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BOUNDARY BETWEEN THE DOMINION OF .CANADA
AND THE TERRITORY OF ALASKA.

COUNTER-CASE PRESENTED ON THE PART OP THE
GOVERNMENT OF HIS BRITANNIC MAJESTT
I-* TO THE
'"'V'.O -.-
TRIBUNAL CONSTITUTED UNDER ARTICLE I OF THE
CONVENTION
SIGNED AT WASHINGTON, JANUARY 24, 1903,
BETWEEN
HIS BRITANNIC MAJESTY AND THE UNITED
STATES OF AMERICA.

LONDON :
PRINTED AT THE FOREIGN OFFICE,
BY HARBISON AND SONS, PRINTERS IN ORDINARY TO HIS MAJESTY.
1903.

Protest by His Majesty's Government and Reservation of Rights 1
Preliminary — Methods of Treatment of Questions in Dispute by United States and Great
Britain Contrasted 2
Arrangement of Counter-Case 5
First Question — Point of Commencement of the Line 5
Second Question — What Channel is the Portland Channel ? 6
Third Question- — Course of Line from Point of Commencement to Entrance of Portland
Channel 1 2
-Fourth Question— 56th parallel : Point to be drawn from Head of Portland Channel, 17
Fifth and Sixth Questions — The Lisiere 21
Seventh Question — What are the Mountains parallel to the Coast ? 56
U.S. Negotiations with Russia for Renewal of Trading Privileges 65
Acts of Occupation-
I. Russian Occupation 66
II. United States' Occupation 74

BOUNDARY BETWEEN THE DOMINION OF CANADA
AND THE TERRITORY OF ALASKA.

THE COUNTER-CASE
PRESENTED ON THE PART OE THE GOVERNMENT OE HIS BRITANNIC
MAJESTY TO THE TRIBUNAL CONSTITUTED UNDER ARTICLE I
OE THE CONVENTION SIGNED AT WASHINGTON ON THE 24th
DAY OE JANUARY, 1903, BETWEEN HIS BRITANNIC MAJESTY
AND THE UNITED STATES OE AMERICA.

Protest by His Majesty's Government, and HIS MAJESTY'S GOVERNMENT must ac-
ReservationjDf Rights. company the delivery of this Counter-Case witb
the following protest : —
In the judgment of His Majesty's Government
there has not been adequate time to examine and
deal with the documents and evidence put for
ward in the American Case. The Treaty con
templates an extension of time by the Tribunal,
if in their opinion such extension becomes neces
sary owing to special circumstances. Tbe Tribunal
not having assembled, no application can be made
to it.
His Majesty's Government requested the
Government of the United States to consent to
an extension, but the request was refused.
Under these circumstances His Majesty's Govern
ment have, in compliance with the terms of the
Treaty, prepared this Counter-Case, but have
reserved their right to apply to the Tribunal,
when it shall assemble, for permission to put
in such supplementary statement and evidence
as tbe justice of the case may call for.

[769] B 2

PRELIMINARY.

BEFORE presenting the answer of Great
Britain to the Case of the United States, it is
desired to make a preliminary observation upon
the manner in which the questions in dispute
have been there dealt with.
The Case for the United States rather avoids Methods of treatment of the questions in
, , ,. n,i , , • „ ,-, j /» dispute by the United States and Great
the question of the construction of the words of ^^ C(mtrasted.
the Treaty in which the High Contracting Parties 
recorded the arrangement come to between them.
The Case is mainly devoted either to a search for
some general and controlling principle which the
Negotiating Powers might be assumed to have
had in view ; or to an endeavour to show, from
communications other than the Treaty itself, and
in some cases not even passing between the
Parties, what was the arrangement in fact arrived
at. No attempt is made to show that the con
clusions reached ai-e even consistent with the
language of the Treaty as applied to the geography
of the country with which it deals.
It is respectfully submitted on behalf of Great
Britain that the function of tbe Tribunal is to
interpret the Articles of the Convention by
ascertaining the intention and meaning thereof,
and not to re-cast it. Any considerations show
ing that the words of the Treaty must have been
intended to bear a particular meaning, being a
meaning which they are in themselves capable of
bearing, may, of course, be legitimately pre
sented. With regard to the character of the
lisiere, it is plain, from the words of the Treaty,
that this question must depend upon the meaning
to be attached to the words " coast" and " Ocean.'
There is no possible escape from this position.
The lisiere cannot, without disregarding the
affirmative provisions of the Treaty, be extended
more than 10 marine leagues from the " coast " and
from the " Ocean." The arguments put forward
in the British Case were accordingly directed —
and no arguments can be legitimate which are
not directed — to ascertaining by an examination
of the negotiations, and by reference to the geo
graphy, in what sense those words were used.
In the Case for tbe United States, however, r.o
argument at all has been directed to this question ;

but the whole case on this point is given up to
an attempt to establish a controlling principle
wbich the Tribunal is asked to give effect to, not
by putting on the language employed any con
struction of which it is shown to be capable in
itself, but rather by disregarding such language
altogether. Great Britain denies that, even apart from the
Treaty, the Parties can in fact be shown to have
had in contemplation the intention which, upon
the process of reasoning above adverted to, the
United States attribute to them ; and she pro
tests that proof of such intentions, even if estab
lished, would be inadmissible to contradict the
language of tbe Treaty.
The course into which it is sought on behalf of
the United States to divert the inquiry is not
justified either by sound principle or by the pro
visions of the present Treaty of Arbitration.
According to the contentions in the Case of the
United States it is frequently some expression
used by one or another from time to time in the
course of the protracted negotiations, rather than
the language in which their ultimate and deliberate
agreement is expressed, that should govern the
result. And to this end resort is attempted to such
expressions ; and, even further, to accounts given
by the Representative of one of the Contracting
Parties to another Representative of the same
Party ; to negotiations between the United States
and Russia ; to reports of a Representative of
the United States, descriptive of the effect of the
Russo-British Treaty, as verbally communicated
to him by the Representative of one of the
Contracting Parties ; to maps compiled, and
names given, and descriptions prepared under
various circumstances long after the Treaty ; to
almost everything rather than the words of the
Treaty itself.
One of many striking examples of this proposed
method of reaching the meaning of the Treaty
may be cited here.
U.S. Case, p. 62. The United States' Ambassador at St. Peters-
burgh, who had had nothing to do with the
negotiations between Russia and Britain, reports
to his Secretary of State that after the Treaty
was signed, the British Ambassador saw him, did
not show him the Treaty, but explained its
contents verbally.
Mr. Middleton reports his recollection of Mr. S.

Canning's version of the Treaty. This report is
quoted in the Case, with the following comments : —
" The interpretation placed upon this article by its
negotiator shows clearly the course of the line intended
by the terms of the treaty, as well as the extent of the
lisiere which it established  This explanation
of the article, fixing the boundary, while it differs in
language from the treaty, agrees with it if it is inter
preted naturally and with knowledge of the discussions
which had preceded its signature, and were explanatory
of the protective character of Russia's possessions on
the continent."
It is submitted that all certainty would dis
appear under the proposed method of interpreta
tion, which is inadmissible and misleading ; and
that the true solution of the question is to be
found in the words of the Treaty, taken in
connection with the relevant and admissible
extrinsic facts.
Great Britain desires to adopt and apply to
this question the language of the British Ambas
sador to the British Foreign Secretary, in a letter
of the 3rd April, 1825, immediately after the British App.,
conclusion of the Treaty of 1825, in which, dealing rj.s. App., p. 228.
with both that Instrument and the Treaty of
1824, he writes as follows : —
"Referring to the American treaty, I am assured, as
Well by Count Nesselrode as by Mr. Middleton, that the
ratification of that instrument was not accompanied by
any explanations calculated to modify or affect in any
way the force and meaning of its articles. But I
understand that, at the close of the negotiation of that
treaty, a protocol, intended by the Russians to fix more
specifically the limitations of the right of trading with
their possessions, and understood by the American
envoy as having no such effect, was drawn up and
signed by both parties. No reference whatever was
made to this paper by the Russian plenipotentiaries in
the course of my negotiation with them ; and you are
aware, sir, that the articles of the convention which I
concluded depend for their force entirely on the general
acceptation of the terms in which they are expressed."
With the reservation above indicated, it is
proposed to examine the facts and arguments put
forward in the Case for the United States.

ARRANGEMENT OF COUNTER-
CASE.

British App. I,
p. 3.

IT is thought convenient in dealing with the
United States' Case to consider separately, in the
first place, the facts and arguments put forward
as they bear upon the first four questions to be
answered by the Tribunal. This part of the sub
ject being disposed of, the Fifth and Sixth ques
tions to be answered by the Tribunal — which
concern the lisiere, and to the discussion of which
the United States' Case is chiefly devoted — will
be dealt with together, taking up the facts and
arguments in the order in which they have been
presented by the United States. The Seventh
Question will be discussed in turn. The last
branch of the Counter-Case, following the order
of the Case, will be devoted to a consideration of
"any action of the several Governments, or of
their respective Representatives, preliminary or
subsequent to the conclusion of said Treaties, so
far as the same tends to show tbe original and
effective understanding of the Parties in respect
to the limits of their several territorial jurisdic
tions under and by virtue of the provisions of
said Treaties."

Agreement as to Point.

British Case,
p. 46.
U.S. Case, p. 103.

Agreement that Geographical description
governs.

FIRST QUESTION.
The first question to be answered by the
Tribunal is —
"What is intended as the point of com
mencement OE THE LINE ? "
The Case of the United States agrees with that
of Great Britain in the conclusion that Cape
Muzon, " which at the time of the negotiation of
the treaty of 1825, and long after, was believed to
be one of the southern points* of Prince of Wales
Island, and so appeared upon the maps and charts
of tbe period," is the point of commencement of
the line.
Thus it seems agreed that the geographical
description governs ; and no contention is raised
* Note. — On page 46 of the British Case the following
errata : — 15th lir.e, for " below " read " between." 17th line,
for " discrepancy " read " dependency."

with regard to the parallel of 54° 40' as affecting
the point of commencement.
Consequently, it is not deemed needful to
enlarge here on the position already taken in the
British Case in favour of the geographical, and British Case,
against the astronomical description, as determina- p'
tive of the point of commencement, or to discuss
further the reasons against the adoption of the
parallel as such point.

SECOND QUESTION.
The second question to be answered by the
Tribunal is —
"What channel is the Portland Channel?" Britiflh Contentiou.

The British Case contends that the Portland British Case,
Channel is that which was described by Van
couver, and which extends from the Ocean,
between Kannaghunut, Sitklan, Wales and
Pearse Islands, and the interior peninsula on the
east and south, and Tongass and Fillmore Islands
and the continental shore on the west and north,
to the head.
The Case of the United States con-tends that United States' Contention.
Portland Channel "is the same body of water, rj.g. case, 5 04
now commonly known and described as Portland
Canal, which, passing from the north between
Ramsden Point on the mainland and Pearse
Island, and thence southward of said island and
Wales Island, enters Dixon Entrance between
the island last mentioned and Compton Island."
Thus, the United States' contention is that the Its effect as to Observatory Inlet.
lower part of the Portland Canal of the Treaty is
the body of water comprised in Vancouver's
" Observatory Inlet," instead of that comprised in
Vancouver's " Portland Canal," as demonstrated British Case,
in the British Case.
The process by which that lower part of Obser- Names "Portland Inlet" and "Portland
vatory Inlet came, at a later date, to be some- '' -'' '' "l
times called " Portland Inlet " has been alluded lb. p. 59
to in the British Case. But it is denied by
Britain that this lower part is even now, still
more that it has for any length of time been,
commonly included in the name " Portland
Canal." Needless to add, that it is denied that any such Agreement that Vancouver Charts were
subsequent nomenclature, if established, can
affect the question at issue.

United States' admission that "Portland

U.S. Case, p. 51.

It may be observed that the Case of the United
U.S. Case, p. 44. States agrees that the Vancouver maps and their
reproductions are to be taken as those used by
the negotiators.
It may be further observed that the same Case,
Canal " was the same as that now called dealing with the condition of the territorial con-
" Pearse " and " Portland " Canals. , , Al - r ,-,
 troversy as it stood on the suspension ot the
negotiations after the Russian rejection of Sir
Charles Bagot's fourth proposal, states that it : —
" Had shrunk to a dispute over the possession
of an irregularly shaped portion of the continent
bounded on the east by Pearse and Portland Canals
and a presumptive chain of mountains, on the north by
a line extending from a point on the coast, about latitude
56° 30', to the mountain range, and on the west by the
indented continental shore line, together with the
islands lying between Clarence Strait and the mainland
from 54° 40' to 56° 30' and thus situated north and
west of Portland Canal and between it and the con
tinent." It will be noticed that the eastern boundary of
the section described is given as " Pearse and
Portland Canals." But " Pearse Canal," which is
the name subsequently given by the United States
to the lower part of Vancouver's Portland Canal,
and " Portland Canal," which name was later
limited by the United States to the upper part
of Vancouver's Portland Canal, make together
the " Portland Canal " of Vancouver as claimed
by Britain.
And there is thus here an express admission
that, at this stage of the negotiation, it was that
canal, and no Other, which the Parties meant by
Portland Canal.
There is not any, and there could be no suc
cessful attempt to show the least change of
understanding on this head; and thus the Case
of the United States itself sustains the British view.
Objection is taken in another part of this
Counter-Case to the attempt to construe the
Treaty by the introduction of irrelevant matter.
But, in truth, there is, in the matter brought
forward by the United States, no reasonable
proof contradictory of the interpretation of the
Treaty here advanced by Great Britain. On the
contrary, there is much confirmatory of the British
view.
United States' 'Documents as to Tongass For example, the British view gives Tongass
Island indicating that it was Frontier; Jsland ag j ¦ immediately to the north and west
North and West Entrance of Portland J ° J
Canal, and South and East Boundary of of the entrance to Portland Canal ; and conse-
Russian Territory. quently as the extreme south and east point
of Russian-America, since called Alaska.
[769] C

British Case,
pp. 6G-68.

Effect of matter brought forward by
United States.

8
Now, in 1835, after the expiration of the ten
years' trading privileges, the Russian- American Russian- American Company in 1835.
Company took steps to prevent the continuance
of trading by foreigners ; and to that end, in
March 1835, despatched a vessel to Tongass'
under the following instructions to the Com
mander : —
" After having prepared your vessel for the expe- tj.S. App., p. 233.
dition, I recommend you to set sail at the first
opportunity, and direct your course by the most con
venient route to Tumbaz [Tongas].
" The aim of your expedition is two fold: 1. The
occupation of a station on the frontiers of our straits for
the purpose of preventing the foreigners to enter them
and to trade with the natives, as they have lost the
right to do so on account of the expiration of the ten
years' term of the Convention  I deem it
necessary to observe the following with regard to
these two points.
" I. Occupation of a station.
" As we may say that the only place in our straits,
visited by the foreigners is Tongas, you must select
this bay as the place of your sojourn. Here you may
always hear from the Kolosh about the appearance of
some vessel and consequently having your brig always
ready to set sail, you will always be able to proceed to
where the foreigner will show himself."
Thus Tongass is described, and is to be occupied
as "a station" " on the frontiers of our straits. "
These instructions were carried out, and similar
steps were taken in other years.
cn_ x.1 cl xi l l\ tt •. icii United States' Establishment in 1867 of Fort
Shortly after the cession to the United States, Tongass on North side of Portland Canal.
they established the military post at Fort Tongass, 
which was maintained for several years. „ ,„
J U.S. App., p. 34G.
In September, 1867, Major-General Halleck,
Commanding, instructed Colonel Scott to proceed
to Victoria and New Westminster to collect infor
mation as to the Indians on or near the boundary.
The instructions proceed as follows : —

lb., p. 347.

" It is said that Indians living near the boundary line
between northern British Columbia and the ceded
Russian- American possessions have made several hostile
incursions into the settlements in British Columbia and
Washington Territory, which hostile incursions might
have been checked or prevented by proper military
force in the vicinity of Fort Simpson or Portland Canal.
To accomplish this object it may be necessary for the
United States, to establish a military post within their
own territory, on the north side of Portland Canal. You
will carefully inquire into this matter."
Colonel Scott, on the 4th November, 1867, lb., p. 347.
reported on his expedition, saying : —

" For reasons appearing hereafter, I extended my
journey to the north side of Portland Channel — in our
new territory."

U.S. App., p. 349. Further on he says : —

General Thomas's Report, 1869 ; Tongass
on Boundary.

U.S. App., p. 358.

School and Mission. Ib., p. 480.

" Portland Channel is an important inlet for trade
with the interior tribes. It is desirable, as a means for
developing the country, and for the purpose of affording
protection to our traders and revenue officers, as well as
to preserve peace between our own and the British
Indians, to establish a small military post on or near the
channel. Such an establishment would also have a good
moral effect upon the tribes living or trading for many
miles around the vicinity. Impressed with these reasons,
and in view of the importance of the trade upon the
channel and adjacent inlets, I crossed over from Fort
Simpson to our own territory in search of a site suitable
for a military station . I believe the m ost suitable place to
be Tongass Island  The accompanying sketch
will give a very accurate idea of its locality, and
the various channels in the immediate vicinity. (In-
closure C.)"
This inclosure is not produced, but it will be
observed that the instructions were to establish
a military post on the north side of Portland
Canal, and that Colonel Scott reports that he
went to the north side of Portland Canal, and
that he searched for and found the most suitable
place for a station on Tongass Island, which is
thus identified as being on the north side of the
canal. The military post was accordingly established.
Again, in 1869, General Thomas was despatched
to the region, and on the 27th September, 1869,
reported as follows : —
" After touching at Victoria, Vancouver Island, for
coal, I proceeded direct to Alaska; reached Fort
Tongass 18th July. This post is on one of the small
islands of the Tongass group, at the southern end of
Alaska Archipelago, and is occupied by one company of
artillery. As it has been useful in checking illicit
trade with Tongass, Cape Fox, and other Indians,
and is on the boundary between Alaska and British
Columbia, I have not thought it wise to discontinue it
at present." Thus Tongass Island is identified as on the
boundary between Alaska and British Columbia.
Again, on the 15th September, 1898, the
Commissioner of Education reported to the Secre
tary of the Interior as follows : —
" In 1885 a school was opened at Fort Tongass, on
Tlekhonsiti Harbor, in about latitude 54° 45' north
and longitude 130° 45' west."
[769] C 2

U.S. App., p. 341.

