made further south and was attempted to be extended to the 51st degree . Then the claim was also set up simultaneously in regard to the right of control of navigation 100 miles from the coast. This was challenged by Great Britain and the United States, and out of this grew the controversy which led to this Treaty. In her endeavour to reach a settlement of this question, Russia was willing to withdraw her line as set up to the 51st degree to the 55th degree, claiming that that had been unchallenged at all times, and had never been disputed. Down to the time of the conclusion of the American Treaty the negotiations proceeded upon the idea that they would reach an understanding, so that the dividing line would be at the 55th degree, but to be extended sufficiently south to take in the two points Prince of Wales Island so as not to cut it in two. But when the American Treaty was concluded a new and significant feature was introduced into the transaction. The American Treaty had fixed the line between Russia and the United States at 54 degrees 40 minutes, and at that time, and upon the very day that the Treaty was concluded, Count Nesselrode emphasized the fact that Russia would bring its boundary line up to 54 degrees 40 minutes, and connected it directly with the American Treaty. The Treaty 711 between Russia and Great Britain was concluded, so far as Portland Canal is concerned, directly upon the proposition that was made by Count Nesselrode, and growing, as I contend, ARGUMENT OF JACOB M. DICKINSON. 791 largely from the fact that the same boundary line had been fixed between Russia and the United States. It is not to be supposed that there was any very great controversy at that time as to which particular channel they were to go up. It is, I think, a fair conclusion to say that when it was known that the boundary line between Russia and the United States had been fixed at 54 degrees 40 minutes, all parties understood that it would be well to make the two boundary lines coincident, and that, therefore, 54 degrees 40 minutes being directly before their minds, and in connection with Portland Channel, could not be overlooked as a significant fact in pointing to the identity of the Portland Channel tnat they had in mind. As I pointed out before, it was a matter comparatively unimportant as to whether they proceeded along 54 degrees 40 minutes, but it is a matter of the very greatest importance as to whether or not 54 degrees 40 minutes demonstrated the channel which they had in view when they spoke of Portland Channel. I now proceed to discuss the third question, and that is whether the line shall go directly to the ascertained Portland Channel, that is to say, after this Tribunal shall have answered the second question, if they shall answer it, and say which channel is Portland Channel, or whether the line shall proceed along the parallel of 54. degrees 40 minutes and thence to the Channel. I do not want to suggest anything that would weaken the contention of anybody or of any views advanced by our side in this Argument, and I accept the arguments that were made upon that point, and the views that were advanced, and leave them exactly where Mr. Watson left them. But after the channel shall have been determined I believe that it is a matter comparatively unimportant as to just how that line shall be drawn, and it seems to me there is very little more to be said upon the third question. The fourth question is, to what point of the 56th parallel is the line to be drawn from the head of Portland Channel, and what course should it follow between those points? The language of the Treaty is:— A partir du point le plus meridional de Tile dite " Prince of Wales," lequel point se trouve sous le parallele des 54 degres 40 minutes de latitude nord, et entre le 131e et 133e degre de longitude ouest (meridieh de Greenwich), la dite ligne remontera au nord le long de la passe dite " Portland Channel," jusqu'au point de la terre ferme ou elle atteint le 56e degre de latitude nord; de ce dernier point la ligne de demarcation suivra la crete des montagnes situ6es parall&lement k la cote. (Adjourned till to-morrow at 10.30 a. m.) 792 SEVENTEENTH DAY.—TUESDAY, OCTOBER 6, 1903. All the Members of the Tribunal were present. Mr. Dickinson. Mr. President, when we adjourned yesterday afternoon I had just reached the fourth question and that part of the Treaty which I read bore directly upon the fourth question. To repeat just a few words, the language is:— La dite ligne remontera au nord le long de la passe dite " Portland Channel," jusqu'au point de la terre ferme ou elle atteint le 56e degre de latitude nord. The contention of the United States is that 1 le long " is not only intended to qualify the direction of the line along the channel, but also its continuation in the same direction until it reaches the 56th degree of latitude. It seems to me that when one direction is given, and you proceed along that direction and a further point is designated—unless a new departure or a new direction is indicated—the plain inference is that you follow the direction which has been indicated until you reach the point to which you are to proceed. The direction is to proceed along the channel up to the point, and I contend that the fair and natural construction of that is that you are to ml proceed to the north, not only along the Portland Channel, but until you reach that point. Sir L. Jette. I believe the question would be, what is the point ? Mr. Dickinson. The point on the 56th degree is the point that is designated. Sir L. Jette. The Treaty, I believe, says the end of Portland Channel, it means that. The President. Mr. Dickinson is contending that I le long " indicates that you are to go on in the same direction. Mr. Dickinson. That you are to go up in the same direction. My contention is that you are to follow the calls which are given in a deed or m a survey, that where one direction is given, and an objective point is indicated, until a new departure is expressly mentioned, you follow the same direction until you reach that objective point. The direction here was to the north along Portland Channel up to that point, and I say that the fair inference is that " north' was to characterize the direction of the line, not only while it proceeded along Portland Channel, but until it reached that point. They all conceded that the maps were not accurate, and it is conceded by everyone, in argument, that they made the Treaty with reference to the location as shown by the maps, as indicated on the pictures which were, to all intents and purposes, part of the Treaty. They made the Treaty in the light of the maps and with reference to them. When they contracted that the line should proceed up 793 ARGUMENT OF JACOB M. DICKINSON. 793 Portland Channel to the 56th degree, and when the contract was made with reference to the mountains that were indicated on 713 the maps, the intention was that the line should go along in the same direction up to the 56th degree, and that it should reach the mountains somewhere in the neighbourhood. I call attention to a passage in the Argument of the Attorney- General on this subject at pp. 171 and 172:— There is no intention given as to the course of this line at this point except that it follows Portland Canal till the 56th degree. Well, that seems to assume absolutely that Portland Canal does reach that degree, and I think that that is made very clear if one bears in mind what took. place during the negotiations upon this point. If it be conceded that they assumed absolutely that Portland Canal was to reach that degree, and if it appear during the negotiations that that was their intent, then, the intent being thus plainly disclosed, it is the duty of anyone who construes that instrument to carry out the intention thus clearly expressed. It seems by the concession, or rather the view that is taken of this question by the Attorney-General, that they understood that Portland Channel was ml ml to reach to the 56th degree, and m the same direction along which they were then proceeding. In the same connection, if you will turn to pp. 174-5, you will find that he further says:— As you are going along the pass called Portland Channel till you get to the point where terra flrma reaches the 56th degree of latitude north, what is to happen if your guide, the Portland Channel, fails you before you get to that point? One always recurs to the same difficulty, and I submit that as soon as the channel—| la passe "—ceases there is no indication given by these words as to the direction in which the line is to go—that that can be sought only by seeing what is the next point which you are going to make for. And further on, at p. 181, in the same connection near the bottom of the page, it reads that:— The Russian counter-draft, which is at p. 94 of the same Appendix, varies the expression in this way:— "Jusqu'au point ou cette passe se termine dans I'interieur de la terre ferme- au 56e degre de latitude nord." Then the Attorney-General proceeds:— That, of course, requires attention, because there the Russians vary the expression so as to make it plain that in their view this channel was one which terminated at the 56th degree. If it be conceded that that was their view, and their understanding, and it seems to be conceded as plainly as language could make it, can there be any possible question as to the construction that should be put upon the Treaty ? Does it not make plain, clear, and unequivocal, the understanding the Parties had as to where the line was to go ? Now, on p. 182, near the top, he says:— My contention is that the true answer to this question is an answer which, perhaps, is not exactly an answer in terms—that from the head of the Portland Canal you must go to the commencement of the line of mountains. That is my submission. And further down:— And if that is to be answered, I say it is the point on the 56th parallel where you find your mountains. I have now completed what I have to say upon these first four questions, which form a group by themselves. g&SB? ALASKAN BOUNDARY TRIBUNAL. There is an entire inconsistency, when it is admitted that the negotiators thought this canal went to the 56th degree, the point called for by the Treaty, to say that you must look for mountains before 714 you proceed to the point on the degree. How can one say that you cannot determine that point until you have first found mountains which coincide with the 56th parallel, and that then you must connect the point back to the head of Portland Canal? As to the proposition that if the Portland Channel gives out before you reach the point, I will offer a plain illustration. Suppose someone should say, " Proceed along Pennsylvania Avenue up to the Capitol at Washington." All who are familiar with the city of Washington know that Pennsylvania Avenue proceeds directly towards the Capitol, but that at 300 or 400 yards before reaching the Capitol there is an intervening space of ground which separates it from the Capitol building, which is what we mean when yve speak of the Capitol. Naturally, one would go along Pennsylvania Avenue, and when the Avenue gave out and the Capitol was just ahead, he would not go in a roundabout way some 57 miles in another direction to get to the Capitol, but when the direction was exhausted, would take the nearest and most convenient way of reaching it. That suggests the way practically of looking at the maps and construing the Treaty. When the Solicitor-General was questioned by his Honour the President on that subject, he said that if the line were to go up Portland Canal and forward, he had no special choice to suggest as to whether it should proceed up Salmon River or up Bear River. The President. Or between the two ? Mr. Dickinson. Or between the two. The conclusive suggestion was made by the President that it could not have been intended to proceed up Salmon River, because Salmon River comes in below the head of Portland Canal. So you could not go along Portland Canal up to its head and then go back and go up the Salmon River. Mr. Aylesworth. On that point, Mr. Dickinson what is the direction of the line you contend for after you leayTe the waters of the 'Portland Canal ? Do you think the line should be drawn as a production of the line joining the mouth of the canal at the sea, to the head of it, or do you think it should be a production of the last stretch of the canal ? Mr. Dickinson. I think the last stretch. I think that is the natural construction to put upon it- Mr. Aylesworth. Not the general direction of the whole canal, but that of the last portion ? Mr. Dickinson. Not the general direction, but the direction in which you were going. Mr. Aylesworth. When the canal " gives out." Mr. Dickinson. Wlien the indication that has been given gives out. Mr. Root. That follows the ravine through which the Bear River flows, does it not ? Mr. Dickinson. If you look at Map 30 of the LTnited States' Atlas you will there see that for a long space before you reach the head of Portland Canal the line would proceed in a direction which would carry it almost up the centre of Bear River as it appears here, and in this connection I beg leave to call attention to p. 55 of the ARGUMENT OF JACOB M. DICKINSON. 795 Appendix of the United States' Counter-Case. There you will see a photograph which is a representation of the Bear River Valley. Mr. Root. At p. 55. 715 Mr. Dickinson. No, I beg your pardon, at p. 241 of the United States' Counter-Case. If you look at the representation at the bottom, representing Bear River Valley, as shown by the inscription, you will see that a line prolonged up Bear River Valley will reach the mountains near the 56th parallel. As to whether or not they are mountains which the Tribunal would say would come within the meaning of the Treaty is another question, but a line prolonged up there does reach mountains. The height of the peaks I am not now prepared to give. They are just about at the coincidence of the line with the 56th parallel. Mr. Turner. Mr. Dickinson, there appears to be a hiatus at both ends of the Portland Canal. Why is it not correct to bridge that hiatus at each end in the same way and on the same principle, that is, by the nearest possible route? Mr. Dickinson. I think the nearest possible route coincides exactly with the line that has been followed. Mr. Turner. I do not say that it does not. Would not that be the most correct scientific proposition? Mr. Dickinson. I think it would—I think if there were no passage there and Portland Canal were exhausted—I beg your pardon, do you mean to make a departure from the direction in which you were proceeding ? Mr. Turner. To get to the 56th parallel by the nearest possible route. Mr. Dickinson. No, that is not the contention, and that is not the contention I have advanced. I draw my conclusion from what I claim to be the usual practice of surveyors in the designation of land boundaries and in tracing them out upon the ground. I believe it to be an accepted doctrine amongst surveyors that after a direction has been given, and you are going in that direction to another point that is called for and no new line of departure is designated, you proceed in the same line rather than turn off. But practically there would be very little difference here whether or not you take the nearest ml ml route or go up Bear River. They are very nearly the same; possibly it might be a little nearer going up the promontory between Bear River and Salmon River. That is a matter, however, for an expert to answer. I am not prepared to do so. Then, is it not a fair conclusion that no condition was intended to be imposed that there must be mountains where the line would strike the 56th degree? The line was to strike the 56th degree without regard to mountains. A direction is given, and there is the objective point. You are not to seek another direction of this line in order to fix a point which is so definitely fixed as this point, on the 56th degree. After you reach that point, then the provision of the Treaty is that the line shall follow from that point the crest of the mountains. There has been considerable discussion as to whether or not it was intended to mean that the line, or the pass, or " la terre ferme," should reach the 56th degree. It is a matter more of critical interest than of real practical importance, but if there should be any doubt upon that question, I suggest that the subject-matter under consideration is tiie line all the way through. It starts with the line, and the descrip- «sw jmf 796 ALASKAN BOUNDARY TRIBUNAL. tion applies to the line alone. If the Treaty starts out to give indications as to a line, it is hardly probable that it would drop that thought and that subject and turn off to make it applicable to the pass or to "la terre ferme." Sir L. Jette. If it was the line, Mr. Dickinson, the sentence would have followed in the same way, not repeating the words " la 716 ligne." So it would have read in this way: " La ligne remontera au nord le long de la passe dite Portland Channel jusqu'au point de la terre ferme ou elle atteint le 56e degre de latitude nord; de ce dernier point elle suivra la crete des montagnes." But instead of that they repeat the words " ligne' after having said, " jusqu'au point de la terre ferme "—that means the pass near the point-—" de ce dernier point la ligne de demarcation suivra la crete des montagnes." They find it necessary to repeat " the line of demarcation," because the first part of the sentence related to " la passe' | ; otherwise they would not have repeated " la ligne de demarcation." They would have said, as was proposed in one of the drafts of the Treaty— I believe it was M. Matusevich who made the change at p. 122 of the British Case—" la ligne remontera au nord le long de la passe dite Portland Channel, jusqu'a ce qu'elle touche a la cote de terre ferme au 56e degre de latitude nord; depuis ce point-ci, ou la ligne de demarcation touche au 56e degre, elle suivra la crete des montagnes," indicating clearly there, and I think the same explanation could be given in English, that if it was not the pass which was referred to in this Article III then you would not repeat " the line of demarcation which shall follow the crest of the mountains." Mr. Dickinson. As a matter of grammatical criticism your Honour may be entirely correct. I have no doubt that neither of these gentlemen had the scholarship your Honour has. Sir L. Jette. I only follow M. Matusevich. ml Mr. Dickinson. And we must not judge altogether, by a scholarly criticism, of the meaning that foreigners would attach to the use of a language. While they may have been somewhat skilled in it, they were not skilled to the extent that doubtless your Honour, Sir Louis, is. If we look to the negotiations in the United States' Case Appendix, p. 2^5, it becomes Very clear as to what the intention there was: Article III in the " contre-projet" submitted by Mr. Stratford Canning. The English rendition of it is this:— Beginning at the most southern point of the island called Prince of Wales, which point is under the parallel of 54 degrees 40 minutes, and between the 131st and 133rd degree of west longitude (meridian of Greenwich), 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 56th degree of north latitude. Now, I think that shows the meaning. Mr. Canning was a master of English, if he was not a master of French. Sir L. Jette. This was sent really to M. Matusevich, and he corrected it and he said:— The said line shall ascend to the north along the passage called Portland Channel to the place where that passage ends in the interior of the mainland. Mr. Dickinson. I understand that, but this shows clearly what Mr. Canning put down in English and what he intended, and whilst ARGUMENT OF JACOB M. DICKINSON. 797 it is not a matter of very great importance, I think it is very clear that Mr. Stratford Canning, when he submitted this English rendition, certainly understood from his standpoint that it was the line which was to proceed up there. Sir L. Jette. No doubt, but his draft was corrected by M. Matusevich in the month of February, and a few days before the Treaty was signed, and the last version was given by M. Matusevich. 717 Mr. Root. His version was rejected, and they went back to the English form. Sir L. Jette. No, no; it is not exactly the same terms, but it has the same meaning. Mr. Dickinson. I pass from that point because I do not regard it as a matter of very much importance whether the line passes up there or whether the pass goes there, and I would not have mentioned it if it had not been dealt with at so great length in the British Case, and in the British Argument, and at considerable length by the Attorney- General in his argument. But, at any rate, the whole question ought to be resolved upon this consideration: The draft and contract were made, as is stated by the Attorney-General, under the belief that Portland Channel reached the mountains at about that point. Now, since it is conceded that that was their belief, such plain intent should be carried out. That belief was certainly well founded. I have called the attention of the Tribunal to the Faden map. I have shown the evidences upon which I base the proposition that this map was certainly before the negotiators, and was relied upon by them. As I pointed out yesterday, a line prolonged up Portland Channel on this map strikes the mountains, not at the crest, but well up on the mountains and at about the 56th degree of latitude. On p. 175 of his oral argument the Attorney-General on this question said:— It is, I think, very important to call attention to the fact that some of the maps show the 56th degree beyond the mountains which are indicated at the head of the Portland Channel. Now* if your Lordship would look at No. 4 in the United States' Atlas—it is in a more convenient form than the No. 2 of the British Case Atlas—it will be seen that while there are mountains to the north of Portland and the head of Portland Channel they are a good way to the south of 56 degrees. You would not get to the 56th degree by making straight for those mountains. Then the President said:— But are you taking those as really representing the mountains? Sir Robert Finlay. Oh no. The President. They are Vncouver's picture of the mountains? Sir Robert Finlay. Certainly. The President. They may have been on the 56th or not on the 56th? Sir Robert Finlay. But I am taking this, and your Lordship will find that the negotiators throughout had most fully present to their minds the fact that the maps were not to be trusted at all. The President. And knew that the position of the mountains might vary? Sir Robert Finlay. Might vary very much. Now, if they made a contract with reference to these maps, and knew that the maps were not to be trusted, and knew that the mountains might vary, on what can the proposition be based that you must go to the 56th parallel, to a point which is coincident with 798 ALASKAN BOUNDARY TRIBUNAL. mountains ? They expected to reach the 56th parallel in the direction in which they were proceeding, and if they did not trust the 718 maps, and knew that the mountains might fail, then how can- we tie down the construction of this Treaty to the proposition^ that is advanced by Great Britain, that you cannot go to the 56th parallel until you reach it at a point where the mountains are coincident, when it is admitted that they did not trust to maps, and that they were only dealing with regard to pictures, which were conjectural, and that they never believed and understood that there was an actual coincidence of mountains with the 56th degree ? The British contention is that the point must be sought where it is possible to continue the line along the crest of the mountains. Now, what is the result of that proposition ? It is this: that if you cannot find mountains on the 56th parallel that answer to the Treaty, then you come to a standstill, and cannot proceed any further. * Because they say that mountains nearer the coast, 57 miles away, answer the Treaty, they claim that you must go there to get to the point on the 56th parallel, whence you begin to draw the line along the crest of the mountains or parallel to the sinuosities of the coast. Now, suppose there were no mountains there, and suppose you search all along the 56th degree of parallel within 10 marine leagues, and cannot find mountains answering to the Treaty, then, according to the position assumed by them, it absolutely fails. How can it be said that that was the intention of the negotiators when it is admitted in the same breath that they contracted, in regard to maps, and in regard to pictures, which they knew might be unreliable as to~the,true location of the mountains? Certainly, they did not make the contract with # ml 7 ml the idea that there must be an actual coincidence between the 56th degree and the mountains, and any contention that you are bound to CD 7 ml ml the 56th degree at a point where mountains are coincident, carries with it the corollary that if you do not find mountains, then the ml ml ' Treaty must entirely fail, and that it must have been the intention of these negotiators, when the Treaty was made, that, unless mountains were found somewhere on the 56th degree, these negotiations, which had resulted in a Treaty after a painful process of three years, were to come entirely to naught, simply because mountains could not be found coincident with the 56th parallel. There is a good deal of importance to be attached to this question of the mountains after you leave Portland Canal, and the mountains ml which must be sought after you reach the 56th parallel, and the point at which you reach the 56th parallel after you leave Portland Canal. If you proceed up Portland Canal substantially along the line indicated, either along Bear River or between Bear and Salmon River or even along the Salmon River, and then reach the 56th degree, it follows that you are 50 miles or more to the interior of the range of connected peaks which is insisted on as the British line of mountains. If you reach such a point under the Treaty, I insist that as the line was to be drawn, beginning from that point parallel to the sinuosities of the coast, if the mountains fail, it- must be a parallel that would be a continuation of the line starting at that point, and that it would not be such a parallel if you go at right angles toward the coast for 57 miles and then start parallel with the sinuosities of the coast. If you reach the 56th parallel any- ARGUMENT OF JACOB M. DICKINSON. 799 where near the head of Portland Canal, then that entirely defeats the contention of Great Britain that you can come over here along the coast for a mountain crest and ignore all the mountains that may be in that vicinity, because, as p shall show hereafter when we come to the question of mountain peaks, if you can make a chain of mountains—a range of mountains—at will, select them her& and there and connect them together, there are higher mountains from Portland Canal reaching in the direction of the head of Lynn Canal than these mountains which have been selected as the British mountain line. It is, therefore, a matter of the utmost importance to determine the point where the Treaty carries you to the 56th parallel, because when you get there, then you must look for the mountains, and that will have very great significance in determining what mountains shall be sought. The mountains near the point, and not remote ones, should be taken. The mountains- conforming most closely in location and characteristics to the pictured mountains should be selected. I intended to discuss next the fifth question, but before I do that I shall offer some observations upon the sixth question. It will be a short discussion. We will get that out of the way, so that I 719 can address myself directly to the fifth question. In order to refresh your minds upon the sixth question—because what I shall say will bear directly upon the use of the words in that question—I will read it:— 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 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 terriorial 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 (6) from the line separating the waters of the ocean from the territorial waters of Russia, or (c) from the heads of the aforesaid inlets? This question has, doubtless, given very great trouble to the members of the Tribunal. The Attorney-General and the Solicitor- General seem to have been in very great trouble over it, and I am free to confess that it has given great trouble to me, and that I am not in a position to throw much light upon it. Still, I have some suggestions to offer which are the result of the best thought that I have been able to address to it. The view of the Attorney-General was—and I speak only from memory—that the question under the first head was substantially the same as the question proposed under the second head, just a different form of statement, as I understood him. He called attention to the fact that this question is not to be answered unless two conditions shall have been satisfied, one condition being that the fifth question shall be answered in the negative, and the other that the mountains shall be more than 10 marine leagues from the coast. The Solicitor-General in his argument rather heightened the difficulties upon this question by saying to the Tribunal that they had no power to determine what " coast "is. If the Tribunal shall have no power to determine what " coast " is, then how can they say whether or not the mountains are "within 10 marine leagues of the coast." Indeed the negation of the power of J . ■fen 800 ALASKAN BOUNDARY TRIBUNAL. the Tribunal to determine what " coast" is, and, as has been said elsewhere, to determine what the " sinuosities' are, strikes at the very root of the existence of this Tribunal, and if the Tribunal has no power to say what " coast' is, and no power to say what the " sinuosities " are, the proceedings might as well be adjourned to-day, because unless you determine what " coast' is, how can you tell whether a line is parallel to the sinuosities of the coast? Unless you can determine whether or not the coast means the entire coast, or whether it means the general trend of the coast, how are you going to apply the Attorney-General's argument, because his contention upon this point was based entirely upon the preposition that " coast" is not the coast that goes around all the inlets and is coincident with the line of salt water, but that it means " the general trend of the coast," a coast crossing inlets, a coast line drawn from headland to headland; and so, negativing the power of this Tribunal to say what " coast" means, takes away from you at once all power to proceed to the consideration of the sixth question or the fifth question, and you will get no further than the head of Portland Canal. The statement was correct that there are these two conditions as stated applicable to the first branch of the question, which is:— Shall the line be measured from the mainland coast of the ocean strictly so called along a Mne perpendicular thereto? Now, what is the meaning of " the mainland coast of the ocean, strictly so called?" You have to say what those words mean. I confess that I am not able to say what they mean. They, may mean " the mainland coast of the ocean, strictly so called," limiting the words " strictly so called " to " ocean "; or it may mean the " mainland coast, strictly so called," of 1 the ocean." Now, suppose it means the former. I take it that this would contrast the outer ocean with the ocean which is within the archipelago. If the meaning of the question is, shall a line be measured from " the mainland coast of 720 the ocean, strictly so called " ? making " strictly so called1 applicable to " ocean," then it is limited to that part of the coast north of Cape Spencer, because that is the only part of the coast which is coincident with the lines of the great ocean. It is not to be presumed that any such question as that would have been propounded to the Tribunal, for it would cover very little of what is in controversy. ml Well, if it means " the coast, strictly so called," what do we say that applies to ? My construction would be that " the mainland coast, strictly so called," is the coast of the mainland as contradistinguished from the coast of the islands, and that, therefore, when the two conditions have fallen in, one the negative answer, and the other the finding of the mountains more than 10 marine leagues from the coast, the question is, shall it be measured from the line of the coast all the way around, following the heads of the inlets ? Now, it may be said that there would be no point in submitting such a question as that after the fifth question is answered in the negative. I have one suggestion to make, which seems to me an answer, and a fair one. The fifth question presents a question of intent. In a case of general intent appearing upon the face of an instrument, upon the race of a deed, or the face of a will, where it is clearly expressed, the Court will, in construction, make minor details nmnwpiipnw ARGUMENT OF JACOB M. DICKINSON. 801 conform to it in order that the general intent may not fail. It might be said that the fifth question presents this proposition: Is there a general intent manifest here from the Treaty, or from the Treaty taken in connection with the negotiations or from the Treaty taken in connection with the negotiations and the interpretation put upon it by the Parties, that at all events there was to be a continuous lisiere around all these waters. Of course, an affirmative answer to that would settle the whole question. A negative answer to that would not necessarily settle anything, because it might be held that there does not appear to be such a general intent expressed by the instrument and at the same time the Tribunal might find from other features of the Treaty that, notwithstanding such general intent does not appear, the conditions imposed by the Parties and the language they used made it necessary to measure this line from " the mainland coast of the ocean, strictly so called," and it may have been with that view that this question was put. But the proposition of the Attorney-General, that the first branch is equivalent to the question submitted under the second heading, can be demonstrated to be unsound. When vou come to consider the sec- ml ond clause of the question, there is another condition that intervenes. It has attached to it the two former conditions—one the negative answer in respect of Question 5, the other the not finding of the mountains within 10 marine leagues of the coast. * These questions are applicable only to the territorial waters of Russia. The language is— 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— Not " deep inlets," part of which inlets are territorial waters of Russia and part of which may be territorial waters of England; but— m Where the mainland coast is indented by deep inlets forming part of the territorial waters of Russia. Then, how shall it be measured ? It may be said that it was inarti- 7 ml ficially framed, but it is impossible to make it read in any other way unless you change the language in which the question is stated. The President. Then you say that that question, assuming we were going to answer it, prejudiced the mater in your favour. That won't quite do, I think. Mr. Dickinson. I will take the statement further on, may it please your Honour. 721 The President. I am not upon the fifth question. Mr. Dickinson. And really this question, probably, is an immaterial one, because, I think, when you come to answer the fifth question with the elements involved, the answer will really remove the necessity for answering this question. The President. That I quite follow, Mr. Dickinson, but you were arguing on the assumption that we had got to answer it. Mr. Dickinson. I was arguing on the assumption as to what the questions meant, and I think if my construction is right the question answers itself. The President. Very well. S. Doc. 162, 58-2, vol 7 21 illlill 802 ALASKAN BOUNDARY TRIBUNAL. Mr. Dickinson. We are not responsible for the way in which the questions are stated. The President. Nor is Great Britain. Mr. Dickinson. We have to take it just as it is written. If the second branch of these questions does not apply to the territorial waters of Russia, then what does this language mean: " inlets forming part of the territorial waters of Russia "? It does not? say inlets parts of which are territorial waters of Russia, and if you make it apply to inlets parts of which are territorial waters of Russia, you have to turn round the language of that question and make a complete change in it, and if you change the question in that way, we can change the Treaty in a good many other ways and arrive at a very much easier solution than probably we shall arrive at in the discussion of these questions. Assuming that this third condition that I have suggested is applicable to it, and that you are bound by the language as it is written, and are not responsible for it, then the question arises, what is mainland coast ? You will observe that there is a contrast between the first question and the second set of questions. The first question is, " mainland coast of the ocean, strictly so called." When you come to this second set of questions it does not say anything about " mainland coast of the ocean, strictly so called "; but it says merely— Where the mainland coast is indented by deep inlets forming part of the territorial waters of Russia. Now, here the coast is indented by inlets. Are not inlets part of the coast? A saw is indented; one side of it is nothing but indentations; but still it is a saw; and if you have a mainland coast and indent it with inlets, because you indent it with inlets, is it any less mainland coast ? Mr. Aylesworth. The inlets would not be saw ? Mr. Dickinson. No; but the coast which borders them would be a part of it, and if a person put his finger in where the inlets are and moved the saw he would find out that the coast was right along where the inlets are, and he would find out, too, that they would be a very substantial part of the saw. Now, then, what does "mainland coast' there mean? I take it that it means the entire coast. The first question is: Shall it be from the line of the general direction of the mainland coast? I would infer that meant a departure from the mainland coast, and would mean a line in the general direction' of such coast, not following the indentations. The second question is: Shall it be from a line separating the waters of the ocean from the territorial waters of Russia? 722 Now, where would that line be ? Manifestly that line would be out along the islands. It was stated in argument that that construction would be absurd, but it is not absurd when we look back to the history of this question. We know that for a long time it was contended not by the Canadian Government, and not by the Government of Great Britain, but by some writers, and by some Canadians, that this line ought to be measured from the outer coast of the islands. And I take it, as that claim has been mooted, and it was desired that everything might go in and be submitted to ARGUMENT OF JACOB M. DICKINSON. 803 the Tribunal, it was stated broadly in the questions so that every possible phase might be considered. I do not know upon what the suggestion was made, but his Honour, Mr. Aylesworth, one of the members of the Tribunal, suggested that the question had been raised, and possibly that was the reason why they put in the third question, which is— Or from the heads of the aforesaid inlets. Now, as I said before, if we construe this language just as it reads, it refers only to inlets that are territorial waters of Russia. That view is strengthened when we look at the second question, which says shall it be measured— ml (b) From the line separating the waters of the ocean from the territorial waters of Russia. This indicates that, in the aspect in which these questions were put, it was supposed that the inlets might be territorial waters of Russia. I have stated, however, that there is very little practically in this sixth question, and that in my view of the case it is absolutely necessary that this Tribunal, before they proceed to answer the fifth question, shall determine what is the meaning of " coast" as used in the Treaty. They must say whether or not that means the coast round ms ml ml all the inlets or whether it means, as the Attorney-General contends, a line of coast drawn from headland to headland. If they find either ml aspect, that virtually settles the question, and excludes the sixth question as not presenting anything that is really practical. I would not have discussed it if it had not been discussed in the previous argument. Article VII of the Treaty can be taken up apart from the other questions arising. Mr. Lodge. Question 7? Mr. Dickinson. No, Article VII of the Treaty of 1825. Mr. Lodge. Oh yes. ml Mr. Dickinson. And in order to get that out of the way so that I may come to the fifth question without having to go back to it, or make any reference to it, I shall undertake now to present the views that I have with regard to Article VII. This Article reads, on p. 16 of the United States Appendix:— It is also understood, that for the space of ten years from the signature of the present Convention, the vessels of the two Powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, all the inland seas, the gulfs, havens, and creeks on the coast mentioned in Article III for the purposes of fishing and of trading with the natives. Turning to Article III, we see in the first sentence:— 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: And then follows the description of the lisiere. 1Q& The position of the Attorney-General in regard to this Article is this: He says that Article VII was intended to give reciprocal rights to Great Britain and to Russia in that portion of the territory and waters along the lisiere. His position is that this Article is not applicable to anything south of the lisiere, that unless it be so construed that Great Britain was to have ownership in the d.j& «p 804 ALASKAN BOUNDARY TRIBUNAL. heads of these inlets, the reciprocity feature would fail, and that, therefore, it is necessary, in order to give effect to the reciprocity feature of Article VII, to hold that reciprocal rights ^vere confined to the territory within the lisiere. He says this, notwithstanding that Article VII refers directlv to Article III, and says that these ml 7 ml m reciprocal rights for ten years shall be given Without any hindrance whatever in the inlets, seas, gulfs, havens, and creeks on the coast mentioned in Article III. When we look to Article III we see that the coast mentioned is the North-WTest Coast of America. If the meaning that the United States contend should be given to j coast" is correct, it would exclude the contention of the Attorney- General. Therefore, he contends that a meaning must be given to " coast" in the Treaty which would admit of England owning part of the coast, and Russia under the Treaty only getting a part of the coast, within the lisiere. Mr. Robinson says, at p. 447 of the oral argument, referring to this:— But they say that it applies to the coast below 54 degrees 40 minutes. Now, our answer to that is that it is impossible to suppose that it applies to that coast for this simple reason, that the year before our Treaty was made Russia had abandoned to the United States all the coast below 54 degrees 40 minutes. She was to form no establishment below 54 degrees 40 minutes, and the United States were to form no establishments above 54 degrees 40 minutes. He also said in that connection—the Tribunal will recollect it, and I do not now turn to the page—that there was no reason why Russia, after she had entered into the Treaty with the United States, should ms - / stipulate with Great Britain for any rights south of 54 degrees 40 minutes, and he seemed to predicate this upon the idea that by the Treaty of 1824 Russia had secured these rights from the United States, and that it was a useless act for her to undertake to secure any further or different rights by a Treaty with Great Britain. That position is completely answered when attention is called to the fact that from 54 degrees 40 minutes south there was then in existence a contention between Great Britain and the United States. Russia could not tell how it would eventuate, and it was perfectly natural, if she wanted to secure to herself reciprocal rights in the waters, that Great Britain might acquire south of 54 degrees 40 minutes, that she should do it in the Treaty when she was giving to Great Britain rights in the lisiere. But Mr. Robinson said, " Why should anybody do this?" They would do it merely on the principle that when a man is buying a piece of land, and wants to make his title clear, he will buy up every outstanding claim to title, and if there is a cloud upon the title, although it may appear to be unsubstantial, rather than have a lawsuit about it and vexation, he would remove that cloud rather than litigate the claim. That is a complete answer to the query why Russia in this Treaty of 1825 would claim reciprocal rights of Great Britain south of 54 degrees 40 minutes. But the Attorney-General bases his argument upon an entirely different line of thought. He bases it upon the drfitft Convention that was made by Mr. Canning. He says, on pp. 26 and 27 of the sixth day's Argument:— Of course, I may say that there have been three views. I am not going at any great detail into this point, but I should just like to say a word in answer to the very important question to which Mr. Aylesworth has referred. There are three K*«i ARGUMENT OF JACOB M. DICKINSON. 805 possible views as to the effect of Article VII. The first is, that it applied to the whole North-West Coast of America; the second is, that it applied to the lisiere alone; the third is, that it applied to the North-West Coast south of 60 724 degrees, and, as I understood it, that would include within the operation of this clause the lisi&re in favour of Great Britain as against Russia, and also in favour of Russia as against Great Britain so far as the heads of any inlets were concerned if our view be correct, and in favour of Russia as against Great Britain the portion of the coast from the mouth of the Portland Canal down to latitude—then it would be said probably 51 degrees, but now latitude 49 degrees—whatever the rights of Great Britain then were upon that lisiere, and no doubt effect may be given to Article VII by saying that it did apply to that part in favour of Russia as against Great Britain. It is extremely difficult, I may say at once, upon the papers to find anywhere any precise indication that the line was to be drawn at 60 degrees. The contention, I suppose, in favour of that view would be this, that beyond 60 degrees the rights of Russia had never been called in question at all, and that the Treaty, so far as it was fixing a line of delimitation, was dealing with the territory of Russia which was in dispute south of 60 degrees, and that the intention of Article VII was to deal with a bit of coast which was in dispute effecting a sort of partition between Russia and Great Britain to give reciprocal rights upon the coast. I think it extremely difficult to say positively that that is the meaning of Article VII. I do not for a moment deny that it would receive its application in favour of Russia, if that were the contention; on the other hand, it certainly includes the lisi&re, and it receives its application in favour of Russia at the heads of the inlets. Whatever it includes, it certainly includes the lisiere. And on p. 29 he says:— Now, with regard to Article VII, which I was discussing when the Tribunal rose. If reference is made to the language of the penultimate Article I think it may be of some importance as to the effect on Article VII, and what it applied to. In the British Case—the Appendix—at p. 115, will be found Mr. Canning's draft of Article III, with which Article V, which is now Article VII in the Treaty, was to be read. And what I call attention to in this Draft is this—that in the initial words of Article III, there does not occur the expression " upon the coast of North-West America." The contest that has raged round Article VII in the Treaty was this, does that Article apply to the coast mentioned in the initial words of Article III or does it not? Now, in the Treaty as it stands Article III begins:— I 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." There you have the coast mentionedT—the coast of the continent and islands of America to the north-west; and it "has been said that Article VII relates to the whole of that coast—the coast there mentioned. But, then, in this penultimate form of the clause you had Article V, which is now represented by Article VII in-this form I It is, nevertheless, understood that for the space of ten years from the signature of the present Convention, the vessels of the two Powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, all the inland seas, the gulfs, havens, and creeks on the coast, mentioned in Article III, for the purpose of fishing and of trading with the natives." On p. 36 he says:— Now, that draft certainly lends very great force to the contention that Article V there was intended to apply to the coast of the lisiere, for the reason that the North-West Coast generally is not mentioned at all, and the word " coast * occurs only in the connection which has been just pointed out Then at p. 122 the same thing is set out in French, and exactly the same observation occurs— exactly the same observation. The initial words of Article III make no mention of "coast" at all. The boundary is to be on the continent, the North- West Coast of America, and then 1 coast" only occurs in the same way. 725 And then in Article V, instead of it being the coast mentioned in Article HI, the expression is this—it is at the top of p. 123—it is reciprocal liberty of navigating, and so on: I Toutes Ies mers interieures-^-les golphes, havres, et criques dans Ies parties de la cote-mentionnees dans l'Article III." 806 ALASKAN BOUNDARY TRIBUNAL. So that it is all the parts of the coast mentioned in Article III. Then M. Matusevich altered its tone, and that passage will be found at p. 126, and he leaves again the initial words of Article III as they stood. There is no mention of " coast" there at all; it is:— " La ligne de demarcation entre Ies possessions des Hawtes Parties Contract- antes sur le continent et Ies lies de FAmerique Nord-Ouest sera tracee ainsi qu'il suit." Then follow the descripitlve words, and in this Article there is no mention of " cote " in the description of the crest of the mountains running parallel to the coast. Now, his conclusion is this, and here is his argument: that Mr. Canning drew his contract, and in Article III there was no mention of | coast'' except in that portion of it describing the lisiere; that consequently Article V of Mr. Canning's draft, which afterwards became Article VII when the Treaty was signed, must have referred to the lisiere. He says that M. Matusevich altered it. Of course, the inference from that is that Article V must refer to the lisiere, because the first part of Article III makes no separate mention of the coast. Well, would it not follow, according to that, if the first part of Article III had made mention of coast, then Article V could not have referred to the coast of the lisiere? When we come to look at the Treaty as signed—there is no explanation of how it came about—but when we come to look at the Treaty as signed we find that this word " coast " is introduced into the initial sentence of Article III. There is the very word which the Attorney-General says is absent from the Canning draft, and justifies his conclusion that in the Canning draft Article V only referred to the lisiere. The • • • word coast was introduced into the initial sentence of Article III of the Treaty as signed, and that takes it entirely out of the reasoning that he advances as to Mr. Canning's draft. Now, there was a material change. It cannot be supposed that there would be a material change made in the Treaty at that time without it was intended to subserve some important purpose. That it did make a material change is manifest from the very argument advanced by the Attorney-General, because the conclusion he reached upon Mr. Canning's draft was on account of the absence of the word. When they introduced that word, then of course the Treaty as signed was vitally different from the draft as made by Mr. Canning. Now, I think there is good reason why it was introduced. There is noth*- ing in the negotiations, nothing in the correspondence to explain it, but I think that there is evidence growing out of other matters that existed at that time which shows plainly why the word " cote " was introduced into the first part of Article III. If we turn to Mr. Canning's draft on p. 183 of the United States' Appendix, in Article II we find that it describes the line dividing the respective territories, and nothing else. Mr. Aylesworth. I do not think that is the draft that Mrr. Attorney-General was referring to. At least I understood him to be referring to the draft which was submitted to M. Matusevich. Mr. Dickinson. I am coming to that later, and I am going to connect them together. In this draft that was made by Mr. Canning on the 12th July, 1824, you will find that Article II describes the lisiere alone. There is no general reference in the first part of Article II to I coast," like there is in Article III, which subsequently went in the Treaty. ARGUMENT OF JACOB M. DICKINSON. 807 Now, with that Article II applicable as we both agree to the 726 lisiere alone, let your eye now fall upon Article III, and the provisions there. The second paragraph of that Article provides— * * * that British subjects shall for ever freely navigate and travel along the said line of coast, and along the neighbouring islands. That is to say along the said line of coast described in the lisiere they were for ever to have the right to travel and navigate. Mr. Aylesworth. The line of coast in Article II, there, is the coast of the continent—whole continent. Mr. Dickinson. But that is the coast of the continent of the Russian possessions delimited in Article II. Mr. Aylesworth. All of the continent which Russia possessed. Mr. Dickinson. I understand—from my reading of it—that it refers directly to Article II. Article II described the lisiere, and Article III provides that— It is nevertheless understood with regard to the stipulations of the preceding Article— referring immediately back now to the preceding Article— that the said line of coast on the continent of America which forms the boundary of the Russian possessions— Now, that connects it as directly with the description in Article II as it is possible, it seems to me, for words to do. It proceeds—" shall not in any case extend more than marine leagues in breadth "—that is the lisiere—§ from the sea towards the interior, at whatever distance the aforesaid mountains may be." Now, then, follows the provision I was reading— British subjects shall for ever freely navigate and travel along the said line of coast— That is the said line of coast which is marked out by this 10 marine leagues. Mr. Root. The French, Mr. Dickinson, seems to leave no doubt of that^ in both the first and the second paragraphs of Article III the word lisiere is used: the first paragraph, " Que la susdite lisiere de cote," and in the second, " la dite lisiere de cote." Mr. Dickinson. That confirms what I was saying: but the intent is absolutely clear from the reading of Article III, connecting it back directly with the description given in Article II. Now, the provision there was that they should " for ever freely navigate and travel along the said line of coast, and along the neighbouring islands." The third paragraph follows, and that is very significant:— That the navigation and commerce of those rivers of the continent which cross this line of coast shall be open to British subjects as well to those inhabiting or visiting the interior of this continent. 727 Now, there he limits it to rivers and rivers crossing that lisiere, which indicates very clearly that Mr. Canning at that time had no idea that any inlets along that coast which was set apart to Russia would belong to Great Britain. He distinguishes between that part of the coast and the balance of the coast. I would call his Honour Mr. Aylesworth's attention to the next page, p. 184, Article V. 808 ALASKAN BOUNDARY TRIBUNAL. There he says: ||J| With regard to the other parts of the north-west coast of America, and of the islands adjacent thereto, belonging to either of the two High Contracting Parties, it is agreed that for the space of years from the April, 1824, their respective vessels, and those of their subjects, shall reciprocally enjoy the liberty of visiting, without hindrance, the gulfs, havens, and creeks of the said coast, in places already not occupied for the purposes of fishery and of commerce with the natives of the country. When he comes to the question of reciprocity, he distinguishes the lisiere from the balance of the north-west coast, and these reciprocal rights are only given in coasts distinctly outside of the lisiere. Mr. Aylesworth. That was, of course, because he was stipulating that, as to the lisiere, it should be perpetual, to which the Russians would not agree ? Mr. Dickinson. Yes, but we are now upon the consideration of the question of reciprocal rights. Mr. Aylesworth. Yes. Mr. Dickinson. And here, where he was seeking reciprocal rights, he never sought to raise any question of reciprocal rights within the lisiere; and the question of reciprocal rights was distinctly limited by him to-that part of the coast outside of the lisiere. Then, when you come to Article VI, it provides that:— No establishments shall in future be formed by British subects, either upon the coast or upon the borders of the continent comprised within the limits of the Russian possessions designated in Article II, and, in like manner no such establishment shall be formed by Russian subjects beyond the said limits. This seems to indicate very plainly that Great Britain could not form establishments on any part of that coast. Now, that was the draft that was made by Mr. Canning on the 12th July, 1824. Before the Treaty was signed, the Treaty of 1824 between Russia and the United States had been consummated. Now, when we turn to the Treaty between Russia and the United States, it is just as distinctly indicated there as it is possible for language to indicate—in Article IV—what the rights of the United States were:— It is nevertheless understood that, during a term of ten years, counting from the signature of the present Convention, the ships of both Powers, or which belong to their citizens or subjects respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfS, harbours, and creeks upon the coast mentioned in the preceding Article for the purposes of fishing and trading with the natives of the country. Then when we look to the preceding Article—Article III—what coast is there indicated ?— 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 728 establishment upon the North-West Coast of America, nor in any of the islands adjacent to the north of 40 degrees 40 minutes of north latitude, and so forth. So by Article IV the United States got a reciprocal right for ten years in all of the North-West Coast of Ajnerica to which Russia became entitled, and in respect of which the United States under that Treaty withdrew its claim. It yvas stated by Mr. George Canning to Mr. Stratford Canning, in a letter of 18th December, 1824, which appears upon p. 211 of the United States' Appendix, as follows:— We are content also to assign the period of ten years for the reciprocal liberty of access and commerce with each other's territories, which stipulation «WMi. iim—ir mvurnr ARGUMENT OF JACOB M. DICKINSON. 809 may be best stated precisely in the terms of Article IV of the American Convention. On p. 223 Mr. Stratford Canning says:— The line of demarcation along the strip of land on the North-West 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. Now, this is Mr. Stratford Canning to Mr. George Canning. So after Mr. Canning prepared his draft, in which the reciprocal rights were limited outside of the lisiere, and the Treaty with the United States became significant, he expressed it that he was willing to acquire exactly the same reciprocal rights in the Russian territory that the United States had acquired. Now, it was very plain that under the Treaty as he drew it, and under the last draft as we see it in the negotiations, these reciprocal rights were not secured at all; and in order to place Great Britain exactly upon a parity with the United States that word " cote " was necessarily introduced into the first part of Article III. Otherwise what Mr. Canning said in regard to obtaining the same rights as the United States had obtained would have been entirely nugatory. That is a plain explanation why that word " cote " was introduced into the last draft of the Treaty. Without introducing that word into the last draft of the Treaty, what would have been the result? Instead of Great Britain getting in these territorial waters of Russia, or the waters lying north of ^4 degrees 40 minutes, the same rights that the United States thought it was getting, Great Britain would have absolutely acquired the ownership of the heads of the inlets, and the United States would have been excluded; and instead of standing upon an equal footing with the United States, unless that word had been introduced so as to conform to the purpose that they had expressed, Great Britain would have been excluding the United States, which certainly was not the intent and purpose, as had been plainly expressed by everything bearing upon this subject. Now, take the Canning draft, British Case Appendix, p. 116, and take Article V as it stands. It reads:— It is nevertheless understood that, for the space of ten years from the signature of the present Convention, the vessels of the two Powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, the inland sea, the gulfs, havens, and creeks on the coast mentioned in Article III, for the purpose of fishery and of commerce with the natives of the country. Now, turning to Article III, there is no mention there in the initial sentence of any " coast upon the continent." The only coast mentioned in the Article is that of the lisiere. If the Treaty had been signed in that way, it is very clear that Great Britain would not have got the same rights that the United States got, for these rights extended to the whole north-west coast. It would have 729 gotten superior rights in the lisiere if there was reciprocity— for reciprocity is predicated on Great Britain acquiring by the Treaty parts of the coasts. The language of Article VII of the Treaty was taken out almost verbatim from the Treaty of 1824 between Russia and the United States,'and for the purpose solely of putting those two countries upon a parity in respect of Russia. 810 ALASKAN BOUNDARY TRIBUNAL. Let us now consider the difference between Article I of the Treaty as signed and Article VII. Article I of the Treaty as signed, I submit, was intended to withdraw the effect of the claim that had been made under the Ukase of 1821, and simply to put the rights of the parties where they would have been but for that declaration made by Russia. It was the form and manner in which it was agreed that that withdrawal by Russia should be expressed. No reference whatever Was made to the Ukase; but it was considered that that was the pivotal point upon which the Treaty first turned; and Mr. Canning thought so much of that feature of it that he insisted that it should be put in the front of the Treaty. Article VII gives in respect of the entire coast a different right form that which was given in Article I. Article I withdraws the inhibition as to navigation. That is intended, of course, to withdraw the claim of Russia as to the 100 Italian miles. It allows the right of landing where there are no establishments; but when you come to consider Article VII, an additional right is given—a cumulative right for ten years—and that was that the parties might land, even where there were establishments, during ten years. So there was an additional reason for the existence of Article VII. Now, this distinction is manifest, and that the rights that were granted by Article I and Article VII are distinct is quite apparent. There is another distinction that is pointed out between the Articles of this Treaty, which was called attention to by Lord Salisbury in his correspondence with Mr. Blaine, and it appears'upon the 50th page of the^ British Counter- Case. In a letter to Sir Julian Pauncefote, of the 2nd August, 1890, he says:— I must further dissent from his interpretation of Article VII of the latter Treaty. That Article gives to the vessels of the two Powers " liberty to frequent all the inland seas, gulfs, havens, and creeks on the coast mentioned in Article III, for the purpose of fishing and of trading with the natives." The expression | coast mentioned in Article III" can only refer to the first words of the Article. Exactly the position and view that we take now. The line of demarcation between the possessions of the High Contracting Parties upon the coast of the continent and islands of America to the northwest shall be drawn, and so forth. That is to say, it included:— * * * all the possessions of the two powers on the North-West Coast of America. For there would have been no sense whatever in stipulating that Russian vessels should have freedom of access to the small portion of coast which, by a later part of the Article, is to belong to Russia. This shows distinctly that his interpretation of the Treaty was at that time that all of the coast along the lisiere was to go to Russia; and that inasmuch as it went to Russia there would be no point in confining the reciprocal rights to the'small portion of coast along the lisiere. He continues:— And as bearing on this point it will be noticed that Article VI, which has a more restricted bearing, speaks only of " the subjects of His Britannic Majesty," and of " the line of coast described in Article III." ARGUMENT OF JACOB M. DICKINSON. 811 Now, if you turn to Article VI:— It is understood that the subjects of His Britannic Majesty, from what- 730 ever quarter they may arrive, whether from the ocean or from the interior of the continent, shall for ever enjoy the right of navigating freely, and without any hindrance whatever, all the rivers and streams which in their course towards the Pacific Ocean may cross the line of demarcation upon the line of coast described in Article III of the present Convention. That refers to the lisiere; and when you come to Article VII, it does not speak of the coast described in Article III; but it uses the more general term which is applicable to the first sentence of Article III, and says " on the coast mentioned in Article III"—drawing a distinction between the terms " described " and " mentioned." The initial sentence of Article III mentions the North-West Coast of America, but the next paragraph specifically describes the coast of the lisiere. Now, reference has .been made, in the discussion of this Article, to the controversy in the Fur-seal Case. As I understand, the position assumed by the United States in that Case was that the Pacific Ocean did not include Behring Sea, and the contrary position was assumed by Great Britain. Of course, none of the lawyers who discussed that case had in mind the particular questions that we have under discussion here. Nevertheless, in enforcing their arguments as to whether or not Behring Sea was included in the Pacific Ocean, they did deal with and analyse and give application to Article VII. There is this much to be said about that argument. Of course, I do not claim that any one is estopped by any views that may have been advanced at that time, or that persons who may have acquired maturer age would not differ from the notions that had prevailed at an earlier time. Indeed, I know that that quite often occurs. I recall a case that was being tried in the Supreme Court of Tennessee. Judge Hayward, who was the Chief Justice of Tennessee, had been in earlier days the Chief Justice of North Carolina, Tennessee having been a part of the territorial possessions of North Carolina. In the course of the argument a lawyer stated a principle, and the Judge asked him if he had any authority to sustain it. He said he had the authority of a very eminent judge—Judge Hayward, of North Caro- lma. Yes, he said, I knew Judge Hayward, of North Carolina very well. He went upon the Bench when he was a very young man, and made a great many mistakes, and Judge Hayward, of Tennessee, overrules Judge Hayward, of North Carolina." But these arguments—I am not going to read or cite in full, but I desire to make some references to the arguments made by Sir Charles Russell—are in themselves of so much force and so much intrinsic worth that I feel, inasmuch as the question has been discussed by the Counsel on the other side, that I am justified at least in calling the attention of the Tribunal to the views advanced by Sir Charles Russell. He says (p. 128, Vol. XIII) :— It will save me a good deal of repetition and argument if the Tribunal will bear in mind that the whole of the discussion in which I am now embarking will be addressed not merely to showing that the right of fishing was recognized in the Behring Sea, but also to showing that the phrase " North-West Coast of America" had not the limited meaning in the Treaties and in the correspondence which my learned friend Mr. Carter assigned to it, but extended to the i 812 ALASKAN BOUNDARY TRIBUNAL. whole of the coast line of the possessions claimed by Russia, from Behring Strait down to its most southern boundary. ,1|| And, again, he said (p. 129) :— I now point out what these four constructions were. Im the despatch to Sir Julian Pauncefote of the 30th June, 1890, Mr. Blaine examined the Treaties of 1824i.and 1825, and says it is plain that they both limited the | North-West Coast" to the coast between the 50th and 60th degrees of north latitude. On the 17th December, 1800, he again writes, and discusses the meaning of " Pacific Ocean " and " the North-West Coast"; and he observes in that letter that the dispute as to the meaning of " Pacific Ocean" prominently 731 involves the meaning of " the North-West Coast"; and, in that letter,... he contends that " the North-West Coast" means the coast from the 42nd to the 60th degrees of north latitude. I observe, in passing, that neither of those contentions has been thought worth inserting in the United States' Case or Counter-Case. A third construction suggested is that it is identical with the lisiere. The fourth construction is put forward in the United States' Case at p. 26, where they say that the term " North-West Coast" is intended to designate the coast between Prince William's Sound and the mouth of the Columbia River. , And on p. 130:— Again, the Tribunal will see that the whole line of that coast is indicated by the general description of Russian assertion of dominion. On the western side of the Behring Sea, and on the coast of Siberia, from Behring Straits along the coast down to 45 degrees 50 minutes of latitude; on the American side, from Behring Straits to 51 degrees of northern latitude, described as the I North-West Coast of America." Ajid on p. 142 he says:— 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 IV 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 harbours, 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 to access at all. And there is one more reference, p. 167:— • . 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. I merely submit these views to the consideration of the Tribunal. There is this to be said about that decision: the contest as to whether or not Behring Sea was part of the Pacific Ocean was the issue that was passed upon. In presenting that issue these conflicting views were regarded as of vital importance by the respective contestants, and whatever the decision may be worth, at any rate the issue was found against the United States, and it does seem that if they lost their contention they ought to have some benefit of the opposing argument which defeated them in their contention; and so if there was anything whatever in this question which has been referred to by the other side in oral argument, the weight of it, whatever it was worth, would be in favour of the contention of the United States. I come now to the consideration of the fifth question, which involves probably more difficult points of discussion than any other phase of the Treaty. This question as I understand is in substance whether or not, looking to the Treaty alone, or looking to the Treaty read in the light of the negotiations, and in the light of the interpretation— ARGUMENT OF JACOB M. DICKINSON. 813 if there was any interpretation put upon it by the Parties—it indicates that it was the understanding of the Parties, and the meaning of the Treaty of 1825, that there should remain in the exclusive possession of Russia a continuous fringe or strip of coast on the mainland separating the British possessions from the possessions of Russia. Upon the question of interpretation, who are the Parties ? That is manifest from the language of the Treaty under which you are acting. The Parties meant are Russia, Great Britain, and the United States, because it is required that both Treaties shall be taken into consideration—the Treaty of 1825 and the Treaty of 1867—and the Parties to those Treaties are Russia and Great Britain in respect of the first, and Russia and the United States in respect of the second. So 732 it is important, in looking to the question of interpretation and intent, to find out what all three of the Parties understood. If I shall be able to show that they had a concurrent view upon this subject, of course it makes the case that much stronger; but if I shall be able to show that at least there was a concurrent view between Russia and Great Britain which gave an interpretation which was in effect at the time the United States bought, then the United States would succeed to the rights of Russia under that interpretation. I do not mean by way of estoppel, anoM do not mean to predicate anything upon that or upon the doctrine of prescription, or upon the doctrine of acquiescence, so far as acquiescence may set up an adverse claim. I do not consider that any of these questions are presented to the Tribunal; and the only point upon which I shall insist upon acquiescence is that acquiescence may be looked to as indicating an understanding and an interpretation. If something has been done by one party, and the probabilities are that it is known to the other party, who stands by and makes no objection, the Tribunal may look to such acts to see whether or not any indication was given of the understanding of the party who remained silent, and to that extent—and to that extent only—I insist upon the doctrine of acquiescence. The determination of the fifth question has nothing to do with the 10-marine-league limit. The fifth question may be answered without any reference to and entirely disassociated from the question of how long the radius shall be. The President. I think it is independent of it. It really is the construction of Article III of the Treaty without reference to Article IV. Mr. Dickinson. Yes; I was merely saying that in discussing this question I proposed to disassociate it altogether from any discussion of The President. I quite agree with you, Mr. Dickinson; it was only to show that I followed upon that that I ventured to make that observation. Mr. Dickinson. It is also entirely disassociated from the location of the line. The fifth question may be answered and may be answered independently of any of the considerations that may be given by the Tribunal to the question of the location of that line because that may be dependent upon the question of mountains or no mountains, which is entirely separate and apart from the consideration of the fifth question. Now, as I understand the fifth question it is purely one of relevancy to j-j coast." And it must be answered from that standpoint alone. " 814 ALASKAN BOUNDARY TRIBUNAL. And when I speak of " coast " I speak of " coasts " which are boundaries of waters which have a distinct individuality. And in presenting this view, I wish to emphasize the point that Taku Inlet and Lynn Canal and bodies of water of that character have just as much individuality as if they were towns or cities, or fields fenced in, and that they are not to be treated just as if they were part of a desert waste, as if there were nothing to indicate where they left off or where they began; but that they were just as much known at the time this Treaty was made in their general characteristics and in their general relation to this question of " coast " as they are now. Therefore, as it strikes me, the most important question we have to consider, and I think that in that I am entirely in accord with the view expressed by the Attorney-General is the meaning of the word " coast," for after a meaning shall have been written into that Treaty of what " coast " is, then the fifth question is answered one way or the other. There are two opposite irreconcilable contentions upon that subject, and if the Tribunal reaches any conclusion they must say which one of these contentions is right. If they say that our contention is right, that " Coast' of the Treaty meant the entire coast around all the bays and inlets, then the fifth question is practically answered, and if they say that this view is wrong, that " coast': 733 meant such a coast as has been described and claimed on behalf of Great Britain, and which has been laid down upon this wall map, on which I will comment on later, then the main contention of the United States is lost. The British contention is that " coast" means something described in one of these general terms used in the arguments of Counsel, or in the written Argument, or in the British Case. I have taken them out variously from these productions. They say "coast' is that coast excluding the narrow inlets and peninsulas. That was the definition given to it by the Attorney-General. It is also called " the general coast " or " the general trend of the coast," or " the mainland coast of the ocean." All of these they variously urge as the meanings which may be attached to the word " coast." Now, in determining what meaning shoulcTbe given to the word " coast," there are certain cardinal principles which I want to lay down in the beginning that ought to serve as a beacon light in going through the intricate labyrinth presented by these various and conflicting arguments. One is that there is a presumption that no change of meaning is intended in the use of a word where a meaning has been once attached by the Parties to that word, unless such purpose is clearly indicated. And upon that point I shall read from the rules of construction laid down on pp. 9 and 10 of the written Argument on behalf of the United States. These rules are all taken from Vattel, but I think they are in general accord with the writers on that subject:— The Contracting Powers are obliged to express themselves in such a manner as they mutually 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 ought From all these incontestable truths results this ARGUMENT OF JACOB M. DICKINSON. 815 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. Again on the same page:— We ought always to give to expressions the sense most suitable to the subject, or the matter to which they relate, for we endeavour by a true interpretation to discover the thoughts of those who speak, or of the contracting Powers in a Treaty. And further on the rule:— The rule of interpretation forbids turning the sense of the words contrary to the manifest intention of the contracting Powers. So if I shall be able to establish that in the beginning these Parties understood that one meaning attached to " coast," that they had a common understanding upon that subject, then if interpreting the Treaty according to that understanding would give effect to what they seem to have had in view, if I can show what that was when they made the Treaty, and if giving, on the contrary, a narrow, or an unusual meaning would defeat the purpose they had in view, then, unless there appears upon the face of the Treaty itself some overruling reason why this unusual meaning should be given, or unless it appears in the negotiations that after this understanding was reached notice was brought to the Parties that this word had assumed a new significance to them, the Tribunal would be bound to put that construction upon the term which at the very beginning they all attach to it. Otherwise, instead of effectuating, we would be doing nothing, except by exceeding refinement, to defeat the intention and purpose of the Parties. If an object shall be shown with reasonable certainty, and if giving this unusual meaning would defeat that object, then cer- 734 tainly no such meaning as that could be attached. On that point I will read Rule 6, which appears on p. 11 of the United States' Argument:— 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 knoiv 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. If it can be shown in connection with the lisiere that both Parties understood that certain ends were to be subserved by the language they used, and if those ends would be subserved by giving the natural meaning to the term coast and the meaning which they had set out attaching to it, and if, on the other hand, it would be frustrated by giving a new and unusual meaning, then I say that, under the rule, not only as I have read it here, but under the rule of common sense and common justice, no such unusual meaning as that should be given. If it shall be established by the negotiations that the Parties desired to have certainty, that they wanted to end the controversy, and to leave no ground for controversy in the future—although they seem not to have been very happy in effectuating that object; nevertheless, if that shall appear to have been their purpose, and giving one meaning to this term would tend to establish certainty, and giv- 816 ALASKAN BOUNDARY TRIBUNAL. ing another would throw it open to uncertainty, then it seems that the one which would bring about certainty is the one that ought to be given to it. Now, there is no doubt that that was the idea that they had in view. I am not going to read at great length from the negotiation—at least, not now. On p. 126 there is* a letter from Sir Charles Bagot to Mr. Canning in the United States' Appendix, in which he says:— I have suggested to him— Referring to 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. Again, on p. 230, the letter of Count Lieven to Count Nesselrode, the 8th May, 1825:— ml 7 Mr. Canning, while rendering full justice^- And this was a letter written after the conclusion of the Treaty— 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 towards 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 hoTfrom any intention of acquiring an increase of territory or of limiting the extension of the Russian possessions. Now, if there is any one thing that% they wanted it was to have a finale of this matter, to make the Treaty certain, and to cut off all way for future complication. If that was the object thejr had in view, is it reasonable to suppose that any one of those negotiators would, at any point of these -proceedings, without explanation, have used a word in the Treaty with a different meaning from the meaning that had been attached to it at the beginning of the negotiations? I shall undertake to demonstrate that never at any time was there anything that transpired to warrant the conclusion that 735 anyone of the negotiators understood that " coast" meant a CD coast drawn from headland to headland—that " coast " meant that kind of a coast which is only used for jurisdictional purposes, and to establish a right appurtenant to an already existing territory. Yet, that is the kind of coast upon the meaning of which Great Britain plants its Case, and unless it shall succeed in having this Tribunal hold that the negotiators must have understood when they wrote the word " coast" into the Treaty that it meant not the entire coast, but a coast line, which, so far as I am informed, had never been used before, and never since except for declaring and establishing an appurtenant jurisdictional right, then their case must fail upon that proposition. Now, then I come to the meaning of the word " coast." I shall endeavour to show that from the inception of this controversy there never was but one meaning attached to it, and that that meaning was wholly incompatible with that which is now insisted upon by ARGUMENT OF JACOB M. DICKINSON. 817 Great Britain. I trust that I shall not unduly weary the Tribunal, but it will be necessary that I should make some references to the negotiations, which I regret very much, knowing the familiarity of the Tribunal with them, and knowing how much their patience has already been taxed. This word "coast" had an historical meaning to these negotiators. It had a meaning that to them originated in the Ukase of Russia in 1799. This appears upon p. 23 of the Appendix of the United States, and the recital is:— By the right of discovery in past times by Russian navigators of the northeastern part of America, beginning from the 55th degree of north latitude, and of the chain of islands extending from the Kamchatka to the north to America, and southward to Japan, and by right of possession of the same by Rusfeia, we most graciously permit the Company to have the use of all hunting-grounds and establishments now existing on the North-Eastern— That has been explained to mean the north-west part of America— coast of America, from the above-mentioned 55th degree to Bering Strait, and also on the Aleutina, Kurile, and other islands situated in the North- Eastern Ocean. Now, could there be any question at all as to what that Ukase meant? Can anyone suggest, with any reason to suppose that the suggestion would be accepted seriously, that Russia intended that that was only to apply along the coast that has been indicated by Great Britain in this Case, and that it was not to apply to the coast along the inlets where the Indians lived, and where the hunting, no doubt, was most profitable? Then we come to the next step in the historical development of the use of this word " coast," and that was the Imperial Ukase of 1821, which appears upon the 25th page of the Appendix of the United States' Case:— It says: The directing Senate maketh known unto all men. Now, see tl^e application:— Observing from Reports submitted to us, that the trade of our subjects on the Aleutian Islands and on the North-West Coast of America I shall not read the remainder of that, but I only read*that to show that it was intended to apply to the North-West Coast of America, not a part of the North-West Coast of America, and it cannot be assumed for a moment that they intended to cut up that coast and make it apply to the mainland coast or the coast outside of these inlets from headland to headland. It is unquestionable, and no one could, with any hope of convincing anyone, advance the argument that Russia ever had any such idea in regard to the meaning of " North-West Coast" as a general line of coast such as is presented by Great Britain in this Case. Now, when you come to look at the*rules that were made for enforcing this Ukase it becomes still more manifest what they meant. The first is:— The pursuits of commerce, whaling, and fishery, and of all other industry on all islands, posts, and gulfs, including the whole of the North-West Coast of America— 736 If anything was left to intendment in the language of the Ukase itself this rule takes it entirely out of the possibility of S. Doc. 162, 58-2, vol 7 -22 818 ALASKAN BOUNDARY TRIBUNAL. any conjecture, and makes it in express terms apply to the whole North-West Coast of America. Mr. Aylesworth. Suppose there was an establishment up the Stikine, say 50 miles inland, made by the Russians prior to or immediately after the issuing of these Ukases, would not such an establishment be within the description ? Mr. Dickinson. It might, but that would not make it apply any less to the whole coast. It would simply show the extent to which they carried the inhibition inland. Mr. Aylesworth. WTiat was in my mind was that the word ms "coast' that you are calling attention to is used in that sense as meaning a strip of land, settlements on the coast, but not necessarily on the salt water. Mr. Dickinson. Well, it necessarily, I take it, meant on the salt water, too; it meant the coast along all of the salt water. Jf it meant to apply to their possessions inside and in the interior, and beyond the salt water, well and good. I take no issue as to that, but, at any rate, when they spoke of the whole coast it could not be said that they meant a part of the coast. That is the only point that I am now upon. The President. I do not think that they were thinking anything about it at that time. I quite follow your argument; at this time they were asserting—we go from the north down to 51 degrees; that is what they were talking about, and it did not enter into their minds then to say what was coast or what was not for this purpose. Mr. Dickinson. No, not for this purpose. The President. I quite follow you, Mr. Dickinson,, but you are reading into these documents considerations which did not affect the minds of the writers at that time. Later on the point becomes of more importance. Mr. Dickinson. It is of importance. It becomes more important later on when we connect the use of the term " the North-West Coast I in this Ukase, which was communicated to all the Parties concerned, with the subsequent negotiations. The President. I entirely agreed with the view which you expressed when you began your argument, that one ought not to construe all these documents and apply them in such a way as though the writers then knew what we know now. We all read into these documents considerations which never affected the writers' minds at that time. Mr. Dickinson. But I shall undertake to show that they knew then what Russia meant by the North-West Coast of America. The President. It did not mean it here. Mr. Dickinson. And I shall undertake to show that what they meant, and what the respective Governments meant, was the exclusive possession of all of the Sorth-West Coast of America. Now, when you come to the 14th rule, it provides:— 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. 737 I develop this for the purpose of showing that these rules that Russia then promulgated applied to the whole of the coast which was designated as the North-West Coast. Then I shall pro- x^mmmmmmt mm ARGUMENT OF JACOB M. DICKINSON. 