10
The school was opened in the United States'
military barracks, which had been erected in 1867.
On the 15th September, 189S, the General
Agent of the Department of the Interior reported
to the Secretary of State on the subject of the
establishment of Mission Stations as follows : — U.S. App., p. 481.
"In 1885 I sent Mr. and Mrs. Lewis Paul as Tomgass extreme South-eastern Point
missionaries of the American Presbyterian Church to of Alaska.
Fort Tongass, on Tlekhonsiti Harbor, on the extreme
southeastern point of Alaska, where they remained for
several years."
Thus Tongass Island and Fort are again identi
fied as the extreme south-eastern point of Alaska.
The United States' Case quotes a Report of Davidson's Report.
Assistant Davidson, of tbe United States' Coast
Survey, dated the 30th November, 1867, in which
Mr. Davidson describes Portland Canal as an
extensive arm of Dixon's Sound, and. as having
its entrance between Point Wales and Point
Maskelyne, and as receiving Observatory Inlet at
Point Ramsden.
Mr. Davidson makes reference to Vancouver's
map and book as his authority.
But the British Case having already dealt with British Case,
this phase of the subject, it is not necessary here ft ?. ,
to repeat the facts which escaped Mr. Davidson's p. 139.
notice. It is submitted that his mistakes cannot
affect the conclusion.
It must be added that the extract given in the 'US. App., p. 312.
United States' Appendix does not seem an
adequate representation of Mr. Davidson's state
ments, which are open to serious comment, and
the full text of which is to be found in the II. of R. 40th
Message on the Acquisition of Russian America, e^Doc'no T?^
including Sumner's Speech, 1868. p- 265.
The United States' Case makes some miscel
laneous citations, to which a few words may be
devoted. De Mofra's " Exploration of the Oregon Terri- De Mofra's Work.
tory" (Paris, 1844), attempts some description of tj y. ^pp p 521 ~
the boundary. He says, at p. 148, "Cape Chacon,
or Point Wales," at the south-west extremity of
Prince of Wales' Archipelago, forms the south
boundary of Russian America. And he adds that
the line runs thence west to east "as far as the
coast inlet, where it meets the Portland Canal,
the right bank of which it follows,"
At p. 2,73 he says : —
" The dividing line begins at Cape Chacon, the
southern extremity of the large island of the Prince of
Wales Archipelago, in latitude 54° 4.0', and runs to th
east toward Portland Canal, which it ascends."

11

Findlay's Directory. U.S. App., p. 521.

lb., p. 522.

Cartography.

British Case,
p. 100.
App., p. 45.
U.S. Atlas.

U.S. Atlas, Nos. 7,
9, 12, 13, 14, 16,
17, 18, 24.

Secretary Bayard's Despatch. British App.,
p. 249.

It does not appear that this in any way advances
the position of the United States.
Findlay's "Directory for the Navigation of the
Pacific Ocean" (London, 1851) speaks of Port
land Canal as named from the noble family of
Bentinck (see Vancouver s work), and as diverging
from Point Ramsden, and refers to a principal
inlet and to Portland Canal as bearing thence
northerly and terminating 70 miles (Vancouver's
figure) from its entrance into Chatham Sound.
He speaks of " the inlet between Point Wales
and Point Ramsden," which, from his references
in describing Observatory Inlet, be treats as part
of the latter inlet, so bringing Observatory Inlet
to the Ocean between Point Maskelyne and
Point Wales.
He speaks of a channel running " parallel with
the direction of the main inlet " behind the islands
between Point Wales and Point Ramsden. It
is submitted that his account throws no light
upon the construction of the Treaty, and it will
be observed that he in no way supports the
United States' contention that the entrance to
Portland Canal is to be found between Point
Wales and Point Maskelyne, as he attributes all
this portion of the Channel to Observatory Inlet.
He gives no authority ; and it is submitted
that his account cannot affect the construction of
the Treaty.
On the subject of the cartography, reference is
made to what is already said in the British Case,
and also to the statement of the British Admiralty
in the Appendix.
It may be remarked, with regard to the various
maps reproduced in the Atlas of the United
States, that it will be found, on examination,
th^t the way in which the names are printed on
a large proportion of the earlier maps favours the
view that Observatory Inlet and Portland Canal
extend to the Ocean, each in its own channel, past
the branch which runs between Point Ramsden
and Pearse Island, and thus, so far, aids the
British Contention as to the entrance of Portland
Canal and Observatory Inlet respectively.
Mr. Secretary Bayard, in the despatch to
Mr. Phelps of the 20th November, 1885, com
municated to the British Foreign Secretary,
admits that —

" The water boundary line, from the southernmost
point of Prince of Wales Island to the fifty-sixth degree
of north latitude, is not found uniformly located on the
charts of different modern geographers."

12
It is submitted that, after all, the question must British Case-.
... p. 49
be governed by the considerations stated in the
British Case, and should be decided accordingly.

THIRD QUESTION.
The third question is —

" What course should the line take from
the point of commencement to the entrance
of Portland Channel?"
This question, of course, presupposes the deter
mination, by the answers to the first and second
questions, of the two points to be connected by
the line.
The British contention is that the line takes British Contention.
such a course as (saving Cape Chacon to Russia, „. . , „
the possessor of the rest of Prince of Wales p. 64.
Island) is the most direct between the two
points, The United States concludes "that the line ran United States' Contention.
thence " (from the point of commencement) " in 
an easterly direction to Portland Canal  " p-' 1^3
Of course it proposes an entrance to that Canal
between Wales and Compton Islands.
But obviously the course it proposes between
the two points is, like the British proposal, the
shortest line.
And it is to be observed that the course given
is in " an easterly direction." It is not " east,"
or " on the parallel of 54° 40'," but a line
(obviously direct) between the two points.
And to the same effect is the formal answer lb., p. 104.
suggested by the United States to the question :
" The United States requests the Tribunal to
answer and decide that the line from Cape Muzon
should be drawn in an easterly direction until it
intersects the center of Portland Channel at its
opening into Dixon Entrance."
It would thus appear that there is no diver- No difference of View as to Principle that
<? • i . ; i . r> j. Line should be direct between the two Points.
gence 01 view between the two Powers as to  uwuxv.ui,D.
the principle on which the line should be drawn
between the two points ; and that, given the
points, they agree that the connecting line should
be drawn as direct as may be.
And Great Britain requests that the decision of
the Tribunal should be in accordance with this
view, both as to the nature of the contentions of

13

U.S.. expressions as to Parallel 54° 400

Treatment in British Case.

British Case,
pp. 47, 65-68.
Summary of Arguments against Parallel.

United States' Introduction of Southern
Boundary in Treaty of 1824.

Territorial Claims
of United States.

the Parties, and as to the merits of the ques
tion. But it is proper to observe that there are
expressions in different parts of the United States'
Case which seem to indicate some variation of
intention, and some setting up of the parallel of
54° 40' as the course of the line.
This notion has been already, by anticipation,
dealt with briefly in the British Case, and its
treatment here will be supplementary.
It must be remembered that, the point of
commencement being the southernmost point of
Prince of Wales Island, no part of that island
could by possibility be cut by a line drawn thence
on a due west and east course ; that, accordingly,
had such a course been intended, there would
have been no sense in the provision for saving
the whole of the island to Russia, which pro
vision thus affords a negative indication.
It must be remembered, further, that the
starting-point is not on the parallel of 54° 40',
which parallel, therefore, must be attained (with
out any Treaty indications, or any reasonable
purpose) by a curve in the line, to the intent
that (still without any Treaty indications or any
reasonable purpose) the parallel may be followed
for an indefinite distance.
It must be remembered, lastly, that, in the
end, the line is to reach the entrance of Portland
Channel irrespective of the parallel; and that,
even supposing the parallel were to be for some
distance followed, yet, just as it is to be reached
at the beginning by a curve, it may be left at the
end by a curve, as may be needed, in order to
connect the two governing points.
Thus there seems no substance in this con
troversy. Its issue cannot affect the results on
the only material point, namely, the true entrance
of Portland Canal.
The United States seems to lay stress on the
circumstance that the Treaty of 1824 between
that Power and Russia states a limit at 54° 40'.
And not content with the introduction of all the
correspondence as to the Treaty to be interpreted,
the United States brings in nearly all the corre
spondence as to this Treaty of 1824.
Without entering into full details, it may
suffice to point out here that, apart from trading
and navigation rights set up, the real and serious
claims of the United States to territorial dominion
were substantially based on discovery, followed

14
by continued occupation ; that its claims of this U.S. App.,
nature related to tbe Columbia River region ; that iD.', pp. 74, yj.
the United States asserted the watersheds
of the Columbia and its affluents reached the
51st parallel; that it informed Great Britain
of its willingness to agree to that parallel
as the line of demarcation between the two
Powers, as indicating the points within which each
might establish and should limit its future settle
ments ; that it instructed its Ambassador, in case
Great Britain pressed for a lower line, to accept
the 49th parallel in lieu of the 51st as the limit ; ib., p 120-.
and that thus it did not claim any territorial U-S. Case, p. 22.
dominion over any of the territories north of the
51st parallel at furthest.
Obviously, its action in agreeing with Russia n>., p. 39.
on the parallel of 54° 40', and quickly concluding
its Treaty, was dictated by other considerations ;
and could not, even had there been concert in the
negotiations, have affected the construction of the
Treaty of 1825 ; but there was no such concert.
It is tolerably clear how this particular parallel
came to be inserted in the Treaty of 1824. To jD., p. 78.
the United States the precise line was a matter of
indifference, but Russia, which was in the middle
of her negotiations with Great Britain, having
expressed her willingness to accept the 55th
parallel, was bargaining with the latter Power for
the inclusion of the whole of Prince of Wales
Island, which would require at that point, but
there only, an extension to about 54° 40'. Great
Britain, not unwilling to concede the whole of
Prince of Wales Island, was yet insisting on a line
as to the other southern islands and the Continent,
very much higher. The issue of the negotiation
was quite uncertain.
And in that condition the United States, per- lb., p. 50.
haps not unwilling to strengthen tbe hands of
Russia in the negotiation by a term which cost
herself nothing, and anxious at the same time to
secure some participation in the trade, which was
her real object, agreed to 54° 40'.
It seems impossible to conclude from this that
tbe subsequent bargain between Russia and Inapplicability to Treaty of 1825.
Great Britain, the result of long-protracted, dis- 
tinct, and independent negotiations, based on '' p'
different considerations, dealing with the matter
on other lines, and couched in different language,
should be affected by the terms of tbe Treaty of
1824, to which, moreover, Great Britain was
not a party.

15
As to the negotiations between Russia and
Great Britain, these were, about the date of the
Treaty of 1824, actually suspended by the British
Ambassador, in consequence of differences on the
subject of the southern and eastern boundaries,
and the question was referred to London.
Examination of Argument of United States The United States' Case (carrying out the view
on their Quotation from Count Nesselrode. already objected to, that the terms of the Treaty
U.S. Case, p. 52. are to be gleaned from phrases used in the
course of the negotiations, which are to control
the meaning of the documents, as ultimately
settled) quotes a sentence in a despatch of Count
Nesselrode to Count Lieven of the 5th April,
1824, in which, recapitulating what had occurred,
he says : —
" We proposed to carry the southern frontier of our
domains to latitude 54° 40' and to make it abut upon
the continent at the Portland Canal, of which the
opening into the ocean is at the same latitude as [' a la
hauteur de'] Prince of Wales Island, and which has
its origin inland between 55° and 56° of latitude."
Ib ., p. 53. And the United States' Case avers that : —
" This statement locates definitely and beyond
controversy the line of demarcation between the
British and Russian possessions until it reaches the
mainland."
Ib., pk 54. The United States' Case, proceeding, uses these
words : —
" Mr. Canning, after conceding the southern bound
ary at 54° 40'  "
lb., p. 67. In a subsequent passage, the United States'
Case recurs to this part of the negotiation, and
repeats the extract already quoted from Count
Nesselrode's despatch. The * Case goes on to
say :—
" This dispatch was read by Mr. Canning, and he
authorized Sir Charles Bagot to agree to this portion
of the boundary without qualification. Russia had
completed a treaty with the United States by which
her southern boundary ran east and west along the
parallel of 54° 40'. This was the line of demarcation
that she insisted upon Great Britain accepting, and this
was the line that power did accept."
Now this despatch of Count Nesselrode's is
the statement of the proposal of one of the
Parties disagreed to by the other. Besides, it is
£769] D

16
brief and indefinite on tbe question now specially
under discussion. Its main purpose was to claim
Prince of Wales Island and a strip of the con
tinent opposite that island.
But the only question of any possible im
portance is, How was Count Nesselrode's state
ment dealt with ?
The view of the United States on this question U.S. App., p. 180.
is, it is submitted, erroneous. Mr. Canning's
communication to Count Lieven indicates qualifi
cations, is general in tone, and refers to the
instructions to be sent to the British Ambassador.
These were sent in the despatch of the 12th lb., p. 181.
July, 1824. by which Sir Charles Bagot was
authorized —
" To consent to include the south points of Prince of
Wales Island within the Russian frontiers, and to take
as the line of demarcation, a line drawn from the
southernmost point of Prince of Wales Island from
south to north through Portland Channel, till it strikes
the mainland in latitude 56  "
Mr. Canning inclosed the draft of a Convention Ib._, p. 182.
accordingly, describing the line in terms quoted p. 67.
in the British Case, which draft was presented to
the Russian negotiators.
This is the authentic exposition of the British
Counter-Proposal. In the British Case is also to
be found an extract from the Russian Contre-
Projet and a re'sume' of the subsequent negotia
tions. These documents speak for themselves. They lb., p. 67.
do not concede the southern boundary of 54° 40' ;
they do concede the southernmost point of
Prince of Wales Island and Portland Canal, and
a line connecting these two points, and extending
up the canal.
There was a subsequent suspension of tlie lb., p. 67.
negotiations on other points ; and upon their
renewal other drafts were submitted, and the
Treaty was eventually agreed on.
It is submitted to be quite impossible to inter
polate into the instrument, by virtue of anything
said in Count Nesselrode's quoted despatch, a
southern water boundary along the parallel of
54° 40'.
The United States, resorting, with a view to U.S. Argument from Objects of Russia.
the construction of the Treaty, to a consideration tj« n s c^
of the objects of Russia in the negotiation, points
out that the object was to prevent Settlements
interfering with the fur trade, and proceeds as
follows : —

17

True Views.

U.S. Case, p. 66.

Conclusion.

Ib., p. 68.

Ib., p. 70.

" To avoid this danger, it was necessary to obtain a
boundary south of the Archipelago and coast where
the Russian American Company carried on its opera
tions, to the north of which no foreign Settlements
should be established, either on the islands or main
land." But in prosecuting this object, Russia did not
require, and at any rate she did not obtain, a
water boundary along the parallel of 54° 40'.
The United States' Case more accurately
describes the Russian attitude when it says : — '¦'
" The Russian representatives insisted upon a line
beginning at the two southern points of Prince of
Wales Island, and running up Portland Canal. . . . ."

The report of Mr. Middleton as to Mr. S,
Canning's version of the Treaty has been already
dealt with in this Counter-Case.
Whatever weight it may have is clearly, in
respect of this issue, on the British side.
It is submitted that, under these circumstances,
so far as the parallel of 54° 40' is concerned, there
is not the slightest foundation for the statement
made in the United States' Case that —
"Russia secured by the treaty of 1825 complete
sovereignty over the islands north of 54° 40' and over
a strip of coast extending in a north-westerly direction
from that parallel, bounded on the east by a line which
followed up Portland Canal."
But the relative unimportance of this claim
of the United States is shown at page 70 of
their Case, where Tongass, which is, as Great
Britain claims, at the entrance of Portland Canal,
is described as " near the southern boundary line
of 54° 40'." That boundary-line cannot be intro
duced into the Treaty for the purpose of carrying
the entrance of Portland Canal to Observatory
Inlet ; nor, if it were so introduced, could it have
any such effect.

British Contention as to First Part.
British Case,
p>.68.

FOURTH QUESTION.
The fourth question is —
"to what point of 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 ? "
The British contention as to tlie first part is
that the point on the 56th parallel, to which the
[769] D 2

18
line should be drawn, is the point from which it
is possible to continue the line along the crest of
the mountains situate parallel to the coast, and
is, therefore, the point at which the 56th
parallel and the crest of the coast mountains
coincide ; and that, in case it should (contrary to British Case,
the British contention) be found that the coast
mountains are, at their point of intersection with
the 56th parallel, more than 10 leagues from the
coast, then the point must be such as answers
the language of the alternative provision in the
Treaty ; and must accordingly be not . more
(though it may be less) than 10 leagues from the
coast. The actual situation of the point on the ground
(which is necessarily dependent on the facts on
the ground, as to be found by the Tribunal) is
treated in connection with the answers to subse
quent questions as to the lisiere.
The British contention as to the second part is British Contention as to Second Part.
that the course to be followed is the most direct j}r:tjsk rjage
course between the head and the point of coinci- pp. 69, 70.
dence, and that a course due north to the parallel,
and thence along the parallel to that point, should
be rejected as less direct, and a course in the
general direction of the Canal to the parallel, and
thence as before, should, a fortiori, be rejected as
still less direct, and that, therefore, the first of the
three courses should be preferred.
The contention of the United States is that the United States' Contention.
line ran— U-S_ Case) p. 103.
"Northerly along the center of Portland Canal
until the line touched the mainland at the head of
Portland Canal," and proceeding " thence upon the
same course continued to the 56th parallel oi north
latitude ; thence north-westerly," &c.
The formal answer proposed by the United lb., p. 104.
States is that —
" The line should be drawn from the head of Port
land Channel, north-easterly along the same course on
which the said line touches the mainland at the head
of Portland Channel until it intersects the 56th
parallel of north latitude."
Obviously, the answers of the United States Effect of United States' Contention as to
discard the coast mountains as applicable to any Coast Mountains-
of the questions, and proceed on the basis that the
alternative and limitary provision is that which
applies throughout the whole extent of the lisiere.
It is submitted that the effect, on different British Submission thereon.
parts of the ground, of the limitary provision may

19

United States' reliance on Mr. Middleton's
version of Mr. Canning's version of Treaty.
U.S. Case, p. 62.
Ib., p. 63.

be different, depending on the conditions as to
mountains existent on the ground at or near the
part in question.
And this subject, therefore, has been in the
British Case reserved for the discussion of the
general questions of the boundary of the lisiere.
. As to the course of the line, the United States
relies, as has been already pointed out in other
aspects, on Mr. Middleton's report of Mr.
Canning's verbal description, of the third Article,
and avers that —

" The interpretation placed upon the article by its
negotiator shows clearly the course of the line intended
by the terms of the treaty, as well as the extent of the
litiere which it established. The notable features of
Mx. Canning's statement are, that the line from the head
of Portland Canal turns eastward to the range of
mountains  "
The United States' Case adds : —
" This explanation of the article fixing the boundary,
while it differs in language from the treaty, agrees
with it if it is interpreted naturally and with knowledge
Of the discussions which had preceded its signature,
and were explanatory of the protective character of
Russia's possessions on the continent."

British Contention thereon.

Pp. 3, 4.

British Case,
pp. €1-63.

This attempt to interpret a Treaty, the terms
of which were not communicated to Mr. Middleton,
by means of the report of the impression created
in- his mind by the verbal explanations given by
Mr. S. Canning, has been already dealt with in
the preliminary observations to this Counter- Case.
But it may be proper to point out its results in
the present aspect.
Indeed, the version by the United States of
Mr. Middleton's version of Mr. Canning's version
of the Treaty affords, as will presently appear, an
object lesson of the danger attendant on the
attempt to construe documents by these methods.
Mr. Middleton's statement says that the line
follows the strait called " Portland Passage," up
to the 56th degree. The natural import of that
sentence is that the canal extended to the 56th
degree ; but, in fact, the canal does not reach, and,
on the information before the Negotiators it
appeared to be about 15 miles short of, the
parallel. Mr., Middleton's statement may indeed be
applicable to the other water boundary-lines
suggested alternatively in the British Case ; but

20
it does not fit Portland Canal, either as it is in
fact, or as it was understood to be.
Mr. Middleton's statement proceeds to say that
the line then (that is, after having followed Port
land Canal up to the 56th degree) turns eastward
upon that latitude until it touches the highest
ridge of the chain of mountains lying contiguous
to, and nearly parallel with, the coast.
But it is perfectly obvious, on reference to the
only source of information, Vancouver's chart,
that this could not have been truly said by any-'
one acquainted with the Treaty, the map, or the
negotiations ; and the plain inference . is that
Mr. Middleton carried away from the interview a
mistaken impression.:
A moment's glance at the chart will show that
at the head of the Canal it was impossible to
touch, and therefore impossible to turn either
eastward or westward on, the parallel ; and that
a line produced in the direction of tbe Canal from
its head to the parallel would reach the parallel
at a point beyond all the mountains shown. A line
drawn eastward from this point would, therefore,
run straight inland, away from both mountains and
coast* and so render impossible of attainment the
declared aim, namely, " tbe mountains lying con
tiguous to, and nearly parallel to, the coast."
Mr. Middleton was thus palpably mistaken.
And be it remembered that it was recognized
by the Parties that the position of the mountains
had not been definitely ascertained, and that
alternative provision was made by the Treaty in
that regard.
Now, what is the version of the United' States United States' version of Mr. Middleton's
of Mr. Middleton's version of Mr. Canning's statement.
version ?
It is this : —
" The line from the head of Portland Canal turns U.S. Case, p. 63.
eastward to the range of mountains. "
This, last version assumes that the turn of the
line is from the head of Portland Canal ; it thus
seems to assume the coincidence of the head of the
Canal with the parallel ; it, however, ignores the
parallel altogether, both as a point to be reached
and as a line to be followed, and it propounds a
line which turns eastward from the head of the
Canal to the mountains.
It is submitted that, even if the Treaty be, as
applied to the facts, obscure, yet to construe it by British Conclusion.

21
these methods would be to interpret obscurum per
obscurius, and that the only true plan of construc-
P. 4. tipn is that which Mr. S. Canning himself stated
in the passage already quoted, to, recognize that
" the Articles depend for their force entirely on
the general acceptation of the terms in which they
are expressed."
British Case, Reference is made to the British Case for a
P- 68. summary of the arguments by which the British
conclusion is supported.

FIFTH AND SIXTH QUESTIONS
It is now proposed to deal with questions five
and six together, and to examine the contentions
of the United States' Case in the order in which
they are presented so far as possible. These
questions are as follows : —
Fifth question —
"in extending the line of demarcation
northward from said point on the parallel
of the 56th degree of north latitude, fol
lowing the crest of the mountains situated
parallel to the coast until its intersection
with the 141st degree of longitude west of
Greenwich, subject to the condition that if
SUCH line should anywhere exceed the dis
tance of 10 marine leagues from the Ocean,
then the boundary between the British and
the Russian Territory should be formed by
a line parallel to the sinuosities of the
coast and distant therefrom not more than
10 marine leagues, was it the intention
and meaning of said convention of 1825
that there should remain in the exclusive
possession of russsia a continuous fringe,
or strip, of coast on the mainland, not
exceeding 10 marine leagues in width
separating the british possessions from the
bays, ports, inlets, havens, and waters of
the Ocean, and extending from the said
point on the 56th degree of latitude north
to a point where such line of demarcation
should intersect the 141st degree of longi
tude west oe the meridian of greenwich ? "

22
Sixth question— '
" IF THE FOREGOING QUESTION SHOULD BE
ANSWERED IN THE NEGATIVE, AND IN THE EVENT
OF THE SUMMIT OF SUCH MOUNTAINS PROVING TO
BE IN PLACES MORE THAN 10 MARINE LEAGUES
FROM THE COAST, SHOULD THE WIDTH OF THE
lisiere which was to belong to Russia be
measured (l) from the mainland coast of
the Ocean, strictly so called, along a line
perpendicular thereto, or (2) was it the
intention and meaning of the said con
vention that where the mainland coast is
indented by deep inlets forming part of the
territorial waters of russia, teie width of
THE lisiere WAS TO BE MEASURED (a) FROM THE
line of the general direction of the main
land coast, or (b) from the line separating
the waters of the ocean from the territorial
waters of Russia, or (c) from the heads of
the aforesaid inlets?"

The paramount object which Russia had in view The "Barrier" theory.
was, according to the contention of the United
States, " to erect a territorial ' barrier ' between U.S. Case, p. 30.
her coasts and the inland possessions of Great
Britain ; " and again it is stated that the purpose
of establishing the lisiere upon the continent was lb., p. -52
" to create an unbroken barrier along the entire
water front of the continent."
To establish that the general purpose of the
Parties was as above stated, the United States'
Case passes in review, first, the negotiations
between the United States and Russia, and then
those between Great Britain and Russia.
In examining the negotiations first above
mentioned the compilers of the Case for the
United States have laboured to show that the
question between that Power and Russia involved
territorial sovereignty, and that the Convention
of 1824 was a recognition on the part of the
United States of the sovereignty of Russia over
the territory north of latitude 54° 40'. On pp.
13 and 14 of tbe United States' Case it is observed lb., pp. 13-14.
that, in order to support " the right of the inde
pendent American fur traders to the unrestricted
intercourse which they then enjoyed with the
natives of the shores claimed by Russia," it was
necessary for Mr. Adams " to deny the sovereignty
of Russia over those regions." Again, on p. 22,

23
U.S. Case, p. 22. it is stated to be " evident that the opposition of
the United States to the territorial claims of
Russia was because the right to restrict trade and
to exercise jurisdiction over the neighbouring seas
depended solely upon territorial dominion."
The bearing of this conclusion upon the
questions now at issue is not very clearly enun
ciated in the United States' Case. It is conceived,
however, that the suggestion intended is that
Russia having succeeded in securing as against
the United States, whose traders approached by
sea, undisputed dominion over all the territory
north of latitude 54° 40', to which access was
gained from the sea, must be assumed in her
subsequent arrangement with Great Britain to
have insisted similarly on an inland boundary
which gave to that Power, whose trade was
advancing from tbe interior, no access to the sea.
Coming to the negotiations between Great
Britain and Russia, the Case for the United States,
in the first instance, lays hold of an expression
reported to have been used before the negotiations
lb., p. 29. begun by Count de Lambert to M. Poletica, in
which the word "barrier" occurs. This expres
sion is presented to the Tribunal as formulating
the Russian conception of what her policy
demanded, and the subsequent negotiations are
examined with a view to showing that she adhered
to it.
Position of Great Britain with relation to It will be convenient to state at once the
the « Barrier" theory. position taken by Great Britain with regard to
the contention above referred to.
Assuming that the Russian purpose was a
" barrier," that such purpose is legitimately
proved, and that it can be made out that it was
adhered to by Russia and recognized by Great
Britain, the point is what sort of a " barrier " it
was. The exigencies of the case from the United
States' point of view are not satisfied by establish
ing a barrier in the sense of an intervening strip
of territory in which Great Britain could not
settle, trade, or fish. Such a strip would be
provided if there was reserved to Russia a belt of
territory running along the land and crossing the
mouths of inlets, being the territorial waters of
the Power owning the shore on either side. But
the existence of .such a strip would be consistent
with the possibility that the territorial waters of
inlets or estuaries might, if such inlets were long
enough, penetrate through such strip and have
their termination beyond in British territory. If
[769] E

24
that were so in the case of any inlet, the com
mercial vessels of Great Britain would, upon the
general principles of international law, have the
right of innocent passage over the territorial
waters of Russia forming part of her strip of
territory and situate in the mouth of the inlet,
but they would have no right to use such waters
for trading or fishing, and the belt of territorial
separation of the British possessions from the
coast facing the Russian islands would be
complete. Great Britain affirms that the establishment of
the lisiere had nothing to do with the use of the
sea. She submits that the passages from the
negotiations cited in the United States' Case do
not show that it did, and she will hereafter refer
to passages which show that it did not.

In order to make clear the British contention Territorial Waters in International Law.
in this respect, it is proposed to state the Inter
national Law upon the subject of territorial
waters. The subject was touched upon at pp. 78
and 79 of the British Case; but, in view of the
fact that in the Case for the United States it
seems to be assumed that the establishment of
a belt of territory would necessarily involve
drawing the line round the heads of the inlets, it
is thought necessary now to deal with the subject
fu%- _  '
In the first place it is undoubted law, which it
is unnecessary to support by detailed argument,
that a State has territorial sovereignty over a belt
of sea, usually taken as 3 miles in width, adjoining
its coasts. The waters of such belt are, however,
subject to the right of innocent passage by the
commercial vessels of other nations.
There is further a consensus of opinion among
writers on International Law that every State
has territorial sovereignty over certain arms of
the sea included within its territory by headlands
or promontories. But there is not a universal
agreement as to the limits of size and shape
within which arms of the sea may be treated as
territorial waters. It is generally considered that
the crucial measurement is the width at the
entrance of the inlet ; but the depth inland is not
unimportant, because a claim that the waters of
an inlet of some size are territorial is more readily
admitted if the length of its shore-line is con-

25
siderable in proportion to the breadth of the
opening intra fauces terra*
Maine's " Inter- The reason why, in spite of the general doctrine
national Law," ,,.¦,,
p. 39. of mare hoerum, gulfs and bays up to a certain
Grotius,, "de Jure size are treated as territorial waters, is, of
Bk. ii, c. 3 s.' 13 course, because the State which owns both head-
§ 2- lands is in fact able to control the entrance. It
c.62. °m " anS' *s a reason OI> the same kind which explains and
Systema dei justifies territorial jurisdiction over a belt of water
Prmcipii del Dir. adjoining even unindented coasts. " Videtur
Mar. i, 67-68, ...
referred to in Sir autem imperium in maris portionem . . . . ac-
jii"dgmenTine"The (lu*ri ¦ • • ¦ ratione territorii, quatenus ex terra
Queen v. Keyn," cogi possunt, qui in proxima maris parte ver-
p, 73. ' ' santur," says Grotius. Bynkershoek enshrined
this principle in tbe famous dictum " Potestas
terrae finitur ubi finitur armorum vis," or, as he
says elsewhere, " quousque tormenta exploduntur."
When Azuni wrote in 1796, he complained that
the width of this 'belt of territorial water was still
a C. Eob. 385. undecided; But in giving judgment in " The
Anna," in 1805, Lord Stowell said : " Since the
introduction of fire-arms that distance has been
usually recognized to be 3 miles from the shore."
During the last 100 years the 3-mile limit has
been repeatedly affirmed, t though in view of the
greatly increased range of modern ordnance it has
been urged that the limit should be yet further
extended. A minimum of 3 miles from low-water mark
being conceded as territorial water, even where
tbe coast-line is not broken by bays, it follows
that an opening which is not more than 6 miles
across is necessarily within the territorial limits.
Some authorities contend that if the opening is
more than twice the width of the ordinary belt of
territorial waters, the outside line of that belt
must follow the indentations and so may come
within the opening. But on the other hand many
authorities refuse to treat inlets as part of the open
sea, merely because the distance from headland to
headland exceeds 6 miles, and recognizes that a
State which controls an entrance from both sides
can effectively exert its authority over more than
* Cf. Grotius, " De Jure Belli et Pacis," lib. ii, cap. iii, § 8,
who admits " mare occupari potuisse abeo, qui terras ad latus
utrumque possideat  dummodo non ita magna sit pars
maris, ut non cum terris comparata portio ^sarum videri
possit." f The earliest mention of 3 miles as the limit seems to
occur in Jefferson's despatch to the British Minister dated the
8th November, 1793, announcing its adoption by the United
States.
[769] E 2

twice the marine league which is the limit of its
dominion ocean wards.
Thus Chancellor Kent wrote : — Kent's
" Commentary on
" It is difficult to draw any precise or determinate j° er,^ '^am
conclusion, amidst the variety of opinions, as to the 1877), p. 100.
distance to which a State may lawfully extend its
exclusive dominion over the sea adjoining its territories
and beyond those portions of the sea which are em
braced by harbours, gulfs, bays, and estuaries, and over
which its jurisdiction unquestionably extends.* All
that can- be reasonably asserted is, that the dominion of
the Sovereign of the shore over the contiguous sea
extends as far as is requisite for his safety and for some
lawful end  The executive authority [of the p. 101.
United States] in 1793 considered the whole of Delaware
Bay to be within its territorial jurisdiction ; resting its
claims upon those authorities which admit that gulfs,
channels, and arms of the sea belong to the people with
whose lands they are encompassed ; and it was intimated
that the law of nations would justify the United States
in attaching to their coasts an extent into the sea
beyond the reach of cannon shot."
Wheaton says : — Wheaton's
J " Elements " (ed.
" The maritime territory of every State extends to g ^j 255
the ports, harbours, bays, mouths of rivers, and ad
jacent parts of the sea inclosed by headlands belonging
to the same State. The general usage of nations
superadds to this extent of territorial jurisdiction a
distance of a marine league, or as far as a cannon shot
will reach from the shore along all the coasts of the
State. Within these limits its right of property and
territorial jurisdiction are absolute, and exclude those
of every other nation."
Halleck (ed. Baker, 1878), i, 134, uses almost
identical language in affirming a State's right of
property to inlets inclosed between headlands.
The views of Kent and Wheaton are quite con
sistent with, and are really founded upon, the
opinions of earlier European writers. Thus
Vattel had written : —
" Tout ce que nous avons dit des parties de la mer yafte] « pro;+ fies
voisines des cotes " [i.e., that they " sont comprises dans Gens," livre i,
son territoire " (§ 288 )] " se dit plus particulierement et a j^ap- xxiri,
plus forte raison des rades, des baies et des ddtroits,
comme plus capables encore d'etre occupes, et plus
importants a la surete du pays. Mais je parle des baies
et d^troits «le peu d'etendue, et non de ces grands
espaces de mer auxquels on donne quelquefois ces
* Referring to Azuni's "Maritime Law of Europe," i, 206 ;
Wheaton's "Elements," i, pt. 2, ch. 4, § 6 -f Marten's " Precis
du Droit des Gens," § 31.

27

noms, tels que la Baie de Hudson et le Detroit de
Magellen, sur lesquels l'empire ne saurait s'etendre, et
moins encore la propri^teO Une baie dont on peut
defendre l'entree peut §tre occupee et soumise aux lois
du Souverain ; il importe qu'elle le soit, puisque le pays
pourrait etre beaucoup plus ais^ment insult^ en cet
endroit que sur les c6tes ouvertes aux vents et a
l'impdtuosite des flots."

Hautefeuille's " Droits des
Nations Neutres,
p. 240.