819 ceed, in the next step, to show the understanding of the several Parties as to its application, and then subsequently when they came to divide up this North-West Coast, and divided it up by name, that they gave to it the very same appellation and designation that is used here. Unless some contrary reason appears, it must be assumed that it was used subsequently in the same sense in which the notification was here given. Mr. Root. That is, you establish Russia's point of departure. Mr. Dickinson. I establish the understanding that Russia had when she said North-West Coast, and when she repeated that term "North-West Coast' afterwards in the Treaty, there ought to be some strong reason to show that she meant it in a different sense. When this lisiere was marked off on this North-West Coast, which she was then delimiting by the parallel which struck the continent at 54 degrees 40 minutes, Russia meant the whole of that coast, and not a dismembered coast, and such a coast as would be designated by attaching to the word " coast" such a meaning as is now insisted upon by Great Britain. This Ukase was communicated officially to the Governments at Washington and at London, and these regulations were also communicated, and there was upon record with both of these Governments an express statement of what Russia meant when Russia used at that time the term " North-West Coast of America." That it was understood exactly in the same sense at that time by Great Britain is made manifest by a letter written by Sir Charles Bagot to the Marquis of Londonderry, which appears on the 101st page of the Appendix to the United States' Case, in which he says:— / ml My Lord: In my despatch No. 50, of the 3rd October, I transmitted to your Lordship the heads of an Ukase which had been published^ here respecting the commerce and navigation of the North-West Coasts of America, the Aleutian and Kurile Isles, and the Eastern Coasts of Siberia. Shortly after the date of that despatch I had an opportunity of speaking of this Ukase to Count Nesselrode, and he gave me to understand (as I then thought) that it would be communicated to me officially, accompanied by an explanation of its object, and the grounds upon which it had been issued. After waiting several weeks for this communication, I found that it had been already made through the Imperial Ministers abroad to such of the European Powers as might have been supposed to be interested in the matter, and that it had been despatched by a special messenger to the United States. And then near the bottom of the page next to the last paragraph:— When I found that the Ukase had been already communicated to your Lordship I abstained from entering with Count Nesselrode into any further discussion of it, or inquiring of him upon what grounds the 51st degree of north latitude (which, after the last Treaty between Spain and the United States, reduces the possessions of Great Britain to 2 degrees of latitude) — There must be a mistake. The President. Two degrees. Mr. Dickinson. Yes, two degrees. He stated that he inclosed him a map of the north-west coasts of America. Now, this map was No. 5 of the United States' Atlas, which was the Quartermaster-General's map of 1802, and this map shows all the coast; shows the coasts of all the bays and inlets. Hoyv can it mean, when he transmitted this map showing this coast, that he meant a coast drawn from 738 headland to headland, or that such was the coast in respect of which Russia was asserting exclusive jurisdiction. It is just as clear what the understanding of the Marquis of Londonderry was ir E«5*dl * 1 * ill 820 ALASKAN BOUNDARY TRIBUNAL. on that subject, because he wrote on the 18th January, 1882, to Count Lieven, on p. 104 of the United States' Appendix:— The undersigned has the honour hereby to acknowledge the note addressed to him by Baron de Nicolai, of the 12th November last, covering a copy of an Ukase issued by His Imperial Majesty the Emperor of all the Russias, and bearing date the 4th September, 1821, for various purposes therein set forth, especially connected with the territorial rights of his Crown on the Northwestern Coast of America, bordering upon the Pacific, and the commerce and navigation of His Imperial Majesty's subjects in the seas adjacent thereto. And on the next page he continues:— I 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," and so forth. Now, Mr. Pelly was very much interested in these negotiations; he was the constant adviser and mentor in respect of all matters in regard to that territory there, and it is very clear he had the same understanding, and appreciated the full significance of it. On p. 106 of the United States' Case Appendix, he says:— It has fallen under the observation of the Governor and Committee of the Hudson's Bay Company that the Russian Government have made a claim to the North-West coast of America, from " Bering Strait to the 51st degree of north latitude." He certainly understood that this meant the entire coast, and the ml 7 coast in the sense that we ordinarily use the term " coast." Whether or not it meant interior land is another question, but it certainly included all the coast, and that was the message that was conveyed to his mind. And this is further indicated by what he says on p. 107. If no notice is taken of these proceedings of the Russian and American Governments, the effect of which would be to exclude British subjects from the North-West Coast of America— That does not leave it at all to conjecture as to what Mr. Pelly understood about it. Mr. Stratford Canning had clearly the same understanding when he wrote to the Marquis of Londonderry on the 19th February, 1822, p. 106, United States' Appendix:— 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 North-West Coast of America down to the 51st parallel of latitude, together with a considerable portion of the opposite coast of Asia, and the neighbouring seas, to the extent of 100 Italian miles from any part of the coasts and intervening islands so appropriated. The Duke of Wellington had a similar understanding. Thus it is apparent that Sir Charles Bagot, the Duke of Wellington, Mr. Pelly, and Mr. Canning, who represented Great Britain from the beginning to the end of the negotiations which eventuated in this Treaty understood that the coast claimed by Russia did not mean a mere general trend of coast, but that it was an exclusive claim set . up to the whole coast designated by Russia as the North-West 739 Coast of America. The significance of that is that afterwards when they came to delimit this territory they used the iden- ARGUMENT OF JACOB M. DICKINSON. 821 ieal term " North-West Coast of America." Mr. Adams had a imilar understanding, and it is not without significance, too, when ve come to see how the Treaty of 1825 incorporated some of the )rovisions of the Treaty of 1824, which Treaty was made between he United States and Russia in respect to these very coasts, and secured to the United States rights on these very coasts. If the rreaty between Russia and Great Britain adopted in exact language he provisions that were in the United States' Treaty, the presump- ion is that they put them there with the same construction given to hem by the United States when it put them into its Treaty, especially yhen it is shown, as I will undertake to show and have shown already mrtly, that all of the Parties at that time who had anything to do vith the negotiations on either side understood expressly what the ;erm " North-West Coast of America " meant. In the United States' Case Appendix, pp. 48 and 49, Mr. Adams ays in a letter to Mr. Middleton of July 22, 1823:— From the tenour of the Ukase, the pretensions of the Imperial Government extend to an exclusive territorial jurisdiction from the 45th degree of north atitude on the Asiatic coast to the latitude of 51 north on the western coast of he American continent; and they assume he right of interdicting the naviga- ion and the fishery of all other nations to the extent of 100 miles from the ohole of that coast. 55 I shall as briefly as I can take up the meaning of the word " coast is it appears to have been developed under the negotiations which •esulted in this Treaty. The first suggestion of the line upon which his territory should be delimited was that made by Sir Charles Bagot, and the line suggested by him was to be drawn at the 57th legree, but it is not shown how the line was to be drawn northward, md, therefore, I think that no inference can be drawn from that, rhe first definite proposition appears upon the United States' Atlas it p. 3, and is marked at Cross Sound as the first line proposed by Sir Charles Bagot on the 29th October, 1823. He proposed to carry he line up Lynn Canal, and thence northward. It is absolutely ?lear that upon this tentative proposition it was understood that the mtire coast on the west side of Lynn Canal would go to Russia, ind yet it is now contended that, although Great Britain never at my time made any claim to any part of the coast upon that side of Lynn Canal, by the subtle meaning that was attached to the word '* coast," the Treaty is to be so construed as to give to Great Britain i large portion of the coast upon that side to which she had never at my time in the course of the proceedings set up any claim at all, or wen intimated that it should not go to Russia. The second line proposed by Sir Charles Bagot, which appears npon the United States' Map 3, passed up Chatham Strait to the head of Lynn Canal, and thence to the north. This is identical, so far as the western coast of Lynn Canal is concerned, with the first proposition. What I have said in' respect of the construction put upon the language of the Treaty retroacting and drawing into the British dominion coast to which at no time, under any proposition, had they ever set up any claim, applies also to this line. In the counterproposal by Russia to the second line proposed by Sir Charles Bagot, United States' Case Appendix, p. 158, they say:— The proposals made by the Russian Plenipotentiaries to Sir Charles Bagot, and which his Excellency has been asked to take into careful consideration, 822 ALASKAN BOUNDARY TRIBUNAL. aimed at having the 55th degree of north latitude accepted as the line of demarcation between the respective possessions on the North-West Coast of America. This same boundary has already been assigned to the Russian possessions by the charter which the late Emperor Paul I granted to ttte American Company. As the parallel of the 55th degree cuts the southern extremity of Prince of Wales Island, leaving two points of land outside the line, the Plenipotentiaries of Russia have proposed that these two points be comprised within the 740 Russian limits, wishing thereby to avoid a division of territory, which would be equally inconvenient to the two interested Parties. 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. When they proposed, that it should follow Portland Channel, and follow it up to the mountains which bordered the coast, it seems very clear that they had in their minds mountains which began somewhere in the vicinity of Portland Canal, and that the mountains that were pictured to them and in respect of which they made the Treaty, had a general trend, as represented upon the Vancouver maps and the Faden maps, bordering this entire coast, and that they could not have had any reference there to any mountains whose trend cuts across these inlets and severed the coast in respect of which they had hitherto been treating. In the amended proposal of Sir Charles Bagot, which appears on p. 159 of the United States' Appendix, he says:— In accepting the proposal made by Sir Charles Bagot in his first conference with the Russian Plenipotentiaries, Russia would have had, it would seefn, only one difficulty, that which might result from the right whiehrmight perhaps be claimed by the United States, by virtue of their Convention of 1818 with Great Britain, to navigate freely in all the waters between King George's Island and the mainland (" terre ferme"), and thus, in a way, embarrass the trade of the subjects of His Imperial Majesty in these waters The islands there spoken of as King George's Islands are what we call Chichagof and Baranof Islands. The term he uses is " parage," which has already been commented upon:— Pour obvier k cet inconvenient et pour assurer k la Russie l'enti^re souve- rainete de ces parages, ainsi que toutes Ies lies et Ies cotes ou il y a effective- ment des etablissemens Russes, la Grande-Bretagne proposeroit de prendre pour ligne de demarcation Uj| Now, I understood the Solicitor-General at one point of his argument to insist that this could not apply to water. I believe, however, he subsequently departed from that view, but the expression here is to navigate freely the " parages," and of course that makes it plain that under this proposition he proposed to concede all of the waters to the east of these islands. He did not separate the heads from the I embouchures!; into the ocean, when he says in express terms that they were all free to be navigated. From this time, had anything ever occurred to show that England sought in any way to secure any rights in the waters north of that line? At that time Sir Charles Bagot expressly declared that it was his purpose to cede to Russia the exclusive rights to these waters, and while there was contest in regard to the drawing of the line below that, there never was a suggestion brought forward in any way that -W-l T OO .-..I ""111 England ever sought to secure a right in those waters, and the only suggestion that now is made arises from the interpretation which is put upon this word " coast," and especially in the construction that has been put upon the Vllth Article in respect of that coast. Sir ARGUMENT OF JACOB M. DICKINSON. $23 Charles Bagot proposed to go 10 marine leagues from what ? From the coast. And, after he had got 10 marine leagues from the coast, then what is his proposition ? To run parallel with the sinuosities of the coast, and always at a distance of 10 marine leagues from the shore, using the word " rivage." Now, can it be contended after he had said that all these waters were to be ceded to Russia, and when Russia still stood fast substantially to its original proposition as to how the line was to run, and after he came in with a counter-proposal and said that the line was to go into the interior, and after reaching 35 miles in the interior, to run parallel to the coast, that he had in his mind at that time any such thing as the general trend of the coast or anything else than the whole of the North-West Coast, in regard to which they had been treating? Now, he knew at that time when he used the term | sinuosities of the coast" exactly what Russia meant, and what Russia would 741 understand by the use of the term " sinuosities of the coast." On the 158th page of the United States' Appendix in the counter-draft by the Russians they said:— ml ml From this point the boundary would ascend along those mountains, parallel to the sinuosities of the coast, as far as the 139th degree of longitude. Now, that puts an interpretation upon what they understood by " sinuosities." The impossibility of the United States' line has been undertaken to be shown by saying it cannot be drawn parallel to all of the ins and outs of what we claim to be the coast. I will deal with that question more particularly hereafter, but I claim that it never could have been the intention of the Parties that " parallel to the sinuosities " meant any such thing as that. They had said that the mountains were parallel to the sinuosities of the coast. They introduced this alternative to be a substitute for the mountains, and when they said that the line was to be drawn parallel to the sinuosities of the coast, I take it that it is reasonable to suppose that they meant the same kind of sinuosity that was indicated by the parallelism of the mountains, and it is too close and too narrow a construction to insist, as has been insisted upon, that if the line is to be drawn parallel to the sinuosities of the coast, it must have all these ins and outs, and because it is insisted that that could not be done—that it is a mathematical impossibility—then they say that some other meaning must be given to " coast," so as to designate such a coast that a line can be drawn parallel to it. Taking these two incidents together that I have just referred to, the proposal of Sir Charles Bagot and the Russian counter-draft, it shows they understood as plain as words can make it, that from the point 10 marine leagues from the coast, a line was to be drawn substantially like that indicated by the mountains referred to by Russia. The distance was always to be 10 marine leagues from the shore. According to the contention of the Attorney-General, this line could not have been drawn parallel to the sinuosities of all the coast, and therefore Sir Charles Bagot, on account of this impossibility, must have meant, not the coast that they had been talking about at the time when he used this term in his proposition, but a coast which, as is now claimed, is of such a character that it is capable of having a line drawn parallel to it. Does it not almost stagger credulity to suppose that at that time • M t : 824 ALASKAN BOUNDARY TRIBUNAL. in the proceedings Sir Charles Bagot, because he thought that the line could not be drawn parallel to all the sinuosities meant when> he made this proposition not to propose the kind of coast they had^ been talking about, but an entirely different sort of coast, a coast that has been denominated a political coast, a coast which is used for jurisdictional purposes, and that this new meaning was thereby stamped upon the word coast simply growing out of the impossibilities, as they must have been present to his mind, of drawing the parallel to the entire coast of the shores and inlets? And yet, that must be the conclusion. He either meant all the coast when he made the proposition, or he meant the British coast line that is now suggested or something substantially like it, and the only reason that can be shown why he attached this different meaning to it is the impossibility, as is asserted, of drawing a line parallel to all the coast yvhich up to that time they had been treating about. Now, if he had intended such a coast as is claimed by Great Britain, would he have used the word " rivage" ? The word " rivage' is used generally, as I understand it, to mean the shore of any waters. It is said it might apply to a river. It might apply to a lake, but has " rivage " ever yet been applied as a water boundary ? It certainly can be a border to any kind of waters, but when you take the coast line indicated by Great Britain, why, then " rivage " extends across Lynn Canal, and it becomes not a border of water, but a water border— that is to say, a border which is constituted of water alone. Still, it is said that that was the kind of coast that Sir Charles Bagot was speaking of. At what time in those proceedings—did any such change come over their understanding in regard to the meaning that would be attached to this word " coast " ? That he never intended to get any waters north of that strip is shown by his reply to 742 the observations of the Russian Plenipotentiaries on his amended proposal. P. 163 of the United States' Case Appendix he says:-— ml 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 &s 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 possessions 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. (Adjourned till to-morrow at 11 a. m.) pmm*M" Pi 743 EIGHTEENTH DAY.—OCTOBER 7, 1903. All the Members of the Tribunal were present. Sir Robert Finlay. My Lord, before my friend, Mr. Dickinson, resumes there is a mistake in the transcript which I think I ought to call attention to; it will be corrected, but the point is one of some importance. The President. Has it been revised yet, Mr. Attorney ? Sir Robert Finlay. It has not yet been printed in the revised form. The President. What date ? Sir Robert Finlay. It is on the 21st September, at p. 18 of the unrevised copy, at the middle of the page. If your Lordship will kindly look at the paragraph it will make intelligible the observation I am about to make. Your Lordship sees the paragraph beginning:— I rather think it is somewhat below that; it certainly is at Berners Bay. I am told I am substantially right—it is.below Berners Bay. Now, there follows a sentence which is really unintelligible, but it rather suggests what I did not say:— There, at least, as I submit according to the better opinion, below that limit of territorial waters would begin. What I said, as the context will show, was:— There, at least, and as I submit according to the better opinion below that, the limit of territorial waters—— The President. Thank you, it will be corrected in the revise, Mr. Attorney. ml Mr. Dickinson. Mr. President, no one can be more sensible than I am of the great strain that I am putting upon the members of the Tribunal in going over passages in the negotiations with which they are more or less familiar. These passages, however, have not been read on behalf of the United States, and although they have been correctly read they have been commented upon from the standpoint of the opposing Counsel, and it is absolutely necessary if I seek to enforce, the points of my argument at all to ask the attention of the Tribunal to the language of the passages. I will give you one assurance, and that is that I am very near through this part of my argument, and shall, in this way, not impose much longer upon the good nature of the Tribunal. When we adjourned yesterday a'fternoon I had just read the passage from the reply of Sir Charles Bagot to the observation of the Russian Plenipotentiaries. This appears upon p. 163 of the Appendix to the American Case. I shall not read the passage again, but desire to call particular attention to what I regard as the emphatic words there throwing light upon his understanding of the meaning of the word " coast." 825 mmm mmm 826 ALASKAN BOUNDARY TRIBUNAL. That is the proposition with which we are now dealing; that is, what will the Tribunal find to be the understanding attached to the word " coast" by the negotiators? That is the subject we are inves-. tigating, not what meaning we would give to it new, but what meaning they gave to itvat that time when they delimited this territory. The emphatic words are in the third liife*, where he says that he gives *up, in consequence of the observation of the Russian plenipotentiaries, the former line of demarcation that he had traced. This line ran along the middle of Chatham Straits. He gives up that and offers another. Now, what is brought about by this offer ? He says that it secures to Russia not only a strip on the continent opposite the southernmost establishments which she possesses on the island, but the possession of all the islands and waters in its vicinity. I call attention to the fact that the French version uses the words " Ies eaux," so that there is no question there about the meaning to be attached to "parages," which arose on the former matter that we had under discussion. He distinctly proposes to give up something, and to give all of the islands and the waters in that vicinity and a strip on the continent. Mr. Aylesworth. What vicinity is that, according to your view? Mr. Dickinson. I beg your pardon? Mr. Aylesworth. What vicinity does he' refer to, according to your view of it? Mr. Dickinson. It is the vicinity east of Chatham Strait. That is the proposition that he referred to.* He had proposed as a line of demarcation one passing along the middle of Chatham Strait, as far as the northern extremity of Lynn Canal. That gave to Great Britain the eastern shore of Lynn Canal and to Russia the western shore of Lynn Canal. Under that proposition Great Britain would have gotten the coast on the eastern side of Lynn Canal. Now, he says he gives that up, but he not only gives that up, but he gives a strip of coast on the land—it reads a strip of coast on the continent, something entirely inconsistent with the idea of a strip composed partly of land and partly of waters—and he gives up all of the .waters lying north of Sumner Strait and to the east of Chatham Strait, which waters, under the former proposition, would have gone to Great Britain. Now, if he surrenders what Great Britain would have had under the former proposition, could it be possible that when he used the word " coast' he intended to give a covert meaning to it by which he did not give up this coast on the east side of Lynn Canal, but meant a political coast or a jurisdictional coast when he said " coast," and that when he said he was giving up something, he was really getting back more coast than he said he was giving up? That would be the result of puttng the interpretaton of a general trend of the coast upon the word coast, and, instead of giving up the coast, which, under the former proposition, would have gone to Great Britain, he would have been getting by this new meaning, which is proposed to be attached to " coast," most of the coast on the east side of Lynn Canal. Now, I say that it cannot be possible to impute to him at that time any such interpretation of the word " coast." It would have been a flat contradiction of his observation upon the proposition that he then made. He would be getting, by this new meaning IBS! ARGUMENT OF JACOB M. DICKINSON* 827 attached to " coast," more than he said here expressly that he was giving up. Take his explanation of his amended proposal in the letter to Mr. Canning, which appears on p. 155, United States' Appendix, the third paragraph. He said:— You will observe that in making the proposal so modified, I, in fact, exceeded, in some degree, the strict letter of your instructions by assigning to Russia the islands lying between Admiralty Island to the north and Duke of York and Prince of Wales Islands to the south, but 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 745 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. Could anyone say when he gave this explanation of his proposition and said that it meant coast extending into the interior a width of 10 marine leagues that he at that time meant by " coast" what is now contended by Great Britain to be the meaning applicable to that word "coast"? Would anyone say that a line drawn across Lynn Canal from headland to headland was in the interior of the continent? Still he explains that that was his proposition, that it was to be in the interior of the continent. How can you reconcile such an interpretation as that with the explanation given by Sir Charles Bagot of his own propositions? It all turns now upon this new and modern application given to the term " coast," and is in direct antagonism with the explanation that he gives, and wholly irreconcilable with the interpretation that he put upon it. Can it be said that he intended to work out any such result at that time by the use of the word " coast," or by the use of the word " rivage," or by the use of " sinuosities " ? And still, under this contention, he must have intended at that time, when he made that proposition, by | coast' the general coast, and not a coast extending to the interior, and meant by " coast' a coast line that would cut across Lynn Canal and would give all the coasts that he ml ' <Tj had hitherto conceded to Russia to Great Britain. If he had at that time in his mind any such meaning of the word coast as would work out the result now contended for, even if he had not explained it to Russia, would he not have explained it to Mr. Canning in writing to him and telling the effect of his proposition ? If he read into the proposition the meaning now attached to that word " coast," would he not, in writing to Mr. Canning, have told him what would be the result, and how it would work out ? Coming to his final proposition on pp. 163-164 (and that is shown on the United States' Atlas No. 4), the last paragraph at the bottom of the page, in reply to the observations of the Russian Plenipotentiaries, he says:— It seems that a line drawn from the southern extremity of the strait called " Duke of Clarence's Sound," through the middle of this strait to the middle of the strait which separates Prince of Wales and Duke of York Islands from all the islands lying north of those islands, thence toward the east through the middle of the same strait to the mainland, to be prolonged afterwards in the direction and manner already proposed by His Britannic Majesty's Plenipotentiary as far as Mount Elias, or to the intersection of the 140th degree of longitude, would form a line of demarcation which would conciliate the mutual convenience of the two Parties. IS '1 wm ws^PP 828 ALASKAN BOUNDARY TRIBUNAL. rl He had himself understood up to that time what was the convenience that Russia intended to secure, and he said it would satisfactorily assure the reciprocal interests of both for the present and for the future. There was a reiteration of the former proposition so^ far as extending into the interior, and so far as giving a strip of coast after he got in 10 marine leagues from the coast and going parallel to its sinuosities were concerned. Now, turning to the final position of the Russian Plenipotentiaries, at p. 164 they say: -L. ml ml 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. Can anyone say that at that time, when she was talking of protecting her establishments and using the expression " a slice of territory upon the coast," that she did not mean a slice of land, but a strip composed of slices of land and slices of water, and this when the object of protection was to secure her trade with the natives? Such a construction as that is wholly incompatible with the 746 idea that Russia had in view, which idea was fully understood, as has been shown by the Plenipotentiaries of Great Britain. The negotiation was broken off, but not on account of any controversy as to the meaning of the. word " coast." There never was any controversy about that from beginning to end, but_it was as to the delimitation of the coast upon the continent. It it perfectly plain what Count Nesselrode at that time and at that stage of the negotiations understood " the coast " to mean. At p. 167 of the United States' Case Appendix he says:— By rights of first discovery, and by that which is still more real, the firs& 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. When he was making that demand and was using the word " coast I and they were using the word " coast," is it conceivable that he understood when he receiy^ed that proposition and made comments upon it that Great Britain at that time was attaching the meaning to the word coast that is now sought to be put upon it, and does not everyone know that, if it entered into his mind at that time that they were using the word " coast " as it is sought to be used now, that he would have entered a protest and that he would have seen that instead of getting all the coast and a strip of mainland, as it was expressed over and over again, he was getting a strip, partly of land and partly of water, and that he would never have carried out the Treaty with any such understanding as that ? There is still further evidence of his understanding to be found in his letter to Count Lieven, on the 5th April, 1824, in the United States' Appendix, pp. 172-73. He says:— The Ukase'of the 4th (16th) September, 1821, carried the domains of Russia on the North-West Coast of the American Continent down to the 51st degree of north latitude. He uses the expression " North-West Coast of the American Continent," referring exactly to the coast which had been referred to in ARGUMENT OF JACOB M. DICKINSON. 829 the Ukases of 1799 and 1821. He sneaks of the coast, the identical coast in regard to which these complications had arisen, and he uses the express term " North-West Coast" when he comes to a question of dividing that particular coast. And then he proceeds, further down in the same paragraph:— That upon the continent and toward the east this frontier could run along the mountains which follow the sinuosities of the coast as far as Mount Elias. Now, will anyone pretend when he spoke of mountains following the sinuosities of the coast he meant mountains leaping across these waters, and that any such notion as that entered into his head when he was dealing with the North-West Coast, which, to his mind, had an historical meaning, the inception of it beginning with the Ukase of 1799 ? We get at the understanding of these Parties by finding how their minds met upon the meaning of that word I coast." It was impossible that either the British negotiators or the Russian negotiators could at that time have attached any such meaning to it as is now attributed to it. Russia never departed from her first insistence— that the frontier was to run along the mainland and be carried down as far as her contention was then set up, which was to 55 degrees. Mr. Canning wrote to Sir Charles Bagot, as appears on the 181st page of the Appendix, on the 12th July, 1824. That was the time, you recall, that he sent his counter-draft. He says:— ml 1 ml 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 be drawn between British and Russian occupancy on the North-West Coast of America. 55 747 He repeats that term " North-West Coast. 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 resolved 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. Now, if the Tribunal shall fix the point above Portland Canal, as I undertook to demonstrate they should fix it, this line following the sinuosities of the coast must start there [indicating], and the parallelism must begin there [indicating]. You could not take a line beginning there and run it parallel to the coast if you bring it down 57 miles towards the coast. It would be a complete departure from the line which has been here indicated. Could anyone say that Rus- «/ ms sia had then in mind any line of political coast to which this line was to be drawn parallel, or that she spoke of anything but the entire coast over which the controversy had raged ? But Mr. Canning says that these instructions were given upon a consideration of the motives that had influenced Russia. Now, let us see what these motives were. If you turn to the 158th page you will find in the counter-draft of the Russian Plenipotentiary that they say:— From this point the boundary would ascend along those mountains parallel to the sinuosities of the coast, as far as the 139th degree of longitude (meridian 830 ALASKAN BOUNDARY TRIBUNAL. \ 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 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 degrees latitude with 139 degrees 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. Here they indicate their motive. Their motive was to secure this strip of territory, and deprived of this territory they would have no means of maintaining their establishments. With that language is it possible to say that when he spoke of a strip of territory he meant a strip of water and land mixed up? Such would also be the lisiere which would be necessarily given if the meaning attached to " coast I by Great Britain is to be accepted. Mr. Aylesworth. Yet you think, Mr. Dickinson—yet you argue, I should say—that the lisiere consists of a strip of land and a couple of islands at the south end. Mr. Dickinson. I beg your pardon. Mr. Aylesworth. Yet you argue that the lisiere consists of a strip of land and a couple of islands, Wales Island and Pearse Island, at the south end. Are you not arguing for a broken lisiere when you are arguing for the southernmost branch of the channel ? Mr. Dickjnson. The line that was to be drawn parallel to the sinuosities of the coast would not begin until the line got to the 56th degree. It was not to go back. The parallelism only begins at the point you reach after you attain the head of Portland Canal, so what was south of the 56th degree has nothing whatever to do with the question of parallelism. These are the terms in which the Treaty was drawn, and the question of parallelism and sinuosity only begins after you reach the point north of Portland Channel. On 748 the further question as to motive—for this is a very important consideration—on p. 161 the observation of the Russian Plenipotentiary was:— On the other hand, the Plenipotentiaries^of Russia have the honour to repeat to him that without a lisiere upon the continental coast, starting from Portland Channel— There is where the lisiere begins; I call attention to that— * * * the Russian establishments on the islands in the vicinity would have no support ("point d'appui") ; 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. Now, if there is any mainland along that coast, where any nation but Russia could fix establishments in such proximity as to interfere with the trade that she was trying to secure, it is perfectly manifest that the motives of Russia would not be subserved by obtaining any such lisiere as that. But there is a further explication of what they meant, and that is at p. 167, where Count Nesselrode wrote to Admiral Mordvinof, and it is perfectly legitimate to look at this ARGUMENT OF JACOB M. DICKINSON. 881 and see the ideas he had in his mind, because those ideas were significant in controlling him in agreeing to the Treaty. 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. Did that consist with the idea of the lisiere crossing the water? Further, he says:— 7 ml 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 fee sufficient and be in correspondence with the condition to what those establishments will, in all proba- bilty, in time attain, and by their means of own defence. I suppose he means " be' their own means of defence, showing that the lisiere was not only to protect the establishments they had there, but all the establishments they might, in the development of this country, put there in the future. Then, again, he says:— Independent of the circumstance that the land in those places is almost sterile, affords no corn fields, which, in the opinion of your high Excellency, are necessary for a Colony, is hardly able to produce good food products, and that the principal pursuit of our settlers consists in the capture of marine and not land animals, it is necessary to bear in mind that, in accordance with contemplated plans, these Settlements, after the line of frontier has been fixed, will acquire recognized and undisputed possession of a considerably extensive zone of country He could not have applied that word " country " and " zone of country " to the waters that intersect this lisiere, and are made part of the lisiere, as if these waters were part of the strip of the continent. Again, on p. 164, he says:— 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. One more reference to this point, and I am through with it. That is on p. 173. He says:— 749 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. When all these expressions were before Mr. Canning, and all these declarations showing exactly what they meant by lisiere, and the motives they had, and when he says that this proposition would subserve those motives, and meet Russia's views, how can it be maintained that it could be done by breaking up this lisiere, and not making it a strip upon the continent, as they over and over again expressed it should be, but making it composed partly of land and partly of water? When the draft Convention was submitted by Mr. Canning he used the word " coast," and the Attorney-General has commented upon 4\ ' ^?;T^ 832 ALASKAN BOUNDARY TRIBUNAL. the fact that that word was changed where it applied to the head of Portland Channel, by M. Matusevich, to read " passe." Well, what motive led him to make that change is immaterial now, but it shows that Mr. Canning understood that that was " coast." We cannot impute to Mr. Canning carelessness in the use of that term.#jHe used it in the English, and he used it in the French, and he did not use it CD 7 0» # thoughtlessly or unadvisedly, because they had been talking about CD ml mimm- ^ ms 7 «/ CD | coast" all the time. When we come to look at his draft Convention of 8th December, notwithstanding the change made by M. Matusevich^ he recites the word " coast " again both in the English and the French drafts. Now, that change was just simply a matter of style. I suppose Mr. Canning certainly understood that it was. If he thought at that time that the change of the word " coast" would have any bearing upon the construction of the Treaty, surely something would have been said about it. If he understood that the alteration was made because Russia thought that " coast" meant something else, and that this other meaning would give to Great Britain larger territory than it would get under the terms as he used it, is it possible that Mr. Canning would afterwards have repeated it both in the English and French drafts, which he sent back? I say that is entirely inconceivable. Count Lieven's understanding of the word " cote " in the draft sub- mited by Mr. Canning is perfectly manifest. It is set out on p. 186 of the United States' Appendix. In his letter to Count Nesselrode, he says:— As regards the frontier of the respective possessions to the south of Mount Elias, Mr. Canning makes it run along the base of the mountains which follow the sinuosities of the coast. Now, could he have meant the mountains that trend across the Lynn Canal? Is it possible to attribute to that sentence any such meaning when he wrote it as that he understood that the mountains which conformed to the sinuosity, were mountains whicji did not run along the coast, but which leaped from peak to peak and made a different crest from any crest shown in the maps which were before them when they made the Treaty ? Now, he says:— • ml 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. He uses there the terms " chain of mountains " and " crest of mountains," and whateyrer significance may be given by the Tribunal to the words " crest' and " chain " when they consider that question, this letter shows that it is utterly impossible for Count Lieven at that time to have understood by the chain of mountains that he was speaking of, as one that ran parallel to the coast, mountains that cut across and dismembered the coast, as is now contended by Great 750 Britain. Great Britain had demanded, in the second paragraph of Article III of the Canning draft, which appears on p. 201, as is shown in this letter of Count Nesselrode to Count Lieven:— 1. Liberty to English subjects to hunt, to fish, and to trade with the natives ^f the country, perpetually, on the whole of that part of the coast which con- mmmmmtm ARGUMENT OF JACOB M. DICKIN80N. 833 statutes the subject of the discussion, and which extends from 59° of north latitude to 54° 40\ •Is it possible that Count Nesselrode could have written this explanation to Count Lieven, that England was asking the right to hunt on the whole of the coast, if he had understood that by " coast" a large part of these coasts were going to Great Britain as a matter of right ? Such an interpretation as that is entirely incompatible with the explanation, and you have to strike out the significant words of that sentence in order to attach any such meaning as that to the word I coast,]' Russia declined to give this right because* Russia understood that all of these coasts were to go to Russia, and because she was unwilling to make this concession. If the understanding now contended for had been attached to the word " coast," could any question have arisen as to the rights upon the whole of the coast? Would they not have said, | So much of the coast as goes to Russia " ? But it is stated in the most'explicit terms that the demand is made of Russia in respect of the whole of the coast. If Great Britain had thought that she had any claim to part of these coasts, would she have demanded from Russia the right to hunt and trade upon the whole of the coast ? Now, Russia's objections are set forth and show very clearly what the understanding was on p. 202. They said:— 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 51st 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. I read this yesterday in another connection. However, I beg pardon for repeating it; but it is in the line of argument I am pursuing, and I hope the Tribunal will not think I intend to unnecessarily burden them with references:— "We offer the same advantages to England"—I read that in connection with Article VII—" but to grant them for ever would be to obtain the recognition of our rights of sovereignty only to abandon the exercise of them.".. Here he uses the expression " the whole of the coast," and the rights on the whole of this coast had been granted to the United States, and it was proposed to give to Great Britain the same rights. Now, he brings in the use of this term " North-West Coast" at the bottom of that page. He says:— Russia's rights of sovereignty over the North-West Coast, beginning at 59 degrees 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. Then he goes on and speaks of the grant to the Americans, and he says expressly here " the whole of the coast," and he could not have meant a dismembered and broken-up coast; and I respectfully insist that it is utterly impossible that any one of these Plenipotentiaries could have had any such notion with regard to " coast" as that now advanced. S. Doc, 162, 58-2, vol 7 -23 834 ALASKAN BOUNDARY TRIBUNAL. Mr. Stratford Canning, in transmitting the Treaty, showed his understanding of the effect of the line drawn parallel to the coast at p. 223. He says:— 751 The line of demarcation along the strip of land on the north-west coast of America. Now, here we have this term "North-West Coast," the term that was applied to this coast from the very beginning, and carried down right through to the very conclusion of the negotiations, and he speaks of it as a strip of land along the coast. He writes in English. There is no question there of interpretation of foreign words. When a man talks about giving a strip of land, how it is to be said that he- meant a strip which is partly land and partly water is to me inconceivable. Count Nesselrode wrote to Count Lieven, and I am glad to say this is the conclusion of this matter. The letter appears on p. 225. He says:— 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 possess on the American continent from the 56th degree of north latitude to the point of intersection of the 141st degree of west longitude. Did he mean that he had after all that was said about " coast' and all that was said about "lisiere " changed his conception of the meaning of " coast " and by a mere interpretation that might be put upon this meaning of " coast " have Russia stripped of all the advantages and all the benefits which she was seeking by this Treaty ? Notwithstanding this, as it appears to me, absolutely clear understanding of all the Parties, that the coast in question was the whole of the North-West Coast, as to which there had been dispute, we are now asked to believe that, when they used that word " coast," they did not mean to use it as coast that was in contact with the water, but in a sense that, so far as we are enlightened up to this point, was never used before between parties in delimiting territories, and never except to describe a right that was appurtenant to an established territory. That is, they substitute for " coast' merely what is known as a political or jurisdictional coast, and with that interpretation dismember and destroy the lisiere that Russia sought to secure, and all the benefits which she manifestly intended to establish in all future time by this Treaty. Now, how did they reach this interpretation of " coast" ? On p. 16 of his argument the Attorney-General says:— Now, in Article III the word is " coast," in Article IV the word is J ocean." Of course, " coast" and " ocean " are not the same thing, but they must denote here the same line. In Article III it is to be parallel to mountains situated in a parallel direction to the coast, "situees parallelement k la cOte"; then in Article IV, "wherever the summit of the mountains shall prove to be at the distance of more than 10 marine leagues from the ocean." Well, there the line of the coast and the line of the ocean must be the same thing. The ocean, of course, denotes the body of water; the coast denotes the land and the land where it meets the water in the sense which I have endeavoured to submit to the Tribunal, but they both must designate the same line which runs along and to which roughly the mountains are situated parallel. Now, again, at p. 186 and 187 on the same question he says:— Now, I submit that the coast mentioned in Article III must designate the same line as the boundary of the ocean mentioned in Article IV, and that when you have ascertained what is the coast mentioned in Article III you are to apply to that coast the words of Article IV, which prescribe that the line, in ■PWH ARGUMENT OF JACOB M. DICKINSON. 835 the event there contemplated, shall be parallel to ttie windings of the coast. The contention on behalf of the United States, as I understand it, is that " une ligne parallele aux sinuosites de la cote" means a line parallel to the inlets of the coast taking in all the inlets. I say that that is not the case at all, that you get the meaning of "coast" as designated in Article III and as spoken of in Article IV, and there your line is to be parallel to the sinuosities of the coast, and if that coast is the general line of coast, then it is the sinuosities of the general line of coast, and these only, that you are to have regard to. I say, putting it in another way, that to draw such a line parallel to the sinuosities of the inlets is a thing thatjis impossible; that it really cannot be done, and that what you have to contemplate is a line of coast parallel to which you can draw a line at a distance not exceeding 10 marine leagues. 752 It will be seen at once the dilemma in which the opposing Counsel were placed. They undertake to read into this Treaty the interpretation that they seek to put upon the word I coast" mainly based upon the argument that the negotiators could not have meant the " coast " as we contend because it is impossible to draw a line parallel to it. Therefore, when called upon to designate I coast," they could not designate a coast to which a line could not be drawn parallel. They would have been met at once by their own declaration that that was an impossible coast. Therefore, they either had to take a coast which was coincident with water, and there they would have met the very difficulties which they seek to confront us with, or another kind of coast which I shall undertake to show violates every definition and every idea that hitherto has been attached to the meaning of " coast." It was for that reason that we asked that they would designate on the map what they meant by the line of coast, and if the Tribunal would be kind enough to look at the map hanging on the wall they will see that we have reproduced in a heavy red line what is called the general line of coast by Great Britain.* Now, what are the characteristics of that general line of coast? You will recollect the passage that I have just read from the Attorney-General where he says the coast and the ocean are the same thing in this Treaty—that they are coincident. Therefore, when they lay down a general line of coast, naturally you would have expected that that coast would be tangent to the ocean, because if they started out with the hypothesis that " coast" and " ocean " must mean the same thing it would naturally follow in order to make the line conform to the interpretation of what " coast' and " ocean' mean that it would at least touch the ocean at all points even though it crossed parts of the water. On this point my associate, Mr. Lansing, calls to my attention a passage from Mr. Robinson's speech at p. 443, in which he said:— Not—if we are going to be accurate in language-7-that " coast" means precisely the same thing as " ocean," because, of course, " coast" is land and " ocean " is water; but it does mean that you must measure the land from the same points, and the coast and the ocean must mean the same point from which you are to measure. In other words the coast means the coast of the ocean, or the ocean coast. And now, I think, that so far there is no person that can possibly dispute it Well, that line disputes this almost at every point. I now call the attention of the Tribunal directly to this coast line to show how utterly incompatible it is with the premise laid down before this Tribunal for the interpretation of the Treaty, namely, that " coast" ■ pPB 836 ALASKAN BOUNDARY TRIBUNAL. and " ocean' are the same thing. I intended to pass up to the Tribunal the original handed in by the Counsel for Great Britain. The President. I have no doubt that the line has been correctly drawn, Mr. Dickinson. Mr. Dickinson. It might be followed more accurately if I hand it up. (The map was handed to the Tribunal). The first criticism is that this coast line, although they say that | ocean " and " coast" mean the same thing, turns water into land and land into water. Out of this whole distance of 412 nautical miles, only 188 miles of this coast are coincident where the land comes in contact with water. On this line 56 miles are situated back on the mainland from the water and do not touch it in any respect; 11 miles of it are on islands, and 157 miles of this strip of coast, or rather this coast line parallel to which the lisiere is to be drawn, are over water. If you turn south of Bradfield Canal, this coast line, and this ocean which is supposed to be the same as coast, are 1J miles from any water at all. North of Bradfield Canal the ocean is half a-mile from where the ocean really is, and the line raises the ocean and carries it half a-mile inland. When you get to Farm Island—and I never understood before that under this Treaty CSrreat Britain was 753 entitled to any islands at all—why, it is 1J miles from the water carried across this island, and it is also carried across Dry Island a distance of 2^ miles. The President. This is the general line of the coast,, not the boundary line. Mr. Dickinson. No; but it is the coast line which they say, as I understand, is the ocean. The President. You were suggesting that the Attorney-General claimed half Farm Island. He has never claimed anything of the kind. Mr. Dickinson. No; but he carries the coast line across Farm Island. Sir Edward Carson. It is the general line of the coast. The President. You said you never understood by the Treaty that Great Britain was entitled to any islands. Mr. Dickinson. That was an inadvertence, I am sorry. The President. I beg your pardon. Mr. Dickinson. I am very much obliged for your calling my attention to it. I should have said the coast line was to go across the islands, Farm Island and Dry Island. At Point Agassiz this line of coast is half a-mile inland from the water; at Bay Point it is half a-mile inland from the water; and when you get to Cape Fanshawe it is 3 miles from the water; at Grave Point it is half a-mile from the water; at the point north-west of Juneau it is 1J miles from the water; at Point Couverden it is 10J miles from the ocean. Mr. Aylesworth. It gives the lisiere 10J miles too great a width there ? Mr. Dickinson. Sir? Mr. Aylesworth. It would give 10J miles too much width to the lisiere there? Mr. Dickinson. I will speak of that later on with regard to acreage, but the point I am making now is that I have started out with their premise that they must get a coast line which is the same as MM mm I lO of CO © O A QQ O O o o H MM ARGUMENT OF JACOB M. DICKINSON. 837 i ocean," and when they come to lay down the coast line they carry the ocean inland, and that is an absolutely flat contradiction of the interpretation that they put upon the words of this Treaty. Then you get to Cape Spencer, where it is 7 miles in from where the land comes in contact with the ocean, and at the point west of Yakutat Bay it is 1 mile. I pass up to the Tribunal a profile showing this line of the coast and this line of the ocean, which are supposed to be coincident, where it crosses Point Couverden, beginning at Lynn Canal and going westward to the ocean there—I use the word " ocean " advisedly, because it is said that "coast" and "ocean' are the same thing— and there the line reaches an elevation of 750 feet above sea level, and then as you proceed further west the ocean reaches an elevation of 1,000 feet above sea level, and still further 1,750 feet, and then 2,500 feet, and then 4,000 feet, and then 3,500 feet, and then 3,000 feet.a Why talk of the miracle of turning water into wine ? It was not comparable with this miracle of turning land into ocean and ocean into land. They say that this inner water is ocean along Stephen's Passage, but that you cannot call it ocean up Lynn Canal. They make 754 ocean of Gastineau Channel, which is almost dry at low water; it is unnavigable to anything except canoes. And then of Dry Strait, which is impassable to vessels. Then they carry the line across Farm and Dry Islands and still say that that is ocean. But with regard to Lynn Canal, which is from 6 to 10 miles wide, and from 600 to 1,000 feet deep, you cannot call that ocean. I have given the elevations of Point Couverden. I will mention some other elevations of this coast line which has been presented as a basis upon which these vexed questions are to be resolved. Between the 56th parallel and Bradfield Canal the coast line occurs on a hill nearly 1,000 feet high and on two mountains about 3,000 feet high, one a little less and the second 3,240 feet high. Crossing the point of land immediately north of Bradfield Canal, this coast line twice reaches an elevation of between 1,000 and 2,000 feet. At the next prominent point to the north it crosses the summit of a mountain at a height of 2,000 feet and Dry Island at the mouth of the Stikine is about 2,000 feet high where it is crossed by this coast line. Sir Edward Carson. The coast line. Mr. Dickinson. I beg your pardon. Sir Edward Carson. I think my friend is under a misapprehension. This line of ours is not meant to represent the coast line; it is a line showing the general trend of the coast, which is quite a different thing. Mr. Aylesworth. Even if it were the actual coast line, the paths the coastguards tread about the shores of these islands might be 2,000 or 3,000 feet above salt water. The President. We understand your point, Mr. Dickinson, but the Solicitor-General really is quite right in one sense. You asked the Attorney-General to mark a line which showed the general trend of the coast. We quite follow your criticism upon it, but you are rather straining the British contention to a point beyond which I really do not think it tended. ml o See cut facing this page. $?88S*8! 838 ALASKAN BOUNDARY TRIBUNAL. L Mr. Dickinson. We understood that that was presented as the line to which the lisiere line was to be drawn parallel. The President. That is quite right. Mr. Dickinson. Now, if that is not the line that they laid down as the coast line, it is for them to indicate what the coast line is, and it seems, from what you have said, that I have a right to suppose, as I certainly did in good faith, that that was the coast line parallel to which the boundary line was to be drawn. Sir Edward Carson. This is the general trend of the coast line to which it is to be drawn. Mr. Root. I understand that to be the line which the British contention declares to be the coast within the intent of the Treaty. Mr. Dickinson. It was from that standpoint that I have addressed this argument. Sir Edward Carson. The words " trend of the coast " do not come in the Treaty; it is in the question. The general direction of the mainland coast. We were asked to draw a line showing the general direction of the mainland coast in accordance with the question put to this Tribunal—one of the questions which is to be answered—and we have drawn that line showing the general direction of the mainland coast; but my friend has never drawn any line at all. 755 Mr. Dickinson. Now, then, that does not get them out of the dilemma, and it does not help the proposition at all. Take Point Couverden. If that is not your coast line, that is the line parallel to which the coast line must be drawn. They must draw a line somewhere near that elevation across Point Couverden, between that line and the ocean, because they say there, as distinctly as can possibly be said, that this is the line parallel to which the lisiere is to be drawn. If you do not draw it measured from this line, * nevertheless, you must draw it parallel to a line that crosses that point, and the explanation does not solve the difficulty or relieve them of the dilemma in the least degree. It might meet the minor criticisms that I have passed upon some of the other features of it, but it does not meet the crucial one, and that is, where are they going to carry that coast line and where do they ask the Tribunal to fix the coast line when they ask you to draw a line parallel to the sinuosities of it? When they have said it is to be parallel to this line they necessarily say that it cannot be parallel to the ocean, although they have said that " coast " and " ocean " are the same thing. And that brings us back to the proposition that I started out with—that they must carry the ocean up on top and across that peninsula, and that conclusion cannot be shaken. The President. Mr. Dickinson, you are perfectly entitled to use the argument that you have used as to what the line is. I have just looked it up again, although I only spoke from memory, and the learned Attorney-General when he produced this map-on the 23rd September last said this:— I have here the map with the coast outline according to the view which we take and the general trend indicated upon it. We have here indicated the line. And I said " Thank you," and the Attorney-General said:— And your Lordship will see that the principle upon which we have proceeded is following broadly the ouline of the coast, but neglecting all such sharp points and peninsulas and deep inlets. ARGUMENT OF JACOB M. DICKINSON. 889 Therefore, although we quite follow your argument, you are only putting into detail exactly what the Attorney-General said in general on that occasion. There is no concealment about it. Mr. Dickinson. I know there is no concealment, but I draw a conclusion from his statement. The President. That is another point, only you were suggesting that this was the line. Mr. Dickinson. I supposed it was because they had spoken all through their argument of the general trend of the coast, and then, when they presented that map showing the line of the general trend of the coast, I did not understand that that was to be something different from the coast line, and I understood that was the line parallel to which the other line was to be drawn. But even if I should have misunderstood them, as it seems I did—and I certainly will not combat the President upon that proposition—this proposition cannot be shaken, and that is that it declares in distinct terms that at Point Couverden it does not run around and come in contact with the ocean. They said before that the coast line and the ocean line were the same thing, and, therefore, they invite you, when you deal with the problem of drawing a line parallel to the sinuosities, if you do not take that coast line, to take one parallel with it somewhere between there and Point Couverden, and for my purpdse it does not make any difference at what point you take it. Wherever you take it you take it across that promontory, and you take it up at an elevation of 7,000 feet, and, according to the proposition that they have committed themselves to, you really carry the ocean up into the air and across that peninsula. An attack was made upon the line indicated on the wall map 756 by the United States. We have not undertaken to indicate where that line shall be drawn. We have indicated, for the help of the Tribunal, approximately where we say a line would be drawn 10 marine leagues from the coast if there are no mountains, and that line is attacked on the proposition that it is not parallel to the coast, and that it is an impossible line because it is not parallel to the coast line. Coupled with that must be taken into consideration their other proposition, that you cannot draw a line parallel to what we say is the coast on account of the convolutions which it would make. Impossibilities are suggested in respect to it, and therefore it is said that " coast" must mean something else than what we say is coast, and that something else they give us. In order to give a line to which a parallelism can be made, they violate the first proposition that they start out with, that 1 ocean " and " coast' are the same thing, and carry it up and across that peninsula, in order that they may avoid the sinuous coast in contact with the ocean, and being driven upon the difficulty which they suggest will defeat our line. Now, the Attorney-General says in regard to that, on p. 18 of his argument:— What I have been saying on this head may be illustrated by attempting to draw a line parallel to this conventional line shown as representing the claim of the United States. Of course it must be parallel, or roughly parallel, throughout Well, if you start with a line parallel at the northern point just below the Malaspina Glacier, it will be found, if you were to keep up your parallelism, or anything like your parallelism, the line to which this line is parallel will be one which, so far from representing the coast, whether you take inlets or gen- ALASKAN BOUNDARY TRIBUNAL. eral line, is far inland. It is difficult in words to describe what I am endeavouring to state to the Tribunal, but if the Tribunal would do me the honour of looking at this map, on which a parallel line has been drawn, it will explain in one moment what I mean. In fact, I am told that the line to which this must be parallel would take the coast over the top of Mount Falrweather. The line parallel to wrhich they ask the Tribunal to draw the line takes the coast across Point Couverden, which is not quite so high as Mount Fairweather, but still high enough for all purposes to test the strength of their theory. Now, this attack upon the possibility of drawing a line parallel to what we call the coast line was based upon a radius of 10 marine leagues. It is perfectly plain that the longer you make the radius the greater becomes the difficulty. If you were to draw a line parallel to the coast at a constant distance of 1 foot you could run in and out of every sinuosity, but when you increase the radius you increase the convolutions. In order to demonstrate the absurdity of our line they take a radius of 10 marine leagues; although in another part of his Argument the Attorney-General would not concede that this was to be the width of the lisiere. He expressly stated that he did not concede that. If he is going to take the 10-marine-league radius for the purpose of demonstrating the impossibility of drawing our line, certainly he is committed to that when we come to deal with his line; even if he is not committed to that when the Tribunal shall come to decide, if they shall decide, how far this line shall be drawn from the coast. He used the pictorial illustration of a cab, which was passed up, and the tracks presented just exactly the kind of involved appearance that anyone would have anticipated who had gone into this question at all. It is perfectly plain, if you take the coast reaching round Point Couverden, and start in with a cab there, and drive with one wheel along the shore, having an axle of 10 marine leagues, that if you come down with this wheel along here [indicating], the other wheel sweeps round there [indicating], and, of course, out in Lynn Canal. If you continue, still following the sinuosities of the coast, the wheel would sweep back, and cross the former track. Now, when you come with your cab up this opposite side, the wheel would sweep back here over the same territory. I do not believe it ever entered ms the minds of these negotiators that such a parallel was to be drawn, but if that were their intention, I say it is perfectly capable of being drawn. It is said it is an impossibility. When you come with your cab down there [indicating] it sweeps out and cuts out that 757 large territory and makes a boundary line. When you come with the cab on this side [indicating] the wheel sweeps out and makes a circle, and where the circles come in contact that makes the boundary line that Great Britain could not cross. In other words, the convolutions that are made inside of the contact of the outer circles have no significance at all. I might illustrate that by saying this was a great wheat field and the Parties agreed that they were to divide it. One is to cut his wheat with a reaping machine with an axle 10 marine leagues long. Is it not perfectly clear that if he swept down here [indicating] he would cut all the wheat down there ? When he comes round the other side of the peninsula, the wheel, sweeping back, would pass over land that had already been cut over, and he could not cut it again. He would proceed up the coast until he came in contact with standing whe&t, where that ARGUMENT OF JACOB M. DICKINSON. 841 same process would be repeated. In other words, the outer circles swallow up andx absorb the inner circles. The simple result is that these convolutions, and these intricacies and entanglements, would be all upon Rusian territory, and nobody need bother about them except the Russians. I imagine that when surveyors come to lay off this lisiere, they would only go to the points of contact. They would take the heads of the waters, and draw circles parallel to them, and where these circles met they would ignore everything between them. The outer circles would swallow up the smaller circles, just as Aaron's rod turned into a serpent, and when Pharaoh commanded his magicians to cast down their rods, which also turned into serpents, swallowed up all the other rods. Now, there is a definition of a line drawn parallel to a curve. I will read the definition, but will not weary the Tribunal by citing the authorities. I will have them go into the notes, and they can be verified if desired. "A curve parallel to a given curve is the envelope of a circle of constant radius whose variable centre lies upon the given curve." Drawing a curve parallel to a curve is well known to mathematicians. (Salmon's " Higher Plane Curves," 3rd Edition, § 117 (a); § 85, Ex. 5; Ibid., 2nd Ed., § 117; § 85, Ex. 4.) The condition that the parallel curve shall lie at a given constant distance from the given curve excludes from consideration all loops which the parallel curve may contain; that is, we are to follow a branch of this parallel curve until a double point is reached, and then, instead of passing through the double point, we follow the other branch which leads away from this point. Cayley thus defines parallel curves:— The envelope of the normals is the evolute; any curve having with the given curve the same normals (and therefore the same evolute) is a parallel curve; in other words, the parallel curve is any orthogonal trajectory of the normals of the given curve. The parallel curve is also the envelope of a circle of constant radius having its center on the given curve; or, again, it is the envelope of a circle of constant radius touching the given curve. ("Collected Mathematical Papers of Arthur Cayley," vol. viii, p. 32.) The paper containing this definition was originally published in the " Quarterly Journal of Pure and Applied Mathematics," vol. xi (1871), and the definition occurs on p. 184. That curves related as above have previously been spoken of as " parallel curves " can be seen from a quotation found in " Crelle's Journal fur die reine und angewandte Mathematik," vol. lv (1858), p. 95, where a paper by R. Hoppe begins by stating " every two parallel curves have a common evolute, conversely all involutes of one and the same curve are parallel to one another." Williamson, in his "Differential Calculus," 7th edition (1889), p. 298, confirms the above definition when he states that curves haying a common evolute are " said to be parallel; each being got from the other by cutting off a constant length on its normal measured from the curve." I have illustrations showing what I mean, and will hand them to the Tribunal to-morrow or this afternoon.* If we test the British line by the same rule that they undertake to apply to our line, they fall into exactly the same difficulties. They would not be quite so great, because they cut off these emphasized c See cut facing p. 842. 842 ALASKAN BOUNDARY TRIBUNAL. points in order to get rid of that difficulty. Why was the line carried over Pomt Couverden? Why was it carried across these 758 sharp points and over peninsulas, such as Point Grave? It was to get over the difficulty that had been proposed to us in regard to drawing a line parallel to the sinuosities of the coast; but if you take it around all the peninsulas and stand to the definition that " coast" and " ocean " are the same thing, and do not permit the line to be carried 3,000 feet up into the air, a line parallel to it would be just as involved in places as would one parallel to our coast. You could not draw a parallel to their coast except in the way we have suggested, and there would be just as many crossings and just as many convolutions there as in ours. They have no right to carry " ocean " on land, and must stand by their first proposition, that | ocean " is " coast"-; and then the parallel would have to be drawn with a line around that point running out there [indicating]. .Here is an illustration of how it would appear if drawn parallel to Cape Fanshawe.0 But I maintain that it was never anticipated by these negotiators that a line was to be drawn parallel to all the sinuosities. At this point the Attorney-General, at p. 201 of his argument, says:— 7 ml • I say that you cannot take the general trend of the coast if you are to follow the ramifications of inlets, but that the expression " sinuosities of the coast"— | sinuosities de la cOte "—is an expression which was not intended, and could not have been intended, to apply to the inlets. It is perfectly applicable to the windings of the general coast. It is inapplicable, as I submit, to the windings of such inlets as you have upon the coast now in question. Would it not have been more proper to say that they never contemplated that any more sinuosities are to be observed in drawing this line parallel to the coast than are necessary to replace the general sinuosities shown by the mountains wherever the mountains recede further than 10 marine leagues from the coast. The definition of the word " sinuosities' had been fixed, as I claim, by the negotiators themselves. It was to fill in vacant places in a mountain range, and have the same character of parallelism to the coast. All parties agreed that the range was parallel to the sinuosities of the coast. Mr. Canning said (p. 210 of the United States Case Appendix):— The Russian Plenipotentiaries propose to withdraw entirely the limit of the lister e 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, again, on p. 181:— Thence, following the sinuosities of the coast along the base of the mountains, &c. Count Lieven said on p. 178, United States' Case Appendix:— The proposition of our Court was to make this frontier run along the mountains which follow the windings tsinuosites] of the coast. Again, on p. 186, Mr. Canning makes it run along the base of the mountains which follow the sinuosities of the coast. Count Nesselrode, at p. 172, United States' Case Appendix, says:— That upon the continent, and towards the east, this frontier could run along the mountains which follow the sinuosities of the coast as far as Mount Elias. « See cut facing this page. IIMBUlUtlUM S. DOC 162, 58-2. Diagrams Ushistrcutirig th>e dseftrvbbbon, of*porMeL cwves. e ,\ Cab Wheel iUiLStratmrh applied, tso Br-istLsh Coast Zine at Cape Farishajv. •mm *■ i*i . ■™ ARGUMENT OF JACOB M. DICKINSON. 843 All agree as to the meaning of " sinuosities." It was exactly that character of sinuosities that was demonstrated by the relation which the mountains bore to the coast. It is a strange construction and an unfair one to substitute the alternative line, if it shall be substituted, and to say that it is impossible, not because it will not conform to wfiat they understood to be the sinuosities of the coast, but because, as they say it cannot be drawn absolutely and literally parallel to the ins and outs of this entire coast, and thereby and by that means to force a different meaning upon " coast." In other words, they propose to let the meaning of " sinuosities " control the mean- 759 ing of " coast," let this subordinate term and expression dominate and control the meaning of " coast." That is the main argument that is adduced for giving another meaning to " coast," that and the discussion of the Vllth Article. With regard to acreage, so far as I recall now the main proposition upon it, it is contended that you must necessarily give some other meaning to the word " coast " than the entire coast in regard to which they had been treating. That is a point of very great importance. The Attorney- General said, on pp. 17-18 of his argument:— I do not return to the point about the general trend of the coast; I am not going to repeat that point at the present moment, but I what call attention to is this, that these words have been read (if this line is looked at) as meaning that at no point is the line ever to be nearer to salt water than 35 miles all along. Take the head of every inlet, you will find that this line is 35 miles from the head of every inlet, and that at no point will you "get greater proximity to any tidal water or salt water than 35 miles. But that is not what the Treaty says. What the Treaty says is that at no point shall the line exceed a distance of 10 marine leagues; it does not say that it is never to be less. And the result is certainly very remarkable, because the length of the line, if it is measured by this line—I am told the length at this line is 630 miles. Well, taking 35 miles as the 10 leagues—35 statute miles as equal to 10 leagues Mr. Aylesworth. 34J miles. Sir Robeet Finlay. I take 35 for convenience. If you multiply the length of the line by 35 you get 22,000 square miles—a little more than 22,000 square miles. That is what you would get with a strip 630 miles long and 35 miles wide. But if this territory comprised within the claim of the United States is measured it will be found that it amounts to 32,000 square miles. Well, that at first sight might appear to be miraculous, but it is simply the result of this, that the principle is applied of keeping it 10 marine leagues from the head of every inlet That criticism applies just as much to his line as it does to ours in principle, in a -less degree, of course, because the distance between the line drawn along the mountains parallel to their coast line does not give as large an area. TKe idea intended to be advanced is that there is the line which we have laid down 35 miles from water, that if you go seaward 35 miles from that line and draw a line parallel to it, it would give so much acreage, but, as a matter of fact, on account of these peninsulas running down here, Russia gets much more land than she would within the area between the parallels 35 miles apart. That is adduced as a reason why the integrity of our line and the theory upon which it is supposed to be based are overthrown. It applies just as much to the line of Great Britain. If you take the boundary that they have laid down, and draw a line parallel to it, it does not include the acreage south of these peninsulas. We would get more land than the land comprised between their boundary and the line i*£V 844 ALASKAN BOUNDARY TRIBUNAL. parallel to it. The amount wTould not be so large in the one case as in the other; but the principle is exactly the same, and there can be no distinction whatever between the two. This line crosses the Yakutat Bay a distance of over 16 miles from headland to headland. It never has been claimed that under the law of nations such a line could be drawn from headland to headland a greater distance than 10 miles. If that is not the coast line it must at any rate be one parallel to it, and I take it it must be one lying outside of it. Why was this line from headland to headland made 16 miles? Simply this: that if this line ran in to a point 6 miles wide and then crossed and then turned back, there would be just as much difficulty in drawing a line parallel to its sinuosities as has been suggested in regard to our line in the same vicinity. Now, with regard to the motives of Russia in the matter of the lisiere I will read from the argument of the Attorney-General at p. 37. He says:— That is further explained afterwards, but even in that passage I submit it is perfectly clear that all that Russia wanted was a strip of territory on 760 the mainland adjoining the line of the coast, in order that those establishments of hers on the island might be assured of access for the purposes of trade with the Indians on the coast, that from the Russian establishments they might go to the coast to trade with the Indians, and that the Indians from these coasts might go to trade with the Russians at Sitka. That is what they wanted, and as soon as that motive is appreciated, and as soon-as it is realized that no strategic reasons entered into the desire for that " lisiere," for this " point d'appui," that it had reference to the support and the feeding of mercantile establishments, it would appear that, so far as the object in view is concerned, there is no inconsistency whateverJhetween what Russia wanted and the heads of the inlets remaining British territory. The access of the Russian establishments of the Russian settlers from Sitka to the coast for the purpose of trade is assured, even though the head of the inlets go to Britain; she gets the " lisiere," the strip on the coast which is wanted as a if* point d'appui" as a feeding ground for the Russian establishments upon the islands. One criticism I suggest upon that is it starts out with the idea that Russia wanted a strip of territory upon the mainland. That agrees exactly with our contention, but yet when they come to say what kind of strip on the mainland is given, why, it is a broken-up and disrupted strip, and pierced in such a way by water as to entirely defeat the only object which Russia could possibly have, as is shown by these negotiations, in securing a lisiere. Now, I would like to contrast this with what Mr. Robinson said at p. 469 :— I am not going into these different negotiations, but my inference from them is that what they desired was this, and nothing more than this: they desired to prevent the establishments of Great Britain from coming too close to their establishments, because it is perfectly obvious that if they were there they would interfere with their trade. They could not afford to have an establishment on the island, and to have Great Britain with an establishment on the opposite mainland. It is just like having a shop on the other side of the street They could not afford to have that sort of practice in it. We did not claim anything more than that, and I entirely agree to the interpretation given by Mr. Robinson that the lisiere was not to be of such a character that their establishments could be brought together in such juxtaposition that they would seriously interfere with trade in the lisiere. What was the trade ? It was with the Indians. The Indians lived on these inlets and up along that coast, and I would be willing to stand in ARGUMENT OF JACOB M. DICKINSON. 845 i on his theory provided we give the proper application to it. Oh p. 474 he said:— The only thing they require, the only thing they intended to stipulate for, was simply that our establishments should not come up close to theirs. Anyone can understand that it would never do for them if they had an establishment for trading on the island to let us have an establishment, on the mainland opposite, because the Indians coming down might stop to trade with us instead of going on to" trade with them, and we might intercept them all; and I think the passage I have called attention to, I had the term vicinity—and I know that was* in the first page that I read from the Russians. Then he says, at p. 475:— Now, in offering a strip which will prevent our bringing any establishment of our own within 35 miles of theirs, what more can they possibly want in reason? I do not know that country well, but, I believe some of us know it very well, and I should think that 35 miles in that country is very nearly as good as 100 miles in any other country when we consider its character; but to say that their establishments are in any danger because they have an establishment 35 miles off, I venture to say, is not what they intended to say, and not what they reasonably should have said, or not what they really require. With such a lisiere as that, is there anything like 35 miles from there to there [indicating] ? It is 35 miles from here to here 761 [indicating] ? The distance there is about 3 miles, and if British establishments are put there, there is hardly room for Russian establishments on either side of that inlet. All the trade would be entirely controlled there by the British establishments. If you still go along this trend—if this is not the coast line it would not be very far from it—the lisiere would be altogether too narrow, for the boundary-line is almost in contact with the water there. See what a narrow strip, what a narrow lisiere that is, at Juneau, probably 6 or 8 miles at the utmost, and the rival establishments would be in direct contact all along this part of the coast at Gastineau Channel, direct contact all along this part of the coast at Gastineau Channel. The only instance where they would be anything like 35 miles apart would be at Lynn Canal. ml Now, I would like to illustrate that by handing up this map.a I will just exhibit the maps. These are simply emphasized colourings of the maps which are already before the Tribunal, simply put in that way in order to attract the eye. That was the Alaskan lisiere as ml ml shown on the British Colonial Office Manuscript Map of 1831, and that was the idea at that time that was attached to the lisiere, and the interpretation that was put upon it. It corresponds substantially with our present contention. Now, this is the British Columbian Map of 1884. There you see the character of the lisiere, extending from the head of Portland Canal all the way round the inlets, and substantially like we have the line drawn to-day. There is another edition of the same map. At one time the theory was advanced that the line did not go to Portland Canal at all. That arose from someone getting hold of a copy of the Treaty that did not have the term " Portland Canal " in it. The notion then was that the line passed up Behm Canal, and went on to the continent. This map puts forward that contention. But, so far as the essential features—so far as the fifth question is concerned—it shows an unbroken lisiere from the beginning, carrying it round all the heads CD CD j ml CD a For map see No. 28 U. S. Atlas. S. Doc. 162, 58-2, vol 7 24 A w. 846 ALASKAN BOUNDARY TRIBUNAL. of the bays and inlets. Now, this is a map of 1893—you see, of quite a modern time. This brings it down long after the question was said to be sub judice; long after it was said that our attention had been called, through Mr. Dawson's map, to the claim of Great Britain to the heads of all the inlets. Now, this cuts off the head of Lynn Canal. It gives all of Taku Inlet to the United States. It crossed Icy Strait and Glacier Bay. There is a sensible reduction, but the principle as to coast that would give the United States Taku Inlet would apply just as well to Lynn Canal, because on no other principle could it be carried around the head of Taku Inlet except upon the idea that that was coast. Now, we come to the map of '95. That was after the controversy had waxed warm, and approaching the time when the views of individuals had been emphasized very much in Canada. There is the map of 1898. Just see what an anti-climax that is; it looks like the latter end of a misspent life. That lisiere has gone all to pieces, and its broken-up, dismembered condition reminds one of Goethe's simile of the weggekruemter Wurm. See what a poor intersected lisiere that is. Can anyone suppose for a moment that any such crippled, distorted, and broken lisiere as that would respond to the idea held by those negotiators in regard to the protection that Russia expected to have by securing a strip of land on the coasts? And now see what kind of a strip it is—and that is substantially the lisiere that is now claimed in the British Case. Mr. Lodge. Mr. Dickinson, let me ask you about that map of trading stations. Are not two of the principal Indian towns on the Chilkat and the Chilcoot Rivers? Mr. Dickinson. Yes—one. Mr. Lodge. Two very large Indian towns; there is an old trail that comes through there. Mr. Dickinson. Yes, there is a trail. I shall refer to that later on, when I come to the question of occupation. Mr. Root. Mr. Dickinson, have you examined at all as to whether this line would leave any harbours? 762 Mr. Dickinson. I am coming to that now. Mr. Root. Where the harbours Avould be ? Mr. Dickinson. I am coming to that. I have a Memorandum on the subject. I stopped simply to show the maps, and then I was going to proceed in that direction. Such a lisiere as is claimed by Great Britain would form no barrier, either for defence or to prevent commercial competition. There is no place there for military stations or trading posts. All of the Indians live practically up the inlets. If Russia was trying to secure her trade—a trade on the North-West Coast of America—why, this Treaty would absolutely frustrate and defeat it; and there never was a more stupid piece of business perpetrated by any negotiators on earth than was done by the Russian negotiators, if the interpretation here insisted on in regard to the word " coast' was what they understood that word to mean when they wrote it into that Treaty. The cost of patrolling these inland waters for defensive purposes to protect monopoly and to prevent smuggling would be absolutely prohibitory. Every safe harbour and every safe anchorage on that coast, under this construction of the coast line, ARGUMENT OF JACOB M. DICKINSON. 847 would go to Great Britain, and the trade of Russia would be absolutely annihilated. A good deal is predicated in regard to the use of certain diminutive expressions in the negotiations. I will not trouble the Tribunal to look to the references, but in order to save time I will read them. They are doubless familiar, but I wish to reiterate them in order to enforce the point I seek to make. Count Nesselrode had written to Count Lieven:— 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. Now it is true he says it is narrow; but does he not say it is a strip on the coast ? How could any such picture as I have held up here be regarded as answering to that description of a strip upon the coast? And when he said it was small, he said it was small in comparison with that great continent—with the vast territory with which they were dealing. Then again he says:— For ourselves, we limit our demands to a mere strip of the continent. Now, because he made it small, there is no reason why it should be dismembered and its integrity be destroyed entirely. Saying a thing is a small thing does not say it is an incomplete thing. The principle is involved just as much, and the integrity remains there, and diminutives do not destroy characteristics. Tom Thumb had all the outside lines of a man just as much as a giant; and because we say he was a little fellow" it does not mean that he was not a man. Those expressions are not intended to be taken in that sense. They are mere expressions of trading. Those expressions are always permissible— expressions of praise on one side when one is selling, of depreciation on the other side of what one is getting. The rule laid down in the law of contracts is that such expressions are not regarded as fraudulent. He did want to emphasize, when demanding this strip, that it was not very much of a strip, but still it was a strip. Then he said- Russia, when she insists on conserving a moderate expanse of the mainland— Now that is translated—I intended to call attention to that fact— " unimportant," I think, is the term in the British Case Appendix— * * * only insists fundamentally upon the means of utilizing—we can better say of not losing—the environing islands. Again:— She (Russia) reserves for herself only one point of support, without which it would be impossible for her to keep half of her domains. That does not mean just one point. If it does, I would like 763 to know which point it meant. That is a mere hyperbole of expression. Of course we know that was not to be taken literally. Besides, if I recollect right, when he was dealing with that, he was dealing with the coast opposite Prince of Wales Island, and everything in regard to the coast north of that had been settled and was out of controversy. So when he spoke of " point of support," he was speaking of that point of support opposite that island. He continues:— For these reasons the Plenipotentiaries of Russia have proposed * * * to the east the chain of mountains which follows at a very short distance the sinuosities of the coast 848 ALASKAN BOUNDARY TRIBUNAL. And then Mr. Canning said on the 29th May, in a letter to Couni Lieven (United States' Appendix, p. 180), that the qualificatior required will be " a more definite description of the limit to which the strip of land required by Russia on the continent is to be restricted.' Now, I submit that, beginning with these negotiations from then very inception, the claim of Russia to the North-West Coast, follow ing the use of that term from the beginning to the end, where it i repeated even after the negotiations were closed, and looking at th( fair import of all that was said on both sides, knowing the territory that was being dealt with, the term that had been used to describe it is it possible to come to the conclusion that when they spoke oi I coast" they meant anything less than the whole coast? And is il ml ml CD possible, when they spoke of mountains parallel to the coast, thai they could have meant mountains that would have destroyed and overcome the very meaning which down to the very conclusion of th( Treaty they had attached to the word " coast" ? And that brings me to the consideration of the question of th( mountains in the Treaty. If you look to the coast and look to the negotiations, there is a cleai demonstration of what the controlling idea was. If you look to the mountains, even if there were not such clear demonstrirtion in respect to the coast, the mountains would indicate what they had in view: but when you look to the coast and what was said in regard to that and then look to the mountains and what was said in regard to them and then put the two side by side, they supplement each other, and make out, I submit, an irrefragable case for the^United States upon this question. I shall not weary the Tribunal by going over the arguments that have already been advanced by Mr. Watson in regard to the moun- tains, and I snail leave the demonstration exactly where he left it. I could not add anything to it if I would, and it would be unduly taxing the patience and time of the Tribunal for me to go into that question. I shall therefore rest upon what he has Said, and what appears in our written Argument, all that the United States contends for in regard to the mountains, and what mountains were meant as demonstrated by the negotiations. It is asked, what is the effect if it should turn out that there are no mountains where these mountains were supposed to be ? The way in which it presents itself to my mind is that those mountains on the map were just as* effectual for indicating the idea that they had for dividing up this territory as they would be if they actually existed. These mountains had a relative situation in regard to certain things that were individualised and known, and known just as well at that day as they are at this day. I refer to the inlets. If ms ml ms knowing these inlets and their situation, they referred to mountains which appeared upon the maps to run around them, and said, " There we will put the line," although you may not be able to show exactly where the line would go in the interior, there being nothing individual there to mark the exact limit, yet, relatively, so far as the inlets are concerned, which were known and had individual charac- eristics, the line is fixed by the mountains just as much as if they were there to-day. Suppose two adjoining landowners lived on our western prairie country, where one acre or land appears exactly like another acre of land—all a broad expanse of blooming prairie— ARGUMENT OF JACOB M. DICKINSON. 