Hautefeuille says : —
" Les c6tes de la mer ne presentent pas une|ligne
droite et reguliere; elles sont, au contraire, presque,-,
toujours coupees de baies, de caps, etc. ; si le domaine
maritime devait toujours e"tre mesure de chacun des
points du rivage, il en resulterait de graves inconveniens.
Aussi est-on convenu, dans l'usage, de tirer une ligne
Active d'un promontoire a l'autre, et prendre cette ligne
pour point de depart de la portee du canon. Ce mode,
adopte par presque tous les peuples, ne s'applique
qu'aux petites baies, et non aux golfes d'une grande
etendue, comme le Golfe de G-ascogue, comme celui de
Lyon, qui sont en realite de grandes parties de mer,
completement ouvertes, et dont il est impossible de nier
l'assimilation complete avec la haute mer."

Bluntschli's
" Droit Inter
national Codifie,
§'309, cf. § 302.

Puffendorf, " Law
of Nature and of
Nations," Bk. iv,
c. 5, § 8, as
by Twiss.

Similarly Bluntschli recognizes " gulfs," within
certain limits of size, as forming a division of
maritime territory distinct from the ordinary belt
of territorial water.
Puffendorf, to the same effect, says " gulfs and
channels or arms of the sea are, according to the
bv5Tw!saS quoted regular course, supposed to belong to the people
with whose lands they are encompassed."
Even those authorities who, at first sight,
appear to treat the territoriality of inlets as
depending merely on the 3 -mile -limit rule,
recognize that a State may sometimes so com
mand the entrance between two promontories,
though these are more than 6 miles apart, as to
justify a claim to the whole of the inclosed water.
Thus Ortolan says : —
Ortolan " ®n ^°^ ranger sur ^a meme ligne que les rades et
" Diplomatie de la les ports les golfes et les baies et tous les enfoncements

Mer," tome i,
livre ii, ch. viii.

conn us sous d'autres denominations, lorsque ces enfonce
ments, formes par les terres d'un me^me £tat, ne
d^passent pas en largeur la double portee du canon, ou
lorsque l'entree peut en 6tre gouvernee par l'artillerie,
ou qu'elle est def endue naturellement par les iles, par
des bancs ou par des roches."

Kltiber, " Droit
des Gens
Modernes de
I'Europe," § 130.

Similarly Kliiber treats as territorial " les
parties de l'oce'an qui s'e"tendent dans le terri-
toire continental de 1'lStat, si elles peuvent 6tre
dominees par le canon des deux bords, ou que

28
l'entre'e seulement puisse en etre deTendue aux
vaisseaux." And he instances the Zuyder Zee.
Finally, a very recent American writer, Taylor, Taylor's
-, r i , r c j.i • j? "International
may be referred to for a summary of the views oi pUDiic Law,"
text-writers. He adds : § 229, p. 278,
published 1902.
" Germany and France are inclined to limit their
claims to such bays, gulfs, and recesses as are not
more than 10 miles wide at their entrance, measured in
a straight line from headland to headland. The latter
claims, however, the whole of the oyster-beds in the
Bay of Cancale, the entrance to which is 17 miles wide,
the cultivation of such beds by local French fishermen
making the case exceptional."
Turning from the opinions of writers to the
controversies of diplomatists, it is noteworthy
that the United States have more than once
argued for the territoriality of the gulfs of much
greater width than twice the 3-mile limit would
cover. In 1793 the French frigate "1'Embuscade" See opinion of
seized the British ship " Grange " in Delaware General "dated
Bay, and the United States demanded and May 14' 1793,
. „ and letter of U.S.
secured the release ot the latter on the ground Secretary of State
that the capture was a violation of neutral waters. »°-. ¦J.Freiic^
r _ Minister, of May
Similarly, Chesapeake Bay has been consistently 15, 1793, printed
claimed by tbe United States as a part of their gtate papers "
territorial waters. Both these bays are more (1789-1794),
, n ., . , ±1 . , vol. i, pp. 72-76.
than 10 miles wide at their entrance.
There is nothing in the long controversy over
British-American fisheries and the interpreta
tion of the Treaties of 1783 and 1818 which
throws any light on the international status,
apart from special Conventions, of arms of
the sea. In 1853 the Halifax Fisheries Com
mission decided that the Bay of Fundy (65 to
75 miles wide and 130 to 140 miles long) was
not a "bay" within the meaning of the Treaties.
In any case, the headlands doctrine could hardly
be applied to it, for one of its headlands was
British and the other American. In giving his
decision the Umpire (Mr. Joshua Bates) said : —
" This doctrine of the headlands is new, and has Quoted in the
received a proper limit in the Convention between proceedings before
France and Great Britain of the 2nd August, 1839, in Fisheries Com-
which ' it is agreed that the distance of 3 miles, fixed mission, 1877,
as the general limit for the exclusive right of fishery ^'
upon the coasts of the two countries shall, with respect
to bays, the mouths of which do not exceed 10 miles in
width, be measured from a straight line drawn from
headland to headland.' "

29

L.R., 2 Ex.,
Div. 63.

Per Sir K.
Phillimore at
p. 71.

There is very little judicial authority bearing
on this question. In Regina v. Keyn, though the
3-mile limit was examined and discussed from
every point of view, the headlands question was
not considered.
" The question as to dominion over portions of the
seas inclosed within headlands or contiguous shores,
such as the King's chambers, is not now under con
sideration."

41 and 42 Vict.,
c. 73.

Bell's Crown
Cases, p. 72
(1859).

Neither is the headlands question affected by
"The Territorial Waters Jurisdiction Act, 1878,"
for both the preamble and the enacting clauses
refer solely to the " open sea."
In Cunningham's case, where the question was
whether an indictment "would lie at the Glamor
ganshire Assizes for an offence committed below
low-water mark in the Penarth Roads, the Court
said of the Bristol Channel :
" The whole of this inland sea between the counties
of Somerset and Glamorgan is to be considered as
within the counties by the shores of which its several
parts are respectively bounded."

" Direct United The only reported English case in which the
States Cable Co. v. . ,. , .¦•¦¦¦. .• i
Anglo-American headlands question m its international aspect was
o^n CaaA really discussed came before the Privy Council
in 1877 on appeal from the Supreme Court of
Newfoundland. It was there decided that Con-,
ception Bay, on the east coast of Newfoundland,
was part of the local territory, although the
entrance to the bay is more than 20 miles wide.
Lord Blackburn, in delivering the Judgment,
discusses both the English common law and the
law of nations as to territorial dominion over such
a bay. As regards the latter, be says : —
Loc. cit., p. 419. '' We find an universal agreement that harbours,
estuaries, and bays land-locked belong to the territory
of the nation which possesses the shores round them,
but no agreement as to what is the rule to determine
what is ' bay ' for this purpose. It seems generally
agreed that where the configuration and dimensions of
the bay are such as to show that the nation occupying
the adjoining coasts also occupies the bay it is part
of the territory ; and with this idea most of the writers
on the subject refer to defensibility from the shore as
the test ot occupation ; some suggesting, therefore, a
width of one cannon shot from each shore, or 6 miles ;
some an arbitrary distance of 10 miles."
Lord Blackburn then goes on to say that
Conception Bay would not satisfy any of these

30
tests of width, but then neither would the Bristol
Channel or the American bays claimed in 1793 or
referred to by Chancellor Kent. But it became
unnecessary to lay down a general rule, because
Lord Blackburn held that the territoriality of Loc. dt., p. 420.
Conception Bay was established by prescription
and acquiescence. Hence it is still the case that
the question " what are the rules as to dimen
sions and configuration which, apart from other
considerations, would lead to the conclusion that
a bay is or is not a part of the territory of the
State possessing the adjoining coasts . . „ . has
never .... been made the ground of any judicial
determination." It is submitted that the result of the authorities
is as follows : —
1. The precise limits within which international
law regards bays as territorial waters have never
been determined.
2. There is much authority for the opinion that
a bay is not necessarily part of the high seas
because its opening is wider than twice the
breadth of the ordinary belt of territorial water,
and that the territorial dominion over the larger
gulfs must be settled by a consideration of each
individual case. The possession of islands block
ing or guarding the inlet, the prominence of the
headlands, and the actual exercise of national
authority over the waters claimed, are evidence
going to justify the claim.
3. If the size and configuration of an opening
is such that the line may rightly be drawn from
headland to headland, the belt of territorial water
is to be measured from the line outwards.
It is to be remarked that the Anglo-American q~ algo ,
Convention .of 1818 provided that the United Anglo-French
States renounced all claim to take, dry, or cure 1839.
fish "on or within 3 marine miles of any of the
coasts, bays, creeks, or harbours " of certain parts
of British territory.
The provisions of the North Sea Convention, Br Qase 7g
which adopts the same principle, have been re
ferred to in the British Case.
The legislature of the State of Massachusetts
has also adopted it, by enacting as follows : —
" The territorial limits of the Commonwealth extend par^ 1 jjt j
one marine league from its sea-shore at low water Cap. 1, Sec. 1, of
mark. Where an inlet or arm of the sea does not ^j^86* Uws
exceed two marine leagues in width between its head
lands, a straight line drawn from one headland to the
other is equivalent to the shore line."

31
The application of these principles of inter
national law in the present controversy must not
be misunderstood. It is not contended that the
words "coast" and "Ocean" in the Convention of
1825 refer to the outside line of territorial waters.
The zone of territorial waters along a coast is
ocean, and is part of the highway of nations. It
is territory for the purposes of uses other than
that of a highway ; for instance, for the purposes
of fishing and of belligerent operations.
The use made by Great Britain of the doctrine
relating to gulfs and arms of the sea is twofold.
In the first place, it appears that in measuring
the zone of territorial water fronting the coast
of the ocean, the line of coast to be measured from
is taken across the entrances of narrow inlets,
which are treated therefore as not breaking that
fine. This throws light on the meaning which
the word coast should bear in this Treaty.
In the second place, Great Britain's contention
is that the lisiere was not established with
reference to and was not intended to affect, either
one way or the other, any marine rights. It was
intended to interpose only a strip of "territory"
free from British trade, fishery, or settlement.
If, therefore, the waters between the headlands of
the inlets are " territory," the strip of territory is
not broken by being carried across such inlets.
In addition, Great Britain desires to make it
clear that her proposition is that the territorial
character of parts of the sea does not affect the
right of passage to places not in the territory of
the Power to which these parts of the sea belong.
The zone of territorial waters on the open ocean
is part of the highway of nations. So are straits,
or the mouths of inlets, if they lead to other
waters not the territory of the Power owning
their shores.
Hall's International " In all cases," writes Mr. Hall, " in which territorial
Law (4th edition), waters are so placed that passage over them is either
p. 164. r . ,/., ...
necessary or convenient to the navigation oi open seas,
as in that of marginal waters, or of an appropriated
strait connecting unappropriated waters, they are
subject to a right of innocent use by all mankind for
the purpose of commercial navigation. The general
consent of nations, which was seen to be wanting to
the alleged right of navigation of rivers, may fairly be
said to have been given to that of the sea."
Great Britain's contention, therefore, is that
assuming it was the purpose and effect of the
[769] F

i

32

_.Treaty .to.give to^Ru^si^Ta -beltpf " territory/'' it
dqesnpjj folio wtfrat sqch bplt might iipt be tjravpifsgd
by inlets ;; and, further,, that the onrissiontp insert^, a
-^provision for free ingress, ,$nd [egress ^hrougj^the
mouths of such .inlets, as on; the British contentiop
joaight, penetrate through] the, lisiere, r while suph
djberty .is exprpssly reserved in, the .case of rivers,
does not support the,cpnclusionthat; Great Britain
v^_a$ regarded^as in(nq:eyent';to; be entitled tp any
territory on^any^sueji in])etlS,,[|.But) I^us^ia's.terrti-
.^orjal, rightfgayej ^er-jthe^ppiw^r tp, see that they
were pnly r use4_ fpr; ;this . L purpose , >and to preve ntj
|W?fling?.^ding,%hi^g? or smuggling. 3[ij nj
58J300 -:m\1 ^flbnoTl za3&y/ IfirjOjhial 'io snos odi
rnoAsIbm'aJbeeadyfbeeflstaled, the conclusion whichi, The Negotiations and Treaty between the
johthe Oaseuofithe-Urrited States, it is .sought United Statee and Ruesia'
i&;\ draw! £m>m :¦ .the? Bne'goti-ati:ons^;betwe'en 0 that
•HRower andilifoissiadandethfei Treaty which resulted
therefrom J -is Ofbat :the lUnit'ed c States: recognized
JtheffsoyereigntyjofHRussia^eyerjiiihei coasts -north of
latitude. .54j° 40'. ;, rfon, tir-v srOc.:^ s.0: j&di ei
'^:;; Assuming this -to be: so,, it is, in.1 the first place;;
to-, bei observed that , no, ^argument ean be jda?awni
frpTOlihatT cir&umjS'liagice affecting: the construction;
o&fessiiiteeqiuent-'Convention with Great Britain.;
'io Iii the negotiations-/ bet ween the, United States'
ajid Russia there; was.no question of any boundary
excepte ai lines of- tlatitude .upon the coast./jd An
interior; boundary, toO beOdrawn. parallelbto :fhe
eoastvwas not discussed, nor could the effect of
ariy such , boundary, with , reference qto .the' head-'
waters': of. ;tha j inlets, have- been -in any way in:
contemplation .: 'i After, the- conclusion -of the Coni-;
vention , with-jthe , United .^States, '. Ru ssia remained
perfectly free to agree with Great : Britain upon;
an. inland boundary running, across. the inlets, i to
¦a, It. is now//pr©p©sed to go further and show from-
the negotiations and the Treaty that they con1-"
tain nothing which indicates an a priori impro
bability (forthat is all that is or can be attempted IjsaohameJnl g'lkH
tod be deduced from them) that - Russia would' ^ j „
make such an' arrangement with 'Great Britain.' a',n
It 'may be conceded that in ^effect, though it
was not expressed, the Convention of 1824 secured
tp Russia as between that Power and the United
States .the sovereignty over the. coast norths pf,
latitude 54° 400 Russia acquired as Against, the;
United States exclusive liberty to ¦<¦ settle o that '
coast. There is nothing, however, to show that
she acquired^ or- 1 desired to acquire in> irespeet' of
the seas adjoining any further right than such -as
\ [69?]

is a'finexed by ihterilationkHaw to the sovereignty
^et'the land, r'br thaVsW obtained dr1' desired tlj
obtain" a'fiy- power1' to limit'' their" iise: fer^the1
ordinary "purriosfe's r of ' innoc'ent navigation:' 1 Oh
... the contrary, there is , much to suggest that,
whether it was -realized, by her negotiators or not^
Russia, was regarded bj ^e^tjnited, Spates. q$
gubmittifng to ; a, material modification off the, tisual
rights b£ sovereignity t by rperanittingi ik-7d.$ntimiofc
only of navigation^ Tatit?:&£ navigation7 4br rthe pur^
pose 6f 'fishery, £-aiid :for: the 'purp'Ose" of- ^ocal
Mdmg on all -jiartk of 'the' blasts as^ned 'to'fhef
while they remained unseMed,atSat'.isV withoul
tr/;;:;, f; .-~V'l ¦.-! Intent* 3* :jr,lj.-.-rV-r,i j ¦,,•;:¦ _'S f, .i.ujrv
tiussian establishments. , • , . , . , y
^/Ihe contention, pf the Uuitpol ^ta|ps jw^s, ,$fo%%
until there was settlement Russia had not the
EJgfrt to. .exclude the Ujnited ^States' tjrad^ifypm
tjlje; poagt. ?i Thjs position,;; it will: jb%}sh$f$afo the
United States regarded 0a^ Porifirmje^gbyiithegQpno
vep^iqn ,of % 824, , ,and fthg , express pjpv^jp^siof
AsEJ,i$.6; [ IjV7 , giving'' reciprocal ' access. , for t trade , gndj
fishery to ..internal.- territorial waters. .fpr jteix.ye^ra
conferred- a special privilege in e&tpusipfi, of th^r
general privileges ;conferred by Article Jf, iscash ; 38
1, It, is now prpjosgd ^qop-X^inp-jthe'^gqfetigng
to,, show that 'this i$'SQ> • oici J'0<--\H -«n5no' '» bnr,
U.S. App. p. 47 c, In the despatch; of Mr. Adanis to, May Middleton;
of th e 22nd July, ,-l#,2 3, it was, + stated ; that :th&
T^njted .States i righf of navigation., a^dipf ii^]»kigj
was, perfect^ and,;had^been; in jqpnstant.Oe^pr,^^
from the earliest times after -the 'peace j of 178&
throughout, fhe whole of the Southern j; Qcgafljo
subject only to the ordinary exceptions, ftiid p£clu-;
sipjrs of the territorial jurisdictions, \whipb. s.9l£ar
as Russian,] rights, were .concerned were- -confined!
to certain islands north of the 55th degree of
.3d .q ..^latitude, and ^ hM'n^*gxistenCg''^n the continent 'bf
America. a1-A fte'r * exam ining ' the 'correspondence' 1
which' had' passed, t:Mi\ ;9Adams' states,3 as -r 'the'
correct view of the "Russian Charter of 1799, that
the. TEmperor. Paul, had g ranted r to .the .Russian -r
American Company certain exclusive,, privileges of.
cpxpnaerpe— exclusive with j reference, to other:
Russian ^subjects ; ; butOfchat cRussiafl had never:
before -asserted a right t)f sovereignty Over any
part of the North : Anieriean continent* r and in
1799 the people of the United States had been for
at least twelve year& in Constant and Uninter
rupted enjoyment of ar profitable trade with the^
natives of that very coast of which the Ukase of
r c -i| - IT
the Emperor PanPcduldi not deprive them: Mr.
[769] F 2