849 where you cast your eye on one part of it at one moment, and then turn round, and could not say for your life whether or not you are looking at the same place that you were looking at before, and f64 suppose these owners of large tracts of land which were adjoining and which under their grants or deeds were not exactly delimited should say, " Now, we will enter into a writing as to where we will draw this dividing line." And suppose it was in the gloaming, and they looked out, and here to the left lay fields that were fenced up, and on the other side fields, likewise fenced, and in between was a broad expanse of this indefinable prairie. And suppose they said, "We will draw the line through there, where those bushes are," and they understood that in drawing that line certain fields that were distinguishable from the balance of the prairie would fall on one side, and certain other fields that were distinguishable from the balance of the prairie would fall on the other side, but that in between, one acre appeared like another acre. And suppose they drew the instrument, having had pourparlers and written negotiations leading up to it, and that one party went into possession of the fields that lay on one side, and held possession for a long period, and suppose in the meantime the line through this prairie was never delimited, and now the question comes up, Where are you going to run the line ? And suppose it turned out that when they looked at and designated these bushes they did not happen to be bushes—that they mistook them—that they were a flock of sheep and that the flock of sheep walked off, and there was nothing there to show just exactly where they were, but it was understood, however, about where that flock of sheep was relatively to these fenced-up fields—and then the question came as to laying down the line. There might be controversy as to just where that line would go along that prairie—where it was not marked out, but there never could be any controversy in regard to that field which was designated and known, into the possession of which the party went, the field that was clearly on the one side of where there appeared to be bushes. And so I say that that illustration applies to the mountains here so far as these inlets are concerned. If the mountains appeared to run around the inlets, and leave them clearly on the Russian side; if they made a contract with reference to those mountains and Russia went into possession and sold to America, and America remained in possession, and maps were published showing the interpretation put by the different Parties upon this Treaty, I say, so far as construing that Treaty in reference to the inlets is concerned, it does not make any difference whether the mountains walked off or not. They are just as significant for the purpose of delimiting the line in reference to the inlets as if they were really there to-day. This brings, me, then, to the evidence of the maps, issued after the Treaty, as to what mountains the Treaty meant. These maps laid down the line approximately where the chain, or range, or crest was supposed to be. They laid down the line clearly to the interior of the heads of those inlets. I insist that that is a clear interpretation put by these parties upon what was meant, so far as the mountains were concerned, in respect of drawing this line. They not only laid down this line approximately where the mountains-were supposed to be, but they laid it down without showing this interior and higher J$: 850 ALASKAN BOUNDARY TRIBUNAL. range of mountains. Whether it was that they supposed that these mountains did not exist, just as Vancouver depicted them, it is very clear that those maps spoke one concurrent declaration, and that was that the seaward mountains depicted on Vancouver's map as being near and parallel to the shore had nothing to do with laying down this boundary line. I will not trouble the Tribunal-—as I am hurrying to a conclusion as rapidly as I can—with looking at the maps now, but I ask that yon examine the Russian Admiralty map of 1826, United States' Atlas. No. 11, the Arrowsmith map of 1833, United States' Atlas, No. 12, and the note on the Arrowsmith map in regard to that being the boundary line under the Treaty, and that you look at the Brue map of 1833, United States' Atlas, No. 13, Greenhow's map of 1844, De Mofras' map of 1844, the Russian map of 1861, the Berghaus map oi 1863, and the Russian map of 1844, revised to 1864. All of these maps, if you will examine them carefully, lay down this boundary line around the heads of the inlets. They lay it dowr through territory where there are no mountains depicted. There is a clear space between this line and the mountains next to the sea No one at that time ever deemed that the mountains which ran along the coast—those nearest to the sea—were to be the controlling mountains, but the controlling and dominating idea that was 765 in the minds of those who interpreted the Treaty, and, so fai as interpretation is concerned, I rely only upon the official maps, some of which are mentioned here, was that the line was tc run around the heads of the inlets. Now, you come to the British Admiralty Map of 1856, corrected down to 1865, the Arrowsmith map produced in the British Atlas No. 21, which map was printed by order of the House of Commons and there you have exactly the same demonstration, and then to th( United States' map of 1867. Here you have Russia, Great Britaii and the United States for a term of over 40 years after the Treaty all of them concurring, when it comes to the question of laying dowi this boundary line, in fixing it without any reference whatever t( those mountains that are nearest to the sea, and in making a declara tion just as emphatically as a declaration could be made through i map, that they never regarded that these seaward mountains hac anything to do with the question of delimitation. The same interpretation was given by the official maps of th< Dominion of Canada, corrected to 1882, British Atlas 31 and 32, ane the map of British Columbia 1884. It seems to me that this is i fair conclusion:— Here are Russian, Canadian, English, American, and private map: all by well-known cartographers, from the year after the Treaty tx the year of the American purchase, and American and Canadiai maps after the purchase, all of them showing the boundary fine a it was understood under the terms of the Treaty7, all of them showinj mountains next to the sea, and not one of them drawing the line alon< the summits of these mountains but segregating them in such a pro nounced and conspicuous way by laying it down with an interva of clear space of many miles so that the line could not possibly b associated with them. From the time of the Treaty of 1825 dowi to 1895, a period of seventy years, so far as we are act vised up to thi time, no official map was ever issued showing tlie boundary lin ARGUMENT OF JACOB M. DICKINSON. 851 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. I am not insisting that the maps of private cartographers are binding upon Governments in the matter of interpretation—not at all; but I do say that they go to make up the history of the time. The Government was hardly ignorant of their existence, and they certainly challenged the attention of the official cartographers, and then when you have the Government, after declarations had been brought home to it, making maps in a similar way and making a concurrent declaration, it lends more emphasis at least to the action of the Government, and shows that the minds of Government officials must have been challenged to the question, because it cannot be supposed that they were ignorant of the existence of all these maps, and the message which they spoke. The Attorney-General asserts that mountains are necessary within the 10-marine league limit, in order to draw the boundary of the lisiere and give operation to the Treaty, and that the Treaty presupposes that mountains exist. On p. 65 he says: I shall have to refer to this point in connection with the mountains, or, to put it broadly, I ask the Tribunal to advert to the fact that, unless there are mountains, this Treaty really cannot be worked at all. The existence of a 10-league line is not a provision that you are to have recourse to if there are no mountains at all. The whole terms of the Treaty show that you must first find your mountains, and the 10-marine league line is a qualification upon the mountains, in case they recede to a point beyond that distance from the coast. Then, again, on p. 191, Mr. Turner said:— 11 say if the negotiators assumed that the mountains might depart at particular points more than 10 marine leagues, might they not have thought it possible that they might wholly depart more than 10 marine leagues along the entire line; and in that case are we to contemplate that they intended that this Treaty should fail? 766 Sir Robert Finlay. They do not provide for that case. All I can submit, of course, is upon what the negotiators have done; and I respectfully submit that the language of the Treaty is such that it is incapable of application unless the line of mountains is found. I am, of course, aware that it is contended on behalf of the United States that there are no mountains that answer the description of the Treaty, and then it is said you are to take a line which at every point is 10 marine leagues distant from the head of any inlet. Well, I contest very respectfully both of these propositions I say that the Treaty does not apply if there are no mountains, and I say that in point of fact there are mountains. Again, on p. 32—I will not read it. It is to the same effect. Now, this seems to be a change of attitude on the part of Great Britain, and as we have been charged with some inconsistencies, it gives me some pleasure to point out an inconsistency on the other side. In the British Case, p. 81, it is stated that— The 10-marine-Ieague line applies to supersede the mountains only where the mountains cease altogether or recede beyond the 10 marine leagues. In the latter case the artificial line begins where the mountains cross the 10-league limit and ceases where they recross it. Now, that might, of course, be interpreted to mean that it is only to supply the place across the horse-shoes, but I think that the broad language in the first part would fairly bear the construction that where the mountains ceased altogether, the 10-league limit was to 3SSH 852 ALASKAN BOUNDARY TRIBUNAL. m\ prevail. However, that may not be the meaning. The British Argument, p. 27, is as follows:— The meanings assigned above to the words " ocean I and " coast". are not only natural meanings of the terms themselves, but they harmonize 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 was to follow the limit of tide-waters would probably never have been heard of. In that case the line would have been drawn in the absence of mountains at 10 marine leagues from the general line of the outer coast. Even if the interpretation of the other passage should be doubtful, that very clearly puts the proposition that if the mountains fail altogether the line is to be drawn within 10 marine leagues from the coast. I submit that it is a very forced construction to claim after all that had been said about mountains by these negotiators, and about the line drawn parallel to the mountains, sometimes the mountains being taken, and then again a line being suggested without the mountains, and finally the mountains being corrected by the 10 marine leagues— that it is ingerable that these negotiators intended that the Treaty should fail unless there were mountains somewhere within the 10 marine leagues. They manifestly believed that there were mountains, and they also believed that they might be nearer or further off. To say, after they had worked three years on the Treaty, that they intended, if no mountains should be found there corresponding to the Treaty, that the Treaty should entirely fail, seems wholly inadmissible. The Attorney-General says that if there are no mountains the Treaty fails. If the Treaty fails because there are no mountains, and if the Tribunal should find that there are no mountains anywhere wtihin the 10 marine leagues, what would be the consequences? The United States has been holding under colour of title from Russia, referring back to the Treaty with Great Britain, but still independently of it, under a conveyance from Russia, and for a long period of time has been in possession of the heads of these inlets. Suppose that there should be no mountains, and suppose the Treaty should fail, in what attitude would it leave Great Britain? All her rights to that territory are based upon the Treaty, and the attitude of the Parties would be that the United States—the Treaty having failed entirely—would be standing upon her Russian 767 title, with possession, and Great Britain would be in the attitude of presenting claims upon a Treaty that has entirely failed—a paper title void for uncertainty. Now, what would be the effect of her alleged protests? What would be the effect of claiming that the matter was sub judice if any such conclusion as that were urged ? I submit that that would bring about a consequence that is not to be contemplated for a moment. The Attorney-General admitted that if the mountains came in at some places answering to the Treaty, if only at one or two, then the Treaty would not fail. It may be that the Tribunal will find that there are mountains here at some points. They might find that the mountain range from Mount Elias to Mount Fairweather corresponds^ The President. May I ask you, Mr. Dickinson, because I do not wmim ARGUMENT OF JACOB M. DICKINSON. 853 know whether you said you were going to deal with it, do you say that there are no mountains anywhere—is it your contention that there are no mountains which correspond with your view of the Treaty? Mr. Dickinson. The Case of the United States took the position that there were no mountains within 10 marine leagues. I understand that the President addressed to me now a question in regard to my opinion. The President. No, not your opinion; I have no right to ask your opinion. Mr. Dickinson. Yes, The President. I asked whether, on behalf of the United States, you contend that even assuming that we were to adopt your view— even assuming that—of the main Argument that there are no mountains which correspond to the Treaty. I must know what you are going to contend. Mr.- Dickinson. Well, that is the contention of the United States; that is the contention made before the Tribunal. The President. We are not going to hear any argument from you about that? Mr. Dickinson. On that point—no, Sir. The President. Very well: thank vou. ml 7 __ jt£_. Mr. Dickinson. That has been sufficiently presented; and Mr. Watson read, I believe, after the close of his argument, a paper which set forth substantially our view upon that question. The President. Very well. Mr. Dickinson. Now, I insist that the 10 marine leagues determine the boundary even if the mountains fail altogether. I shall not ask the Tribunal to go to the negotiations upon that point; but I request that I be permitted to submit these references upon tlfat question, so that it will appear in the Argument in consecutive order. The President. Certainly. Mr. Dickinson. The Tribunal. is familiar with it; and it will spare the patience of the Tribunal to some extent, and at the same time put in consecutive form what I have to submit upon that point. Mr. Canning at first expecte dto fix the line 50 or 100 miles back from the coast. (United States' Case Appendix, p. 148.) 768 His idea was a line of demarcation to be drawn between the southernmost settlement of Russia and the northernmost post of the North-West Company. (Ibid., p. 145.) Russia proposed the mountains which border the coast from the head of Portland Channel to render the line as distinct as possible. (Ibid., p. 158.) Sir C. Bagot then proposed the line at a fixed distance of 10 leagues from the shore. (Ibid., p. 159.) Russia urged advantage of natural partitions. (Ibid., p. 161.) Mr. Pelly suggested a more particular description of how the mountains ranged with the coast, as they might really be a very considerable distance, and proposed 10 leagues as a limit. (British Case Appendix, p. 80.) Mr. Canning informed Count Lieven that he would require a qualification of Russia's wishes by a more definite description of the limit. (United States Case Appendix, p. 180.) A 854 ALASKAN BOUNDARY TRIBUNAL. Count Lieven informed Count Nesselrode that England would require a more definite description of the limits. He said:— The proposition of our Court was to make this frontier run along the mountains which folow 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. (Ibid., p. 178.) Mr. Canning instructed Sir Charles Bagot, that even if the mountains should prove to be far removed from the coast the line must not be carried further than a specified number of leagues. This was in connection with his suggestion of the seaward base. He said ga There are two points which are left to be settled by your Excellency— 1. 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 10 leagues; but it would be desirable if your Excellency were enabled^feo obtain a still more narrow limitation. (Ibid., p. 181.) In Mr. Canning's draft Convention inclosed to Sir Charles Bagot he provided: Article III. 1'. * * * That the said line of coast on the continent of America, which forms the boundary of the Russian possessions, shall not, iu any case, extend more than — marine leagues in breadth from the sea towards the interior, at whatever distance the aforesaid mountains may be. (Ibid., p. 183.) Russia's counter-draft abolished the mountains as the boundary and provided:— Article II. The lisiere (strip of territory) on the north-west coast belonging to Russia, from Portland Channel to the point of intersection of the 139th degree of west longitude shall not be wider on the continent than 10 marine leagues from the shore of the sea. (Ibid-., p. 194.) 769 Count Nesselrode notified Count Lieven of this as follows:— Our counter-draft carries our boundary from the 51st degree of north latitude to 54p 40'. It leaves to the establishments which the English Companies may form hereafter on the north-west coast all the territories situated to the south of Portland Channel. 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 10 marine leagues, in accordance with the wishes of England. (Ibid;, p. 204.) " In accordance with the wishes of England " refers to Sir Charles Bagot's proposal of a 10-league line. Russia's explanation with regard to her counter-project stated:— (3). 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 1 fixed the width MMOKn ARGUMENT OF JACOB M. DICKINSON. 855 of the strip of mainland which would belong to Russia in marine leagues. (Ibid., p. 206.) Mr. Pelly suggested that " if the summit of those mountains exceed 10 leagues, that the said distance be substituted instead of the mountains." (British Case Appendix, p. 110.) Mr. G. Canning's instructions to Mr. S. Canning, explaning his position:— The next articles relate to the territorial demarcation, and upon them I have only to make the following observations:— The Russian Plenipotentiaries propose to withdraw entirely the limit of the msiere 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 sea coast. To avoid the chance of this inconvenience isve proposed to qualify the general proposiiton " that the mountains should be the boundary, with the condition if those mountains should not be found to extend beyond 10 leagues from the coast" The Russian Plenipotentiaries now propose to take the distance invariably as the rule. But we cannot 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. (Ibid., p. 210.) Mr. G. Canning's Draft inclosed to Mr. S. Canning provided as follows:— Provided, nevertheless, that if the summit of the aforesaid mountains shall not 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 space, the line of demarcation shall be a line parallel to the 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 leagues from the coast (British Case Appendix, p. 116). Draft submitted by Mr. S. Canning:— Article III ***** Provided, however, that if the crest of the said mountains, in any part whatever of their extent, shall be found to be more 770 than 10 maritime leagues from the Pacific Sea the line of demarcation for that space shall be a line parallel to the sinuosities of the coast, so that the line of demarcation shall not be anywhere more than 10 leagues from the coast (United States Case Appendix, p. 216). Alterations by M. Matusevich:— Article IV * * * but that wherever the distance between the crest of the mountains and sea shall be more than 10 marine leagues, the boundary of this same strip shall be formed by a line parallel to the sinuosities of the coast, and which shall nowhere be more than 10 marine leagues from the sea (Ibid., p. 221). Mr. S. Canning to Mr. G. Canning, 17th February, 1825, reported that:— The line of demarcation along the strip of land on the North-West Coast of America assigned to Russia is laid down in the Convention agreeably to your directions, &c. (Ibid., p. 223). 856 ALASKAN BOUNDARY TRIBUNAL. Count Nesselrode wrote to Count Lieven, 20th February (3rd March), 1824, regretting that mountains without distance limitation had not been adopted (Ibid., p. 226). Count Nesselrode again wrote to Count Lieven, 13th March, 1825, to the same effect (Ibid., p. 227). Count Lieven wrote to Count Nesselrode, 8th (20th) May, 1825, reporting the reason for Mr. Canning's insistence on distance limitation to have been as stated by him:— * * * not from any intention of acquiring an increase of territory, or of limiting the extension of the Russian possessions, &c. (Ibid., p. 230). Now, coming to the mountains between the head of Portland Canal and Lynn Canal, I think that there can be very little doubt as to the the idea that should prevail in regard to their characteristics. No one contends that there is anything like an individualized range or crest of mountains naturally connected together, which, as contrasted with the other mountains there could be pointed out, and of which it might be said; " Well, now, that is a range of mountains as we so understand that term "; or " that is a chain of mountains "; or " that is a crest of mountains." It is a high mountain plateau as shown by the photographs, as shown by the Contour map, and by the affidavits that have been adduced on behalf of the United States, cut up here and there by glaciers, the whole elevated mass—eroded by water action, with peaks all over it without any sort of array, or orderly fashion, without any connection one with the other apparently, except in short stretches—and that I will refer to hereafter—running part of the time parallel to part of the coast, and agairr transversely to parts of the coast. If anything like a crest answering the terms of the Treaty is to be arranged out of that mountain formation, it must be purely by an arbitrary selection of peaks. Now it must be treated in one of two forms. We may say that there are peaks generally parallel to whatever may be determined to be the coast—that can be connected together in some sort of fashion—and that there is a succession of these peaks lying like terraces one behind the other. If you connect one set and say it is a mountain crest, you may likewise go back of that and take another set and say that this is a mountain crest, and so on as far back as our investigations of the territory have gone. There is part of that territory in which there has been no survey at all. You see it depicted on the map—a white space there between the black interior line and the mountains which are shown there by the colouring is unknown territory. If you treat it as a succession of peaks that may be connected together, on a line parallel with the coast, then which set of peaks are you going to take ? Someone might say, " Take that set next to the sea." I say there is no warrant in the Treaty for saying 771 that. If I should be asked, " Wliat set should be taken?' then if the Tribunal shall come to the conclusion that it can make a crest answering the Treaty out of such peaks, I would say that set which could be connected together, and which would replace the mountains that were shown upon the maps, and would have, so far as the inlets and coasts are concerned, the same characteristics that those mountains had. They were treating of coast which meant all the coast, and were referring to mountains which i;an around the ARGUMENT OF JACOB M. DICKINSON. 857 coast, and if you are going now to this jumble of mountains to take a set of peaks and make a connected crest, I say you must take that set which would come nearest answering to the imaginary mountains mentioned in the Treaty. There is one other way in which this mountain formation may be looked at, and that is regarding it as one mountain mass, eroded and cut up with peaks all over the mass; but the whole as one mountain. If you regard the whole as one mountain, then where must you put the line? You must put it at the crest if it is within 10 marine leagues of the coast. You cannot put it, certainly, where Great Britain has drawn the line in either aspect of the case. Whether you treat it as a succession of peaks, or whether you treat it as one mountain mass, you cannot consistently with the Treaty and what the negotiators had before them—the object that they intended to conserve— place the line upon either theory where the British line is placed. Now, let us recur to what I shall term the " British mountain line." The Attorney-General said that in our theory of the case we had accomplished a miracle. He said that we had abolished the mountains altogether. Now, I will undertake to show that so far as this mountain crest is concerned we have not out-done him at all. He finds Scripture warrant, however, for what he has done. We have the authority of the Psalmist for saying that the mountains skipped like rams, and the little hills like lambs, and that Sirlon and Lebanon leaped like a young unicorn. I call attention to how this mountain crest of the Attorney-General leaps and springs, and what wonderful feats it performs. In this connection I call the attention of" the Tribunal to the detailed criticism that is made upon this mountain line which appears in the Appendix to the United States' Argument. I shall only touch upon a few points; but that contains in a very extended form what we have to say. Most of it has been read by the Attorney-General. I ml m* ml shall not now repeat it, for I am endeavouring to finish this Argument, and do not want to go into details where it can be helped. This British line along the coast has no legitimate connection with Portland Canal whatever. And see what a lisiere it makes. The line runs up Portland Canal to its head and then comes back making three sides almost of a parallelogram and then starts to the north. The condition of the Treaty was that it shall go up Portland Canal to the 56th degree and thence to the mountains. Is it reasonable to say, if the Tribunal shall hold that that means in the same direction till you get to the 56th degree, that you shall come back toward the coast 57 miles to look for the mountains? Must you not look for the mountains that are proximate to where the line strikes the 56th degree and those mountains which were correlated with the head of Portland Canal and the idea of continuation around the head of Lynn Canal ? From the 56th parallel to the 145th meridian it is about 440 miles, and in this distance the British mountain line crosses arms of the sea fourteen times, over thirteen different inlets, and of the total distance 34 miles of this so-called mountain line are over the water. Now, from Holkham Bay to the end of Gastineau Channel—just along here where I am pointing [indicating]—it runs for 46 miles, leaving a width of lisiere of from 1 to 3 miles only. After ascending northerly along the eastern shore of Lynn Canal up to the peak marked there on the British line, after following the Attorney-General in his HP 858 ALASKAN BOUNDARY TRIBUNAL. career across valleys, and from mountain peak to mountain peak, after getting to this point going parallel with Lynn Canal, one naturally would suppose, when he named the next peak and designated a mountain crest, that you would find it further up Lynn Canal, somewhere on one of the higher peaks, in the same direction as that in which we have been travelling. But when we turn to learn from him where the next peak comes, we find that, with the lightness and nimbleness of Ariel in the Walpurgisnacht-traum, he has skipped over a distance 12 miles across Lynn Canal, and rather mockingly cries back to us:— 772 Gab die liebende Natur, Gab der Geist euch Fluegel, Folge meiner leichten Spur Auf zum Rosenhuegel. The Attorney-General may find Alpen-blumen there, but he must seek the rarest specimens far into the interior upon the higher mountains that border the head of Lynn CanaL Then between Lynn Canal and Glacier Bay Mr. King admits (British Case Appendix, p. 308) that there is— * * * an exception to the general rule of mountain ridges closely paralleling the adjacent coast. To find mountain ridges parallel to the coast it is necessary to go somewhat further back— That is further back than this line is drawn. The topogaphical maps of the British Commission show mountain masses between Lynn Canal and Glacier Bay which have a certain parallelism to the shores of Lynn Canal, and yet the line crosses these ranges transversely and without any regard to the topography, and then runs across Glacier Bay to the Fairweather Mountains which are separated from the mountains to the eastward by Glacier Bay and other valleys. Now, I come down to peak 4881, on Thomas Bay. This is another summit which is the western end of a ridge, running east and west, across the " general trend " of the British line, as you will see. If you look at that profile which I have passed up—I have passed one to the Attorney-General.0 The President. What is this, Mr. Dickinson? Mr. Dickinson. This is peak 4881 on the contour maps, where the British line crosses. This is another summit—so called—but this summit—this peak, which is chosen to be a part of a crest, is, I insist, not a summit at ali, but the western end of a ridge running east and west across the " general trend " of the British line. This ridge is about 15 miles long, and slopes down from a height of nearly 8,000 feet. Now, certainly, whatever may be said about mountains, that is a mountain running transversely to the British line, and the line is not put upon the summit, but upon a foothill of the mountain, and if you will examine the map, you will see where the British line runs, and then the profile running back shows that it is not upon a peak at all. Mr. Root. At what point ? Mr. Dickinson. Thomas's Bay. The President. Have these profiles been shown to Mr. King ? Any ° See cut, la, facing this page. / xrw claimed. % K- -g, ULU^l t.U IT tOl on, Une- ct t Bay to M\ THOMAS J3AY la JProfile of ridge naming east from, Thomas Bay, through Peak No, 73 (488V orv ''diva claimed, by Great Britain,, to Peak 7750 to 8000. lb •^mm^^^^^- 6850 5700 J*wfile along anearly straight line about N.20'1,'.i'true),from, GasUneaM, Channel through Teak NoJ17(3500to3750) online claimed by Great Britain.,to Teak. 7750,in Lat. 58°52'and Long. l34t°Jl,nearly. YAKUTAT BAY Malaspina Gto Profile, along line, rurcning north from, Yaku^ttBuy to Mount Cook. Face page 858, Vol. VII, Alaskan Boundary. ARGUMENT OF JACOB M. DICKINSON. 859 profile of this kind ought to have been submitted to somebody who can check it. Has it been shown to anybody ? §Mr. Dickinson. I passed one over. The President. No, I mean the profiles that were put before us by the other side officially. ml Mr. Dickinson. They were not shown to us until used in Argument. The President. You do not follow me, Mr. Dickinson, the profiles used by the Attorney-General were given you before the Arguments were completed. Mr. Dickinson. They were given to me at the time he showed them 773 in Argument. The President. There were other Counsel following. Mr. Dickinson. Yes. The President. I only wanted to know whether he has seen them. Mr. Dickinson. I do not think he* has. The President. Thank you. Sir Robert Finlay. I am told, my Lord, Mr. King has not seen these. Mr. King does not happen to be here at the present moment. The President. I only wanted to know. ml I Mr. Dickinson. I only put them in for illustration, and, of course, they are subject to criticism and correction. The President. This one is an easy one to follow; you can follow this one quite easily. i ml Mr. Dickinson. Now, another illustration is furnished by the peak denned as " 3500 to 3750." The President. On the south. Mr. Dickinson. At the head of Gastineau Channel, just where the line descends to Mendenhall Glacier. The President. Yes. Mr. Dickinson. This peak is merely part of the slope of a great plateau to the northward of it. I hand in a profile of that. It represents a section coming down from a peak 7,750 feet high, which is about 25 miles to the northward and eastward of the British peak near Gastineau Channel.0 I The President. Will you kindly have marked upon this the compass bearing; I mean the direction of the line of the compass, because obviously that one is taken in quite a different direction from the other, and looks to me, according to the map your Assistant has pointed to me, to run north-north-east, or something of that kind; therefore, you ought to ha\re the compass bearing upon each one, please. Mr. Dickinson. I will have that done. Now, another profile in the region of Yakutat shows the relation of peak " 5500 to 5700." 6 The President. As pointed out by your Assistant, whereas the other one—if one follows perfectly—ran approximately perpendicular to the coast—this one appears to run well up into a sort of angle somewhere about N.N.E. Mr. Dickinson. Yes, the point I am making, however, is that this so-called peak is part of a mountain ridge, but not the crest of it. The President. Well, it is very useful for us to have them if they are right. There is not the least doubt about it. <* See cut, lb, facing p. 858. & See cut, lc, facing p. 858. ^ 860 ALASKAN BOUNDARY TRIBUNAL. Mr. Dickinson. I am quite sure there is no purpose in not submitting them, and if I had anticipated at all that any question 774 would have been raised as to the propriety of the procedural would have done so. Fortunately the Tribunal has the right to call in experts on all these matters, and if they should be any mistake it can easily be demonstrated. I also hand in The President. What is this one? Mr. Dickinson. That is the first one. The President. Thomas's Bay, Gastineau Channel. Mr. Dickinson. That is marked on it. Mr. Lodge. This is Yakutat Bay. The President. That is the third one, is it ? Thank you. Mr. Dickinson. Now, I will pass up two profiles parallel to sections of the British line.0 v The President. What is this, Mr. Dickinson? Mr. Dickinson. Those are profiles of mountains back of the British line. They are both roughly parallel to the British line; the first runs along the eastern shore of Holkham Bay and Endicott Arm from 5 to 10 miles inland of the British line, and I desire these to be compared with the profile of the line at the same locality handed in by the Attorney-General. They are drawn to the same scale, and show the mountains lying to the interior and back from the ocean. The President. You must really have the points of the compass put upon them. Mr. Dickinson. Yes. Sir Robert Finlay. I understood the arrangement was that these were prepared by Mr. Tittmann and Mr. King together. The President. I think so, but never mind, we will take them as they are. Mr. Dickinson. I do not understand, Mr. Attorney-General, that there was such an arrangement. The Tribunal asked if profiles could be made, and I think Mr. King and Mr. Tittmann agreed that they could be. The President. They can be checked now, Mr. Dickinson; we will not raise any difficulty about it. I did ask Mr. King and Mr. Tittmann to do it together, but it makes no difference; I daresay if they look at them now Mr. Turner. I do not think the Chief Justice asked that they should do it together, he asked if it could be done. The President. I think the Senator is right; that is what I put; I thought they would do it together, but it makes no difference. Mr. Dickinson. I understand Mr. King has made some profiles which will be passed in; I do not know. The President. Are you informed that this is parallel to what you call the line of the coast or perpendicular? 775 Mr. Dickinson. No, it is roughly parallel to the mountain line designated by the profile that was passed in by the Attorney-General. It shows the connection of peaks, which is just back of that. The President. I am very sorry to give you so much trouble, but somebody must put on where those are, or otherwise we cannot follow them. « See cut facing this page. 2a EolTzfiasn, Bay 6690 Siundum Glacier Profile a long a line from five to ten miles eastward and, nearly parallel to that claimed, by Great Britain, as the boicndary, an ing along mountains'east of ldoZk$iam.Bay,fronv Tracy\Arrn,nearly to head, of £ndicottA.m 2b Profile along a Une about, eight miles eastward, and, nearly parallel to that claimed, by Great Britain as the boundary, and extending from, Peak 4600, south of the Stileine River to Peak 4600, south- of Bradfield, CanaL Face page 860, Vol, VII, Alaskan Boundary. ARGUMENT OF JACOB M. DICKINSON. 861 Mr. Dickinson. I appreciate the criticism, and that will be done. Now, the United States' profile on the east side of Holkham Bay shows mountains from 1,000 to 2,400 feet higher than those shown on the profile on the British line in front of them. And, similarly, the profile below the Stikine shows that the mountains are from 600 to 1,500 feet higher than the mountains to seaward shown on the British profile. The President. Well, Mr. Dickinson, as you have just read that, will you kindly have marked on this survey—get your Assistant to mark a dotted line where those profiles are placed? Let them be marked in dotted lines, either red or blue as you like, where they are, and then we shall judge of them. Mr. Dickinson. That will be done. Of course, I am not contending that these profiles show mountain crests in accordance with the terms of the Treaty at all. I am simply showing that if there is going to be such a thing as making a mountain crest comply with the Treaty by connecting peaks with peaks, that there are higher peaks and still higher peaks so far as our investigations show, and so far as the testimony" in this record tends to show the facts—that mJ there are higher peaks further back than the survey extended. Now, whether those peaks shall be regarded as mountain crests is a matter for the Tribunal to determine: but I certainly do contend that there is no warrant for taking the mountains next to the sea, and that if a choice is to be made of these peaks that choice should at least be controlled by conforming, as nearly as possible, to what shall be determined to have been the intention of the Treaty makers when they contracted with reference to a mountain crest. That intention clearly aplied to mountains running around the heads of these bays and inlets. A mountain peak connection could not be carried up the side of Lynn Canal to its head by the nearest mountains to the coast, for it would not pass on summits but on slopes. Mr. King, on p. 308 of the British Case Appendix, says:— On the contrary, were it attempted to follow the summits of the mountains in a direction parallel to the shores of inlets, the line would as soon as it passed inland from the general coast encounter a succession of ends of comparatively narrow mountain ridges running at right angles to the course of the line, from each of which to the next it would have to pass by springing over intervening valleys. Conformably-to the requirements that the mountain boundary of the coast strip shall follow in a direction, as nearly as may be, parallel to the general line of the coast, the summits of the mountains nearest thereto, and that mountains are to be distinguished from hills by the fact of their peaks rising above the timber line, the mountains along which the boundary should follow will be selected by, at each point, proceeding inland until the nearest summits of such character are reached, pasing over the intermediate hills or spurs, to seek the ridge of the mountain mass, whereby the line may be carried along a well-defined crest. Where the crest is broken by a valley of considerable depth, the general parallelism of the line to the coast will be preserved by carrying it across the break by a straight line. It should be remarked that, while the preceding remarks apply particularly to the coast from the 56th parallel to Lynn Canal, there is also to the west of Cape Spencer a repetition of the parallelism of the mountains to the coast, in the massive Fairweather range. These mountains rise almost immediately from the ocean shore to a high and continuous range several thousand feet in height Beyond, across the Alsek River, are the Mount St. Elias Alps, 776 also of a great height, but further from the shore. The survey of this range by the Commissions under the Convention of 1892 was imperfect The accurate investigation of the topography was resumed near Yakutat Bay. S. Doe. 162, 58-2, vol 7 25 A m& 862 ALASKAN BOUNDARY TRIBUNAL. Between Lynn Canal and Cape Spencer, Icy Strait cuts in nearly perpendicular to the ruling N.N.W. direction of the coast, and at right angles to the valley of Glacier Bay and the general trend of the mountains. There is, therefore, for the short space between Lynn Canal and Glacier Bay an exception to the general rule of mountain ridges closely paralleling the adjacent coast. To find mountain ridges parallel to the coast it is necesary to go somewhat further back. In regard to the inlets he says you cannot run along the mountains nearest to the inlets because those mountains would not be the crest of mountains, but would be the slopes of mountains which run transversely to the inlet coasts. In regard to this British mountain line as it is presented, I am quite sure that Mr. King does not mean in his statement to commit himself to the conclusion that it is on a mountain crest, or that these peaks have any sort of association by nature with each other. On p. 307, in regard to this mountain line, he says:— In the document hereto annexed, marked B, I have drawn a description of the line claimed by Great Britain, applying the principles upon which Great Britain concludes the line should be drawn to the topography, as I know it from personal knowledge and the result of the survey above mentioned. He does not commit himself at all to the statement that this connection of peaks makes anything like a crest or range of mountains. (Adjourned for a short time.) Mr. Dickinson. Mr. President, I intended to hand in, in the course of my argument, a drawing showing how a line could be drawn parallel to a curve, even though the sides of the curve at places should be nearer together than twice the radius, and I now pass it up with a note of explanation. You will see Iioav, in treating a peninsula, when it gets to a certain point, the developing circles lap over." The President. I do not think anything is better than the way you put it, that the outside circle governs and the outside circle swallows up all the inner ones. It was perfectly clear—your argument—as clear as could be. Mr. Dickinson. I make somewhat of a diversion here. It is jusi as convenient as at any other time to call attention to a statement made by the Attorney-General. In discussing the subject of territorial waters, the Attorney-General asserted that, if the heads of the inlets belonged to Great Britain, British subjects would have the right of passage through the territorial waters of the United States to reach the British waters at the heads of these inlets. (Sixth Day, p. 19.) And Mr. Robinson took the same position. It is hardly necessary to make citations from writers on international law to prove that such a privilege can only be claimed by virtue of conventional agreements, and that it does not exist as an international right. To establish this it is sufficient to show the attitude of the British Government on this subject. Sir Charles Russell during his argument before the Fur Seal Arbitration Tribunal in regard to Article IV in the United States' Treaty held:— The importance of Article IV 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 harbours, and to creeks, all of which, or the greater part of which, toould 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. (13 F. S., p. 142.) 777 As regards Article IV, something is given which is not a right, apart from Treaty, either of the United States on the one hand, or of Russia on o See cut facing p. 842. ARGUMENT OF JACOB M. DICKINSON. 863 the other, because it gives the right of frequenting the interior seas, gulfs, harbours, and creeks on the coast mentioned, all those pointing to territorial waters which neither Russia nor America could frequent in the territories of the other as of right. (13 F. S., p. 143.) During the conferences of the Joint High Commission which resulted in the Treaty of Washington of 1871, the American Commissioners claimed the natural right to navigate the St. Lawrence to and from United States' territorial waters and thence to the ocean. In reply, the British Commissioners denied the claim of American citizens to navigate the St. Lawrence as of right, but expressed a willingness to grant it by Treaty stipulations, in exchange for reciprocal privileges in other rivers flowing through American territory to the ocean. (British Case Appendix, p. 211.) Thereupon the XXVIth Article was inserted in the Treaty of 1871, which secured to American citizens a perpetual right to navigate the St. Lawrence, and to British subjects the same right as to the Yukon, Porcupine, and Stikine. It is a curious fact that the law officers of the British Government held that by this Treaty stipulation British subjects lost the right, which had been granted them by Article VI of the Treaty of 1825, of navigating all the rivers and streams in Alaska (except the three named) which cross the boundary line in their course to the Pacific. ' ml This opinion was bitterly attacked by Canadian statesmen and jurists as a negligent loss of valuable rights. Among these was Honourable Edward Blake, then Minister of Justice (United States Counter- Case Appendix, p. 165). Honourable David Mills, late Minister of Justice in the Cabinet of Sir Wrilfrid Laurier, in a debate which occurred in the Canadian Parliament on the subject, pointed out the effect of the Treaty of 1825 :— Which gave to Russia a narrow strip of territory upon the coast south of Mount St. Elias, extending as far south as Portland Channel, upon the express condition that all the rivers flowing through this Russian territory should be open to navigation by Great Britain for all purposes whatsoever. And, citing the opinion of the law officers, he said that— If the people on the western coast were now in a worse position than they were before, it was due to the negotiations which took place at Washington. (United States Counter-Case Appendix, p. 166.) But there was no occasion for these complaints if, as now claimed by Great Britain, the heads of the inlets, as well as the rivers which empty into them, are in British territory. Now, I understand that the Attorney-General draws a distinction between rivers and inlets, and claims that a different principle might apply to inlets from that which applies to river^, and that, by analogy, he applies to inlets the law as applied io straits connecting portions of the ocean. In such cases by the law of nations the right is given to all nations, notwithstanding the territorial rights of an adjacent Sovereign, to pass through all those straits. That is a well- settled principle of international law. The rule that applies to rivers should apply to these inlets. Navigating these inlets affects not merely the 3-mile limit, but an actual lisiere, because if a lisiere is given thirty miles wide on the inlet, that lisiere makes that part of the inlet a possession just as much as a river would be. So far from there being any distinction between the rule that would apply to such inlets and that which would apply to rivers, the very nature of the title IHUMHI" FI 864 ALASKAN BOUNDARY TRIBUNAL. would make the law of one entirely analagous to the law of the other. I do not propose to develop that idea any further. I do not think that it is of any importance, so far as our present inquiry is concerned, but the proposition was advanced by the Attorney-General, and I thought that some notice should be taken of it. I have now finished with the interpretation of the Treaty on the face of the Treaty itself and upon the face of the negotiations, and I have said all that I propose to say in regard to the mountains. 778 The question of mountains has been gone into elaborately, as I have already explained, by Mr. Watson, and while it would make my argument more complete, I feel that it would be unduly trespassing upon the time and attention of the Tribunal for me to attempt to repeat the line of argument pursued by him upon that subject. That brings us to the consideration of the actual interpretation put upon ,the Treaty by the Parties themselves. The Treaty under which this Tribunal is constituted authorizes you to look not merely to the language of the Treaty, putting yourselves so far as you can in the attitude of the Parties, and reading the language in the light in which they looked at it; but it also expressly authorizes this Tribunal to consider and'give effect to the interpretation of the Treaty, if there has been an interpretation put upon it by Russia, Great Britain and the United States, acting as Governments, or by those authorized to represent them. I first call attention in this line of argument to the assertion by Russia in its official map put out in 1826. I assume that no one would suppose that after these long Treaty negotiations, settling disputed questions of so much importance, a map put out by either of the Contracting Parties would not come under the attention of the other Party, and I take it that it will be assumed that maps put out, either by Russia or Great Britain, in regard to that territory, showing their idea as to delimitation, were certainly brought under the attention of the other Government. In 1826 Russia issued an official map. I merely call attention to the maps of cartographers generally, as my main reliance in discussing this question shall be put upon the official maps. The maps of cartographers are only brought in incidentally for the purpose of showing that they were doubtless known to the Governments, and challenged their attention to the subject matter, and that the official maps put out after that were put out with the knowledge of all that the publicists, cartographers and historians of that time were saying on that subject. This official map appears in United States' Atlas, p. 11. %he boundary-line appears, approximately, at a distance of about 10 marine leagues from the coast. At some places it is more, and at some less, but we might say that it would be a substantially correct remark, that it coincides with what would be the 10-marine league line drawn if the mountains were not in existence. And I further call attention to the fact that this line is located just about where the mountains appear to be located on the Faden map, and this lends strength and corroboration to the position which I assumed yesterday, that the Faden map was not only before the negotiators, but probably was relied on by them more than any other. Now, we do not claim that this map shows the actual location of the boundary line. I am only referring to it to show ARGUMENT OF JACOB M. DICKINSON. 865 The President. I do not think, Mr. Dickinson, that that is an accurate criticism, that the line on Map 11 in the United States Atlas corresponds with the mountains on the Faden map. I should have thought it was certainly anywhere in connection with the Lynn Canal and Taku Inlet, very much further out. It is only a matter as you have mentioned it, and I have no means of checking it except by looking. Mr. Dickinson. I think, Mr. President, if you will check it The President. I will. Mr. Dickinson. You will find that for the most part of its extent it is almost coincident with where the Faden's map puts the mountains. But I do not put much stress upon that, because it really is not important for the question that I have under consideration. The point that I ought to call attention to The President. I beg your pardon for interrupting you, but I did not like you to take me as agreeing to it, because it is the sort of thing I looked at, and I had no other means of indicating. 779 Mr. Dickinson. It does not disconcert me at all to be inter rupted, and I am always obliged to any member of the Tribunal if he will interrupt me if I make any statement which calls for any explanation. This line runs distinctly round the heads of all the inlets and of the interior waters, and it is a very significant fact that from Mount St. Elias north there is an inscription in Russian, to the effect that this line is laid down in accordance with the Treaty of 1825. Now, treating, as I have undertaken to show in the previous part of my argument, these inlets as having individuality separate and apart from that undistinguishable and unknown country in the interior, there was a plain and express declaration on the part of Russia, shown by the inscription on the map, that Russia at that time, within a year after the Treaty, understood that, wherever the line might be exactly located, it, at ali events, included all of the inlets and interior waters. There was another map published by Russia in 1827. I will pass this map up to the Tribunal, because it is of some interest. It is known as Piadischeff's map. It is not strictly an official map. In fact, I may say it is not an official map at all, but it is a map that M. Stoeckel, who negotiated the Russian Treaty of 1867, is supposed to have given to Mr. Seward. It is a map that belongs to Harvard University, as is shown by the endorsement on the back. The President. What is it called, Mr. Dickinson ? Mr. Dickinson. It is the Piadischeff map. It is what we call the Sumner map, and if your Lordship will notice on the back there is an inscription showing it was presented to Harvard University by Charles Sumner in September, 1867, and it is a map which is understood—it is so stated^in our Appendix to our Counter-Case—was before Mr. Sumner when he made the speech advocating the purchase—the map upon which was based the United States map to which I will call attention hereafter. Now, it will be observed that that map lays down a line relatively just in the same way as the official map of 1826 did to which I have called attention. Mr. Aylesworth. Have you that map of 1826 before you ? 866 ALASKAN BOUNDARY TRIBUNAL. Mr. Dickinson. Yes, your Honour; I have it before me—I will turn to it. Mr. Aylesworth. Will you look at Mount Fairweather ? Mr. Dickinson. Mount Fairweather. Mr. Aylesworth. I am not able to read the Russian, but I take it that that mountain is the one indicated about midway between the line of boundary and the sea. Mr. Dickinson. That is true. Mr. Aylesworth. How will that consist with the declaration of the Russian Government in the Hudson Bay lease of 1839, which makes Mount Fairweather the inland limit of the lisiem? Mr. Dickinson. Well, I do not suppose that that statement could be reconciled. The President. I quite follow you, Mr. Dickinson; it was only because I thought that you put that a little too high about that line corresponding with these mountains that I ventured to interrupt you. It is the same thing as Mr. Aylesworth is calling attention to. 780 Mr. Dickinson. On that point I consider that Mr. Ayles worth is quite correct. The President. Yes. Mr. Dickinson. And my attention was really turned to the moun- m7 m7 tains only so far as they go around the head of Lynn Canal. Mr. Aylesworth. I might add, Mr. Dickinson, that that circum- stance made me wonder whether this map was, as you term it, an official map or not. I am speaking without any knowledge on the subject, but what is the ground for considering it armap issued officially by the Russian Government? There is nothing in the title. Mr. Dickinson. It is a navigator's chart. Mr. Aylesworth. It is not called an Admiralty chart: it is a ml 7 general chart of the South Sea as I understand the meaning of the Russian. Mr. Dickinson. If your Honour will wait a moment I will have that statement translated. The fourth line from the top are the words: " From the equator to latitude 72 degrees 30 minutes." Mr. Aylesworth. " From the equator to latitude 72 degrees 30 minutes north, and from longitude 112 degrees 30 minutes to 192 degrees 30 minutes east." Mr. Dickinson. Yes. Well that is a chart, a navigator's chart, and I understand it is an official map, and I have never heard that questioned. Mr. Aylesworth. But is there any evidence that it was" published or promulgated in any way by the Government of Russia ? Mr. Dickinson. I have no evidence beyond what appears on the face of the map that it is a navigator's chart. Sir Edward Carson. My friend also said, as I understand him, that this was the map Mr. Sumner had. Mr. Dickinson. No ; I beg your pardon. • The President. No; the one I handed to you is what Mr. Dickinson thinks was before Mr. Sumner. Sir Edward Carson. I do not know what the evidence is of that. Mr. Dickinson. Well, it is stated in our Counter-Case, that this is the map which Mr. Sumner presented to Harvard University just after his speech. I do not regard that, however, as a matter of very ARGUMENT OF JACOB M. DICKINSON. 867 great importance. I really mentioned it more as a matter of interest connected with a distinguished man. The President. I understand. Mr. Dickinson. The probabilities were that way, but whether it was the identical map or not I do not think makes very much difference. This map—the Russian Admiralty map of 1844—appears in both atlases: the United States' Atlas No. 22, and the British Atlas No. 15. There was another map published in Russia in 1861, 781 showing the line drawn in the same way, I do not contend that this is an official map. This map was by Tikhmenief. He published a history of the Russian-American Company and this map was published in the volume which gave a history of that Company. The President. I do not want to lengthen the matter, Mr. Dickinson, but I think it only right I should say to you I do not in the least understand what you mean by " official map." I know Admiralty .charts which are sent for the purpose of navigating and which speak with all the information about soundings and about channels and things of that kind, but there is no such thing as an official map unless the Government have made some statement with it. You may say I map of authority " if you like but " official map " conveys no meaning to me whatever. Mr. Dickinson. Well, probably I can convey the point that I intend to make in a more general statement than by confining it to an I official map." The idea that I intended to express by " official map " is this: a map published b}r some department of Government which was—under the circumstances under which it was given to the world—supposed to be known to the Government and the Government officials. The President. Very well. Mr. Dickinson. Now, whether it is an official map put out for the purpose of declaring a boundary seems to me entirely immaterial. If it is a map issued by the authority of the Government, if it speaks a message and that declaration is permitted to go forth to the world, then it is official in the sense in which I use that term, and for all the purposes for which I intend to lay stress upon it. I take it that very much more significance would be given to a map of that sort than to a map of a private cartographer. The Government is expected to know about such maps. There is a great number of those maps. All are concurrent in their testimony. They extend over a long period of time. They make a continuous declaration of an historical fact, and all intelligent Governments are assumed to know those facts, especially a Government that has been so enlightened upon all the questions relating to its foreign relations as the British Government has been. I do not suppose anyone would impute to the British Government ignorance of these maps or their contents. Assuming that these Russian maps were issued officially, or semi-officially, as you choose to call them, that they made a declaration, and that they came into the hands of Great Britain, it seems to me that if a different interpretation was put at that time upon that Treaty by Great Britain, she should have spoken and should not have allowed a matter of that sort to go unchallenged. She challenged very promptly the w* 868 ALASKAN BOUNDARY TRIBUNAL. claim of Russia under the Ukase of 1821, and can it be assumed if maps official or semi-official were uttered immediately after that Treaty, and if they made a claim which affected these coasts in any way different from what Great Britain understood that Treaty to express, that they would have been allowed to go unchallenged? Would not Great Britain have said: " Under this map you are claiming all of these inlets and interior waters. " Why, when we put that word \ coast' into that Treaty we did not mean all the North-West Coast about which this controversy began, and did not mean that your lisiere and your strip of continent was to be, as some of the negotiators expressed it, a strip of land on the continent ; but we understood that that word \ coast' had a different meaning—that it meant a general trend of the coast, and that the coast in relation to which the mountains were to be located, and the coast from which the line is to be drawn if there are no mountains, was to cross from headland to headland. It follows that by no interpretation of the Treaty, with that meaning attached to the word S coast,' could Russia claim the head of Lynn Canal, and now we enter a protest and challenge this claim at once, because we cannot permit a claim of this sort to pass unchallenged, and grow into a right, or at least something by which a right can be perfected." But it is said on behalf of Great Britain that the question had not arisen at that time, and that Great Britain was not called upon to disavow the effects of these maps. But I say that the question 782 had arisen at that time, that the question as Jo what " coast t meant as applicable to these inlets did not depend upon the nature of these mountains at all. The inlets were known, and so was their location. WTiat was general coast was known. Where a line drawn 10 marine leagues parallel to that general coast would cross Lynn Canal was known just as well then as it is now. To say that that question did not arise, then, seems to me to involve a positive contradiction of undisputed facts. Certainly it did arise, and Great Britain's attention was challenged, if it saw these maps, to that contention of Russia. Now, passing from the maps of Russia, and the claims thus put forward by Russia, let us consider, the maps of Great Britain and Canada, and see what expression was given by them in regard, not to the location of the line in the interior, but to the inland waters. I might just as well say now that the United States has never claimed, and does not claim, in putting forward this line, that there ever has been any settlement as to where that line should actually be. It is only relatively that we are putting forward this contention; it is only with respect to the inlets. So I admit that the whole line, so far as it goes into the interior, has been sub judice, except that it has been settled, as we shall contend, under the Hunter Survey as to one point. On the other hand, it has not been sub judice, and it has not been an open matter at any time from the very year of the Treaty, so far as the heads of all these inlets is concerned. Mr. Turner. Do you admit that the Hunter Survey is against the United States, that it binds the United States ? Mr. Dickinson. No. I say the Hunter Survey has settled one point in favour of the United States, but I do not care to anticipate that, if you will not ask me for an answer now, as it will only divert me from the line of argument I am at present following. ARGUMENT OF JACOB M. DICKINSON. 869 Mr. Turner. You said that it was settled at that time by the Hunter Survey. Mr. Dickinson. No, I may state what I do mean to say in regard to thatejl say the Hunter Survey settled that where Martin went ashore and committed an assault was in American territory. It settled that much, if nothing else. As to where the line went north of that I do not think it was settled, but, certainly, as to the fact of that point being in American territory, I say that the Hunter Survey, taken in connection with the diplomatic action of the two Governments in regard to it, settled that much, and therefore would preclude the possibility of drawing a line anywhere between that point and the coast. That is just a general statement, but I expect to go more into detail later on in regard to it. Mr. Lodge. In regard to Hunter's line, was it not explicitly stated in the notes that were exchanged that it was a provisional line ? Mr. Dickinson.. Oh! of course the line itself, but as to this point Mr. Lodge. Yes; I follow your point, Mr. Dickinson. Mr. Dickinson. If it is desired, I can go into the discussion of that now, but it would take me entirety out of the line of argument I am pursuing. The President. Take your own course, Mr. Dickinson. Mr. Dickinson. There was no protest upon the part of Great Britain, but, on the other hand, we claim that Great Britain put exactly the same construction, and in the same way, upon how this line should go in regard to the inlets that Russia had done, and that this construction, so far as the official maps of Great Britain and Canada were concerned, continued without any change for a period of seventy-two years from the time the Treaty of 1825 was entered ml ml ml into. 783 In 1831 (the map appears in the British Atlas No. 13) a map was published entitled " Part of the Colonial Office manuscript map," by Mr. L. Hebert, senior. So far as I am advised, this map was never made public. It is an office map, and a manuscript map, but it is important as going to show the view as to that line that was taken by the officials of Great Britain of the Treaty so far as drawing this line is concerned in respect to the bays and inlets. This map was attached to the Cameron Report of 1886, which Report has been handed in to the Tribunal. It carries the line clearly around the heads of all of these waters. Mr. Turner. I suppose that map may properly be called an official map. Mr. Dickinson. I take it that it is an official map. The remark made, however, applies to its being promulgated, and therefore there was not any announcement so far as I know to other countries, but it is important as showing the view which was held in official circles in Great Britain, and it is put forward in the British Atlas as evidence in the Case. I take it that I could not rely upon that as influencing the judgment of any other Government, because probably Russia knew nothing about it. So far as we know it has never been made public until it was produced in this atlas, and it would be rather straining my argument to assume that either the United States or Russia, or any other Government, relied upon that map, which, so far as we know, was never brought to their-attention. 870 ALASKAN BOUNDARY TRIBUNAL. Mr. Turner. Suppose they did not rely on it? Mr. Dickinson. Well, there are other maps which they did rely on. Mr. Turner. And Great Britain did rely on it. Mr. Dickinson. That is the point I thought J made clear—that it showed the view Great Britain held. It was its interpretation and it was its expression written out upon a map of what the Treaty meant, and that is perfectly legitimate evidence for the Tribunal to look to in coming to the conclusion as to the interpretation put upon it by the Parties. British Atlas No. 19 is a map that was published in 1853, and the inscription upon it is;— Map of North America; 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. Now, this map carries the line just as the other maps Carry it, and this map was ordered to be printed by the House of Commons on the 12th of July, 1850. Mr. Turner. I do not quite understand that this was the map that Governor Simpson had. I|| Mr. Dickinson. No ; this was the map that Pelly sent, and it was published in the report of the Committee that made the investigation in which the Simpson map appeared. Mr. Aylesworth. That was seven yesars later. Mr. Root. What is the number of that in the American Atlas ? Mr. Dickinson. This is not the Simpson map; the Simpson investigation was in 1857; it came at a later date. Mr. Root. This is not the American Atlas ? 784 Mr. Dickinson. No, your Honour, it is not in the American Atlas. In 1857 a map of North America was published by order of the House of Commons, British Atlas 21; this appears also in the United States' Atlas No. 35. This is the Simpson map: the inscription on it is:— On this map, the territories claimed by the Hudson's Bay Company, in virtue of the Charter granted to them by King Charles the Second, are coloured green. The other British territories pink, and those of Russia yellow. The next map to which I ask you to look is the British Admiralty Chart 2461. That is in the United States' Atlas No. 23. I have already called the attention of the Tribunal to this map for another purpose, however. Now, it is true, as has been observed, that this was a sailing map, which was made for a purpose entirely different from that of delimiting territory; but the map has upon it a clear explicit declaration to the effect that this is a boundary line between the British and Russian territory. Now, of course, that map was known to the Governmental authorities, sent out to the world, published at the Admiralty 1st October, 1856, under the superintendence of Captain Washington, Hydrographer, with corrections to 1866, sold by J. P. Potter, agent for the Admiralty charts, showing that it was a map put out generally, and generally distributed, and going out to the world with the imprimatur of this department of the Government upon it. Thus we have from 1831 down to 1866—this map, although a map of 1856, being corrected down to 1866—a declaration of Great Britain on the point that we have now directly under consideration, that that Government interpreted that Treaty to mean that the coast ARGUMENT OF JACOB M. DICKINSON. 871 was all the coast, and that the boundary line ran so as to give all that coast to Russia. Mr. Turner. Is it not part of an Admiralty map ? Mr. Dickinson. I have observed elsewhere in my argument that other countries were interested in these waters. The sovereignty of them was a matter in which every mercantile and marine nation was interested, and a declaration put forward in this way by a Government that it did not own these waters, and that the sovereignty over them was that of another country, was a declaration that was directly addressed to every maritime nation in the world, and was as explicit and clear a statement upon that subject as could possibly be made by a map. Note in 1877, Admiralty Chart 787, United States' Atlas Mo. 38. Attention was called to the fact that on the previous Admiralty chart the boundary line was laid down as the boundary line between Russia and Great Britain, but this map was issued after the American purchase, and the inscription of that line was changed so as to read, " Boundary between British and American Territory." What more significant statement could be made on a map than this, which was declaratory of the sovereignty of waters in which nations were navigating, and was notice to all countries that if they navigated these waters it was under the jurisdiction of Russia and not under the jurisdiction of Great Britain, and it shows that their minds were challenged to the fact of the purchase by the American Government, and the change made in this inscription following the Treaty is a fact of the utmost importance in getting at what was the interpretation put upon this Treaty so far as the coast and these interior waters were concerned. That boundary line on the Admiralty maps has continued up to 1901 unchanged. I pass this map up to the Tribunal [map handed up]. This is of very great significance, in view of the argument that was made, that in 1874 the question was raised as to this boundary, and that in 1888, growing out of the Dawson meeting, notice was given to the United States of a claim of Great Britain to all of these interior waters, or rather to the heads of these interior waters. As I shall undertake to show, that claim was put forward by the Government. That was a claim that originated with individuals and was confined to individuals and never received Governmental endorsement until quite a recent time, and one evidence upon 785 that subject is the fact that the Government continued, notwithstanding their present assertion that the matter was sub judice then, to issue these Admiralty maps, making the same declaration that they made before the American purchase, and the same declaration that they made immediately after the American purchase. I shall not ask the Tribunal to go into the consideration of the maps of private cartographers. It would unduly tax their time and patience. But I make the general statement and refer to our printed argument for references upon that, that almost without exception, the understanding as shown by the publications of the leading cartographers of the world in Great Britain, America, France, and Germany, was in line with this interpretation that has been given as shown by these maps of Great Britain and Russia. I will pass up to the Tribunal Admiralty Chart 2172 of the Arctic Sea and Bering 872 Alaskan boundary tribunal. Straits, first issued in 1853, and corrected down to 1900,which shows the line drawn just as in the others [map handed up to the Tribunal]. Now, under this understanding on the part of Russia and Great Britain, most significant acts of omission and commission were done by the respective Governments. Although it is contended here that, by that Treaty, it was understood—of course, when you get at the understanding of the Treaty, you get what the parties understood, that is what you are trying to find out—that the interior waters, and the coasts along them, belonged to Great Britain, so far as the evidence in this case goes, Great Britain never from the time that Treaty was made, except under the permissive right for ten years under the Treaty sent a ship into any of these interior waters, or even sought in any way, shape, or form from that time to exercise any sort of sovereignty over them. Now, is it to be supposed for a moment that a Government like Great Britain understood that it was getting by this Treaty, and through the meaning of the word " coast," the ownership of these interior waters, and that it never sent a ship there, never did anything in the world to manifest that it claimed sover- eignty over those waters, but that, on the contrary, it held back and m^3 ml 7 7 mJ * permitted Russia and the United States throughout a long series of years so. far as Great Britain was concerned, to absolutely dominate and control them? Could there be any more significant fact than that in regard to the interpretation of this Treaty? And is it to be supposed that those who have directed the affairs of this great and enlightened Government would have actually abandoned all of these waters if it owned ml them to be taken possession of and be administered by foreign Governments? And when you have that fact incontrovertibly shown, what more do you need to reach the conclusion that Great Britain ml never at any time, until the claim was put forward at a- very recent date, supposed that under that Treaty, and the wording of that Treaty, it acquired a sovereignty over any of those interior waters. Great Britain does not abandon its possessions in that way. It is not characteristic of the spirit and enterprise with which that nation has extended its commerce, and sovereignty. Some question has been raised in regard to the character of sovereignty exercised by Russia over those waters. Well, I admit that the proof is not very strong, but still it is strong enough to show that so far as those waters and coasts were capable of being utilized, Russia utilized them. It shows that throughout the whole period up to the time of the American purchase they maintained relations with the natives of that country. ms It is true they treated them in some respects in a way that an independent people would be treated, but anyone who knows anything about Indian characteristics knows that they could never be handled in any other way; anyone who has studied the history of the development of the American country, knows that, even though the United States Government has absolutely controlled Indians in their possessions, it has always conceded to them something of apparent independence in the manner and form in which they were treated. And humanity dictated it. These people did not submit themselves easily to the forms of civilization, and, unless they were treated in a manner with form and ceremony, and in a measure recognized—as it is expressed in these proceedings, as allies—the Gov- ARGUMENT OF JACOB M. DICKINSON. 873 ernment would have been forced to the alternative of exterminating them. That was the only way in which the Russians could treat them. And some emphasis has been laid on the fact that they 786 were spoken of as allies in that way, but it was only in that sense, and it was only in the line of contact which has always been maintained by any strong Government dealing with an uncivilized and warlike people. It was either that course or it was extermination. But Great Britain never undertook to set up any relations with them at all. Now, we have shown that Russia surveyed the Stikine River, and Lynn Canal, established relations, though not through bonds of the strongest character, yet at the same time relations that were always kept up with these Indian tribes. Of course, during the ten years when reciprocal rights were given, while Great Britain and the United States, under that Treaty, resorted to these coasts, it was impossible for Russia to establish anything like absolute dominion and control and to manifest that character of possession, that character of sovereignty, that would have been manifested under other circumstances, but where you have no conflict shown with any other Government, no claim set up by any other Government, the proof that has been adduced in regard to Russian possession is sufficient to show that Russia regarded herself as having sovereignty over those inlets, and that the people who lived there regarded that their government relations were with Russia, and with no other Government on the face of the earth. Now, this brings me to the question of the lease of the Hudson's Bay Company. Sir Robert Finlay. If my friend is going to a new subject perhaps he would permit me to apply that we might have these maps that have been handed in. We did not get them. Mr. Dickinson. Certainly. Sir Robert Finlay. I do not complain about that. Mr. Dickinson. I will see that you have them. Sir Robert Finlay. There is one other matter I should like to- mention, and that is in regard to those profiles that were handed in. I think probably, instead of handing in any argument upon them it might be a convenient course if Mr. Tittmann Would be good enough to see Mr. King this afternoon. The President. That is what I thought. Sir Robert Finlay. Mr. Tittmann might tell Mr. King the exact point and direction of each profile, and Mr. King might be allowed to hand in a Memorandum, in writing, with any criticisms, and submit further profiles. The President. There are only three. Sir Robert Finlay. There are four. The President. It would be very useful if Mr. King, instead of having a Memorandum in writing, would put in red ink on the face of the profile anything he differs from, if he does differ from anything—we would then see at once. Sir Robert Finlay. Of course, there may be some general observations, but they would be very short. I dare say, for instance, a great deal depends on the point you select. The President. Exactly. 874 ALASKAN BOUNDARY TRIBUNAL. Sir Robert Finlay. And the direction you take. The President. Exactly. 787 Sir Robert Finlay. And the direction you take. The President. This is why, you see, Mr. Attorney, we all want to have the information agreed to—that is all. Mr. Tittmann has just undertaken to put an actual profile, the line of it, on that map, which will give us the position and the compass bearing. It is very important that we should have that in regard to all the four profiles. If Mr. King would meet him I do not suppose there would be any difference. If he would kindly meet him and they would agree to put Mr. King's corrections, if there be any corrections, in reel ink, or add any note he likes. That is exactly what we want. Sir Robert Finlay. If Mr. Tittmann would do that this afternoon Mr. King would be ready with his notes in the most convenient form by to-morrow morning. The President. Certainly. ml Mr. Lodge. Mr. Attorney, those profiles you handed m, you remember, during your argument—were those drawn by Mr. King ? Sir Robert Finlay. By Mr. King. Mr. Lodge. Were they submitted to Mr. Tittmann before they were presented ? Sir Robert Finlay. I do not think they were. Mr. Lodge. Would it not be well to submit these to Mr. Tittmann also, and if he had any corrections to make on those, we might have them to-morrow morning as well. Sir Robert Finlay. By all means. m' Mr. Dickinson. Mr. Tittmann has examined those, and he is perfectly satisfied with them. The President. By all means. In order that there may be no misunderstanding, those were handed to Mr. Tittmann several days ago, and I understand from what Mr. Dickinson has now stated that Mr- Tittmann is perfectly satisfied. All we want is, that before the Argument ends to-morrow, we may have the materials in a way the Court can use them, and if Mr. King and Mr. Tittmann meet this afternoon, I am sure they can do all that is necessary. -m ■- •{ ml Sir Robert Finlay. By way of illustrating his observations, Mr. King may want to hand in profiles taken from other points. The President. I think they mean to meet this afternoon. Sir Robert Finlay. Mr. King is ready, but I am afraid Mr. Dickinson wants Mr. Tittmann now. The President. If they can meet at once that would be exactly what the Tribunal wants. Mr. Dickinson. We will excuse Mr. Tittmann. The President. Thank you. Mr. Dickinson. I come now to the question of the lease of the lisiere to the Hudson's Bay Company, and in discussing this 788 question of lease, if I do not go over the ground pursued by my colleague, Mr. Taylor, it is not at all because I dissent from his views, but because I am perfectly content to leave the Argument—the position he advances—where he left it. But for the purpose for which I shall use the lease in this line of argument, it is immaterial whether or not the Hudson's Bay Company was in this particular matter the Representative of the British Government or ARGUMENT OF JACOB M. DICKINSON. 875 not. If it can be shown that attention was brought to the British Government that this lisiere, which included the coasts and inlets now in controversy, was being held by a corporation of its creation, such as the Hudson's Bay Company was, by an attornment to a foreign Government, and that with this knowledge it permitted that relationship to continue, and understood that a corporation created by it was holding territory under the authority of a foreign Government, to which it might have claimed ownership, and not only did not dissent, but with that knowledge continued to put forth by its maps declarations which were in line with the interpretation which I have shown it had previously put upon the Treaty, then I think we may safely conclude that certainly at that time Great Britain did not understand that coast in this Treaty meant a general trend of the coast or a jurisdictional coast, and had no ground for supposing that under an interpretation of that Treaty it had any claim to any part of the coast or interior waters that the Hudson's Bay Company was holding under Russia. In 1839 this lease was made, and the Hudson's Bay Company then went into possession. The description of the property leased appears on p. 150 of the Appendix to the British Case. The lease was for commercial purposes of the coast exclusive of the islands, and of the interior country belonging to His Majesty the Emperor of Russia, situated between Cape Spencer, forming the north and west headland of the entrance of Cross' Sound and latitude 54 degrees 40 minutes, or thereabouts. It was the whole mainland coast and the interior country belonging to Russia, together with the free navigation and trade in the waters of that coast and interior country situated to the southward ••nd eastward of a supposed line to be drawn from Cape Spencer to Mount Fairweather with the sole and entire trade or commerce thereof. A point has been made by the Attorney-General that this line drawn upon that portion of the country north of Lynn Canal would split the lisiere. Well, I shall not go into a discussion of that, because I am now upon an interpretation of the Treaty, so far as these interior waters are concerned. Even if the line did split the territory up there, and the Hudson's Bay Company was not holding that part which is north of that line, it is perfectly clear that all of the balance of the lisiere. which included all of the coast about Lynn 7 ml Canal and Taku Inlet, was held by the Hudson's Bay Company, and so I regard, so far as the point I am now making is concerned, that criticism is entirely irrelevant. The country here which passed under this lease was the whole mainland coast and the interior country belonging to Russia. I take that to mean that it was all the mainland coast and somuch of that interior country as belonged to Russia. All of the mainland coast was known. How much of the interior country belonged to Russia was not known, and therefore when it came to describe the interior country it could not have been expressed more definitely. But it did cover all of the coast, and so much of the interior country as belonged to Russia. So, except that part which may have been divided by the line drawn from Cape Spencer to Fairweather, the Hudson's Bay Company was clearly under the description given in the lease holding all that territory. It went round and included all A szsSB. m 876 ALASKAN BOUNDARY TRIBUNAL. the inlets now in controversy. But if there should be any question whatever on that point it is made entirely clear by the testimony which was given before the Committee of the House of Commons when it was investigating the relations of the Hudson's Bay Company to its adminstration of that tract of country, known as Prince Rupert's Land, and incidentally all the land that was covered by this lease. This investigation took place before a Select Committee of the House of Commons in 1857. I refer to pp. 37, 38, and 39 of the Appendix to the United States Counter-Case. Sir George Simpson was examined before that Committee. The Chairman said:— I believe you hold an important situation in the administration of the territories of the Hudson's Bay Company?—I do. 789 What is it?—I have been Governor of their territories for many years. How long have you held that situation?—Thirty-seven years I have been their principal representative. Mr. Edwabd Ellice. As Governor the whole time?—Yes, I have held the situation of Governor the whole time. The Chaibman. What is the nature of your authority in that capacity?—The supervision of the Company's affairs; the presiding at their councils in the country, and the principal direction of the whole interior management. Now, he was familiar with the affairs of this Company from the time of the lease. He signed the lease himself; he was one of the negotiators; he went to Hamburg and made the lease with the representative of the Russian-American Company. He certainly under- A ml ml stood when he took that lease what this description was intended to convey. And, coming to p. 38:— Do you take care to keep a pretty strict supervision over them, and does their advancement depend altogether upon their conduct?—There is a very strict supervision. Besides your own territory, I think you administer a portion of the territory which belongs to Russia, under some arrangement with the Russian Company?—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 terhi of years. Is that the whole of that strip?—The strip goes on to Mount Saint Elias. Where does it begin?—Near Fort Simpson, in latitude 54°; it runs up to Mount Saint Elias, which is further north. Is it the whole of that strip which is Included between the British territory and the sea—We have only rented the part between Fort Simpson and Cross Sound. Now, further on in this investigation—I cannot now turn exactly to the point—he referred the Committee to a map in which he stated that that territory which was held under the lease appeared on that map coloured in yellow, and if the members of the Tribunal will turn to Map 35 of the American Atlas, they will find this map, which was laid before a Select Committee of the House of Commons in 1857, and this map was ordered to be printed by the House of Commons in 1857. Now, my contention is that there the House of Commons, the legislative department of the Government, had direct notice that the Hudson's Bay Company* however far it may have been holding in the interior, wherever this particular line might be delineated in the interior, was certainly holding all of these interior waters, and all of these coasts that are now under controversy under the Russian Government, and had been holding them for a long period of time. Notwithstanding that fact, no protest was made, no order was issued that the Hudson's Bay Company could not hold ARGUMENT OF JACOB M. DICKINSON. 