34
Adams was, however, ready to settle the territorial
claim provided trade access was not prevented on
parts of the coast where there were no settle
ments. He says in the same despatch —
" With regard to the territorial claim, separate from tj.S_ App., p. 51.
the right of traffic with the natives and from any system
of colonial exclusions, we are willing to agree to the
boundary line within which the Emperor Paul had
granted exclusive privileges to the Russian-American
Company, that is to say, latitude 55°.
" If the Russian Government apprehend serious incon
venience from the illicit traffic of foreigners with their
settlements on the northwest coast, it may be effectually
guarded against by stipulations similar to those, a draft
of which is herewith subjoined, and to which you are
authorized, on the part of the United States, to agree."
Articles I and II of the draft inclosed were
practically in the same form as Articles I and II
of the Convention as finally agreed.
Article III laid down the limit of the future
right of settlement at latitude 5 5°. The illicit trade
guarded against by Article II was, as shown by
the words of this draft, illicit trade in the Russian
Settlements. The words " with the Russian
Settlements" were changed in the first Projet
and Contre- Projet into "with their respective
Settlements," and disappeared altogether from the
Article in its later forms, obviously because the
Settlements are referred to almost immediately
afterwards in the same sentence. This phrase
was not the subject of any discussion, and it is
elear that no alteration of meaning was intended
by the change.
Mr. Adams' contemporaneous despatch to Mr.
Rush puts forward exactly the same view —
" The • right of carrying on trade with the natives lb., p. 56.
throughout the northwest coast they" [the United
States] " can not renounce. With the Russian settle
ments at Kodiac, or at New Archangel, they may
fairly claim the advantage of a free trade, having so
long enjoyed it unmolested, and because it has been
and would continue to be as advantageous at least to
those settlements as to them. But they will not contest
the right of Russia to prohibit the traffic, as strictly
confined to the Russian settlement itself, and not
extending to the original natives of the coast."
Mr. Rush entirely appreciated the contention
of his Government, and in a despatch of the
19th December, 1823, reported that he had
explained to Mr. Canning that in fixing upon

35
latitude 55° as the southern limit of Russia, it
was not the intention of the United States to
deprive themselves of the right of traffic with the
natives above it, and still less to concede to
Russia any system of colonial exclusion above it.
In a subsequent despatch of the 19th January,
1824, he reported that he understood Great
Britain would claim to a point northwards above
55° and southwards as low down as 49°, and that
she would be chiefly tenacious of the right which
she would allege to settle or colonize after her
own plans, then or in future, all such parts of that
coast, outside of the admitted boundaries of other
nations, as she could make good her title to.
U.S. App., On the 9th February, 1824, Mr. Middleton duly
submitted to the Russian Government the draft
forwarded to him by Mr, Adams, and, on the
20th February, received a Contre - Projet. In
this Contre - Projet, Articles II and III ran as
follows : —
lb., p. 83. " Article 2. With the view of preventing the rights
of navigation and of fishing, exercised upon the great
ocean by the citizens and subjects of the high con
tracting powers, from becoming the pretext for an
illicit trade with their respective establishments, it is
agreed that the citizens of the United States shall not
resort to any part of the coast already occupied by
Russian establishments, or belonging to Uwssia, from the
line of demarkation pointed out in the article below,
without the permission of the governor or commander
of said establishments; and that, reciprocally, the
subjects of Russia shall not resort, without permission,
to any establishment of the United States upon the
Northwest Coast, from the same line of demarkation.
"Article 3. It is, moreover, agreed that, in the
respective possessions of the two high powers on the
Northwest Coast ®f America, or in any of the adjacent
islands, there shall not be formed by the citizens of the
United States, or under the authority of the said States,
any establishment to the north of 54° 40' of north
latitude : and that, in the same manner, there shall be
none formed by Russian subjects, or under, the authority
of Russia, to the south of the same parallel."
Mr. Middleton at once observed that the inser
tion in the second Article was utterly inadmissible,
as repugnant to the stipulations of the former
lb p. 78. Article. Accordingly, at a third Conference, on
the 23rd February, 1824, he insisted on restoring
his own phraseology, explaining to Count Nessel
rode that the United States could not admit for
Russia or claim for themselves " possessions "
except where there were actual establishments.

36
ii At this thirds Conference the line was changed
to latitude, ^49 "4 00 instead: of 55°, Mr. Middleton
taking advantage of this-concession on his part to
introduce the stipulation which, *in the concluded
Treaty; , forms the IYth Article.; . At subsequent
Conferences the exact form of this stipulation was
much discussed,; . and Mr.. : Middleton attached
great importance tothe point that the ¦ termina
tion of the .-ten years'- privilege, should not be
couched in language suggesting &-> substantive
agreement^afor fear that it would prejudice the
rights acknowledged- by Article I. a > ' '¦ * -, •- ¦ <-
L-On the 7th (19th) -April,, 1824, Mr. Middleton U.S. App., p. 69.
wrote to Mr. Adams* announcing the conclusion* of
the Convention : and giving (Jan ¦? account of the ,.yqA .5.7
negotiations, a Dealing with' the * relation* of the
provisions, of Article. IV to those of Article: I, he
observed, that, with regard to trade in: unoccupied
places, aslpermittedl by the permanent- Articles/ he
was of opinion that all the shores of the- great
ocean upon which the Parties to the Contract had
any-claim would continue open to them respectively
for its pursuit under those stipulations." The
specific "and particular privileges granted . by.
Article. IY, which, upon examination, would be
found to contain an extension of ., the general
privileges embraced - by the preceding Articles,:
would, of course, cease after ten years, unless
renewed by mutual consent. ' v «'':«' w-K: «¦¦¦¦ ^ ^wi
''It is 'submitted that, for the reasons above
given, the course 'of the negotiations and' 'the
tenns pf the _ Convention resulting therefrom
between, the United, States and Russia do -not
suggest the probability that Russia entered lUpon
her discussions with Great Britain upon the basis
that navigation through the seas adjoining all
territory north o'f the boundary she would propose
upon the coast was to be v withheld from all but
Russian subjects.
The conduct of the Parties after 7the expiry of
the ten years, referred, to in Article IV is also
important in this connection.
On the 19th May-, 1335, the Russian Alnbassa- lb., p. 236.
dor at Washington called attention1"" to the fact
that the IVth Article of the Treaty of 1824 by
which ^indefinite ; and"' indiscriminate -liberty of «ST "1 -rfI
frequenting the * respective possessions L of each*
Party on the north- west coast was granted to the
vesselsof each had expired." eT±- - -,rij "^ ¦ ^:-:-'r-
The' United States' - Government thereupon lb., p. 240.
published an"1 informal notice in the -" Globe "

37
newspaper of the 22nd July, 1835. This stated
that* American-, captains,, had. been warned by
Russia " that they could no. longer claim- under
the ..Convention -the right of landing at all the
landing-places, without distinction, .belonging to
Russia on that coast," and that " those interested
in the trade would, not iail, to observe that under
the second Article of the Convention r it. was
necessary for all American^, vessels resorting to
ianypoint on, that. eoast where there, was-a Russian
establishment, to .obtain - the permission of, the
governor or commander." .r^-^O. 5. •¦";•- ^e:ir
U.S., App, 246. . On -the 1 1th December, 1835, Mr,; Wilkins, the
American -Minister at St. Petersburgh, reported
to,, his -i Government a conversation he had,-, held
with Count. Nesselrode with reference, to the
renewal ,-of the privilege secured by Article IV.
In this despatch _. he -says that he did not feel
himself authorized to. call the attention of the
Imperial Minister to what mights or probably
would be the construction put by the United
States upon the Treaty with the IVth Article
extinct ; nor what rule of the law of nations
would be considered as applicable to the case and
controlling the trade upon a wild and extensive
, £:,(¦.•:-.' t.. ;ie-v ''.d p^: :;..: ::*^^Ty- sc'O' American coast of a great and open ocean, and
still with the exception of a very few jaorts at, - a
vast distance from., each other in the rightful
occupancy of -the natives, and to which.he believed
the sovereignty,, of ..Russia. -had not , yet in any
Treaty or Convention been, admitted. ~, .-j: ^j,:;-:, £
Al -c. wd.i Jr Z - As stated in the American Case j the Russian
Government in the end refused to continue . the
provisions of this Article, and on theJ26th Septem-
Ib., p. 250. ber^ 1845, M the Ignited : States, accepting this
decision, gave official notice warning American
vessels against the violation of Treaty stipulations
by resorting to any. point ou the Russian- American
coast, where -there was a , Russian establishment,"
without -the permission of the Government or Com
mander, or by frequenting the interior seas, gulfs,
harbours, and creeks on that coast at. any point
north of latitude 54° 40'. j-.; -..uri vv; ?>-H
The, foregoing resume shows that what, Russia
was understood by the United. States*, to have
secured- by the Convention ,pf 182 4,, .was not
freedom from the access of foreign- traders to the
natives, still less,, freedom from mere navigation
by way of innocent; passage, -but -freedom from
access to ...Russian, settlements and from a the
encroachment of American settlements,. - r. <-r

jifi&

-.r>. hn&

38

The IVtb Article gave for a limited time access
for trade and fishery to the internal territorial
waters of Russia. Mr. Middleton, who negotiated
the Convention, and subsequently Mr. Wilkins,
appear to have held the view that, even when
Article IV expired, the United States would, in
the absence of Russian settlement, still have, by
virtue of Article I, the same right to frequent the
inland waters for trade and fishery. The Russian
Government would probably have been surprised
at this contention, but the United States did not
then put it forward. The point to be observed
with reference to Article IV of the United States'
Treaty, as well as to Article VII of the British
Treaty, is that it deals with navigation for trade
and fishery, that is to say, for purposes involving
acts which prima facie the territorial Sovereign
would be entitled to prevent. It had nothing to
do with the right of innocent passage, which the
commercial vessels of all nations might have if
the waters in question could be used for that
purpose.

As already pointed out, the Case of the United The Negotiations between Great Britain

States seeks to extract from the negotiations and
even from the uncommunicated statements of the
Russian negotiators the conclusion that a barrier
was intended to be established cutting off Great
Britain from tidal water. With this object the
Case for the United States refers in the first U.S. Case, p. 29.
place to an expression reported to have been used
by Count de Lambert to M. Poletica.
The particular phrases used by the Russian
officials concerned with the negotiations in com
municating among themselves, would not appear
to have much importance as affording a clue to
the interpretation of a Convention arrived at after
long negotiations not even commenced at the date
when tbe language in question was employed.
When Count de Lambert used the words referred
to, the lisiere had not been proposed, and the
problems to be raised by it could not have been in
contemplation. In any event, however, it does
not appear that Count de Lambert referred to a
barrier in any sense inconsistent with the British
contention, which is, that the lisiere was designed
without any reference to access to the sea by way
of passage, but merely in order to keep British
territory, whether on land or on interior water,

and Russia.

39
at a distance from the Settlements of Russia on
the islands; and to give Russia the necessary
control, for fiscal or other administrative purposes,
of the passage of British vessels through the
interior seas and straits, which by the Treaty
became part of her territorial waters. It will be
found that not only the language of Count de
Lambert, but the whole course of the negotiations
supports the British view.
The language used by Count de Lambert is
reported by M. Poletica as follows : —
U.S. Case, p. 29. '"' In fixing the longitude, Count de Lambert had
mainly in view the establishment of a barrier at which
would be stopped, once for all, to the north as to the-
-west of the coast allotted to our American company,
the encroachments of the English agents of the Amal
gamated Hudson Bay and Northwest English Company,
whom a more intimate acquaintance with the country
traversed by the Mackenzie River might easily bring
in the course of time into the neighbourhood of our
establishments." It is to be observed that what was to be guarded
against was the encroachments of the English
agents who might in time come " into the neigh*
bourhood of our establishments." It is further to
be observed that a boundary by longitude was
suggested which might or might not cut across
any inlets penetrating the interior, and could not
be made subservient to any such principle as that
which it is suggested on behalf of the United States
controls the essential character of the " barrier."
In the same despatch in which he records the
views expressed by Count de Lambert, M. Poletica
gives an account of a conversation with Sir C.
British App. I, Bagot, in which the* latter indicated a line formed
by the 57th degree of latitude find the 135th
of longitude as that which Great Britain would
propose. By Mr. Canning's despatch of the 15th January,
1824, Sir Charles Bagot was authorized, if it were
lb., p. 62 too much to insist on a line striking the mainland
near Mount Elias, to agree to the 135th meridian
of longitude northward from the head of Lynn
Canal. Acting on this authority Sir Charles
Bagot made his first proposal to the Russian
Plenipotentiaries in opening the formal negotia-
Ib., p 67. tions. He stated to Count Nesselrode and
M. Poletica that the principal object of Russia, as
he understood her wishes and interests, must be
to secure to herself her fisheries upon the islands
[769] G

40
and shores of the north-west coast of North
America, and the posts which she might have
already established upon them ; and on the other
hand, the chief object of Great Britain was to
secure the posts upon the continent belonging to
the Hudson's Bay Company, the embouchures of
such rivers as might afford an outlet for her fur
trade into the Pacific, and the two banks of the
Mackenzie River. He then proposed a boundary
through Chatham Straits to the head of Lynn
Canal, thence north-west to the 140th degree of
longitude west of Greenwich, and thence along
that degree of longitude to the polar sea.
The terms in which this proposal was made
show that while he understood Russia to desire
to keep her fisheries and her posts, he explained
that Great Britain desired an outlet for her fur
trade into the Pacific.
It was in the Contre-Projet to this proposal
that the lisiere was first suggested, and it is
important to observe the terms in which the
proposal was explained. The explanation, as
reduced into writing by the Russian Plenipoten
tiaries, was as follows : —
" The principal motive which forces Russia to insist British App. I,
upon retaining the sovereignty over the strip of land P"
described previously on the mainland from the Portland
Canal as far as the point of intersection of the 60th
degree of latitude with the 139th degree of the same,
is that, if deprived of this territory, the Russian-
American Company would be left without any means
of supporting the Establishments, which would thereby
be left without any support and could not have any
strength nor solidity.
"As a compensation" [en revanchel, " Russia would con
sider it a duty to open to the subjects of His British
Majesty the free navigation of all the rivers which
empty into the Ocean within the said strip of land."
This passage has often been quoted, but it is
important in connection with the topic at present
under discussion, because it shows that Russia, in
asking for a lisiere to protect her establishments,
offered at the same moment the free navigation of
the rivers crossing it. The intention clearly was
that though Russia desired the sovereignty over
a strip of territory facing her islands, the proposal
was not to prejudice the relation of the British
territory inland to the sea. This is made still
more apparent if, anticipating slightly the chrono
logical order, reference is made to the subsequent
despatch of Count Nesselrode, in which he justifies

41
the principle of the lisiere. In his despatch to
Count Lieven of the 17th April, 1824, he writes : —
British App. I, <.-. ^s for us we restrjct om. demands to a small strip
{lisiere) of coast on the continent, and in order to
dispel all objections whatsoever, we guarantee the free
navigation of the rivers, we proclaim the opening up
of the port of Novo-Archangelsk ; "
and again in the same despatch —
lb., p. 78. " If the principle of reciprocal conveniences is
advocated, Russia gives up for the progressive extension
of the English Establishments a vast extent of coast and
of territory ; she guarantees free markets " [dSouches] ;
" she makes provision for the interests of their trade, and
as a compensation for so many offers inspired by the
sincerest spirit of conciliation, she reserves for herself
only a point of support without which it would not be
possible for her to keep one half of her dominions."
The free navigation of the rivers involved the
free navigation (though not for the purpose of
settling or trading therein) of the waters between
the islands and the lisiere, and this state of affairs
being once contemplated, it is difficult to appre
hend how Russia could have regarded it as a
settled principle of policy to obtain a lisiere, the
necessary and essential characteristic of which
should be a depth sufficient to prevent any inlet
passing beyond it into British territory.
The rivers had not been laid down, even by
way of conjecture, on Vancouver's Charts. He
had failed to notice even the mouth of the Stikeen.
For all that the negotiators on either side knew,
any one of the inlets might prove to be the
estuary' of a navigable river. When, therefore,
free ingress and egress by way of the rivers had
once been offered, it would seem futile to have
stipulated, for the purpose of preventing access to
the sea, that the boundary should in any event
run round the head of every inlet. Yet it is only
to attain the assumed object of preventing access
to the sea that the United States insist that the
parties must be taken to have intended that
boundary should always so run.
It is, however, urged in the case for the United
States that the fact of the line inland from Lynn
Canal having been proposed tends to negative the
British contention, on the ground that every
subsequent proposal was a further concession by
the British Government moving the line farther
to the south and east, and that this must have
[769] G 2

42.
Ipft both shores of Lynn Canal right up to its
head in Russian territory, as Sir Charles Bagot's
proposal would have left the western shore.
In answer to this, it must be pointed out that
at the time of the proposal of Sir Charles Bagot
the idea of a lisiere had not yet taken shape. He
had been instructed by Mr. Canning to offer, British App. I,
between Mount St. Elias and the head of Lynn
Canal, a block of country extending inland 50 or
100 miles from the sea, and that proposal would
have shut off no access for the fur trade to the
sea. The lisiere was proposed in answer to this.
The suggestion removed further south the point
where the Russian boundary touched the coast ;
but, at the same time, it greatly attenuated the
character of the strip of territory which Russia
was to have. In making tbe proposal, the Russian
negotiators, by offering the free navigation of
rivers crossing the lisiere, acknowledged frankly
that it was not intended to affect access to the
sea. At one period of the negotiations it was
contemplated that the lisiere itself should not
extend beyond the base of the mountains. It is
submitted that it is impossible to read the
description by the Russian negotiators of the
lisiere desired by them, which was to be no more
than a point d'appui, without realizing that their
proposal contemplated a strip of territory of an
entirely different character from that block which
Sir C. Bagot had been authorized to offer between
Lynn Canal and Mount St. Elias. It is quite
inadmissible to regard the lisiere as a mere
extension southward of that block.
In answer to the proposal which first carried
the Russian boundary southward to Portland
Canal, Sir Charles Bagot represented that such
line would deprive His Britannic Majesty of those
coves* and small bays which are to be found
between 56° and 54° 45' of latitude. This
has been laid hold of as showing that Sir
Charles Bagot appreciated that all tidal water
north of Portland Canal would be exclusively
Russian. It is to be observed, however, that the
mountain boundary, limited to 10 marine leagues
from the sea, which gives its essential character
to the lisiere, and causes it, in the British view, to
cross the deeper inlets, would not operate south
of latitude 56°. To that latitude the line is

* " Anses" is not accurately translated inlets as the word
has been used in this controversy.

43'
conducted arbitrarily along the Portland Canal,
and therefore Sir Charles Bagot's observation'
was, and still is, accurate even on the assumption
that the British contention is correct.
An examination of the rest of the negotiations
brings out clearly that it was not access to the
sea but the liberty of settlement and trade in the
immediate neighbourhood of her own Settlements
on the islands that Russia desired to prevent
Great Britain from obtaining.
It is clear that the "establishments" which,
in first proposing the lisiere, the Russian nego
tiators said would, without it, be left sans point
cfappui, were the establishments on the islands,
and that what they deprecated was the proximity
to them of British establishments.
In their next communication with Sir Charles
Bagot they commence by using the following
language : —
British App. I, » The motive which has prompted the adoption of
the principle of mutual conveniences and the first
advantage of this principle is to prevent the respective
Establishments on the northwest coast from injuring
each other and coming into conflict."
In the same despatch they repeat the language
of their original proposal with the addition, how
ever, of words which show more precisely what
establishments of their own they referred to, and
what was the source of the danger against which
they wished to guard. The passage is as follows : —
lb., p. 72. " On the other hand, the Russian Plenipotentiaries
have the honour to remind him, once more, that with
out a strip of land on the coast of the continent from
Portlarid Channel, the Russian Establishments on the
adjoining islands would be left unsupported, that they
would be left at the mercy of those Establishments
which foreigners might form on the mainland, and that
all settlement of this nature, from being grounded
upon the principle of mutual conveniences, would offer-
only dangers to one of the parties and exclusive gains
to the other."
The language of their final decision is to the
same effect : —
lb., p. 74. " The Emperor instructs his Plenipotentiaries to
declare once again to the Ambassador of England:
" That the possession of Prince of Wales' Island,
without a portion of territory on the coast opposite
this island, could not be of any use to Russia.

44
" That any Establishment formed on the said island,
or on those around it, would, in some manner, be turned
by the English Establishments of the mainland, and be
completely at the mercy of the latter."
So also Count Nesselrode in his explanatory
despatch to Count Lieven : —
" If the Prince of Wales' Island remains ours, it must British App. I,
• v 77
be of some utility to us. Now, according to the view y'
of the English Ambassador it would be only a burden
to us and almost an inconvenience. Indeed, this
Island and the Establishments which would be founded
by us, Avould become altogether isolated, deprived of all
support, surrounded by the possessions of Great Britain,
and at the mercy of the English Establishments on the
coast. The cost of maintenance and of supervision
would be ruinous, the burden of which would not be
relieved by any compensation. Would an agreement
of this nature rest upon the principle of mutual con
veniences ? "
About the same time Count Nesselrode, writing
to Admiral Mordvinof, says that, while Russia
claims both the islands and the western coast of
America to the 55th degree—
" Great Britain, on her part, represents the rights of U.S. App., p. 167.
the Hudson's Bay Company, whose trading posts or
refuges, penetrating further and further into the interior
of the lands, have nearly reached the north-western coast
on about the same parallel," and that, to reconcile both
interests, " only one expedient presents itself; to
establish at some distance from the coast a frontier-
line, which shall not be infringed by our establish
ments and trappers, as also by the hunters of the
Hudson's Bay Company."
Both sides, he added, "equally recognized the
necessity of this measure ; but the width of the coast
line necessary for the safe existence and consolidation
of our Colonies  still form subjects of negotia
tion," and the extent of the country between the coast
and the frontier must correspond "with the condition to
what these establishments will, in all probability, in
time attain, and by their means of own defence."
This plainly means a frontier-line, east of which
the Russians and west of which the British should
not form establishments or engage in hunting,
It is submitted that these extracts show con
clusively that all that Russia wanted was to keep
the area on which Great Britain could settle and
trade fish and trap, at a certain distance from the,
Russian islands. They show that the possibility
that British vessels might pass the mouths;of some
of the inlets on their way to and from the upper

45
parts thereof would not have been considered a
danger to be guarded against at all, inasmuch as
such passage through Russia's territorial waters
would be subject to any reasonable control to
prevent its being abused for the purposes of
trading, trapping, or fishing in Russian territory.
Great Britain is not, however, driven to rely affirm
atively on these considerations. All she contends
for is that they negative the contention of the
United States, a contention which amounts to
this : that the negotiations disclose an intention
that the boundary should run in places further
inland from the "coast" than the distance ex
pressly laid down by the Treaty assigns.
It is suggested by several passages in the Case
for the United States that the operations of the
Hudson's Bay Company threatened Russia with
competition from the landward side only, and that
Great Britain had no interest in the navigation of
the waters of this coast. This argument rests on
a confusion between navigation for the purposes
of local trading or fishery and navigation for the
mere purpose of passage. It has already been.
shown that the mere fact that Russia offered the
free navigation of rivers crossing the lisiere proves:
that it was assumed on both sides that for the
purpose of innocent passage the sea itself, whether,
within or without territorial limits, was free to the.
vessels of Great Britain. The same conclusion.
can be reached affirmatively by the examination
of the negotiations.
The Ukase of 1821 purported to prohibit foreign
vessels approaching within 100 miles of the coast-
claimed by Russia. This Ukase was officially.
communicated to the Government of Great Britain
as a Power whose vessels were in the habit of
navigating those waters.
British App. I, In his despatch of the 27th September, 1822,
P- 28- Mr. Canning pointed out to the Duke of Wel
lington, for the purpose of its being communicated-
to the Representatives of Russia, that common
usao-e which had obtained the force of law had,
indeed, assigned to coasts and shores an occasional
boundary to a short limited distance for purposes
of protection and general convenience, in no
manner interfering with the rights of others and
not obstructing the freedom of general commerce
and navigation.
Ib., p. 31. In the Confidential Memorandum which the
Russian Representatives handed to the Duke of
Wellington at Verona on the llth November,

46
1822, it was stated that Russia did not insist as
a general principle of maritime law upon the
regulations that a purely local necessity had
obliged her to impose upon foreign navigation in
the neighbourhood of the part of this coast which
belonged to her. In a despatch of the 26th June, British App. I,
1823, Count Nesselrode informs Count Lieven of
the instructions which had been given to the
officers of the Russian navy serving in the regions
affected by the Ukase. Those officers were to
confine their exercise of jurisdiction to within
gunshot from the shore, and were to limit their
surveillance to repress all fraudulent commerce
and all attempts to injure the Russian Company
by disturbing the waters frequented by its
hunters and fishermen, and to prevent the sale
of arms to the natives.
It is apparent from this that the Russian
Government had in June, 1823, waived any pre
tension to interfere with vessels engaged in
innocent navigation along their coast.
In writing to Sir Charles Bagot on the 12th lb., p. 40.
July, 1823, Mr. Canning observed that Russia
had waived the practical exercise of the maritime
right that she had so unadvisedly claimed, and
that the only question would be as to the mode
and degree of disavowal with which Great Britain
and the United States might respectively be
satisfied. With regard to the territorial claim
and boundary, Mr. Canning observed that it was
perhaps susceptible of a separate settlement. A
study of the subsequent negotiations will show
that the territorial question was never considered
as affecting the use of the sea for the mere
purpose of navigation.
In the preliminary conversation of Sir Charles n,., D, 53.
Bagot with M. Poletica, reported in the latter's
despatch to Count Nesselrode of the 3rd Novem
ber, 1823, Sir Charles Bagot admitted that when
the boundary of Russian territory was settled,
Great Britain would not question the right of ib., p. 57.
Russia to make whatever commercial regulations
she thought fit.
On p. 33 of the United States' Case this
declaration of the British Minister is relied upon
as a recognition by Great Britain : —
" That Russia had a complete and unlimited
sovereignty over her American domain, and that to
navigate her territorial waters, or to trade along her
coasts, must be granted by her as a privilege, and
could not be demanded as a right by any other Power."

47

British App. I,
pp. 59-63.

Ib., p.. 62.

lb., p. 81.

Ib., p. 84.

Ib., pp. 96-100.

It is obvious that Sir Charles Bagot's remark had
no reference to the mere right of navigation, but
was intended only to acknowledge the undoubted
right of Russia to make what laws she thought
fit as to commerce within her territory. What
Sir Charles Bagot said can throw no light upon
the only question now involved, namely, what
was the extent of territory which the subsequent
Convention in fact assigned to Russia, and in
which she could make such Regidations.
In his despatch to Sir Charles Bagot of the
15th January, 1824, preliminary to the actual
opening of negotiations, Mr. Canning observes
that as to the extravagant assumption of maritime
supremacy the disavowal of Russia was, in sub
stance, all that could be desired. The territorial
question remained for settlement. It is clear
from what followed that on both sides the right
of innocent navigation was not regarded as in
dispute, although there was acute controversy as
to the territorial boundary, and as to navigation
for the purposes of trade and fishery.
In writing to Count Lieven on the 29th May,
1824, after the negotiations in St. Petersburgh had
been suspended by Sir Charles Bagot, Mr. Can
ning asks for precise and positive stipulations for
the free use of all rivers which might be found to
empty themselves into the sea within the Russian
frontier, and of all seas, straits, and waters which
the limits assigned to Russia might comprehend.
From Count Lieven's despatch to Count
Nesselrode of the 20th May, 1824, it appears that
Count Lieven told Mr. Canning that he regarded
this as already conceded. When, however, Mr.
Canning's communication came before Count
Nesselrode, the latter required from Sir Charles
Bagot an explanation as to the meaning of the
Convention proposed by Great Britain. Sir
Charles Bagot told him that liberty to trade and
fish in Russian waters was what Great Britain
demanded. Upon this Count Nesselrode, on the
4th September, 1824, wrote a long despatch to
Count Lieven, in which he expressly pointed out
the distinction between the right of mere naviga
tion, which Russia did not dispute, and the licence
to trade and fish which she could never, except
subject to great limitations, concede. After
referring to the demand of Mr. Canning for the
free use of the rivers and of all the seas, straits,
bays, &c, in Russian territory, and to his state
ment that he regarded the maritime pretensions
[769] H

48
"put forward in the Ukase as withdrawn, Count
Nesselrode writes as follows : —
" Quand on compare ces deux demandes qui se British App. I,
suivent de si pres et qui s'expliquent et se completent
pour ainsi dire l'une par 1'autre, il est difficile d'y
trouver autre chose que la fibre navigation des eaux et
des mers qui baigneraient les possessions de la Russie,
or cette liberty nous nous sommes toujours montres
prets a la garantir."
On having this despatch communicated to him,
Mr. Canning solved the difficulty as to navigation
for the purposes of trading and fishing by in
structing Mr. Stratford Canning on the 8th lb., p. 113.
-December, 1824, to substitute for all that part
of the "projet" and " contre-projet " which re
lated to maritime rights and to navigation the
first two Articles of the Convention of 1824
between the United States and Russia.
On this basis the Treaty was concluded. It is
impossible to say that navigation by the subjects
of Great Britain in these waters was not contem
plated, or that it was not to take place on the
usual footing recognized by international law to
and from any territory which might be assigned
to Great Britain. The territorial question was
settled by a completely independent set of
provisions, and there is nothing in any of the
stipulations with reference to navigation that
affords an indication that the territory of Great
Britain was to be more confined than the words
of the Treaty dealing with that part of the
arrangement would upon their natural construc
tion suggest.

Article VII of the Treaty of 1825, it is sub- Arguments based on Article VII.
mitted, affords a conclusive answer to the claim
by the United States to all the inlets.
By it each Power gives for ten years to the
other liberty to frequent all the inland seas,
gulfs, havens, and creeks on the coast mentioned
in Article III, for the purpose of fishing and
trading with the natives. Russia therefore accepts
from Great Britain this privilege, and grants to her
the same. This provision, applied to the coast of
the lisiere, is consistent only with the assumption,
on the part of each Power, that there might be
found waters extending inland beyond the limits
assigned to Russia, part of which would therefore
belong to each Power ; and in order to insure

49

their free use by both for the term mentioned,
the privilege was made reciprocal.
The lisiere being the strip of coast the eastern
boundary of which is defined by Articles III
and IV, would belong wholly to Russia, and as to
waters within it, i.e., in the absence of a mountain
boundary, within 10 marine leagues of the ocean,
Great Britain had no rights to give. But upon
the coast, of which the lisiere was the border,
there might be and were, as the maps showed,
inlets penetrating more than that distance from
the ocean. When they crossed the boundary
of the lisiere they were British, and it was reason
able that Russia, giving the right to Great
Britain to trade and fish in such inlets while
within her territory, should ask a reciprocal right
from Great Britain when they passed out of it
into British territory. This right up to that
time had been in dispute on that coast, and the
exercise of it had been asserted by both. It was
continued therefore to both for a definite term of
ten years, leaving its future duration to be matter
of arrangement.
Had the construction of the Treaty now con-r
tended for by the United States been intended,
every inlet would belong throughout to Russia,
and the grant to her by England of the right
to frequent them would have been meaningless.
There would seem to be no answer to this if
Article VII is confined to the coast of the lisierer
or applies to it ; and upon this point, in another
aspect and from a different point of view, opposing
arguments have been advanced.
In the Behring Sea controversy the question in
relation to which this Article was considered was,
whether Behring Sea was included in the phrase
" Pacific Ocean," the United States contending
that it was not, and Great Britain that it was ;
and as bearing upon this issue the terms " North
west Coast " and " North-west Coast of America "
as found, not in this Article only, but in the
Treaties, the correspondence, and elsewhere, were
much discussed.
Great Britain contended that they included
the whole coast to Behring Straits, while the
United States argued that they excluded the
Behring Sea.
As to this Article VII, the United States
regarded its language as leaving no room for doubt
that it was confined to the coast of the lisiere, while
Great Britain argued that it applied to the coast
[769] H 2

50
first mentioned in Article III, and included the
coast of Behring Sea.
Mr. Blaine, in his despatch of the 30th June
1890, to Sir J. Pauncefote, says :¦ —
" The Vllth Article is practically a repetition of the Behring Sea
. Arbitration :
IVth Article in the Treaty between Russia and the Appendix to
United States, and the privilege of fishing and trading British Case,
with the 7aatives is limited to the coast mentioned in 497-506
Article III, identically the same line of coast which
they were at liberty to pass through to reach British
America, or to reach the coast from British America.
They are excluded from going north of the prescribed
point on the coast near Mount St. Elias, and are,
therefore, kept out of Behring's Sea."
Lord Salisbury, in his answer to this, addressed
to Sir J. Pauncefote on the 2nd August, 1890,
says : —
" I must further dissent from his interpretation of lb., pp. 512-20.
Article VII of tho latter Treaty. That Article gives to
the vessels of the two Powers ' liberty to frequent all
the inland seas, gulfs, havens, and creeks on the coast
mentioned in Article III, for the purpose of fishing and
of trading with the natives.' The expression ' coast
mentioned in Article III can only refer to the first
words of the Article —
" ' The line of demarcation between the possessions
of the High Contracting Parties upon the coast of the
continent and islands of America to the north-west
shall be drawn,' &c.
" That is to say, it included all the possessions of the
two Powers on the north-west coast of America. For
there would have been no sense whatever in stipulating
that Russian vessels should have freedom of access to
the small portion of coast which, by a later' part
of the Article, is to belong to Russia. And as bearing
on this point it will be noticed that Article VI, which
has a more restricted bearing, speaks only of ' the
subjects of His Britannic Majesty,' and of ' the line of
coast described in Article III.' "
Mr. Blaine replied to this on the 17th December,
1890, contending that it not only contradicted the
obvious meaning of the Vllth and Hlrd Articles,
but destroyed their logical connection with the
other Articles ; and that there could be no possible
distinction between " the line of coast described
in Article III," referred to in Article VI, and
" the coast mentioned in Article III," referred to
in Article VII, both being the coast of the lisitre.
He said : —
" The Vllth Article of the Anglo-Russian Treaty, " Proceedings of
Avhose provisions have led to the principal contention . ® n Pnai °*
r * r Arbitration, 1893," Vol. II.