877 these inlets, which under the interpretation now contended for under the Treaty belonged to Great Britain, for a foreign Government, but this map was published without question, and with full knowledge of the character of the holding. And not only that, after the publication of this map Great Britain and Canada, with this knowledge brought home to them, issued other official maps in which the same declaration was made. The Hudson's Bay Company continued to hold that territory by successive renewals of this lease up to the time of the American "purchase in 1867, and when at the head of Lynn Canal a revenue vessel hoisted the American flag, upon the same day that the ceremony was observed at Sitka when this territory was taken under the American sovereignty there, a representative of the Hudson's Bay Company at that time came upon the ship, and after the American purchase the Hudson's Bay Company abandoned that territory, never set up any claim that it had a right to it under the authority of 790 Great Britain, and gave up all their posts and withdrew their agencies. If there could have been any question whatever in regard to the territory included in this lease it would be settled by the fact that on the 13th September, 1849, Sir J. H. Pelly transmitted a map to Earl Grey in which he said:— I have now the honour 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 the Second, are coloured green, the other British territories pink, and those of Russia yellow. This map is referred to in the United States Counter-Case Appendix, 253, and it is No. 19 in the British Atlas. Now, if you will turn to that atlas you will find under the designation given by him that the territory, certainly passing out and beyond all of the coasts and all of the inlets in question, was coloured as belonging to Russia. Mr. Turner. That was the map which was ordered to be printed in 1850 by the House of Commons ? Mr. Dickinson. Ordered by the House of Commons to be printed on the 12th July, 1850. This, then, brings us down to the time of the American purchase. Mr. Root. Was this the same Pelly who was consulted at various steps of the negotiations by Mr. Canning ? Mr. Dickinson. I beg pardon ? Mr. Root. I suppose this was the same Mr. Pelly? Mr. Dickinson. Yes, this was the same Mr. Pelly whom you might say was the mentor in regard to all these matters which were peculiarly within his knowledge in regard to that far-off country and which were supposed to directly affect the British interests and the interests of the Hudson's Bay Company. As I stated, this brings us down to the American purchase in 1867. From 1825 down to 1867 there had never been done, so far as we know, a single act, and there had never been put on record a single declaration by the British Government that she owned any part of the coast, or of the waters, which bear a relation to the solution of the fifth question which we have now under consideration. And it is not credible that at that time Great Britain could have undet-4 g. Doc, 162, 5&-2, vq! 7- -26 A 878 ALASKAN BOUNDARY TRIBUNAL. stood that she had any right in these waters, for she would have asserted it in some sort of way. In the face of, or rather with the knowledge of, these declarations of her maps, with the knowledge of the declarations of the Russian maps, and of cartographers generally, and doubtless with the further understanding that Great Britain had never exercised any sovereignty or control over these waters, the United States went into this purchase. At the time that the Treaty was entered into between Great Britain and Russia, the United States had certain rights to those inlets as she interpreted the Treaty of 1824, which rights continued for a period of ten years. She also understood that Great Briiain had secured identically the same rights, and had secured theui by putting into her Treaty with Russia the same language that had secured similar rights to the United States. The United States understood that the enjoyment of these rights was solely permissive under the Russian Government, and that she did not hold or enjoy any of them by the grace of the Government of Great Britain. At the time of the expiration of that privilege, certain American traders were not disposed to observe the obligations laid upon them by the Treaty, and attention was called to the representatives 791 of the American Government that ships were trading in that section in violation of the rights of Russia, and representations were made in such a way that the Secretary of State caused to be published a notice in order that those who were carrying on commerce and enterprises in that section of the country, and who were citizens of the United States, might desist, and the notice was given for the purpose'of warning them that unless they did, Russia under the exercise of its supreme rights in respect of those waters would confiscate the vessels. That showed the clear understanding of the United States in regard to the sovereignty of these waters. With that understanding growing out of these Treaties, the United States never had any declaration from Great Britain by a map or otherwise that she set up a claim to those waters. On the contrary having repeated declarations from Russia, not dissented from by Great Britain, but on the * ^^^ m7 7 contrary, concurred in by Great Britain that those waters belonged to Russia, the United States entered upon this purchase. Now, I do not say for a moment, or mean to suggest, that there was any act of bad faith upon the part of Great Britain in permitting the United States to purchase this territory, and, although a long time intervened between the consummation of the Treaty and the payment of the purchase-money, in standing by and permitting the money to be paid, and that thus she is estopped from setting up a claim. Not at all. I do not put it in that light. I do not think it was an act of bad faith at all. I think that at that time Great Britain acted just as she had acted previously, and that, from the signing of the Treaty, her action was expressive of the interpretation that she put upon the Treaty, and that, not believing that she had any right in those waters, she never felt that she was called upon to intervene in any way or give notice to the United States' Government. The Treaty was consummated between Russia and the United States, and immediately steps were taken upon the part of the United States to subject this newly acquired territory to her sovereignty. ARGUMENT OF JACOB M. DICKINSON. 879 With great formalities, probably for the first time in the history of the American Government, so far as I know, a ceremony was gone through such as characterizes taking possession of a country that had hitherto been foreign, at Sitka, and doubtless accounts were given of that in the papers at the time. The Government of Great Britain was doubtless cognizant of all that took place. Another event of like character occurred—I have hitherto referred to it—upon the same day and somewhat in the same manner, and that was at the very head of Lynn Canal, which constitutes a part of the waters now under controversy. And I take it that all the civilized world at that time, who were generally informed in regard to the matters of acquisition and transfer of territory, understood that the United States went into possession of and expected to administer all the waters in regard to which this question now has arisen. I must say, Mr. President, that I have progressed somewhat more rapidly than I had anticipated, and although I could go on if the Commission desires, it really would economize time if the Commission would now adjourn, as I have every reason to believe that I shall be able to conclude to-morrow. (Adjourned till to-morrow at 11 a. m.) » 792 NINETEENTH DAY.—THURSDAY, OCTOBER 8, 1903. All the Members of the Tribunal were present. Mr. Dickinson. Mr. President, I now proceed to treat the remaining points of my argument, which I expect to finish to-day. The main question with which I have to deal is that of occupation by the United States' Government, and I will deal with it from the standpoint of showing the interpretation put by the Parties upon the Treaty, and not from the standpoint of the doctrine of adverse possession, prescription, or estoppel, or anything of that sort, because we have never put the Case of the United States under this Treaty on any such ground as that. But preliminary to the discussion of the question of occupation, it is necessary that I should take up and deal with the positions that have been advanced by Counsel on the other side, in which they have maintained that throughout a long period—a period of 30 years—the whole question in respect of this line has been in controversy, and that as it has been in controversy it could not be said that any occupation on the part of the American Government could be taken as manifesting any interpretation, certainly on the* part of Great Britain, that that occupation was rightful. I, therefore, first, shall ask the attention of the Tribunal to a consideration of the different questions under the general head of what has been styled sub judice. Preliminary to that, although I shall go more into detail hereafter and make references with regard to occupation, it will be helpful to note what had been the general character of occupation previous to the time, which has been designated in the arguments of opposing Counsel as the time at which this question began to be raised. The time designated is 1872; that is the first date mentioned by the Attorney-General in his argument. Now, it will be borne in mind that Russia had occupied this territory. I shall not go into details over that part of the argument. The property had been transferred to the United States, and possession had been taken of the property in 1867, so that there was the period from 1867 to 1872 certainly, before any question whatever was raised, even under the contention of the opposing Counsel. Wliat were the acts done by the United States' Government in this territory previous to 1872 ? I will give a short resume. As I stated, I shall go more into detail in regard to that when I come to deal with the question of actual occupation. Previous to 1872 the following events had occurred:—The enumeration of the Indian tribes in the lisiere had been made in 1867, and published, in which list there appeared as in Ajnerican territory the Indians along the Stikine River, Taku Inlet and River, and about the head of Lynn Canal. The American flag had been raised at the head of Lynn Canal, and 880 ARGUMENT OF JACOB M. DICKINSON. 881 the waters of its inlets and rivers had been surveyed by the United States' Coast Survey, and the allegiance of the Indians in one form or another had been given. The officials of the army stationed in Alaska had made visits during every year, from the time of the purchase in 1867 up to 1872, to the Stikine, Taku River and Inlet, and the head of Lynn Canal. They interfered and stopped tribal wars, and enforced the obedience of the natives to the United States. From 1869 annual visits by United States' naval officers were made to the Stikine, Taku Inlet, and head of Lynn Canal. The revenue laws of the United States were extended over the land and all the waters of Alaska. A custom-house was established in 1867 at the mouth of the Stikine, and revenue surveillance was exercised over that river to the boundary 10 leagues from the coast. Revenue vessels had made annual 793 visits to the waters in the lisiere, and I quote a statement in the record. that they " entered 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." It must be borne in mind that, so far as the record here shows, from 1825 down to 1872 Great Britain had never sent a vessel into these territories, never had assumed the exercise of any jurisdiction whatever, and never had questioned in any way the rightful ownership of Russia or of the United States in respect of the coasts and inlets now in controversy. After all that period of interpretation manifested by acquiescence, it is now said that it must all go for naught, and that although this interpretation had been manifested through such a long extent of years, it must be entirely wiped out on account of certain things which took place after that time. I submit that even if the question had been raised at that time, looking to the history of this transac- / m^J ml tion, and the unbroken claim from 1825 down to 1872, the interpretation of these Governments had been perfectly and completely manifested. How often must an interpretation be given? If it is given and maintained throughout a reasonable period of time—and I should say from 1825 to 1872 would be a reasonable period of time—can a different interpretation be set up after that? Even if in 1872 a distinct claim had been made to these inlets, it would not retroact and wipe out and make nugatory this unbroken claim and assertion of title by Russia and the United States from 1825 down to 1872. But I shall undertake, with the indulgence of the Tribunal, to demonstrate that what is claimed as a notice on the part of Great Britain in 1872, was entirely inapplicable to the point under consideration, and that it does not demonstrate at all that Great Britain during that period set up any claim to these inlets. On the contrary, I think the record will show that throughout that time, so far as any understanding was manifested, it was to the effect that the United States' boundary would run round the inlets and go a considerable distance up all" of the rivers. On the 6th page of the Argument the Attorney-General said:— Now, the question of the frontier of this territory has been in dispute ever since the year 1872. The Tribunal will find, when the negotiations are looked at, that at no time during the period has there been anything like acquiescence 882 ALASKAN BOUNDARY TRIBUNAL. or consent, as between the United States of America and Great Britain, as to what is the proper frontier to be drawn of the region now in dispute, and I ask the Tribunal to bear that point in mind, for it will be found to be of very great importance, as throwing a flood of light upon certain contentions which have been put forward by the United States as to acts of possession at certain points in this territory on behalf of the United States. I shall presently have to call the attention of the Tribunal to the provisions of the Treaty with regard to the effect which is to be given to any such acts. What at the present moment, 1 ask the Tribunal to bear in mind throughout is, that for more than thirty years the question of boundary has been in dispute—always in dispute—sometimes actively in dispute, and always a subject of difference between the two Governments. It is necessary, in order to appreciate the force of that argument, and also the distinction made by the United States in answering it, to observe that, because there may have been a dispute as to where the line should be actually laid down upon the ground in the interior, that does not go to establish that nothing in regard to the line has been settled. The only feature that we say was absolutely determined and settled by interpretation was that which bears upon the answer to the fifth question. It is that the line was to go around all of the inlets, including all these coasts. We never have claimed, and it is not a part of the Case of the United States, that along the whole boundary, from Portland Canal to Mount St. Elias, the line at 10 marine leagues from the ocean has been settled by acquiescence. It would be putting the Case of the United States in a false attitude to assume that we make any such claim as that. Therefore, when questions as to acts of occupation are raised in respect of laying down the line in the interior, thev must be entirelv disassociated from 7 ms my 794 our claim as to acquiescence in respect of the relative location of the line in regard to the inlets and the coasts. A leading part of the discussion, and a necessary part of it, is an extract from a letter of Mr. Choate to Lord Salisbury on the 22nd January, 1900, which appears on p. 154 of the United States' Counter-Case Appendix. He said:— The first presentation by Her Majesty's Government of the present claim of Canada was made in the instructions issued by the Foreign Office to the British members of that Commission, bearing date the 19th July, 1898, which was received by the Secretary of State on the 3rd of August of that year. During the conferences of that Commission the American delegates asserted that no such claim had ever been put forward by the British Government previous to the creation of the Commission, and the assertion was not called in question. Chairman Fairbanks, in his letter to Lord Herschell of the 14th February, 1899, referring to this claim, used this language: " Our first advices on this subject were received at your hands since our sessions began at Quebec. * * * If the views you now present have been urged upon the attention of the United States at any time prior to the original Protocol (30th May, 1898), we shall esteem it a favour if you will be good enough to direct us to the fact and date; further, we shall be pleased if you will advise us at what time since 1825 the British Government made claim on either Russia or the United States to any territorial rights round the upper part of Lynn Canal." There was a direct challenge made by Chairman Fairbanks in 1899 to Lord Herschell, and it does seem if at that time Great Britain had claimed that it had adopted the views of Dr. Dawson which are now so much relied upon, or if it had regarded these other acts which have been brought forward in their argument, as setting up a claim to any part of these coasts and inlets, that Lord Herschell would then have taken that position. ARGUMENT OF JACOB M. DICKINSON. 883 To this Lord Herschell, in his letter of 15th February, 1899, replied:— I The statement that the views of the British Government had not been made known till that time (the assembling at Quebec, August 23rd, 1898), is erroneous. The instructions given us by the British Government made it perfectly clear that the upper part of the Lynn Canal was claimed as British territory. * * * A copy of these instructions was sent on 1st August, 1898, to the United States Secretary of State." He does not claim there that any notice was given or claim set up in 1872 or in 1888, or in 1891 or in 1892, as is now claimed in argument, and he only goes back to the 1st of August, 1898, at the time the instructions were sent to the Secretary of State. To this letter Senator Fairbanks wrote a reply, under date of 16th February? 1898, in which he said:— mJ J s It is quite true, as stated in your letter of yesterday, that the instructions of your Government were sent to our Government a few days before the Quebec meeting, but they did not in fact come to the attention of the Commissioners until they assembled at Quebec. You will no doubt recall the observation made by General Foster, during your presentation of the British Case upon the boundary, that the view then advanced by you respecting the head of the Lynn Canal was the first distinct statement of the British claim. I do not recall that you seriously disputed it. Mr. Choate added:— Thus the exact punctum temporis of the first assertion of this claim of Canada by Her Majesty's Government is fixed. I understand that no effort is made to change the aspect of affairs as they were presented then, or to indicate that Lord Herschell understood the issues differently from the way in which they appear as set forth in that letter. It does seem when the matter had got in a crux, as it was at that time, if he placed any reliance on the 795 acts of 1872 and all the acts subsequent to that time, he would then have said something about it; but, as far as we are advised, there was no assertion with regard to them, and the affair passed over without any reference being made to the particular acts that are now relied on as conclusive upon this question. In this connection I shall read further from the oral argument of the Attorney-General on p. 309, in which he says:— Now, I submit that, when the history of the diplomatic relations between the two countries as affecting this question is gone into—it is not necessary to do it in great detail, it is only necessary to look at the effect of the documents— when that is gone into, it will be found that the statement that Great Britain or Canada did no advance a claim to the territory lying adjacent to the inlets of the ocean or to the waters thereof—that that claim was not advanced till the 30th May, 1898, is a complete mistake; that, on the contrary, the whole question— Mark the words " the whole question "— the whole question of the frontier was continuously under discussion from 1872 onwards, and that in 1888, ten years before the date quoted by Mr. Choate in the passage in 1888 That means the whole question of boundary, including the heads of these inlets. He makes the point that they made this claim in 1888, ten years before. It is quoted, says the Attorney-General, by Mr. Choate in the passage in 1888; I think that must be a misprint for 1898, which is the date of Mr. Choate's letter. Then the Attorney- General continues:— * * * the United States had the clearest and most unequivocal notice that Canada claimed the heads of the inlets as belonging to her. Now, if that state- /* m 884 ALASKAN BOUNDARY TRIBUNAL. ment is established, as I trust to establish it, I submit that it really deprives of their significance the acts which have taken place at the head of the Lynn Canal, so far as the United States are concerned, by reason of the provision of the Treaty which I referred to yesterday, that those acts are to be looked at only in so far as they show the original and effective understanding of the Parties as to what the Treaty did. You cannot from such acts, whatever effect they might have, if there was any question of Treaty right I think that must be " if there was not any question of Treaty right." Sir Robert Finlay. There is a comma put in. It is clear, I think, it should be " if there was not any question of Treaty right." The " not" is left out. It is clear it should be " if there was not any question of Treaty right." Mr. Dickinson. I put in the " not" because it is quite manifest it should be there. You cannot from such acts, whatever effect they might have if there was (not) any question of Treaty right, you cannot from such acts infer the views of the Parties as to the meaning of the Treaty, unless you show that the acts are done under such circumstances as to evince a common consent as to the territory belonging to the Power that does the act. Here he takes the position that the whole frontier line was in controversy, and that the controversy was not solely in respect of drawing the line in the interior or in respect of where it should cross the Stikine River. They are drawing out of this correspondence that there was notice served upon the United States' Government that the whole boundary line from beginning to end, not merely as to where it should be laid down, but as to its relation to these coasts and inlets, was brought in question. The question we have here is, what is the proper answer to the fifth question. It has no relation whatever to any discussions in regard to the drawing of the boundary line in the interior, unless these discussions are so connected with, and have such a bearing upon, the inlet^ and coasts as to show clearly that they brought notice to the United States that there was a controversy advanced by Great Britain in respect of the coasts and inlets. 796 Coming then to the first so-called notice, that in regard to the delimitation of the boundary beginning in 1872, please mark the period. This was forty-seven years after the Treaty with Russia, and five years after the United States took possession of the head of Lynn Canal. As has been shown, the United States had «/ 7 issued its map, as was doubtless known to Great Britain, and notwithstanding that map had been issued five years before the time, and no question has been made so far as its relation to the heads of these canals is concerned, it is now said that out of this correspondence direct notice was brought to the attention of the United States in respect of them. This correspondence was initiated by an address to Lieutenant- Governor Joseph William Trutch, and on p. 163 of the British Case Appendix there is a letter he addressed to the Hon. J. Howe, Secretary of State for the Provinces. It is dated from the British Colum- ms bia Government House, 11th July, 1872:— 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 III and IV. But the description therein given of this line of demarcation is not so clearly defined as to render it readily traceable on the ground. ARGUMENT OF JACOB M. DICKINSON. 885 He does not speak of any controversy as to the interpretation of the Treaty. He only speaks of the difficulty presented under the terms of the Treaty of tracing the line readily on the ground. He proceeds:— 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 10 marine leagues from the ocean, to a line drawn parallel to the coast, and at a distance of 10 marine leagues therefrom, following all the sinuosities thereof, cannot in practice be determined. I therefore concur with my Ministers in thinking it is desirable that some more clearly marked or definitely ascertained line should be substituted for that described in the Convention above referred to* But, although it certainly is advisable that attention should be called to this subject, in order that steps may be taken to prevent any occasion for dispute hereafter, I am not aware of any circumstances which appear to render the immediate adjustment of this matter urgent He speaks of the difficulty of tracing it on the ground. He speaks of a line drawn parallel to the coast, following all the sinuosities thereof, and of the difficulty of that being determined in practice; but nowhere is there the slightest suggestion in this letter that there was any question in his mind, or that any question had been raised, as to the interpretation intended to be put upon the word " coast," or that when he there spoke of " coast" he intended to speak of the kind of | coast" that is now made by Great Britain the very pivot upon which this whole controversv turns. ml It appears that an inquiry was made by Sir Edward Thornton of Mr. Fish, and that doubtless was verbally in the interview, of which 1 ml / an account is given in a letter by Sir Edward Thornton to Earl Granville in 1872. It appears on pp. 16*4-165 of the Appendix to the British Case. He says:— In compliance with the instructions contained in your Lordship's despatch, No. 379, of the 30th ultimo, I inquired of Mr. Fish, on the 14th instant, whether the United States' Government would bewilling to agree to an appointment of I Commission for the purpose of defining a boundary line between Alaska and British Columbia. Mr. Fish replied that he was perfectly satisfied of the expediency of such a measure, but he feared that Congress might not be willing to grant the necessary funds. Then further down he says:— ml But when I saw Mr. Fish again on the 16th instant, he told me that he had talked over the matter with hte President, who was so impressed with the advantage of having the boundary line laid down at once, that he had expressed himself as disposed to recommend to" Congress in his next message 797 at its opening, that he should be authorized to appoint a commission- and the necessary assistance for that purpose on the part of the United States. Is there any question raised there as to the meaning of " coast" or the construction of the Treaty? It is only a proposition to survey and to lay down in the interior a boundary line according to the terms of the Treaty, and it has no relevancy whatever to the question of coast or cutting across the coast or the ownership of the inlets which it was understood had been for a long time in the possession of the United States. Then on November 25th, 1872, Sir Edward Thornton wrote to Lord Granville:— Mr. Fish stated to me that the President had determined to recommend, in his message to Congress on its opening, that he should be authorized to appoint 886 ALASKAN BOUNDARY TRIBUNAL. a Commission on the part of the United States for the purpose of laying down the boundary between British Columbia and Alaska, in concert with a Commission appointed by Her Majesty's Government. There is no question there as to the meaning of the Treaty. It shows that their minds were only intent upon the question of survey. In this connection you note that there is a Message of President Grant which appears on the same page. He says:— Experience of the difficulties attending the determination of our admitted line of boundary, after the occupation of the territory, and its settlement by those owing allegiance to the respective Governments, points to the importance of establishing by natural objects or other monuments, the actual line between the territory acquired by purchase from Russia and the adjoining possessions of Her Britannic Majesty. The region is now so sparsely occupied that no conflicting interests of individuals or of jurisdiction are likely to interfere to the delay or embarrassment of the actual location of the line. If deferred until population shall enter and occupy the territory, some trivial contest of neighbours may again array the two Governments in antagonism. I, therefore, recommend the appointment of a Commission, to act jointly with one that may be appointed on the part of Great Britain, to determine the line between our territory of Alaska and the conterminous possessions of Great Britain. There he speaks of establishing the actual line. He knew, and everyone knew, that there was an actual line, undetermined, but nevertheless fixed under the terms of the Treaty. He knew that that line went around the heads of these inlets and of the coasts of which the United States was in possession, and he wTas ready and willing to go into a survey of that line for the purpose of establishing it and laying it down through the country. There is not the remotest suggestion that President Grant ever had in his mind at that time that Great Britain was making any claim to a new construction of the Treaty, based upon the meaning of the word " coast," which would date back to 1825 and make nugatory the interpretation that had been asserted by Russia and depended upon by the United States throughout all that long period. Then following the chain of thought as manifested by what was said and what was done, I next call attention to the Bill that was introduced into Congress for the purpose of carrying out what was suggested in the Message of President Grant. I read the first section only:— Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That for the purpose of surveying and marking the line of boundary between the territory of the United States, acquired by cession from Russia,, under the Treaty of March 30th, 1867, between the United States and Russia and the British possessions in North America, the President of the United States be and is hereby authorized by and with the advice and consent of the Senate, to appoint a commissioner and chief astronomer and surveyor to act with officers to be named by Her Britannic Majesty, and there shall also be appointed by the President such subordinate officers as are provided for by Section 2 of this Act 798 Can anybody say that Congress, when it passed that Bill, had any idea that there was a question of the interpretation of the Treaty different from the interpretation that has been put upon it all along? Is it not perfectly manifest that the only thing that was in the mind of Congress was the actual marking on the ground of the boundary line, and that the appropriation was intended merely for the purpose of defraying the expenses of a survey ? It is impossible to spell out of that anything which would sustain the present ARGUMENT OF JACOB M. DICKINSON. 887 British contention that there was a notice that there would be a claim at that time made by Great Britain to the ownership of any part of the coast, or of those inlets which are in dispute. With these propositions pending, Canada came forward and proposed to hear a part of the expense. Now, what expense ? Not the expense of a Commission, or a Tribunal, for the purpose of interpreting the Treaty, but, as expressed by them to mark out a boundary line. Now, if you connect this with the issue that was made, and the only suggestion that had been brought forward, it would be a strange and far-fetched conclusion to say that they at that time meant to manifest by this that they had any other thing in their mind except the mere question of survey and delimitation. Pursuing the same line of inquiry, Sir Edward Thornton, in a despatch to Earl Granville, on the 15th February, 1872, which appears on p. 168 of the British Case Appendix, says that the State 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 River Shoot, Stakeen, Taku, Iselcat, Chelkaht, Mount St. Elias, and the points where the 141st degree of west longitude crosses the Rivers Yukon and Porcupine. If Great Britain had intended to raise the question in 1872, as is now asserted, of the right of the United States to all of the coasts and to all of these inlets, would they have tolerated, without the most vigorous protest, this proposition coming from Mr. Fish, that the line should be laid down so as to cross all of these rivers, which would clearly carry it around all of the inlets now in controversy. Something was suggested with regard to this term Iselcat. The President. Iselcat is another name for Chilkat River. Mr. Dickinson. Well, I understand the way the name originated was, that the printing was rather indistinct on one of the maps and the "T; in "Tsilcat' (another name for the Chilkat) was taken for § I." The President. It was part of the Chilkat; it occurs in one of the maps. Mr. Dickinson. The " T " was understood to be an "I"; it was indistinctly printed on the map, and in that way it crept into the correspondence. The President. It does not matter. Mr. Dickinson. The suggestion of Mr. Fish was entirely in harmony with the Message of President Grant, with the proposed Act of Congress, and with what had -been said by Governor Trutch; but it was altogether out of harmony with any such contention as is now being put forward on the part of Great Britain, and so much out of harmony is it that if there had been in the minds of the representatives of Great Britain any idea that under this Treaty they had the right to these coasts and inlets, Mr. Fish's proposal would have been challenged then and there on the spot, and they would have said: " No, we cannot entertain any proposition in regard to 799 laying down these boundaries at points which would carry the line all the way round the inlets and the coasts which under this Treaty we are entitled to." 888 ALASKAN BOUNDARY TRIBUNAL. Growing out of this correspondence in 1873, a Survey was authorized by Canada, and Captain Cameron, as a preliminary step, was requested to report upon the cost and probable duration of the proposed Survey. When he entered into a consideration of this question he had before him the extract from the letter of Mr. Fish, suggesting that the line should cross the rivers that I have just mentioned. The request is on p. 173 of the British Case Appendix, from Mr. D. Christy, from the Department of the Secretary of State at Ottawa, to Captain D. R. Cameron, Boundary Commissioner, which is dated the 27th November, 1873:— I have, therefore, the honour to request that you will furnish me, for His Excellency's information, with a report on the above-mentioned heads. In connection with the subject, I enclose for your information an extract from a despatch from Her Majesty's Minister at Washington, giving the opinion of the United States' Engineer Department as to the probable cost and duration of the proposed Survey." Further down on the same page the extract reads:— * * * 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, Stikine, Taku, Iselcat, and Chelkaht * * * Now, there was no reservation at all by Canada when the commission was given to Captain Cameron to inquire into the cost of this Survey, but the character of the survey that he was to estimate was the one that was in line with the suggestion of Mr. Fish in regard to the boundary line crossing these rivers. In 1874 Governor Joseph W. Trutch, in a letter addressed to the Hon. D. Christy, forwarded, for the consideration of His Excellency the Governor-General, a copy of an address from the Legislative Assembly of his Province, praying that steps might be taken to have the boundary line between British Columbia and Alaska defined. Was there any evidence when the Legislative Assembly of the Province was so insistent on having: the boundary line established that there was the least suggestion made that there was to be an interpretation put upon this Treaty different from the one that had been put upon it hitherto? Everything that transpired there is entirely in line with the contention that we have made, and there is no break whatever in the continuity of thought with regard to this coast line from 1826, when Russia went into possession, down to the time of this alleged notice to the United States. There was an inclosure in this letter from J. Rowland Hett, the Clerk of the Assembly, dated 8th January, 1874, appearing on p. 50 of the United States' Counter- Case Appendix, which reads:— That whereas the recent discovery of rich and extensive gold mines in the , northern portion of the Province has greatly increased the importance and urgency of having the boundary between British Columbia and Alaska properly established and defined; and, whereas, the boundary of the 30-mile belt of American territory running along a part of the seaboard seriously affects vital questions bearing upon navigation and commerce, be it therefore resolved: That a respectful Address be presented to his Honour the Lieutenant-Governor, recommending him to urge upon the Federal Government the necessity of taking immediate steps for having the said boundary established and defined. It will be recalled that there had been difficulties with regard to how far the line went up the Stikine River, and these discoveries asaasaa* " ARGUMENT OF JACOB M. DICKINSON. 889 referred to at that time were in that part of the country, and this letter does not refer, and can by no possibility, from anything 800 we get from the context, refer to the right of navigation in the inlets. When Captain Cameron was entrusted with this survey, the Foreign Office sent certain inclosures to him. They are listed on p. 51 of the Appendix in the United States' Counter-Case. They were:— 1. The Convention between Russia and the United States, of April, 1824. 2. The Convention between Great Britain and the United States, of February, 1825. I The Treaty between Russia and the United States, of March, 1867. 4. Maps of the territory. No map was attached £o the Convention of 1825, and it is not known what map was used by the negotiators, but those now sent have been furnished by the Board of Admiralty. Sir E. Thornton will be instructed to ask the United States Government if they have any objection to furnish for your use, a copy of a report drawn up by the American Engineer Department Whatever map was furnished, it is very clear from what has been shown in this Case that there was no map at that time promulgated by which Great Britain had ever claimed any part of the coast and inlets in question, that if any one of the maps had been brought to the attention of the Commission, and if any of the Admiralty maps to which I have referred were furnished to Captain Cameron, they showed the interpretation, at least so far as that map could speak on the part of Great Britain, that this boundary line lay somewhere in the interior, and that it did not cross the coast and sever these inlets. Now I come to the report of Mr. J. S. Dennis, Surveyor-General of Canada, to the Minister of the Interior, at pp. 177,178, of the British Case Appendix. He states:— A letter from Captain Cameron, R. A., Her Majesty's British North American Boundary Commissioner, dated 29th November, 1873, together with other documents on the subject of the contemplated survey of the boundary between British Columbia and the Dominion lands, and the United States territory of Alaska, having been referred to the undersigned, he has the honour to submit the following report thereon:— In order to illustrate his remarks he annexes— 1. An extract from the Treaty of 28th February, 1825, between Great Britain and Russia, describing the boundary in question. 2. A tracing from the official map, published by the United States' Government, of the surveys of the North-West Coast of the Pacific, and showing the whole boundary from the head of the Portland Canal to the Arctic Ocean. That must have been the map which upon the request just read had been furnished for the purpose of sending to Captain Cameron. That map, or rather the tracing made by Mr. Dennis, appears as Map 27 of the British Atlas, and I call the attention of the Tribunal to that map showing that the boundary line ran around and included the heads of the inlets. On p. 178 Mr. Dennis 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 10 marine leagues back, and might further be agreed on 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. Now, what rivers does he refer to? He refers to the Chilcat and the Taku and the other rivers which were mentioned by Mr. Fish, And what does he mean by " coast" ? He means the coast washed 11 ■-. 890 ALASKAN BOUNDARY TRIBUNAL. by the waters of the sea where these rivers enter into the sea; and this ml 7 shows what idea and conception he had of the meaning of the word " coast." 801 On the 18th February, 1895, Major Cameron submitted his report. As has been shown, he was supplied with a copy of Sir Edward Thornton's despatch and with a Memorandum from Mr. Dennis. As has been shown, he had the United States map that he copied, and the suggestion of Mr. Fish. He also had before him another document of importance, the report of the Survey of General Humphreys, the United States' Chief of Engineers. I will read an extract from this on p. 52 of the Appendix to the United States' Counter-Case. General Humphreys says:— In view of the great cost of marking the line to the extent practicable, it might be found sufficient, for present requirements, to establish only those points on it necessary to determine the limits of territory upon the lands accessible to settlers and upon the navigable waters and rivers. This will materially reduce the time and expense. The points which appear to be necessary to fix are as follows, viz.:— 1st After the establishment of an observatory at Sitka, to fix the southernmost point of Prince of Wales Island, ascend the Portland Channel, and fix the point of the 56th parallel, at which the line leaves this channel. 2nd. To ascend the Staken, Takee, Chilkat, and Alsekh rivers, and fix the points of intersection with boundary-line. 3rd. To ascend the Yukon River, and to fix the intersection of that river and the Porcupine with 141st meridian of west longitude, which here forms the boundary-line. With all this information before him clearly indicating what was in the mind both of the United States and the Canadian authorities, Major Cameron says in his Report, p. 181 of the Appendix to the British Case:— The Treaty describes a line which, in its course northerly from Portland Channel to its intersection with the meridian of 141 degrees 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 mountains are not within 10 marine leagues of the sea, then, % parallel to the windings of the coast" at no greater distance than 10 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, 10 marine leagues in breadth. The coast line might furnish an exceptionally advantageous base for supplies; 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. I think Major Cameron afterwards changed his views, or rather .advanced a theory which really became the foundation of the present contention put forward by Great Britain, that the attention of the United States was brought in 1888 to the claim of Great Britain to the coast and waters now in dispute. This extract shows very clearly that by " coast" he understood the very character of coast that we are now contending for, else-why would he speak of " the meandering of a coast broken by numerous bays, long and narrow inlets, and river mouths." He had no conception then of the theory of a political coast such as is now made the foundation of this whole contention. Further on in that report, in connection with these surveys, he speaks of establishing a depot $% t{ie heaci <?f Lynn Canal? for the. ARGUMENT OF JACOB M. DICKINSON. 891 purpose of prosecuting these surveys for laying down the boundary line in that section. If he had understood the coast at that time to mean a coast crossing the headlands, then of course he would have known that under no circumstances could the boundary line have been laid down toward the head of Lynn Canal, more than 35 miles from such coast. He would not think, I suggest, of establishing a depot up there to make a survey in respect of that coast if he 802 had not understood that that was the coast mentioned in the Treaty, to the sinuosities of which a line was to be drawn parallel. The passage, in which he speaks of establishing a station at the head of Lynn Canal, appears on p. 182 of the Appendix to the British Case, but having already mentioned that, I will not read it, but simply refer to it. Sir Edward Thornton, on the 27th September, 1875, in a letter addressed to the Earl of Derby, said (p. 183 of the Appendix to the British Case):— 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. You will note that that letter was written in 1875, and notwithstanding the present claim that out of these proceedings a notice of the claim of Great Britain was brought forward to the coasts and islands in controversy, and the suggestion of Mr. Fish had been made fully three years before this time, even then Sir Edward Thornton speaks of the survey establishing points fixed on the rivers, evidently referring to the suggestion which had been mentioned throughout this whole correspondence. He did not intimate that he excepted any of these rivers, or claimed that they were rivers different from those which had been mentioned by Mr. Fish, and which had been reiterated in every letter which had any bearing upon that subject. Mr. Root. Mr. Dickinson, are the Canadian Sessional papers here that you referred to ? Mr. Dickinson. To what Sessional papers do you refer ? Mr. Root. They were referred to at the end of Major Cameron's Report in 1875. Mr. Dickinson. We have them at the office, and can have them brought down at the adjournment. Mr. W. A. Himsworth, Clerk of the Privy Council, transmitted to 7 «/ s the Minister of the Interior the Report of the Committee, inclosing with the letter a Memorandum bearing upon this question, which says:— An Order in Council was passed, on the 20th September, 1872, calling attention to the representations of the Legislative Assembly of British Columbia on this question, and praying that Her Majesty's Government would take the necessary steps to have the boundary determined and marked. In a letter addressed by the Under-Secretary of State for the Colonies to the Foreign Office, under date of the 14th October, 1872, Lord Kimberley expresses his concurrence in the desirability of having the boundary established. Sir Edward Thornton, in a despatch dated the 18th November, 1872, reported the result of his communication with Mr. Fish, the Secretary of State at Washington, and stated that while Mr. Fish was perfectly satisfied of the expediency of such a measure, he felt Congress would be unwilling to grant the necessary funds for the purpose. In the same despatch Sir gdyvard -..ILXi-UJ 892 ALASKAN BOUNDARY TRIBUNAL. Thornton stated that he had again seen Mr. Fish—two days afterwards—and had been informed by him that he had talked over the matter with the President, who was so impressed with the advantage of having the boundary laid down at once that he had expressed himself as disposed to recommend Congress, in his next Message, at its opening, that he should be authorized to appoint a Commission for that purpose. That is a Commission merely for the purpose of laying down the boundary line. I claim that it shows that from 1872 to 1876 the attitude of the Government of Canada had never changed 803 upon this question, and that there is nothing in it to show that at any time they conceived of any steps being taken except those incident to a survey and delimitation. I submit, therefore, with all respect to the very positive assertions made by Counsel on the other side, that there is absolutely nothing in the contention that, growing out of this correspondence, a notice was given by Great Britain to the United States, that there was a claim set up to the subject matter now under discussion. Mr. Root. Before you pass on, Mr. Dickinson, did you send for that copy of the Congressional papers ? Mr. Dickinson. We have sent for it. Sir Edward Carson. I think we have one, Sir, I know we had; I do not know whether it can be found. I asked to see it myself in consequence of the way it is printed in the Appendix, so we got the full report. There is nothing in the Appendix but what is printed here, and that is what it was taken from. Mr. Dickinson. Reference has been made to the Peter Martin case. I shall not go into the history of it, as ofr course, it is quite familiar to the members of the Tribunal how the controversy arose. It is significant, however, as showing an interpretation, put in the most formal wav that it could be bv these two Governments, that the ml ml 7 place where this assault took place was clearly within United States' territory. How much further the boundary line extended into the interior was not settled, but upon the issues, as made up, the determination of the controversy, was an adjudication between the two Governments upon that question.'^Instructions were given to Mr. Dennis, in a letter which appears on p. 224 of the Appendix to the British Case, for a survey of the Stikine, and upon p. 225 there is another letter, written on the very same day, which treated this Peter Martin matter separately. I will read the first paragraph of these instructions:— Referring to the instructions addressed to you from this office, bearing even date herewith, I have the honour, by direction of the Minister, to request you, in connection with the survey of the Stikine River, to ascertain and show on the map to be returned with your report, as accurately as possible, the jpace where the assault was committed by Peter Martin, who was recently convicted thereof in Victoria, and whose case has attracted public interest, from the fact of its having been claimed in the interest of the said Martin that the offence was committed in United States territory. On the 2nd November, 1876, the Secretary of State (Mr. Fish) had made a demand upon the British Government for the release of Peter Martin. The extract is quite lengthy, so I shall not read it, but I make reference to it in order that the Tribunal may read it. In this letter the demand for the release is distinctly made upon the ground that the assault occurred upon American territory. The assault occurred upon land and not upon water, and the demand was made ARGUMENT OF JACOB M. DICKINSON. 893 I squarely upon that issue, and, so far as the demand was concerned, there was no question raised about carrying him down the river through American territory, and in that way laying a ground for demanding his release. The pleadings were made up and the demand of the United States was put distinctly upon the ground that it was upon soil of the United States that the assault had occurred (p. 186). In his letter of the 10th January, 1877, Mr. Fish wrote to Sir Edward Thornton, on p. 198 of the British Case Appendix:— In the note originally addressed to you under date of 2nd November it was suggested that if it appeared that the assault was committed within the territory of the United States, Martin could not properly be tried for the offence with which he was charged, and that he should be set at liberty, and I 804 had the honour to request that you should call the attention pf Her Majesty's proper authorities to the case, that an examination of the facts might be made before the case was disposed of. He says in this letter that the assault occurred in what is considered to be Alaska Territory. ml m The demand of Mr. Fish was understood by the Canadian authorities in exactly the same sense in which it was made. Lord Dufferin, ml 7 writing to Lord Carnarvon on the 12th February, 1877 (p. 203 of the British Case Appendix), in referring to the demand made by Mr. Fish, 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; and that therefore he is, in the first place, entitled to his freedom as having been illegally held in custody by British constables with United States jurisdiction, and, in the second place, is not answerable for the assault to a Canadian Court. As the demand had been predicated by the United States upon the assertion that the assault was not committed upon Canadian soil, and that the spot where it occurred was on Alaskan territory, instructions were given, as I have just read, to Mr. Hunter to go and determine where the spot was, and whether or not it was in British or American territory ;• and Hunter made a report in which he determined where that spot was, and you see by looking at the wall map that that spot lies entirey without the lisiere as now laid down by Great Britain. I mean it is upon what is now claimed as British territory. The President. It is shown in the United States' Atlas, you know. Mr. Dickinson. Yes, this wall map is an enlarged copy of that map. The President. No, I mean Hunter's line. You have put it on your map in the United States' Atlas. Mr. Dickinson. That is the boundary line; that is another matter. That lies further in the interior than this.. The President. Yes. Mr. Dickinson. That is the conventional line that was agreed upon The President. Yes. Mr. Dickinson. under a reservation that no rights of the Parties should be affected by the adoption of that line. But the point I am now on is this: that the demand was made by the United States Government for release on the ground that that spot was on American territory. Hunter was sent to report whether that spot was within the American territory in connection with the consideration by the S. Doc. 162, 58-2, vol 7 27 - 894 ALASKAN BOUNDARY TRIBUNAL. Canadian authorities of releasing Peter Martin. Between themselves there was quite a correspondence as to the ground on which the release should be placed, and Mr. Edward Blake said (British Case Appendix, p. 210) :— 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 duly with the affair on the shore; assuming, without any special reference to the matter, the legality of the transport by the river. 805 He wanted to save the larger question of the right to trans- 'port down the river, and his advice was that it be put exactly on the basis on which Mr. Fish had made the demand. Then the Earl of Carnarvon wrote to the Earl of Dufferin on the 16th August, 1877 (p. 231 of the British Case Appendix) :— '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. There he makes the opposite suggestion to that of the ^Minister of Justice, as appears on p. 233 of the British Case Appendix:— 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 inquiry, it appears that Marin 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. That shows that the officials, as between themselves, were undecided as to the grounds on which they would put the release; but when we come to the communication made to the United States, which appears in the United States Counter-Case Appendix, p. 87, Mr. Plunkett writes, 25th September, 1877:— With reference to the note which Sir Edward Thornton addressed to Mr. Fish on the 11th of last January, I have the honour 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. The Attorney-General said of this case at p. 314 of his argument:— But in the end, although Peter Martin was given up, there was no admission as to the boundary. I submit that what happened does not amount to any admission which could be used against the British Government as to the limitations at that point. When Mr. Fish made his demand on the ground that that was American soil, and when, as was shown by Mr. Edward Blake, it was understood distinctly that it was not because he was transferred down the river, but because it occurred upon American soil, and when the issue was thus put, and the release was made without any explanation, or without any qualification, it must be understood that the judgment must conform to the pleadings, and that when the release was made it was made in conformity to and on the ground stated by Mr. Fish, as understood by the Canadian authorities. There could not be any higher or more solemn act of interpretation by these ARGUMENT OF JACOB M. DICKINSON. 895 Parties that certainly that point was American soil. They did not determine how far the line went back of that. The Hunter line was agreed on as a provisional line with the understanding that the rights of the Parties should not be affected. I call the atention of the Tribunal to where the boundary laid down by Great Britain is with reference to this place. They bring it much nearer to the coast, and put this point, which has been adjudged by the solemn acts of the Parties to be in United States' territory, into British territory. If my position be sound upon that, that certainly disrupts and breaks up the whole of the British mountain line at that point, and they have to go back and start over somewhere to the interior of that line before they can begin to make a connection of peaks, and thus constitute, as they claim, a mountain crest in accordance with the terms of the Treaty. Mr. Aylesworth. If you are passing away from that incident, Mr. Dickinson, I want to point out to you that Hunter's Report 806 by no means stated that the place of the assault was within American territory. He stated that it was eight and a-half miles lower down the river than the line he had drawn, but he never undertook to delimit the boundary, and he had no authority to do so. Mr. Dickinson. I quite agree that he had no such authority, but the Canadian Government had authority, and when the demand was made of the Canadian Government on the ground that it was in American territory, and he made his survey and located the spot, and then the Canadian Government released him, without any further explanation to the United States Government, that was a declaration by the Canadian Government that it was in American territory. I admit that Mr. Hunter had no authority to construe this ml ml Treaty, that he had no authority to say where the boundary line was, but he, as a surveyor, had authority to go there and fix the spot, and when he made the report that he did, and then the Canadian Government acted upon the report and made no explanation, our Government had the right to say that that interpretation had been put by Canada upon the proposition. Mr. Aylesworth. M. Laflamme, as Minister of Justice, expressly reserved all rights in that regard just as all rights were reserved when Hunter's line was adopted as the Conventional boundary. Mr. Dickinson. I admit that they reserved it as within their own conferences. That is true as between themselves. They hesitated ml upon which ground they would put it, and I have read the extracts which show that. Mr. Turner. Mr. Dickinson, let me read to you what the Mihister says. He said that the Report of the Exploratory Survey Mr. Dickinson. What page are you reading from ? Mr. Turner. P. 233 of the British Case Appendix— • The Report of the Exploratory Survey of Mr. Joseph Hunter, recently made under instructions from this Government, renders it tolerably plain that the affair on the river bank took place within the United States' territory. Mr. Dickinson. I will read Hunter's Report. Hunter's Report appears on p. 231. He says :— The precise spot where the assault took place could not be identified, as some of the trees in the locality had been cut down subsequent to September last, and as the ground at the time of the survey was covered with snow the SS P*RH* g^iags 896 ALASKAN BOUNDARY TRIBUNAL. spot (B) pointed out by Beegan, if not correct, is believed to be within 100 yards of the actual spot where the assault was committed. This point (B) is 13 miles from the mouth of the Stikine and 8£ miles within the United States' Territory of Alaska, as defined by the boundary line as shown on the tracing above referred to. He located the spot, and they knew where it was, and as has been pointed out, the Minister of Justice himself understood that that was within American territory. Mr. Aylesworth. According to Hunter's line. Mr. Dickinson. And the prisoner was released and released unqualifiedly upon the assertion made by Mr. Fish that he was on American territory. It seems to me that the issue is clearly made out, that the judgment must conform to the issue, and that it cannot 807 be said now, so far as the United States is concerned, that any reservation was made. The United States had a right to say that that was an interpretation at that time put on the matter by the Canadian authorities so far as reference to that point was concerned. I was about to address myself to the survey of the Stikine River and the adoption of the provisional line in 1878. I regard that as of no very great importance from the fact that the Stikine River was upon the general coast and the fixing of a line there would have no special bearing upon the interpretation of the Treaty so far as inlets and their coasts are concerned; and I beg leave to refer the Tribunal to what is said in the printed argument of the United States upon that question. This brings me to what is insisted on with more seriousness on the part of Great Britain, certainly with more earnestness, and that is the alleged notice given by Great Britain to the United States by means of the letter that was written by Dr. Dawson to Sir Charles Tupper, and its transmission by Mr. Dall to the United States authorities, and its publication in the Congressional papers. With regard to this the Attorney-General says, on p. 315 of his Oral Argument:— It is a very important point, and I rely upon it most strongly. Now, from 1878, when those incidents are closed, we pass on to April, 1884, where there is a very important despatch of that date from Mr. Dall, of the United States' Geodetic Survey, to Mr. Dawson, of the Geological Survey in Canada. It is well to consider when this second alleged notice took place what had transpired in this region so far as the occupation of the United States was concerned. I shall deal with it only in a general ml *—> way, because I expect to take up later the acts of occupation more in detail, but if I have succeeded in convincing the Tribunal that there was nothing in this correspondence from 1872, and in the Hunter survey which brought notice to the United States of any such claim, then ml CJ ml 7 the occupancy and acts of possession which took place between that time and the "next period in 1888, certainly can be looked to as show- ing*the interpretation put upon the Treaty by the United States, and the non-interference of Great Britain when these acts necessarily must ml have been known to her, can be looked to as showing a like interpretation on her part. In the period from 1872 to 1888 the following things had occurred: United States vessels every year, 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, and its jurisdiction was recognized by the Indians, mm ARGUMENT OF JACOB M. DICKINSON. 897 The revenue service of the United States throughout that period was in effect over all 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 ml ml ritizens and under the auspices of the United States. In 1883 the 3ritish Government, in compliance with its request therefor, received he annual reports of the United States Coast and Geodetic Survey for the years 1874 to 1879 inclusive, which showed that the coasts md waters in question were treated as United States territory. In 884 a civil government was established for Alaska, and Governors rere appointed who from that time exercised undisputed jurisdiction ver all the territory in question. The United States mineral laws were extended to that territory n 1884, and in 1885 regulations were made covering all of the ter- itory in question, and in the same year mineral locations were made n the east side of Berners Bay. In 1886 a location was made on jynn Canal, 12 miles north of Berners Bay. During that period the United States Courts exercised unquestioned jurisdiction 08 over all of that territory, and frequent arrests were made, and Indians and others were prosecuted and imprisoned. In 1883 salmon cannery was constructed at Pyramid Harbor by American itizens who recognized the United States Government as having irisdiction over that territory. In that year 3,800 cases of salmon ere canned by one company at Pyramid Harbor. A census was iken of the Indians in 1880. A post office was established at Haines t 1882. In 1885 a public school was established at Haines by the Apartment of the Interior. The United States, Canadian, and ritish maps during this period declared that all of this territory ilonged to the United States. Throughout that time, unless we can say that these acts of 1872, hich I have just discussed, are.a notice of a claim, Great Britain wer served any notice or any protest of any character up to the me of the alleged notice of 1888. Now, I submit that even if it could be shown that the claim as put >rward by Dr. Dawson was not, as I shall undertake to prove, a ere private exploit of his own, but was the act of the Government, n it be possible that, after the interpretation from 1826, and after e sale to the United States and the solemn taking possession of at territory, after the publication repeatedly of the Admiralty aps which indicated what were British waters—and that was the congest declaration the Government could have made upon that sub- st—after civil government had been extended, and the jurisdiction the Courts was in full operation—that after all these things had ken place, the Dawson notice can retro-act and overthrow the inter- etation that up to that time had been put upon the Treaty by all ese Governments? How much possession and how much interpre- mmm 898 ALASKAN BOUNDARY TRIBUNAL. tation, and how many years of interpretation, and how many repeated declarations on the subject is it necessary to have before we can have quiet and rest upon any such point? It does seem to me that if you take the history of this question of interpretation from 1826 down to 1888, when they say the question was raised, that no Court considering it would permit a claim at that late day to retro- act and wipe out and make nugatory all that had been done, and done so solemnly and so publicly, throughout that long period of time. But, as we insist, the Dawson letter, and what was was done under the Dawson letter, does not come up in any sense to the dignity of a declaration upon the part either or the Canadian or of the British Government, and there was no notice whatever to the United States that either of these Governments made any claim to these inlets or these coasts. Now, this Conference was initiated by a letter from Willisana H. Dall on the 24th April, 1884, to Dr. G. M. Dawson, which appears on p. 248 of the British Case Appendix. He says:— 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 10 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. He never understood that there was anything except physical difficulties in the way. He knew probably as well as any other man at that time the mountainous character of the country traversed by glaciers, and the almost utter impossibility of getting over it and surveying it. The country was then of comparative unimportance and comparatively valueless. He did not think that the im- 809 mense expense required by a survey of that sort would be justified. And when he speaks of the impossibility, why, he speaks of it, of course, in reference to-the question of expense; and, indeed, from what has been shown on these contour maps, from what we know from the depositions as to the character of that country, I believe that it would be almost a prohibitory matter, so far as expense is concerned, of actually laying down that line if it should be laid down 10 marine leagues from the coast in the interior. But the question of expense has nothing to do with the question of right; and because it would be difficult it would be no reason why the terms of the Treaty should be changed. Wherever that line is—if wTe have to go in a balloon to get to it— the British would have a right to go to it on their side, and the Americans would have a right to go to it on their side. The question of difficulty and sinuosity and expense has nothing whatever to do with the question of determining right; and you cannot wrest right from the Treaty simply on account of the practical and physical difficulties which are presented. ARGUMENT OF JACOB M. DICKINSON. 899 It is said that this letter, or rather the views of Mr. Dall in this letter, were adopted by Mr. Bayard and by Mr. Phelps. Well, in a certain sense they were; in the sense in which Mr. Dall meant them they were adopted. Without going into details—for I desire to hasten through this correspondence with which the members of the Tribunal are perfectly familiar—a close analysis of the letters of Mr. _ ** ml Bayard and Mr. Phelps will show that the very difficulties that presented themselves to their minds were difficulties which arose out of drawing the line parallel to the sinuosities of the coast that we are now contending for; and, if they had thought of a coast line such as is now presented on behalf of Great Britain, the ve^ difficulties that they so much emphasized could not have existed. The whole theory of the British Case is that they have removed the difficulties by taking a line parallel to which it would be practicable to draw a boundary-line. But Mr. Dall, Mr. Bayard, and Mr. Phelps wrestled with that question, and with the difficulties presented by it under the coast theory that the United States now stand on. The coast they had in mind parallel to which the line was to be drawn was all of that coast, with all of its indentations and with its deep inlets, and they understood that this line being drawn parallel to such a coast would have to be carried through an almost impassable mountain district. There is not a word in either of the letters written by Mr. Bayard or Mr. Phelps that lends any colour to the theory that they for a moment at that time put forward the United States as standing upon any different interpretation of the Treaty than that upon which we now stand. I travelled a little ahead of the line of thought I was pursuing—I will come back to it. It is the exact relation that Dr. Dawson bore to the Canadian Government, and whether or not his act can be taken as an official act. I went ahead to remove the conclusion that has been based upon the acts of Mr. Bayard and Mr. Phelps. In the British Case, p. 94, it is said— Again, in 1888 the Canadian Government forwarded a further protest to Her Majesty's Government for communication to the United States' Government against a rumoured attempt of the United States to exercise jurisdiction at the White Pass, claiming it as British territory; and in the same year, 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 2nd March, 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 international importance, and should be put in shape for public information." This interview between Dr. Dawson and Mr. Dall came about in purely an informal way. The correspondence shows that neither was accredited by his Government for the purpose of making any 810 representations of an official character in regard to this Treaty. They were simply brought together as scientific men, in the hope that they by a conference might suggest some course out of these perplexities. Dr. Dawson never went to Washington authorized by the Canadian Government to put forward any claim which involved a construction of this Treaty at all; and when we look to the report w m m—ujum 900 ALASKAN BOUNDARY TRIBUNAL. made by Mr. Dall, he states that the conference was purely informal. There was no pretence on the part of Dr. Dawson that he was sent there for the purpose of making a claim of this character. Indeed his letter written to Sir Charles Tupper on the 11th February, 1888, in which he exploits the views of Major Cameron, and states that those views might be adopted, is so far as we know the first intimation of attention being brought to the officials of the United States of any views entertained upon that subject by Dr. Dawson. Now, if Dr. Dawson had gone to Washington authorized by the Canadian Government to put forward that claim, why would he have been writing a letter on the fourth day of that conference for the purpose of trying to convince Sir Charles Tupper that the views advanced by Major Cameron in regard to this Treaty were probably the correct views? But was his suggestion acted upon? Did the Canadian Government, when their attention was called to Major Cameron's view of the Treaty and to Dr. Dawson's view of the Treaty, then put forward in any formal way any such claims as these? So far as the United States Government is concerned, they 7 ml had nothing before them except simply a treatise upon the subject written by Dr. Dawson and addressed to Sir Charles Tupper. This letter, setting forth this theory—the mere theory of a private individual—was communicated to* Mr. Dall, ajid in that way it found its way, together with the letter of the 7th of February, into a Congressional publication. It is said that this letter challenged the attention of Congress to the claim of the Canadian Government upon this-subject.- How could Congress, looking at that letter, written four days after Dr. Dawson came to this interview, which was purely an informal interview, have understood from that that he was in any way accredited or authorized by the Canadian Government to put forward such claim ? Could Congress or the United States Government have acted upon any such notice as that? Suppose they had taken it up in a formal way, and brought it to the attention of the Canadian Government, the Canadian Government could very well have said, " That is merely a private view of Dr. Dawson." There is no evidence that the Canadian Government adopted it or sanctioned it any way. It got into the hands of Mr. Dall merely through the courtesy of Dr. Dawson. Mr. Dall transmitted it to the President, and the President with a mass of other papers laid it before Congress. But the Government of Canada and the Government of Great Britain cannot be bound in this way by the acts of a mere private citizen. There is full evidence of the view which Congress took of it if we look to the publication referred to and to these two letters of Dr. Dawson. You will see on p. 23 of the document containing the Message from the President of the United States, transmitting the Report upon the boundary line between Alaska and British Columbia, this heading:— Supplementary Memorandum on the views of General Cameron as submitted in the letter of Dr. George M. Dawson to Sir Charles Tupper in regard to the Alaskan boundary, by William H. Dall. That shows the construction that Congress put upon it. They were regarded as views of General Cameron. Governments do not act in matters of such solemn import in that sort of loose and irregular way. If Great Britain had desired, in 1888, to put an interpretation ARGUMENT OF JACOB M. DICKINSON. 901 upon the Treaty different from the uniform interpretation that had been put upon it from 1825—if Great Britain, with a knowledge of the occupation of the United States for such a long period of that territory, and the .extension of its jurisdiction, civil and military, over these waters and' coasts, had desired to question its rights, can it be for a moment said that she would have sent Dr. Dawson in an informal manner, without being accredited, merely to meet a scientific man for the purpose of solving mere questions of per- "811 plexity arising from the physical difficulties of the country? Would they not only have sent a man unaccredited, but authorize him to write a letter, not to the United States Government, but to Sir Charles Tupper, in which he does not make a formal demand or give a formal notice, but merely exploits the views of another man, and then have Sir Charles Tupper not transmit that letter to the United States' Government, but let it be furnished by courtesy to Mr. Dall in order that he might have a full record of what had transpired between him and Dr. Dawson? Is it in that way that two great Governments are supposed to have acted upon a question of so much moment as this? But no matter what was the purpose of the Canadian Government, if they intended to put forward that claim in that way, it is very clear that the United States had no right to understand it in that sense; and it is clear, as has been shown from this record, that they did not understand it in that sense. I think it is a mat- ms ter of the utmost significance that Dr. Dawson at that time exploited all of Cameron's views, although Major Cameron brought to the attention of the Canadian Government all his views in his Report of 1886. Tt shows that their minds at that time were challenged to the question—challenged to every .point of controversy that is now raised in this Argument; for if you will turn to the Cameron Report of 1886 there is not a view advanced to-day by the British Government to sustain its contention that is not advanced there with more or less elaboration. He was a pioneer of thought in that direction; but his views were not adopted by the Government. The best evidence that they were not adopted is that although attention was challenged to every point now in controversy, it never followed it up in any manner; it never followed it up by any demand upon the American Government or by any question of its right of occupation. On the contrary, from that time, with its mind thus addressed to the subject matter, it continued to issue its maps as it had hitherto issued them, drawing the boundary line all around that territory that is now in*controversy under the fifth question, thereby making a public declaration to the world that it was American territory. So far from being able to predicate anything upon the act of Dr. Dawson the record shows that his act was in effect disavowed. If he sought to act for the Canadian Government, it was never followed up, and never adopted until after a long period, when public opinion in Canada became crystallized, and became so forceful that the Government in 1898 gave its sanction to the views which in 1888 were merely ones of private exploitation by Major Cameron and Dr. Dawson. Of Major Cameron's Report of 1886 (a copy of which has been laid before the Commission) the points now relied on in Argument were then brought to the attention of the Canadian Government. .• ; xvmsu 902 ALASKAN BOUNDARY TRIBUNAL. But when they were brought to the attention of the Canadian Government were they published to the world? Not at all. Only a partial Report was published, and that portion of it which distinctly set out and put forward the position now sustained with so much learning and so much vigour was omitted from'the publication. Can it be said that, if Canada at that time was setting up any such claim as that, it would not have published that Report in full in order that attention might be brought to its contents and to the claim of the Canadian Government? The fact that these points were left out of the official publications is as strong a declaration as could be given of the interpretation then put by Canada upon this Treaty in regard to these inlets and the coast that border them. Dr. Dawson in his Report makes no pretence of ever having put forward any such claim. In his letter to Sir Charles Tupper of the 11th February, 1888, he states that he had several informal conferences with Mr. Dall for the purpose of arriving if possible at some conventional line which might be recommended as advantageous to both countries. Is it to be supposed that, in a matter of this importance and magnitude, if he went there authorized to put forward this claim on behalf of the Canadian Government, or if after he got there he had any authority, he would have made a report of what he did, in which he said nothing whatever about putting forward the claim, and stated that the conferences were purely informal ? Dr. Dawson says in this letter, British Case Appendix, p. 262:— I found, however, that Mr. Dall was not disposed to regard with favour any suggestion which would involve the cession of any part of the coast line of Alaska. 812 The conventional lines suggested by him ran so as to cross Lynn Canal towards the head, and give a part of that coast to Great Britain, and so far as his representations to Mr. Dall were concerned he shows that in this letter he regarded that as coast of Alaska, and treated on that basis when he had up the question of a conventional line. Mr. Cameron had advanced this idea of a political coast, and a jurisdictional coast; and he based his theory upon what he stated was an uncontroverted principle of law. But, when Dr. Dawson came to discuss with Mr. Dall the real matter that brought them together, he treated the northern part of Lynn Canal as a part of the coast of Alaska. And he did not so far as we know claim to Mr. Dall that the coast in the Treaty was such a coast as is now put forward by Great Britain. The next act that is relied upon by the* British Government as bringing attention to their claim in regard to these bays and inlets grows out of what is known as a reconnaissance by Lieutenant Schwatka. Lieutenant Schwatka was sent into that country for a particular purpose. He was sent not by the State Department, but by the War Department, for the purpose of investigating the character of that country from the standpoint of its military characteristics. In his Report he made a reference to Perrier Pass as being within the United States territory. WTien this fell under the observation of the British Government the attention of the United States' Government was called to his statement. The Report was communicated to the Colonial and For- ARGUMENT OF JACOB M. DICKINSON. 903 eign Office, and Lord Salisbury, in a letter to Sir Lionel West on the 27th August, 1887, called 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 ' ml from the boundary line as always claimed by the United States. In this communication, which appears upon p. 256 of the British Case Appendix, Lord Salisbury said:— It will also be seen, on referring to pp. 20 and 47 of the Report, that Lieutenant Schwatka has indicated two points, viz., Perrier's Pass and 140 degrees 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 Lieutenant Schwatka in any way fix where the line should be drawn. Lieutenant Schwatka, in the course of his military reconnaissance in Alaska, appears to have traversed British territory for a considerable distance; but, so far as Her Majesty's Government are aware, no intimation of such a desire on his part was conveyed to any of the British authorities. They do not attacli any importance to this fact, and no doubt, had their acquiescence been asked, it would not have been refused. 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 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. Now, he refers particularly to the points referred to by Lieutenant Schwatka. These points had no reference whatever to Lynn Canal, no reference whatever to the coast of Lynn Canal, nor to any of the inlets and waters now in dispute. What sort of a representation was made by Sir Lionel West to Mr. Bayard ? It is set out on p. 257 of the Appendix to the British Case, 14th September, 1887. He says:— I have the honour to inclose to you herewith a Memorandum calling the attention of the United States' Government to certain points in the Report made by Lieutenant Schwatka, of the United States' Army, of a reconnaissance made by him in Alaska, and to observe at the same time that he traversed British territory for a considerable distance without any intimation having been given to the British authorities of his intention of so doing. 813 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. Can it be said in any way that this has any appliecation to Lynn Canal or the coast of inlets, or that there was any notice brought to the United States of any such claim as is now put forward ? The next act that they rely on was in 1888 in regard to the Wliite Pass trail. On the 19th June, Mr. A. M. Burgess wrote to Sir John Macdonald (British Case Appendix, p. 264) :— Captain Moore of Victoria, British Columbia, who was for some time a member of Ogilvie's expedition to the Yukon, has reported to the Government of British Columbia that he believes 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 be 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 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 904 ALASKAN BOUNDARY TRIBUNAL. to protest against the granting of any rights by the United States or Alaskan Governments at the heads of these inlets. Would it not be well to communicate confidentially with the British Minister at Washington asking him to inform the Government of Canada in case he finds that either the United States or Alaskan authorities are granting or proposing to grant privileges of the kind mentioned. Mr. Turner. What page is that, Mr. Dickinson ? Mr. Dickinson. Page 264. Here is direct attention brought again to the Government of Ottawa by Mr. A. M. Burgess of what he states is the claim to the head of the canal. Ajiyone would suppose, if Canada or Great Britain at that time entertained any idea of putting forward any such claim, that when their attention was thus directly challenged to it, and a protest was about to be made, the protest would at least have put the United States fairly upon notice as to what it was intended to affect. The notice addressed to Mr. Bayard by Sir Lionel West is on p. 266, British Case Appendix. He says:— I have the honour to inform you that the Marquis of Salisbury has requested me to bring to your notice a rumour which has reached HerMajesty'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 rumour is unfounded, as the territory in question is part of Her Majesty's dominions. Is it not absolutely conclusive that at that time the British Government never intended to take up and lend sanction to any such claim as that now put forward ? This letter of Mr. Burgess had been communicated and a protest had been asked for; but, when we come to look at the protest, why, it is like the play of " Hamlet " omitting Hamlet. Nothing on earth was said about the suggestion that was made by Mr. Burgess that Canada was claiming these waters. The truth is, that there is not a word in this record, down to 1898, that shows that anybody, except citizens of Canada, put forward any such claim. Governments are not represented by citizens in making claims, and they are not responsible for their citizens in making claims on other Governments, or for their acts, and such claims cannot be turned into official acts. And here I will make a remark that I intended to make in the opening, and that was that in publishing a letter of Dr. Mendenhall we by no means intended to adopt the strictures there made by him. I presume that no one will suppose that we did. There were cer- 814 tain views presented by him as a scientist in that letter. We put that letter in evidence on those matters. If we had put forward a garbled version of the letter with omissions, some question might have arisen. We never supposed for a moment that any one would assume that the United States Agent or Counsel were in any way giving sanction to the private views that were expressed by Dr. Mendenhall in regard to British diplomacy any more than it is to be supposed that the Canadian Government merely by remaining silent was giving acquiescence to the various views that were put forward from time to time by the papers and by individuals in Canada in regard to this territory. When this record is examined it will be found that Major Cameron was the originator of the idea, and after it was taken up by Dr. Dawson it, no doubt, was espoused by a great many individuals in Canada, and doubtless by the papers of Canada; but a Government does not speak that way, and a Government is not bound in that ARGUMENT OF JACOB M. DICKINSON. 905 way. Where the United States has been in possession for such a long period of time and it is alleged that notice has been given, it has a right to expect something more than the mere utterances of private citizens. Mr. Bayard never understood that such notice as has been alleged in regard to the White Pass trail was given to him. He answers on the same page:— The rumour 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 information 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. We come next to the so-called protest of 1891. What had transpired up to this time, so far as occupation was concerned? The alleged notices up to this period were so vague, indefinite, and unofficial, that it could not be assumed that they were the acts of the British or Canadian Government. The jurisdiction of the United States over all of that territory was uninterrupted and unquestioned. Nothing appears to have transpired upon which a protest is sought to be based from 1888 until 1891. If that was a protest and a claim in 1888, would the British Government have rested contented with putting it forward in the way in which it had been put forward through this letter of Dr. Dawson, and can it be supposed that it would have rested upon any such assertion of right as that? We all know that when Russia issued the Ukase of 1821, the British Government never rested until it brought that matter to a determination. It issued at once a most vigorous protest. If it believed in 1888 that Dr. Dawson had represented them in putting forward this claim—would it have gone to sleep on its rights, and left the United States in doubt as to the character of the claim ? Nevertheless, that was exactly what was done, because it is admitted that nothing transpired between 1888 and 1891 which would lend any colour to the claim that any further notice or demand or protest was made. 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 jurisdiction over every part of that territory. No one living there during that period ever questioned or ever heard questioned—as this record shows—the sovereignty of the United States. In 1889 the value of the canning improvements in and about Pyramid Harbor aggregated about 100,000_ dollars, and there were canned annually about 55,000 cases of salmon caught in the Chilkat River, and all this was done by American citizens. In 1887 a settlement by American missionaries was made at Haines Mission, and about twenty-five Aonericans lived there the year through. In 1890 F. H. Poindexter was a United States Justice of the Peace at Pyramid Harbor, and exercised jurisdiction in the vicinity. In 1888 and 1889 the town of Skagway was settled, and the entry of the land upon which that settlement was made was in 1888. ' 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 and this, I believe, was the third census taken of AJaskan Indians, and this census included those living at Berner's 906 ALASKAN BOUNDARY TRIBUNAL. Bay, at Chilkat, Chilcoot, Klukwan, and Pyramid Harbor. During all this time nothing is alleged in the way of questioning the 815 right of occupation except the correspondence from 1872 on to 1876, and the alleged demand or notice brought to our Government through the act of Dr. Dawson, the Schwatka affair and the affair of the White Pass trail. Now, on the 5th of June, 1894, Sir Julian Pauncefote addressed a communication to Mr. Blaine, which appears on p. 268 of the Appendix to the British Case, in which he said:— The Governor-General of Canada has lately brought under the notice of Her Majesty's Government the following passages in the last published report of the I United States Coast and Geodetic Survey," in which the Director writes as follows:— " By recent Congressional enactments, a preliminary survey of the frontier line 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 56th 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 i41st degree of west longitude, and thence due north to the Arctic Ocean, a total distance of about 1,400 miles." The Dominion Government have expressed the 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. It says " the boundary line at this point." The-4wo points mentioned are through the Portland Canal to the 56th degree of north latitude, and then a line following as nearly as practicable the general trend of the coast at a distance of about 35 miles from it. Certainly if that was intended as notice that there was any dispute with regard to these inland waters and coasts, it would not have been framed in such an indefinite wav. Sir Julian Pauncefote would, in the most explicit terms, have stated the claim of Great Britain, and would not have left it to be spelled out in such a vague letter as this. Indeed, if you look to the letter and the context, it is very plain that it could have no reference whatever to any dispute in regard to these inlets and the coast. He says that there has been considerable correspondence, and that the actual boundary line can only be properly determined by an International Commission. There never had been any correspondence between these two Governments in regard to these inlets and the coasts along them, or in regard to the interpretation of the Treaty in respect of the use of the word I coast." It is very clear that that letter was never intended to bear any such burden as they now seek to put upon it. The next claim put forward in the British Case is the effect of the Convention of the 22nd July, 1892. That has not been dwelt upon by the Attorney-General, and I take it that after reflection probably he thought that it was such an attenuated claim that he would not sustain it by the weight of his opinion. There is one matter in connection with the Conference in 1892 to which I desire to call attention, and that is the letter of Sir Mackenzie Bowell, which was read, and the letter of General Foster, which Sir Mackenzie Bowell's letter is put forward for the purpose, I presume, of contradicting. But so far from contradicting the statement made by General Foster in ARGUMENT OF JACOB M. DICKINSON. 907 his letter as to what transpired at the Conference of 1892, the letter of Sir Mackenzie Bowell should be taken as entirely confirmatory of it The letter of General Foster appears upon pp. 122 and 123 of the Counter-Case Appendix to the United States—the extract I read is on p. 123. He says:— Objection was made on the part of the United States— This is referring now to the Conference that took place— that the existing difference of views was not of such a character as to call for more than a joint survey and report, which would enable the two Governments to agree upon the fixation of the boundary. 816 Now, that is entirely in accord with our contention through out, that there had been a controversy always in regard to where the line should be in the interior; but there had been no controversy so far as the solution of the fifth question is concerned— none whatever in regard to the ownership of these waters and the coast. Now, it goes on:— The discussion was of very brief duration, and related mainly to the questions which had arisen as to the point where the line crossed the Stikine River and the inconvenience occasioned by this existing uncertainty; no assertion was hinted at of a British claim to the heads of the inlets or of any rights on Lynn Canal. When the Conference convened the next day, I submitted a substitute for the British proposal, which was in all respects embodied in the Treaty of the 22nd July 1892, and this substitute was accepted without objection. This Conference of 1892 has been relied upon as bringing to the attention of the United States Government the claim of Great Britain. This letter of General Foster, written in 1899, and put forward by us as evidence in this Case, stated in the most explicit terms that at that Conference no assertion was hinted at of a British claim to the heads of the inlets or of any rights to Lynn Canal. Manifestly this statement made by him was regarded as a matter of very great importance, and the letter of Sir Mackenzie Bowell was produced to overcome the very clear and explicit statement made by General Foster. So far from this letter contradicting General Foster I say the fair interpretation of it is that his statement must be regarded as absolutely true. Sir Mackenzie Bowell writes from Ottawa, 3rd August, 1903. I will read the third paragraph. Mr. Lodge. What page? Mr. Dickinson. Well, it is not in the record. The President. It is in the Attorney-General's speech. What is the page ? Do you remember the page, Mr. Dickinson ? Mr. Dickinson. I do not, but I will read the passage that I have here:— As a member of the Canadian Government at that time I can have no hesitation in saying that I always understood there was a clear divergence of views between the Governments of Great Britain and the United States on the subject of the Alaska boundary, and I confess to some surprise on learning that that statement is called in question. Who has ever called that statement in question? We all know that there has been a divergence of views as to where this line should be in the interior. General Foster never said in his letter that there had been no divergence of views, but what he said explicitly was that at that time nothing was said and no assertion was hinted at of A m 908 ALASKAN BOUNDARY TRIBUNAL. a British claim to the heads of the inlets or of any rights on Lynn Canal. Now, I read further:— While it is true that the Conference was informal in the sense that its members were not Plenipotentiaries, it was none the less a meeting called for the purpose of acquainting each other with the views of our respective Governments on the several questions we met to discuss. If it was called for that purpose—for the purpose of acquainting the representative with the views of the respective Governments, would you not expect when Sir Mackenzie Bowell put this letter in in answer to General Foster's letter that he would go on and state that General Foster was niistaken, and that Great Britain at that time did entertain claims in regard to these inlets, and that its views on this question were communicated and discussed? 817 But you look at this letter in vain for any such statement as that. He says:— From the records of the first day's proceedings (the 10th February, 1892), you will observe that the very first question discussed was that of the Alaska boundary, for it is there recorded that | Sir John Thompson stated what the subjects to be discussed were, and being asked by Mr. Blaine to mention the points which are involved in the Alaska boundary question, stated what seemed to be the various points involved." Now, if Sir John Thompson had mentioned the point that General Foster said was never mentioned, would you not expect that in this letter it would be stated that one of the points mentioned was that Great Britain made a distinct claim to the heads of these canals? He does not make that statement, but he proceeds*^— I find a Memorandum in Sir John Thompson's handwriting which reads as follows:—" As to the boundary from the 56th parallel. 1st. The boundary is to be the mountains (according to our contention the summit of the mountains nearest the coast)." That was no claim in regard to these interior waters or coasts. All other directions are subordinate to this. That is to say, whether you choose the nearest mountains, or those further off. 2nd. Where there are no mountains nearer than 10 marine leagues from the ocean, the line is to be parallel to the coast. It is inserted here: "(ocean coast), and 10 marine leagues therefrom." He does not explain what " ocean coast'' is. We say that under the terms of this Treaty " ocean " and " coast" are the same thing, and, that so far as this Treaty is concerned, Lynn Canal is just as much ocean as Gastineau Channel. Can it be said that by some sort of a meaning to be evolved out of the use of the words " ocean coast" Great Britain in this way distinctly put forward its claim ? Surely not. Then he proceeds:— You will observe in the minutes of the 12th of February, 1892, that | the various contentions relating to the boundary were then explained," which clearly implies the existence of a divergence of views of the respective Governments, and that each was made acquainted with the other's claim. We look in vain to see what these contentions were that were set out; and so far from stating that any such claim was made, he asks you to assume by implication that it was made, because there is a statement in the Protocol that the various contentions relating to the boundary were then explained. ARGUMENT OF JACOB M. DICKINSON. 909 Now, further, he says:— On looking over the proceedings of this Conference you will notice that certain proposals were submitted by the Canadian Ministers, and that the proposal marked " A" deals with the boundary line between Canada and Alaska, in which it is proposed " that a reference to some impartial authority be made by Great Britain and the fjnited States for the purpose of ascertaining and deciding finally the true boundary, regard being had to the Treaties relating to the subject, and likewise to the Case which may be presented by either Government, and to the testimony which may be adduced as to the physical features and conditions of that country." There is not a word in that about the meaning of " coast," or about any claim set up to these inlets or coast. Now, he says:— The presentation of a Case on behalf of each Government would seem to indicate that they were by no means in agreement on the subject. 818 We assent to that. The disagreement had always been in regard to where that interior line would be laid, and there is not in this whole "record a scintilla of proof that there ever had been any disagreement between these two Governments arising out of the construction of that Treaty upon the word " coast." Now, he concludes:— In view of this record I am somewhat at a loss to understand how General Foster could have the impression left upon his mind that nothing passed at the Conference of 1892 to warrant the United States' delegates in arriving at the conclusion that there existed serious difference of opinion between themselves and the Canadian Ministers on the subject of the Alaska boundary. Of course, there were serious differences, and General Foster did not say that there were no serious differences, and that is not the conclusion that he stated. He said that the discussion was of very brief duration, that it related mainly to the questions which had arisen as to the point where the line crossed the Stikine River, and the inconveniences occasioned by this increased uncertainty, and that no assertion was hinted at of British claims to the heads of the j inlets or to any rights on Lynn Canal. Sir Mackenzie Bowell, from the beginning to the end of his letter, never undertakes to say that any such assertion was made. It goes without saying that if any such assertion was made, when his attention was challenged to the- statement of General Foster, he would have said in explicit terms, meeting that statement as broadly as it is herev put down, that such a question did arise, and that such a claim was made, and the fact that he does not say that, under the circumstances in which this letter was written, is to my mind absolute proof that the statement of General Foster was unquestioned. It is not met by a direct denial but by undertaking to put his assertions off on a proposition that was not in his mind, and a proposition that has no relevancy to the one that he there laid down. The next matter I have in my notes is the instructions of .Dr. Mendenhall, but as it is my purpose to finish this branch of the case by the time of the adjournment The President. Would you like to finish it now or break off ? Mr. Dickinson. I was going to say that I would pass that over and merely refer the Tribunal to what we have said in our written Argument on that subject. I will conclude this branch of mv case m~J J ms with just a few more references to the views that were expressed by the officials of Canada in 1898, which absolutely negatived in the S. Doc. 162, 58-2, vol 7 28 910 ALASKAN BOUNDARY TRIBUNAL. > im strongest and most emphatic way the claim that the United States had been apprised of any claim by Great Britain to the coasts and inlets now in question. On the 11th February, 1898, in a debate in the House of Commons of the Dominion of Canada, p. 169 of the United States' Counter- Case Appendix, the Minister of the Interior, the Hon. Clifford Sif- ton, said:— Speaking from recollection, it was some time in 1876 or 1877. He refers there to a provisional boundary line, and then he proceeds :— Difficulties also arose in the White Pass, behind the village of"*Sfcagway, and at Chilkat Pass behind Dyea. I believe that 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. 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. 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. 819 I put that forward as a sufficient answer to all that has been said in the argument of the learned Counsel on the other side to show that'there had been protests or notifications to the United States Government. v The proposition of the Attorney-General was that if notice had grown out of what transpired in 1872 and 1888, then all of this possession would be ineffectual, and it ,could not be said that our possession was undisputed, because, if notices had been given of the character insisted upon it would not have been undisputed possession. [Adjourned for a short time.] Mr. Dickinson. I read from the debate of the House of Commons of the Dominion of Canada of 1898, the 16th February. It appears at p. 170 of the Appendix of the United States' Counter-Case:— The Prime Minister (Sir Wilfrid Laurier). The Government has not been informed of the intention, to which my honourable 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 honourable friend As aware that, although this is disputed territory, it has been in the possession of the United States ever since they acquired this country from tbe 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 ray honourable 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. In the debates of the 7th March, 1898, pp. 171 and 172 of the same Appendix, occurs the following:— The Prime Minister (Sir Wilfrid Laurier). I agree very sincerely with the sentiments which have been uttered this moment by my honourable friend (Sir Charles Tupper). I agree very sincerely with everything he has said in regard to the maintenance of the dignity of this young nation. We are o^y a small nation yet. We are willing to be on the most friendly terms with the powerful nation to the south of us, but I agree with the honourable leader of the Opposition that nothing should be given away of our national dignity. ARGUMENT OF JACOB M. DICKINSON. 911 Though I agree with the sentiments which he has expressed in this regard, I am sorry that I cannot at all agree with him in the conclusions which he has based upon these sentiments. And I venture to believe and hope that when he has reflected upon this subject, he will come back to the opinion he himself expressed at one time outside of this House, and has since repeated in this House, that the only route we could have taken to have access to the Yukon country was that by the Stikine River, if we wanted to have the advantages given to us by Treaty, and to avoid the possible hostility of our American neighbours in regard to trade arrangements. When we had to determine upon the policy we would adopt, and upon the route we would select, in order to afford to Canadian trade and to the Canadian people access to that part of their own territory which lies in the region of the Yukon River, it was apparent that there was only one of two routes to be chosen. 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 vise 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 Chilcat 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 honourable friends know very well, even those who do not belong to the legal profession, that possession is 820 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. Now, I will not recriminate here—this is not the time nor 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 possessions 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. The character of the Russian possessions from time immemorial was sufficient to produce the impression upon the representatives of the Canadian Government that Russia had possession of that territory. With that view, and with the understanding that the United States succeeded to the possession of Russia, and had held possession by its own right, this declaration was made by the representative of the Canadian Government. How could it be said that up to that time there had ever been any formal claim, or that the question that we have now under discussion was sub judice f On the 23rd February, 1898, Sir Julian Pauncefote, in a letter to Mr. Sherman, which appears on p. 291 of the Appendix to the British Case, said:— The great traffic which is now attracted to the valley of the Yukon in the North-.West 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 912 ALASKAN BOUNDARY TRIBUNAL. Certainly, Sir Julian Pauncefote, in 1898, never had in his mind any such construction of the Treaty as is now sought to be put forward by the British Government. Upon this point I desire to read one passage which appears upon p. 203 of the Argument of the United States. It is an extract of the Argument on behalf of Great Britain in the proceedings of the Commission under Article IV of the Treaty of Ghent relating to the title to the islands in Passamaquoddy Bay. I do not read this for the purpose of suggesting that there could be any acquiescence operating as an estoppel. Mr. Root. What pages, Mr. Dickinson? Mr. Dickinson. Page 203 of the United States Argument. It can be looked to as evidence of the interpretation put upon the matter by the parties. The position assumed in the Argument of the Case by the Counsel for Great Britain, which I quote, is entirely sound. It is exactly the position on which we plant ourselves in this case in regard to what we have styled acquiescence. They say:— 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 821 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 * * * Here are the emphatic words:— * * * 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 contemporary 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. Now, Mr. President, I come to the concluding part of my argument and that is with reference to the American possession. I have for different periods summarized, but in taking up the question of occupation, if the Tribunal will bear with me, I will give some references and go over it somewhat in detail, and I think I can presume somewhat on the patience of the Tribunal, as I intimated that my argument would be concluded to-day. I say now that I shall not give you a Pisgah view of the promised land, but that I intend to carry you entirely over into it. The Attorney-General gave very little attention to the subject of the American occupation of the lisiere, for the rea- spn, as he alleged, that he regarded these acts as entirely unimportant when taken in reference to the arguments that he advanced. The whole matter, he thought, was a question of sub judice. There would be strength in that position if he had been able to maintain that notice was brought home to the United States of this claim. On that point he read a statement made by Mr. Choate that there had been no demand set up by Great Britain to the heads of the inlets and the coasts until 1898. I have undertaken, in my poor way, to vindicate the statement made bv Mr. Choate. I would for the sake of the cause ms that conditions had been such that Mr. Choate himself might have appeared to make good his statement.. England has been a great gainer by taking from the Bar of the United States its most brilliant ARGUMENT OF JACOB M. DICKINSON. 913 ornament. Since he hung up his legal bow it has remained unstrung, and, although several have been ambitious to essay it, it yet awaits the master hand. The Attorney-General, after he had finished the discussion of that statement, for the only time throughout his stately progress in the magnificent presentation that he made, exhibited somewhat of a spirit of exultation, when he said that he had completely demolished it. I submit when the whole correspondence is gone into and carefully read, that the statement that Mr. Choate made in that letter is unassailable, and that the attack upon it has entirely failed, and, holding to that view, I now come to the question of occupation, and will treat it somewhat in detail. The Treaty of cession, we all know, was in 1867, and immediately thereafter the United States entered into possession. But Lieutenant-Colonel Scott made a visit, before the transfer to the United States, for the purpose of making an inquiry in regard to the Indians inhabiting these coasts. I will not read the passage, but Mr. Robinson, in commenting upon this report, said that he could not imagine why it had been put in evidence. It was put in evidence from the fact that Colonel Scott Went there to make inquiries in regard to the Indians living along the American boundary line, and the information obtained at that time and upon the spot was very significant in connecting these Indians, who were afterwards brought into subjection and under the sovereignty of the United States directly with the territory in question. He had three objects to accomplish. First, to collect information 1 in regard to the tribes of Indians on and near the boundary between British Columbia and the Russian-American possessions recently ceded; second, " to inquire respecting the Indians on the Stikine River, and to report whether military posts would be necessary in the vicinity of those two localities "; and,, third, " to extend his investigations to the tribal Indians who occupy the islands and coasts east of Sitka and as far north as Cook's Inlet." These statements will be substantiated by referring to the United States Case Appendix, pp. 346 and 347. 822 He sought the information by personal interviews with the Governor of British Columbia, and the officials of the Hudson's Bay Company, and by visiting the lisiere. He submitted a report to the Government of the United States, and this report contained the result of his observations and inquiries relative to the Indians on the mainland and the islands. He accompanied his report with a map of Portland Canal and its vicinity. That map has already been referred to. It is Map 31 of the United States Atlas, and on that map he has designated, as I called attention to in the argument on the subject, as Portland Canal, where the channel comes down and goes into the ocean south of Pearse and Wales Islands. That report contains a list of the Indian tribes on the islands and the mainland from Cape Spencer to Portland Channel. In this list are found the Stikine Indians living along the river up to and beyond the boundary 10 marine leagues from the coast; the Auks, " scattered along Douglas Channel, on Douglas Island, and on the mainland from Lynn Canal to Taku Inlet;" and the Chilkats located " at the head of Lynn Canal and mouth of Chilkat River." \m 914 ALASKAN BOUNDARY TRD3UNAL. I read from p. 352 of the Appendix of the United States' Case. He says:— There are now about 1,000 of these people; 500 or 600 of them live on the- Stikeen River, and the remainder are scattered along the coast from Point Highfield to Port Steward. This tribe is fast disappearing. Ten years ago they numbered over 1,500 souls. I cannot say how many of the River Stikeens are in our territory. Captain Coffin reports, however, that there is a Russian boundary monument on that river, about 135 miles from its mouth, marking a point 10 marine leagues from the coast. If he is correct as to the nature of this monument, most of these Indians are within our boundary. And on p. 353, he said:— This tribe is scattered along Douglass Channel, on Douglass Island, and on the mainland from Lynn Canal to Taco Inlet. The whole number is about 700. On the same page:— At the head of Lynn Canal and mouth of Chilcat River number, at least, 1,200 souls. They are proud and independent in manner, and are said to cherish peculiar hatred to Americans. Now, the special signficance of this Report is, that it placed these Indian tribes on American territory, and he says:— These [Indian] tribes live along the shores of the various bays, rivers, and inlets. To keep them in subjection will require either the interposition of the navy, manifested by one or more light-draught gunboats paying periodical visits to the various villages, and inflicting summary punishment when necessary, or the constant employment of an armed quartermaster's steamer. He went there for the purpose of inquiring into the Indians who inhabit this territory, and made his report, showing that, in order to keep these Indians under subjection to the United States' Government, it would be necessary to employ the means indicated in this letter. I called attention to the fact that on the same day that formal possession was taken at Sitka, the United States' revenue cutter I Lincoln," at the head Of Lynn Canal, hoisted the American flag, took formal possession of the territory, and the commander of the vessel explained to the chiefs that the United States had purchased that territory from Russia, and was then assuming jurisdiction over it. I will read a passage directly on that point. At p. 338 of the Appendix to the Case of the United States he says:— At 1.30 five large war canoes came alongside, one with the Hudson's Bay Company's flag flying, and Jack, pilot and interpreter, in full uniform of an English officer, came on board. The head Chief soon arrived with his wife (daughter of the great Chief of the Stikines), and were received in the 823 cabin, where I had a long talk with him. He is a very quarrelsome Indian, and tries one's patience exceedingly. Whisky not being given him, he was much incensed, and said:— | If I had no presents, coats, trousers, and shirts, why come? Talk without whisky was nothing; s'pose plenty of whisky and presents, then talk good." My friend Mr. Robinson seemed to lay very great stress upon the subject of whisky, but he overlooked the fact that the commander of this vessel did not get the allegiance of this Indian by giving him whisky; on the contrary, he rather irritated him by not giving him whisky. He enlarged upon the potency of whisky, and said he could take a barrel of whisky and go there the next day, and get the allegiance of any number of Indians. He seems to exalt whisky as much as ARGUMENT OF JACOB M. DICKINSON. 915 it was exalted by.an old fellow down in Tennessee, who, on being asked whether he had made a good corn crop, replied that there was enough corn to make twenty barrels of whisky, " besides what we wasted on bread." He proceeded:— I was well aware of the character of this chief, and knew it was necessary to secure his good opinion and friendship for the Bostons (Americans), otherwise It would be unsafe for any small trader with the flag of the United States to go there. I felt exceedingly the want of presents for such occasions. I had not, however, asked the Department for any, nor the power to purchase. Whisky I had, but would not give him any, knowing it was the intention of the Department to prohibit all traffic in it. After an hour's talk he was convinced the ship was not a trader, but the great American (Boston) Chief sent to talk with him, that presents, would be made him, provided he was true to the new flag, also being assured that traders would come at the proper seasons. Presenting him with a handsome and new overcoat lined with red broadcloth and fully trimmed with braid, tobacco, molasses, and biscfllt, an American flag and staff, which was fitted in the bow of his canoe, he departed much better disposed than I had anticipated. Several minor chiefs and friends of his (Chatsquit) were made suitable presents, and all departed at sunset kindly disposed towards their new rulers. The United States flag was hoisted at Chilcate within a few minutes of the time it was hoisted at New Archangel, as it was afterwards ascertained. Having attained the object of our visit, I next day steamed down Chatham Sound towards New Archangel, picking up as promised the Indian chief with a canoe loaded with venison, which was purchased for the ship's company. The " Lincoln'! had on board an Assistant Superintendent of the United States' Coast Survey, with a staff of scientists to make obser- vations and gather material, with a view to perfecting the charts and maps of the newly-acquired territory. The Report of this officer contains a detailed account of the waters in the vicinity of the southern boundary of 54 degrees 40 minutes, of the Stikine River, and the Taku River and Inlet, and during the stay of the " Lincoln " at the head of Lynn Canal observations were taken and a survey was made of the mouth of the Chilkat River and adjacent waters. Now, it must be assumed that if Great Britain at that time had understood that it owned any part of these inlets these acts on the part of the United States could not then have been initiated and continued throughout half a century without the right being questioned. On the return voyage of the steamer " Lincoln " from Sitka to San Francisco it stopped at the mouth of the Stikine River, to which point the Commander had alreadv sent a revenue officer to establish a cus- toms post, and he here put himself in personal communication with the principal chief of the natives, who were reported by Colonel Scott to be living along the coast. I read from pp. 339 and 340 of the Appendix to the Case of the United States:— On the morning of November 1, entered Clarence Strait or Sound, and proceeded direct to the mouth of the Stikene River; at 2 p. m. anchored in 824 Highfield Harbor. I went on shore in the barge and found Captain For- saith, Acting Inspector of Customs, and two persons in charge of a XFnion Telegraph Station, with 500 miles telegraph wire and a large quantity of supplies belonging to the said Company. I had sent Captain Forsaith here in charge of the goods on board the Hudson Bay Company's steamer " Otter " in transitu for their posts in the interior. .As this is one of the most important points of this coast (mainland) in our new possessions I directed Captain .Forsaith to remain (see letter, November 2). En route to the village I met the principal chief, Shakes, going on board with his wife; I receievd them on board my barge, and carried them on board the "Lincoln." 916 ALASKAN BOUNDARY TRIBUNAL. Then turning over the next page he says:— I authorized this Chief at his own request to seize the whiskey sellers, taking them and their vessels at once to Captain Forsaith. I have no doubt he will do it, being impressed with the fact of the injuriovis tendency of whiskey among his tribe. I gave him an American flag and a paper recognizing him as 1 Con-mis-ta," son of Shakes, the principal Chief of the Stikene tribe. Now, can it be said that no solemnity and no importance are to be attached to these acts? These were the natives of the country, and they recognized the supremacy of the United States. The officers of the United States there, representing the Government in posession, went through certain formalities by which they recognized certain Chiefs, as is shown in this Case. These acts were not done in the dark, but publicity was given to them. All Governments of thk day—that is, first class Powers—are generally informed as to such transactions, j We know that they are generally informed in regard to published public documents. The map of the territory of Alaska was prepared immediately after the Treaty was signed, and used by Mr. Sumner, Chairman of the Committee on Foreign Relations, during the debate in the Senate (Map No. 24, United States Atlas). A first edition of 500 was published before the Treaty was ratified, and a second edition was issued before the Treaty was proclaimed (United States Case Appendix p. 541). The map was also attached to a pamphlet edition of Senator Sumner's speech, and circulated immediately after the ratification. I have thj| pamphlet here which is referred to in our Case, and I will pass it up to the Tribunal for such use as they may desire, with the map attached, which is a facsimile of the map which is published in our Atlas. All of the details of the transfer of this territory, including the acts of occupation by the officials of the United States revenue cutter 1 Lincoln " at the head of the Lynn Canal, at the Stikine River, and elsewhere, and the account of Colonel Scott's visit and enumeration of the Indians in the lisiere, were communicated to Congress and published as an official document on the 19th February, 1868, six months before the purchase money was paid, and these documents are set forth in Executive Document No. 177, 40th Congress, 2nd Session, referred to in the United States Case Appendix, pp. 324 and 509. I will pass this volume up to the Tribunal if they shall desire it. The Treaty of purchase was the subject of lengthy debate in Congress in 1868, and it is a violent presumption to say that the British Minister at Washington had no knowledge of it. On the contrary we may safely assume that he had full knowledge, for being there, an alert and able Representative of his Government, you may be sure that nothing appeared in the official publications that did not pass under the eves of his Secretaries. Mr. Robinson asks how was Great Brit- ms ain to know of them? He sa}^ that they might just as well have been done at the North Pole. We have every right to assume that Great Britain did know of them, because there was no concealment about it, and the full details and statements were given in these official documents. After the United States acquired this territory, for ten years it was administered under the Army of the United States, or rather the War Department, except so far as related to the control of trade and the protection of revenue by the officials of the Treasury. General ARGUMENT OF JACOB M. DICKINSON. 917 J. C. Davis, who commanded the detachment of the army which occupied Sitka at the time of the transfer, continued at the head of the territorial government. I read from the United States Appendix, pp. 353 and 354:— 825 This is an order issued by Major-General Commander Hal- leck to General Davis. He says:— You have been appointed commander of the military district of Alaska, which includes all the Russian-American territory ceded to the United States by the Treaty of the 30th March, 1867. You will, therefore, assume command of the two companies, designated in Special Orders No. 141, current series, from these headquarters for the garrison of Sitka as soon as the same are ready to embark on the transport chartered for that purpose. He then proceeds to give him instructions in regard to the way in which he was to treat the aborigines of that country. He said:— In regard to the aboriginal and uncivilized tribes of your district, you will, in the absence of any organized civil territorial government, and so far as our laws authorize or permit, act as their General Superintendent, protecting them from abuse, and regulating their tradp and intercourse with our own people. Military officers have no authority to make Indian Treaties. You will, therefore, enter into no negotiations of that kind, or attempt to bind our.Government to any contracts or agreements without special authority and under special instructions. In regard to the tribal and uncivilized Indians on Barranoff Island and the adjacent islands and coast you will exercise the most careful vigilance, as these natives are known to be both warlike and treacherous. You will consult with the Russian Governor and other officers in regard to regulating their intercourse with the post and settlement of Sitka, and you will strictly enforce, both with regard to the whites and the natives, such regulations as you may deem necessary to adopt with regard to these Indians and their intercourse with our people. Now, there they are, by order of the War Department, put strictly under the administration of the Commanding General in that territory. We turn to the official reports of General Davis and other officers during this first period of occupancy, which showed various acts of control and sovereignty on the lisiere. On the 27th of May, 1868, General Davis reported that the Chilkat chiefs made a visit to Sitka. Now, for what purpose ? To make " apologies for their past conduct towards the whites " and to express " their sincere desire to cultivate friendly relations." The General recommended to the War Department that a military post be established on Lynn Canal. And in the same report he gives an account of a visit to Sitka from the chiefs of both the Taku and Stikine tribes to establish good relations. Under date of the 3rd of August, 1868, General Davis reported a visit to the mouth of Chilkat River, where he " had a very satisfactory interview " with a number of the chiefs. On the 21st of December, 1868, other visits of the Chilkat and Taku chiefs to Sitka were reported. General Davis says they expressed themselves as well satisfied with the treatment they received. Here some disturbance had broken out among the Chilkats. General Davis made a visit in 1869, and that visit was contemporaneous with the visit made by Mr. Seward, who had negotiated the Treaty for the purchase of Alaska, and had gone there for the purpose of seeing the territory acquired by the United States. On this visit Mr. Seward accompanied General Davis, and while he was at Sitka news was received from the region about the e- :: ~>?&fi gss ^^^ss 918 ALASKAN BOUNDARY TRIBUNAL. head of Lynn Canal that the Indians who had been showing a hostile spirit, and were threatening war on the Sitka Indians, were desirous of establishing peace and friendship with the military authorities, and General Davis decided to again visit them, and he invited Mr. Seward to accompany him. On their arrival they were met at the mLOuth of the Chilkat River by the native chiefs, and escorted up the river to the headquarters of the head chief at the village of Klukwan, about 20 miles from the mouth of the river. A grand council was held of all the chiefs, during which it appeared that the cause of the trouble had its origin nine or ten years before. You will recall that this village was up the Chilkat River, 20 miles in the interior. On pages 498 and 499 of the United States Case Appendix I read from a statement made by Mr. Seward in regard to this visit:— 826 " Then it happened," Mr. Seward replied, speaking of some trouble that had occurred which they had wanted redressed by ml mt the United States Government,—Mr. Seward, replied that it happened when this country belonged to the Emperor of Russia—long before it became the property of the United States. He was a great sovereign, who listened to the Indians, and treated them with kindness. This demand should have been made to him. Evidently that reply was not at all satisfactory. The chiefs consulted together, and, presently their answer came back through the interpreter:— I We did appeal to the Emperor of Russia "—(showing that they recognized him as their Sovereign)—"but he gave us no redress. Perhaps he was too poor. We know he was poor, because he had to sell his land to the Great Tyee. But now the Great Tyee himself is here in his stead, and we want to know what he is going to do about it." That was in 1869. In 1870, General Davis reported -a visit made by him to most of the tribes on the islands and on the mainland, " from Fort Tongass to the Taku and Chilkat Rivers." And there he makes observations about the improvements he noted in their condition. In this report he alludes to the valuable services rendered by the revenue cutters in those waters, both in suppressing illicit trade and in co-operating with the military in looking after the Indians whenever called upon. In 1875, General Howard made a tour of inspection. He was the Commander of the Department of the Columbia. He made a visit up the Stikine River as far as the boundary between our territory and British Columbia. During his stay at the head of Lynn Canal he visited the Indian village up the Chilkat River. In noting the retirement of the military from Alaska in 1877, the Adjutant-General said (United States Case Appendix, p. 345):— The reason for the withdrawal was that the protection of the Government property, and the preservation of public peace and order could be more economically and more efficiently done by naval or revenue vessels. Most, if not all of these reports of these military authorities, were transmitted by the President to Congress, and were published in the Congressional record of that time, and wTithin periods shortly after that date, and all these are cited in our Case, and these records have been examined in Washington by a representative of the British Government pending these proceedings. Now, there is occupation extending over this whole territory, and a subjection of these Indian tribes to the sovereignty of the United States, extending from the time of the purchase in 1867, over a period of ten years, and then on account of their ability to administer the ARGUMENT OF JACOB M. DICKINSON. affairs of that section with more efficiency and economy, the administration was turned t>ver to the Navv. ml I turn to p. 361 of the Appendix to the American Case and read from a letter addressed by Charles H. Darling, Acting Secretary of the Navy, to the Secretary of State. He says:— From 1868 up to 1896 vessels of the United States Navy have been kept in that territory almost continuously. It will be seen from the records herewith attached that the instructions from, this Department to the n&val commanders were that they should study the situation of affairs in that territory, look out for the interests of the residents, and afford them needed protection; use their utmost endeavours to maintain harmonious relations between the white settlers and the native Indians, and control and maintain order among the the latter; aid the civil authorities, when established, in enforcing the laws; and make surveys of the harbours, inlets, rivers, and other waters as the nature of the service would allow. ; In execution of these instructions it will be seen that the naval officials visited the inlets and the rivers of the mainland in the region mentioned, and that they were especially, frequent in their visits to the mouth of the Stikine River to Taku Inlet and River, Lynn Canal, the inlets at the head of that canal and the streams emptying into those inlets. During their visits they exercised authority on the mainland in promoting friendly relations between the Whites and Indians, in preventing wars between the tribes and restoring peace among them, in restraining illicit traffic, and in acting as guards to the civil 827 authorities in serving process and making arrests* In these services they frequently despatched armed parties up the Chilcoot and Chilkat Rivers and to the mountain passes beyond the head of the inlets of Lynn Canal. For some years it was the practice to have the naval vessels stationed in Lynn Canal for the preservation of order as indicated by the vessels' logs inclosed, during which time they also maintained stations on shore for practice, and made surveys of the inlets and rivers. That is a general summary which is fully sustained by the detailed references given in our Appendix. In this connection, without reading, I refer to the statement made by Commander Dombaugh. He was on duty in Alaskan waters during 1884, 1885, and 1886,*as appears upon the United States Case Appendix, p. 400. I also refer to the statement made by Admiral Coghlan on duty in 1884. This statement appears on p. 401 of the United States Case Appendix. I also refer to a statement by Admiral Taylor, which appears upon p. 407, and then to a statement by Lieutenant Commander Emmons, who was on duty in Alaska for a period of twenty years. I shall read at some length from this statement, t)eginning at p. 402 of the Appendix to the United States Case. This letter is dated the 28th of March, 1903. He says :— (1) I would state that my time of service in South-Eastem Alaska extended over a period of twenty years, from 1882 to 1903, with intervals of absence. Attached to the U. S. S. "Adams," September, 1S82, to July, 1884. Attached to the U. S. S. "Pinta." May, 1885, to July, 18S7. Studying natives of Alaska, March, 1888, to October, 1889. Attached to the U. S. S. " Pinta," July, 1890, to January, 1892. Duty under Interior Department, Alaska, January, 1892, to September, 1892. Attached to U. S. S. "Pinta," April, 1894, to September, 1896. In Alaska not on duty in 1899, 1900, and 1901. On Government service in Alaska, May, 1902, to September, 1902. (2) During this period of service the men-of-war to which I was attached cruised continually along the mainland coast of Alaska, and the outlying islands of the Alexander Archipelago, from Portland Canal to Dixon's Entrance, to the head of Lynn Canal, and through Icy Straits and Cross Sound, and seaward as far west as Yukatat, or Bering Bay, visiting all of the settlements, anchorages, and inlets along the coast, in order to render assistance to those in need, to preserve order among both whites and natives, and to enforce the statutory laws of the United States at the discretion of the commanding officer. Prior to the establishment of civil government in Alaska in 1885, the com- 920 ALASKAN BOUNDARY TRIBUNAL. manding officer of the naval vessel stationed in those waters represented the law supreme; he touched at the native villages, received the chiefs, listened to the complaints of the people, arbitrated and judged the cases, and punished the gnilty. Under the orders of the commander, the medical officer of the man-of- war inspected the natives, prescribed for them, and dispensed Government medical stores free. When necessity required, armed detachments were landed from the vessel to preserve order or make arrests. After the establishment of civil law in the territory, the naval commander co-operated with the Government officers to enforce the law and to police the country. The question of absolute jurisdiction over the mainland coast, including all of the inlets and arms of the sea reaching inland from the head of Portland Canal to the head of Lynn Canal, and extending inland over the Chilkoot or Dyea Pass and the Chilkat Passes, was never, to my knowledge, questioned by the whites of any nationality nor the resident natives within these limits. In fact, all of the whites going inland over these passes to the valley of the Yukon looked to and constantly appealed to the naval commander here stationed for assistance and protection, and frequent complaints, from both whites and natives, of trouble growing out of packing over the Dyea PaSs were presented to the commander for adjustment. My duty and investigations among the natives of Alaska have, through twenty years, frequently brought me in connection with the Chilkat and Chilkoot people. I have visited all of their villages many times. I have travelled through their country from the head of the Kar-arlth to the head of the Thle- hini Rivers. I have made a study of their history, and I have lived 828 with them on the most intimate terms, until they have given me one of their family names and look upon me as one of themselves, and never once have I heard them question the jurisdiction of the United States over their country to and including the mountain passes, nor as to their position as United States subjects. And since the establishment of Canadian custom-houses at the passes and on the Chilkat and Thlehini Rivers they have often expressed themselves and appealed to Government officers against what they considered as an assumption- of authority over a country under our flag. Then he goes on to give several specific acts of authority that were exercised. % Jt became frequently the duty of the naval officers to preserve peace between the Stikine Indians and other tribes. In 1881 four of the Stikine chiefs were brought to Sitka by an officer of the Navy for the purpose of meeting a similar delegation from a tribe on one of the islands with which thej were at war. Through the intervention of the Naval Commander a treaty of peace was signed, one of its articles stipulating that if any disputes should arise they would 1 be left to the arbitration of the senior officers of the United States in the Territory." (United States Case Appendix, p. 378.) In cases where members of the Stikine tribe were charged with murder or other crimes, they were taken to Oregon for trial. What more emphatic evidence could be given of the extension of the jurisdiction of the United States over this country, and of its complete exercise. When a disturbance occurred along the Unuk River and the chiefs of the native tribe refused to allow, white miners to ascend that river, the presence.of a naval vessel was invoked to preserve order and protect the miners. (United States Case Appendix, p. 389.) Similar experiences were had with the xAuks and Takus inhabiting the shores of Taku Inlet and River, and the authority of the United States was recognized by them. As the British coast line is drawn and as the British mountain line is drawn, the whole of the Unuk River is thrown into British territory. I call attention to the action of the naval officers in regard to Indians located about the head of Lynn Canal and along the rivers emptying into its inlets. After a formal act of occupation at the ARGUMENT OF JACOB M. DICKINSON. 921 head of this Canal in 1867 and the visits of General Davis in 1868 and later, already cited, the first visit of a naval vessel to the Chil- kats was in 1869, and four years later the Admiral of the station, acting on the request of the Stikines, was able to put an end to a war being waged against them by the Chilkats. (United States Case Appendix, pp. 362, 363.) Between the years 1879 and 1881, Captain Beardslee was in command in Alaska, and his voluminous reports to the Navy Department show that he was constant in his intercourse with and restraint of the Chilkat chiefs and tribes. These reports were communicated to Congress and published 19th January, 1882 (S. Ex., Document 71, 47th Congress, 1st Session). For the detailed statements of Captain Beardslee in regard to the acts done by him in his relation to the inhabitants I refer at Jength to the United States Case Appendix, pp. 365 to 374. During these visits of the naval officers, extending throughout this long period of time, surveys were made of all the waters in that vicinity, including Taiya Inlet, Chilkoot Inlet and River, Chilkat Inlet, and Chilkat and Tlehini Rivers. They also made a census of the Indian tribes. It was the practice of the United States officials to recognize Indian chiefs. They, as has been shown in the record, at times deposed Indian chiefs and set up others in their stead, and gave them certificates showing their headship of the tribe, and- they held that chiefship under the authority of the official representatives of the United States. These certificates were given by Commanders Lull and Nichols, as appears upon the United States Case Appendix, p. 213, and also upon pp. 429 and 430. The steamer " Pinta," of the Navy, was stationed at Chilkoot Inlet from the 27th of April to the 18th of June, 1886, for the preservation of order, and also in May and June, 1887. In 1887, the " Pinta " was at the head of Chilkat Inlet to regulate the differences between the Indians and whites; and while there, there was a Canadian 829 survey and exploration under Mr. W. Ogilvie, and the steps he took in prosecuting his survey in that immediate vicinity were by permission of the United States officer which he had asked, and Mr. Dawson, who put forward, as it is said, the Canadian claim in 1888, was himself a member of one of these survey parties. I refer to substantiate that statement to the United States Case Appendix, p. 385. Now, both Mr. Ogilvie and Dr. Dawson made full reports of their expedition, noting the visits to the head of the Lynn Canal, and their reports were printed in the Sessional papers of the Canadian Parliament, and are referred to in the United States Counter- Case Appendix, p. 214, and some parts were reprinted in London. In view of these occurrences in 1887, it can hardly be maintained, as stated in the British Case, that " until 1896 the Governments of Great Britain and Canada knew little or nothing' of that region. (British Case, p. 92.) They say that for years the conditions remained unchanged, and that until 1896 the Government in Great Britain and Canada knew little or nothing of the movements of the people along this North- West Coast. It is impossible to affirm with all these acts made public from time to time in official publications that there could be ignorance on the i&Jlr 922 ALASKAN BOUNDARY TRIBUNAL. part of Canada and Great Britain as to the character and extent of the occupation there exercised by the United States Government. In the reports submitted by Commander Newell in 1887 to the Department, it is shown that there was absolute domination by the United States of the Indian situation, and that both the coast and interior Indians understood the line of demarcation between the respective territories of the United States and Great Britain, and it also appears that a chief of the Chilkoot tribe asked an opinion from the Court as to the right of his tribe respecting the ownership of the trail over Chilkoot Pass, and that in March, 1888, the United States District Attorney gave an opinion as to their rights. (United States Case Appendix, pp. 392, 395, 396.) The logs of the United States naval vessels on duty in Alaska waters extending from 1873 to 1891 inclusive show repeated operations at the head of Lynn Canal, and that the closest relations were maintained between the commanders of such vessels and the chiefs of the Chilcat and Chilkoot tribes (United States Case Appendix, pp. 396-399). No other Government on earth undertook in any way to set up any semblance of authority in and about the territory now in question. Then we come to the operations of the revenue officers. I have already spoken of how the " Lincoln " was sent by the Secretary of the Treasury to Alaska. In 1868 a Statute was passed by Congress extending the laws of the United States relating to customs, commerce, and navigation over the lands and waters of the territory ceded by Russia, and from that time down to the present, the-Revenue Service of the United States has been extended to and exercised over every part of the coast and of the waters now brought into question. In 1880 all foreign vessels were forbidden to unload at Chilkat. It cannot be said that such an announcement made by the United States' Government was not brought home to and was not known by the Government of Great Britain. In 1890 a Collector of Customs was appointed for Chilkat, and a Customs Office was established there in 1891. The Chilkat and Chilkoot Indians, through the Customs Inspector at Chilkat, applied to the Government of the United States for a reservation to be set apart for them. Now we come to the exercise of jurisdiction by the civil authorities. A Statute was passed in 1884 providing a civil government for Alaska. Some criticism has been made in the Argument in the British Case, based upon reports made by the Governors of that remote district, but there is nothing in these reports indicating that there was any understanding upon the part of any- of these Governors that their jurisdiction did not extend all over this territory; indeed, because it did extend all over this territory, and they had inadequate means of making that government efficient-—they wanted the United States Government to provide them with larger facilities for policing and administering the law in that territory, and these complaints were made. Even if we should admit that the Government was not that kind of Government that it should have been, that it was starved financially, and that it was inadequate to respond to the needs of the people, still, that was a matter about which no one could com- 830 plain except the American people. But there is nothing whatever in these reports that would indicate any idea upon the part of any of these Governors that their jurisdiction was in any way ARGUMENT OF JACOB M. DICKINSON. restricted or limited on this account. If their jurisdiction had been limited, they probably would not have been complaining so much of the inadequate means that were put at their disposal. The archives of the Department of Justice and of the Courts, of which extracts are found in the Appendix to the Case of the United States, show that Indians and other residents of the Chilkat country, during the years 1887,1888,1889,1890,1892, and in all subsequent years, were arrested and brought before the Court, indicted, convicted, and fined or imprisoned for violations of the laws of the United States. To all intents and purposes the jurisdiction of the United States from the time of the purchase has been just as complete over that country as it has been over any other part of the domains of the United States. It was not only complete but entirely unquestioned, and only at a recent time, and that based upon what we say is a forced construction of the Treaty, was any claim ever set up which called into question the rightfulness of this jurisdiction. Accompanying these records to which I am referring are depositions taken in Alaska by judicial officers of the United States embracing those of United States Commissioners, marshals, interpreters, police officers, and citizens, who have been residents of that territory from the various dates stated in their depositions between 1867 and 1890, giving details of acts of the judicial authorities since 1884, and the localities of various arrests. From these verified statements it appears that the jurisdiction, process of the courts, and the acts of authority of the officers of the United States in and about the 9£:<* v<"« ml shores and waters of Lynn Canal, its inlets and streams, have been exclusive; and especially that no British or Canadian officer or subject has sought to exercise any authority in that region. We have statements here to the same effect from Commissioners of the United States, and for those who probably are not informed exactly as to the distribution of powers among the judicial officers of our Government, I will say that a Commissioner of the United States is really a judicial officer. He has a right to arrest, to conduct a preliminary trial, to bind parties over to the Courts for trial, and to hold them in imprisonment unless they furnish bail, until the meeting of the Court. Mineral locations were made in 1885 in Berners Bay, and in 1886 in Lynn Canal, 12 miles north of Berners Bay, and as early as 1881 associations under the mining laws were organized on the mainland in the vicinity of Taku Inlet (United States Case Appendix, p. 494). Various depositions of the United States officials and owners and occupants of land show that from the first location of white settlers at the head of Lynn Canal in 1880 up to 1898, all persons regarded and accepted all the localities in that vicinity as the territory of the United States, and that all land entries and records of titles were made under the laws of the United States; that jurisdiction and authority were in all such cases exercised by United States officials; and that no British or Canadian official or subject from 1880 to 1898 ever made any claim to territory or lands, or filed or uttered any protest against the exercise of authority by the United States. The land upon which the town of Skagway is located .was entered in the United States Land Office of Alaska by J. Bernard Moore in 1898. He had been previously a British subject, and to enable him to hold 924 ALASKAN BOUNDARY TRIBUNAL. the title to his property he became an American citizen. (United States Case Appendix, p. 418.) The appointment of a Customs Officer at Chilkat in 1890 has already been noticed. In 1887 Franklin H. Poindexter was appointed I Justice of the Peace for the district of Pyramid Harbour, which lies on the west side of Lynn Canal, and very near its head, and in 1889 John J. Healy was appointed United States Deputy-Marshal. These judicial officers exercised jurisdiction over the country about Chilkat, Chilkoot, and Dyea Inlet. (United States Counter-Case Appendix, pp. 218, 221, 230, 282.) Indian Chiefs and other natives in that region were appointed policemen, with authority to make arrests. (United States Case Appendix, pp. 427, 485.) Now, I submit, may it please the Tribunal, and I have gone rapidly over these evidences of occupation, that all these acts of unquestioned occupation from 1867 down to the present time, cannot be dis- 831 missed, as they have been dismissed by opposing counsel as something that is trivial, and almost unworthy of consideration, and I say that the possession by the United States of all that territory throughout that time without any question on the part of Great Britain was an interpretation put by Great Britain upon the Treaty of 1825, and that under the terms of this Treaty under which you are acting those acts are to be looked to by this Tribunal, and that there is nothing in this Case that should have greater weight in controlling your judgment upon the question of interpretation. I was somewhat surprised to see the position taken by the Attorney- General and the Solicitor-General in regard to-the powers of this Tribunal in respect of the determination of certain questions that lie at the very foundation of its action. It was stated that this Tribunal had no right to determine what coast meant. On p. 582 the Solicitor- General said:— From what coast? That is the first question that arises. I cannot say—and I put this as a matter for the serious consideration of the Tribunal—I cannot say how this coast is to be decided when there is no power in the Tribunal to define what is coast. And he also said, p. 583:— The Tribunal is not given any power to you to decide even your jurisdiction in relation to the mgftter. It was also said that the Tribunal had no power to determine what are sinuosities. I hope that a second thought will bring him to a different conclusion upon these questions, because if it be true that this Tribunal cannot say what coast is, and cannot say what sinuosities are, and if it be true, as the Attorney-General has said, that the Treaty fails if there are no mountains within 10 marine leagues of the coast, then, after all the painful processes through which these two Governments have reached this Treaty, we come to this conclusion, that they have simply been enacting a solemn fiasco, and it would, I submit, after the interest that has been manifested by these two Governments in this question after the yearning on the part of all true patriots of both countries that there might be a happy settlement of this contention, be nothing short of an international calamity if the Tribunal should find that they could not proceed to the consideration of the merits of these questions submitted to them, because they have no power to determine what coast and sinuosities mean. ARGUMENT OF JACOB M. DICKINSON. 925 The Senate and House of Representatives of the United States in 1890 adopted a resolution requesting the President to enter, upon proper occasion, into negotiations with other Governments, to the end that any differences which could not be adjusted by diplomatic agency, might be peacefully settled by arbitration, and to this overture the British House of Commons, in 1893, responded by a resolution expressive of its satisfaction, and of the hope that the Government of the Queen would lend its ready co-operation. In a memorable address before the American Bar Association, Lord Russell said:— Mr. President, I began by speaking of the two great divisions—American and British—of that English-speaking world which you and I represent to-day, and with one more reference to them I end. Who can doubt the influence they possess for insuring the healthy progress and the peace of mankind? But if this influence is to be fully felt, they must work together in cordial friendship, each people in its own sphere of action. If they have great power, they also have great responsibility. No cause they espouse can fail; no cause they oppose can triumph. The future is, in large part, theirs. They have the making of history in the times that are to come. The greatest calamity that could befall would be strife which should divide them. Let us pray that this shall never be. Let us pray that they, always self- respecting, each in honour upholding its own flag, safeguarding its own heritage of right and respecting the rights of others, each in its own way fulfilling its high national destiny, shall yet work in harmony for the progress and the peace of the world. 832 I well remember the genuine enthusiasm that greeted these sentiments. In constituting this Tribunal, and submitting for its decision differences, which at an earlier period would have been appealed to the arbitrament of arms; these two great Governments, which have, more than all others, wrought to make the dream of enlightened paganism and moralists, a rule of action among nations, have, by exalting above the arena of brute force, this forum where calm judgment rules, and x the principles of universal justice have sway, given to the world an illustrious proof of how kindred peoples, however strongly each may be persuaded of the rightfulness of its contention, are animated by a desire to give even yet greater strength to the bonds of amity which bind them together. Other differences of minor importance, such as those of the Passamaquoddy Bay and the islands in the St. Lawrence, have been settled by Commissions composed of an equal number of representatives from each side. Looking to the greatness of the interests here involved, and the intensity of feeling that has developed in both countries, this Tribunal is unique. It is composed of six members, and a majority vote is required to reach any result. The Treaty provided that each Government should appoint three members. Wliile it did not say that none of these should be foreign to both Governments, it may be accepted that such was its purpose. Each Government has acted on this understanding, and so the Treaty will entirely miscarry, and it must have been so understood when it was signed, unless at least one member shall decide against the contention of his own people. Notwithstanding this certain condition, the United States of America and Great Britain, as they expressed it in the Treaty, " equally desirous for the friendly and final adjustment" of the dif- S. Doc, 162, 58-2, vol 7 29 i-xjS) 926 ALASKAN BOUNDARY TRIBUNAL. ferences between them, have submitted their several contentions to a Tribunal so constituted, relying upon their considering the questions judicially and impartially, upon the arguments and evidence presented, and that each member will decide them " according to his true judgment." The faith thus manifested that judgment and justice will be exalted above the plane where the sympathies that move men have sway, challenges the attention of mankind and distinguishes this Tribunal above all others. It does not follow that a failure to reach a decision will show that such faith was in any degree misplaced, for neither contention may be so fully sustained that an impartial mind can rest easily upon a judgment in its favour; but if a settlement of the questions shall be reached, the event will be a triumphant epoch in the history of the struggle of humanitarian principles for the substitution of something better than war for the sole court for determining international differences. It will illustrate not only how judgment, when conseerated by such a* trust, may prevail even over national sympathies, but the reciprocal confidence reposed by members of the Tribunal in the good faith of their respective Government^ which, in intrusting to them such powers under such a Treaty, reciting that a failure by a majority of the Tribunal to agree upon any of the points submitted for their decision would be unfortunate, gave the fullest assurance that the conclusions reached, however disappointing, would be accepted as a righteous judgment. What could give a higher inspiration to those who are labouring for the peace of the world than a settlement by this Tribunal of these issues, so pregnant with possibilities ? If it should render a judgment practically unanimous, it would be the strongest assurance yet given to humanity that Christian nations are tending toward the only practicable realization of the poet's dream of a Parliament of man, the Federation of the world. And now, Mr. President, si parva licet componere magnis, I announce, in the language of a distinguished Englishman closing a memorable debate, " I have done "—that is, with the argument of this Case. I have—I was about to say—another duty to perform, but it can never be a duty to express sentiments that come straight from the heart, and to speak words that# struggle to the lips tor utterance. For my associate Counsel and myself I desire to thank opposing Counsel for the uniform courtesy they have extended us, the Tribunal ml ml 7 for the patient and considerate hearing they have given us, and to thank you, Mr. President, for the impartiality with which you have directed our sessions. It is worth not merely an ocean voyage, ml *7 v- s % ' 833 but a long and painful pilgrimage to enjoy what has been incident to this occasion. We esteem it as a rare privilege to feel at home, for a season, in these historic chambers, which for so many years have been associated with the diplomacy of the world, and our souls are filled with awe when in imagination we repeople them with the disembodied spirits of the mighty dead, to whose voices they once gave echo. The memory of having even for a, short time moved in the same orbit with the great legal luminaries of this country, famed for sc many centuries for its great lawyers, will always be cherished. ARGUMENT OF JACOB M. DICKINSON. 927 Even if one shall have played, in his own esteem, his part lamely, it is worth the pang of a bitter disappointment to be in the cast of such a drama, enacted upon such a stage, and in such presence. Whatever may be the outcome of our labours, and although there may be some immediate regrets, we may, sustained by an abiding faith in that omniscient Providence that guides the affairs of nations through darkness that is impenetrable to mortal vision, murmur, liForsitan et hcec olim meminisse juvabit" The President. Mr. Dickinson, on behalf of my colleagues and myself, I wish to thank you for your very brilliant and powerful Argument. It has been my privilege to listen now to several of the great leaders of the American Bar, and I can assure you that your Argument will not suffer by comparison with those that preceded you either on this or any other Arbitration, and certainly, speaking for myself, and I am sure I may speak for my colleagues, none the less powerful, because .of the great courtesy and fairness with which you have treated the Arguments of those who were opposed to you. Mr. Dickinson. Mr. President, I thank you for your very generous praise. Sir Robert Finlay. May I be allowed to express the pleasure it has given my colleagues and myself to meet in friendly rivalry our distinguished friends from America? It will always be a pleasant memory to us appearing before this Tribunal, and I desire to say how cordially I agree with what my friend, Mr. Dickinson, has said as to the patience and courtesy with which the Tribunal has received us. Mr. Foster. Having approached the end of the open sessions of the Tribunal, I desire, in the name of the Government of the United States and on behalf of my associates and myself, to make public recognition of the extreme friendliness and consideration with which we have* been received by the British Government and its representatives. Not only has every facility and convenience been afforded us for the despatch of the business which brought us to this Capital, but these acts have been attended with marked courtesv and kind- ml ness. This great hall, so commodious in its arrangement and so ilegant in its adornment, and the adjoining rooms have been placed it our disposal for weeks past. And our sessions have been accompanied by a generous hospitality so characteristic of the British people. In making this public acknowledgment, it is especially pleasant ;o recall the fact that during our prolonged sessions not a harsh word las been spoken, nor an unpleasant incident occurred to mar the har- nony of our intercourse. May this be an indication of the character )f the decision to be rendered by this Tribunal, which both nations iwait with so much jnterest. The President. I am sure we are very much obliged to you, Mr. foster. I am sure His Majesty's Government will much appreciate he words you have used with reference'to the hospitality you have xperienced. Mr. Attorney, can we have the survey back by Monday, please? >34 Sir Robert Finlay. Yes; the profiles have been examined by Mr. King. He has prepared criticisms upon them, with ertain additional profiles of his ©wn, and suggestions. The President. I suppose Mr. Tittmann has seen these ? rfs 928 ALASKAN BOUNDARY TRIBUNAL. Sir Robert Finlay. Mr. Tittmann has seen them, and I will now hand them in. The President. Mr. Attorney, we do not really want them now. They may be put in our room, provided they ai*e ready for us by Monday. If anything else is wanted Sir Robert Finlay. They are here. Mr. Root. Before we separate I want to ask the Attorney-General whether there is not an error in the report of your remarks on p. 312—report of the eighth day? .Sir Robert Finlay. Is that in the revise? The President. Not revised; we have not got the revise of that yet. Mr. Root. You are speaking of the report of Major Cameron, of February, 1875, and you speak of it as having been taken from the Congressional papers. I suppose you meant the Sessional papers? Sir Robert Finlay. Yes; it was the Sessional papers. Mr. Root. The Canadian Sessional*papers, I suppose you meant? Sir Robert Finlay. Yes; it was the Sessional papers. Sir Edward Carson. I have the Sessional papers here, Sir. Mr. Root. Yes, I sent for them. |§fi Sir Robert Finlay. I think the reporter must be acquitted of that. It was my mistake. The President. I think Mr. Root wanted them. Mr. Root. I find it was printed in the Sessional papers just as it was printed in the Appendix to the British Case. Sir Robert Finlay. Then I hand in, my Lord, the additional profiles and prints. The President. Thank you. And we may have the survey back, please ? Sir Robert Finlay. That has been handed up. The President. Mr. Dickinson, Mr. Tittmann has put them on the survey, has he not ? 835 Mr. Dickinson. Yes, Sir. The President. Then we have got them both. Mr. Dickinson. Yes, they have been drawn in accordance with the request of the Tribunal. [The Oral Arguments of Counsel then terminated.] ALASKAN BOUNDARY TRIBUNAL. INDEX TO MINUTES OF PROCEEDINGS OF THE ALAS3KAN BOUNDARY I TRIBUNAL, HELD AT THE FOREIGN OFFICE, I 1 DOWNING STREET, LONDON. II INDEX TO MINUTES OF PROCEEDINGS. SF IThe Minutes of Proceedings, or Oral Argument, is in two volumes—VI and VII—in this edition. The page references in this index refer to the pages of , original edition, which are inset in these two volumes, as follows: Volume VI, inset pages 1 to 441, inclusive; Volume VII, inset pages 442 to 835, inclusive.] Access to Yukon territory—Special value to Canada of territory in dispute. (Finlay) 6. Acquiescence— Action subsequent to Treaty of 1825 could be inquired into under doctrine of acquiescence. (Taylor) 500. Acts of possession, see that title, also names of any particular Acts. British ignorance of United States Acts of occupation—" You cannot protest against a thing you never hear of." (Robinson) 479, 481. Acts in question were undoubtedly known to British Minister at Washington. (Dickinson) 824. Ogilvie Survey Reports printed in Canadian Sessional Papers. (Dickinson) 829. Expedient to remove difficulty connected with doctrine of prescription. (Taylor) 554. Extent of application of doctrine—Acquiescence may be looked to as indicating an understanding and an interpretation. (Dickinson) 732. Field's, Mr. Justice, judgment in the case of Indiana v. Kentucky. (Taylor) 555. Laurier's, Sir W., statement in 1898 that from time immemorial Russia and United States had been in possession, and no protest had been made. (Taylor) 554. Maps—What obligation was there upon nations to supervise the cartographers of their country and of the world ? Great Britain entered a formal protest against the boundary shown on the maps the first time it was brought to her notice. (Robinson) 476. No acquiescence or consent as between the United States and Great Britain during whole period of dispute. (Finlay) 6. Negotiations for settlement of boundary were open while these Acts were taking place. (Carson) 637, 643. (Refer also to title Notice.) Passamaquoddy Bay, Commission relating to title to islands— Argument of British Agent. (Taylor) 556; (Dickinson) 820. in • rv ALASKAN BOUNDARY TRIBUNAL. Acquiescence—Continued. Period of acquiescence by Great Britain. (Taylor) 554, 557. Positive acts or omissions—No positive act alleged against Great Britain. (Robinson) 481. Supreme Court of the United States—Authority, &c, with regard to doctrine of acquiescence. (Taylor) 554. Value of doctrine of acquiescence—Means of interpretation, no particular period required to perfect it, &c. (Taylor) 554. Action outside the Treaties of 1825 and 1867—Consideration of, as evidence by the Tribunal, so far as it tends to show original and effective understanding—Provisions of Treaty of 1903. Acts of possession, question of admissibility of United States' evidence, &c. (Finlay) 6, 8, 317, 322, 323. Greater number of the Acts were done during the time when the Parties were at issue as to meaning of Treaty of 1825—Acts of no value under terms of Treaty of 1903. (Finlay) 299. Criticism of British contention. (Dickinson) 792, 793, 795, 820. Controversy from 1872 onwards concerned the delimitation of the line in the interior, and did not affect inlets question. (Dickinson) 793, 794, 795. How much interpretation, how many years of interpretation were necessary?—Could a claim made in 1872 wipe out the unbroken assertion of title by United States from 1825-1872, or notice in 1888 render nugatory all the public and solemn Acts preceding it? (Dickinson) 792, 793, 807, 808, 830, 831. Salisbury's, Lord, despatch to Mr. Choate of October, 1899— Principle laid down with regard to acts of possession. (Finlay) 298, 299. Both parties, concurrence of, in any particular interpretation of the Treaties, either in expressed terms or by action—Es- * sential qualification of any act adduced in evidence. (Finlay) 8, 297, 310. Criticism of British contention. (Taylor) 501. Meaning of Article III of Treaty of 1903— Effective understanding, meaning of. (Watson) 334. Tribunal "shall" consider, not anything and everything presented as evidence, but all the evidence which they think may assist them. (Robinson) 466. Negotiations, admissibility of— Character of the lisiere must be gathered from the negotiations^ (Taylor) 514. Definition of lisiere, British Argument admitted of reference to the negotiations. (Taylor) 514. Might be used to throw light upon what the negotiations meant, but could not be invoked to vary the Treaty. (Finlay) 11.—Criticism of British contention. (Dickinson) 659. Slight yalue to be attached to negotiations—Ignorance of territory in question, Length of negotiations, Change of Representatives, &c. (Robinson) 456, 457, 461, 462. INDEX TO MINUTES OF PROCEEDINGS. Action outside the Treaties of 1825 and 1867—Continued. Negotiations, admissibility of—Continued. Superseded by the bargain made. (Robinson) 455. Criticism of British contention. (Taylor) 514. United States insistence on "negotiations and comparative neglect of Treaty itself. (Robinson) 455. Private individuals, action of— Action excluded. (Finlay) 7.—Criticism of British contention. (Taylor) 501. Governments are not responsible for their citizens making claims on other Governments. (Dickinson) 810, 814. Rule in reference to construction and determination of boundaries. (Watson) 328. Rules regulating admission of evidence refer to titles, Evidence, and Treaties—Construction. Subsequent action—Ambiguities may be explained, but a contract cannot be changed by subsequent action of the Parties. (Robinson) 467. Subsequent as well as preliminary action to be considered. (Watson) 334, 335, 336. Text of Treaty of 1903, 7. Treaty of 1825—Predominant importance of—Action only to be referred to where the Treaty was not plain. (Carson) §58. Unvarying view of the Treaty, United States Claim— Examination of Statement. (Robinson) 494. Map of 1867, Difference in width of lisiere from that now claimed. (Finlay) 308. Acts of possession, of government, occupation, &c, put forward by . the United States as showing the effective understanding of the Parties, and as proving Great Britain's acquiesence— Evidence before the Tribunal—Admissibility of acts of possession, &c.; see title Action outside the Treaties. Russian action from 1825 to 1867— Fort Dionysius, erection of. (Finlay) 301. Hudson's Bay Company, competition in Observatory Inlet and Stikine River—Russian Governor's reports in 1832 and 1834. (Finlay) 300, 301. No port or station at all upon the lisiere. (Finlay) 299. Taku River, discovery in 1834. (Finlay) 301. United States action in 1867, and from 1867 onwards— Acts prior to 1872, resume of. (Dickinson) 792, 793. Acts between 1872 and 1888, resume of. (Dickinson) 807. Acts between 1880 and 1885—Establishment of a station at Hays, &c. (Finlay) 309. Acts between 1888 'and 1891, resume of. (Dickinson) 814, 815. Nature and extent of government exercised by United States—Extracts from United States' Government Reports showing that there was nothing like a proper system of government. (Finlay) 308, 309; (Carson) 653, 654. Nothing in reports to indicate restriction or limitation of jurisdiction of United States. (Dickinson) 830. 1^ wm VI ALASKAN BOUNDARY TRIBUNAL. Acts of possession, of government, occupation, &c.—Continued. United States action, &c.—Continued. Number of United States citizens residing within lisiere chiefly along inlets, Census of 1900. (Watson) 330, 426. Total population 3,957, instead of 11,000, Number of United States citizens considerably less than 3,957. (Carson) 654, 655, 656. Purchase of Alaska by United States—Not a word of objection from England or Canada. (Watson) 329, 330. Imaginative picture—If there was anybody they wished to keep out of the negotiations it was Great Britain. (Carson) 633, 634. (For particular Acts, see their names, also title Occupation.) Adams, Mr.—Secretary of State, United'States— Letter to Mr. Middleton (July 8, 1823) — Coast—North-west Coast as used in Russian Ukase of 1821 understood by Mr. Adams in Russian sense of entire coast. (Dickinson) 739. Russian rights in 1821—Rights of discovery, occupancy, and uncontested possession alleged by Russia were without foundation in fact. (Carson) 586, 587. Addington, Mr. H. U.— Neutrality of North-west Coast—Consent of British Government to arrangement proposed between Hudson's Bay Company and Russian-Ajnerican Company. (Taylor) 509. Adjustment of difficulties between Great Britain and the United States—Attempts prior to 1903. (Finlay) 7. Admiralty charts (British) — Bays and Inlets, boundary line running round heads— 1856—(No. 2461), reissued, with corrections in 1861 and 1866. (Dickinson) 765,784. 1877—Inscription changed so as to read " Boundary between British and American territory." (Dickinson) 784. Unchanged line continued on Admiralty maps up to 1901. (Dickinson) 784. Portland Channel Question, Evidence on— 1853—(No. 2168), Chart purporting to be based on Vancouver. (Dickinson) 706. 1865, with correction to 1884—(No. 2431), Cordova Bay to Cross Sound. (Dickinson) 707. 1868—Admiralty maps. (Finlay) 163; (Dickinson) 707. Wharton's, Mr., note dated April, 1886. (Finlay) 163. Merely a private opinion. (Dickinson) 708. 1877—(No. 787). (Dickinson) 708. j 1884—Oliver Bay to Cross Sound—Occurrence of words " Portland Inlet." (Finlay) 166. 1896— (No. 2458), Fort Simpson to Port McArthur. (Dickinson) 709. No. 25, British Atlas. (Taylor) 529. No. 33 (brought down to 1884). (Taylor) 530. No. 2430—Queen Charlotte's Island and adjacent coasts of British Columbia. (Dickinson) 708. INDEX TO MINUTES OF PROCEEDINGS. Admiralty charts (British)—Continued. Portland Channel Question, Evidence on—Continued. No. 2461—Pacific Ocean from Cook River to Gulf of California. (Dickinson) 706. No. 5431. (Dickinson) 709. Admiralty map of 1876— Mountains, representation of. (Finlay) 297. Admiralty maps, Russian— See Russian maps. Africa, partitioning of—Bearing of North-west Coast controversy. (Taylor) 503. AJeutian Islands— Rqal centre of Russian activity. (Carson) 594. Alsekh River— Determination of boundary, proposals of 1873. (Finlay) 311. Alverstone, Baron—President of the Tribunal and Lord Chief Justice of England— Coast— Article VII of Treaty of 1825—Application to the lisiere only, or of general .application to possessions of either country upon North-west Coast ? 450. Heads of inlets, measuring width of lisiere from—(c) in Question VI was a repetition of Question V, 580. Sinuosities of the coast—An affirmative answer to Question V would not necessarily involve the neglect of the sinuosities, 577. Ukases of 1799 and 1821, meaning of I North-west Coast' as used in—Reading into Ukases considerations which did not affect minds of framers, 736. Grant's, President, Message to Congress in 1872—President Grant did not consider the boundary question to be a settled question, 638. Herbert, Sir Michael, death of, 567, 568. Iselcat, mistaken reading for Chilkat, 798. Lynn Canal, territorial waters limit>—Geographical peculiarities of locality rendering the application of general principles extremely difficult, 220. Maps— Colouring of maps not of much assistance on minor details, 158. p Dawson's Canadian Map, 1887, importance of, in respect of date of first British claim to inlets, 488. General line of coast to which lisiere line was to be drawn parallel according to British contention, map showing— Line crossed islands, but did not give any islands to Great Britain, 753. Mountain boundary— American survey—Request that information on Mr. King's survey might be indicated on the American Survey, 269, 270. Arrowsmith map of 1833—Note that wherever there were mountains that was to be the boundary, 295. VIII ALASKAN BOUNDARY TRIBUNAL. Alverstone, Baron—Continued. Maps—Continued. Mountain boundary—Continued. Mountains had not been surveyed and the geographers put down the 35 miles as a possible extreme boundary,' &c, 293, 294. Official map, definition of, 781. Portland Channel question—Printing of names on maps unimportant on account of the variations, 683. Profile maps of mountain passes between Lynn Canal and Glacier Bay, submitted by Mr. Dickinson— Compass bearings, marking on maps, 773, 774, 775. Checking—Mr. King should see maps, 772, 773, 774. Mountain boundary— Elevations between the points on Mr. King's line, continuous elevation in the same vertical section, &c, 278, 279. Line of summits, possibility of taking line either across the inlets or round them, 614. Maps, see that sub-heading. Non-existence of mountains,, alleged. Salisbury's, Lord, statement as to non-existence of mountains had no binding power, 653. Views advanced in depositions inclosed in Mr. Titt- mann's Report, 252. Was it the United States' contention that there were nowhere any mountain corresponding to the Treaty? 767. Peaks between Mr. King's iine and the water were lower than the peaks selected, 272. Powers of the Tribunal in answering Question VII, 336, 337, 417, 582, 583, 584. Treaty of 1825 referred to a supposed chain of mountains, 415. Unascertained line, meaning of suggestion in British Argument, 398. Notice of Canadian claim tojieads of inlets—Indisputable notice given in 1888, 319. Portland Channel, question of— "A la hauteur de l'lle du Prince de Galles "—Meaning of expression, 45, 46, 47. Thalweg theory, application of, to an arm of the sea by D. D. Field—Question as to meaning of Field's statement, 532. Tongass Island, action of United States' officials showing that the island was considered as on southern boundary of United States' possessions—Such action was not advanced by the Attorney-General as declaration of boundary, but as indicating interpretation of Treaty by United States' officials, 707. Wales, Point, effect of designation by Vancouver as west point of Observatory Inlet, 541. Portland Channel Head to the 56th parallel, Salmon River v. Bear River—Salmon River seemed to come in a little below the head, 575. INDEX TO MINUTES OF PROCEEDINGS. IX Alverstone, Baron—Continued. Prescription, non-application where question was construction of contract between two Parties—Lord Hannen's view, 323. Territorial Waters Question—Mr. Graham's Memorandum showing that Norwegian fjords were regarded as territorial waters, read before Behring Sea Arbitrators, 219. Vancouver's narrative, knowledge of, by negotiators of Treaty of 1825—Question of Sir C. Bagot's information, 32. Appointment of Tribunal—Treaty of 1903. (Finlay).7. Arbitration, Board of—No basis for application of such description to the Tribunal. (Taylor) 500. Archangel— See Sitka. Arms and ammunition— See Firearms and ammunition. Arrangements as-to sittings, &c, of the Tribunal, 1-5. Arrowsmith maps— American map based on map.of 1818. (Dickinson) 686. Bays and inlets, delineation of boundary on 1833 edition. (Watson) 328. Dotted line shown in several editions, extending from head of Observatory Inlet, explanation of—Finlay-Aylesworth discussion, 155. Hudson's Bay Company's Posts, Mr. Pelly's list marked on 1822 edition. (Finlay) 22. Lynn Canal, discrepancies of position with reference to the 135th meridian. (Carson) 603. Mountain boundary— 1833 edition, representation of mountains and boundary— Note on map. (Finlay) 295; (Dickinson) 764. No general range of mountains represented. (Watson) 404. Portland Canal and Observatory Inlet (1822). (Finlay) 103; (Dickinson) 684. (1824). (Finlav)-102, 103; (Dickinson) 684. (1833) (Finlay) 155. (1863) 163. Entire estuary represented as Portland Canal. (Finlay) 110. Latitude of mouth of Portland Channel on maps of 1822 and 1824. (Dickinson) 695. Map before negotiators, see sub-heading Use of, by Negotiators. Nomenclature—Adoption of name Portland Inlet. (Finlay) (1859) 164. Portland Canal extending practically to the ocean in map of 1818. (Aylesworth) 686. Question raised as to Portland Canal by boundary shown on 1833 edition. (Carson) 635. Southern boundary, latitudes of points on, as given in British and United States Atlases (Finlay) 116; (Dickinson) 694. Ten marine leagues limit, application to entire line from 56° N. to 141° W.—Evidence of 1853 edition. (Watson) 432. Use of by negotiators of Treaty of 1825—Doubt as to which map was used, &c. (Watson) 364; (Taylor) 531. m m ■ ii ALASKAN BOUNDARY TRIBUNAL. Arrowsmith maps—Continued. Use of by negotiators of Treaty of 1825—Continued. 1818 Edition—Sir C. Bagot's mention of Arrowsmith map in letter of October 29, 1823, almost certainly referred to map of 1818. (Aylesworth) 686. 1824 Edition— Not probable that on March 7, 1824, they had the last Arrowsmith map. (Watson) 408, 409. Referred to in the negotiations, may have been before the negotiators. (Dickinson) 675. Map of which Sir C. Bagot complained that it <Md not accurately locate Novo-Archangelsk. .(Watson) 408. Wales and Pearse Islands marked as Russian territory in No. 12 of American Atlas. (Taylor) 533. Aylesworth, Mr. A. B.—Member of Tribunal appointed by His Britannic Majesty— Coast, meaning of North-west Coast of Ajnerica as used in Ukases of 1799 and 1821—Possible application to settlements on coast, not necessarily on salt water, 736. Evidence before the Tribunal—Admissibility of Mr. Middle- ton's Report of Conversation with Mr. Stratford Canning as to terms of Treaty of 1825, 414. Fifty to one hundred miles limitation south of Lynn Canal— Precaution in view of uncertainty where 135th meridian would fall, 603. Hunter Survey of 1877— Basis of proceedings, the general trend of the coast, 315. Martin, Peter, case of—Mr. Hunter had no authority to delimit boundary, and did not state that point of assault was in United States' territory, 806. Lynn Canal, crossing point of boundary claimed by Great Britain, 230. Maps— Bouchette's map, interpretation of boundary, 161. Maps subsequent to Treaty of 1825—Weight to be attached to maps as compared with statements of writers discussing the Treaty, 539, 540. Russian map of 1826— Grounds for considering it an official map, 779, 780. Mount Fairweather, location did not correspond with Russian declaration in Hudson's Bay Company lease, 779. Mountain boundary— ml Absence of mountains—Was the case of entire absence of mountains provided for by Treaty of 1825 ? 436, 437. Chain of mountains—Line drawn on crest of a chain of mountains must zigzag from peak to peak, 418, 420. Crete—Translation of " La Crete," 617. King's, Mr., line—Between peaks selected and the water, were the peaks lower ? 272. Portland Channel Question— "A la hauteur de l'lle du Prince de Galles "—Meaning of expression, 46,47. INDEX TO MINUTES OF PROCEEDINGS. Aylesworth, Mr. A. B.—Continued. Portland Channel Question—Continued. Wales Point—Effect of designation by Vancouver as West Point of Observatory Inlet, 541. ^-si ml 7 Southern Boundary—Reasons for introduction of proviso as to possession of Prince of Wales Island, 663. Statute of Limitations—Question as to application of, between nations, 322. Vancouver's narrative, knowledge of, by negotiators, &c.— Portland Channel and Observatory Inlet, printing of names on maps before the negotiators—Probability that in view of discrepancies in the maps, the negotiators would examine the narrative of the man who had attached the names, 686. Tuyll, Baron—Question as to Baron Tuyll's knowledge of Vancouver's narrative, 86. Bacon's Modern Atlas. (Dickinson) 686. Bagot, Sir C.—British Plenipotentiary, Treaty of 1825— Arrowsmith maps—Complaint that map did not accurately locate Novo-Archangelsk. (Watson) 408. Bagot-Poletica discussion. (Finlay) 29,30,31,32,33,120. Certainty in respect of boundary, Russian desire for. (Dickinson) 734. Coast, meaning attached to— Exclusive rights to waters between islands and mainland, securing to Russia in addition to strip of coast—Sir G. Bagot's amended proposal contained no concession if coast were used in British sense. (Dickinson) 741, 742, 744,745. Lynn Canal, entire western coast of Lynn Canal given to Russia by Sir C. Bagot's first and second proposed lines. (Dickinson) 739. North-west Coast as used in Russian Ukase of 1821, understood by Sir C. Bagot in Russian sense of entire coast— Letters to Lord Londonderry. (Dickinson) 737. " Rivage"—Significance of Sir C. Bagot's use of term. (Finlay) 211; (Dickinson) 740,741. " Rive" of Portland Channel, mention of. (Finlay) 211. Digest of negotiations—Mr. Taylor's extracts from Sir C. Bagot's despatches, 514-518. Fourth negotiations— Failure of—Irreconcilable differences between Mr. Canning's projet and Russian contre-projet—Despatch to Mr. . Canning (August 12, 1824). (Finlay) 55, 56. Instructions from Mr. G. Canning with Draft Convention (July 12, 1824). (Finlay) 49, 50, 51, 52. Portland Channel— " Canal," not " Channel," always used by Sir C. Bagot—Mistranslations in British Case. (Taylor) 528. Middle of channel—Understanding of Sir C. Bagot as to direction of boundary line. (Dickinson) 674, 675. Russian Ukase of Sept. 4, 1821—Mr. Middleton's inquiry and Russian reply, report to Mr. G. Canning. (Finlay) 29. • '&£ ^» XII ALASKAN BOUNDARY TRIBUNAL. Bagot, Sir C.