51
Case of the between the United States and Great Britain, is as
United States, f n
Appendix, Vol. I, foll°ws:-
pp. 273-5. ' " It is also understood, that for the space of ten years
from the signature of the present Convention the
vessels of the two Powers, or those belonging to their
respective subjects, shall mutually be at liberty to
frequent, without any hindrance whatever, all the
inland seas, the gulfs, havens, and creeks on the coast
mentioned in Article III, for the purposes of fishing
and of trading with the natives.'
" In the judgment of the President the meaning of
this Article is altogether plain and clear. It provides
that for the space of ten years the vessels of the two
Powers should mutually be at liberty to frequent
all the inland seas, &c, ' on the coast mentioned in
Article III for the purposes of fishing and trading with
the natives.' Following out the line of my argument
and the language of the Article, I have already main
tained that this privilege could only refer to the coast
from 54° 40' to the point of intersection with the 141st
degree of west longitude, that, therefore, British subjects
were not granted the right of frequenting the Behring
Sea. " Denying this construction, Lord Salisbury says : —
" ' I must further dissent from Mr. Blaine's interpreta
tion of Article VII of the latter Treaty (British). That
Article give's to the vessels of the two Powers " liberty
to frequent all the inland seas, gulfs, havens, and creeks
on the coast mentioned in Article III, for the purposes
of fishing and of trading with the natives." The ex
pression " coast mentioned in Article III" can only refer
to the first words of the Article, " the line of demarca
tion between the possessions of the High Contracting
Darties upon the coast of the continent and the islands
• America to the north-west shall be drawn," &c, that
to say, it included all the possessions of the two
Powers on the North-west coast of America. For there
would have been no sense whatever in stipulating that
Russian vessels should have freedom of access to the
small pdrtion of coast which, by a later part of tbe
Article, is to belong to Russia. And, as bearing on
this point, it will be noticed that Article VI, which has
a more restricted bearing, speaks only of " the subjects
of His Britannic Majesty" and of "the line of coast
described " in Article III.'
" It is curious to note the embarrassing yitricacies of
his Lordship's language and the erroneous- assumption
upon which his argument is based. He admits that the
privileges granted in the Vlth Article to the subjects
of Great Britain are limited to ' the coast described in
Article III of the Treaty.' But when he reaches the
Vllth Article, where the privileges granted are limited
to ' the coast mentioned in Article III of the Treaty,*
his Lordship maintains that the two references do not
mean the same coast at all. The coast described in
* Article III and the coast mentioned in Article III are,
therefore, in his Lordship's judgment, entirely different.

52

The 'coast described in Article III' is limited, he
admits, by the intersection of the boundary-line with
the 141st degree of longitude, but the ' coast mentioned
in Article III ' stretches to the straits of Behring.
" The IHrd Article is, indeed, a very plain one, and
its meaning cannot be obscured. Observe that the
' line of demarcation ' is between the possessions of
both Parties on the coast of the continent. Great
Britain had no possessions on the coast-line above the
point of junction Avith the 141st degree, nor had she
any settlements above 60° north latitude. South
of (i0° north latitude was the only place where
Great Britain had possessions on the coast-line. North
of that point her territory had no connection whatever
with the coast, either of the Pacific Ocean or the
Behring Sea. It is thus evident that the only coast
referred to in Article III was this strip of land south of
60° or 59° 30'.
" The preamble closes by saying that the line of
demarcation between the possessions on the coast ' shall
be drawn in the manner following,' viz., from Prince of
"Wales Island, in 54° 40', along Portland Channel, and
the summit of the mountains parallel to the coast as far
as their intersection with the 141st degree of longitude.
After having described this line of demarcation between
the possessions of both Parties on the coast, the re
maining sentence of the Article shows that, ' Finally,
from the said point of intersection, the said meridian
line 
shall form the limit between the Russian and British
possessions on the continent of America.' South of the
point of intersection, the Article describes a line of
demarcation between possessions on the coast ; north
of that point of intersection, the Article designates a
meridian line as the limit between possessions on the
continent. The argument of Lord Salisbury appears
to this Government not only to contradict the obvious
meaning of the Vllth and IHrd Articles, but to destroy
their logical connection with the other Articles. In
fact, Lord Salisbury's attempt to make two coasts out
of the one coast referred to in the IHrd Article is not
only out of harmony with the plain provisions of the
Anglo-Russian Treaty, but is inconsistent with the
preceding part of his own argument.
" These five Articles in the British Treaty (the IHrd,
IVth, Vth, Vlth, and Vllth) are expressed with an
exactness of meaning which no argument can change
or pervert."The United States, again, in their Case in that
controversy, p. 58, say : —
" With regard to what may be termed the territorial
dispute, it appears from an examination of the corre
spondence and Treaties that the southern boundary of
the Russian territories Avas fixed at latitude 54° 40'
north, whereby she relinquished a large portion of the

53
north-Avest coast which she had claimed by the Ukase
of 1821 ; and that, the coasts, interior Avaters, &c, upon
and in which the United States and Great Britain were
alloAved to trade for ten years Avithout restrictions, were
limited on the west by Yakutat Bay and Mount St.
Elias ; that is to say, that this right was restricted to thie
coast-line, concerning the ownership of which there
may have been some possible dispute.
" The specific declarations in the British Treaty of
1825 as to the line of coast and water to which access
and trade were thus granted leave no room for doubt
as to what coast was intended ; and that the above
limitation Avas understood by Russia is expressly stated
by the Minister of Finance in his communication of the
4th September, 1824, already cited (at pp. 54-5)."
Brit«Lh App. I, Count Nesselrode, in his despatch of the 4th
September, 1824, to Count Lieven, says : —
" Russia's rights of sovereignty OA'er the north
west coast beginning at 59° of north latitude have
been disputed. Hence, between that degree and the
parallel which Avould form our southern boundary, Ave
hastened to offer special advantages to the Powers
with which we Avere in dispute. We granted to the
Americans for ten years the right to fish, to hunt, and
to trade Avith the natives of the country, and Ave will
make the same concessions in faArour of the subjects of
His Britannic Majesty ; but it must be well understood
that this concession will only comprise the space
inclosed between latitude 59° and the southern
boundary of our territory — to wit, latitude 54° 40',
for to the north of the fifty-ninth degree His Imperial
Majesty's rights of sovereignty have never been
questioned, not only in no official document, but in
none of the articles which the English and American
newspapers have published on this subject."
The application and effect of Article VII was
not specifically decided, and Great Britain might
well rest upon the reasoning advanced by the
United States.
That controversy, however, was of a wholly
different character, relating to maritime juris~
diction, and Article VII was referred to only
in that connection. There was no question of
inland boundary ; the width of the lisiere was not
in question ; its possible bearing on the ownership
of or rights in the inlets was not thought of,
and the extent or character of its inlets was not
considered. The arguments advanced by either party in
that discussion must be read with reference only
to the subject-matter in dispute. The question
as to the application of Article VII, taken in con-

54

nection with the inland boundary of the lisiere,
and the present differences with regard to it, was
not presented as it now is, or the considerations
applicable to it in that view discussed, nor can
the arguments on either side be regarded as
dealing with it.
Russia cannot have intended, in view of her
despatch already cited, to accept rights •: from
Great Britain north of 59°. The reciprocal pro
vision must have been intended, at least by her,
to apply to the coast of the lisiere, to which the
United States argued that it Avas exclusively
applicable, and it can only be explained in that
view on the construction contended for by Great
Britain. The territory below 54° 40' was not in question
— having been relinquished by Russia by the
treaty of 1824 with the United States — and she
could not have intended to give to or take from
Great Britain any rights there.

In the United States' Case the sections devoted
to the examination of the negotiations are followed
(p. 63) by one entitled " Results of the Negotia
tions." Most of the arguments contained in that
section have already been dealt with in discussing
the barrier theory. There is, however, one state
ment which requires further notice.
On pp. 67 and 68 of the United States' Case it
is said that a territorial zone about the water in
denting the coast, which would debar the Hudson's
Bay Company from establishing competing posts
along the lines, was believed by the Imperial
Representative to be created by a boundary drawn
along the summit of the chain of mountains shown
on the Vancouver charts and the official Russian
map of 1802. It is said also that an examination
of these maps further shows that the head of
Portland Canal and the mountain range are
approximately 10 marine leagues distant from the
shore-line of the continent. Erom this it is said
to follow (p. 68) that " when Russia proposed to
abandon the mountain boundary and fix a line
drawn 10 marine leagues from the shore, and
when she accepted that distance as the extreme
width of the lisiere, she believed that she was
obtaining substantially the same protection as she
would have obtained under her original prOpOSl-
tiom

Results of the Negotiations.

The Maps and the Mountain Boundary.

00

A comparison of the two Vancouver charts re
produced on pp. 1 and 2 of the Atlas accompany
ing the British Case, will show that different
positions with reference to the head of Portland
Canal were assigned to the mountains in these
two charts.
A comparison of the two charts of Frederick's
Sound, reproduced on p. 4 of the same Atlas*
shows an even more striking, divergence with
respect to the mountains higher up the coast.
In addition to this, the negotiations themselves
show that both Parties had in view the unreliable
character of the maps available with regard to
the mountains.
Under these circumstances, it. is submitted that
these maps cannot be. used for the purpose of
showing that the negotiations, of the Treaty
proceeded on the basia that, the mountain
boundary would operate in any particular way.
In any case. Great Britain respectfully protests
against this argument as directly inviting a con
clusion, varying and not construing the actual
agreement come to. It is necessary to observe
that, even assuming that. Russia believed she was
obtaining a particular result, it is nevertheless
possible that the geographical conditions on which
the boundary is expressly made to turn make
the problem work out in. a different way. The
Case of the. United States, loses sight of the fact
that in such case there, is no.jui'isdiction in the
Tribunal to alter the effect of the Treaty in order
to make it agree, with the Russian anticipation.

Summing-up. The arguments put forward upon the. nego-
Construing the Words of the Treaty tiations have been dealt with and the British
view presented in reply ;, but, in reality, all this
discussion is of secondary importance. For the
purpose of answering the fifth and sixth, questions
propounded to the Tribunal, the words, of the
Treaty of 1825 itself define with, precision the
problem to be solved. The line is to be, drawn
parallel to the coast — along, the mountains, where
there are mountains ; but in. any case at a
distance of not.more than. 10 marine leagues from
the " Ocean." Unless it. can be shown that all
the waters of the inlets, and even the channels of
rivers so far as penetrated by the tides, are
"Ocean," the case for the United States fails.
If the inlets are not " Ocean," it is an absolutely
necessary consequence that the line crosses every
[769] I

56
inlet which is more than 10 marine leagues long,
and may cross inlets which are shorter if the line
of the mountains crosses them. It was pointed
out in the British Case that the Russians them
selves in the negotiations described the head of British Case App.,
Portland Canal as " in" the interior," and its
entrance as its " embouchure into the Ocean."
This shows to demonstration that the Russians lb., p. 76.
used the word " Ocean" in accordance with what,
apart from any such guide whatever, the ordinary
use of language would assign as its meaning —
namelv, the sea outside these inlets. The United
States'- Case has not attempted to show the
contrary ; nor could such a contention be made
good. Yet this is in truth the Avhole point of
this controversy. It is submitted that it follows
that the answer to the fifth and sixth questions
must be those put forward in the Case on behalf
of Great Britain.

SEVENTH QUESTION.
The seventh question is : —
"What, if any exist, are the mountains
referred to as situated parallel to the
coast, which mountains, when within 10
marine leagues oe the coast, are declared
to form the eastern boundary?"
The British Case is that such mountains exist, British Case,

p. 76.
Ib., p. 83.

and that the description is satisfied by those
indicated on the map, and referred to and British App. II,
set forth in the declaration and statement of MaP No- 37-
. . . . . British App. I,
Mr. W. F. King, British Commissioner on the p. 307, et seq.
International Survey under the Convention of
1892, subject to the reservation that this sug
gested line is not put forward as showing
throughout the only possible way of giving effect
to the British contentions, but that it is sus
ceptible of any variations in detail which may
commend themselves to the Tribunal on examining
the topographical conditions met with in tracing
the line.
Note.— On pp. 82 and 83 of the British Case the following
correction should be made :
Transfer the third paragraph from the bottom of p. 82
(beginning "Great Britain contends") to p. 83, after the
paragraph ending " as well as against her."

57

Brifish Case,
p. 38, et seq.
Ib., pp. 42, 43,
et seq.
U.S. Case,
pp. 85, 86.

The British Case sets up the Convention of
1892, and the subsequent International Survey,
and the later action. But in view of the attitude
taken in the Case of the United States, it is
proper to make here further reference to this
matter. The United States' Case, referring to
the International Survey under the Convention of
1892, states—

" The American officers sent out in company with
the Canadians examined the shores, and penetrated
inland at several points for the special purpose of
determining the character of the country. From their
observations the following facts Avere established :
That the mountains have a tendency to increase in
altitude the farther they are situated from the shore ;
that throughout the lisiere the mountains are composed
of numerous isolated peaks and short ridges running in
different directions, and that within 10 marine leagues
of tide water there is no defined and continuous range
such as appears upon the early maps and charts fol-
loAving the sinuosities of the coast."

British App. I
p. 269.

tJ.S. App., and in the Appendix are found the several state-
pp. ... ments on which this view is said to be established.
U.S. Case, p. 106. "j^g answer and decision requested by the
United States is " that such mountains do not
exist within ten marine leagues from the coast."
Great Britain contends that the elucidation of
the topographical facts on which the answer to the
question depends, is to be found in the Report and
papers, maps and photographs of the International
Commission of 1892, and not in statements of
opinion such as are put forward by the United
States. By the Convention of 1892 it was agreed that
a coincident or joint survey should be made of
the territory adjacent to the part of the boundary-
line in question, "with a view to the ascertain
ment of the facts and data necessary to the
permanent delimitation of such boundary-line in
accordance with the spirit and intent of the
existing Treaties in regard to it between Great
Britain and Russia, and between the United States
and Russia."
It was further agreed by the High Contracting
Parties that "as soon as practicable after the
Report or Reports of the Commissions shall have
been received, they will proceed to consider and
establish the boundary-line in question." The
Commissioners were appointed, performed their
work, and presented their Joint Report. -
[769] I 2"

Ib., p. 282.

58
They reported that —
" With a view to the performance of the duty im
posed upon the Commissioners under the Convention of
ascertaining the facts and data necessary to the per
manent delimitation of the boundary line,"
they had agreed upon a plan of joint survey ; they
added —
" The United States Commissioner undertook to
make surveys of as precise a nature as practicable of
the principal water courses which traverse the coast
strip ; and the British Commissioner undertook to make
a photo-topographical survey of the mountainous
regions lying between these various water courses
They further reported as follows :— British App. I,
r pp. 284, 285
" The results of all these surveys are exhibited in the
accompanying Maps, namely, sheets Nos. 1 to 24, made
on a scale of j-go-^-^a with contour lines of elevation 250
feet apart, from the surveys of the British Commission ;
and in Maps Nos. 1 to 12 of the United States Commis
sion,, made on the same scale.
" These Maps have been agreed to by us, subject to
the limitations hereinafter set forth, as correct repre
sentations of the topographical features, and have been
signed by us to testify thereto."
And they reported their agreement as to the
mode of interpreting any difference which might
occur between maps dealing with the same
locality. They further reported as follows : — lb., p. 285
'; To shoAv the topographical features of the country
in another Avay, we hereAvitb submit photographic
vieAvs, being contact prints from the photographic
negatives of the officers of the British Commission,
whose work was largely executed as to the detail or
' filling in ' by means of these views, according to the
method known as photo-topography, the framework
being laid out by triangujafions Avhich are shown
in sheets Nos. 25, 26, 27, and 28 of the British Commis
sion. These views will also serve as a permanent record
of the field Avork. Plans of the triangulation executed
by the officers of the United States Commission are sub
mitted herewith on sheet No. 13 of the United States
Commission: *****
"We conceive it unnecessary for us, having pre
pared- Maps- showing so much detail, to enter into a
lengthy description of the topography; "
and they added some remarks on the timber
limit.

59

British App. Ill,
portfolio. U.S. App.,
foot-note, p. 528.

British App.
p. 269.

British App.,
p. 297.

The maps have been already produced ; and iv
is intended to produce the photographs to the
Tribunal on their assembling in London — a course
also contemplated by the United States.
But in view of the line taken in the Case of the
United States, Great Britain declares her readi
ness to produce the photographs at once, if
desired by the Tribunal, and also presents as
Appendix II to this Counter-Case, an album
showing a selection, on an enlarged scale, of
certain of these photographs for the greater con
venience of examination, as hereinafter detailed.
Descriptions of the salient points in these views,
Avith attesting declaration of Mr. J. J. McArthur,
will be found in the Appendix I at pp. 63 to 72.
Indeed, the photographs are so numerous, and
both they and the contour maps are on so small
a scale, that it may be a tedious, however neces
sary, task for the Tribunal to master them.
But it is submitted that upon them depends,
after all, the answer to the question ; and that if
any further light is to be thrown upon them or
upon the subject, it is to be obtained only by the
use of the provision in the first Article of the Treaty
of 1903, under which the Tribunal may "employ
scientific experts, if found to be necessary."
It is submitted that this view of the situation
is supported by the following considerations: —
1. By the Convention of 1892 setting up the
International Survey Commission and the agree
ment that, as soon as possible after their report,
tbe High Contracting Parties would proceed to
consider and establish the boundary - line in
question. 2. By the form of the Protocol of May 1898 of the
Conferees for Great Britain and the United States
preliminary to the meeting of the International
Joint High Commission of 1898-99, Avhich Pro
tocol declares that —

"It is expedient to come to an agreement upon ....
Provisions for the delimitation and establishment of the
Alaska-Canadian boundary, by legal and scientific
experts, if the Commission shall so decide, or otherwise."
Ib., p. 298. 3. By the instructions of Great Britain to its
Commissioners of the 19th July, 1898, communi
cated to the United States, which stated as to
the boundary between Alaska and Canada that: —

"The Convention Avith the United States Govern
ment of 1892 provided for the appointment of a Joint