—Continued. Southern boundary proposals, third negotiations. (Finlay) 120, 121,123. Sovereignty of inlets and bays between 56 degrees and 54 degrees 45 minutes, loss of, to Great Britain—Sir C. Bagot's objection to Russian demand for Portland Channel as southern boundary. (Finlay) 38, 121, 125, 225; (Watson) 371, 372, 383; (Taylor) 533,534. Ten marine leagues boundary—Uniform width of 10 marine leagues proposed. (Dickinson) 768. Third negotiations—Report to Mr. G. Canning, with inclosures (March 17, 1824). (Finlay) 35, 36, 37, 38, 39, 40, 41, 43, 44, 123, 216. Treaty of 1824, copy sent by Sir C. Bagot to Mr. Canning (April 5 (17), 1824). (Dickinson) 689. United States—Territorial pretensions equal to those of Great Britain and Russia—Letter to Mr. G. Canning (October 17, 1823). (Finlay) 29, 30. Vancouver's narrative, knowledge of— Pelly Memorandum, question whether Sir C. Bagot had the Memorandum. Inference that Sir C. Bagot ultimately received the Memorandum, although the inclosures were not sent in the first letter. (Finlay) 27, 32, 35, 90. Poletica's, M., version of his conversation with Sir C. Bagot—Extracts proving that the latter had the Memorandum. (Carson) 559, 560. Statement that he had not had the Memorandum on February 10, 1823.—Lack of any evidence to prove that he received it later. (Taylor) 523. River connecting Portland Channel with Hudson's Bay Company's territory—Sir C. Bagot's suggestion compared with Vancouver's statements. (Finlay) 94, 95, 96; (Taylor) 523. Visiting other parts of North-west Coast, remark on Russian refusal to grant liberty for any period of time. (Robinson) 447. Baldwin's, Mr., Deposition— Mountain system of Alaska. (Finlay) 254, 255. 1 Coast' used in sense of general line of coast. (Finlay) 211. Bancroft— British trade on North-west Coast prior to 1821—Bancroft " found himself forestalled by English and American ships." (Carson) 593. Baranoff— Russian settlements established by. (Watson) 348. Barrier theory, see Coast—Continuous strip. Bayard, Mr.—Secretary of State, United States— Dawson's, Dr., views on the inlets question, transmission of, to President of United States. (Robinson) 484, 486. Extract from Mr. Bayard's letter. (Robinson) 487. 55 INDEX TO MINUTES OF PROCEEDINGS. XIII Bayard, Mr.—Continued. Despatch of November 20, 1885—Boundary laid down by Treaty of 1825. (Finlay) 141. Coast survey map of Alaska (No. 960), 1894—Line was as conjectural and theoretical as Vancouver's mountain line. (Finlay) 261, 262. Country through which the boundary line of 1825 ran, was in 1867 still practically unexplored. (Carson) 636. Despatch entitled English Government to treat the whole case as open. (Carson) 645, 648. Impracticability of boundary— Criticism of Vancouver's mountains, and suggestion that there should be an International Commission to lay down a conventional boundary. (Finlay) 259- 263. Dall's, Mr., views, adoption of. (Finlay) 316. Difficulties discussed by Mr. Bayard were those of drawing line parallel to sinuosities of coast line contended for by United States. (Dickinson) 809. Inaccuracies of despatch—Confusioil between Wales and Prince of Wales Island, &c. (Finlay) 69, 142, 143. Portland Channel Argument—Acquiescence of British Government in Mr. Bayard's statement—United States contention— Salisbury, Lord—Omission to contradict specific argument in acknowledgment of despatch construed by . United States as admission that Portland Channel ran south of Pearse Island. (Finlay) 142, 144. Survey of 1893 and 1894, commencing operations at head, not at entrance of channel. (Finlay) 145. " Mere Flimsy." (Finlay) 145. Vancouver's narrative and charts were issued together, reference to. (Finlay) 92. White Pass Trail- British protest against rumoured grant of Charter by AJas- kan authorities—Mr. Bayard's reply showed no understanding of a notice of claim to heads of inlets. (Dickinson) 813. Report as to grant of Charter by Alaskan authorities unfounded. (Finlay) 320. Bays and Inlets Question— Refer to title Coast. Bear River Valley— Direction suggested for boundary, refer to title Portland Channel Head to the 56th parallel. Beardsley, Capt.— Chilkat chiefs and tribes, intercourse with. (Dickinson) 828. Begbie Sketch Map—Stikine River Boundary. (Finlay) 197, 198, 199, 200. Verification of dotted red line—Instructions from Surveyor- General to Mr. J. Hunter (March 3, 1877). (Finlay) 196, 198. S. Doc. 162, 58-2, vol 7- -30 XIV ALASKAN BOUNDARY TRIBUNAL. Behring Sea Arbitration— Article VII of Treaty of 1825, arguments used in giving application to effect of. (Finlay) 226, 227; (Robinson) 446; Dickinson) 730, 731. Possession, acts of—Reference to, in Behring Sea Arbitration. (Finlay) 322. Russian relinquishment of territory below 50° 40' by Treaty of 1824 asserted by United States. (Robinson) 448. Territorial claims advanced by Russia as foundation of her claim to maritime jurisdiction, derision of, by both Great Britain and United States. (Robinson) 464, 465. Territorial waters— General rule of international law gave no right of access— Sir C. Russell's argument. (Dickinson) 776. Norwegian fjords were regarded as territorial waters—Mr. Graham's Memorandum. (Finlay) 219. Berghaus maps— 1861—Mountains and boundary-line, representation of. (Finlay) 296. 1863—(Dickinson) 764. Blackburn, Lord— Territorial waters, law in regard to—Statement in Case relating to Concepcion Bay, Newfoundland. (Finlay) 218, 219. Blaine, Mr.—Secretary of State, United States— Opinion that Article VII of Treaty of 1825 applied to the lisiere only. (Robinson) 446. Blake, Sir E.— Martin, Peter, Case of—Placing release on ground that assault was made in United States' territory, while assuming legality of transport by river. (Dickinson) 804. Bluntschli— Droit International—Law in regard to territorial waters. (Finlay) 217, 218. Thalweg theory, application to an arm of the sea—Field's statement based on Bluntschli, alleged. (Taylor) 531, 532. Alverstone-Taylor discussion, 532. Bouchette maps— 1831—Crude pictorial representation of strip. (Finlay) 295. 1853, map of— Bays and inlets, boundary running round heads. (Watson) 329; (Taylor) 538. Portland Channel and Observatory Inlet, method of marking. (Finlay) 160, 161. Queen Charlotte's Island shown as belonging to Russia. (Robinson) 476; (Carson) 635. Bowell, Sir Mackenzie— Foster's, General, letter stating that no mention of British claim to heads of inlets was made at Conferences leading to Treaty of 1892—Sir M. Bowell's reply was really a confirmation of General Foster's statement. (Dickinson) 816, 817, 818. Opinion that there was a wide divergence of view between Great Britain and United States on the boundary question. (Robinson) 498. INDEX TO MINUTES OF PROCEEDINGS. XV Bristol Bay— Russian settlement at. (Watson) 348. British Columbia— Date of incorporation with Canada. (Finlay) 310; (Robinson) 492. Date when British Columbia became a province. (Robinson) 479, 483. Determination of boundary— Gold discoveries, effect of—Legislative Assemblv's Memorial, 1874. (Finlay) 312. Urging action on Dominion Government—Addresses to Lieutenant-Governor. (Finlay) 310. Reasons for insistence, no suggestion of doubt as to interpretation of Treaty of 1825, &c. (Dickinson) 796, 799, 802. Ten marine leagues boundary—Understanding in British Columbia as to width of lisiere—Article in the " Colonist." (Taylor) 552. British Columbia maps. (Taylor) 538— Mere indication of a belt of territory, map of 1884. (Finlay) 295,297. Mountains had nothing to do with question of delimitation—Evidence of map of 1884. (Dickinson) 765. Portland Channel question, evidence on— 1859—Official map. (Dickinson) 703, 704. 1884, map of. (Taylor) 530. 1893—Bramwell's map. (Dickinson) 705, 706. 1895—Martin's map. (Dickinson) 706. Geological survey map—Part of British Columbia and North-west Territory. (Dickinson) 704. Width of lisiere shown on map of 1884. (Dickinson) 761. Brue maps. (Taylor) 538— Mountains— Mountains had nothing to do with delimitation question— Evidence of map. (Dickinson) 764. Represented as coinciding with the boundary. (Finlay) 295. Portland Channel and Observatory Inlet shown on (Finlay) (1815) 103. (1833) 156, 157. Wales and Pearse Islands marked as Russian territory. (Taylor) 529. Bucks— Conventional line on Stikine River agreed on in 1875—Local arrangement not sanctioned by central authority. (Finlay) 313. Burgess, Mr.— White Pass Trail, proposed grant of Charter by United States' authorities—Protest against grant, statement of Canadian claim to inlets (1888). (Carson) 649. Protest sent to United States contained no mention of claim. (Dickinson) 812, 813. Caamafio's explorations. (Finlay) 83. Vancouver's mention of chart. (Finlay) 70. SI XVI ALASKAN BOUNDARY TRIBUNAL. Cameron, Major-General—Boundary Commissioner, &c.— Canadian Government's tacit disavowal of views on inlets question brought to their attention by reports of 1875 and 1886. (Dickinson) 811. Report of 1886, partial publication of, discussion of inlets question being omitted (Dickinson) 811. Change of views on inlets question—Extract from Report of 1875, showing that by " coast' Major Cameron understood shores of inlets. (Dickinson) 801. Dawson's, Dr., adoption of Major Cameron's views on inlets question. (Finlay) 317, 318; (Robinson) 483, 485; (Dickinson) 810. Dawson's, Dr., " Supplementary Memorandum on views of Major Cameron"—Extracts quoted from Major Cameron's Report. (Robinson) 489, 490. Map attached to Report of 1886, boundary line running round heads of bays and inlets—Important map as showing view held in official circles in Great Britain (Dickinson) 783. Report of 1875— Acquiescence was impossible after that Report. (Carson) 643. Congress, Report included among documents presented to, in 1880. (Carson) 648. Extracts from. (Carson) 641, 642, 643, 648. Omission of parts of Report from British Appendix, explanation of. (Carson) 640. Prescience shown in Report. (Finlay) 312, 313. Report taken from Sessional, not Congressional, papers— Root-Finlay discussion, 834. Suppression by Great Britain of Appendix favouring United States' Case, alleged—Allegation due to a mistake—Mr. Dickinson's explanation, 150, 151. Survey authorized by Canada in 1873—Major Cameron requested to report upon probable cost and duration— Documents and maps furnished by Foreign Office to Captain Cameron—No maps promulgated at that time showing boundary crossing inlets. (Dickinson) 800. Humphrey's, General, report of survey—Information before Major Cameron. (Dickinson) 801. Instructions, Captain Cameron's request for (November 9, 1873). (Finlay) 311. Terms of request. (Dickinson) 799. Canada, maps of Dominion of Canada, see Dominion of Canada. Canadian Pacific Railway map, see Dawson map. I Canal "— Local and special meaning in Alaska—A great arm of the sea, a fjord. (Taylor) 521, 525. Authority for definition—Lodge-Taylor discussion, 535, 536. (Refer also to title Portland Channel). Canning, Mr. G.—Secretary of State for Foreign Affairs, Great Britain. Acceptance of line proposed hj Russia with certain qualifications—Count Lieven to Count Nesselrode (May 20, June 1, 1824). (Watson) 371. INDEX TO MINUTES OF PROCEEDINGS. Canning, Mr. G.—Continued. Bagot, Sir O, letter to, announcing1 proposed negotiations, 1823. (Finlay) 28. Bagot-Poletica discussion—Instructions to Sir C. Bagot. (Finlay) 28, 29. " Coast," meaning attached to— Portland Canal, use of " coast" in connection with—Draft Convention. (Dickinson) 749. Reciprocal privileges question, see title Coast mentioned in Article III. Russian motives, Mr. Canning's instructions stated to be given upon a consideration of Russian motives. (Dickinson) 746, 747, 749. Sinuosities of the coast, Mr. Canning's understanding of phrase fixed by his reference to mountains, " which appear according to the map to follow all its sinuosities." (Dickinson) 758. I Strip of land required by Russia on the Continent" (Dickinson) 763. Words used to describe line from which the boundary should be taken. " Cote," inaccurate use of, in speaking of head of Portland Channel—Russian correction. (Finlay) 214,215. " Pacific," use of, in final draft. (Finlay) 217. " Sea," I depuis la mer." (Finlay) 217. Definite description of boundaries—Quotations from correspondence showing Mr. Canning's aim. (Watson) 400,401,403,430. Digest of negotiations, Mr. Taylor's extracts from Mr. Canning's despatches, 515, 517. Faden map—Mr. Canning's statement that the Faden map was the most authentic. (Watson) 393, 401, 404, 409, 412. Evidence that it was before the negotiators. (Dickinson) 677. Fifth negotiations—Despatch with Draft Convention (December 8,1824). (Finlay) 60. Fifty-four-forty (54° 40') — American Treaty of 1824, influence of, in inducing Mr. Canning to insert 54° 40' in Treaty of 1825. (Watson) 390, 391. Description of southernmost point of Prince of Wales Island in Draft Treaty, not mentioned in letter acompanying draft. (Carson) 570, 571. First negotiations—Instructions to Sir C. Bagot (January 15, 1824). (Finlay) 33. Fourth negotiations—Revision of Sir C. Bagot's instructions, with qualifications. Instructions to Sir C. Bagot with Draft Convention (July 12, 1824). (Finlay) 49, 50, 51, 52, 117, 118, 124, 181, 217. Lieven, Count, letter to (May 29, 1824). (Finlay) 48. Hudson's Bay Company's posts, protection of—Instructions to Duke of Wellington and Sir C Bagot. (Watson) 365, 366. Joint negotiations, Great Britain and United States—Letter to Sir C. Bagot (July 12, 1823). (Finlay) 29. ;:•;•:•:•: T" XVIII ALASKAN BOUNDARY TRIBUNAL. Canning, Mr. G.—Continued. Maritime jurisdiction, withdrawal of Russian claim— Indifference of Great Britain to territorial possession.— Despatch emphasizing maritime jurisdiction question (December 8, 1824). (Watson) 356. Instructions to Duke of Wellington and Sir C. Bagot. (Watson) 365, 366. Mountain boundary— Abolition of—Refusal to agree. (Watson) 402. Existence of mountains assumed as essential to draft. (Finlay) 234. Maps—Belief in a range of mountains substantially as shown on maps.—Extracts from despatches. (Watson) 403, 404, 406, 407, 409, 410, 412, 420. I Range," word used in Draft Convention, &c. (Watson) 404,412,415; (Carson) 615,616. Summit of mountains instead of seaward base, &c.—Letter to Sir C. Bagot. (Finlay) 54. Ten marine leagues proviso, see that sub-heading. Portland Channel— Northerly direction of boundary line—Draft Convention (July 12, 1824). (Dickinson) 661. Russian proposals as to Southern Water Boundary— Acceptance of, without alteration as regarded Portland Channel—Letters to Sir C. Bagot (May 29, July 2, 1824). (Dickinson) 689, 690, 691, 693. jj Knowledge of meaning attached by Count Nesselrode to Portland Channel and terms of Treaty of 1824. (Dickinson) 689, 693. Understanding as to direction of boundary line—" through Portland Channel." (Dickinson) 675. Portland Channel head to 56th parallel—Mr. Canning's instructions showing that he understood that the line was to go to the 56th degree. (Watson) 394. Russian Ukase of 1799—Exclusive ownership from Behring Sea to 55th parallel asserted by Russia, Mr. Canning's knowledge of. (Watson) 340. Ten marine leagues proviso— Absolute application of—Expressions used in Mr. Canning's instructions, draft Treaty, &c. (Watson) 430, 431, 434. Canning's, Mr. S., statement—" I have concluded a Treaty exactly in accordance with your instructions." (Robinson) 461, 462. Extracts from Treaty of 1825 negotiations. (Dickinson) 767,768,769, 770; Intention in inserting proviso expressed in final draft of Treaty. (Robinson) 461. Vancouver's narrative made known to British negotiators— Despatch forwarding Mr. Pelly's Memorandum to the Duke of Wellington. (Finlay) 25. References to Mr. Pelly's Report in instructions to Sir C. Bagot. (Finlay) 34, 35. INDEX TO MINUTES OF PROCEEDINGS. Canning, Mr. S.—British Plenipotentiary, Treaty of 1825— Coast— Meaning attached to—Treaty of 1825 negotiations. (Dickinson) 750,751. North-west Coast as used in Russian Ukase of 1821 understood by Mr. S. Canning in the Russian sense of entire coast—Letter to Lord Londonderry (February 19, 1822). (Dickinson) 738. Draft Treaty of December 8, 1824, alterations in—Despatch (February 17, 1825). (Finlay) 63, 64. Middleton's, Mr., Report of conversation with Mr. S. Canning, see Middleton. Mountain boundary and 10 marine leagues proviso—Draft of Treaty of 1825. (Dickinson) 769, 770. Portland Channel Head to 56th parallel, evidence from despatches that Mr. S. Canning understood that the line was to go to the 56th parallel. (Watson) 394, 395. Position of, in regard to negotiations prior to December, 1824— Merely put the final touches to the negotiations which had been pending for three years. (Taylor) 514. Previous negotiations were wiped out. (Robinson) 462. Tuyll's, Baron, share in negotiations—Despatch to Mr. G. Canning (May 3, 1823). (Finlay) 86. Carnarvon, Earl of— Martin, Peter, release of—Placing release on ground that Martin was a prisoner conveyed through United States' territory without stating whether territory were river or shore—Letter to Lord Dufferin. (August 16, 1877.) (Dickinson) 805. Census— Indian tribes, census of. (Dickinson) 808, 828. 1900, census of— Number of United States' citizens residing within the lisiere, principally along inlets. (Watson) 330,426. Total population 3,957 instead of 11,000, number of United States citizens considerably less than 3,957. (Carson) 654, 655, 656. Certainty— Description of boundary to be more definite—Fourth negotiations. (Finlay) 49. Object of the negotiators of Treaty of 1825—Bearing upon meaning to be assigned to " coast." (Dickinson) 733, 734, 735. Chacon, Cape— Latitude—Various latitudes given in maps prior and subsequent to Treaty of 1825. (Finlay) 116. Charter of Emperor Paul I, see Russian Ukase of 1799. Chartered Companies—_ International Law, Chartered Companies in—Lawrence on relations of such a Company as Hudson's Bay Company to the British Empire. (Taylor) 506. (See also titles Hudson's Bay Company and Russian-American Company.) Chatham Straits- Boundary negotiations, Treaty of 1825. (Finlay) 34, 121; (Watson) 373,383; (Dickinson) 739. XX ALASKAN BOUNDARY TRIBUNAL. 1 Chelkaht, see Chilkat. |p Chilkat River and Inlet— Collector of Customs, appointment of (1890). (Dickinson) 814, 829, 830. Determination of boundary—Proposals of 1873 and 1874. (Finlay) 311,312; (Watson) 331; (Dickinson) 799. Difficulty of deciding where river stops and inlet begins. (Finlay) 196. Foreign vessels forbidden to unload. (Dickinson) 807, 829. School at—Governor Swineford's Report, 1888. (Dickinson) 814. Survey of mouth of river by Lindenburg, 1838. (Finlay) 306. Chilkoot Pass— Ownership of trail—Opinion of United States District Attorney '(1888). (Dickinson) 829. Watershed at White and Chilkoot Passes fulfilling Treaty requirments as to mountain boundary—Hon. J. W. Foster's article in " National Geographic Magazine' (November, 1899). (Finlay) 246. Choate, Mr.—United States Ambassador in London— Date of first claim advanced by Great Britain that boundary should cross the inlets—No claim prior to 1898, alleged. (Finlay) 309, 321; (Robinson) 483; (Dickinson) 795. Dyea and Skagway, basis of United States' claim to—Choate- Salisbury correspondence, 1899. (Finlay) 321. President's Message—Interpretation that every question in connection with the boundary had been settled. (Robinson) 496. Christy, Mr. D.— Survey authorized by Canada in 1873—Terms of request to Captain Cameron to report on cost and duration. (Dickinson) 799. Climate of Alaska— Fogs, prevalence of. (Robinson) 458. Reasons for Russian settlements being upon the islands rather than upon the mainland. (Watson) 362. Coast—What constitutes the Coast Line, Inlets Question, &c.— Articles I and VII taken together (Treaty of 1825) — | Coast mentioned in Article III "—Expression could only refer to first words of Article—Distinction pointed out by Lord Salisbury. (Dickinson) 729. Distinction plainly drawn between inlets and ocean—General application which Article I would otherwise have had to the inlets was superseded by Article VII, a separate article dealing with the inlets in a separate way. (Finlay) 227, 228. (Robinson) 451, 452, 470. Establishments—Landing, forming new establishments, &c.—Provisions which did not seem to affect meaning of " ocean " in Article I—Probably copied from the American Treaty. (Robinson) 452, 470. Landing permitted on such parts of the coast as were not already occupied. Restrictions in Article I, not in Article VII. (Robinson) 451, 470. Right of innocent passage, &c, would soon have been brought to an end by presence of Russian- Ajnerican Company. (Robinson) 471. INDEX TO MINUTES OF PROCEEDINGS. Uoast—What constitutes the Coast Line, &c.—Continued. Articles I and VII taken together (Treaty of 1825)—Cont'd. Distinction plainly drawn, etc.—Continued. Middleton's, Mr., letter announcing extension of general privileges (April 7, 1824). (Robinson) 453, 471. Maritime jurisdiction claim withdrawn by Article I—Additional rights of landing, &c, given by Article VII. (Dickinson) 729. Cameron, Major-General, views of, see Cameron. Canadian territory did not extend to the Pacific until 1871— Aylesworth-Watson discussion. 333. Coast mentioned in Article III (see that title). I Coast' and " ocean ||—Meaning of terms as used in negotiations and in Treaty of 1825—Alternative terms, distinction ml 7 between inlets and ocean, &c.— Answer to Question 5 dependent on meaning assigned to "coast." (Finlay) 183,186; (Dickinson) 732. Both terms designated the same line from which measurement of the lisiere would be made. (Finlay) 187,217; (Robinson) 443. Cameron's, Major, Report included among documents submitted to Congress. (Carson) 648. Canning's, Mr. G., inacurate use of " cote " in speaking of head of Portland Channel. (Finlay) 214, 215—Russian correction. 215. Change in wording of the treaty—M. Matusevich's correction, &c.—Aylesworth-Carson discussion. 633. Definition of " coast "— British definition said that" ocean | was | mere ocean |— Arbitrary selection of arms of the sea which should be considered ocean. (Watson) 439, 440. Lynn Canal—Is the head of Lvnn Canal the ocean? ml m/ See that sub-heading. Ocean coast. (Robinson) 443. Ocean edge as universally understood, not something . which runs up the inlets. (Carson) 624, 625. Various meanings attached to " coast" according to the British contention. (Dickinson) 733. Various meanings attached to coast according to the United States Counter-Case. (Finlay) 188, 189. I Where salt water touches land," word " ocean' j being disregarded as confusing. (Taylor) 548, 550— Disputable proposition. (Finlay) 188. Novel definition. (Carson) 628. Definition of " ocean "— Evolution of term " ocean " during negotiations of Treaty of 1825. (Robinson) 471. Outside edge of islands generally included, but since the Russian ownership of the islands was an admitted fact on both sides, the definition had to be modified accordingly. (Robinson) 471, 472. w nuuim XXII ALASKAN BOUNDARY TRIBUNAL. Coast—What constitutes the Coast Line, &c.—Continued. " Coast'' and " ocean "—Meaning of terms, etc.—Continued. Historical meaning of phrase " North-west Coast of America "—Ukase of 1799 and 1821. (Dickinson) 735, 736,737. Canning's Mr. G., use of phrase " North-west Coast." (Dickinson) 747. Nesselrode's, Count, understanding of " coast." (Dickinson) 746. Reading into documents considerations which did not affect the minds of those who framed them—Aver- stone-Dickinson discussion. 736. Settlements on the coast, not necessarily on salt water, inclusion in " coast "—Aylesworth-Dickinson discussion, 736. Trading rights, United States' Argument based on. (Finlay) 193. Understanding of phrase as applying to entire coast by British and United States' representatives—Extracts from letters of Sir C. Bagot, Mr. Pelly, Mr. S. Canning, Mr. Adams. (Dickinson) 737, 738, 739. United States claim that Russia would not have used the word in a different sense in the Treaty. (Finlay) 192, 193. Lynn Canal—Is the head of Lynn Canal the ocean ?— Dawson's, Dr., expression, " the coast of Skagway." (Robinson) 444. Local application of term " coast"—Planters living up the Mississippi spoken of in New Orleans as living up the " coast." (Robinson) 446. Norway fjords never spoken of as ocean. (Robinson) 445/ Popular opinion. (Robinson) 443. International law, question of, and in no way dependent upon kerbstone opinions quoted by Mr. Robinson. (Taylor) 543. Principle upon which term " ocean " is applied—Suppose Lynn Canal had been 150 miles long and 1 mile wide? (Robinson) 445. Territorial waters—If Lynn Canal was to be the ocean, it could not also be territorial waters. (Robinson) 445. Treaty of 1825 negotiations—Distinction drawn between ocean and inlets, see sub-heading, Articles I and VII. I Wilcock's distinction between " coast" and " ocean." (Robinson) 444. Maps, evidence of— Maps before the negotiators—" Cote " to which mountains were parallel was a " cote in its usual significance of wherever water and land meet." (Watson) 422. Maps subsequent to the Treaty. (Dickinson) 761. INDEX TO MINUTES OF PROCEEDINGS. Coast—What constitutes the Coast Line, &c.—Continued. "Coast" and "ocean"—Meaning of terms, etc.—Continued. Ocean terminus— Located by Sir W. Laurier at Dyea, at the very place where the ocean ends according to international law. (Taylor) 549, 550. Special meaning of " ocean," not as universally understood. (Robinson) 445. " Pacifick "—Word used in Mr. Canning's draft translated into " ocean" in the Treaty. (Carson) 629. Portland Channel Head, description by negotiators showing that they drew a distinction between inlets and ocean— "Dans Ies terres," description accepted. (Carson) 628. Description equally applicable to Lynn Canal. (Carson) 628, 629. Russian negotiators, distinction between the coast and the interior of Portland Channel. (Finlay) 41, 213 214. " Touching the coast of the continent," description rejected. (Carson) 629. Principles to be observed in determining meaning attached to " coast "— British contention—In determining meaning of " coast" in Article III, regard must be had to the fact that in Article IV the word " ocean " is used to designate what must be the same line. (Finlay) Im 217. Criticism of British contention. (Watson) 440. United States' contention—Controlling word was " coast," and, when the meaning of that was fixed, the meaning of " ocean' became coincident with it. (Finlay) 187, 189. Vattel's rules for interpretation of Treaties. (Dickinson) 733, 734. Territorial waters, see that title. Text of Articles III and IV, 186. Treaty of 1824, provisions of, adopted in Treaty of 1825— Presumption that provisions were similarly construed in both Treaties. (Dickinson) 739. Treaty of 1825—Mr. Dickinson's review of negotiations showing development of meaning of word " coast 739. Canning's, Mr. G., use of " coast " in Draft Convention, Count Lieven's understanding of, &c, 749, 750. Canning's, Mr. S., understanding of effect of line drawn parallel to the coast, 750, 751. Diminutive expressions in regard to strip of coast used by the Russian negotiators, explanation of—It was policy to belittle their demands, and what they asked was a small matter compared wTith the vast continent with which they were dealing, 657, 762, 763. 55 mil XXIV ALASKAN BOUNDARY TRIBUNAL. Coast—What constitutes the Coast Line, &c.—Continued. " Coast " and " ocean "—Meaning of terms, etc.—Continued. Treaty of 1825—Mr. Dickinson's review, etc.—Continued. Exclusive rights to waters between the islands and the mainland, securing to Russia in addition to strip of coast—Sir C. Bagot's insistence on concession made to Russia by his amended proposal would have no meaning if " coast II were used in British sense, 740, 741, 744, 745. Hunting, trading, and fishing rights, British demand— Rights explicitly stated to refer to whole of coast both in British demand and Russian objections, 750. See also title Coast mentioned in Article III. Lynn Canal, entire western coast given to Russia by Sh* C. Bagot's first and second proposals, 739. | Mountains which border the coast"—The negotiators clearly referred to the mountains as shown on the Vancouver and Faden maps bordering the entire coast, 740. Parallelism and sinuosity, question of, did not begin till the line reached the 56th parallel, 747. " Rivage," significance of Sir C. Bagot's use of term, 740, 741. Russian motives in demanding a strip of coast upon the mainland—Barrier against competition of Hudson's Bay Company and protection for island establishments, 747, 748. Canning's, Mr. G., instructions stated to be given upon consideration of Russian motives which would certainly not be satisfied by the broken lisiere of the British contention, 746, 747, 749. Trade that Russia desired to protect and secure was with the Indians of the inlets and up the coast— British lisiere would have given no sort of protection, 760, 761, 762. Russian negotiators, understanding of—Count Nessel- rode's use of " coast" in the sense of the North-west Coast of Ukases, 745, 746, 751. Sinuosities of the coast— British contention that a line parallel to sinuosities was an impossibility. The sinuosities referred to by the negotiators were those to which the mountains of the Vancouver and Faden maps were parallel, 741, 758. Question of, did not begin till the line reached the 56th parallel, 747. United States contention—Throughout the negotiations " coast" was read in its historical sense of North-west Coast of America and applied to the whole coast, 763. Continuous strip of coast running round heads of bays and inlets, cutting off British possession from the inlets, &c.—Barrier v. " point d'appui "—Question V. (Finlay) 36, 37, 41, 42, 45, 47; (Watson) 368, 369, 370, 381; (Robinson) 468,472,473; (Taylor) 519; (Carson) 599. INDEX TO MINUTES OF PROCEEDINGS. 3oast—What constitutes the Coast Line, &c.—Continued. Continuous strip of coast, etc.—Continued. Absence from Treaty of 1825 of any express statement securing inlets to Russia—Inference to be drawn from— Extract from Mr. Taylor's treatise, &c. (Robinson) 473. Bagot's, Sir O, objection to Russian proposal as depriving Great Britain of sovereignty over inlets and small bays between parallels 56° and 54° 45'. (Finlay) 224, 225; (Watson) 372, 383. Character of inlets, sustained individuality—Characteristics well known when Treaty of 1825 was made. (Dickinson) 732, 763. Coast and islands were practically one—Indian settlements were round the inlets and Russian settlements upon the islands, temperature of the islands being more favourable. (Watson) 362. Coast and ocean, see that sub-heading. Determination of particular points, 1873 proposal—Position of rivers selected, bearing on United States' bays and inlets contention. (Watson) 331, 332. Diminutives used by negotiators in speaking of the lisiere. (Dickinson) 657. " Mediocre espece de terre ferme "— Comparatively speaking true, that it was a very small piece of territory out of the entire extent. (Watson) 360, 361, 371, 379. Description incompatible with extent of territory claimed by United States. (Finlay) 47. Nesselrode's, Count, despatch to Count Lieven (April 5 (17), 1824). (Finlay) 46, 47, 48; (Watson) 361. "Simple lisiere' means "mere strip' rather than I small strip." (Finlay) 46. Exclusive ownership of North-west Coast, Russian claim, see sub-heading Sovereignty. Fifty to one hundred miles proposed as width of lisiere— Canning's, Mr., letter (January 8, 1824) and Sir C. Bagot's proposal (February 28, 1824). (Watson) 373, 382. Bagot's, Sir O, interpretation of his own line— Limit on territory that was being assigned. (Carson) 603. In addition to concession in Lynn Canal region the British negotiators were proposing to give 50- 100 miles of coast. (Watson) 382—Criticism of Mr. Watson's contention. (Carson) 601, 602. Precaution in view of uncertainty as to where the 135th meridian would fall—Aylesworth-Carson discussion, 603. Hudson's Bay Company's proposals—Mr. Pelly's letter (January 8,1824). (Watson) 373. Independent consideration of Question V.—Question entirely dissociated from 10 marine league range and from location of boundary line. (Dickinson) 732. ".ws *3K XXVI ALASKAN BOUNDARY TRIBUNAL. Coast—What constitutes the Coast Line, &c.—Continued. Continuous strip of coast, etc.—Continued. Insufficient barrier— Russian contre-projet (third negotiations)—Strait between islands and mainland preferable to mountain boundary — Hudson's Bay Company's criticism. (Watson) 373, 374, 379. Unconnected strips and 36 miles of boundary over water—British line. (Watson) 441. Mackenzie River—Mr. Canning's proposal of meridian further west than 139° to exclude all approach to Mackenzie River. (Watson) 371. Maps— Evidence of, in favour of boundary line running round bays and inlets. (Watson) 328, 329. Reading the maps into the Treaty, if it could be done, would, as Mr. Watson contended, possibly settle Question V. (Carson) 611. Mountain boundary— King's, Mr., mountain line—Why was that not as good a barrier as the continuous range? (Carson) 614. Lynn Canal, range at head of, and Mount St. Elias range running round heads of bays and inlets. (Watson) 417. Maps before the negotiators—All mountain ranges running round heads of bays and-inlets. (Watson) 403, 405, 406, 411, 420, 421. \ Mountains parallel to the coast, line following—No reason why it should not cross an inlet, if the required summits were to be found on either side. (Carson) 622. Nature of barrier desired—Lisiere to be upon the mainland—Treaty of 1825 negotiations. (Watson) 379, 380. 1 Never was a boundary on the mainland that did not run .. *i round heads of bays-and inlets —United States contention on Treaty of 1825 negotiations. (Watson) 381. Bagot's, Sir C, objection to Russian proposal as depriving Great Britain of sovereignty over inlets and small bavs between parallels 56° and 54° 45'. (Watson) 383. Fifty to one hundred miles proposed by Mr. G. Canning (January 15, 1824). (Watson) 382. Third negotiations, Bagot amended proposal—10-marine league line must have rim round heads of inlets because Sir C. Bagot stated that his proposal gave Russia the exclusive jurisdiction over all inland waters. (Watson) 384. Ocean, approach to—Barrier made no difference owing to navigation rights on the rivers— Trading, prevention of—Turner-Carson discussion, 600. Two barriers claimed by United States—Barrier by land and barrier by water. (Carson) 601. INDEX TO MINUTES OF PROCEEDINGS. 3oast—What constitutes the Coast Line, &c.—Continued. Continuous strip of coast, etc.—Continued. Peninsulas question—British claim. (Finlay) 189,190,216. Poletica's, M., despatch referring to Count de Lambert's desire to establish a barrier. (Finlay) 31,221. Posts—Would a series of stations along the mainland have secured the Russian object equally with a continuous strip ?—Finlay-Aylesworth discussion, 41,42. Protection of establishments upon the islands was Russia's real motive for claiming the mainland—Passages cited from Treaty of 1825 negotiations. (Carson) 604. Question to be decided by the Tribunal. Answer desired by Great Britain. (Finlay) 9, 10. Meaning of Question 5. (Finlay) 183; (Dickinson) 731. Mountain boundary—Overriding principle which would be laid down by an affirmative answer to Question 5. (Finlay) 93. Sinuosities of the coast, neglect of, necessitated by an affirmative answer. (Carson) 578,579. United States' interpretation contrasted with British interpretation. (Finlay) 185. Was it the intention of the negotiators not to leave an inch of any inlet to Great Britain under any circumstances? (Carson) 576. Width of lisiere agreed on by negotiators would be fixed not by 10-marine league limit, but by inlets in case of an affirmative answer. (Carson) 577. Rivers, free navigation of—Bearing on barrier question— Collision was not, and could not be, prevented—Navigation rights on the rivers brought the British and Russian Companies side by side. (Carson) 600. Almost first dispute was in reference to establishments on the Stikine. (Carson) 599. Special permit granted by Russia to Great Britain was strongest confirmation of barrier theory. (Taylor) 552, 553. Why should there be intention to exclude Great Britain from inlets, if she was to have full access to the rivers? (Finlay) 19; (Robinson) 468,472, Arms of the sea, rivers as—Mr. Justice Storey's statement. (Robinson) 472,473. Rocky Mountains suggested as interior boundary— Hudson's Bay Company's proposal. (Watson) 373. Mordvinof's, Adm., proposal. (Watson) 370. Russian definition of boundary line on transfer of property to United States. (Watson) 327. Russian Plenipotentiaries, explanation of motives, &c. (Finlay) 41, 44, 45, 125; (Watson) 369, 370. Sovereignty of mainland coast and of inland waters, see subheading Sovereignty. XXVIII ALASKAN BOUNDARY TRIBUNAL. Coast—What constitutes the Coast Line, &c.—Continued. Continuous strip of coast, etc.—Continued. Strategic considerations did not enter into the question—No inconsistency whatever between what Russia wanted and Great Britain retaining heads of inlets. (Finlav) 37, 41, 42. Ten marine leagues limit, application of—Boundary would still run round heads of bays and inlets. (WatsonJ 433, 436. Territorial waters no more an interruption of the barrier than the rivers, the right of navigating-which was secured to Great Britain. (Finlay), 221, 222, 224, 229, 239. Continuous strip of coast running round heads of bays and inlets having been decided against, what was the coast line from which the lisiere should be measured?—Question VI. " Coast" and " ocean," see that sub-heading. General direction of the mainland coast, see that sub-heading. Line separating territorial waters from waters of ocean— Position of line— Line joining headlands across the entrance to an inlet. (Carson) 579. Out along the islands. (Dickinson) 722. Taylor's, Mr., contention that there was no ocean in these inland seas. (Carson) 578, 579. Mainland coast of the ocean strictlv so-called—Measurement ms along line perpendicular thereto— Meaning attached to the question by the Parties. (Carson) 625. " Ocean strictly so-called," or " coast strictly so- called "—Effect of the alternative interpretation. (Dickinson) 719, 720. Two conditions necessary in order to obtain an answer ml to the question. (Dickinson) 719. Mainland coast indented by deep inlets forming part of the territorial waters of Russia— Aspect in which questions were put shows that it was supposed that the inlets might be the territorial waters of Russia. (Dickinson) 722. England's possible ownership of part of inlets, no mention of. (Dickinson) 720, 721. Meaning of mainland coast—Entire coast. (Dickinson) 721. Second branch of the question not equivalent to the first, as alleged. (Dickinson) 720. Additional condition—Deep inlets forming part of the territorial waters of Russia. (Dickinson) 720, 721. " Ocean " not mentioned in second branch of question. (Dickinson) 721. Physical and political coast line, see that sub-heading. INDEX TO MINUTES OF PROCEEDINGS. Coast—What constitutes the Coast Line, &c.—Continued. Continuous strip of coast, etc.—Continued. Question to be decided by the Tribunal— Answer desired by Great Britain. (Finlay) 10; 243. Answer desired by United States. (Finlay) 186. Heads of inlets—An affirmative answer to Question (c) would give the American line. (Carson) 581. Meaning of Question 6. (Finlay) 183; (Taylor) 542. Question did not arise if British contention that there were mountains all the way was proved correct. (Finlay) 11. River and inlet question—Point where an arm of the sea ceases to be the sea—Peyroux v. Howard cited against United States. Case was not applicable even if it had not been overruled. (Taylor) 548, 549. Navigable character of water substituted by United States for principle of rise and fall of tide, as test of Admiralty jurisdiction—Case of Peyroux v. Howard overruled. (Taylor) 549. Territorial waters, see that title. Tide water, see that sub-heading. Date of first claim by Great Britain to heads of inlets, see title Notice. Divergence of view on boundary question between Great Britain and United States—Opinions of General Foster and Sir M. Bowell. (Robinson) 498, 499. General direction of the mainland coast—British contention as to line of coast from which to measure lisiere. > Bayard, Mr., and Mr. Phelps, expressions used by. (Carson) 628. Criticism of British contention—" Coast' in the Treaty meant the general line of the coast, and " coast" was coincident with " ocean." (Dickinson) 751, 752. Acreage given by United States' line, British objections based on—Principle of United States' and British lines was identical and the same objection applied to both. (Dickinson) 759. Map showing general line of British contention— " Coast" crossing islands, " ocean " coming miles inland and reaching elevations of 3,000 and 4,000 feet. (Dickinson) 752-755. Line shown on map represented not the coast line but the general trend of the coast—Carson-Dick- inson-Alverstone discussion, 753, 754. Dennis's, Mr., report, 1874, confirmation of British view. (Robinson) 493. Dickinson's, Mr., map—Carson-Dickinson discussion, 629. Di3stinction between " general trend of the coast" and " trend of the general coast"—Finlay-Turner discussion, 15. Hunter survey of 1877—Understanding that the general line of coast was to be followed. (Finlay) 315. S. Doc. 162, 5S-2, vol 7 31 mmm XXX ALASKAN BOUNDARY TRIBUNAL. Coast—What constitutes the Coast Line, &c.—Continued. General direction of mainland coast, etc.—Continued. Hunter survey of 1877, etc.—Continued. Inlets occurred within limits specified, and were bisected by the line showing general trend of coast, which was given to Mr. Hunter to verify. (Finlay) 197, 198. Instructions given to Mr. Hunter. (Finlay) 196; . (Carson) 644. Report presented (1877). (Finlay) 198. Joint survey of 1893 and 1894— Mendenhall's, Mr., instructions— Lynn Canal Survey—Measurements taken from a point below mouth of Taiya Inlet. (Finlay) 247. Stikine River Survey—Survey carried back 10 marine leagues from mouth of Le Comte Bay- United States' Survey Sheet No. 4. (Finlay) 205, 206. Taku Inlet, Survey of. (Finlay) 15, 16, 205. Was the labour and expense of the survey, &c, undertaken on a mistaken basis? (Carson) 626, 627. Purpose of survey—To provide materials for delimitation of boundary under the Treaty. (Finlay) 207, 208. Report of Commissioners—United States' Memorandum showing that Report was held by United States to provide the required materials. (Finlay) 208. Meaning attached to section (a) of second part of question VI. (Carson) 625, 626. Meaning of 1 general direction of mainland coast." (Carson) 579. British definition— Extraordinary meaning attached to word "coast"— Impossible to appreciate intention of Treaty to use the word in such an unusual sense as an appurtenant to an existing right. (Dickinson) 658. Required something to be read into the Treaty— Either " general coast," or " general trend of coast," or " mainland coast." (Dickinson) 659. Line departing from mainland coast but going in general direction of it, following theindentations. (Dickinson) 721. Mendenhall, Mr., views of. (Robinson) 494. (See also sub-heading Joint Survey.) Negotiators of Treaty of 1825—Nothing in the negotiations to show that any one of the negotiators intended such a coast. (Dickinson) 734, 735. Parallel argument—Coast must be something to which a line could be drawn parallel— British line represented not the coast line, but the general trend of the coast. (Dickinson) 753, 754. Wtt INDEX TO MINUTES OF PROCEEDINGS. XXXI Coast—What constitutes the Coast Line, &c.—Continued. General direction of mainland coast, etc.—Continued. Parallel argument, etc.—Continued. Dall's, Mr., Memorandum (December 19, 1888). (Finlay) 215, 216. Definition of parallel curve—Authorities quoted. (Dickinson) 757. Line governed by coast was to be parallel to coast, whether it were the mountain or the 10 marine leagues line. (Robinson) 457. Partial failure of mountain boundary provided for in the Treaty by a line parallel to the coast. (Finlay) 216. Russian Ukase of 1821—Impossible to draw a seaward line parallel to anything but general line of coast. (Finlay) 189, 193. Suppression of mountain boundary proposed during Treaty* negotiations, when the entire line must have been parallel to the coast. (Finlay) 216. " Rivage' or " shore," use of, in negotiations in place of " cote ' or " coast "—United States Argument based on. (Finlay) 211, 212, 213. Thorn, Mr. (Director of United States Coast and Geodetic Survey), views of. (Finlay) 14, 201; (Robinson) 495. Use of phrase " general trend." (Carson) 650. Understanding of United States officials with reference to surveys, &c.—Instances of. (Finlay) 209, 210, 211. (See also sub-heading Joint Survey of 1893 and 1894, and names of officials.) Parallel Argument, see sub-headings General direction of the mainland coast and sinuosities. Physical and political coast lines—Position of, respective lines from which lisiere is to be measured, &c. Accessory to physical coast line, function of political coast line. (Taylor) $43. Bays and inlets, political coast line permitted to cut across heads. (Taylor) 545, 548. Criticism of Mr. Taylor's contention that there was no political coast line on the mainland, interior waters being therefore territorial waters, and a general trend of coast an impossibility. (Carson) 581, 591, 622, 623. Admission of a general trend of coast by everybody concerned. (Carson) 623. Ocean—word might be discarded altogether, effect of Mr. Taylor's contention. (Carson) 624. Protest against reading twisted views of writers upon international law into the Treaty. (Carson) 624. Russia was not in possession of the mainland before the Treaty of 1825, therefore the mainland had a political coast. (Carson) 581, 582, 623. XXXII A&ASKAN BOUNDARY TRIBUNAL. Coast—What constitutes the Coast Line, &c.—Continued. Physical and political coast lines, etc.—Continued. Definition of physical and political coast line. (Taylor) 543. United States Counter-Case definitions. (Finlay) 188. Double political coast line, British Argument—Impossible contention, once political coast line was established no interior line could be drawn. (Taylor) 545, 546, 547, 548. General trend of the coast, British line based on assumption that it was possible to draw an interior political coast line—No such thing recognized as general trend in international law except political coast line. (Taylor) 545,548. Headlands, measurement from—Proposition based on assumption that it was possible to have interior political coast line. (Taylor) 547. Interior coast line was a physical coast line, and existed for purpose of boundary only. (Taylor) 548. Island fringe affecting territorial boundary—Political coast line running along outside limit. Admission in the British Argument that political coast line was outside of island fringe. (Taylor) 545, 546. Hall on—Instance cited of archipelago off Cuba. (Taylor) 544, 545. Louisiana, boundary of—Lord Stowell's opinion that the political coast line was outside mud islands at mouth of Mississippi. (Taylor) 545. Line separating waters of ocean from territorial waters of Russia—Proposition based on assumption that it was possible to have interior political coast line. (Taylor) 547. Maine, coast of, as basis for illustration—Description from " Nouveau Dictionnaire." (Taylor) 544. Raison d'etre of political coast line was a barrier for protection against Foreign States. (Taylor) 547. Rivier's distinction between physical and political coast line. (Taylor) 543, 545. Sinuosities of the coast, explanation of. (Taylor) 548. Two coast lines, and only two, dealt with by international law. (Taylor) 543. Water behind political coast line was territorial water. (Taylor) 544, 546, 548. Powers of the Tribunal—Tribunal had no power to define | coast," nor even to decide its jurisdiction in relation to the matter. (Carson) 578, 579, 582. pi Criticism of Solicitor-General's position. (Dickinson) 719, 831. Sinuosities of the coast—Line taking in all inlets v. Line following sinuosities of general line coast. (Finlay) 186,187. Dall's, Mr., opinion as to inclusion of inlets. (Finlay) 201. Inlet was not a sinuosity of the coast—Expression used by negotiators not applicable to inlets. (Finlay) 187, 201. Maps before the negotiators showing that sinuosities included all bays and inlets. (Watson) 423. INDEX TO MINUTES OF PROCEEDINGS. XXXIII oast—What constitutes the Coast Line, &c.—Continued. Sinuosities of the coast, etc.—Continued. Parallelism, question of—Impossible to draw a line parallel to the sinuosities of the coast. (Carson) 625. Objection to United States coast line as one to which a parallel was impossible applied equally to British line if " coast'! and " ocean ' were held to be coincident. (Dickinson) 756, 757. Probably never entered heads of negotiators just how line was going to be drawn. (Dickinson) 658. Sovereignty of mainland coast and inland waters, exclusive sovereignty of Russia—United States contention. (Watson) 375,435,436,440; (Carson) 585,590. Acquiescence of Foreign Powers. (Watson) 347, 355. Practically admitted by England—Never denied during Treaty of 1825 negotiations. (Watson) 346, 347, 348, 357. of omission and commission done by the respective Governments, evidence of understanding—British claim was confined to individuals, and was never put forward by the Government until recently. Great Britain never sent a ship, never did anything in the world to manifest that it claimed sovereignty from the time the Treaty was made. (Dickinson) Acts 785, 790. Maps, evidence of. (Dickinson) 785. Russia utilized the waters and coasts, and established relations with the natives. (Dickinson) 785. Bagot's, Sir C., objection to the Russian proposal, because it would deprive Great Britain of sovereignty over inlets and small bays between 56° and 54° 45' parallels. (Finlay) 38,121,125,224,225.' Formal claim down to 55° never challenged by England— Criticism of Mr. Watson's contention. British trade on North-west Coast—Mr. Watson's statement that Great Britain never went near the coast before 1821. (Carson) 593. Bancroft found himself forestalled by English and American ships. (Carson) 593. Vancouver—List of ships employed in fur trade in 1792, British ships, &c, given by Vancouver. (Carson) 593, 594. Faden map, British claim shown on. (Carson) 591, 594. Ukase of 1799, never disputed by any nation—Publication of Ukase of 1821 proved that Ukase of 1799 was [ not acquiesced in. (Carson) 593. Ukase of 1821 was the first assertion of Russian sovereignty on the mainland, and was immediately challenged by Great Britain and the United States. (Carson) 593. Vancouver—Taking possession of continent from New Gorgia, N.W., to Cape Spencer. (Carson) 594. XXXIV ALASKAN BOUNDARY TRIBUNAL. Coast—What constitutes the Coast Line, &c.—Continued. Sovereignty of mainland coast, etc.—Continued. Formal claim down to 55° never challenged, etc.—Cont'd. Wellington's, Duke of, request for information—British claims stated in Memorandum on request. (Carson) 595. Hudson's Bay Company's lease, Evidence of— British Government had direct notice by evidence given before House of Commons Committee in 1857—No protest was made that the Company could not hold inlets from a foreign Government, which inlets it is now contended belonged to Great Britain. (Dickinson) 787-790. Company abandoned the territory after the American purchase. (Dickinson) 789. • Pelly map, 1849—Evidence as to territory included. (Dickinson) 790. Islands, situation of—Nearness to the Continent, necessity for Russia to exercise sovereignty over adjacent coast. I ' (Watson) 349, 350, 351, 363. Maps subsequent to Treaty of 1825—Location of boundary line with reference to inland waters— Great Britain and Canada, maps of. (Dickinson) 781-785. Private cartographers' maps, understanding evidenced by. (Dickinson) 770, 790. Russian maps. (Dickinson) 778-782. Unchallenged location of line in regard to inlets—No protest from Great Britain. (Dickinson) 781, 782, 783, 790. Admiralty maps, evidence of, up to 1901. (Dickinson) 784. - (For particular maps, see their names.) Mutual convenience—Principles of right and actual state of facts waived in favour of. (Carson) 592, 593. Navigation rights as regards inlets;—No provision in Treaty of 1825, alleged—Where right of navigation of a river existed there would follow by the law of nations the right to use the inlet so far as it formed territorial waters. (Finlay) 19, 224. Criticism of contention. (Dickinson) 776, 777. Canadian dissatisfaction at loss of river navigation rights—No need for complaint if heads of inlets had belonged to Great Britain. (Dickinson) 777. Occupation of territory, see that title. " Parages," wrongly translated as waters—Real meaning. (Watson) 385; (Carson) 385; (Watson) 386. Proofs of exclusive ownership offered by Russia—Discovery, occupation, &c. (Watson) 347. Settlement of question—United States contention that question had not been an open matter since the very year of the Treaty. (Dickinson) 782. INDEX TO MINUTES OF PROCEEDINGS. Coast—What constitutes the Coast Line, &c.—Continued. Sovereignty of mainland coast, etc.—Continued. Spanish claims to exclusive possession of North-west Coast beyond Prince William's Sound. %7 Admission of, by Russia—Inclosures in Mr. Adams' letter to Mr. Middleton. (Carson) 589. Transference to United States by Treaty of 1819. (Finlay) 30; (Watson) 358; (Taylor) 512; (Carson) 592. Summary of British reply to Mr. Watson's contention. (Carson) 596. Trading, hunting, and fishing rights—Exclusive grant by Russia to Russian-American Company. (Watson) 348, 358. Ukase of 1799. (Watson) 339, 340, 341, 343, 367. Ukase of 1821. (Watson) 341, 342, 343, 344, 367. Treaty of 1825 negotiations—Admitted rights of Russia— Mr. Watson's contention and Sir E. Carson's criticism of it. Bagot amended proposal. (Watson) 376, 384. Waters spoken of were entirely different. (Carson) 598. Bagot-Poletica Conference—" Liberty to permit foreign navigation in our waters," &c. (Watson) 375; (Carson) 598. " Parages "—Meaning of. (Carson) 598. Bagot Reply to observations of Russian Plenipotentiaries—" Possession of all the islands and the waters adjacent." (Watson) 375,386; (Carson) 599. Navigation rights claimed by Great Britain— Canning's, Mr., despatch claiming recognition of Great Britain's right to go into rivers, creeks, &c, on the continent—Meant whatever inland waters the Russians got they refused to give a perpetual right. (Carson) 599. For ever—Russian refusal to grant demand. (Watson) 376, 377, 378, 381. Ten years—Russian proposal 377—Acceptance by Great Britain. (Watson) 378. Passages cited by Mr. Watson left the waters all through the negotiations exactly as they were in the Treaty—Nothing to show that the negotiators had in mind the "giving of the inland waters at all. (Carson,) 597, 599. Recognition of previous claims by Treaty of 1825—Turner-Carson discussion, 587, 588, 596. Russian proposal, third negotiations. (Watson) 375. Treaty of 1867—Russian representations on transfer of Alaska to United States alleged. (W7atson) 327, 328; (Carson) 634. United States understanding in regard to Russian rights. Repeated declarations as to sovereignty of inland waters from Russia, ho declaration, by map or otherwise, from Great Britain. (Dickinson) 790, 791. »* I ■ ;;•% kk m BR XXXVI ALASKAN BOUNDARY TRIBUNAL. Coast—What constitutes the Coast Line, &c.—Continued. Sovereignty of mainland coast, etc.—Continued. United States understanding, etc.—Continued. Russia had no exclusive territorial possession of any part of the continent south of 60° north. Adams's, Mr., letter to Mr. Middleton immediately after publication of Ukase of 1821, extracts from. (Carson) 586, 587, 588. Middleton's, Mr., Memorandum to Russian Government. (Carson) 590,591,592. Summary of argument in favour of British contention. (Finlay) 324, 325, 326. . Tide water or salt water—United ^feates contention as to measurement of the 10 marine leagues—Meaning of tide water. (Finlay) 194. Synonymous with heads of inlets—Mr. Dickinson's explanation of United States' interpretation of tide water. (Finlay) 195. WTiere are the heads of the inlets?—Where does river stop and inlet begin?—Impossibility of such a line. (Finlay) 195, 196. Coast mentioned in Article III—Reciprocal privileges granted by Article VII of Treaty of 1825—British contention that Article VII referred to the lisiere and that Great Britain had part ownership of inlets v. United States' contention that Article VII referred to coast below 54° 40', &c. (Robinson) 446, 447, 469. Abandonment of right to form establishments was equivalent to abandonment of territory in that part of the world. (Robinson) 447, 448. Articles I and VII taken together, see that sub-heading. Articles VI and VII—Distinction between terms used " coast described in Article III" and " coast mentioned in Article III." (Dickinson) 730. Behring Sea Arbitration arguments used in giving application to effect of Article VII. (Robinson) 446; (Dickinson) 730, 731. Blaine's, Mr., opinion that Article VII applied to the lisiere only. (Robinson) 446. Canning's, Mr. G., ©raft Treaty (December 8, 1824)—No coast in the sense of general coast mentioned in Article III, " Coast' contrasted with " borders of the Continent." (Mnlay) 231, 232, 233. Criticism of argument based on fact that initial words of Article III make no mention of " coast" at all. (Dickinson) 724, 725. Article II describes the l$8$e¥e alone, and Article III refers immediately to the preceding Article. (Dickinson) 725, 726. Distinction of lisiere from balance* of North-west Coast in Article V—Reciprocal rights set in coasts distinctly outside of the lisie're. (Dickinson) 727. INDEX TO MINUTES OF PROCEEDINGS. XXXVH toast mentioned in Article III—Continued. Canning's, Mr. G., Draft Treaty, etc.—Continued. Criticism of argument based on fact, etc.—Continued. Treaty as signed was vitally different from the Canning 'Draft—Word " coast' introduced into initial words of Article III in order to place Great Britain upon a parity with the United States. (Dickinson) 725, 728. c Absolute ownership of heads of inlets would have been acquired by Great Britain if word " cote " had not been introduced. (Dickinson) 728.* Canning's, Mr., instructions to Mr. S. Ganning that he was willing to acquire the same reciprocal rights as the United States. (Dickinson) 728— Stratford Canning's reply that matters had been . arranged according to directions. (Dickinson) 728. Rights of United States as indicated by Treaty of 1824. (Dickinson) 727. Coast of the continent and the islands of America to the northwest—Only coast mentioned in Article III. (Carson) 631, 632. Confusion caused by Treaty of 1825 being copied from Treaty of 1824. ^ (Robinson) 449. Effect of British contention—Meaning must be given to " coast" which would admit of England owning part of the coast. (Dickinson) 723. Exclusive reference of Article VII to the lisiere, or possibly a general Article with reference to possesions of either country upon that coast—Lord Alverstone'se inquiry, 450. Expiration of United States trading privilege in 1834—British or Russian supposed rights below 54° 40' would have been challenged if exercised. (Robinson) 450. Fifty-ninth or sixtieth parallel—Russian absolute refusal to treat rejecting North-west'Coast north of 59°. (Robinson) 447; (Carson) 630/ History of Article VII—United States Argument in Behring Sea Arbitration that coast referred to the lisiere only. (Finlay) 226, 227. Lisiere was included whether Article VII applied elsewhere or not. (Robinson) 446. Negotiations, Evidence of— Contemplated by negotiators that a portion of the inlets might, in ,future, belong to Great Britain. (Carson) 631, 632. Nothing referred to but the lut&w—M. Matusevich's corrections, &c. (Carson) 629, 630, 631, 632, 633. One-sided application by United States of stipulations to the lisiere—Russia gave rights applied to. the lisiere, England gave rights applied to territory south of 54° 40'. (Robinson) 469. Portland Channel— Portland Channel entrance to 49° north—Possible application to. (Finlay) 228. XXXVIII ALASKAN BOUNDARY TRIBUNAL Coast mentioned in Article III—Continued. ||| Portland Channel—Continued. " Small bit"—Reciprocal privilege could never have been intended to apply to that. (Robinson) 449. Russia regarded herself as having abandoned territory below 54° 40' to the United States by Treaty of 1824— ' Behring Sea controversy—United States contention that Russia had relinquished territory. (Robinson) 448. Contention was in existence at the time between Great Britain and United States as to.coast south of 54° 40'—Sufficient answer to arguments as to Russian relinquishment of territory, &c. (Dickinson) 723. Treaty of 1825 negotiations, evidence of. (Robinson) 474, 448. Russian exclusive possession of inlets alleged—If Russia owned all the inlets, then England had nothing to give. (Robinson) 446. Treaty of 1818 gave Great Britain same right to grant privileges below 54° 40' as United States, whose right was clearly affirmed by British Counsel. (Taylor) 512, 513. Russian motives— Incredible that Russia should have troubled to get from Great Britain what she had already got from the United States. (Robinson) 469. Motive for settling with United States when she knew that England had claimed territory below -54° 40'—United States Argument. (Robinson) 448, 470. Text of Article VII. (Finlay) (6) 26. Three possible views as to effect of Article VII, each including the lisiere. (Finlay) 228, 229. Coast Survey Maps, United States— 1867, map of— Mountains and boundary line, representation of. (Finlay) 296. Fairweather, Mount, shown on inner boundary of lisiere leased by Hudson's Bay Company in 1839. (Finlay) 130. Portland Channel and Observatory Inlet. (Finlay) 163. Colouring of map, &c. (Dickinson) 709, 710. 1869, map of—Representation of mountains-and boundary line. (Finlay) 297. 1899 corrected to 1903—Portland Channel and Observatory Inlet, latitude of mouths. (Finlay) 116, 117. Coast and Geodetic Survey, United States— Annual Reports for years 1874 to 1879 inclusive sent to British Government in compliance with its request. (Dickinson) 807. Report of 1891—Terms of Report in regard to boundary question (see Thorn, Mr.). Colonial Office Manuscript Map, 1831— Bays and inlets, boundary running round heads—Attached to Cameron Report, and important as showing views held in official circles in Great Britain. (Dickinson) 783. Mountains and boundary line—Relative position. (Finlay) 293, 294. XXXIX INDEX TO MINUTES OF PROCEEDINGS. Colonial Office Manuscript Map, 1831—Continued. Muzon, Nunez, and Chacon, latitude of. (Finlay) 116. Portland Canal and Observatory Inlet shown on. (Finlay) 154. Width of -lisiere shown on. (Dickinson) 761. I Colonist " newspaper of British Columbia— Admission that 10 marine leagues was width of lisiere. (Taylor) 552. Columbia River— Great river imperfectly discovered by Quadra, which Vancouver was unable to find again. (Finlay) 91. Settlement on— Nearest post mentioned by Mr. Pelly, and far south of territory now in dispute. (Watson) 352. No definite conclusion as to, in Treaty of 1818—Sir T. 7 ml Twiss's statement. (Taylor) 512. Commencement point of boundary. (Robinson) 453; (Taylor) 520. Agreement as to point of commencement—Cape Muzon agreed on by both sides practically without controversy. (Finlay) 66, 111; (Watson) 387; (Dickinson) 660. Question to be decided by the Tribunal—Ajaswer desired by Great Britain. (Finlay) 8. Treaty of 1825 description as southernmost point of Prince of Wales Island (54° 40'), with proviso that Prince of Wales Island shall belong wholly to Russia. " Depart from' a better translation of " a partir' than I commencing." (Watson) 387. Latitude 54° 40' north and longitude between 131° and 133° west— (continued) — 54° 40' contention—Commencement point being admittedly below 54° 40', it was plain that the description and hot the latitude governed the starting point. (Carson) 559. Maps before the negotiators—Discrepancies in latitudes explaining abandonment of latitudes and selection of descriptive points. (Finlay) 115,116. Mentioned merely by way of description, and not intended to be used with reference to direction of boundary-line. (Finlay) 12,114,124. Meridians mentioned, explanation of. (Watson) 388. Russian contre-projet, inclosed in Sir C. Bagot's despatch (August 12, 1824). (Finlay) 55. Latitude of southernmost point of Prince of Wales not in parallel 54° 40'—Survey corrections on Treaty description. (Watson) 387. Point of departure of boundary-line was end of Prince of Wales Island, 300 or 400 yards south of 54° 40'. (Watson) 389. Point of departure, so far as leaving Prince of Wales Island was concerned, was on parallel 54° 40'. (Watson) 389. Prince of Wales Island belonging wholly to Russia—Proviso put in owing to doubts as to exact latitude of southernmost point. (Watson) 388. Russian definition of boundary on transferring property to United States in 1867. (Watson) 327. Text of Article III of Treaty of 1825. (Watson) 387. XL ALASKAN BOUNDARY TRIBUNAL. Commissioners of Crown Lands of Toronto, Map of 1857— Mountains and boundary, representation of. (Finlay) 296. Commissions for settlement of boundary question, see Joint Commissions. Concepcion Bay, Newfoundland— Territorial waters, law in regard to—Lord Blackburn's statement in the Concepcion Bay Case. (Finlay) 218. Concessions, question of—Treaty of 1825 negotiations— Bagot's, Sir O, refusal to acknowledge that Russia was able to grant concessions to Great Britain. (Finlay) 49. Southern boundary, placing at 55°—Concession by Russia. (Finlay) 121. Whole matter, so far as Russia was concerned, was a question of concessions. (Watson) 358. Congress— Inlets question—Question as to knowledge by Congress of British claim. Commission for Survey proposed in 1872, Bill providing for—Terms of Section 1. (Dickinson) 797. Dawson's, Dr., views on inlets question, communication of, to Congress—Views regarded by Congress as those of a private individual. (Dickinson) 810. Debates in 1896, discussion of Canadian claims. (Robinson) 484. Claims fully known to United States before discovery of gold. (Carson) 651, 652. Documents submitted to Congress in 1880—Discussion of inlets question in Major Cameron's Report. (Carson) 648. Constitution of the Tribunal— Judicial Tribunal, and not a Board of Arbitration. (Taylor) 500. Unique position of Tribunal. (Dickinson) 832. Continents— Title to possession, occupation ought to decide claim of sovereignty—Duke of Wellington's contention. (Watson) 354, 355. Contour maps— Sff| Principle on which maps were prepared. (Finlay) 266. Convention, see Treaty. Conventional boundary— Bayard's, Mr., suggestion that an International Commission should be appointed. (Finlay) 263. Cook, Captain— Russian occupation in 1788, evidence as to. (Finlay) 87, 88; (Watson) 349. Cook's Inlet (Kerny-Keny Inlet, Kenai Bay)— Russian settlements at. (Finlay) 21, 25, 87, 88; (Watson) 348, 359. Corporations in international law— Lawrence on the relations of such a Company as the Hudson's Bay Company to the British Empire. .^Taylor) 506. Coxe's " Russian History "— Date of. (Finlay) 89, 90. Poletica's, M. de, information as to Russian establishments at Kodiak—Question whether information were derived from Coxe or Vancouver. (Finlay) 87,88; (Taylor) 522. INDEX TO MINUTES OF PROCEEDINGS. XLI Cross Sound— Boundary negotiations, Tresity of 1825. (Finlay) 30, 31; (Watson) 381; (Dickinson) 739. Cuba— Island fringe affecting territorial boundary, Hall on. (Taylor) 544, 545. Dall, Mr.—United States Coast and Geodetic Survey— Dall-Dawson Conferences of 1888, see Dawson. Impracticable boundary laid down by Treaty of 1825—New Treaty stating determinable boundaries proposed—Letter to Dr. Dawson (April 24,1884). (Finlay) 315; (Carson) 645; (Dickinson) 808. Bayard's, Mr., quotations from letter—Adopton of Mr. Dall's views by M±. Bayard and Mr. Phelps. (Finlay) 260; (Carson) 647; (Dickinson) 809. Impossibility spoken of was in reference to expense. (Dickinson) 809. Sinuosities of the coast, opinion as to impossibility of includ- i ing inlets. (Finlay) 201, 215, 216. " Coast' used in the sense of general line of coast— Memorandum of December 19, 1888. (Finlay) 210. Difficulty present to minds of Mr. Dall, Mr. Bayard, and Mr. Phelps, was that of drawing line parallel to sinuosities when inlets were included—Difficulties would not have existed if they had had the British line in their minds. (Dickinson) 809. Portland Channel designated by Vancouver—Mr. Dall's opinion. (Carson) 566. Vancouver's narrative—Opinion that if the Treaty were tried by Vancouver's narrative, it would result in giving to Great Britain the disputed islands in Portland Channel. (Finlay) 98; (Robinson) 454. Whole inlet to which Observatory Inlet is tributary, named Portland Channel by Vancouver, Theory based on maps— Memorandum (December 19, 1888). (Finlay) 98; (Dickinson) 685, 686. Remoteness of territory in dispute, and ignorance of the civilized world concerning it. (Finlay) 297. Vancouver's Report and Atlas used by negotiators of Treaty of 1825—Memorandum (1888). (Finlay) 92. Dall's " Alaska "— Reference to. (Watson) 348. Darling, Mr. C. H.— Naval administration of Alaska (1868 to 1896). (Dickinson) 826. Davis, General— Indians, administration of. Instructions to General Davis. (Dickinson) 825. Reports by General Davis. (Dickinson) 825. Tongass, Fort, reference to, as being on southern boundary of United States' possessions (August 20, 1870). (Finlay) 127. Unimportance of reference. (Dickinson) 697. ■ n xLn ALASKAN BOUNDARY TRIBUNAL. Dawson, Dr.—Geological Survey of Canada— Cameron's, General, views on inlets question— Adoption of. (Finlay) 317, 318; (Robinson) 483, 485; (Dickinson) 810. " Supplementary memorandum on views of General Cameron "—Quotations from General Cameron. Lodge-Robinson discussion. 489,490. Coast, meaning attached to— Lynn Canal head, reference to, as part of coast of Alaska. (Dickinson) 811, 812. Term applied to meeting of water and land at Skagway. (Robinson) 444. Dall-Dawson Conferences of 1888—Did Dr. Dawson's statement of his views constitute a notice to United States of British claim to heads of inlets? (Finlay) 319; (Carson) 649. Communication of Dr. Dawson's views to United States— Mr. Dall's report to Mr. Bayard, &c. (Finlay) 319. Formal communication of Dr. Dawson's views by Sir C. Tupper to Mr. Bayard and by Mr. Bayard to President of United States. (Robinson) 484. No formal communication. Dr. Dawson's letter to Sir C. Tupper furnished merely by courtesy to Mr. Dall. (Dickinson) 810, 811. Congress, construction put upon communication by. (Dickinson) 810. Informal nature of conference. (Dickinson) 809. Conference could no longer be regarded as informal when results were communicated to United States Secretary of State, to President, Congress, &c. (Robinson) 491. Position of Dr. Dawson in relation to Canadian Government— " Dawson's Canadian map, 1887, showing conventional line proposed by Canada, inclosed by Mr. Bayard in his letter to the President." (Robinson) 488, 489. If Dr. Dawson's views were not indorsed by the Imperial or the Canadian Government, why were they formally communicated to the United States by the British Executive Officer? (Robinson) 485, 486. Not in any way accredited or authorized to put forward claim. (Dickinson) 810, 811. Tupper's, Sir C, attitude—The matter was one to be dealt with by experts, and Sir C. Tupper was not called upon to express an opinion. (Robinson) 489. Fjords of the Alaskan coast, characteristics of. (Taylor) 521. Mountain boundary, Treaty of 1825—Correspondence of Treaty with Vancouver's charts and narrative. (Watson) 412, 413. Ogilvie Survey of 1887, Dr. Dawson's connection with. (Dickinson) 828, 829. Surveys—Uselessness of surveys until the Treaty of 1825 had been construed. (Robinson) 463. INDEX TO MINUTES OF PROCEEDINGS. XLIII Dawson maps— Canadian map of 1887— Canadian claim to heads of inlets shown on. (Finlay) 320—Conventional line proposed by Canada. (Robinson) 488. Map sent to Mr. Bayard by Sir C. Tupper. (Robinson) 486, 489. United States line, as shown on survey map of Alaska, 1884—Line disregarding Treaty references to mountains and to ocean coast—Dr. Dawson's note. (Robinson) 488. Canadian Pacific Railway, map of, 1880— Mountains'and boundary line, representation of. (Finlay) 297. Portland Canal and Observatory Inlet, method of marking. (Finlay) 165. De Fonta— " Rio de los Reyes "—Alleged discovery. (Finlay) 96, 97. Delimitation, Treaties of— See Treaties of Delimitation. Dennis, Mr.—Surveyor-General of Canada— Determination of particular points on boundary, report on suggestion of 1873. (Finlay) 312, (Watson) '331. 1 Coast," meaning attached to—Map annexed, showing boundary running round heads of bavs and inlets. (Dickinson) 806. Unimportance of Report—Report was never acted upon, and could not be held as an admission of United States' claim to inlets on the part of Mr. Dennis's Government. (Robinson) 492,494; (Carson) 640. Martin, Peter, Case of—Instructions to Mr. Hunter to determine place where assault took place. (Dickinson) 803. Stikine River Boundary Survey—Intructions to Mr. Hunter (March 3, 1877). (Finlay) 196, 199. Determination and Definition of Boundary— Bayard's, Mr., statement that the country was practically unexplored in 1867. (Carson) 636. Cost, Estimates of. (Carson) 639, 641. Great Britain urging ascertainment of boundary, from time to time, from 1871 onwards, and American reply. (Robinson) 495. Limiting the demarcation—Determination of particular points proposed—Bearing on United States contention as to bays and inlets. (Finlay) 311, 312. Dennis's, Mr., Report- Coast, meaning attached to—Map attached showing boundary running round heads of bays and inlets. (Dickinson) 800. Report was never acted upon and could not be regarded as an admission by Canada of United States' claim. (Robinson) 492, 494; (Carson) 640. Fish's, Mr., suggestion and the ensuing correspondence contained nothing to show British claim to heads of inlets. (Dickinson) 798, 799, 803. XLIV ALASKAN BOUNDARY TRIBUNAL. Determination and Definition of Boundary—Continued. ml Limiting the demarcation, etc.—Continued. Position of rivers selected for demarcation. (Watson) 331, 332. Proposal came from America and was only a conventional line proposed to avoid the necessity of determining the line under the Treaty. (Carson) 639. Survey authorized by Canada—Capt. Cameron requested to report upon cost and duration of survey, see Cameron. Thornton's, Sir E., despatch communicating Mr. Fish's suggestion to Earl Granville (February 15, 1873). (Watson) 331; (Carson) 639. Thornton's, Sir E., letter to Earl of Derby (September 29, 1875). (Dickinson) 802. Martin, Peter, case of, effect in determining boundary, see Martin. Powers of Tribunal, see that title, also titles Coast, Mountain Boundary, &c. Questions arising with reference to the boundary— Preliminary survey under Treaty of 1892—What did the United States want a preliminary survey for, if they intended to take up position that every question had been settled? (Robinson) 496, 497. President of United Stiates'j<Message stating that boundary should be ascertained before any question arose. (Robinson) 496. Interpretation by Mr. Choate as meaning that every question had been settled. (Robinson) 496. United States had never claimed that there had been any settlement as to where line should be—Contention was only relative, only with respect to inlets. (Dickinson) 782, 793. Territory apparently not considered worth the cost of a survey in 1872. (Carson) 638. Treaty of 1867—Russian definition of boundary line to United States, and assurance that there could be n& question about it, although it had never been defined upon the ground. (Watson) 327. Unascertained line under the Treaty of 1825, and left to be determined in future—British contention. (Watson) 397, 398, 439, 440. Alverstone-Watson discussion as to meaning of suggestion in British Case, 398, 399. Treaty of 1825—Evidence of negotiations that negotiators desired to fix limits beyond dispute. (Watson) 399, 400, 401, 438. See also titles Joint Commissions and Surveys. Devine's map of North-west part of Canada— Portland Channel question, evidence on. (Dickinson) 703. Diminutives, Use of— Negotiators' use of diminutives in referring to the lisiere, see titles Width of Lisiere and Coast—Continuous Strip. INDEX TO MINUTES OF PROCEEDINGS. Dionysius, Fort— Erection of—Russian efforts to meet Hudson's Bay Company competition on the Stikine. (Finlay) 301. Diplomacy— Character of British Diplomacy—Extreme opinions in some of the documents cited by the United States. (Robinson) 494. Private views expressed were not adopted by United States' Agent or Counsel—Such documents were published in full, to avoid any suspicion of garbled versions. (Dickinson) 814. Direct United States Cable Company, Limited, v. the Anglo-Ajner- ican Telegraph Company, Limited— Blackburn's, Lord, statement on law as to territorial waters. (Finlay) 218. Discovery of territory— Constituting title to possession. Coast alone to which discovery could give any title— ml O ml Cannings, Mr. G., opinion. (Finlay) 35. Watershed limitation—Date of watershed "limitation passing into international law. (Taylor) 503. Failure of title by discovery—Instructions to Duke of Wellington prior to Verona Congress. (Taylor) 502. Law of discovery—Essence of, conditions out of which it grew, nothing to indicate extent to which dominion of discoverer went. (Taylor) 503. Russian claims. (Watson) 327, 347, 370. Spanish navigator, alleged priority of discovery. (Watson) 347. United States' claim to priority of discovery by transfer of claims of Spain, 1818. (Watson) 358. Divergence of view on boundary question— Foster, Gen., and Sir M. Bowell, opinions of as to divergence of view between Great Britain and United States. (Robinson) 498. Dominion of Canada Maps. (Taylor) 538— Mountains, representation of— 1878—Dominion lands map. (Finlay) 297. 1882—Maps corrected to. (Dickinson) 765. 1882 and 1883, maps of. (Finlay) 297. Portland Channel question, evidence on— 1882, map of. (Finlay) 166; (Dickinson) 705. .1887—Canadian official map. (Finlay) 166. No. 32 of British Atlas—Geographical map. (Dickinson) 705. No. 39 of United States Atlas—Official nature of map. (Dickinson) 704. No. 41 in American Counter-Case.Atlas. (Taylor) 530. See also titles Dawson Maps and Geological Survey of Canada. c Dryad " affair— Contravention of British Treaty rights by officers of the Russian-. American Company. (Robinson) 481, 482. Admission of, by Russia after three years of diplomatic correspondence. (Robinson) 482, S. Doc. 162, 58-2, vol 7- -32 XL VI ALASKAN BOUNDARY TRIBUNAL. I Dryad " affair—Continued. Contravention of British Treaty, <etc.—Continued. Compensation obtained by Hudson's Bay Company—Terms of lease of 1839. (Robinson) 482j 488. Indemnity claim relinquished when lease of Russian- American Company's territor}-- was made. (Taylor) 505. Hudson's Bay Company's lease of territory, connection with " Dryad" affair, refer to title Hudson's Bay Company— Lease. State of things revealed when the affair occurred. (Finlay) 305. Stimulation of Russian activity in disputed territory due to surveys, &c. (Finlay) 305, 306. Dufferin, Marquess of— Martin, Peter, case of—United States demand for release of Martin made on ground that assault occurred on United States territory—Letter to Lord Carnarvon. (Dickinson) 804. Duffield, Mr.— Muzon, Cape, latitude of. (Finlay) 66. Survey under Convention of 1892—Report of Messrs. Duffield and King. (Finlay) 208. Duflot de Mofras, see Mofras. Duke of Clarence's Sound— Boundary negotiations, Treaty of 1825. (Finlay) 43. Bagot reply to Russian observations—Faden map the only one for the period in which the word " Sound " is used to designate the passage. (Dickinson) 678. References to, quoted in United States Appendix. (Dickinson) 679. Vancouver map, marked as Duke of Clarence Strait. (Dickinson) 679, 680. Dyea— Compromise securing Dyea and Skagway to United States and Pyramid Harbour to Canada—Lord Salisbury's proposal (May 17, 1899). (Finlay) 321. Date of establishment of Dyea and Skagway—Subsequent to notice given by Great Britain of claim to heads of inlets. (Finlay) 309. Ocean terminus located by Sir W. Laurier at the very place where the ocean ends according to international law. (Taylor) 549, 550. Population of—Decrease since 1900—One inhabitant, and he in gaol. .(Carson) 655. Undisputed possession of Dyea and Skagway by United States without protest from Canada or Great Britain^Basis of United States claim. Choate's, Mr., letter to Lord Salisbury (1899). (Finlay) 321. Statements in Dominion House of Commons (February 11, 1898). (Dickinson) 818, 819, 820. Eastern boundary— Treaty of 1825 negotiations. Chatham Strait—Line due north till it strikes mountains— Hudson's Bay Company's suggestion. (Watson) 373. INDEX TO MINUTES OF PROCEEDINGS. Eastern boundary—Continued. Treaty of 1825 negotiations—Continued. Chatham Strait, Lynn Canal, thence north-west to 140° W.—British proposal. (Watson) 383; (Dickinson) 739. Chatham Strait or Stephen's Passage—British suggestion. (Finlay) 34,121. Limit of fifty or one hundred miles from the coast, beyond which Russian posts should not extend eastward. Canning-Bagot instruction. (Finlay) 35. Hudson's Bay Company's suggestions—Mr. Pelly's letter (January 8, 1824). (Watson) 373. Lynn Canal, meridian line drawn from head of (135° W.) — British proposal. (Finlay) 30, 35,121. Mackenzie River—Line such as in its prolongation towards the Pole would leave the Mackenzie River outside the Russian possessions. (Finlay) 31; (Watson) 367,371,380. Rocky Mountains— ml Mordvmof's, Admiral, proposal. (Watson) 370. Wholly inadmissible by the British—Canning-Bagot instruction. (Finlay) 34. Stephen's Passage, prolongation of line drawn through, till it struck mainland near Mount Elias—Canning-Bagot instruction. (Finlay) 35; (Watson) 382. Strait between mainland and islands, Hudson's Bay Company urging as preferable to mountains. (Watson) 374. Summary of propositions in Treaty of 1825 negotiations. (Taylor) 551. See also mountain boundary and 10-marine leagues proviso. Eches, Port (Itches) — Easternmost Russian settlement at time of Vancouver's voyages. (Finlay) 20, 91. Effective understanding of the Parties— Meaning of—Effective understanding must be common to both Parties. (Robinson) 479. Refer also to titles Action outside the Treaties, Acts of Possession, &c. Emmons, Lieutenant-Commander— Report on Service in Alaskan waters (March 28, 1903). (Dickinson) 827,^ 828. Escurial, Convention of. (Taylor) 511. Establishments— Landing at each other's establishments, forming new establishments, &c.—Provisions which did not seem to affect meaning of " ocean ' \ in Article I of Treaty of 1825—Probably copied from the American Treaty. (Robinson) 452, 470. See also titles Occupation and Hudson's Bay Company—Occupation. ' Estrecho de Almirante Fuentes ' of Caamano's Chart. (Finlay) 70. Evarts, Mr.—Secretary of State, United States— Stikine River provisional boundary—Thornton-Evarts correspondence (1878). (Finlay) 198. \ — XLVI1I ALASKAN BOUNDARY TRIBUNAL. Evidence before the Tribunal— Rules regulating admission of evidence, &c.— Action outside the Treaties of 1825 and 1867, see that title. Construction and interpretation of Treaties, rules regulating, with special application to the Treaty of 1825, see title Treaty of 1825. General rules of international law expanded by three enabling rules contained in Treaty of 1903. (Taylor) 500, 501. Middleton's, Mr., report of conversation with Mr. S. Canning as to terms of Treaty of 1825—Admissibility as evidence. (Taylor) 518; (Carson) 573. Alverstone-Finlay discussion, 169. Canning's, Mr. S., declaration regarded by United States as declaration of a party who had himself made the contract, and wras explaining what he meant as to line of demarcation. (Watson) 413, 414. Roman Law Tribunals—Rules of evidence would prevail before Alaska Boundary Tribunal—Every fact admissible which was pertinent to the issue, pertinence to be determined by the Judges themselves. (Taylor) 501. Rules already sufficiently dealt with. (Carson) 558. Experts— Employment by the Tribunal, if necessary—Treaty of 1903. (Finlay) 7; (Robinson) 463. Faden Maps— British territorial claims prior to 1821—Evidence of maps. (Carson) 591, 594. Islands, British claim to. (Carson) 594. Evidence that the Faden map was before the negotiators of Treaty of 1825, and that they relied upon it. (Dickinson) 685, 687. Bagot-Poletica Conference—Faden map showed coincidence of the two lines pointed out by Bagot, and identified by Poletica as position of New Archangel. (Watson) 408, 409; (Dickinson) 676. Canning's, Mr., statement that it was the most reliable map. (Watson) 363, 364, 393, 396, 401, 404, 409, 412; (Dickinson) 677. Duke of Clarence Sound mentioned in Bagot reply to Russian observations—Faden map the only one for the period using the word " Sound" to designate the passage. (Dickinson) 678. Fifty-sixth parallel passes just about at the foothills of the mountains, and negotiators evidently thought that Portland Channel would about reach to the mountains. (Dickinson) 677, 678, 717. Geographical map—M. Poletica's description of the map used. (Watson) 408; (Dickinson) 676, 677. Russian map of 1802—Possibility of that map having been used instead of the Faden map—Aylesworth-Dickinson discussion, 676. INDEX TO MINUTES OF PROCEEDINGS. XLIX Faden Maps—Continued. Evidence, etc.—Continued. Russian map of 1826—Boundary line located just about where mountains appear to be located on Faden's map. (Dickinson) 778. Ten marine leagues from mainland coast—Limit mentioned in Bagot amended proposal was coincident in Faden map with position of mountains. (Dickinson) 678. Hudson's Bay Company, location of posts. (Watson) 357, 363. Importance of. (Dickinson) 675. Islands, situation of—Nearness to mainland, &c. (Watson) 349, 350. Mountain boundary, representation of. (Watson) 397, 402, 404; (Carson) 572; (Dickinson) 740. Discrepancies in representation of mountains—Mountains between so-called range and the sea. (Carson) 607, 613. Portland Channel shown on. (Finlay) 102; (Taylor) 528; (Dickinson) 684. Mouth of channel, latitude of—No one could suppose from the Faden map that 54° 40' applied to the mouth of northern channel. (Dickinson) 695, 710. Portland Channel head— Mountains and Portland Channel Head. (Finlay) 178— Line of Portland Channel striking 56th parallel among the mountains. (Watson) 405. Represented as falling short of 56th degree. (Watson) 393. Southern Boundary, Latitude of Points on, as given in British and United States Atlases. (Finlay) 116; (Dickinson) 694. Fairbanks, Senator— Date of first claim advanced by Great Britain to heads of inlets- Challenge to Lord Herschell (1899). (Dickinson) 794. Fairweather, Mount— Hudson's Bay Company lease— Fairweather, Mount, on inner boundary of lisiere—Evidence of United States Coast Survey Office map of 1867. (Finlay) 130, 131, 307. Russian map of 1826—Location of Mount Fairweather did not correspond with Russian declaration in Hudson's Bay Company's lease. (Dickinson) 779, 780. Fairweather Range— Mountain range fulfilling requirements of Treaty, Existence of, north of Cape Spencer— Hunter's, Mr., report. (Finlay) 243, 244. King's, Mr., statement. (Finlay) 249. Mendenhall's, Mr., magazine article. (Finlay) 244. False Pass— Russian occupation. (Watson) 348. Fee Canal— Boundary passing up Fee Canal to the continent—Proposal based on an incomplete copy of Treaty of 1825. (Dickinson) 761. 16 ALASKAN BOUNDARY TRIBUNAL. Field, Mr. Justice— Definition of doctrine of acquiescence—Extract from judgment in Indiana v. Kentucky. (Taylor) 555. Field's International Code— Mid-channel or thalweg boundary—Extension to " strait, sound, or arm of the sea." (Finlay) 108, 109; (Taylor) 531, 532. Meaning of Field's statement—Alverstone-Tavlor discus- sion, 532. Fifth question— See Coast—Continuous strip of coast running- round heads of bays and inlets. Fifty-fifth (55th) parallel at Southern Boundary—Treaty of 1825 negotiations, &c. Bagot-Poletica conference—Second negotiations. (Finlay) 23, 33, 120. Bagot proposal in reply to observations of Russian Plenipotentiaries—Third negotiations. (Finlay) 43, 44, 123. Nesselrode's, Count, despatch to Count Lieven. (April 5 (17), 1824). (Finlay) 45, 118, 119. Russian claim of exclusive sovereignty, see title Coast—Sovereignty of mainland coast. Russian contre-projet—Third negotiations. (Finlay) 36, 121. Russian occupation, see Occupation. Tuyll's, Baron, suggestion. (Finlay) 27; (Watson) 351. Ukase of 1799—Limit of Russian dominions mentioned in. (Finlay) 14, 21, 119, 120, 121, 123; (WTatson) 369; (Carson) "570; (Dickinson) 739. Tacit consent of foreign Powers—Russian contention. (Finlay) 26, 33. United States proposals—Foregone understanding with Russia, alleged. (Finlay) 34. Variation from 55° north introduced only to secure whole of Prince of Wales Island to Russia, refer to title Fifty-four- forty—Prince of Wales Island. Fifty-four-forty (549 40') v. Direct Line—Course of Southern (Water) Boundary— Additional territory which would be given to the United States if the southern boundary were carried down to 54° 39' 48". (Watson) 391. Commencement point of boundary in connection with 54° 40', see Commencement—Treaty of 1825 description. Course of boundary after it is started on 54° 40'—Nothing in the Treaty to take it off 54° 40' until it gets to Portland Channel. (Watson) 388, 389, 391. Course of boundary line between starting point and point of departure on parallel 54° 40'. (Watson) 389. Determination of Portland Channel would decide the course to be followed. (Dickinson) 711. Example of putting things into a Treaty of which there was no confirmation from end to end. (Robinson) 454. First mention of 54° 40' in connection with Treaty of 1825— Count Nesselrode to Count Lieven (April 5 (17), 1824). (Finlay) 124. INDEX TO MINUTES OF PROCEEDINGS. Fifty-four-forty (54° 40') v. Direct Line, etc.—Continued. Hudson's Bay Company's lease of 1839—54° 40' or thereabouts given as southern limit of leased territory. (Finlay) 130, 132. Evidence that Russia never intended to claim 54° 40' as an accurate boundary. (Robinson) 472. Islands, exclusion of. (Finlay) 132, 133, 134. Imaginary line insusceptible of preservation or protection. (Robinson) 472. Islands—54° 40' proposal confined to the islands—Count Nes- selrode's despatch (April 5 (17), 1824). (Finlay) 124. Middleton's, Mr., Report of Mr. S. Canning's verbal explanation of Treaty of 1825—No suggestion of 54° 40' as governing factor. (Finlay) 117. Northerly direction of boundary line—Northerly direction from point of commencement (British contention) v. Northerly direction applied only to course of line up Portland Channel (United States contention). Canning's, Mr., despatch and Draft Convention, fourth negotiations (July 12, 1824). (Finlay) 49, 51, 124, 181. Explanation of Mr. G. Canning's phrase " south to north through Portland Channel."—Aylesworth-Finlay- Alverstone discussion, 50, 51. Criticism of British, contention and explanation of introduction of Prince of Wales Island proviso. (Dickinson) 660, 661, 663. Canning's, Mr., Draft Convention (July 12, 1824), and Russian counter-draft—Mention of " two points." (Dickinson) 661. Cutting island, prevention of. (Carson) 570, 571: (Dickinson) 661. Aylesworth-Dickinson discussion, 663. Dependent islands, possible question of. (Dickinson) 661, 662. Matusevich's, M., corrections—Perhaps just written in because the whole island had got to go. (Dickinson) 662. Robinson's, Mr., argument—f Go to Portland Channel and go north along it." (Dickinson) 663, 664. Criticism of United States contention. (Finlay) 113. Boundary drawn along a parallel of latitude cannot ascend to the north, and starting point of boundary line is not in latitude 54° 40'. (Finlay) 113,115. Object of introducing parallel 54° 40' into Treaty of 1825. British construction rendered Treaty meaningless. (Watson) 388. Not needed for purpose of identifying southernmost point. (Watson) 388. Refer also to sub-headings Northerly Direction, Prince of Wales Island, and Treaty of 1824. Portland Channel, latitude of entrance—Bearing of 54° 40' contention on. (Finlay) 112,113; (Robinson) 472. m £ss& LII ALASKAN BOUNDARY TRIBUNAL. Fifty-four-forty (54° 40') v. Direct Line, etc.—Continued. Portland Channel, latitude of entrance, etc.—Continued. Bayard's, Mr., despatch of November 20, 1885. (Carson) 645, 646. If 54° 40' is the southern boundary, Portland Channel is the channel contended for by the United States. (Taylor) 534, 535. No bearing, since it was demonstrated that, according to Vancouver's charts, 54° 40' did not lead to the centre of Observatory Inlet. (Carson) 568, 646. Treaty of 1825 negotiations—Russian demand for a frontier to strike the continent at Portland Canal at 54° 40'. (Dickinson) 688, 689, 691. Canning's, Mr. G., acceptance of Russian proposal without alteration as regards Portland Channel—Letter to Sir C. Bagot (May 29, 1824). (Dickinson) 689, 690, 691, 693. Continent-—54° 40' referred not merely to point of commencement, but also to the continent, in place of 51°, the boundary claimed by Ukase of 1821—Count Nesselrode's letter (August 31, 1824). (Dickinson) 691, 692, 693. Alverstone-Dickinson discussion, 692. Latitude of mouths of northern and southern channels^—Discrepancies in maps before the negotiators— In every map the mouth of southern channel was much nearer 54° 40' than that of the northern channel. (Dickinson) 695. Nesselrode's, Count, explanation of what he meant by Portland Canal—Opening into the ocean " a la hauteur " of Prince of Wales Island. (Dickinson) 688, 690, 691. "A la hauteur "—As Count Nesselrode could not have meant the top of the island he probably meant the southernmost point. (Dickinson) 688. Canning's, Mr. G., knowledge of Count Nesselrode's explanation and of terms of Treaty of 1824. (Dickinson) 689, 690, 691, 693. Treaty of 1825 was concluded on this basis since there was no further reference in negotiations to indicate any change of meaning as to Portland Canal. (Dickinson) 691, 693, 710, 711. Vancouver's maps and narrative— Fifty-four-forty passing south of Point Maskelyne. (Finlay) 135, 136. Nothing in Vancouver to put any part of Portland Channel at 54° 40'. (Finlay) 81. 1 Wedge " on mainland created by taking same figures in American and English Treaties, a far more important matter than the wedge on the sea objected to by Mr. Watson. (Carson) 568. Prince of Wales Island, purpose of proviso securing whole island to Russia. INDEX TO MINUTES OF PROCEEDINGS. Fifty-four-forty (54° 40') v. Direct Line, etc.—Continued. Prince of Wales Island, etc.—Continued. British contention—Variation of Russian frontier to the southward of the 55th parallel was introduced for the sole purpose of giving the whole of Prince of Wales Island to Russia. (Finlay) 14, 36, 111, 112, 113, 114, 121, 123; (Carson) 570, 571; (Dickinson) 739, 740. Nesselrode's, Count, despatch to Count Lieven (April 5 (17), 1824). (Finlay) 118, 119. I Really not worth mentioning "—Russian description of the variation. (Finlay) 42, 122. Russian Plenipotentiaries' observations on Sir C. Bagot's amended proposals. (Finlay) 41. Canning-Bagot instruction, fourth negotiations. (Finlay) 49. Nesselrode's, Count, despatch to Count Lieven (April 5 (17), 1824). (Finlay) 45. United States contention—Proviso securing whole of Prince of Wales Island to Russia inserted in case any portion of the island should lie below 54° 40'. (Finlay) 111, 112, 123. See also sub-heading Northerly direction of boundary line. Treaty of 1824, Influence of— Appearance of 54° 40' in Treaty of 1824, the reason for prominence given to 54° 40' contention by United States. (Finlay) 117. Descriptive points were inserted in Treaty of 1825, notwithstanding specification of limit 54° 40' in Treaty of 1824. (Finlay) 24, 45, 46, 115, 118, 119, 122. Evidence from despatches of Count Nesselrode and Mr. Canning, that they agreed to make the Russian southern frontier the same for England and for the United States. (Watson) 390^ 391. Russian pretensions strengthened by the signature of the United States Treaty of 1824—Count Nesselrode's views, &c. (Finlay) 46, 119; (Dickinson) 710. Twiss's, Sir Travers, recognition of 54° 40' as southern boundary fixed by Treaties of 1824 and 1825. (Taylor) 534, 535. United States' adventurers, proposed lease of territory in 1867— Southern limit of Russian territory described as 54° 40'. (Finlay) 149,150. Fifty-sixth parallel to the 141st meridian— Russian right of possession—Evidence offered by Russia to United States in 1867. (Watson) 327. Refer also to titles Mountain boundary, Occupation, Possession, &c. Findlay's " Directory for the Pacific Ocean "— Chacon, latitude given in 1886. (Finlay) 116. Muzon and Chacon, latitudes given in 1851. (Finlay) 116. Portland Canal and Observatory Inlet. (Finlay) 166, 167. LIV ALASKAN BOUNDARY TRIBUNAL. Firearms and ammunition—Prevention of sale to natives— Treaty of 1825 negotiations. (Finlay) 52, 56. | Vagabonds' supplying arms and ammunition to natives— Infringement of Russia's sovereign rights, reason for issue of Ukase of 1821. (Watson) 344. First Question— See Commencement Point. Fish, Mr.—Secretary of State, United States— Commission for definition of boundary—Fish-Thornton discussions of 1872. (Carson) 638. Discussions had no relevancy to inlets question. (Dickinson) 796, 797, 802. Determination of particular points on boundary, suggestion to Sir E. Thornton. (Watson) 331. Martin, Peter, case of— Demand for release of Martin distinctly made on ground that assault occurred on American territory, land not ml 7 water. (Dickinson) 803. Jurisdiction in cases of disputed boundary—Absence or presence of defined line did not alter a boundary laid down by Treaty—Comment on Peter Martin .case. (Carson) 644, 645. Fishing— Russian occupation of territory for hunting and fishing, refer to title Occupation. Trading and fishing rights, see that title. Flemer, Mr.— Mountains of Alaska, deposition. (Finlay) 256. Fogs— Prevalence on Alaskan coast. (Robinson) 458. Fort Simpson— Islands at mouth of Portland Channel—Importance as affecting Fort Simpson. (Finlay) 84. Foster, General— Date of British claim to inlets—General Foster's letter, seven years afterwards, stating that there had been no hint of such claim in 1892. (Robinson) 497, 498, 499; (Dickinson) 815,816. Bowell's, Sir Mackenzie, letter really a confirmation of General Foster's statement. (Dickinson) 815, 816, 817, 818. Mountain boundary at head of Lynn Canal, existence of mountains fulfilling Treaty requirements—Article in " National Geographical Magazine " for November, 1899. (Finlay) 245, 246. Thanks in name of United States Government for friendliness and consideration shown by the British Government and its Representatives, 833. Fourth Question— See Portland Channel head to 56th parallel. Franconia, case of. (Taylor) 548. Fraser's Lake— Hudson's Bay Trading Station. (Finlay) 22. Distance from coast. (Watson) 354, 357. INDEX TO MINUTES OF PROCEEDINGS. Gaillard, Captain— Storehouses in Portland Channel region, erection of, by United States—Captain Gaillard's narrative. (Finlay) 146, 147; (Dickinson) 700, 701, 702. Geological Survey of Canada, map of 1879-1880— Disavowal by British Government of boimdary shown on map— Lord Iddesleigh's despatch to Mr. Phelps. "(Finlay) 144:, 145; (Robinson) 476. Method of marking " presumed boundary." (Finlay) 165. Geology and physiography of Alaskan coast— Peculiar nature of—Inlets and bays, submerged valleys. (Taylor) 520, 521. German map (1807)— Portland Channel and Observatory Inlet shown on. (Finlay) 103. Gold discoveries— Stikine, gold discoveries on—Effect on boundary question. (Finlay) 311; (Dickinson) 799. Memorial by Legislative Assembly of British Columbia 1874. (Finlay) 312. Yukon region, discoveries in— Lynn Canal access to Yukon territory—Special value to Canada. (Finlay) 6— Canadian motive in laving claim to upper end of Lvnn Canal. (Watson) 330, 332. Pauncefote's, Sir J., letter (February 23, 1898). (Dickinson) 820. Graham, Mr.— Territorial waters, Norwegian fjords regarded as—Memorandum read before Behring Sea Arbitrators. (Finlay) 219. Grant, President— Determination and definition of boundary, appointment of Commission proposed—Message to Congress (December 2, 1872). (Finlay) 310, 311— Grant, President, did not consider the boundary as a settled question. (Carson) 638. No suggestion of doubt as to meaning of coast. (Dickinson) 797. I ftp ' I Greenhow's History of Oregon and California "— Note that maps and books of geography were the worst authorities in relation to boundaries. (Finlay) 296. Greenhow's maps— 1841—Portland Channel and Observatory Inlet shown on. (Finlay) 158. 1844—Mountains and boundary line, relative position. (Finlay) 295; (Taylor) 538; (Dickinson) 764. Greenleaf, Mr.— Rule with reference to evidence to be received in order to discover the meaning of a contract. (Watson) 336. Grotius— Mare clausum, doctrine of, raised by Grotius in 1609. (Taylor) 509, 510. Mid-river or thalweg boundary, (Finlay) 107; (Taylor) 531. LVI ALASKAN BOUNDARY TRIBUNAL. Haines— Post Office established by United States, 1882. (Dickinson) 808. Public school established by United States, 1885. (Dickinson) 808. Settlement of American missionaries, 1887. (Dickinson) 814. Hall, Mr.— . Coast—Island fringe affecting territorial boundary, Political coast line running along outside limit—Cuba illustration. (Taylor) 544, 545. Mid-channel or thalweg boundary. (Finlay) 107. Nootka Convention—Claim of Great Britain under the Convention was groundless—United States' view—Note on Sir T. Twiss. (Taylor) 511. Halleck, General— Command of military district of Alaska—Instructions to General Davis. (Dickinson) 825. Halleck, Mr.— Mid-channel or thalweg boundary. (Finlay) 109; (Taylor) 532. Hannen, Lord— Prescription, non-application of, where the question was the construction of a contract between two parties—Opinions expressed in Behring Sea Arbitration. (Finlay) 323. Herbert, Sir Michael— Death of—Adjournment of Session, &c, 567, 568. Herschell, Lord— Date of first claim advanced by Great Britain to heads of inlets— Reply to Senator Fairbanks' challenge (1899). (Dickinson) 794. ' Hodgkins, Mr.— Mountains of Alaska, deposition. (Finlay) 210, 211, 252, 253, 254. House of Commons maps— 1850 (map ordered to be printed). (Taylor) 538. Bays and inlets, boundary running round heads of. (Dickinson) 783, 784. Hudson's Bay Company lease, evidence as to territory in-' I eluded. (Dickinson) 789, 790. Portland Canal and Observatory Inlet, method of marking. (Finlay) 161. L857 (Simpson map). (Taylor) 538; (Dickinson) 784. Bays and inlets, boundary running round heads. (Watson) 329. Mountains and boundary line, relative position. (Finlay) 296. Portland Channel and Observatory Inlet, method of mark- Official nature of map. (Dickinson) 703. ing. (Finlay) 161; (Dickinson) 703. Ten-marine leagues limit, application to entire line from 56° N. to 141° W.—Evidence of 1857 map. (Watson) 432. Howard—Peyroux v. (Taylor) 548. Howard, General—\ Report of tour in Alaska. (Dickinson) 826. INDEX TO MINUTES OF PROCEEDINGS. LVII Howard, Mr.—Officer of United States Navy— "Lincoln," cruise, report of—Taking possession of territory, securing allegiance of Indians, &c, on behalf of United States. (Robinson) 477, 478; (Dickinson) 822, 823, 824. Hudson's Bay Company— Boundary suggestions, Treaty of 1825 negotiations— Canning's, Mr. G., suggestions, source of. (Watson) 360. Definite description of mountain boundary, suggestions in Mr. Pelly's letters. (Carson) 610. Doubts of the Company concerned the location, not the existence of the mountains. (Watson) 412. Eastern boundary— Chatham Strait, line due north till it strikes mountains. (Watson) 373. Chatham Strait or Stephen's Passage. (Finlay) 34. Fifty to 100 miles proposal, Mr. Pelly's letter (January 8,1824). (W7atson) 373. Mountain boundary suggestions. (Finlay) 235; (Dickinson) 768, 769. Strait between islands and mainland preferable to mountain boundary. (Watson) 374. Pelly's, Mr., description of line from which boundary should be taken, " sea," " coast," " shores." (Finlay) 217. " Coast " understood in the Russian sense of entire coast. (Dickinson) 738. Russian counter-proposals for boundary—Views of the Company (1824). (Finlay) 48; (Watson) 373, 374. Lease of territory from Russian-American Company—Cape Spencer to latitude 50° 40' or thereabouts. Fairweather, Mount, Position on inner boundary of leased territory—Evidence of United States Coast Survey Office Map of 1867. (Finlay) 130, 131, 307, 308. 54° 40' never intended as anything more than a rough description of southern boundary. (Finlay) 132, 135, 136; (Robinson) 472. To 1 o -r\ r\ C Exclusion of, from lease. (Finlay) 132, 133, 134. Lease a mutual recognition that islands above 54° 40' belonged to Russia—Words " or thereabouts' introduced to exclude islands at mouth of Portland Channel from leased territory—United States contention. (Finlay) 133, 134. " Or thereabouts "—Omission of words from Report of Russian-American Company. (Finlay) 132, 139. Russian Government sanction given in full knowledge of terms of lease. (Finlay) 134, 139, 140. Sovereignty of inlets question, bearing on, see title Coast— Sovereignty of mainland coast. Text of Preamble and Article I. (Finlay) 129,130. See also sub-heading Powers of the Company. WA V, LVIII ALASKAN BOUNDARY TRIBUNAL Hudson's Bay Company—Continued. Occupation—Position of settlements, territorial claims, &c.— Canning's Mr. G., Instructions to Duke of Wellington— Actual occupation of territories claimed by Russia in 1822. (Finlay) 25. Coast settlements, question of—Distance of nearest settlements from the coast, &c. Fifty-fifth parallel—Settlements near the coast to north of 55th parallel, Sir C. Bagot's statement. (Finlay) 43. Fifty-third and fifty-fourth parallels—Establishments near coast. (Finlay) 118,119. Hudson's Bay Company's overtures in 1829 to Russian- American Company—Description of antecedent operations as relating to "interior lands." (Watson) 357. List of posts given by the Company— Examination of distances from coast. (Watson)' 353-357. None of the posts were on the coast. (Finlay) 22. Nearest post at least 100 miles from the coast, measuring to the head of Portland Canal. (Watson) 354. No approach to North-west Coast prior to 1821. (Watson) 341, 342. No settlement within 100 miles of the coast prior to 1790. (Taylor) 512. Pelly's, Mr., ignorance as to rivers, &c, on North-west Coast strip. (Watson) 354. Russian denials of any coast settlements— Ignorance of British settlements on the coast— Evidence of maps. (Finlay) 26; (Watson) 355. Not yet occupying any point which touches the ocean. (Watson) 351. Settlement by the Company on the coast could not •' jl ml be proved at any point. (Finlay) 40, 44. Columbia River—Nearest post mentioned by Mr. Pelly was far south of territory now in dispute. (Watson) 352. Faden's map, posts marked on. (Watson) 357, 363. Mackenzie River. (Finlay) 23. Newness of establishments. (Watson) 351. Northern limit of settlements—Westward advance by the 53rd and 54th degrees north latitude—Russian contention. (Finlay) 39, 44/ Pelly's, Mr., letter and Memorandum with reference to claims of Russia, and position of Hudson's Bay Company (1822). Arrowsmith's map of 1822 shows posts mentioned. (Finlay) 22. Text of Mr. Pelly's statement, quotations from. (Finlay) 22, 23. Vancouver's narrative, knowledge of, see title Vancouver. INDEX TO MINUTES OF PROCEEDINGS. LIX Hudson's Bay Company—Continued. Occupation—Continued. Portland Channel— Factory established in 1835—Evidence of maps. (Finlay) 15. No establishments "a k hauteur de Portland Channel"—Russian contention (Finlay) 47, 51; (Watson) 351. Russian efforts to meet Hudson's Bay Company competition in Observatory Inlet and Stikine River—Russian Governor's Reports in 1832 and 1834. (Finlay) 300, 301. Russian Ukase of 1821—Protest against, nowhere claims title to any portion of territory now in dispute. (Watson) 352. Wellington's, Duke of, assertions to Russia and Russian reply. 1 (Watson) 354, 355. Powers of the Company—Relations with British Government, power to take knowledge for the Government and to bind it dy its Acts. ml British Empire as it now exists is the work of private companies. (Taylor) 505. Charter of 1670— Extract from—Location of territory described. (Watson) 359. Governmental and Judicial powers-—Company's rights and powers confined to Prince Rupert's Land. Finlay) 306; (Robinson) 482, 483. Corporations in international law—Lawrence on the relations of such a company as the Hudson's Bay Company to the British Empire. (Taylor) 506. Extent to which Company represented the British Government. (Finlay) 137, 307. Lease of Russian-American Company's territory—Knowledge of, by British Government, &c.— Action of the Company under the lease. (Finlay) 308. British Government advised the lease as a means of settling and avoiding trade disputes. (Robinson) 482, 483. "Dryad' claim, for settlement of which the British Government was pressing—Lease the direct outcome of. (Finlay) 134, 137, 139, 305, 306. Claim relinquished when lease was made. (Taylor) 505. Notification of settlement of " Dryad' claim did not fix the Government with a precise and detailed knowledge of the lease. (Finlay) 138, 139, 140, 308. Effect of lease—Temporary cession according to British Agreement, and therefore a political transaction. (Taylor) 507. Governor Wrangel refused to deal with Governor Simpson until the latter was appointed Plenipotentiary to Great Britain. (Taylor) 507. LX ALASKAN BOUNDARY TRIBUNAL. Hudson's Bay Company—Continued. Powers of the Company—Continued. Lease of Russian-American Company's territory—Cont'd. Neutrality on North-west Coast Agreement— Agreement entered into by Hudson's Bay Company and Russian-American Company as reprer sentatives of Great Britain and Russia. (Taylor) 505, 507, 508, 509. Made expressly on account of lease. (Finlay) 134. Recognition by Sir G. Simpson and.by text of Agreement that it was a political transaction. (Taylor) 507. Sovereignty of Inland Waters Question, Bearing on, refer to title Coast—Sovereignty. Licenses of exclusive trading under Act of 1st and 2nd George IV, powers granted by. (Finlay) 307. No power to do acts which would influence the Empire— British Argument. (Taylor) 505. Purchase of Alaska by United States—Hudson's Bay Company had no political powers and could not protest. (Carson) 636. Rights west of Rocky Mountains— Charter of 1670—Territory west of Rocky Mountains not included. (Robinson) 482, 483. Trading rights only and expired in 1859. (Robinson) 483. Protection of interior posts—Object of Treaty of 1825. (Watson) 360, 365, 366, 367, 380. Barrier theory, refer to title Coast—Continuous strip of coast running round heads of bay and inlets. Canning, Mr. G., instructions to Duke of Wellington and Sir C. Bagot, &c. (Watson) 365, 366. Scott's, Colonel, tribute to the Company. (Robinson) 480. Water communication between Hudson's Bay Company's territory and Pacific, probable existence of—Mr. Pelly's Memorandum. (Finlay) 23, 95; (Watson) 354. •Humphreys, General— Determination of boundary, estimated cost—Limiting demarcation to particular points proposed. (Finlay) 311; (Dickinson) 801. Hunter Survey of 1877—Stikine River boundary. (Carson) 644. Fairweather range north of Cape Spencer description of. (Finlay) 243, 244. General trend of coast, basis on which Mr. Hunter proceeded— Instructions given by Surveyor-General of Canada (March 3, 1877). (Finlay) 196, 199. Report, statement in. (Finlay) 198, 315. Line was not worked out from one end to the other as Mr. King's was—Mr. Hunter had not the necessary materials before him for determining line of mountains generally—Line could not be accepted, because it did not fit in with the general scheme. (Finlay) 283-285. INDEX TO MINUTES OF PROCEEDINGS. LXI Hunter Survey of 1877—Continued. Martin, Peter, case of—Determination of place where assault took place. Authority of Mr. Hunter—Mr. Hunter had no authority to delimit boundary, but release of Martin by Canadian **^t -mm ** Government upon his report was a declaration that assault took place in United States' territory—Avlesworth-Dick- • • ms ms mson discussion, 805, 806. Instructions from Mr. Dennis. (Dickinson) 803. Point settled in favour of United States. (Dickinson) 782. Report, extract from. (Dickinson) 806. Notice of British claim to inlets, question of—Importance of fact that Stikine River was upon the general coast. (Dickinson) 807. Provisional boundary—United States and Canadian acceptance of line reported by Mr. Hunter, on condition that Treaty rights were to be in no way affected. (Finlay) 314, 315; (Carson) 648; (Dickinson) 807—Thornton-Evarts correspondence (1878). (Finlay) 198. ELunting, Trading, and Fishing Rights— See titles Trading, Occupation of territory, &c. [ddesleigh, Lord—Secretary of State for Foreign Affairs, Great Britain— Geological Survey of Canada Map—Repudiation of boundary shown on. (Robinson) 476. Ten marine leagues limit, opinion that it would apply to entire line if mountains failed—Letter to Mr. Phelps. (Watson) 432. Imaum AJi Zadi— Reply to request for statistics. (Dickinson) 671. [mpracticable boundary laid down by Treaty of 1825— X. ml ms ms Practical and physical difficulties could not decide the question of right under the Treaty. (Dickinson) 809. Refer also to Mountain Boundary. Lmray's Map, 1869— Adoption of nomenclature " Portland Inlet." (Finlay) 164. Mountains and boundary line, relative positions. (Finlay) 296. Indian tribes of the lisiere— Russian control of— Proof of Russian occupation. (Watson) 348, 349. Sovereignty of inland waters, evidence as to. (Dickinson) 785, 786. Settlements, location round inlets. (Watson) 362. United States, relations with— Census of 1880. (Dickinson) 808. Census of 1890. (Dickinson) 814. Certificates of chiefship issued by Commander Nichols. (Dickinson) 828. Davis, General— Instructions to. (Dickinson) 825. Reports by General Davis (1868, 1869, 1870). (Dickinson) 825. Enumeration of Indian tribes in 1867. (Dickinson) 792. Howard's, General, Report (1875), (Dickinson) 826. W* H S. Doc. 162, 58-2, vol 7 -33 Lxn ALASKAN BOUNDARY TRIBUNAL. Indian tribes of the lisiere—Continued. United States, relations with—Continued. I Lincoln ' revenue cutter—Report of cruise. (Robinson) 477, 478; (Dickinson) 822, 823, 824. Naval officers, administration by. (Dickinson) 826, 827,* 828, 829. Publication of Reports of military authorities. (Dickinson) 826. Scott's, Colonel, Report—Tndians of the lisiere placed on United States territory. (Dickinson) 821, 822. Seward's, Mr., visit—Extract from Mr. Seward's statement. (Dickinson) 825, 826. Indiana v. Kentucky— Field's, Mr. Justice, judgment and definition of doctrine of acquiescence. (Taylor) 555. Information before the negotiators— Extent and nature of. (Wratson) 363, 364. Maps—Information practically confined to. (Watson) 408, 410. Iselcat River— Boundary determination proposals of 1873 and 1874. (Finlay) 311, 312; (Dickinson) 805. Mistake as to. (Watson) 331, 332. Alverstone-Dickinson discussion, 798. Unknown river. (Robinson) 493. Island fringe affecting territorial boundary— See Coast—Physical and political coast line. Islands— Map showing general line of coast to which lisiere line was to be drawn parallel according to British contention—Coast line crossing islands—Alverstone-Dickinson discussion, 753. Russian establishments on the islands, protection of, refer to title Coast—Continuous strip. Russian ownership never seriously disputed. (Watson) 350; (Robinson) 471. Itches,' Eches— Easternmost Russian settlement at time of Vancouver's voyages. (Finlay) 20, 91. Jackson, Rev. Sheldon—United States Education Department— Tongass Island—Reference to, as extreme south-east point of Alaska (September 15, 1898). (Finlay) 127, 128. Jackson, Mr., had no authority to decide the boundary line. (Dickinson) 697, 698. Jette, Sir Louis—Member of the Tribunal appointed by His Britannic Majesty— \ Mountain boundary—Probability that had the negotiators of Treaty of 1825 intended a chain of mountains, M. Matusevich would have inserted the word in the Treaty, 419, 420. Portland Channel—Direction of boundary line, " Le long de la passe," &c, 673, 674, 675. Portland Channel head to the 56th parallel—What was intended to proceed, line or pass, M. Matusevich's corrections, &c. ? 715. Jocelyn's, Captain, Report— Mountain boundary, statement that there was no range in the Stikine River region. (Finlay) 258. 1 INDEX TO MINUTES OF PROCEEDINGS. Joint Commissions— British proposal of 1872. (Finlay) 310; (Carson) 638; (Dickinson) 797. Bill introduced into Congress—Terms of Section I, &c. (Carson) 638; (Dickinson) 797. British Columbian address—Governor Trutch's letter, &c. (Carson) 638; (Dickinson) 796,802. Canadian proposal to bear part of expense. (Dickinson) 798. Fish-Thornton discussions. (Carson) 642; (Dickinson) 796, 797, 802. Grant's, President, Message to Congress (December, 1872). (Finlay) 310; (Carson) 638; (Dickinson) 797. Joint High Commission of 1898-9. (Finlay) 7. Phelps's, Mr., proposal of 1896—Preference of British and Canadian Governments for preliminary survey. (Finlay) 316. Joint Convention between United States, Great Britain, and Russia proposed— Bagot's, Sir C, letter to Mr. G. Canning (October, 1823). (Finlay) 30. Great Britain declining joint negotiations on account of Monroe Doctrine. (Watson) 358. Joint High Commission of 1898-9. (Finlay) 7. loint negotiations between Great Britain and United States prior to separate negotiation with Russia of Treaties of 1824 and 1825— United States proposal— Canning's, Mr. S., letter to Mr. G. Canning (May, 1823). (Finlay) 28. Canning-Bagot correspondence, 1823. (Finlay) 28, 29, 30. Territorial claim a matter for separate settlement. (Finlay) 29. Foint occupancy— Territorial demarcation preferred by Great Britain and Russia. (Finlay) 29. Jurisdiction exercised by United States, refer to title Acts of possession, of government, &c. Kanaghunut Island. (Finlay) 38, 68, 76, 83. Kenai, Kinai, Bay of (Cook's Inlet) — Russian establishments seen by Vancouver—M. de Poletica's mention of. (Finlay) 25, 87, 88. Kentucky—Indiana v.— Field's, Mr. Justice, Judgment and definition of doctrine of acquiescence. (Taylor) 555. Kerny-Keny Inlet, Russian name for Cook's Inlet. (Finlay) 21. King, Mr.—Canadian Commissioner under Survey Conventions of 1892-94, c&c— General description of topography of disputed territory. (Finlay) 247, 249. No contradiction made of facts as alleged by Mr. King. (Finlay) 250. Mountain boundary— Impossibility that mountain boundary should follow shores of inlets—Mr. King's statement. (Dickinson) 775, 776. vSsSs LXIV ALASKAN BOUNDARY TRIBUNAL. King, Mr.—Continued. Mountain boundary—Continued. Line laid down as most nearly corresponding with require*- ments of Treaty, see Mountain boundary, King's, Mr., line. Muzon, Cape, latitude of. (Finlay) 66. Qualifications, statement of. (Finlay) 247. King George's Archipelago. (Finlay) 34. King and Duffield, Messrs., Commissioners under Convention of 1902— Report. (Finlay) 218. Klondyke— Gold discoveries, influence on importance of Lynn Canal. (Finlay) 309. Canadian desire for outlet. (Watson) 331. Kodiak (Kichtak) — Russian establishments in 1763. (Finlay) 87. Lambert, Count de—Boundaries suggested for Russian possessions, object in view. (Finlay) 229. Landing at Russian or British establishments by subjects of the respective Powers— Treaty of 1825—Permission to be asked on either side— ml Application of provision—It did not seem to have any bearing on meaning of coast in Article I. (Robinson) 452, 470. Effect of provision was to give permission to land for trading purposes at any point not already occupied. (Fin- la?)12- Russian Contre-projet, fourth negotiations. (Finlay) 56. Landing at unoccupied points— Provisions of Articles I, II, and VII of Treaty of 1825. (Finlay) 227, 228. Application of provisions was not clear. (Robinson) 452, 470. Langsdorff map— Valueless map. (Taylor) 527; (Dickinson) 675,684. Latitudes—Degrees of north latitude-mentioned— 42° 50'. 88. 45° 50'. 121,22, 343,359. 49°. 22, 228, 229. 51°. 22, 24,26, 29, 30,45, 58,119, 229, 343, 346, 355, 362, 378. 52° 20'. 22. 53°. 40,369. 54°. 31,40,41,45, 349,367, 369. 54° 30'. 22, 353. 54° 39i'. 116, 694. 54° 39' 48". 387,390, 391. 54° 39' 50". 66. 54° 40'. 14, 55, 57, 58, 59, SI, 116, 189, 327, 377, 378, 422, 447, 448, 449, 470, 472, 512, 513, 534, 535, 630, 633, 661, 662, 665, 666, 694, 723, 737. (For discussion of 54° 40' question, see title Fifty-four- forty.) 54° 40' 6". 117. INDEX TO MINUTES OF PROCEEDINGS. LXV Latitudes—Continued. 54° 41'. 116, 694 54° 41J'. 116, 694. 54° 41' 4". 116. 54° 42'. 116, 694. 54° 42'15". 116. 54° 42i'. 7i? H6? 694. 54° 43'. 54° 43J'. 54° 44'. 54°44i'. 54° 45'. 54° 45^'. 54° 45' 8" ::". 54° 46'. 54° 47'. 54° 47J'. 54° 48'. 54° 48J'. 54° 49'. 54° 58'. 55°. 116, 694. 116, 694. 116, 694. 116, 694. 38,70,116,121,224,372, 383, 533,694. 38,76,116, 694. 116,694. 116, 694. 116, 694. 75. 76. 116, 694. 72. 14, 22, 23, 26, 30, 32, 33, 34, 36, 39, 42,189, 327, 339, 340, 343, 346, 348, 349, 351, 353, 354, 355, 362, 368, 381. See also title Fifty-fifth parallel as southern boundary. 55° 16'. 75. 55° 42'. 75. 55° 45'. 68, 75, 94, 562. 55° 55'. 562. 56°. 13, 14, 22, 39, 40, 41, 43, 45, 55, 64, 224, 353, 360, 372, 381, 383, 533, 601, 602, 630, 633. Refer also to titles Fifty-sixth parallel, Mountain boundary, and Portland Channel head. 56° 20'. 70. 56° 30'. 22,43,123,125. 57°. 29, 30, 31,32, 33, 34,120,121,381,408. 57|°. 30,381. 57° 3'. 27,351. 59°. 29, 57, 58, 59,123, 350, 362, 377, 381. 59° 30'. 56. 60°. 22,26, 56,123,125, 229,358,377,447,448,465, 559. 61°. 32,465. 66° 30'. 23, 354. 68°. 360. Southern water boundary—Discrepancies on maps before the negotiators. (Finlay) 116; (Dickinson) 694. Laurier, Sir W.— Dyea—Undisputed possession by Russia and United States, Reason for preference of Stikine route for railway to Yukon region—Statement in Dominion House of Commons (March 7, 1898). (Dickinson) 819, 820. Ocean terminus located by Sir W. Laurier at Dyea, at the very place where the ocean ends according to international law. (Taylor) 549, 550. LXVI ALASKAN BOUNDARY TRIBUNAL. Laurier, Sir W.—Continued. Possession from time immemorial by Russia and United States— Statement in 1898 that no protest had ever been made. (Taylor) 554. Lawrence, Mr. T. J.— Corporations in international law—Relations of such a company as the Hudson's Bay Company to the British Empire. (Taylor) 506. Lease of territory— Hudson's Bay Company, see that title. United States adventurers, Lease of territory proposed in 1867— Description of southern limit of Russian possession as 54° 40', (Finlay), 149,150. Lieven, Count—Russian Ambassador in London— Definite description of boundaries— British desire for certainty in respect of boundary established by Treaty of 1825. (Dickinson) 734. Evidence from correspondence showing aim of negotiators. (Watson) 400, 431. Mountain boundary— Mountains which follow sinuosities of the " coast," " chain of mountains," &c.—Impossibility that Count Lieven referred to British mountain line. (Dickinson) 749, 758. Revision of Sir C. Bagot's instructions, with qualifications— Report to Count Nesselrode (May 20,1824.) (Finlay) 49. Seaward base of mountains—Criticism of British Draft Convention. (Finlay) 52, 53, 239; (Carson) 610. Ten marine leagues proviso—Extracts from Treaty of 1825 negotiations. (Dickinson) 768, 769, 770. Dissatisfaction that mountains had not been made the invariable boundary—Letter to Count Nesselrode (May 8, 1825). (Finlay) 239, 240. Words used to describe line from which boundary should be taken— 1 Cote," use of. (Finlay) 217. 1 Rivage," use of, instead of " cote," 211, 212. Limitations, Statute of— No Statute of Limitations between nations which bars a right otherwise good. (Finlay) 322, 323. " Lincoln," United States revenue cutter— Report of cruise in waters of lisiere—Formal taking possession of territory on behalf of United States, alleged. (Robinson) 477, 478; (Dickinson) 822, 823, 824. Lincoln Channel and Tonga's Passage— Vancouver's narrative—Did Vancouver's refer to Tonga's Passage or Lincoln Channel as mouth of Portland Channel? Finlay-Lodge-Turner discussion, 76, 77, 78, 79, 80, 81, 82. Liquor traffic—Prevention of sale of intoxicating liquor to natives— Treaty of 1825 negotiations. (Finlay) 52, 56. Lisianski's explorations. (Finlay) 83. Lituya Bay— Russian settlement at. (Watson) 348. INDEX TO MINUTES OF PROCEEDINGS. LXVII Lodge, Senator—Member of Tribunal appointed by the President of the United States— Cameron's, General, Report of 1886, request for, 489, 490. " Canal," the technical expression for estuaries or fjords on the Alaskan coast—Question as to authority for Mr. Taylor's statement, 535, 536. Hudson's Bay Company's lease of 1839— British Government knowledge of—" Drvad' claim, &c, 137, 139. Hamburg, lease signed at, 138. Russian Government, sanction of, 140. Mountain boundary—Translation of " la crete," 618, 619. Portland Channel entrance— Tonga's Passage, suggestion that in Vancouver, Tonga's Passage was referred to as mouth of Portland Channel, 77. Wales, Point—Effect of Vancouver's designation of Point Wales as west point of Observatory Inlet, 539, 540, 541. Portland Channel head to 56th parallel—Question as to northerly direction of British line, 574. " Rivage," used by Count Lieven in place of " cote," 211. Spanish survey of disputed coast by Caamano, 83. Vancouver's narrative, existence of second French edition, 561, 568. . Londonderry, Marquis of— Coast, North-west Coast as used in Russian Ukase of 1821, understood by Lord Londonderry in Russian sense of entire coast— Letter to Count Lieven (January 18, 1822). (Dickinson) 742. Longitudes—Degrees of east and west longitude mentioned— 360. 360. 78° 95° 121° 124° 125° 127° 131° 133° 135° 139° 140° 141° 22, 353. 22, 353. 22,353. 22, 354. 12, 55. 12, 55. 35,382,408, 601, 602, 603. 40, 55, 61,125, 368, 371,383. 43,45, 61, 62, 317, 383. 12, 64, 651. Refer to titles Mountain boundary, St. Elias Region to the Frozen Ocean, &c. * '229° 28' E. 76. 229° 31 J' E. 76. 229° 45' E. 71. 230° 3' E. 72. Vancouver's narrative, east longitudes given in, whereas maps gave both east and west longitude. (Finlay) 71, 75, 94. Louisiana boundary—Lord Stowell's opinion that political coast line was outside mud islands at mouth of Mississippi River. (Taylor) 545. HK*>- LXVIII ALASKAN BOUNDARY TRIBUNAL. Lynn Canal— Access to Yukon territory—Value to Canada of territory in dispute. (Finlay) 6; (Watson) 331, 332. Pauncefote's, Sir J., letter (February 23, 1898). (Dickinson) 820. Acts of government, &c, by United States, alleged to have been acquiesced in by Great Britain—United States' occupation, Evidence as to control of Indian tribes, &c.— Acts between 1867 and 1872. (Dickinson) 792. Acts of possession from 1872 to 1888. (Dickinson) 807. Bulk of acts were with reference to Lynn Canal. (Carson) 637. Chilkoot Pass trail, ownership of—Decision of United States District Attorney (1888). (Dickinson) 829. Collector of Customs, appointment of, at Chilkat. (Dickinson) 814, 829, 830. ' Depositions of United States judicial officers, &c. (Dickinson) 830. Foreign vessels forbidden to land at Chilkat. (Dickinson) 807, 829. Military officers' Reports. (Dickinson) 825, 826. Mineral locations in Berners Bay, &c. (Dickinson) 830. Naval officers, action of. (Dickinson) 826, 827, 828, 829. Ogilvie Survey of 1887—Permission granted by United' States' officer. (Dickinson) 828, 829. Reservation, Indian application to United States' Customs collector for a reservation. (Dickinson) 829. Ships sent to head of Lynn Canal. (Robinson) 479. Coast and ocean question, see title Coast. ' Crossing point of boundary claimed by Great Britain, explanation of various lines shown. (Finlay) 230. Dawson's, Dr., expression in reference to head of canal as coast of Alaska. (Robinson) 444; (Dickinson) 811, 812. Depot at head of, proposed in connection with surveys for laying down boundary line—Cameron Report of 1875. (Dickinson) 801. Evidence of title re-examined by United States subsequently to claim made by Canada and Great Britain. (Watson) 331. Mountain boundary—Range at head of Lynn Canal— Bays and inlets—Range running round. (Watson) 417. Existence of mountains within 10 marine leagues of shores of canal. (Finlay) 244, 245*, 246. If, instead of crossing Lynn Canal, the boundary went round, it would be possible to follow the mountains all the way round. (Finlay) 269. King s, Mr., line crossed Lynn Canal in obedience to condition that, where the mountains receded more than 10 marine leagues from the coast, they were not to be followed. (Finlay) 269. Range corresponding with terms of Section 7 of Treaty of 1825—Existence or non-existence of. Alverstone-Watson discussion, 415, 416, 417, 438. INDEX TO MINUTES OF PROCEEDINGS. Lynn Canal—Continued. ml ^^^ Mountain boundary—Continued. Range corresponding, etc.—Continued. Watershed at White and Chilkoot Passes fulfilling requirements of Treaty. Article by Hon. J. W. Foster in " National Geographic Magazine " for November, 1899. (Finlay) 245, 246. Peculiarities differentiating Lynn Canal from other inlets—Pre- dominance of Lynn Canal in minds of the Tribunal. (Carson) 576. Population at head of—Decrease since 1900—Mr. Wickett's affidavit. (Carson) 655. Position of Lynn Canal with reference to 135th meridian—Discrepancies in Arrowsmith maps. (Carson) 603. Remoteness—General ignorance of the region up till about 1896. (Finlay) 6. Russian Annual Expedition sent up Lynn Canal—Unsupported statement. (Finlay) 306. Settlements at head of, see titles Dyea and Skasrwav. ml ^J mJ Survey of 1894—Mr. Mendenhall's directions to Mr. Pratt and Mr. Flemer. (Finlay) 206, 207. Measurement taken not from head of Taiya Inlet but from a point below its mouth—United States' Survey map, No. 10. (Finlay) 206, 207. Territorial waters, limit of—Position of 6-mile limit, British contention not confined to 6-mile limit. (Finlay) 220, 229. Treaty of 1825—Boundarv negotiations. (Finlay) 121. mJ m .' m7 C5 \ mJ / First and second lines proposed by Sir C. Bagot gave entire western coast of Lynn Canal to Russia. (Dickinson) 739. Mackenzie, Sir A.—First explorer who penetrated from interior to Pacific Ocean. (Finlay) 22. Mackenzie River— Hudson's Bay Company's trading stations—Mr. Pelly's statement. (Finlay) 23. Treaty of 1825, boundary negotiations. (Finlay) 31; (Watson) 354, 360, 366, 367, 371, 380. McLeod's Lake— Hudson's Bay Company trading station. (Finlay) 22. Distance from coast. (Watson) 353, 357. Maine, coast of— Illustration of difference between physical and political coast line—Description of coast from " Nouveau Dictionnaire." (Taylor) 544. Malby's Globe— Oregon dispute, argument founded on the globe by President Buchanan—The globe was coloured in accordance with the United States' contention merely because it was an American order. (Robinson) 475,476. Malespina, Captain— Limits of Spanish rights given in Report. (Finlay) 88. LXX ALASKAN BOUNDARY TRIBUNAL. Maps— Arrowsmith maps, see that title. Authority of maps as interpreting the Treaty of 1825— • Comparison between maps and writers—Aylesworth-Taylor discussion, 539. Discrepancies of maps, see that sub-heading. Maps really raised the whole question. (Carson) 635,636. Maps unchallenged in their interpretation of boundary line—No protest from Great Britain. (Dickinson) 781,782,783. Question had not arisen—Criticism of Contention. (Dickinson) 781, 782. Purchase of AJaska by the United States made on faith of the maps. (WTatson) 328, 329. No Portland Canal shown on one of maps quoted. (Carson) 567. Not a shadow of evidence that United States purchased on faith of the maps. (Robinson) 476. Uselessness of maps. (Carson) 566. Boundary questions, uselessness of maps in investigat- mg- Greenhow's Note in " Historv of Oregon and Cali- ms mZP fornia ' to effect that maps were worst authorities in relation to boundaries. (Finlay) 296. Howard's, Mr., remark—English and Russian charts all wrong " per compass-and otherwise." (Robinson) 477. Sumner's, Mr., remarks in 1867. (Robinson) 492. Twiss, Dr. T. T., opinion of. (Robinson) 475. Robinson's, Mr., attack on the maps, 474—Mr. Taylor's reply, 530. Value of a map depended entirely on circumstances under which it was made. (Finlay) 160,161. For discussion of the authority of any particular map, see name of map. Begbie sketch map, see that title. 1 Canal," not " Channel," used on all maps before negotiators. (Finlay) 91,103. Colouring of maps not of much assistance on minor points. (Alverstone) 158,166. Contour maps—Principle on which maps were prepared. (Finlay) 266. Dickinson's, Mr., map, supposed to have been put in as showing general trend of coast—Carson-Dickinson discussion, 627, 628. Discrepancies of maps- Maps subsequent to Treaty, discrepancies of. (Finlay) 116,117. Negotiators had conclusive evidence before them that the maps were not to be trusted. (Finlay) 240. Mountain boundary variations._ (Finlay) 263, 264. Southern water boundary—Discrepancies in latitudes given by maps before the negotiators—Explanation of abandonment of latitudes and selection of fixed points in laying down boundary. (Finlay) 115. Table of latitudes. (Finlay) 116. INDEX TO MINUTES OF PROCEEDINGS. LXXI Maps—Continued. Dotted lines on maps, explanation of, as indicating conjectural rivers. (Finlay) 155,157,159. Eastern boundary— British disregarding maps so far as eastern boundary was concerned. (Watson) 440. See also titles Mountain boundary and Ten marine leagues. Evidence before the Tribunal, exclusion of all private expressions of opinion whether by map makers or others—Reply to British contention. (Taylor) 501. Exclusion of maps by negotiators was deliberate—Reading the maps into the Treaty would possibly, as Mr. Watson contended, give an answer to Question 5. (Carson) 611. Faden map, see that title. Hudson's Bay Company— Lease of territory—Evidence of Pelly map as to territory included. (Dickinson) 790. Trading posts, location of—Evidence of maps— Coast settlements, alleged—Russian denials— No settlements north of the 54th parallel. (Fin- lay) 44. Not a single post marked between 51st and 60th parallels. (Finlay) 26. Faden map. (Watson) 357, 363. Maps did not show a single trading post between 51st and 60th parallels, Russian assertion. (Watson) 353. Pelly's, Mr., Memorandum—Posts mentioned shown in Arrowsmith's map of 1822. (Finlay) 22. Inlets question, refer to title Coast, sub-headings Coast and ocean, Continuous strip of coast, Sovereignty of mainland coast, &c. Lynn Canal, position of, with reference to the 135th meridian—- Discrepancies in Arrowsmith maps. (Carson) 603. Maps before the negotiators. (Watson) 363, 364, 397, 399, 402, 404. (See also titles Faden map, Vancouver, Mountain boundary, &c.) Mountain boundary, see that title, also names of maps. Notice to the United States' Government of British claim to heads of inlets, see that title. Official maps— Definition of an official map—Alverstone-Dickinson discussion, 781. Official maps chiefly quoted by Mr. Dickinson, maps of cartographers being only brought in incidentally. (Dickinson) 778. Phelps, Mr., British and Canadian official maps sent to. (Finlay) 144. Portland Channel and Portland Channel head, see those titles. Survey of 1893-4, maps of. (Finlay) 205, 206. M British sheets—Line of peaks north of Mount Fairweather, Choice of mountains nearest the sea. (Finlay) 304. United States sheets—Deficiency in number of peaks shown north of Mount Fairweather. (Finlay) 304. LXXII ALASKAN BOUNDARY TRIBUNAL. Maps—Continued. Survey of 1893—1, maps of—Continued. Evidence of maps up to 1898. (Dickinson) 761.^ (See also title Ten marine leagues proviso.) For particular maps, see their names. Mare clausum, doctrine of— Persistence of, from mediaeval times—No repudiation before 1821. (Taylor) 509, 510. Russian Ukase of 1821—Extreme form of assertion, not the doctrine itself, challenged by Mr. Adams. (Taylor) 510, 511. Shore, title to, the basis of any claim that neighbouring waters were mare clausum. (Taylor) 510. Maritime jurisdiction— Russian Ukase of September 4, 1821—Distance of 100 miles claimed by Russia. (Finlay) 21, 22; (Watson) 343, 344. Fiscal measure to protect coasts of Russia. (Taylor) 510. Joint negotiations, see that title. Limit of maritime jurisdiction—Mr. G. Canning's despatch (December 8, 1824). (Finlay) 61. Measurement of 100 miles boundary from general line of coast would have been the only possible method. (Finlay) 189. Middleton's, Mr., inquiries—Sir C. Bagot's Report. (Finlay) 29. Precedents—Treaty of Utrecht and Treaty between Spain and Great Britain. (Watson) 345. Territorial rights essential to establish claim to maritime jurisdiction—Russia's territorial claims derided both by Great Britain and United States in the Behring Sea Case. (Robinson) 464, 465. Withdrawal of Russian claim—Treaty of 1825 negotiations. (Finlay) 58; (Watson) 3465 365> 3675 380. Canning, Mr. G.— Instructions to Duke of Wellington and Sir C. Bagot. (Watson) 365, 366. Instructions to Mr. Stratford Canning refusing to agree to rearrangement of Draft Treaty which gave maritime question a secondary place. (Watson) 356. Letter to Count Lieven (May 29, 1824). (Fin- • lay) 49. United States Treaty with Russia—Substituting first two Articles for all that referred to maritime jurisdiction in drafts of Treaty of 1825—Mr. Canning's despatch (December 8, 1824). (Finlay) 60. Virtual withdrawal of, by Russia early in negotiations. (Watson) 365. Martin, Mr.— Hudson's Bay Company's lease of 1839—Extent of Russian- ml JL ml American Company's territory—Leased territory confined to Continent. (Finlay) 132. Hudson's Bay territories and Vancouver Island—Mr. Martin's book published in 1849. (Finlay) 306. INDEX TO MINUTES OF PROCEEDINGS. LXXIII Martin, Peter, case of— Determination of place where assault occurred—Hunter Survey. Authority of Mr. Hunter—Mr. Hunter had no authority to delimit boundary, but the release of Martin by Canadian Government upon his report was a declaration that assault took place in United States' territory—Ayles- worth-Dickinson discussion, 806. Dennis's, Mr., instructions to Mr. Hunter. (Dickinson) 803. Importance of case as leading to Hunter Survey. (Carson) 644. Report, extract from. (Dickinson) 806. Survey settled that it was committed in American territory, point in favour of United States. (Dickinson) 782. Fish's, Mr., comment—The Treaty decided the boundary; Surveys made it certain and patent, but did not alter rights. (Carson) 645. Formal interpretation put upon Treaty of 1825 by adjudication between the two Governments. (Dickinson) 803, 805, 806, 807. Ground on which release should be placed— Correspondence among Canadian authorities. (Dickinson) 804, 805. United States demand for release of Martin distinctly made on ground that assault occurred on American territory, land not water. (Dickinson) 803. Canadian authorities understood demand in same sense as United States—Lord Dufferin's letter to Lord Carnarvon (February 12, 1877). (Dickinson) 804, 805. No admission as to the boundarv involved in giving up Peter Martin. (Finlay) 313, 314. Martinez, Don Jose— Nootka colonists not disturbed by, in 1789. (Finlay) 88, 89. Maskelyne, Point— Latitude and longitude given by Vancouver. (Finlay) 71. Matusevich, M.— Alterations made in Canning Draft Convention by M. Matusevich. (Finlay) 63, 64, 215, 217, 232. Coast mentioned in Article III—Reciprocal privileges granted by Article VII. (Carson) 631, 632, 633. Mountain boundary and 10 marine leagues proviso. (Dickinson) 769, 770. Word " range " struck out. (Carson) 615, 616. Portland Channel head to 56th parallel. (Finlay) 181; (Dickinson) 716, 717. Evidence of understanding as to course of line. (Watson) 394. Southern boundary, possible reasons for altering Mr. Canning's draft. (Dickinson) 662. Mendenhall, Mr.—United States Coast and Geodetic Survey— Joint survey under Treaty of ,1892—Mr. Mendenhall's instructions proving that he interpreted coast line as general trend of the coast. (Finlay) 15, 16, 203, 204, 206, 207; (Robinson) 497; (Carson) 626. '#' *na . LXXIV ALASKAN BOUNDARY TRIBUNAL. Mendenhall, Mr.—Continued. §|g Private views of Mr. Mendenhall expressed in magazine article— Change of mind with reference to direction of boundary line, alleged. (Robinson) 497. Mountain boundary—Allusion in Mr. Mendenhall's maga- zine article to Fairweather Range as fulfilling Treaty requirements. (Finlay) 244. Private opinion could not affect the argument based on official action. (Finlay) 204. Private views of Mr. Mendenhall were not to be considered as adopted by United States Agent or Counsel because his letter was put forward in their case. (Dickinson) 813, 814. Middleton, Mr. H.—United States Representative at St. Petersburgh— Authority as Representative of United States. (Robinson) 465. Coast— Inlets and ocean, distinction drawn—Letter announcing extension of general privileges (April 7, 1824). (Robinson) 453, 470. " Shore," use of in place of " coast." (Finlay) 211*.. Memorandum of 1823—No territorial claims below 61° N. advanced by Russia in 1790, none below 60° N. in 1799. (Robinson) 464, 465. Report of conversation with Mr. S. Canning as to terms of Treaty of 1825— ml Admission of, as evidence before the Tribunal. (Taylor) 518; (Carson) 573. Alverstone-Finlay-Turner Discussion, 168,169. Canning's, Mr. S., declaration regarded by United States as declaration of a party who had himself made the contract and was explaining what he meant as to the line of demarcation. (Watson) 413, 414. Eastward direction of boundary line, see title Portland Channel head to 56th parallel—Mountains. No mention of 54° 40' as governing factor in southern water boundary. (Finlay) 117. " Shore," use of word by Mr. S. Canning. (Finlay) 211. Russian Ukase of September 4, 1821—Inquiries as to execution of Ukase, and Russian Assurances—Sir C. Bagot's Report to Mr. G. Canning. (Finlay) 29. Vancouver's narrative, knowledge of—References to narrative in Memorandum. (Finlay) 90, 91. Not being one of the negotiators, Mr. Middleton's knowledge was valueless as evidence of their knowledge. (Dickinson) 669. Military Reconnaissance— ml » See Schwatka, Lieutenant. Mineral laws of United States— Extension of, to territory in question in 1884, Regulations of 1885, &c. (Dickinson)" 807, 830. INDEX TO MINUTES OF PROCEEDINGS. LXXV Mofras, M. Duflot de- Map of 1844— Mountains and boundary line, relative position. (Finlay) 296; (Dickinson) 764. Portland Canal and Observatory Inlet, evidence as to. (Finlay) 159. Quotation from, in United States Case Appendix, did not help the case at all. (Finlay) 167. Monroe Doctrine— Great Britain's reason for declining joint negotiations with United States, 1824. (Watson) 358. Moore, Mr. Stuart— Book on fisheries referred to. (Finlay) 194. Mordvinof, Admiral— Rocky Mountains proposed as eastern boundary. (Watson) 370. Mountain Boundary— Existence of mountain boundary, denned but unidentified (British contention) v. Non-existence of continuous range corresponding to Treaty requirements (United States contention). (Watson) 397, 399, 402, 403, 404, 410, 415, 416, 421, 423, 436, 438; (Carson) 605, 607, 608, 609; (Dickinson) 766, 767. Affidavits filed on behalf of the United States, see sub-heading Joint Survey. Alverstone-Finlay discussion—Existence of mountains fulfilling Treaty requirements throughout the course of boundary line, 244, 245. Alverstone-Watson discussion—Nowhere any mountains conforming to Article VII of the Treaty, 416, 417, 437, 438. Artificial and arbitrary boundary—British proposed scheme of construction. (Taylor) 504, 553. Effort to make a new Treaty—Effect of British proposition. (Taylor) 504. Without precedent. (Taylor) 504. Base of mountains, see sub-headings Seaward base and Summit. Basis of Treaty of 1825—Without mountains, Treaty incapable of application. (Finlay) 10, 13, 14, 18, 62, 63, 64, 190, 191, 233, 234; (Robinson) 460; (Carson) 584. Canning's Mr. G., Draft Convention of December 8, 1824—Evidence of. (Finlay) 62, 234. Criticism of British contention. (Dickinson) 831. Inconsistent statements in British Argument. (Dickinson) 766. Position of Great Britain should the Treaty be held to fail. (Dickinson) 766, 767. Review of negotiations. (Finlay) 234-237. Bays and inlets— Boundary running round heads irrespective of mountains— Impossibility of mountain boundary following shores of inlets—Mr. King's statement. (Dickinson) 775, 776, LXXVI ALASKAN BOUNDARY TRIBUNAL. Mountain Boundary—Continued. m7 Existence of, etc.—Continued. Bays and inlets—Continued. Boundary running round heads, etc.—Continued. Maps, evidence of. (Watson) 328; (Taylor) 538; (Dickinson) 764, 765. Meaning of Question 5—Criticism of Mr. Watson's argument. (Carson) 576, 577, 578. Overriding principle involved in affirmative answer to Question 5. (Finlay) 93. -Chain of mountains referred to, and delineated on maps, runs round heads of all bays and inlets. (Watson) 403, 406, 411. Mountains of the maps had a relative situation in regard to inlets whose position was well known in 1825, therefore they indicated the line intended by neero- ml ml ^D tiators just as effectually as mountains on the ground could do. (Dickinson) 763, 764. " Chain " or " range "—Expressions used in the negotiations, but not in the Treaty of 1825. (Watson) 411, 412, 413. " Chain" not mentioned in the Treaty—Probability that had the negotiators intended a chain, M. Matusevich would have inserted the word in the Treaty— Jette-Watson discussion. 4319, 420. Draft Treaty- Disappearance of word " chaine " from later drafts of Treaty. (Finlay) 239. Mention of range of mountains in final draft. (Watson) 404, 412, 415. Hudson's Bay Company's reference to a chain of mountains. (Watson) 374. Omission of words from Treaty—Mention of words in negotiations a proof that they were contended for, but not obtained. (Robinson) 455, 459. " Range "—Word used in Mr. Canning's draft, struck out by M. Matusevich, and left out of the. Treaty— Now proposed to put the word in again. (Carson) 615, 616, 617. Characteristics of mountain region between Portland Canal head and Lynn Canal—An elevated plateau eroded by ice and water action. (Dickinson) 770. Possible methods of selecting a boundary—Treat the ^3 ml _ plateau (1) as a succession of peaks or (2) as a single mountain mass, and run the line along the coast which would come nearest answering the imaginary mountains of the Treaty. (Dickinson) 771, 775. Commencement point of boundary—Situation of mountains in relation to Portland Channel, see title Portland Channel head to the 56th parallel. Continuity— " Chain," continuity not implied by a chain of posts, a cordon of troops—A chain of mountains remained a chain whether intersected by rivers or inlets. (Robinson) 458, 459, 460. INDEX TO MINUTES OF PROCEEDINGS. LXXVII Mountain Boundary—Continued. Existence of, etc.—Continued. Continuity—Continued. Maps before the negotiators—Slight and unimportant breaks in continuity of range. (Watson) 407/ Not required by terms of Treaty.- (Finlay) 233, 238, 239, 258. ^ Continuous chain of mountains from Mount Elias to Mount Fairweather. (Finlay) 17. f- "Crete"— Continuity implied in word " crete." (Watson) 418, 419, 420. Line drawn upon crest of a chain of mountains must zigzag from peak to peak—Aylesworth- Watson discussion. 418, 419. Translation of "la crete" as "the summits." (Car- :- son) 617-619. Description of situation of mountains— Terms used in the negotiations and in the Treaty. (Carson) 619, 620. See also sub-heading Nearest to the sea. Dominating range—No such words in the Treaty. (Carson) 615. I Effect of finding mountains as depicted upon the maps— Would the Treaty identify them as the line ?— Mountains being discovered nearer to the coast, it would be necessary to take what existed as actual fact, and not what was guessed to be intention of Treatv. (Carson) 613,614. Turner-Carson discussion, 612, 613. Failure of line altogether if the Treaty named specific mountains, and the specific mountains could not be found. (Carson) 605. Fairweather, Mount, and Fairweather Range, see those titles. Hudson's Bay Company's views— Desire for more particular description indicated doubt as to location, not as to existence of mountains. (Watson) 412. Pelly's, Mr., Letters suggesting a more particular description of the mountain boundary. (Carson) 610. " Tres petite ' distance proviso—Criticism of Russian counter-proposals. (Finlay) 48, 235. Ignorance of negotiators as to nature of mountains—Vancouver's knowledge the measure of negotiators' knowledge, and Vancouver knew only that seen from the sea the country was everywhere mountainous. (Robinson) 457. Impracticable boundary, as laid down in the Treaty, alleged— Bayard's, Mr., criticism of Vancouver's mountains, and suggestion that an International Commission should be appointed to lay down a conventional line. (Finlay) 259-263. Dall's, Mr., letter to Mr. Dawson (April 24, 1884). (Dickinson) 808. S. Doc. 162, 58-2, vol 7 34 PyySSKS' Lxxvm ALASKAN BOUNDARY TRIBUNAL. Mountain Boundary—Continued. 1|| Existence of, etc.—Continued. Impracticable boundary, etc.—Continued. Dall's, Mr., letter to Mr. Dawson, etc.—Continued. Impossibility spoken of referred to question of expense. (Dickinson) 808, 809. Dall's, Mr., Report to Mr. Bayard. (Finlay) 260. Interior ranges shown on maps before the negotiators—No continuous interior range from 56° N. to 141° W., but all ranges running round heads of bays and inlets. (Watson) 405,406,411.^ Jocelyn's, Captain, Report. (Finlay) 258. Joint surveys and explorations by Commission of 1893-1895 appealed to by the United States—Mr. Tittman's Report and depositions to the effect that there was no defined mountain range, evidence of. (Finlay) 250, 251; (Watson) 424. Coastal barrier—Expression used in Mr. Hodgkins's deposition. (Finlay) 253. Height of mountains close to the shore prevented seeing far into the interior, alleged. (Finlay) 253. Highest mountains in Stikine River district were considerably inland. (Finlay) 256. Homogeneous range—Expression used in Mr. Baldwin's deposition. (Finlay) 255. Individualized mountain chain—Expression used in Mr. Baldwin's deposition. (Finlay) 256. " Mountain range "—Phrase did not occur in the Treaty. (Finlay) 250. I Mountains bordering the coast"—the very thing the Treaty contemplated. (Finlay) 253. Qualifying expressions used—" dominant," " defined," ft continuous," &c.—Form in which deponents had answered question did not help United States contention. I (Finlay) 252. Shore line rising abruptly almost from the water's edge. i (Finlay) 253, 255, 256, 257. Very thing against which the Russian negotiators provided. (Finlay) 254. | Summit range "—Treaty did not contemplate the highest range, it contemplated the tops of the mountains, which anyone navigating along the coast could see. (Finlay) 252. |§| Vagueness introduced by throwing upon experts the construction of the Treaty. (Finlay) 250. King's, Mr., declaration describing general features of North-west Coast (April 27,1903). (Finlay) 247,249/ Confirmation of Mr. King's view obtained from United States' depositions inclosed in Mr. Tittman's report. (Finlay) 253, 254. No contradiction made of facts as alleged by Mr. King. (Finlay) 250. INDEX TO MINUTES OF PROCEEDINGS. LXXIX Mountain Boundary—Continued. Existence of, etc.—Continued. King's, Mr., line laid down as most nearly corresponding with requirements of the Treaty. (Finlay) 265, Alternative lines suggested in Lynn Canal region according to possibly different interpretations of coast. (Finlay) 271. Contour maps on which Mr. Bang's work was based— Principle on which maps were prepared. (Finlay) 266. Criticism of British line by Mr. Dickinson— Lynn Canal and Glacier Bay, boundary between— Peaks at St. Thomas's Bay, Gastineau Channel, Profile maps showing peaks selected by Great Britain to be not summits, but slopes, 772, 773, j 774,- 775. Number of miles over water, &c, 771, 772. Portland Canal, line had no legitimate connection with, 771. Criticism of British line in Appendix to United States' Argument, with comments on the criticism. (Finlay) 276, 280, 282, 283, 285, 286, 287, 288, 290. Line cutting mountain transversely at peak 4,881, in contravention of terms of Treaty. (Finlay) 286. Lower summits taken when there were possible higher ones. (Finlay) 283, 286. Lynn Canal, change of direction of British line— Mountains receded more than 10 leagues, and line must be drawn at specified distance. (Finlay) 288, 289. Other mountains in the vicinity which answered equally well. (Finlay) 276. Peak 3,400—Inquiry why British line merely took one end of ridge and then went off westward— Sea was to the westward and mountains to be sought must be in direction of the sea. (Finlay) 280, 281, 282. Skips from mountain peak to mountain peak, no definite crest. (Finlay) 277. Stikine River, crossing point of boundary—Different places contended for. (Finlay) 283. Elevations between the peaks— Did the intervening elevations indicate a continuation of the mountains towards each other, or did they indicate heights of lower peaks which might be between or upon one side or the other ? — Turner - Finlay - Alverstone discussion, 277-279, 281. Method of showing, and results obtained. (Finlay) 273, 274. LXXX ALASKAN BOUNDARY TRIBUNAL. Mountain Boundary—Continued. Existence of, etc.—Continued. King's, Mr., line, etc.—Continued. Heights of peaks selected— Peaks nearer to the water were lower than the peaks selected. (Finlay) 272. Selected as outstanding points by way of giving guide to the line. (Finlay) 266. Lynn Canal— ml If instead of crossing Lynn Canal the boundary line went round, then similar peaks would be found all the way round. (Finlay) 269. Line crossed Lynn Canal in obedience to condition that where mountains receded more than 10 marine leagues from the coast they were not to \m followed. (Finlay) 269. Maps, disregard of—Line contended for by Great Britain a proof that she did not believe in the existence of a range as shown on Faden's map. (Watson) 424. Nearest thing to the sea that could be called a mountain—Why not take crests of smallest mountains bordering the waters?—Turner-Finlay-Alverstone discussion, 287, 288. Photographs—Explanation of principle. (Finlay) 275. Profile sections showing how the line of mountains would look from the^ea, &c, reference to. (Finlay) 265. Text of Mr. King's description. (Finlay) 266, 268, 270, 271. Lynn Canal, see that title. Maps—Evidence on mountain boundary— Absence of mountains in maps put forward in Case for United States. (Finlay) 16, 17, 296. Absence of other sources of information. (Watson) 408. If Vancouver could not locate the mountains in his narrative, how could he locate them in his map? (Carson) 609. Authority of maps—Weight attached to maps by negotiators, subsequent maps, &c.— Canning's, Mr. G., belief in existence of range substantially as shown on maps before the negotiators. (Watson) 403, 404, 406, 407, 409, 410, 412. Conventional representation of mountains, which fact must have been known—Why should negotiators have believed in the maps? (Carson) 606, 607, 609, 611, 613. Discrepancies in representation of mountains. (Finlay) 263, 264; (Carson) 606, 607. Enumeration of maps, with comments on boundary as represented. (Finlay) 293. Errors in charts—Possibility of, kept in view during negotiations. (Finlay) 260. INDEX TO MINUTES OF PROCEEDINGS. LXXX1 Mountain Boundary—Continued. Existence of, etc.-—Continued. Maps, etc.—Cntinued. Authority of maps, etc.—Continued. Exclusion of maps was deliberate—If they had chosen negotiators could have attached map to the Treaty, with line drawn. (Carson) 611, 612. Geographers put down 35 miles as a possible extreme boundary, the mountains being unsur- veyed. (Finlay) 293. No authority in laying down boundary, map makers copied each other, representation of mountains nearer to sea than boundary, &c. (Finlay) 293, 294. Not incorporated, and ought not to be read into the Treaty. (Carson) 605, 611. Reliance of negotiators on—References to maps in course of negotiations. (Watson) 404, 405, 406, 408, 409,410, 411, 412, 421. Bayard's, Mr., criticism of Coast Survey map, No. 960— Boundary line as evidently conjectural as Vancouver's mountain line. (Finlay) 261,262. Bays and inlets, mountain boundary in connection with, see sub-heading Bays and inlets. Bordering the entire coast, mountains shown on Vancouver and Faden maps as. (Dickinson) 740. Distance of mountains from coast considerably less than 10 marine leagues. (Finlay) 24. Intention of the negotiators, evidence of maps. (Dickinson) 764. Mere* strip of territory would be given by ridge of hill nearest the beaches, Mr. Dall's objection—Very thing the negotiators contemplated. (Finlay) 260,261. Next to the sea, evidence of maps against British contention. (Dickinson) 764,765. Profile maps of mountains between Lynn Canal and Glacier Bay submitted by Mr. Dickinson—Need for checking, compass bearings not marked, &c.—Alver- stone-Dickinson-Finlay discussion, 772,773,774,775. Vancouver's map, conventional representation of mountains. (Robinson) 458. Bayard's, Mr., criticism of mountain topography and conclusion that negotiators accepted it as correct. (Finlay) 259,260. Treaty makers knew the extent of Vancouver's acquaintance with coast district. (Finlay) 238, 239. For particular maps, see their names. Nearest to the sea—Expression used by negotiators of Treaty of 1825. (Finlay) 239, 240. Canning's, Mr., letter to Sir C. Bagot. (Carson) 619. ■ • Lxxxn ALASKAN BOUNDARY TRIBUNAL, Mountain Boundary—Continued. Existence of, etc.—Continued. Nearest to the sea, etc.—Continued. Hunter's, Mr., survey—Provisional limitation arrived at as result of strictly local survey, Treaty rights being formally reserved by United States and- Canada. (Finlay) 314,315. Impossible to draw a line, except by taking mountains nearest the sea. (Carson) 620. Maps, evidence of, against British contention. (Dickinson) 764, 765, 766. Not necessary to British Case to find higher mountains back from the coast. (Finlay) 258. Pelly's, Mr., suggestions. (Finlay) 235. Russian objection to base of mountains as boundary clearly indicated that mountains nearest the sea were the mountains in question. (Finlay) 236,238. Shore mountains or mountains nearer to the coast could not be taken, alleged—Not only discrepancies on maps, but there were other mountains between so- called range3 and the sea. (Carson) 606, 607. Words found twice only in the negotiations, and not in any draft of the Treaty. (Watson) 413. (Refer also to sub-heading Seaward base.) Nearness to the coast sole objection made to mountain boundary—Conclusive argument that negotiators did not look upon mountains as specified and located. (Carson) 609. ii Lieven's, Count, objection to the word "base." (Carson) 610. Parallelism, question of. (Finlay) 237, 2<fl. Sinuosities of the coast— Meaning of the phrase as used by negotiators was fixed bv their reference to the mountains " which ml run parallel to the coast, and which appear, according to the map, to follow all its sinuosities." (Dickinson) 740, 741, 758. Parallelism with, not required by the Treaty— Inaccuracy in United States statement of case. (Finlay) 237, 238. Text of Treaty—Situate "parallel to the coastr and " extending in a direction parallel to the coast," impossibility of distinction between. (Robinson) 457. Purposes and desires of both Great Britain and Russia carried out by a mountain boundary corresponding with mountains shown on maps. (Watson) 423,441. Question to be.decided by the Tribunal— ^*^ ml Ajiswer desired by Great Britain. (Finlay) 208,209. Answer requested by United States. (Finlay) 238, 243; (Watson) 437—Answer desired by United States was not an answer to the question. (Carson) 584. Meaning of Question VII. (Carson) 582. m INDEX TO MINUTES OF PROCEEDINGS. LXXXIIl Mountain Boundary—Continued. Existence of, etc.—Continued. Questions to be decided by the Tribunal—Continued. Mountains, according to the question, must be found the whole way, if they exist, whether within 10 marine leagues or not. (Carson) 583, 584. Powers and duties of the Tribunal— Defining of certain points necessary in answering Question 7. (Watson) 336, 337, 416, 417, 438. ' Meaning of Question 7—Was it a question of law or of fact, or of both? (Robinson) 462, 463. Russian dissatisfaction that mountains had not been taken as invariable line of demarcation. (Finlay) 64, 234; (Carson) 610. Russian proposal—Advantages of natural boundary, &c. (Finlay) 234, 235. Salisbury's, Lord, interpretation of the Treaty—Letter to British High Commissioners (July 19,1899). (Watson) 413,424,432; (Taylor) 553. Statement as to non-existence of mountains probably a statement of a contention. (Carson) 653. Statement had no binding power. (Alverstone) 653. Seaward base of mountains as boundary— Canning's, Mr. G., despatch and Draft Convention. (Finlay) 50, 51, 235, 236. Meaning of " seaward base "—Root-Carson discussion, 619, 620. j Russian objection that the line might come right down to the water—Count Lieven's criticism, suggested substitution of summit. (Finlay) 53, 54, 236; (Watson) 400, 412; (Robinson) 464. Width of lisiere, British Argument based on Count Lieven's criticism—There might well be 25 or 30 miles between crest and base of mountains descending by an imperceptible declivity. (Watson) 440. . Selection of peaks— King's, Mr., line—Why was that not as good a barrier as the continuous range? (Carson) 614. One peak only—Did Mr. Watson really believe that there was only one peak from which you could take for 500 miles? (Carson) 608. S'etendent—Mountains " qui s'etendent," meaning of—Turner-Watson-Jette discussion, 421. Summary of argument in favour of British contention. (Finlay) 325. Summary of propositions in Treaty of 1825 negotiations. (Taylor) 551. Summits of mountains, line along, was to be real boundary. (Carson) 608, 610. No reason why the line should not cross an inlet if the required summit was found on either side. (Carson) 662. Summit denoted top of each mountain found in the line. (Finlay) 287, 288. lxxxiv ALASKAN BOUNDARY TRIBUNAL. Mountain Boundary—Continued. m. Existence of, etc.—Continued. Summits of mountains, etc.—Continued* Thorn's, Mr., letter in 1888. (Carson) 649. See also sub-heading Crete. Suppression of mountain boundary in favour of 10 marine league limit, see title Ten marine leagues. Survey of 1893-1894—Mr. Mendenhall's instructions. (Finlay) 204, 207. Ten marine leagues proviso, see that title. Text of Article III of Treaty of 1825. (Finlay) 12. Unascertained line—Boundary was under the Treaty of 1825, and still remains, an unascertained line. Criticism of British contention. (Watson) 397, 398, 399, 301, 438, 439, 440. AJverstone-Watson discussion as to meaning of suggestion in British Argument, 398, 399. Evidence of negotiations that negotiators desired to fix limits beyond dispute. (Watson) 399, 400, 401, 438, 440. ' Survey had never been made, no one had ever penetrated the country. (Carson) 607, 609. Vancouver's charts and narrative, correspondence of words of Treaty with—Mr. Dawson's letter (February 7, 1888). (Watson) 412,413. See also sub-heading Maps. Wood's, General Clay^ Report—Reference to position of British Custom-house on the Stikine. (Finlay) 258. Mutual convenience principle— Treaty of 1825, basis of negotiations. (Finlay) 35, 37. Muzon, Cape— Latitude of— Latitude according to Messrs. Duffield and King. (Finlay) 766. \ Variations in maps before and after Treaty of 1825. (Finlay) 116; (Dickinson) 694. Southernmost point of Prince of Wales Island. (Watson) 387. Starting point agreed to by both Parties (Finlay) 66, 111; (Watson) 387; (Dickinson) 660. " National Geographic Magazine for November, 1899 "— Foster's, Hon. J. W., article. (Finlay) 245, 246. Naval Administration of Alaska— Exercise of United States' jurisdiction—Reports, &c, of naval officials. (Dickinson) 826, 827, 828, 829. Naval Convention of 1780 (? Nootka Convention of 1790) — Nootka affair the cause of. (Taylor) 511. Navigation Rights— Inlets—Right of navigating an inlet so far as it formed territorial waters would be given bv the law of nations in cases C? m/ where right of navigating the river existed. (Finlay) 19. Criticism of contention. (Dickinson) 776, 777. Liberty to visit inland waters for fishing and trading purposes— Treaty of 1825 negotiations— INDEX TO MINUTES OF PROCEEDINGS. Navigation Rights—Continued. Liberty to visit inland waters, etc.—Continued. Canning's, Mr. G., letter to Count Lieven (May 2§, 1824). (Finlay) 48. Coast mentioned in Article III—Reciprocal privileges of frequenting inland seas, &c. granted by Article VII of Treaty of 1825, see title Coast mentioned in Article III. For ever—British demand. (Finlay) 56. Nesselrode's, Count, views. (Finlay) 57; (Watson) 376,377,378. Russian reply—Abandonment of Treaty preferable to compliance with British demand. (Watson) 376, 377. Parts of the coast other than the lisiere, visiting for fishing and trading purposes—Reciprocal'privileges for a term of years—Treaty of 1825 negotiations—Count Nesselrode's views,.&c. (Finlay) 50, 52, 56, 57, 58,-59. Ten years—Russian proposal. (Watson) 377. British acceptance. (Finlay) 62,63; (Watson) 378. Text of the Treaty. (Finlay) 19. Time Limit—Mr. G. Canning's Despatches and Draft Conventions. (Finlay) 50,_52. Maritime jurisdiction, see that title. Rivers, see that title. Neglect of boundary question by Great Britain, alleged—Charge of misleading the United States. (Robinson) 495. Nelson, Mr.— Mountains of Alaska, deposition. (Finlay) 258. Nesselrode, Count—Russian Minister of Foreign Affairs— " Coast," meaning attached to—Treaty of 1825 negotiations. (Dickinson) 750, 751. Diminutive expressions used in regard to strip of coast, explanation of—It was policy to belittle Russian demand, and the coast strip was a small matter compared with the vast continent with which they were dealing, &c. (Dickinson) 762, 763. (Dickinson) 746. Historical meaning attached to " coast' by Count Nesselrode—" Coast' was the Northwest Coast of the Ukases. (Dickinson) 746. Hunting, fishing, and trading rights, British demand— Rights referred to whole of coast. (Dickinson) 750,751. Motives of Russia in demanding a strip of coast upon the mainland—Count Nesselrode would certainly not have agreed to the broken lisiere given by the British line. (Dickinson) 748, 749. Sinuosities of the coast—Sinuosities which mountains followed. (Dickinson) 758. Distinct and certain frontier, Count Nesselrode's aim. (Watson) 400. I Dryad' claim—Despatch to Count Kankreen (December 9, 1838). (Finlay) 138,305. Fifty-four-forty (54° 40') — First mention of, in connection with Treaty of 1825. (Finlay) 124,126. LXXXV1 ALASKAN BOUNDARY TRIBUNAL. Nesselrode, Count—Continued. Fifty-four-forty—Continued. ml mJ ^B- « . - Hudson's Bay Company's lease of territory—Omission of. words § or thereabouts " in description of southern limit as 54° 40'. (Finlay) 132. Not limited to point of commencement, but regarded as southern boundary in place of 51° as claimed by Ukase of 1821, and in accordance with terms of American Treaty— Extracts from letter to Count Lieven (August 31, 1824). (Dickinson) 691, 692, 693, 710. Object of introducing 54° 40' into Treaty of 1825. (Watson) 390. Introduced, to avoid intersecting Prince of Wales Island. (Carson) 570. Infringement of Russia's sovereign rights on North-west Coast; by smugglers- and foreign adventurers—Arms and ammunition supplied to natives, &c.—Letter to Count Lieven. (Watson) 344. Inlets question—If the 10-marine league limit was not intended to be absolute, and the lisiere might be anything less than 10 marine leagues in width, it merely showed that Count Nesselrode was indifferent to the width question because he was sure of the inlets. (Watson) 435, 436. Mountain boundary with 10 marine leagues proviso— Dissatisfaction that mountains had not been adopted aa invariable line of demarcation—Despatchr to Count Lieven. (Finlay) 64, 234. Extracts from Treaty of 1825 negotiations. (Dickinson) 768, 769, 770. Neutrality on North-west Coast—Powers intrusted to Presidents of Hudson's Bay Company and Russian-American Company. (Taylor) 508. Portland Channel mouth, description of position. (Finlay) 217; (Dickinson) 688. Reciprocal privileges granted by Article VII, Application of— Extracts from despatches. (Robinson) 447, 448; (Carson) 630. Russian occupation— English and Russian rights contrasted—" We wish to keep, and the English Companies wish to obtain." (Watson) 351, 358. Hunting and fishing season—Occupation of territory south of 55th parallel. (Watson) 349. Treaty of 1825 negotiations— Extracts from despatches. (Taylor) 515, 516, 517. Fourth stage—Inadmissible points in British projet—Despatch to Count Lieven (September 4, 1824). (Finlay) 57, 58, 59. Position of—Conclusion of American Treaty, &c.—Despatch to Count Mordvinof (March 31 (April 11), 1824). (Finlay) 118, 123. Third negotiations, suspension of—Despatch explaining to Count Lieven the reasons for Russian refusal of British terms (April 5 (17), 1824). (Finlay) 45, 46, 47,118,181. INDEX TO MINUTES OF PROCEEDINGS. LXXSTVII iH Neutrality— Agreement between Russia and Great Britain as to North-west Coast. (Finlay) 134. Agreement made by Hudson's Bay Company and Russian- American Company as representatives of their respective countries. (Taylor) 505, 507, 508, 509. New Archangel— See Sitka. New Caledonia— Hudson's Bay Company's trading stations, &c.—Mr. Pelly's statement. (Finlay) 22, 23. Sea, communication with—Rivers had not been sufficiently explored in 1822 to ascertain if direct communication existed. (Finlay) 22. Newell, Commander— Indians, United States' relations with—Report of 1887. (Dickinson) 829. Nichols, Commander— Certificates of chief ship issued to Indians. (Dickinson) 828. Nicolav, Baron— ms 7 Infringement of Russia's sovereign rights on North-west Coast by smugglers and foreign adventurers—Arms and ammunition supplied to natives, &c.—Letter to Lord Londonderry. (Watson) 344. Nootka— Russian colonists left in possession by Don Jose Martinez in 1789. (Finlay) 88, 89. Nootka Convention— Spanish concessions did not include any admission as to title acquired by Great Britain to North-west Coast, United States view—Hall's note on Sir T. Twiss. (Taylor) 511. North Sea Convention— Width limit of territorial waters fixed by. (Finlay) 219, 220. North-West Company (British). (Finlay) 22; (Watson) 360, 366. Amalgamation with Hudson's Bay Company. (Finlay) 306. Possessions marked on Faden map. (Carson) 594. Norton Bay— Access from, to Yukon territory in July and August. (Finlay) 6. Norwegian fjords— Territorial waters, treatment as—Mr. Graham's Memorandum read before Behring Sea Arbitrators. (Finlay) 219. Notice to United States of British claim to Heads of Inlets— Continuous discussion of whole frontier question from 1872 onwards (British contention) v. No notice given prior to 1898 (United States contention). (Finlay) 6, 309; (Watson) 330, 331; (Robinson) 483, 484. Bayard's, Mr., despatch of November 20, 1885—Despatch entitled the English Government to treat the whole case as open. (Carson) 645, 648. British Columbia Legislative Assembly, address to Governor Trutch (1874). (Dickinson) 799. Cameron Reports, see Cameron. LXXXVttl ALASKAN BOUNDARY TRIBUNAL. Notice to United States, etc.—Continued. Continuous discussion, etc.—Continued. Choate-Salisbury correspondence of 1899. (Finlay) 32i: (Robinson) 483. Congress— Canadian claim to inlets discussed in Congress m 1896. (Robinson) 484; (Carson) 651, 652. Document submitted to Congress in 1880—Discussion of inlets question in Major Cameron's Report. (Carson) 648. Controversy on boundary question from 1872 onwards was in respect of delimiting line in the interior, and had no bearing on the inlets question. (Dickinson) 793, 794, 795. Dall's, Mr., views on Treaty Boundary, see Dall. Dawson notice of 1888— Absence of any confirmation of alleged claim from 1888 to 1891. (Dickinson) 814. Dall-Dawson conferences, see Dawson. Dennis's, Mr., Report, see that title. Determination proposals— Joint Commission, 1872, proposals, see Joint Commissions. Limiting determination to particular points—Admission of United States' contention as to inlets alleged, refer to title Determination and definition of boundary. Dyea and Skagway— Establishment of, see Dyea. Undisputed possession of Dyea and Skagway by United States—Absence of protest—Statements of Canadian officials in Dominion House of Commons (1898). (Dickinson) 818,819,820. Emigration from United States between 1867 and date of first intimation as to doubtful ownership. (Watson) 330. Fairbanks', Senator, challenge to Lord Herschell and Lord Herschell's reply (1899). (Dickinson) 794. Hunter Survey, see that title. •Joint Commission proposed by Mr. Phelps in 1886—British and Canadian Governments' preference for a preliminary survey. (Finlay) 316. Maps- Foreign Office, maps furnished by, to Captain Cameron—No map promulgated at that time showing boundary crossing inlets. (Dickinson) 800. Maps published between 1872 and 1888—Boundary claimed by United States shown on. (Dickinson) 808. Martin, Peter, case of— Formal interpretation put on Treaty of 1825 by adjudication between the two Governments. (Dickinson) 803, 805, 806. For details of case, see Martin. Memorandum by British Minister (December 22, 1890). (Finlay) 320. INDEX TO MINUTES OF PROCEEDINGS. Notice to United States, etc.—Continued. Continuous discussion, etc.—Continued. Pauncefote's, Sir J., arbitration proposals of 1898—Evidence that Sir J. Pauncefote had no thought of construction now placed on Treaty by Great Britain. (Dickinson) 820. Presidential message of December 22,1890. (Finlay) 320. Purchase of Alaska by United States, see that title. Salisbury's, Lord, instructions to British Commissioners in 1898—Statement as to non-existence of mountain range was probably a statement of a contention. (Carson) 653. Schwatka's, Lieutenant, military reconnaissance—British protest, see Schwatka. Seattle Chamber of Commerce Report. (Robinson) 484. Settlement and development of portions of lisiere admitted by United States as one of the reasons for fixing boundary—Mr. Bayard's despatch. (Carson) 641, 651. Stikine River, conventional line at Bucks agreed on in 1875—Local arrangement not sanctioned by central authority. (Finlay) 313. Thorn's, Mr., directions for preliminary survey—Protest, see Thorn, Mr, Treaty of 1892, notice conveyed by, refer to title Treaty of 1892. White Pass Trail, see that title. NTovo-Archangelsk— See Sitka. Nunez, Count Ferman— Spanish claims to North-west Coast, admission of, by Russia in 1720. (Carson) 589. Nunez, Points- Latitude given in Colonial map of 1831. (Finlay) 116. Observatory Inlet— Refer to title Portland Channel. Occupation of territory— British occupation— Hudson's Bay Company, see that title. No evidence of occupation other than that of Hudson's Bay Company. (Finlay) 307. Continents—Duke of Wellington's contention that occupation ought to decide claim of sovereignty. (Watson) 354, 355. Joint occupancy—Territorial demarcation preferred by Great Britain and Russia. (Finlay) 29. Russian occupation—Position of settlements, &c.— Archangel, Russian-American Company's establishment at, see Sitka. British negotiators never denied the fact of the Russian occupation. (Watson) 349. Climate—Reason for settlements being upon islands rather than mainland. (Watson) 362. Continent, settlements on— Easternmost post at time of Vancouver's voyages was Etches. (Finlay) 20, 91. xc ALASKAN BOUNDARY TRIBUNAL. Occupation of territory—Continued. Russian occupation, etc.—Continued. Continent, settlements on—Continued. No settlement on the mainland. (Finlay) 21: (Watson) 372, 373. Canning's, Mr. G., reference to Mr. Pelly's statement. (Finlay) 34. Control of natives. (Watson) 348, 349. Fifty-fifth parallel and southwards—Russian contention— Dividing line, 55th parallel recognized as. (Finlay) 121, 122. Hunting and fishing—Periodical occupation of regions in question, see subheading Hunting. No Russian settlement below 55°, either on islands or mainland—Count Nesselrode's despatch (March 31 (April 11), 1824). (Finlay) 123. Tacit consent of England to Ukase of 1799—Russian contention. (Finlay) 26, 39. Fifty-seventh parallel, no Russian settlement to the south— Sir C. .Bagot's statement. (Finlay) 29. Hunting, fishing, and trading with natives, those being the appropriate uses to which the property could be put. (Finlay) 39, 121, 122;. (Watson) 441. Fifty-fifth parallel and southwards. (Watson) 349, 355, 362, 363, 369. Fifty-fifth parallel (56th on mainland) to 141st meridian. (Watson) 327, 348. Nesselrode's, Count, despatches, quotations from. (Watson) 349, 350, 351, 363, 369. Nature of occupation between 1825 and 1867—No reason for objection on the part of Great Britain. (Robinson) 477. New Caledonia—British traders had never met with traders of other nations in that country—Mr. Pelly's statement. (Finlay) 23. Nootka settlers, descendants of Tchirikoff, alleged. (Finlay) 88, 89. Poletica, M. de, Russian establishments mentioned by—Despatch (February 28, 1822). (Finlay) 87. Russian-American Company, position of, as representative of Russia. (Watson) 358, 359. Settlements established between 1760 and 1819. (Watson) 348. Sixtieth parallel, south of—Russian claim anything but well established—Sir C. Bagot's contention. (Finlay) 32,123. Southernmost limit of Russian possessions at time of negotiations preceding Treaty of 1825. (Finlay) 21. Stimulation of Russian activity due to " Dryad' affair. (Finlay) 305, 306. \ Treaty of 1825 negotiations—Russian statement of territory left open to extension of English Colonies. (Finlay) 40, 46, 122. Twenty-five years' peaceful exploitation—Count Nesselrode's summing up. (Finlay) 47; (Watson) 361. Vancouver and Captain Cook, evidence of. (Watson) 349. INDEX TO MINUTES OF PROCEEDINGS. XCI Occupation of territory—Continued. Title to possession— Failure to define with precision the point to which occupier extended possession. (Taylor) 503. Substituted for title by discovery—Instructions to Duke of Wellington prior to Verona Congress. (Taylor) 503. United States occupation— Customs, commerce and navigation of United States', extension of, to Alaska (1868). (Dickinson) 829. Evidence as to, accumulated by the United States with a view of showing title by occupation—Question of admissibility as evidence before the Tribunal, see Action outside the Treaties. Indians; see that title. Lynn Canal, see that title. Nature of— Absence of reason for objectons on part of Great Britain. (Robinson) 477. Ships, confinement to—Everything the United States did, was done from on board ship. (Robinson) 481. Refer also to titles Notice and Acts of possession. I Ocean "— | Coast " and " ocean," see title Coast. Ogden, Mr.— Deposition that there is no well-defined range of mountains passing through the territory in question. (Finlay) 251, 252. Ogilvie, Mr.— Lynn Canal, survey at head of, entered on only after receiving permission of Ainerican Government. (Dickinson) 807, 828, 829. Oregon question— Malby's globe, argument founded on, by President Buchanan— The globe was coloured in accordance with the United States' contention simply because it was an American order. (Robinson) 475. Twiss's, Sir Travers, statement of British claims to North-west Coast in work on Oregon question. (Taylor) 511. Ounalaska— Russian establishments found by Cook. (Finlay) 87. P Map— See Sumner map. Pacific— Maritime jurisdiction, see that title. Word used in Mr. Canning's draft—Translated into " ocean " in the Treaty. (Finlay) 217; (Carson) 629. Pacific Coast pilot, United States— Map of 1883—Muzon, Chacon, and Nunez, latitudes given. (Finlay) 116. gj % I Parages "— Meaning of. (Watson) 385, 386; (Carson) 598; (Dickinson) 740. Partitioning of territory— Enumeration of titles which could, and have been, applied to the partitioning of the New World. (Taylor) 503. XCII ALASKAN BOUNDARY TRIBUNAL. Passamaquoddy Bay— Commission relating to title to islands—Argument of British Agent that long acquiescence gave title to parties in possession. (Taylor) 556; (Dickinson) 820, 821. Pauncefote, Sir J. (Lord Pauncefote)— Arbitration proposals (February 23, 1898)—Evidence that Sir J. Pauncefote had no thought of construction now sought to be put upon Treaty of 1825 by Great Britain. (Dickinson) 820. Thorn's, Mr., directions for preliminary survey in Report of United States' Coast and Geodetic Survey, protest against— Vagueness of protest, no notice of claim to heads of inlets. (Dickinson) 815. Pearse Island— Portland Channel question, see title Portland Channel. Storehouse erected by United States, 1896. (Finlay) 145,146. Pellv, Mr.— m/7 ^ Boundary suggestions, &c, refer to subjects under title Hudson^s Bay Company. Vancouver's narrative, knowledge of, by negotiators through the medium of Mr. Pelly's Memorandum, see title Vancouver. ml J Pelly map— See House of Commons maps, 1850. Peninsula Question—British claim. (Finlay) 189, 190. Perrier's Pass— Schwatka's, Lieutenant, Report of military reconnaissance fixing Perrier's Pass as point on international boundary—British Government protest. (Finlay) 317. Petroff maps, 1880 and 1882— Method of marking Portland Channel and Observatory Inlet. (Finlay) 165, 297. Peyroux v. Howard— Case cited against the United States—Overruled and inapplicable in any case. (Taylor) 548. Phelps, Mr.— Dall's, Dr., views, adoption of, alleged—Difficulties present to Mr. Phelps were those of drawing line parallel to sinuosities of coast line contended for by United States. (Dickinson) 809. Phillimore, Sir R.— Twiss's, Sir T., book on the Oregon question, approval of. (Taylor) 511. Physical coast line— See Coast. « Physiography and geology of Alaskan coast— Peculiar nature of inlets and bays, submerged valleys. (Taylor) 520, 521. Pinkerton's modern atlas. (Dickinson) 687. Pitney, Mr.— Speech in Congress—Canadian claim to inlets. (Carson) 652. Poindexter, Mr. F. H.— | Appointment as United States Justice of the Peace at Pyramid Harbour, 1890. (Dickinson) 814, 830. I Point d'appui "— Russian motive in acquiring a strip of territory on the mainland, refer to title Coast, continuous strip. INDEX TO MINUTES OF PROCEEDINGS. xcin Poletica, M. de—Russian Plenipotentiary— Bagot-Poletica conference, second negotiations—Report to Count Nesselrode. (Finlay) 31, 32, 33. Russian-American Company's views on boundary question— Report to Count Nesselrode (November 3, 1823). (Watson) 367; (Taylor) 515. Vancouver's narrative, knowledge of—Reference to Vancouver's mention of Russian establishments in Kenai Bay—Despatch (February 28, 1822). (Finlay) 87, 88. Coxe's narrative as source or M. de Poletica's information. (Taylor) 522. No evidence that M. Poletica had read anything in connection with Portland Canal. (Dickinson) 666. Political coast line— See Coast—Physical and Political coast lines. Porcupine River— Crossing point of 141st meridian—Determination proposal in 1873. (Finlay) 311, 312; (Watson) 331. Portland Channel—What channel is the Portland Channel ?—Course of boundary line, &c.— " Canal " and " Channel "— Local and special meaning in Alaska—a great arm of the sea, a fjord. (Taylor) 521— Authority for definition—Lodge-Taylor Discussion, 535, 536. Treaty of 1825 negotiations, Order of use in. (Taylor) 528. Change of name—First introduction of name Portland Inlet, see sub-heading Maps subsequent to the Treaty—Nomenclature. Entrance of—Observatory Inlet v. Pearse Channel. British negotiators being in doubt as to identity of channel would naturally ask the Russian negotiator what he meant by Portland Channel. (Dickinson) 687. 54° 40' as locating mouth of Portland Channel, see Fifty- four-forty. Findlay's directory for the Pacific Ocean—Description of Portland Channel and Observatory Inlet. (Finlay) 166, 167. Islands at mouth of Portland Channel— Hudson's Bay Company's lease of 1839—Mutual recognition that islands above 54° 40' belonged to Russia and that therefore Portland Channel of boundary was not above such islands—United States contention. (Finlay) 133, 134. No mention of Pearse and Wales Islands during negotiation—Inference was that Russia did not want them. (Carson) 569. Portland Canal substituted for Observatory Inlet in order to exclude islands. (Finlay) 87. Vancouver's mention of Kanaghunut and Sitklan Islands. (Finlay) 38, 68, 76. Latitude of entrance— Bagot, Sir C, latitude given by. (Finlay) 38. Nesselrode's, Count, description. (Finlay) 181. PI e]gji 1 ■ 'amrlfl ,-J» ^5?! S. Doc. 162, 58-2, vol 7 -35 XCIV ALASKAN BOUNDARY TRIBUNAL. Portland Channel—Continued. p| Entrance of—Continued. Latitude of entrance—Continued. Vancouver's observations. (Finlay) 38. Various latitudes given on maps published before and after the Treaty of 1825. (Finlay) 116,117; (Dickinson) 694. Maps, evidence of, see sub-heading Maps. Nesselrode's, Count, description oi position of mouth. (Finlay) 45,124,181, 217. Meaning of " a la hauteur de l'lle du Prince de Galles "—Finlay-Alverstone-Aylesworth discussion, 45,46,47. Northerlv direction of boundarv line from point of com- ml ml JL mencement, see title Fifty-four-forty. / ml ms Russian southern frontier—Observatory Inlet proposed by Baron Tuyll but not accepted. (Finlay) 27, 85, 86. Bearing of passage on United States contention that Observatory Inlet should be substituted for the Portland Canal of Vancouver, being larger, &c. (Finlay) 27. Summary of argument in favour of British contention. (Finlay) 323,324. Thalweg, doctrine of, see that sub-heading. Understanding of the Parties as shown by subsequent action, see that sub-heading. I Le long de la passe "—Contention that it meant land rather than water, and indicated going to the side. (Finlay) 13, 99, 110,^111. Crossing inlets, objection was as effective on one side as the Other, only difference was that Observatory Inlet was named and the two northern inlets were not—Lodge- Dickinson discussion, 674. Middle of the channel—Expression used by Sir C. Bagot and Mr. Canning, proposition was never altered. (Watson, 371; (Dickinson) 674, 675. No controversy after Count Nesselrode's proposition in regard to direction of line. (Dickinson) 675. Southern side might have been selected in preference to the northern side—If the whtde body of water were Portland Channel it does not show which sicle it would go. (Dickinson) 673,674. Maps, evidence of, as to what channel was the Portland Channel— Maps before the negotiators. (Finlay) 99, 100, 101, 102, 103, 104; (Taylor) 527, 528; (Dickinson) 683, 684. Authority of maps, evidence that they were before negotiators, &c. (Dickinson) 675, et seq. " Canal," not " channel," found on all maps. (Taylor) 523, 527, 529. Discrepancies—Probabilty that negotiators would refer to Vancouver's narrative. (Dickinson) 686. Latitudes assigned to mouth of Portland Channel—In every case the mouth of southern channel was much nearer 54° 40' than mouth of northern channel. (Dickinson) 694, 695. INDEX TO MINUTES OF PROCEEDINGS. XCV Portland Channel—Continued. Maps, evidence of, etc.—Continued. Maps before the negotiators—Continued. Maps especially relied on—Vancouver and Faden maps. (Dickinson) 675, 687. Printing of names Portland Canal and Observatory Inlet, significance of. (Finlay) 69, 100, 104. Inference either that Portland Canal applied to whole body of water or that the inlet below Ramsden Point was unnamed. (Dickinson) 681, 682, 683, 684, 686. Maps subsequent to Treaty of 1825. (Taylor) 529, 530, 533. Colouring of maps—Weight to be attached to colouring of United States Coast Survey Map of 1867— Alverstone-Dickinson discussion, 709, 710. Evidence as a whole strong in support of British Case. (Finlay) 167. Government responsibility for maps—The Government of a country was bound to supervise its own map makers. (Dickinson) 708. No Portland Canal shown on one of the maps examined by the Senate in view of purchase of Alaska by United States. (Carson) 567. Nomenclature—First introduction of name Portland Inlet. (Finlay) 163. Subsequent maps in which the changed nomenclature has been adopted. (Finlay) 164,165, 166. Wharton's, Mr., note on copies of 1884 and 1886. (Finlay) 163, 166. Official maps of United States and Great Britain. (Dickinson) 702, 703, 704, 705, 706, 707, 708, 709. Reaching to the sea question—Evidence of maps as to whether Portland Canal and Observatory Inlet were both considered to reach the sea—Position of names, &c. (Finlay) 152, 154, 155, 157, 158, 159, 160, 161, 162,163, 164,165,166. (For particular maps see their names.) Possession, right of—Acts of occupation, &c.— Hudson's Bay Company— Factory established in 1835—Evidence of maps. (Finlay) 162. No establishments " a la hauteur de Portland Channel "—Russian contention. (Finlay) 47. No establishments up the latitude of Portland Channel—Russian statement. (Watson) 351. Storehouses erected by United States in 1896, see that sub- ml ' heading. Question before the Tribunal—Answer desired by Great Britain. (Finlay) 8. Southern (continental) boundary, Portland Channel as—Russian demand, Treaty of 1825 negotiations. (Finlay) 36, 41, 180; (Watson) 384, 385; (Dickinson) 687, 688, 692, 693, 740. SK XCVI ALASKAN BOUNDARY TRIBUNAL. Portland Channel—Continued. Southern boundary, etc.—Continued. Confirmation of view that Portland Canal was Vancouver's2 Portland Canal. (Finlay) 126. First use of " Portland Canal." (Dickinson) 687. Russian motive in insisting on Portland Channel as boundary. (Finlay) 39, 125, 180, 181. Protection of island ownership. (Watson) 350. Storehouses erected by United States in 1896. (Finlay) 145,146. Bayard's, Mr., despatch of November 20, 1885—Storehouses erected in consequence of British Government's supposed acquiescence in Mr. Bayard's Portland Channel argument. (Finlay) 141, 142, 145. Insignificance of ceremony described in Captain Gaillard's narrative, &c. (Dickinson) 699, 700, 701, 702. Protest on behalf of British Government— Pauncefote's, Lord, despatch to Lord Lansdowne (March 20, 1902). (Finlay) 147. Raikes', Mr., despatch of September 6, 1902. (Finlay) 148. Thalweg, doctrine of, application to Portland Channel—United States contention. (Finlay) 107, 108. Authorities cited, &c. (Finlay) 128.v British contention that the negotiators of the Treaty of 1825 intended to suspend the operation of international law, and designate the little " channel " instead of the big one, as the boundarjr. (Taylor) 533. Examination of evidence adduced by Great Britain in support of contention. (Taylor) 533, 534. Inapplicability of theory— Even if it were conceded that the doctrine applied to arms of the sea it could have no application to the state of circumstances existing at the entrance of the present Portland Inlet. (Carson) 569. Theory applicable only to rivers and river estuaries. (Finlay) 109. Irrelevance of United States contention—Only question one of identity. (Finlay) 109. I Le long de Portland Channel "—Words of Treaty of 1825 negativing any idea of thalweg theory. (Finlay) 110, 111. Cj C3 ml K^D ml \ ml 1 7 Understanding of the Parties as shown by subsequent action— Bayard's, Mr., despatch of November, 1885—British Government acquiesces in Portland Channel argument, United States contention. Portland Channel question regarded as the one question settled. (Carson) 645, 646. Rosebery's, Lord, despatch to Mr. Phelps (April 15, 1886). (Finlay) 145. Salisbury's, Lord, omission to contradict argument in acknowledging despatch construed by United States as admission that the argument was just. (Finlay) 142, 144. INDEX TO MINUTES OF PROCEEDINGS. Portland Channel—Continued. Understanding^ the Parties, etc.—Continued. Bayard's, Mr., despatch, etc.—Continued. Survey of 1893 and 1894—Operations commenced at head, not at entrance of the channel. (Finlay) 145. Finlay's, Sir R., comment—" Mere flimsy." (Finlay) 145. Survey at mouth of channel carried out by United States. (Finlay) 148, 149. Importance of, since the matter was certainly left iii doubt. (Dickinson) 695. Storehouses erected by United States in 1896, see that sub- ml 7 heading. Tongass Island—Evidence that Tongass Island was considered by United States as on southern limit of their possessions. (Finlay) 126, 127, 128. Action of United States' officials had no significance as laying down or delimiting boundary. (Dickinson) 696, 697, 698, 699. Vancouver, Portland Channel designated by, see Vancouver. Portland Channel Head to the 56th Parallel—Point to which boundary line was to be drawn and course to be followed— When the channel failed, the direction failed, and the point to be sought was commencement of mountain chain (British contention) v. When the channel failed the line should be continued until it reached the 56th parallel (United States contention). (Finlay) 172, 180, 182; (Carson) 574; (Dickinson) 711. Alternatives presented, correct way of drawing the line. (Finlay) 291. Bear River Valley—Direction suggested for boundary line between Portland Channel head and the 56th parallel. (Dickinson) 714, 715. British line being decided against, should the line follow either of the river valleys, or the mountains between them?—AJverstone-Carson discussion, 575. Call controls, see sub-heading Passage. Cutting inlets—United States' objection that British line cut Belle Island and Burroughs Bay. (Finlay) 291. " Descending' line according to British contention—No justification in the Treaty for any such line. (Watson) 395, 439—Mr. Wratson was looking at the map east and west instead of north and south. (Carson) 574. Description, use of words Portland Canal as indicating course of line—Turner-Finlay discussion, 171. Determination of boundary, proposals of 1873 and 1874. (Finlay) 311,312; (Watson) 331; (Dickinson) 799. " Elle " controversy, see sub-heading What was to proceed ? General direction v. Last stretch of canal—Aylesworth- Dickinson discussion, 714. XCVIII ALASKAN BOUNDARY TRIBUNAL. Portland Channel Head to the 56th Parallel—Continued. When the channel failed, etc.—Continued. Inlet or ocean?—Description of head of canal by negotiators^— " Dans Ies terres," description accepted. (Carson) 628. | Touching the coast of the continent," description corrected. (Carson) 629. | Le long"—direction being given and point designated, United States' inference that line was intended to continue in direction indicated until it reached the 56th degree. (Dickinson) 712. Maps—Representation of Portland Channel head and mountains, &c.— Commencement of mountains—Point where line up Portland channel strikes mountains, evidence of maps before negotiators. (Watson) 405. Discrepancies with regard to relative situation of mountains and the 56th degree. (Finlay) 175, 176, 177, 178, 179. Negotiators understood that the maps were not to be trusted. (Finlay) 175; (Dickinson) 717. Evidence of maps as showing how far views of negotiators were influenced by maps. (Finlay) 177. Failure to strike 56th parallel shown on maps before the negotiators. (Finlay) 172; (Robinson) 462. Unbroken concensus of maps from 1825 to 1887 in favour of United States contention. (Taylor) 537, 539. Vancouver's representation of mountains. (Finlay) 175, 178,179. Mountains—Relative situation of mountains and 56th degree—Procedure in looking for mountains— Bordering the coast—The problem was not how to get to the mountains but what were the mountains bordering the coast. (Robinson) 463. Boundary line continued from head of Portland Channel would come to mountains, but not to mountains which answer to description of the Treaty. (Finlay) 175, 176, 177. Commencement of mountain boundary— From the head of Portland Channel get in the nearest direction from the point of starting to the point at which the mountains parallel to the coast begin. (Finlay) 290—Criticism of British contention. (Dickinson) 713, 714. Point where line up Portland Channel strikes mountains—Evidence of maps before the negotiators. (Watson) 395, 396, 405. Connection between mountains and head of Portland Channel—Criticism of British contention. (Watson) 395. Discrepancies of maps, see sub-heading Maps. INDEX TO MINUTES OF PROCEEDINGS. XCIX Portland Channel Head to the 56th Parallel—Continued. When the channel failed, etc.—Continued. Mountains, etc.—Continued. Eastward direction from 56th parallel—" to the east the chain of mountains "—Mr. Middleton's report of conversation with Mr. S. Canning. (Finlay) 17, 291; (Watson) 401. Canning's, Mr. S., assumption that Portland Channel reached 56th degree. (Finlay) 171. Impossibility of line turning east after reaching 56° N. (Carson) 573. Meaning of instruction—" Get up to 56th parallel ... go to the east . . . and go to chain of mountains which runs round until 141st meridian." (Watson) 402. Criticism of Mr. Watson's interpretation—" To the east' was in contrast to " au sud," and referred to the eastern boundary. (Carson) 572, 573. " The mountains"—Mr. G. Canning's reference to the Russian proposal. (Watson) 403. United States Case, comments in. (Finlay) 169,170. Whichever ,way the line turned, it was after reaching the 56th degree. (Finlay) 171. Mistake alleged. (Finlay) 168,170,171, 292. Faden map, line prolonged up Portland Channel strikes on the mountains at the 56th degree. (Dickinson) 717. Failure of Treaty according to British position if mountains could not be found on the 56th degree. (Dickinson) 718. First determine point where Treaty carries you to the 56th parallel—Significance of point in determining what mountains shall be sought. (Dickinson) 718. Object according to the Treaty was to get to the 56th degree without reference to mountains— Finlay-Turner discussion. 177. No condition was imposed—Line must strike 56th degree without regard to mountains. (Dickinson) 715. United States line would go right through the mountains shown on the maps. (Carson) 572. Vancouver's representation of the mountains. (Finlay) 175,178,179. Westward direction from head of canal necessary in order to get to mountains in latitude of 56°. (Fin-# lay) 176. Nearest possible route—Turner-Dickinson discussion, 715. Northerly direction of British line, question as to—Lodge- Carson-Root discussion, 574. Not very important which particular line the boundary follows from top of Portland Channel—Alverstone-Finlay discussion,-168, 292, 293. 0 ALASKAN BOUNDARY TRIBUNAL^ Portland Channel Head to the 56th Parallel—Continued. When the channel failed, etc.—Continued. " Origin in the interior " a more accurate translation than "head."^ (Finlay) 39. " Passage "—Word introduced in order to make sure that if the channel stopped the line would be carried on, (Watson) 393. Criticism of Mr. Watson's contention. (Carson) 571, 572, 575. Position of head of Portland Channel—Treaty of 1825 and negotiations, &c.— Canning's, Mr. S., views. (Finlay) 170, 171. Failure of head of channel to strike the 56th parallel. (Finlay) 13—Evidence of maps before negotiators. (Robinson) 462: Final negotiations, Treaty of 1825—Evidence that both British and Russian negotiators understood that the line was to go to the 56th degree. (Watson) 393, 394, 395. Intent of negotiators plainly disclosed, alleged—Was it not a duty to carry out the expressed intention? (Dickinson) 713, 716. Intersection of head by 56th parallel, mentioned as possibility in Mr. Dennis's Report, 1874. (Robinson) 492. Position given by the negotiators. (Finlay) 39, 45,181. "Strikes the coast of the continent"—Inaccurate expression in Mr. G. Canning's Draft Convention—Correction by M. Matusevich. (Finlay) 62, 63. Text of Article III. (Finlay) 12, 167. Russian text, literal translation. (Finlay) 173. Vancouver's latitude and longitude. (Finlay) 68, 75, 94; (Carson) 562. Question before the Tribunal— Answer desired by Great Britain. (Finlay) 9. Answer requested by United States. (Watson) 392. Salmon River contention. (Alverstone) 575; (Dickinson) 714. Surveyors, practice of, in designation and tracing of land titles. (Dickinson) 715. Treaty of 1825 negotiations— Passages bearing upon direction of boundary line between Portland Channel and 56th parallel. (Finlay) 180, 181. Position of head of Portland Channel, see that subheading. What was to proceed ?—Line, or pass or " la terre ferme "— Discussion on what " elle " referred to in the original text, &c. (Finlay) 13,168,172, 173, 174. Canning Draft Convention snowed clearly what was intended—M. Matusevich's version being rejected. (Dickinson) 716, 717. INDEX TO MINUTES OF PROCEEDINGS. 01 Portland Channel Head to the 56th Parallel—Continued. WTien the channel failed, etc.—Continued. What was to proceed ?—Continued. Description—British and Russian negotiators regarded the two descriptions as substantially identical—Root- Finlay discussion. 174. Grammatical structure of the French sentence, &c.— Jette-Dickinson discussion, 716. Treaty started with a line, and it was hardly likely it would drop that idea. (Dickinson) 715. Portland Channel region— United States acts of occupation between 1867 and 1872. (Dickinson) 792. See also title Storehouses. Portland Inlet, see title Portland Channel—Maps, Nomenclature. Position of the Case— Fresh ground—Mr. Dickinson did not contemplate breaking any fresh ground? (Carson) 557, 558. Possession, right of— British and Russian rights contrasted—Count Nesselrode's opinion—" We wish to keep and the English Companies wish to obtain." (Watson) 351, 358. Lynn Canal, evidence of title re-examined by United States subsequently to claim made by Canada and Great Britain. (Watson) 331. Sovereignty of mainland coast and inland waters, see title Coast. Title to possession— Possession did not of itself confer a title, but carried weight in case of disputed rights to territory. (Finlay) 322, 323. Refer also to titles Acts of possession, Discovery, Occupation, Treaties of delimitation, &c. Post-office at Haines— Establishment by United States in 1882. (Dickinson) 808. Powers and Duties of the Tribunal— Coast—The Tribunal had no power to define coast. (Carson) , 578. Criticism of Solicitor-General's position. (Dickinson) 831. Evidence before Tribunal, see titles Action outside the Treaties, Evidence, and Treaty of 1825—Construction and interpretation. Experts, evidence of—Tribunal empowered to employ experts. (Finlay) 7; (Robinson) 463. Jurisdiction in relation to the matter, Tribunal had no power to decide. (Carson) 579. Jig Mountain boundary, see that title, sub-heading, Question to be decided by the Tribunal. No power to do anything but answer the specific questions put to it, no power to draw boundary line. (Finlay) 7, 65, 183; (Watson) 336. Unique position of Tribunal. (Dickinson) 832. Pratt, Mr.— Mountains of Alaska, deposition. (Finlay) 257. Prescription, doctrine of. (Taylor) 554. Question of prescription did not arise. (Carson) 636. CII ALASKAN BOUNDARY TRIBUNAL. Prince of Wales Island— Commencement point of boundary line, see that title. Confusion with Wales Island— Bayard's, Mr., despatch of November 20. 1885. (Finlay) 69, 142, 143; (Carson) 645, 646. Proviso that Prince of Wales Island should belong wholly to Russia, see title Fifty-four-forty, sub-headings Northerly direction and Prince of Wales Island. Prince of Wales Island to Portland Channel— See titles Fifty-four-forty and Southern (water) boundary. Prince Rupert's Land— Rights of Hudson's Bay Company under Charter of 1670. (Finlay) 306. Private action and private expression of opinion— Excluded from consideration of Tribunal in dealing with interpretation of Treaties in question. (Finlay) 7. Reply to British contention. (Taylor) 501. Governments were not responsible for their citizens making claims on other Governments. (Dickinson) 812, 816. Proclamation of Treaty of 1867 by United States. (Watson) 329. Not a single word of objection from either England or Canada. (Watson) 329. Profile maps— Mountains between Lynn Canal and Glacier Bay, maps submitted by Mr. Dickinson—Need for checking, compass bearings not marked, &c.—Alverstone-Diclrinson4?inlay discussion, 772, 773, 774, 775. Provisional boundary— Stikine River, Hunter Survey, see Hunter. | Purceile " case— See Behring Sea Arbitration. Purchase of AJaska by the United States in 1867— Condition of British territory in 1867—Canada did not exist, British Columbia was not incorporated, &c. (Carson) 636. Fee simple title, without incumbrances of any kind. (Watson) 327. Maps, purchase made on faith of. (Watson) 328, 329. Authority of maps questioned. (Carson) 635. No Portland Canal, but only Observatory Inlet shown on one of the maps examined by the Senate. (Carson) 567. Not a shadow of evidence that the United States made the purchase on faith of the maps. (Robinson) 476. Non-intervention of Great Britain was not an act of bad faith, action expressive of interpretation of Treaty as not calling for intervention. (Dickinson) 791. Notice of objection—No notice was given by either Canada or Great Britain to United States of any disputed boundary question when the purchase was made in 1867. (Watson) ^333. Period of eight months between confirmation of Treaty and payment of purchase money—Not a word of objection from England or Canada to payment. (Watson) 329, 330. What was there to say? (Robinson) 492. INDEX TO MINUTES OF PROCEEDINGS. CIII Purchase of Alaska by the United States in 1867—Continued. Russian definition of boundary and representations as to ownership of inlets, &c.—Too late now for England or Canada to protest, alleged. (Watson) 327,328; (Carson) 633. No trace of such representations, but if made, they were false—United States desire to anticipate Great Britain. (Carson) 634. Transfer of territory, proceedings in connection with— Account of proceedings communicated to Congress and published as official document—British Minister at Washington certainly had knowledge of them. (Dickinson) 824. "Lincoln' revenue cutter—Report of cruise. (Robinson) 479, 480; (Dickinson) 822, 823, 824. Proceedings a travesty of any serious act. (Robinson) 47.8. Scott's,.Colonel, visits of inquiry in regard to Indians of the v lisiere. (Dickinson) 82l, 822. Could not reasonably be considered as a taking possession of anything. (Robinson) 480. Pyramid Harbour— ml Compromise securing Dyea and Skagway to United States and Pyramid Harbour to Canada—Lord Salisbury's proposal (May 17, 1899). (Finlay) 321. Poindexter, Mr. F. H.—Appointment as United States Justice of the Peace, 1890. (Dickinson) 814, 830. Salmon canneries established by United States citizens on what they understood to be United States territory, 1881 and 1883. (Dickinson) 807, 808. Value of improvements in 1889. (Dickinson) 814. Quadra— Exploration of—Discovery of Columbia River. (Finlay) 91.^ Questions to be decided by the Tribunal— Answers to the questions desired by Great Britain. (Finlay) 8-11. Grouping of—Division into two groups. (Finlay) 65. Questions had all been anticipated, and for every one there was an international rule. (Taylor) 502. Treaty of 1903. (Finlay) 7. I For discussion of particular questions, see titles Coast* Mountain boundary, Portland Channel, &c. Remoteness and unknownness of territory in dispute until a recent date. (Robinson) 481; Dall, Mr., opinion of. (Finlay) 297. General ignorance concerning Yukon territory and Lvnn Canal up till about 1896. (Finlay) 6. Terra incognita in 1867—Extract from Mr. Sumner's speech. (Robinson) 491, 492. I Rio de los Reyes " legend. (Finlay) 96, 97. Ritter, Mr. H. P.— Mountains of Alaska—Deposition. (Finlay) 256. I Rivage "— Use of, by negotiators alternately with "cote' or "coast"— Meaning of terms. (Finlay) 211, 212, 213. Significance of. (Dickinson) 740, 741. 3 ■SI CIV ALASKAN BOUNDARY TRIBUNAL, Rivier, Swiss publicist— Coast—Distinction between physical and political coast line. (Taylor) 543, 545. Rivers— Arms of the sea, rivers as—Mr. Justice Storey's statement. (Robinson) 472, 473. Emancipation of river systems of the world, in connection with special permit granted by Russia to Great Britain. (Taylor) 552, 553. Free navigation of rivers of the lisiere— Barrier question and free navigation rights— Argument against the barrier theory. (Carson) 600. Free navigation being specially granted by Russia was the strongest possible confirmation of contention that the lisiere was to be a barrier. (Taylor) 552, 553. Martin, Peter, case of—Canadian authorities placing release on ground that assault took place on United States' soil, avoiding question of legality of transport. (Dickinson) 804, 805. Right of access did not exist as an international right— Privilege could only be secured by Treaty stipulation. (Dickinson) 776, 777. Russian Governor's objections to the Hudson's Bay Company's competition—Suggestion that they should be allowed to go down the rivers, but not allowed to go back. (Finlay) 301. Treaty of 1825 negotiations—Free navigation of rivers of lisiere. (Watson) 422. British demand. (Finlay) 49; (Watson) 366, 376, 380—Mr. G. Canning's Draft Convention. (Finlay) 52. Russian proposal. (Finlay) 41, 45, 56; (Watson) 377. Text of Article II. (Finlay) 18. Treaty of Washington, 1871—Opinion of law officers of British Government that navigation rights granted by Treaty of 1825 were- abrogated by the restricted rights granted in 1871. (Finlay) 313; (Dickinson) 777. Debate in the Canadian Parliament—Attack on law officers' opinion. (Dickinson) 777. Hudson's Bay Company's ignorance—Statement that rivers of coast strip had not been explored. (Finlay) 23, 95; (Watson) 354. River and inlet question—Where does sea end and river begin? refer to title Coast—Continuous strip, Question VI. Rocky Mountains— Eastern boundary, Rocky Mountains as— Hudson's Bay Company's proposals. (Watson) 373. Inadmissible by the British—Canning-Bagot instruction. (Finlay) 34; (Watson) 373. Mordvinof's, Admiral, proposal. (Watson) 370. Rocky Mountains portage— Hudson's Bay Company's trading station. (Finlay) 22. Distance from coast. (Watson) 353. INDEX TO MINUTES OF PROCEEDINGS. Roman law tribunals— Rules of evidence would prevail before AJaska Boundary Tribunal—Every fact admissible which is pertinent to the issue, pertinence to be determined by the judges themselves. (Taylor) 501. Root, Mr.—Member of the Tribunal appointed by President of United States— Hudson's Bay Company's lease of territory, British Government knowledge of lease — Notification of Government that the " Dryad " affair was settled, &c, 140. Portland Channel question—If the British negotiators were in doubt as to the identity of the channel, they would naturally ask the Russian negotiator what he meant by Portland Channel, 687. Portland Channel to the 56th parallel—" Elle "—Possibility that the negotiators regarded the two descriptions of the line as substantially identical, 174. Rosebery, Earl of—Secretary of State for Foreign Affairs, Great Britain— Preliminary investigation of boundary question—Letter to Mr. Phelps (April 15, 1886) (Finlay) 145. Rowlatt, Mr.— Summary of United States' 54° 40' contention. (Finlay) 116. Rules regulating admission of evidence before the Tribunal in reference to construction and interpretation of Treaties in question, refer to titles Action outside the Treaties, Evidence, and Treaties— Construction and interpretation. Russell, Lord— Extracts from argument before Behring Sea Arbitration Tribunal. (Dickinson) 730, 776, 777. English-speaking world, influence of, independent on harmonious relations between the American and British divisions— Address before American Bar Association. (Dickinson), 831. Russian-American Company— Concessions, determination not to grant. (Watson) 368. Constitution of—Representative of the Russian Empire. (Watson) 358, 359; (Taylor) 507, 508, 509. Hudson's Bay Company, relations with— Competition—Governor's Reports, 1832, 1834, and 1835, showing Russian efforts to meet Hudson's Bay Company competition. (Finlay) 300, 301, 302. Lease of territory, see title Hudson's Bay Company. Overtures from Hudson's Bay Company—Governor Simpson's description of antecedent operations as " relating to interior lands." (Watson) 357. Inlets—Trading and hunting operations carried on with Indians living round heads of inlets, &c. (Watson) 341. Occupation, &c, evidence of, refer to titles Occupation and Acts of possession. Tongass Island— Reference to, as on frontier of their straits—Governor's despatch (March 8, 1835). (Finlay) 126. Selection as station—No significance in regard to boundary. (Dickinson) 696. *'%*J! CVI ALASKAN BOUNDARY TRIBUNAL. Treaty of 1825 negotiations— III Consultation of the Company by Russian Government. (Watson) 359. Suggestions as to boundary. (Finlay) 31,120; (Watson) 367. Russian exploration of North-west Coast of America. (Finlay) 20. Russian maps— Authority of maps—Grounds for considering map of 1826 "a map issued officially by the Russian Government—Aylesworth- ml ml ml Dickinson discussion, 779, 780. Bays and inlets, delineation of boundary with reference to, in map of 1826. (Watson) 328. Inscription to the effect that line was laid down in accordance with Treaty of 1825. (Dickinson) 779. Maps before the negotiators. (Finlay) 116; (Watson) 397; (Taylor) 527; (Dickinson) 694. 1802, map of. (Watson) 364, 408. 1807, map of, Mr. G. Canning's reference to. (Watson) 364, 366, 409. Mountain boundary— ml 1802, map of—Portland Channel to the 56th parallel, delineation of mountains. (Finlay) 177. 1826, map of—(Taylor) 538. Faden map, comparison with—Mountains distant about 10 marine leagues, and corresponding with the mountains on the Faden map. (Dickinson) 778. Accuracy of comparison—Alverstone-Dickinson . discussion, 778, 779. Line shown on map of 1826 raised the whole question in connection with the mountain boundary. (Carson) 635. Mount Fairweather, location of, did not correspond with Russian declaration in Hudson's Bay Company's lease—Aylesworth-Dickinson discussion, 779, 780. Mountains meant were not the mountains near the shore. (Dickinson) 764. Relative position of mountains and boundary line. (Finlay) 293,294. 1844, map of— Mountains meant were not the mountains near the shore. (Dickinson) 764. Mountains not represented at all. (Finlay) 295. 1861, map of—(Taylor) 538. Boundary line shown the same way as on the map of 1826.1 (Dickinson) 780,781. Mountains meant were not the mountains near the shore. (Dickinson) 764. No mountains except Mounts Fairweather and Elias. (Finlay) 296. Commencement of mountain boundary—Meeting point of line of Portland Channel and 56° N. (Watson) 405. Negotiators adopted the mountain boundary as shown on the maps. (Watson) 405. Muzon and Chacon, latitudes given on map of 1849. (Finlay) 116. INDEX TO MINUTES OF PROCEEDINGS. CVII Russian maps—Continued. Portland Channel question, evidence, &c, on— 1802, map of— Bagot-Poletica conference—Possibility that the map of 1802 was referred to instead of the Faden map— Aylesworth-Dickinson discussion, 676. Latitude of mouth of Portland Channel. (Dickinson) 695. Portland Canal and Observatory Inlet unnamed. (Dickinson) 683. 1826, map of. (Finlay) 152-154; (Dickinson) 702. United States advancing no argument based on southern boundary line shown—Mr. Dickinson's statement, 154. 1844, map of. (Finlay) 159; (Dickinson) 702,703. 1849, map of. (Finlay) 160. 1853, map of. (Finlay) 161; (Dickinson) 702. 1861, map of. (Finlay) 162. Ten marine leagues limit, application to entire line from 56° N. to 141° W.—Evidence of maps. (Watson) 432. Russian Ukase of 1799—Privileges granted to Russian-American Company.- (Finlay) 20, 21. 1 Coast," meaning of—" North-eastern Coast of America." (Dickinson) 735. Exclusive ownership by Russia of the North-west Coast from Behring Sea to 55th parallel asserted—Refer to titles Discovery, Occupation, and Coast, sub-heading Sovereignty of mainland coast. Knowledge of, by Hudson's Bay Company and Great Britain— Ukase not officially communicated but generally known. (Watson) 340. limit of 55° assigned for Grant. (Finlay) 17, 119, 120, 121, 123; (Carson) 570; (Dickinson) 710, 739. Tacit consent alleged. (Finlay) 26. Not a single nation ever objected to the Russian claim of title, between 1799 and 1867. (Watson) 327, 347, 355. Publication of Ukase in 1821 showed that Ukase of 1799 was not being acquiesced in. (Carson) 593. Text, extracts from. (Watson) 338, 339, 340. Russian Ukase of September 4, 1821— Navigation regulations and claim to extension of Russian southern frontier from 55th to 51st parallels. (Finlay) 21, 22, 118; (Dickinson) 691, 710. " Coast," meaning of—" North-west Coast of America." (Dickinson) 735. Rules for enforcing Ukase, language of—" Islands, posts and gulfs, including whole of North-west Coast of America." (Dickinson) 735, 736, 737. United States' claim that Russia would not have used the word " cote' in a different sense in the Treaty. (Finlay) 192, 193. Refer also to title Coast—" Coast" and " Ocean.5 CVIII ALASKAN BOUNDARY TRIBUNAL. Russian Ukase of September 4,1821—Continued- Navigation regulations, etc.—Continued. Exclusive ownership of entire North-west Coast from Behring Straits to 51st parallel asserted. (Watson) 342, 343. First assertion of Russian sovereignty on the mainland, immediately challenged by Great Britain and United States. (Carson) 593. Refer also to title Coast—Sovereignty of mainland coast. Maritime jurisdiction claim, see title Maritime jurisdiction. Official communication of Ukase and rules to Washington and London Governments. (Dickinson) 737. Reasons for issue—Protection of Russian sovereignty and of trading, &c, privilege of Russian-American Company. (Watson) 350. Infringement of sovereign rights of Russia by United States subjects, arms and ammunition supplied to natives. (Watson) 341, 342, 344. Suspension of Ukase, see title Maritime jurisdiction, Withdrawal of Russian claim. Text, extracts from. (Watson) 342, 343. Russian Ukase of September 13,1821. (Watson) 359, 367. St. Elias Range— Bays and inlets, range running round heads of. (Watson) 417. Mount St. Elias— Crossing point of boundary—Determination proposals in 1873. (Finlay) 311, 331; (Watson) 331. Russian settlement at. (Watson) 348. Range corresponding with terms of Section 7 of Treaty of 1825, question as to—Alverstone-Watson discussion, 415, 416, 417, 438. St. Elias Region to the Frozen Ocean— Demarcation of 141st meridian undertaken in 1897 as involving no question of interpretation of Treaty of 1825. (Carson) 651. Treaty of 1825— Negotiations—Degrees of longitude suggested— 135°. (Watson) 382. 139° W. (Finlay) 55; (Watson) 368, 371, 383. 140°— Bagot proposal. (Finlay) 36, 39, 43; (Watson) 383. Canning's, Mr. G., despatch and Draft Convention (December 8, 1824). (Finlay) 61, 62. Westward of any degree proposed during earlier negotiations—Sir C. Bagot's revised instructions. (Finlay) 49; (Watson) 371. Text of Article III. (Finlay) 12. St. Lawrence navigation— Treaty of 1871 secured perpetual right to American citizens. (Dickinson) 777. St. Lazarus, archipelago of— De Fonta's alleged discoveries. (Finlay) 96, 97. INDEX TO MINUTES OF PROCEEDINGS. CIX Salisbury, Marquis of—Secretary of State for Foreign Affairs, Great Britain— Acts of possession, principle laid down with regard to, in despatch to Mr. Choate [October, 1899]. (Finlay) 298. Bayard's, Mr., despatch of November 20, 1885, acknowledgment of—Omission to contradict Portland Channel argument construed by United States as admission of its justice. (Finlay) 142,144,145. Compromise securing Dyea and Skagway to the Uriited States and Pyramid Harbour to Canada proposed—Choate-Salis- bury correspondence of 1899. (Finlay) 321. Mountain boundary—" No such continuous^ range of mountains running parallel to the coast' as was contemplated by terms of Treaty of 1825—Letter to British High Commissioners (July 19, 1898). (Watson) 413, 424; (Taylor) 553. Probably a statement of a contention. (Carson) 653. Statement had no binding power. (Alverstone) 653. Schwatka's, Lieutenant, Report of military reconnaissance fixing points on international boundary—Protest on behalf of British Government (August 27, 1887). (Finlay) 317; (Robinson) 477; (Carson) 648; (Dickinson) 812, 813. Ten marine leagues limit—Application to entire line from 56° N. to 141° W.—Letter to High Commissioners in 1898. (Watson) 432. White Pass trail—Report as to grant of Charter by Alaskan authorities—Protest. (Finlay) 320. jSalmon River— • Direction suggested for boundary line between Portland Channel head and the 56th parallel. (Alverstone) 575; (Dickinson) 714. Schools— Haines, public school at, established by United States in 1885. (Dickinson) 808. Lynn Canal, head of—Schools established by United States' citizens, 1880 and 1881. (Dickinson) 807. Number of, in AJaska in 1888—Governor Swineford's Report. (Dickinson) 814. Schwatka's, Lieutenant, military reconnaissance— Report fixing points on international boundary—British Government protest. (Finlay) 317; (Robinson) 477; (Carson) 648. Protest had no reference to Lynn Canal, and gave no notice to United States of British claim to heads of inlets. (Dickinson) 812, 813. Scott, Colonel— Inquiry in regard to Indians of the lisiere— Instructions given to Colonel Scott. (Robinson) 479, 480. Report placing Indian tribes in United States' territory. (Dickinson) 821, 822. Taking possession—Proceedings of Colonel Scott could not reasonably be considered as a taking possession of anything. (Robinson) 480. 481. S. Doc. 162, 58-2, vol 7 36 ex ALASKAN BOUNDARY TRIBUNAL Scott, Colonel—Continued. Inquiry in regard to Indians of the lisiere—Continued. Tongass Island, choice of, for United States' military post on north side of Portland Channel—Report (1867). (Finlay) 128. Report must be read with map on which Portland Channel was marked as south of Wales Island. (Dickinson) 698, 699. Map of Portland Channel region—Evidence on Portland Channel question. (Finlay) 128; (Dickinson) 698, 699, 710, 822. Sea Fisheries Act, 1883— Width limit of territorial waters fixed by. (Finlay) 220. Seattle Chamber of Commerce Report— Canadian claim to inlets, discussion of. (Robinson) 484; (Carson) 652. Second question— See Portland Channel—What channel is the Portland Channel? Settlements— See titles Establishments, Hudson's Bay Company, and Occupation. Seward, Mr.— Indians of lisiere, United States relations with—Extract from Mr. Seward's statement. (Dickinson) 825, 826. Shoot River— Crossing point of boundary—Determination proposal in 1873. (Finlay) 311,312; (Watson) 331; (Dickinson)-799. Sifton, Hon. C.—'-Minister of the Interior, Canada— Dyea and Skagway, United States' undisputed possession of— No record of protest on behalf of Canada—Statement in Dominion House of Commons (February 11, 1898). (Dickinson) 818. Simpson map— See House of Commons map, 1857. Simpson River— Marked in various maps by dotted line extending from head of Observatory Inlet—Finlay-Aylesworth discussion, 155, 159. Simpson, Sir George—Governor of Hudson's Bay Company— Evidence before House of Commons Committee in 1857, Extract from. (Dickinson) 788, 789.- Hudson's Bay Company lease of territory from Russian- American Company, 1839—54° 40' the southern limit of Russian territory on the mainland. (Finlay) 132, 134, 135, 136, 150. Letter to manager of Russian-American Company expressing desire for commercial relations with the Company (March 20, 1829). (Watson) 356. Simpson's travels, maps illustrating— Boundary line shown on. (Finlay) 296. Sinuosities of the coast— Refer to title Coast. Sitka, Russian settlement. (Watson) 359; (Carson) 588, 591, 594. Arrowsmith map used by negotiators—Doubt as to location of ^Novo-Archangelsk. (Watson) 364,408. INDEX TO MINUTES OF PROCEEDINGS. CXI Sitka, Russian settlement—Continued. Establishment of. (Finlay) 21. Date of establishment, question of. (Watson) 341. Latitude. (Finlay) 27, 30, 34. (Watson) 366. Opening to commerce of British subjects— For ever—British demand. (Finlay) 56, 57; (Watson) 376,377. Russian Plenipotentiaries' observations in reply to Sir C. Bagot. (Finlay) 41. Pecuniary indemnity mentioned by Sir C. Bagot in event of Russia ceding Sitka. (Finlay) 33. Protection of, from British competition—Baron Tuyll's suggestion as to distance, of frontier. (Watson) 351, 352. Russian reluctance to accept anv boundary excluding Sitka. (Finlay) 121. Southernmost Russian post at time of negotiations preceding Treaty of 1825. (Finlay) 21. Sitklan, island. Portland Channel runs north of. (Finlay) 83. Sixth Question— See Coast—Continuous strip of coast running round heads of bays and inlets having been decided against. Skagway— Date of establishment of town. (Dickinson) 814,830. Subsequent to 1896, when Canadian claim to inlets was certainly known to United States Government. (Carson) 655. (For questions affecting jointly Dyea and Skagway refer to Dyea.) Southern (Continental) Boundary— Treaty of 1825 negotiations— 56° 30'—Bagot proposal in reply to observations of Russian Plenipotentiaries. (Finlay) 43, 44, 123. Portland Channel, see that title. Ten marine leagues inland from a point on coast corresponding to middle of strait to north of Prince of Wales and Duke of York Islands—Third negotiations, Bagot amended proposal. (Finlay) 38. Southern (Water) Boundary— British contention—Line ran 85 degrees east to Pearse Channel, leaving triangular space in dispute. (Watson) 392. Commencement point of boundary line, see that title. Cross Sound (57J° N.)—Bagot preliminary proposal. (Watson) 381, 382. Discrepancy between actual latitude and latitude given by Sir C. Bagot. (Finlay) 30, 31. Degrees of north latitude suggested— 51°—-Russian claim asserted in Ukase of 1821. (Finlay) 21, 22, 119. 54°—Russian proposal, second negotiations. (Finlay) 31, 120; (Watson) 367. Fifty-four-forty (54° 40'), see that title. Fifty-fifth (55th) Parallel, see that title. CXII ALASKAN BOUNDARY TRIBUNAL. Southern (Water) Boundary—Continued. Degrees of north latitude suggested—Continued. 56° 30'—Sir C. Bagot's proposal. (Finlay) 123, 125. 57°—British proposal. (Dickinson) 739. Instructions from Mr. G. Canning. (Finlay) 28, 29. (Watson) 381. Second negotiations—Bagot-Poletica discussion. (Finlay) 29, 30, 31, 32, 33. Direction simply means—j Go to Portland Channel and go north along it. (Robinson) 453. Duke of Clarence's Sound, line drawn from southern end as far as middle of strait to north of Prince of Wales and Duke of York Islands, thence eastward to mainland—Third negotiations, Bagot final proposal. (Finlay) 43. 54° 40' v. direct line, see title Fifty-four-forty. Identical line as southern boundary for United States and Great Britain—Intention of the negotiators. (Taylor) 519. Maps before the negotiators—Discrepancies as to latitudes. (Dickinson) 694. Northerly direction of boundary line, see Fifty-four-forty. Question to be decided by the Tribunal— Answer desired by Great Britain. (Finlay) 112. Answer desired by United States. (Finlay) 112; (Watson) 387. Sitka and Russian settlements upon the islands, Line comprehending. (Finlay) 34,35,123. Strait to north of Prince of Wales and Duke of York Islands, line drawn through middle until it strikes mainland—Third negotiations, Bagot amended proposal. (Finlay) 38, 121; (Watson) 383. Tuyll's, Baron, suggestion—Southern point of Prince of Wales Island and Observatory Inlet. (Finlay) 27; (Watson) 351. Injury which proximity of British posts would cause to Novo-Archangelsk. (Watson) 351,352. Sovereignty, Russian exercise of— See title Coast—Sovereignty of mainland coast. Spain— Treaty between Spain and Great Britain—Precedent cited by Russia for maritime jurisdiction claimed bv Ukase of 1821. (Watson) 345. Spanish claims on North-west coast— Caamaiio's explorations. (Finlay) 83. Extent of claims. (Carson) 589, 591. Cape Blanc in latitude 42° 50' N. Middleton's, Mr., Memorandum of 1823. (Robinson) 464. Northern limit of Spanish exploration in 1779 or 1780—Nootka Island. (Taylor) 511, 512. Priority of discovery by Spanish navigator, question of (Watson) 347. Russian recognition of the rights of Spain. (Finlay) 32; (Carson) 589, 591. Transference to the United States. (Finlay) 30; (Watson) 358; .(Taylor) 512; (Carson) 592. (Finlay) 88. i\ INDEX TO MINUTES OF PROCEEDINGS. CXIII Spanish map— Mountains and boundary line, relative position. (Finlay) 296: (Taylor) 538. Jf Squire, Senator— Speech in Congress—Inlets question, &c. (Carson) 652. Stanford's map, 1887. (Finlay) 297. Statute of Limitations— No Statute of Limitations between nations which bars a right otherwise good. (Finlay) 322, 323. Stephen's Passage— Boundary negotiations, Treaty of 1825. (Finlay) 34; (Watson) 382. Stewart's Lake— Hudson's Bay Company's trading station. (Finlay) 22. Distance from coast. (Watson) 353, 357. Stikine River—- Boundary determination— Conventional boundary at Bucks agreed on in 1875—Local arrangement not sanctioned by central authority. (Finlay) 313. Crossing point of boundary—Determination proposal in 1873. (Finlay) 311; (Watson) 331; (Dickinson) 799. British projected settlement on, see " Dryad " affair. Gold discoveries. (Finlay) 311. Effect in increasing urgency of boundary question in British Columbia. (Dickinson) 799. Hunter Survey of 1877, see Hunter. Navigation rights granted by Treaty of 1825— Barrier theory. (Taylor) 552, 553. Limitation of, by Treaty of Washington of 1871—Decision in case of Peter Martin. (Finlay) 313. Russian Survey of 1837. (Finlay) 305. Survey of 1893—Mr. Mendenhall's directions to Mr. Tittmann. (Finlay) 203. Survey carried back 10 marine leagues from mouth of Le Conte Bay—Sheet No. 4 of Survey. (Finlay) 205. United States acts of occupation between i867 and 1872. (Dickinson) 792. Vancouver's narrative, omission from. (Finlay) 95. Storehouses in Portland Channel Region— Erection of, by United States in 1896—Admission of act as evidence before Tribunal, question of. Bayard's, Mr., despatch of November 20, 1885—Storehouses erected in consequence of British Government's supposed acquiescence in Mr. Bayard's Portland Channel argument. (Finlay) 141, 142, 145. Ceremony as of taking possession of new territory—Narrative inclosed in Captain Gaillard's letter to General Craigen (November 3, 1896). (Finlay) 146, 147. Ceremony quite without significance and observed equally in the case of Storehouse No. 3, which was on undisputed United States' Territory. (Dickinson) 699, 700, 701, 702. mm ' &£££&S£&&£&3&£S^ exiv ALASKAN BOUNDARY TRIBUNAL. Storehouses in Portland Channel Region—Continued. Erection of, by United States in 1896, etc.—Continued. Protest on behalf of British Government— Pauncefote's, Lord, despatch to Lord Lansdowne (March 20,1902). (Finlay) 147. Rivers—A river might to an arm of the sea. (Robinson) 472, 473. Storey, Mr. Justice— ml 7 _^_^ Rivers—A river might be an arm of the sea. (Robinson) 472, 473. Stowell, Lord— Louisiana boundary—Opinion that political coast line was outside mud islands at mouth of Mississippi River. (Taylor) 545. Sub judice— British contention that the entire boundary question had been in controversy from 1872 onwards, refer to titles Notice and Action outside the Treaties. Sumner, Mr.— Disputed territory a terra incognita in 1867—Extracts from speech. (Robinson) 491, 492. Investigation of facts connected with Russian title to North-west Coast. (Watson) 327. Purchase of Alaska by United States—Desire to anticipate Great Britain. (Carson) 634. Sumner Map. (Dickinson) 779, 824. Boundary running round heads of bays and inlets. (Watson) 329. Imaginary representation of boundary line. (Carson) 635, 636. Sumner Strait— Treaty of 1825 negotiations. (Finlay) 38, 121, 224. ml C^ \ •-• / * 7 Supreme Court of the United States— Authority, &c, with reference to the doctrine of acquiescence. (Taylor) 554. Survey— Chilkat River—Russian survey of mouth of river. (Finlay) 306. Construction of Treaty of 1825 necessary before a survey could be of any use—Mr. Dawson's opinion. (Robinson) 463. Cost, estimates of—United States estimate. (Finlay) 311. Hunter's, Mr., Survey of 1877, see Hunter. Joint survey agreed on by the Treaty of 1892. (Finlay) 7. Commencing operations at head, not at entrance of Portland Channel—Evidence of British Government's acquiescence in justice of United States claim as to Portland Channel—United States contention. (Finlay) 145. Finlay's, Sir R., comment—" Mere flimsy," 145. Mouth of channel survey carried out by United States. (Finlay) 148, 149. Mendenhall's, Mr., directions— 1893—Measurements to be taken from general trend of mainland coast— Stikine River survey—Survey carried back 10 marine leagues from mouth of Le Conte Bay— United States sheet No. 4. (Finlay) 205, 206 INDEX TO MINUTES OF PROCEEDINGS. CXV Survey—Continued. rii^l Joint survey agreed on by the Treaty of 1892—Continued. Mendenhall's Mr., directions—Continued. 1893—Measurements, etc.—Continued. Taku Inlet Survey—Line carried back only to a point 10 marine leagues from mouth of inlet— United States Survey Map No. 8. (Finlay) 205. 1894—No directions given as to measurement from general line of coast—Lynn Canal survey measurements taken from a point below the mouth of Taiya Inlet. (Finlay) 206, 207. Mountain Boundary, Joint Surveys 1893-5 appealed to by United States, see title Mountain boundary. Purpose of, as stated in Convention of 1892, to afford materials for delimitation under the Treaty. (Finlay) 207,321; (Carson) 651. Report of Commissioners—United States' Memorandum showing that the Report was held by United States to provide materials for delimitation under the Treaty. (Finlay) 208. Surveyors took no cognizance of occupation of territory—Not intended to do more than get information. (Robinson) 499. Why did the United States consent to a preliminary survey if every question had been settled? (Robinson) 496 Partial delimitation of boundary proposed in 1873—Survey authorized by Canada, see Cameron. ml 7 Stikine River—Russian survey. (Finlay) 305. Surveys prior to Vancouver, question of. (Finlay) 83. Treaty of 1867—Russian information to United States that boundary line had never been surveyed. (Watson) 327. Unascertained line—British contention that boundary was, and still is, an unascertained line, see title Determination. Swineford, Governor— Administration of Alaska—Reports of 1885 and 1888. (Finlay) 308,309; (Dickinson) 814. Taiya Inlet— Survey of 1894—Measurements taken from a point below the mouth of Taiya Inlet. (Finlay) 206. Taku Bay- Order given for survey by Russians. (Finlay) 306. Taku River and Inlet— Crossing point of boundary—-Determination proposed in 1873. (Finlay) 311, 312; (Watson) 331, 332; (Dickinson) 799. Discovery by the Russians in 1834. (Finlay) 301. Length of inlet. (Finlay) 205. Mining laws, organization of. (Dickinson) 830. Survey—Understanding of United States' officials that the general trend of the coast was to be followed. (Finlay) 205. line stopping short of heads of inlets—Possibility contemplated by United States. (Finlay) 204. m i CXVI ALASKAN BOUNDARY TRIBUNAL. Taku River and Inlet—Continued. Survey, etc —Continued. Mendenhall's, Mr., directions to Mr. McGrath, a point on the inlet or river distant not less than 30 nautical miles from coast of mainland in a direction at right angles to its general trend. (Finlay) 203, 204. Survey Map No. 8—Line carried back only to a point 10 marine leagues from mouth of inlet. (Finlay) 205. United States acts of occupation between 1867 and 1872. (Dickinson) 792. Tanner's map, 1839—(Taylor) 538. Boundary represented without mountains, except Mount St. Elias and Mount Fairweather. (Finlay) 295. Portland Canal and Observatory Inlet shown on. (Finlay) 157, 158. Taylor's, Mr., " Treatise on International Law "— Construction and interpretation of Treaties, rules governing— Criticism of Mr. Taylor's statement. (Robinson) 455,459. Distinction between construction and interpretation— Impossibility of supplying a casus omissus. (Robinson) 465. | When two meanings are admissible, that is to be preferred which is least to the advantage of the party for whose benefit the clause is inserted." (Robinson) 473. Ten Marine Leagues Proviso—Application of 10 marine leagues limit only in event of horseshoe formations where mountains receded (British contention) v. Application of 10 marine leagues limit to the whole line in event of entire absence of mountains (United States contention). (Watson) 429; (Carson) 606. Absence of mountains—Did the Treaty contemplate such a possibility as entire absence of mountains?— ml Aylesworth-Watson discussion, 436,437. Treaty did not provide for that case—Supposition that there would be mountains. (Finlay) 191, 192. Absurdity of dropping mountain line because it gave too broad a lisiere, and accepting another which would make it much broader—Ocean and coast question. (Robinson) 443. Before anything could be assumed about 10 marine leagues limit, must assume what particular mountains negotiators were talking about. (Carson) 606. Both sides agreed to 10 marine leagues distance in Treaty of 1825 negotiations. (Watson) 433; (Taylor) 551. British position before the Tribunal inconsistent with position stated in British Case, alleged. (Watson) 429, 430. Choice of 10 marine leagues—Reasons for fixing upon the number 10— Because that distance, in the minds of the negotiators was approximately coincident with position of mountains— Faden map, Representation of mountains at point designated in Bagot amended proposal. (Dickinson) 678. Number of leagues had nothing whatever to do with place where mountains were supposed to be—Blank left for number of leagues in Mr. Canning's draft. (Carson) 606. INDEX TO MINUTES OF PROCEEDINGS. CXVII I Colonist " newspaper of British Columbia—Admission as to width of lisiere. (Taylor) 552. Continuous strip of coast upon the mainland—Consideration of Question 5 entirely dissociated from 10-marine league range. (Dickinson) 732. Drawing of United States line— B Absence of comment as to how it was to be caried out. (Carson) 609. United States line as proposed would go through highly mountainous country. (Finlay) 259; (Carson) 584,585. Horseshoe formations-—Restricted application of 10 marine leagues limit—British contention. (Watson) 429. Authority for making any difference in the width whether the entire mountain chain was 10 marine leagues distant or not? (Watson) 433. Canning's, Mr., description, " immense tracts of territory," inapplicable to horseshoe formations. (Watson) 430,434. Irreconcilable construction of Article VII of Treaty of 1825. (Watson) 431. Horseshoe formations, Application to, and also to entire line if mountains were absent. (Watson) 431, 433. Iddesleigh's, Lord, letter to Mr. Phelps—Evidence of opinion that 10 marine leagues limit would apply to whole line. (Watson) 432. Impossible to draw 10 marine leagues line alleged—Why not?— It was drawn on Faden map. (Watson) 433. Language of the Treaty referred to the entire line, and not merely to a portion. (Watson) 428, 432. Maps, evidence of, as to 10 marine leagues proviso— Entire line— Application of 10 marine leagues limit. (Watson) 432. Maps put forward in Case for United States, boundary shown on. (Finlay) 16, 17, 18. Intention was to make the lisiere 10 leagues in width. (Taylor) 551. Mountains—Maps did not show as alleged that the 10 marine leagues limit corresponded with the mountains. (Carson) 606. Negative expression in the Treaty of 1825, " shall not be wider," (fee- Introduced by Russian negotiators " in accordance with the wishes of England." (Watson) 435. Invariable distance of 10 marine leagues—What distinction can be made between the horseshoe formations and the entire line? (Watson) 433. Parallel to the coast—Line governed by coast was to be parallel to the coast, whether mountain or 10 marine leagues line. (Robinson) 456. I Partout," meaning of. (Watson) 428. Pelly's, Mr., declaration, evidence of. (Watson) 430. CXVIII ALASKAN BOUNDARY TRIBUNAL. Drawing of United States line—Continued. Reasons for introduction of 10 marine leagues proviso—Meaning, &c.— Canning's, Mr. G., distrust of the maps—Despatch and Draft Convention (July 12, 1824)—Fourth negotiations. (Finlay) 50, 52.—Despatch and Draft Convention (December 8, 1824)—Fifth negotiations. (Finlay) 61, 62, 234; (Robinson) 461. Canning's, Mr. G., reasons for inserting 10 marine leagues limit, and understanding that it applied absolutely. (Watson) 430, 431, 434, 435. Canning's, Mr. S., statement—" I have concluded a Treaty exactly in accordance with vour instructions." (Robinson) 461, 462. Definite description of boundary. (Watson) 401, 403, 430, 431. Hudson's Bay Company suggestion. (Finlay) 48, 235. Purposes and desires of both Parties to the Treaty of 1825 satisfied by the United States line. (Watson) 441. Russian dissatisfaction expressed on conclusion of Treaty— Count Nesselrode to Count Lieven. (Finlay) 64,234. Russian negotiators, position of—If the intention was that the lisiere might be anything less than 10 marine leagues in width, it proved that the Russian negotiators were indifferent to the width question, because they were secure of the inlets. (Watson) 435,436. Salisbury's, Lord, interpretation of 10 marine leagues limit— Letter to the High Commissioners in 1898. (Watson) 432. Summary of Treaty of 1825 negotiations. (Tajdor) 551; (Dickinson) 767-770. Text of Article IV of Treaty of 1825. (Finlay) 14; (Watson) 428. Three conditions necessary before the 10 marine leagues limit was resorted to at all. (Finlay) 192. Uniform width of 10 marine leagues and abolition of mountain boundary— Agreed on by Parties to Treaty of 1825, unless the mountains actually reduced it. (Watson) 372. Hudson's Bav Company's criticism of Russian Contre- ms X ml Pro jet (third negotiations). (Watson) 374. Bagot amended proposal, third negotiations. (Finlay) 38, 216, 234; (Watson) 372, 435. British refusal to agree to elimination of mountain boundary. (Watson) 402, 403, 412. Russian proposal. (Finlay) 56, 216, 237. Nesselrode's, Count, explanation of proposal. (Finlay) 59. Return to Sir C. Bagot's amended proposal. (Watson) 412, 435. Summary of Treaty of 1825 negotiations. (Dickinson) 767- 770. Turner-Finlay-Lodge discussion, 189, 190, 191. INDEX TO MINUTES OF PROCEEDINGS. CXIX Drawing of United States line—Continued. Uniform width of 10 marine leagues, etc.—Continued.' United States claim reverting to Russian proposal with the modification that the line should never be nearer salt water than 10 marine leagues. (Finlay) 17, 18, 61, 185. Amount of territory acquired by the United States under the claim. (Finlay) 18. f Line representing coast drawn parallel to line representing United States claim, position of. (Finlay) 18. Maps put forward in case for the United States. (Finlay) 16,17. Utmost extent which the British Government would concede—narrower limitation if possible—Canning-Bagot instruction. (Finlay) 50. Territorial claims— British claims to North-west Coast— Absence of claim— Canning's, Mr. G., despatch emphasizing the maritime jurisdiction question, and stating that territorial possession was a matter of comparative indifference (December 8, 1824). (Watson) 356. Until 1821 Great Britain never claimed any title whatever. (Watson) 352. Claims prior to Treaty of 1825—Evidence of Faden map. (Carson) 591. Fifty-ninth parallel, claims had always extended to—Sir C. Bagot's statement. (Watson) 381. Hudson's Bay Company, see that title, sub-heading Occupation. Nootka Convention—Groundlessness of claim under. (Taylor) 511, 512. Wellington, Duke of, inquiry in 1822 as to whether Great Britain had any claim. (Watson) 352, 353. Joint negotiations proposed, Great Britain and United States, 1823— Territorial claim a matter for separate'settlement. (Finlay) 29. Russian claims— Behring Sea Case—Great Britain and United States together derided the territorial claims advanced by Russia as foundation of her maritime jurisdiction claims. (Robinson) 464. 59° N.— Refusal to grant trading, &c, privileges north of 59°. (Carson) 630. Russia's claim to territory to the north never seriously questioned. (Watson) 362; (Dickinson) 692. Middleton's, Mr., Memorandum of 1823—No territorial claims below 61° N. advanced by Russia in 1790, none below 60° in 1799. (Robinson) 464, 465. Russian Ukase of 1821, extension of Russian frontier from 55th to 51st parallel—Never seriously disputed, especially by England. (Watson) 346. m ■ iUl cxx ALASKAN BOUNDARY TRIBUNAL. Russian claims—Continued. Sixtieth parallel (60°)—Russian right of possession anything but well established—Sir C. Bagot's contention. (Finlav) 32; (Carson) 560. Southern limit of Dominion in 1779 or 1880—Island of Nootka. (Taylor) 511, 512. Watson's, Mr., argument that Russia would never have taken so little having so much to give. (Robinson) 464, 465. Refer also to title Coast—Sovereignty of mainland coast. Russian explanation of extent of territory left for British expansion—Treaty of 1825 negotiations. (Watson) 361. Spanish claims— Admission of claim by Russia in 1790. (Carson) 589, 591. Middleton's, Mr., Memorandum of 1823. (Robinson) 464. Transference to United States under Treaty of 1819. (Watson) 358; (Taylor) 512; (Carson) 594. United States' pretensions— Equal pretensions with Great Britain and Russia asserted (1823). (Finlay) 28, 30. No territorial claims as high as 51° north latitude. (Finlay) 28. Spanish rights acquired by the United States by virtue of Treaty of 1819. (Watson) 357; (Taylor) 512; (Carson) 592. Refer also to titles Discovery and Occupation. Territorial demarcation preferable to joint occupancy—Treaty of 1825, views of negotiators. (Finlay) 29. Territorial waters— Barrier theory— Not interrupted by crossing inlets, provided that the inlets were territorial waters. (Finlay) 221, 222, 223. United States' claim to barrier by water in addition to barrier by land. (Carson) 601. Coast line, settlement of—Value of territorial waters question. (Finlay) 184. Extensive claims of United States—Delaware Bay instance. (Finlay) 219. Law in regard to territorial waters— Blackburn's, Lord, statement in connection with Concepcion Bay case—Differences of opinion as to what is a " bay' in this connection. (Finlay) 218. Bluntschli's Droit International statement. (Finlav) 217, 218. Lynn Canal—United States' claim that the head of Lynn Canal was the ocean, irreconcilable with territorial waters. (Robinson) 445. Norwegian fjords—Mr. Graham's Memorandum in connection with the Behring Sea Arbitration. (Finlay) 219. Political coast line—Interior water was territorial water. (Taylor) 546, 547, 548. INDEX TO MINUTES OF PROCEEDINGS. CXXI Territorial waters—Continued. Right of passage— Rivers and inlets—Right of navigating an inlet so far as it formed territorial waters would be given by the law of nations in cases where right of navigating the river existed. (Finlay) 19. Criticism of contention. (Dickinson) 776, 777. Territorial waters subject to the general law of nations. (Finlay) 221. Width limit— British contention not confined to 6-mile limit. (Finlay) 220, 229. Lynn Canal, difficulty in applying general principles to so curious a geographical locality. (Finlay) 220. No necessary limit—Depth of inlet in proportion to its breadth the determining factor in deciding what should be considered territorial waters. (Finlay) 219. Thalweg theory— Arm of the sea, application to—David Dudley Field's statement, &c. (Taylor) 531, 532. Doctrine could have no application to the state of circumstances existing at the entrance of the present Portland Inlet. (Carson) 569. Meaning of Field's statement—Alverstone-Taylor discussion, 532. Modification of Grotius and Vattel—Mid-channel replacing middle of the river as line of demarcation. (Taylor) 531. Portland Channel, application of theory to, see Portland Channel—What channel is the Portland Channel ? |Thanks on behalf of the United States' Government— Friendliness and consideration shown by British Government and its representatives—General Foster's remarks, 833. Third question—Refer to titles Southern (water) boundary, Fifty- four-forty, and Fifty-five. Thomas, General— Tongass Island, reference to, as on boundary between AJaska and British Columbia—Report (September 27, 1869). (Finlay) 127; (Dickinson) 697. Thorn, Mr. F.—United States Coast and Geodetic Survey— Direction of boundary line— General trend of coast—Opinion that boundary line should be run parallel with general trend of coast. (Robinson) 495; (Carson) 650. line along certain mountain summits proposed (1888). (Carson) 649. Report of United States Geodetic Survey, instructions for preliminary survey—Protest on behalf of Great Britain. (Finlay) 320; (Carson) 650. Vagueness of protest—No notice of claim to heads of inlets. (Dickinson) 815. CXXII ALASKAN BOUNDARY TRIBUNAL. Thornton, Sir E.—H. M. Minister at Washington— Determination of boundary proposals— Commission for definition of boundary, Fish-Thornton discussion—Extracts from letters to Earl Granville (1872). (Finlay) 310; (Carson) 638. Discussions had no relevancy to inlets question. (Dickinson) 796, 797, 802. Partial demarcation of boundary^, fixing points on rivers— Derby, Earl of, letter to (September 29, 1875). (Dickinson) 802. Granville, Earl of, despatch to (February. 15, 1873). (Finlay) 311; (Watson) 331; (Carson) 639. Stikine River provisional boundary—Thornton-Evarts correspondence (1878). (Finlay) 198. Tide water— See title Coast. Tittmann, Mr.—United States Coast and Geodetic Survey— " Coast" used in sense of general line of coast. (Finlay) 210. Mountain range parallel to the coast, non-existence of—Report, inclosing depositions. (Finlay) 250, 251. Tonga's Passage— Latitude of mouth. (Finlay) 81. Vancouver's narrative—Could Tonga's Passage or Lincoln Channel have been referred to as mouth of Portland Channel?— Finlay-Lodge-Turner discussion, 76, 77, 78, 79, 80, 81, 82. Tongass Island— Tongrass Island— Evidence showing that island was considered by United States to be on southern limit of their possessions. (Finlay) 126, 127, 128. Evidence had no weight in determining boundary. (Taylor) 535; (Dickinson) 696, 697, 698, 699. Tower, Mr. R.—Secretary to the Tribunal, 2. Lord Salisbury's despatch to. (Finlay) 321. Trading, Hunting, and Fishing Rights— Articles of commerce prohibited in trade with natives—Russian contre-projet—Fourth negotiations. (Finlay) 52, 56. Coast mentioned in Article III—Reciprocal privilege of frequenting inland seas, &c, granted by Article VII of Treaty of 1825, see title Coast mentioned in Article III. Equal privileges for British subjects as were, or might be, stipulated for with Russia by any other nation—Treaty of 1825 negotiations. (Finlay) 49, 57, 58; (Watson) 378; (Taylor) 519. Digest of Treaty of 1825 negotiations showing the intention of negotiations. (Taylor) 517, 518. Exercise of trading, &c, rights constituting proofs of Russian occupation and possession, refer to titles Occupation, and Coast—Sovereignty. Joint Convention between Great Britain, United States, and Russia nroDosed Bagot's, Sir C, letter to Mr. G. Canning (October, 1823). (Finlay) 30. INDEX TO MINUTES OF PROCEEDINGS. CXXIII Trading, Hunting, and Fishing Rights—Continued. Joint Convention, etc.—Continued. Great Britain declining joint negotiations on account of Monroe doctrine. (Watson) 358. Liberty to visit inland waters, see title Navigation rights. Nesselrode's, Count, description of the conciliatory offers made to England. (Finlay) 48. Settlement arrived at by adoption of terms of United States Treaty of 1824. (Finlay) 60. Treaty of 1818, see that title. (For discussion of particular rights, refer to titles " Dryad " affair, Sitka, Hudson's Bay Company—Lease of territory, &c.) Transfer of Alaska from Russia to United States, see title Purchase. Treaties of Delimitation— Title to possession of territory— Expedient substituted for titles by discovery and occupation. (Taylor) 503. Significance of—Does it amount to anything serious, or is it a mere boundary on paper to be located when necessary, &c? (Taylor) 503, 504. Treaty of 1818—Great Britain and United States— Trading rights west of Rocky Mountains—Equality of rights between United States and Great Britain. (Finlay) 306. Equal rights of Great Britain and United States below 54° 40'—Sir T. Twiss's interpretation of the Treaty. (Taylor) 513, 534. Nesselrode's, Count, deduction that by this stipulation England recognized her rights to be doubtful. (Finlay) 46, 119. Treaty of 1819—United States and Spain— Spanish claims to North-west Coast transferred to United States. (Watson) 358; (Taylor) 512; (Carson) 592. Treaty of 1824—United States and Russia— Articles I and II, substituting for all that referred to maritime jurisdiction in drafts of Treaty of 1825—Mr. G. Canning's despatch (December 8, 1824). (Finlay) 60. Canning's, Mr. G., knowledge of—Sir C. Bagot's letter (April 5 (17), 1824). (Dickinson) 689. Date of signing—Signed on the very day that Count Nesselrode's despatch was written to Count Lieven, explaining refusal of British terms. (Finlay) 118. Fifty-four-forty—Influence of Treaty of 1824, see title Fifty- four-forty. Prominence in the minds of the negotiators of the Treaty of 1825. (Finlay) 58, 117, 118. Provisions of, adopted in Treaty of 1825—Presumption that provisions were similarly construed in both Treaties. (Dickinson) 739. Reciprocal privileges below 54° 40'—United States' power to grant such privileges clearly admitted by Mr. Robinson— Equal right secured to Great Britain by Treaty of 1818. (Taylor) 512, 513. CXXIV ALASKAN BOUNDARY TRIBUNAL. Treaty of 1825—Great Britain and Russia— Aspect of Treaty as if it had been the result of same procedure as Treaty of 1867, without Protocols, &c. (Robinson) 442. Construction and interpretation of Treaties^ rules for, with special application to construction and interpretation of Treaty of 1825. Action outside the Treaties, see that title. Acquiescence, see that title. British view of construction of Treaty of 1825. (Finlay) 11-19. Casus omissus—No Court or other expounder could supply a casus omissus in a Treaty any more than in a law— Extract from Mr. Taylor's treatise on international law. (Robinson) 465. Common-sense rule—First ascertain the dominant purpose of the transaction, then so construe subordinate matters as to harmonize with that purpose. (Taylor) 520. Distinction between construction and interpretation— Extract from Mr. Taylor's treatise on international law. (Robinson) 465. Intention of the parties, weight to be attached to—Lord Westbury's epigram. (Robinson) 459. Interpretation put upon the Treaty by the Parties concerned. (Dickinson) 731, 732. Acquiescence may be looked to as indicating an understanding and an interpretation. (Dickinson) 732. Knowledge required—General knowledge possessed by the Parties to the Treaty. (Robinson) 457. Negotiations, admission of, as" evidence before the Tribunal, see title Action outside the Treaties. Rules for admission of evidence- Common law rules as to admission of evidence, extent and application. (Robinson) 456, 459; (Taylor) 519. Nothing to do with rules of evidence before the Tribunal. (Taylor) 501. Rules applicable to differences in different countries. (Robinson) 456. Negotiations always referred to. (Robinson) 456. Taylor's, Mr., statement, criticism of. (Robinson) 456, 459. Treaty of 1825, both Parties governed by English common law, therefore rules of English common law should apply. (Robinson) 456. See also title Evidence. Rules for interpretation. (Watson) 337, 338; (Taylor) 519 520. I Vattei's rules. (Dickinson) 733, 734. Text of Treaty, pre-eminent importance of. - (Carson) 558. Question was not what the negotiators at different times proposed, but what they finally agreed upon. (Robinson) 457. INDEX TO MINUTES OF PROCEEDINGS. Treaty of 1825—Great Britain and Russia—Continued. Text of treaty, pre-eminent importance of—Continued. Wording of Treaty— "Articles . . . depend for their force entirely on the general acceptation of the terms in which they are expressed "—Mr. S. Canning's letter to Mr. G. Canning after conclusion of Treaty (April 3, 1825). (Robinson) 461, 462. Terms used in the Treaty should be given due proportion of weight, but decisions should not turn on questions of grammatical structure, and unless some overruling reason appears, it should be assumed that negotiators used words in their ordinary sense. (Dickinson) 657, 658. Words in which Treaties are framed must govern their construction. (Robinson) 461. Difficultv and doubt occasioned bv Treaties referring to natural ml ml , ^3 features which do not exist, &c.—Instances of other Treaties. (Robinson) 443. Negotiations—General review. (Finlay) 19-65. Divisions into which the negotiations fall in order of date and order of subject. (Finlay) 23. Objects of the contracting Parties. (Watson) 338, 346, 360, 365, 366, 367, 380, 381, 438, 441. Bagot's, Sir O, statement. (Finlay) 35. Barrier v. point d'appui, see title Coast—Continuous strip. Certainty, establishment of. (Dickinson) 734. Definition of area of possession so as to remove difficulty inherent in titles by discovery and occupation. (Taylor) 503. Order of Articles—Mr. G. Canning's refusal to agree to transposition. (Watson) 356. Preamble—Description of boundary line in Mr. G. Canning's Draft Convention (July 2, 1824). (Finlay) 51. Russian claim of title to territory ceded to United States in 1867—Treaty of 1825 offered as evidence to United States. (Watson) 327. (For discussion of particular provisions, refer to titles Commencement point, Coast, Mountain boundary, &c). Treaty of 1867— Purchase of Alaska by the United States, see that title. Treaty of 1871 (Treaty of Washington)— Rivers, reciprocal navigation rights secured to British and American citizens. (Dickinson) 777. Limitation of rights of British subjects under Treaty of 1825—-Decision in case of Peter Martin. (Finlay) 313. No reason for complaint of loss of rights granted by Treaty of 1825 if heads of inlets had belonged to Great Britain. (Dickinson) 777. Treaty of 1892—Great Britain and United States- British contention that the Treaty was an acknowledgment by both Powers that the question of locality of boundary was still open. (Watson) 397. S. Doc. 162, 58-2, vol 7 37 CXXVI ALASKAN BOUNDARY TRIBUNAL. Treaty of 1892—Great Britain and United States—Continued. British contention, etc.—Continued. Memorandum of United States' Government (May 30, 1898)—No assertion that heads of inlets belonged to United States. (Carson) 651. Mendenhall's, Mr., instructions as to survey showed that 7 7 ml entire boundary question was still open. (Carson) 650, 651. Foster's, General, letter stating that no mention of British claim to heads of inlets was made at conferences. (Dickinson) 815, 816. Bowell's, Sir Mackenzie's letter really a confirmation of General Foster's statement. (Dickinson) 815, 816, 81 (. Joint survey under terms of Treaty, see Surveys. rt ■ . Treaty of 1903—Tribunal for adjustment of boundary question, (. Provisions of, refer to titles Action outside the Treaties, Powers and duties of the Tribunal, Mountain boundary, &c. Trutch, Governor—Governor of British Columbia— Need for definition of boundary line—Letter to Hon. J. Howe (July 11, 1872)—Letter suggested no doubt as to interpretation put upon " coast." (Dickinson) 796. Tupper, Sir C.—High Commissioner of Canada— Dall-Dawson conferences in 1888—Dr. Dawson's views on the inlets question— Formal communication of, to Mr. Bayard by Sir C. Tupper as executive officer acting for Great Britain. (Robinson) 484. Position of Dr. Dawson as Canadian representative, Sir C. Tupper's opinion as to— Non-endorsement of Dr. Dawson's views—Matter one to be dealt with by experts, Sir C. Tupper was not called upon to endorse or repudiate their views. (Robinson) 489. Sufficiently shown by his formal communications of Dr. Dawson's views to United States. (Robinson) 486. *m Turner, Senator—Member of the Tribunal appointed by the President of the United States. Coast—Distinction between " general trend of the coast' and " trend of the general coast," 15. Mountain boundary—Elevations between points of Mr. King's line—Did they indicate a continuous elevation or did they indicate heights of lower peaks which might be upon one side or the other ? 277, 278. Portland Channel entrance—Suggestion that Vancouver's narrative referred to Tongass Passage as mouth of Portland Channel, 78, 79, 82. Latitude of mouth of Tongass Passage, 81. Previous rights, recognition of, by Treaty of 1825—If the Treaty was based on previous rights of claimants, the lisiere was Russia's before conclusion of the Treaty, 591, 596, 597. INDEX TO MINUTES OF PROCEEDINGS. cxxvn Turner, Senator, etc.—Continued. Vancouver's narrative, question as to negotiators' knowledge of— Poletica, M. de, knowledge of—M. de Poletica's information taken from Coxe's " Russian History"—Mr. Pelly's Memorandum, 87, 88. Was there no separate publication of charts up to 1825? 92, 93. Tuyll, Baron—Russian Representative at Washington— Russian southern frontier, limits,suggested—Despatch to Count Nesselrode, 1822. (Finlay) 27; (Watson) 351. Evidence relied on by Great Britain in support of her Portland Channel contentions. (Taylor) 534. Vancouver's narrative, knowledge of—Evidence of despatch (Finlay) 85, 86. Suggestions contained in despatch of October 1822 could have been obtained from the maps—No evidence of knowledge of narrative. (Taylor) 522; (Dickinson) 664,665,666. Alternative lines suggested; Understanding as to position of mouth of Observatory Inlet—Ayles- worth-Dickinson discussion, 665. Not one of the negotiators, and even if he had rea*d the narrative, that was no proof that Count Nesselrode had read it. (Dickinson) 666. Twiss, Sir Travers— History of British claim to Xorth-west Coast, examination of, in book on Oregon question. (Taylor) 511. Maps, uselessness of, in investigation of boundary questions— Extracts from " Oregon." (Robinson) 475. Position of, as advocate of British Empire in regard to her claims to North-west Coast—Weight to be attached to admission against Great Britain, &c. (Taylor) 511, 534. Thalweg theory, modification of—Mid-channel as line of demarcation in place of middle of the river. (Finlay) 107; (Taylor) 531. Treaty of 1818—Equal rights of Great Britain and United States below 54° 40'. (Taylor) 512, 534. Unuk River— Survey of 1893—Mr. Mendenhall's directions to Mr. Dickins. (Finlay) 204, 206. Utrecht, Treaty of— Maritime jurisdiction claimed bv Great Britain and France. (Taylor) 510. Precedent cited by Russia for maritime jurisdiction claimed in Ukase of 1821. (Watson) 345, Value of territory in dispute— Fort Simpson, position of—Importance of islands at mouth of Portland Channel. (Finlay) 84. Slight value in 1872—Territory held to be not worth the cost of a survey. (Carson) 638. Yukon territory, &c., main access to. (Finlay) 6; (Watson) 331 332. Pauncefote's, Sir J., letter (February 23, 1898). (Dickinson) 820. cxxvin ALASKAN BOUNDARY TRIBUNAL. Vancouver's Narrative and Charts, &c. (Finlay) 19. Authority of narrative (Finlay) 67, 83, 84. 1 Revision of greater part of narrative, and comparison with charts—Advertisement to first edition. (Finlay) 84, 99. United States contention as to superior authority of charts. (Finlay) 99; (Taylor) 527. i Bayard's, Mr., criticism of Vancouver's mountain topography. (Finlay) 259, 260. Editions of the narrative— First edition, date of. (Finlay) 68. French edition— > Probability that the French edition was before the negotiators. (Finlay) 101. Second French edition of Vancouver, existence ot. (Carson) 561, 568. § : . \; Second edition— " Channel," use of, in reference to what had before been called Portland Canal. (Finlay) 40, 91; (Dickinson) 670. Date of. (Finlay) 68. Narrative and charts sold together, advertisement to second edition, &c. (Finlay) 92, 93. Spurious and interpolated edition. (Taylor) 524. Fur trade on North-west Coast in 1792, list of ships engaged in, British ships, &c. (Carson) 593,594. j Knowledge of Vancouver's narrative by the negotiators—British contention that they were instructed and influenced by it in reference to Portland Canal v. United States' contention that there was a possibility of knowledge, but no affirmative evidence of it. (Taylor) 522; (Dickinson) 672. Authentic information—Vancouver's narrative was the only authentic information—Impossible to credit that during three years' negotiations it was not resorted to by the negotiators. (Robinson) 454. Bagot's, Sir C, knowledge, question as to— Pelly Memorandum, see that sub-heading. River connecting Portland Channel with Hudson's Bay Company's territory, suggestion—Comparison with Vancouver's statements. (Finlay) 94, 95, 96. I Channel " substituted for " canal " in speaking of Portland Channel—Indication that the second edition of Vancouver was known to the Russian negotiators. (Finlay) 40, 911 (Carson) 560, 562. Criticism of Attorney-General's conclusion that second edition of Vancouver was in the hands of the Russian negotiators. (Dickinson) 670.- Examination of evidence advanced in support of British contention. (Taylor) 522, 523, 524. Longitudes—East longitudes given in narrative, whereas the negotiators used west longitudes—East and west longitudes given in maps. (Finlay) 71, 85, 94. INDEX TO MINUTES OF PROCEEDINGS. CXXIX Vancouver's Narrative and Charts, &c.—Continued. Knowledge of Vancouver's narrative, etc.—Continued. Maps and narrative published together contention. (Finlay) 92, 93, 94,101; (Robinson) 454; (Dickinson) 671. Misstatement in advertisement to French edition. (Finlay) 106. Middleton's, Mr., reference to Vancouver's narrative in Memorandum delivered to Count Nesselrode (December 17, 1823). (Finlay) 90, 91. Not being one of the negotiators, Mr. Middleton's possible knowledge was valueless as evidence. (Dickinson) 669. Negotiations, evidence of—Not a single word from beginning to end wherein they referred to Vancouver's narra- tive. (Dickinson) 671. Painful and accurate examination of narrative needed to understand Vancouver's meaning. (Dickinson) 695. Pelly's, Mr.. Memorandum of, by Sir C. Bagot and Mr. G. Canning— Bagot, Sir C.— Inference that he ultimately got the information, although the inclosures were not sent in the first letter. i (Finlay) 27, 28, 32, 35, 38, 90. Lack of evidence to prove that he received it. (Taylor) 523. Poletica's, M. de, version of conversation with Sir C. Bagot, proving that the latter had received Mr. Pelly's Memorandum. (Carson) 559, 560. Conclusion that because Sir C. Bagot and Mr. Canning had the Memorandum, that therefore they had examined the narrative— Constructive notice—Application of principle by the Attorney-General. (Dickinson) 669. References had nothing to do with Portland Canal—Unusual for persons in that position to go behind information supplied by competent persons. (Dickinson) 668, 669. Despatch from Mr. G. Canning forwarding Mr. Pelly's statement to the Duke of Wellington, 1822. (Finlay) 25, 90. Passages where Vancouver's narrative is referred to. (Finlay) 25, 26, 89. Pelly s, Mr., references to the narrative as il it were known to everybody. (Robinson) 454. Poletica, M. de, reference to Vancouver's mention of Russian establishments in Kenai Bay or Cook's Inlet—Despatch (February 28, 1822). ' (Finlay) 25, 87, 88. No evidence that M. de Poletica ever considered the narrative in connection with Portland Canal. (Dickinson) 666. Portland Channel head, latitude of—Discrepancy between Vancouver's narrative and Russian negotiators' statements. (Finlay) 95. CXXX ALASKAN BOUNDARY TRIBUNAL. Vancouver's Narrative and Charts, &c.—Continued. Knowledge of Vancouver's narrative, etc.—Continued.- Tuyll's, Baron, Memorandum to negotiators. (Finlay) 2(, 85. Information could have been obtained from Vancouver's maps—No evidence that it was obtained from the narrative. (Dickinson) 664, 665. Alternative lines suggested—Understanding as to position of mouth of Observatory Inlet—Ayles- worth-Dickinson discussion, 665. Not one of the negotiators, and even if he had read the narrative, that was no proof that Count Nesselrode had read it. (Dickinson) 666. United States references to narrative as elucidating Treaty negotiations. (Finlay) 97. | . United States used the narrative since, m spite of their objection, it was admitted as evidence. (Watson) 422. Unwarranted conclusion that negotiators were instructed, and influenced by narrative—Probably possessed knowledge in a generaf way. (Dickinson) 672, 673. |j§ Maps and charts. (Finlay) 116; (Dickinson) 694— Authority superior to that of narrative—United States contention. (Finlay) 99; (Taylor) 527. Conjectural and theoretical nature—Mr. Bayard s despatch of November 20, 1885. (Carson) 648. Duke of Clarence Sound, mentioned m Bagot reply to Russian observations, marked on Vancouver map as Duke ol Clarence Strait. (Dickinson) 679, 680. Maps before the negotiators—Evidence, &c., as to Vancouver's charts. (Watson) 405. Bayard's, Mr., despatch (November 20, 1885). (Finlay) 143, 259, 263. Every reason to believe that Vancouver's maps were before the negotiators, and that they were relied on. (Dickinson) 675, 687. Mountain boundary—Representation in maps before negotiators. (WTatson) 397, 404. Commencement of mountain boundary—Line up Portland Channel striking mountains before it reached 56th parallel. (Watson) 405. Discrepancies in representation of mountains. (Finlav) 263,264; (Carson) 606. Distance of mountains from coast—About half 10 marine leagues. (Finlay) 240, 241. j Mountains shown bordering the entire coast. (Dickinson) 740. Terms of Treaty of 1825—Correspondence with Vancouver's charts and narrative—Mr. Dawson's letter (February 7, 1888). (Watson) 412, 413. Vancouver knew only that seen from the sea, the country was everywhere mountainous and his maps represented those mountains in a conventional way. (Robinson) 457, 458. INDEX TO MINUTES OF PROCEEDINGS. cxxxc Vancouver's Narrative and Charts, &c.—Continued. Maps and charts—Continued. No. 3 Vancouver (No. 4 United States' Atlas). (Finlay) § 209,210. Portland Channel and Observatory Inlet— Channel north of Wales Island—Comparison of Map No. 7 with original Vancouver. (Dickinson) 693. Dall's, Mr., opinion as to inference to be drawn from charts by a non-critical observer. (Dickinson) 685, 686. Discrepancies of maps before negotiators, probability that they would refer to Vancouver's narrative. (Dickinson) 686. Fifty-four-forty according to Vancouver's charts did not lead to centre of Observatory Inlet. (Carson) 568. Chart No. 2 (British Atlas)—Latitude 54° 40' passing south of Point Maskelyne. (Finlay) 135, 136. French edition, map in—Portland Canal and Observatory Inlet shown on. (Finlay) 101; (Carson) 566. General map (British Atlas No. 1)—Portland Canal and Observatory Inlet shown on. (Finlay) 99, 100. Line of travel pursued by Vancouver's ships—Line indicated up larger, open channel in general chart. (Dickinson) 681. Part map (British Atlas No. 2)—Portland Channel and Observatory Inlet shown on. (Finlay) 100. Portland Canal was either intended to apply to whole body of water out to the sea, or channel below Ramsden Point was an unnamed branch of the ocean, contentions supported by general chart. (Dickinson) 681. Printing of names—Significance of size of print, space occupied, &c. (Dickinson) 680, 681, 682, 683. Naming of points as he passed them, Vancouver's habit. (Finlay) 71. Object of Vancouver's voyages—Discovery of some great water communication between the Atlantic and the Pacific. (Finlay) 70, 95, 96, 97, 106. Portland Channel question—Evidence of Vancouver's narrative and maps. Channel below Ramsden Point not named by Vancouver— United States Counter-Case contention based on Vancouver's chart. (Finlay) 110. Entire arm of the sea designated as Portland Channel, of which Observatory Inlet was a branch (United States contention). (Finlay) 110. Vancouver's narrative, evidence of. (Taylor) 525, 526, 527, 534, 540. " Branch," term applied to Observatory Inlet. (Taylor) 525, 526. ■ ■m CXXXII ALASKAN BOUNDARY TRIBUNAL. Vancouver's Narrative and Charts, &c.—Continued. Maps and charts—Continued. Portland Channel question—Continued. Entire arm of the sea designated, etc.—-Continued. | Canal," " Channel," and " inlet "—Significance of Vancouver's use of terms. (Taylor) 526,528,540. Maps before the negotiators—Evidence that the name Observatory Inlet was applied only to the branch terminating at Point Ramsden. (Taylor) 528. Maps subsequent to Treaty of 1825, evidence that the main channel was regarded as Portland Channel. (Taylor) 529, 530, 533. Wales Point, designation of, as west point of Observatory Inlet—British inference that ml Vancouver's Observatory Inlet was a separate channel. (Taylor) 526. Lodge-Taylor-Aylesworth-Alverstone discus sion, 540, 541. contention. Maps, evidence ^against British (Taylor) 527, 533. Observatory Inlet was still a part of Portland Canal, whether it extended to Point Wales or ended at Ramsden Point. (Taylor) 540, 541. Fifty-four-forty contention—Bearing of Vancouver's narrative—54° 40' in Vancouver map passing south of Point Maskelyne. (Finlay) 135, 136. Knowledge of Vancouver's narrative by the negotiators, see that sub-heading. Latitude of Portland Channel fixed—Mention.of land lying to port side as he was sailing to the open sea. (Finlay) 38. Portland Channel fixed by Vancouver—Channel between Pearse Island and the mainland. (Finlay) 67; (Carson). 562, 563. " Branch," Vancouver's application of term to Observatory Inlet—If Observatory Inlet was one branch Portland Canal was the other, and no name was assigned to the whole arm of the sea formed by these two branches. (Carson) 563, 564. "Canal' or "channel"—Vancouver's use of terms. (Carson) 562. . Dall's, Mr., opinion that Vancouver's narrative bore out the British contention. (Finlay) 98; (Robinson) 454; (Carson) 566. Extracts from narrative detailing exploration of Observatory Inlet and Portland Channel. (Finlay) 68, 69, 70, 71, 72, 73, 74, 75, 76? 77, 78, 81, 82. Time occupied by Vancouver in returning from journey up Observatory Inlet to " that arm of the sea," &c.—An explorer in Vancouver's circumstance would prefer a route he had already travelled to a shorter one which he did not know—Turner-Carson-Aylesworth discussion, 564, 565. INDEX TO MINUTES OF PROCEEDINGS. Vancouver's Narrative and Charts, &c.—Continued. Maps and charts—Continued. Portland Channel fixed bv Vancouver—Continued. Pearse Channel—Description of, as a labyrinth of rocks. (Finlay) 56. Space on maps occupied by words Portland Canal and Observatory Inlet—Comparison with statements of narrative. (Finlay) 100, 101, 110. Tonga's passage—Did Vancouver refer to Tonga's Passage or Lincoln Channel as mouth of Portland Channel?—Finlay-Lodge-Turner discussion, 76, 77, 78, 79, 80, 81, 82. Wales, Point, designation of, by Vancouver as west point of Observatory Inlet. (Carson) 565. Settlement of Portland Channel question effected, if the narrative was proved to be before the negotiators. (Carson) 566. Portland Channel to the 56th parallel—Vancouver's representation of mountains. (Finlay) 175, 178, 179. • \ ml / 7 , Russian occupation in 1794, evidence as to. (Watson) 349. Taking possession of continent from New Georgia, N. W., to Cape Spencer, in thfc name of and for His Britannic Majesty. (Carson) 594. Vattel— Interpretation of Treaties, rules for. (Dickinson) 733. Thalweg doctrine. (Finlay) 107; (Taylor) 531. Venezuela Arbitration— Possession, Acts of, reference to, in Venezuela Arbitration. (Finlay) 322. Verona Conference— Inception of negotiations culminating in Treaty of 1825. (Fin- ... la-y)86- Visiting and resorting to each other's possessions— See titles Navigation rights, and Coast mentioned in Article III. W7alch's map, 1807— No evidence to show that map was before the negotiators. (Dickinson) 685. Wales Island— Admiralty Chart of 1853—Name " Wales " first applied to island at entrance to Observatory Inlet—Mr. Wharton's note in 1886. (Finlay) 163. Confusion with Prince of Wales Island— Bayard's, Mr., despatch of November 20, 1885. (Finlay) 142, 143; (Carson) 646. Bayard's, Mr., mistake. (Finlav) 69. Storehouse erected by United States, 1896. (Finlay) 145, 146. Refer also to title Portland Channel—Entrance. Wales, Point— Designation of, by Vancouver as west point of Observatory Inlet. (Finlay) 69,80; (Taylor) 526; (Carson) 565. British inference that Observatory Inlet was regarded as a separate channel— Lodge-Taylor-Aylesworth-Alverstone discussion, 540, C5 ml ml * J 541. k-^M ■ s m" — CXXXIV ALASKAN BOUNDARY TRIBUNAL. Wales Point—Continued. |H Designation of, by Vancouver, etc.—Continued. British inference, etc.—Continued. Maps, evidence against British contention. (Taylor) 527, 533. Observatory Inlet was still a part of Portland Canal, whether it continued to Point Wales or ended at Point Ramsden. (Taylor) 540, 541. Walker, Mr.— Mountains of Alaska—Deposition. (Finlay) 257. Washington Conference of 1888— Dall-Dawson discussions, see Dawson, Dr. Washington, Treaty of— See titles Treaty of 1819 and Treaty of 1871. «/ ms Wellington, Duke of— Coast—North-west Coast as used in Russian Ukase of 1821 understood by Duke of Wellington in Russian sense of entire coast. (Dickinson) 738. Continents—Contention that occupation should decide claim of sovereignty. (Watson) 354, 355. Occupation, title by, substituted for title by discovery—Instructions prior to Verona Congress. (Taylor) 503. Territorial claims—Had Great Britain any claim?—Inquiry in 1822. (Watson) 352, 353. West, Sir L.—British Minister at Washington— Joint Commission proposed by Mr. Phelps—Dominion Government's preference for a preliminary survey—Memorandum. (Finlay) 316. Schwatka's, Lieutenant, Report of military reconnaissance fixing points on international boundary—Protest on behalf of British Government (September 14, 1887)—No notice of claim to inlets involved in protest. (Dickinson) 812, 813. White Pass trail, rumoured grant of Charter bv Alaskan authori- 7 k^ ml ties—Protest sent to United States' Government contained no notice of claim to heads of inlets. (Dickinson) 813. Westbury, Lord— Intention of a will—Not what the testator intended, but what his words mean. (Robinson) 459. Wharton, Captain, now Admiral, Hydrographer— Admiralty Survey of 1868, note dated 1886 with reference to nomenclature of Portland Channel. (Finlay) 163. 1902 edition of Admiraltv Chart 2431, absence of note. (Dickinson) 709. Note held to be merely a private opinion. (Dickinson) 707, 708. Wheaton, Mr.— Construction of Treaties, rules governing. (Robinson) 459. White Pass— Watershed at White and Chilkoot Passes fulfilling Treaty requirements as to mountain boundary—Hon. J. W. Foster's article in " National Geographic Magazine (November, 1899)." (Finlay) 246. INDEX TO MINUTES OF PROCEEDINGS. CXXXV White Pass Trail- Grant of Charter by Alaskan Authorities, report as to—British Government protest. (Finlay) 320; (Carson) 649. Burgess's, Mr., letter to Sir J. Macdonald stating Canadian claim to heads of inlets. (Dickinson) 809, 813. Protest forwarded to United States contained no mention of claim to heads of inlets. (Dickinson) 813. Wickett, Mr.— Population at head of Lynn Canal decreased since 1900—Dyea had practically ceased to exist. (Carson) 655. Width of lisiere— Base of mountains, British Argument based on Count Lieven's criticism of—There might well be 25 or 30 miles between crest and base of mountains, descending by an imperceptible declivity. (Watson) 440. Diminutives used in Treaty and negotiations, explanation of. (Watson) 379, 380, 440; (Robinson) 463, 464. What they had in their minds was infinitesimal when com- pared with the great continent with which they were dealing. (Dickinson) 657, 762, 763. See also title Coast—Continuous strip. Fifty to one hundred miles proposed, see title Coast—Continuous strip. Hudson's Bay Company's lease of 1839—Mt. Fairweather on inner boundary of leased territory—Evidence of United States Coast Survey Office map of 1867. (Finlay) 130, 131. Refer also to titles Coast, Mountain boundary, and Ten marine leagues. Wilcock on " The Ocean, the River, and the Shore "— Distinction between coast and ocean. (Robinson) 444. Wood's, General Clay, Report— Mountain boundary, statement that there was no defined range parallel to the coast. (Finlay) 258. Yakutat Bav— *** Russian settlement at. (Watson) 348, 359. Yukon River— Crossing point of 141st meridian—Determination proposal in 1873. (Finlay) 311,312; (Watson) 331. Yukon territory— Access to^Special value to Canada of territory in dispute. (Finlay) 6; (Watson) 331, 332. Gold discoveries, effect in increasing importance of Lynn Canal boundary question—Sir J. Pauncefote's letter (February 23, 1898). (Dickinson) 819, 820. m o <3b I ill « ^ H in w '. i ■•-*;'9- PI X **K ' i > lillllli iiSliSi nn *rrv-J" lliiilitfll
Includes index. Other copies: http://www.worldcat.org/oclc/83753726
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Vancouver : University of British Columbia Library
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Original Format: University of British Columbia. Library. Rare Books and Special Collections. F5049.2.B7 A43
Alaska--Boundaries--Canada
Canada--Boundaries--Alaska
Alaska--Maps
Canada--Maps
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. VII
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