60
Commission to ascertain the facts and data necessary
for the permanent delimitation of the boundary-line,
and the High Contracting Parties agreed to proceed to
consider and establish the line as soon as practicable
after the Report of the Commission should have been
received. The period fixed for the completion of the
surveys and the presentation of the final Reports was
.extended by a supplementary Convention in 1894, and
the Commissioners submitted a Joint Report Avith
maps on the 31st December, 1895. This Report con
tained no recommendations for the determination of an
equitable settlement, and no further discussions have
taken place as contemplated in the Convention of
1892  Her Majesty's Government are content to
leave it to the discretion and judgment of the Com
missioners to devise some machinery for this pur
pose  "
4. By the Memorandum of the United States British App.,
containing its vieAvs on the subjects of the
Protocol of the 30th May, 1898, and representing
the instructions of that Government to their own
.Commissioners, communicated to Great Britain,
which Memorandum is on this subject as
follows : —
" III. Tlie Delimitation and Establishment of the Alaska
Boundary.
" This topic has already been the subject of con
ventional arrangements, and the Report of the Joint
Commission is now aA^ailable 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 GoA^ernment of the
United States Avill expect the Joint High Commission
to seek to execute this stipulation by an agreement as
fo the boundary as fixed by the Anglo-Russian Treaty
of 1825, and by the American-Russian Treaty of 1867,
and, as far as possible, to delineate the same upon proper
maps ; and, further, to provide for the fixing of boundary
marks by a Joint Commission to be hereafter appointed.
This Government has no reason to anticipate any other
than a definite and satisfactory settlement of this im
portant question by the Joint High Commission."
¦ 5. By the circumstance that the Joint High
Commission having, after long discussion, ad
journed without being able to reach an agreement
as to the boundary, the adjustment of the ques
tion became once more the subject of diplomatic
negotiations, which culminated in the Treaty of
1903, which Treaty Avas thus the method finally
devised for executing the stipulation of the Con-

6i
vention of 1892 that, as soon as possible after the*
Report of the Joint Boundary Commission, the
High Contracting Parties would proceed to con
sider and establish the boundary-line in question.
6. To these considerations may be added the
substantial recognition on the part of the United
States of the view which Great Britain sets up,
shown in the form of the question put by Mr.
Secretary Hay to Mr. Tittmann, in reply to which
the latter gentleman returned his statement and
the other papers to be noAv discussed.
That question is as follows : —
U.S. App., p. 529. " What are the facts, and especially what is the
evidence presented by the joint surveys and explora
tions of the International Boundary Commission of
1893-1895 in regard to the existence of a mountain
range in Southeast Alaska corresponding to that con
templated as the line of demarcation by Articles 3
and 4 of the treaty of 1825 ? "
lb., p. 529. Notwithstanding the very precise terms of this
question, the statement of Mr. Tittmann and the
depositions which he enclosed in response to the'
question of Mr. Secretary Hay hardly touch,
while they go far beyond, the special enquiry
made, and they attempt to deal with the subject
on a basis which is submitted to be far Avider
than is here open, and which further is in its.
nature most unsatisfactory.
Great Britain, taking the view above indi
cated, has limited her presentation to the Report
of the International Boundary Commission, intro
duced by the declaration of her Boundary Corn-
British App. I, missioner, Mr. W. F. King, who (resting on the
p. 307 et seq. material presented by the Report of the Boundary
Commission, to which he was able to add the
statement of his personal knowledge of and con
currence in the facts and results deduced from the
Report), set out such facts and results and the
line and mountains which, as he was satisfied, the
Report established.
And Great Britain now rests on these materials,
as to which it may be convenient at this point to
make some explanation.
The principle of the contour maps is to indicate
elevations by lines, each of which represents an
increasing elevation of 250 feet. Thus, by finding
the number of lines at any point, and multiplying
by 250, the height of that point is ascertained ;
and by extending these observations to the form.
of the contour line under examination, the>

62
character and trend of the mountains is made
apparent. Again, the principle of the phototopographic
system is to take from ascertained points views of
areas also ascertained, whereby the details may be
accurately filled up in the maps. These photo
graphs are very numerous, exceeding 3,000. The
selection presented in the album as Appendix II
to the Counter-Case, consists of 150 of these
photographs which have been enlarged, and which
serve to illustrate the appearance presented by
the mountains on the line suggested by the
British Case.
It is, of course, possible to enlarge in like
manner any others of these photographs chosen
on any principle which the Tribunal or any expert
named by it may desire. But in view of the
limitations of time, it was impossible, and in view
of the expense it was inexpedient to carry further
the enlargement until the Tribunal should give
directions in the matter.
Turning no\y to the statements presented by
the United States, it is not; proposed to deal
exhaustively with them at this moment ; but
some observations may be made.
It is to be remarked in the first place that they
are, of course, all in response to the enquiry of
Mr. Secretary Hay as to the existence of "a
mountain range," while the Treaty does not speak
of a range ; and secondly, that they all. better
these instructions by definitions still more remote
from the language of the Treaty.
For example, Mr. Tittmann says that — U.S. App., p. 530.
'¦There does not exist any defined or continued
mountain range or chain running generally parallel to
the coast, and situated anvAvhere oceanward froni a line
projected from the head of Lynn Canal southward and
draAvn to the 5Gth parallel to a point near the head of
Portland Canal, such line being parallel to the sinuosities
of the coast line av hich proceeds round the bays and
inlets and not more than ten marine leagues therefrom."
Again, Mr. Ogden says : — ¦ lb., p. 532.
" I am satisfied that there is not, Avithin ten marine
leagues from the coast, any continuous chain of moun
tains in the form of a summit range running from the
5(ith degree of latitude until it intersects in the northern
direction with the 141st degree of longitude."
Again, Mr. Hodgkins says :— ib., p. 534,
"It, is my belief; that, there, is no such continuous.
chain of mountains within ten marine leagues, of, the

63
coast — that is, from the heads of the inlets and bays,
and running in a direction parallel to the general
direction of the coast between Portland Canal and
Lynn Canal, as seems to be contemplated by the
language of the Anglo-Russian Convention of 1825."
U.S. App., p. 535. Again, Mr. Baldwin says :—
" There does not exist anywhere within those regions"
(those described by Mm between GhilkoOt Pass and Iskoot
River) " Avithin ten marine leagues from the coast, any
thing like a defined mountain range extending in a
general direction north and south parallel Avith the
coast." He also declares that the mountain formation
is without anything like the continuity of a
mountain range extending north and south ; and
he adds that—
lb., p. 537. " There ie no such range as1 that above described
and Avithin the territory described, situated to the west
of a line drawn from CMlkoot Pass southerly to Iskoot
River, said line being drawn parallel to the coast
line whieh bounds the heads of the inlets, bays, and
interior waters, and not more than ten marine leagues
from same."
He proceeds to negative the existence within
any of the territory he describes of- —
"Any defined mountain chain running north and
south generally parallel to the coast, which in its
trend goes across the Iskoot. Stikine, and Taku rivers,
or either of them, or across Taku Inlet or Lynn Canal,
and which, but for being pierced by them or either of
them, would constitute what could be (dissociated from
the surrounding peaks or mountains') designated as a
contihiidtfg or ifldividualized mountain chain or range."
Ib., p. 537. Again, Mr. Memer says : —
"As far as my observations" (in certain territories
referred to by him) " have taken me, there is no indica
tion of any coastal mountain range, nor are there
mountain formations strung out in a direction north and
south." And he speaks bi^~
" Irregular but bold projections, appearing isolated or
in groups, never in continuous range or chain."
Now these definitions of what mountains the
Treaty demands and where ; these definitions of
what the deponents deny to exist, are not, it is
[769] K

64
submitted, correct definitions, and thus the denials
can prove nothing.
The correct definitions are, it is submitted, such
as appear in the British Case and in the British
Appendix. But the grounds on which the denials are made
are quite unsatisfactory. Speaking generally, the
opinions of the deponents are based not on the
Report of the Commission, but on observations
which the deponents say they have made in
certain limited localities, or on general views un
supported by anything in the nature of an obser
vation, properly so-called, of the mountain scenery,
glimpses which they had in common with all
travellers passing along the usual routes to the
north, from Puget Sound and British, Columbia.
Among' these travellers are many, including -^PP-> PP- 57-62.
scientific men of standing, who have written
articles descriptive of the topography of these
regions. Their deductions from what they saw
may be contrasted with those of the United Ib-> PP- 52> 5S
States' deponents. Reference may also be made
in this regard to the " Coast Pilot," and other
official publications of the United States.
Furthermore, many of the observations and
views upon which those deponents base their con
clusions, were obtained, not at all in connection
with the International Survey, but at other times,
and in the course of other work with other ends
in view, and it is obvious that hardly any of these
denials have relation to the results of the Report
of the International Survey.
It is unnecessary to dwell here upon the many
evident inaccuracies in these depositions. One of lb., p. 73.
these is met by the declaration of Mr. McArthur,
which will be found in the Appendix. Further
consideration of the faultiness of the depositions
upon which the United States rest their answer
to the seventh question is reserved for a later
stage. In concluding this part of tbe Counter-Case, it
is submitted that it is for the Tribunal to de
termine Avhat description of " mountains " is
required by the Treaty, Avhether that for which
Great Britain, or that for which the United
States, contends.

65

U.S. NEGOTIATIONS WITH RUSSIA
FOR RENEWAL OF TRADING
PRIVILEGES.

The next section of the Case for the United
States deals with the negotiations between the
United States and Russia for a renewal of trading
privileges. These negotiations have already been
referred to in this Counter-Case. The purpose
for which they are introduced into the United
States' Case is apparently to show that in 1845
the United States finally recognized Russian
sovereignty over the North-west coast of America
north of latitude 54° 400 This is not denied ;
and it has already been shown that it does not
affect the British contention.

[769] K 2

66

ACTS OF OCCUPATION.

I.-RUSSIAN OCCUPATION

A larg,e part of the Case for the United States, Russian occupation,
and of the evidence contained in the Appendix ~
thereto, relates to the action of Russia, and sub
sequently of the United States in the region
through which the boundary runs.
This matter is, of course, introduced pursuant
to the provision at the end of Article III of the
Treaty under which this Tribunal sits. That
clause requires the Tribunal to —
"Take into consideration any action of the several British App. I,
GoA'ernments or of their respective Representatives, ""
preliminary or subsequent to the conclusion of said
Treaties, so far as the same tends to show the original
and effective understanding of the Parties in respect to
the limits of their several territorial jurisdictions under
and by virtue of the provisions of said Treaties."
This states with precision the limits within
which, and the purpose for which, the evidence in
question is admissible. These must be borne in
mind throughout.
In the first place, the evidence must disclose
" action of the several Governments or of their
respective Representatives." This excludes all
private action, and, a fortiori, all private expres
sion of opinion, whether by map makers or others.
Next, this action must be "preliminary or
subsequent to " the Treaties. This excludes any
action before any of the Treaties were contem
plated, such as the alleged Russian visits before
1821. Again, the action must tend to show " the
original and effective understanding of tbe
Parties." It is not a question of showing what
view was taken and contended for after the
question was raised, still less Avho was in posses
sion when the Treaty of Arbitration was entered
into. In addition, the understanding which the
action must tend to show is that of "the parties,"
that is to say of both Parties. .Action by one
Party not known to the other Party will not tend
to show this.

67
The understanding revealed must, moreover, be
as to the limits of their several territorial juris
dictions under and by virtue of the provisions of
the Treaties. It is, of course, admitted by Great
Britain that Russia, and subsequently the United
States, had territorial jurisdiction along all the
face of the coasts, and the dispute is only as to
the upper portion of the inlets. All action on the
face of the coast or at the mouths of the inlets is,
therefore, immaterial.
In dealing with this part of the Case for the
United States, it is necessary on behalf of Great
Britain to draw attention to the circumstances
under Avhich this Counter-Case is prepared.
Not only has there been no time to check or
answer much of the evidence, but the documents
themselves, printed in the United States' Ap
pendix, have not been produced for inspection.
Even Avhere these appear to be printed in full and
in the language of the original, the elementary
principles of justice require that the Party against
whom they are used should, before dealing with
them, have the opportunity of seeing the original.
Where, however, as is frequently the case in the
United States' Appendix, all that appears is an
uncertified translation by an unnamed translator,
or extracts only from documents not accessible to
both Parties, tho case is much stronger.
In the following pages Great Britain deals Avith
these documents on the assumption, for the
moment, that they are correct copies ; that all
translations are accurate, and that nothing
material has been omitted from documents ex
tracted only. But she admits none of these
things ; and no argument addressed in the fol
lowing pages to the evidence on the documents,
as they appear printed in the United States'
Appendix, is to be taken as Avaiving her elementary
right to full inspection and to an opportunity for
challenging, in the case of any document the
original of which is not accessible to her, either
the correctness of the copy printed, the accuracy
of any translation, or the completeness of any
extract. In the case of extracts, she further
expressly claims the right to the benefit of any
evidence which may prove to be contained in the
parts omitted which she may be advised is in her
favour, either as qualifying the effects of the
extracts or as supplying information of importance
in itself.

68
¦ The first act of Russia after the Treaty is stated U.S. Case, p. 72.
in the Case for the United States to have been
the publication, in 1826, of a map, on which the
boundary is described as being . laid down at a
distance of 10 marine leagues round all the inlets
of the sea. As was pointed out in the British
Case, a boundary drawn under these circum-
¦ stances (and the remark applies to all the maps)
, cannot have been intended as a line applied upon
ascertained topography. The Treaty proceeded
upon the basis that the position of the mountains
on Avhich the boundary depended was unascer
tained, and they remained unascertained Avhen
this map was published. If it be true that the
line on this map does follow a course running at
10 marine leagues from the shore of the inlets,
. that fact alone shows that the boundary indicated
was not an ascertained one, as it Avas not known
at that date whether the provision as to the
10 marine leagues would come into play.
As Mr. Bayard remarked in 1885, and as the
contention of Great Britain is, the boundary shown
on the maps was only a paper boundary to be
worked out when the application of it upon the
ground should become a practical question. It
had not become a practical question Avhen this map
was published, nor did it become so until recently.

The action of Russia, on which the United lb., pp. 72, 73.
States relies, is treated under five different heads :
(1) Control over the Indian tribes ; (2) the conduct
of trade ; (3) the establishment of posts and forts ;
(4) the maintenance of territorial rights against
foreign encroachments ; and (5) the survey of the
straits, inlets, and rivers.
Under the first head reference is made to the
voyages of Ismailof in 1788 and Baranof in 1795.
The United States' Appendix contains certain
Memoranda from the Hydrographic Department U.S. App., p. 251.
of the Ministry of Marine at St. Petersburg, and
extracts from Coxe's "Account of Russian lb., p. 254.
Discoveries," and Dr. Krause's " Historical Re- lb., p. 256.
view," as affording evidence of what took place on
these voyages. From these sources we learn that
Ismailof's voyage never extended beyond Ltua
Bay. On his way thither he stopped, hoAvever,
at Yakutat Bay, where he received a visit from a
Chief, who is described in the Russian Memoran
dum as " living near a large river, called Chilcate, lb., p. 252.
southwards from the Bay Ltua ;"' in Coxe as

69
U.S. App., p. 254. having " his principal residence on the coast to>
the south-east, much farther than the great river
lb., p. 256. Tschitiskat," and by Dr. Krause as " belonging
on the great river Tschilkat." This Chief is said
to have been presented Avith the Russian coat-of-
arms in copper, and the portraits of some
members of the Imperial family, as a token of his
acceptance of 5Russian protection.
The River Chilcat is not, in fact, a great river
at all. and it is not correct to describe it as south-
Avard from L'tua Bay. One account, moreover,
states that this Chief came from far bevond the
river referred to. The coast at that date had not
been charted. Under these circumstances the
Russians could not have had any definite con
ception of the territory to which this ceremony
was supposed to give them a title, ahd in any
view it cannot be said that this incident in 1788
can be regarded as action tending to show the
original and effective understanding of the Parties
to the Treaty of 1825.
lb., p. 257. The voyage of Baranof is not referred to except
in Dr. Krause's "Historical Review," where it is
stated that in 1795 Baranof sailed to Yakutat
Bay, where, notwithstanding the previous acts of
Ismailof, he claimed the credit of establishing
" amicable relations Avith the natives," and " with
great e"clat planting the Russian flag on the
shore." He is said to have then continued on to
Tschilkat Bay with thirty men, where he in es7ery
possible place had crosses erected with the inscrip
tion, " This land is Russian territory."
It does not appear what Baranof regarded as,
Tschilkat Bay, and this extract does not show
that Baranof ever penetrated to the head of Lynn
Canal, or that he knew how far that inlet ex
tended into the land. It appears from the docu
ments printed in the United States' Appendix in
connection with the affair of the " Dryad," that as
lb., p. 235. late as 1835 the Russians spoke of Lynn Canal
as " Chilkat Strait, named Lynn Canal by Van
couver." It is, therefore, quite consistent with
the account given by Dr. Krause that Baranof
never got further than the mouth of Lynn Canal.
The extract in question certainly does not show
that Baranof reached, or even kneAv of Chilcat'
River. With reference to these allegations as to the
action of Russia in 1788 and 1795, it is to be
remembered that in the controversy aroused by
the Ukase of 1821 the United States consistently

70
declared that Russia had no settlement on the
continent south of the 59th degree of north lati
tude, and that she could not even claim the rights
of first discovery. This topic has already been
alluded to in this Counter-Case, and the position
taken by the United States on this point is made
still clearer by reference to the observations and
accompanying notes communicated with Mr.
Adams' letter to Mr. Middleton of the 22nd July,
1823. These documents were not printed in the
Appendix to the Case for the United States.
They Avill be found in the Appendix to this
Counter-Case. For eight years after the Treaty the Russians
cannot be shown to have visited any spot which,
upon the contention of Great Britain, would not
have been in their territory. It is stated in the
Case for the United States that they sent out U.S. Case, p. 75.
annual expeditions to the head of Lynn Canal,
Taku Inlet, the mouth of the Stikine River, and
then appointed places of rendezvous, where the
barter for furs was conducted. So far as concerns
Lynn Canal and Taku Inlet there is no evidence
of this in the Appendix to the United- States'
Case. On the contrary,- as will be pointed out
hereafter, the evidence is that they were ignorant
of these places at least till 1833 or 1834. It may
be observed, however,, that any trading by the
Russians in the inlets before 1835 would be
immaterial, because, under Article VII of the
Treaty, they were entitled to trade in British
waters during that period.
In 1832 the Russian authorities at Sitka
became alarmed on hearing that the Hudson's
Bay Company were about to establish a settle
ment up the Stikine. On the 6th May in that
year the Governor wrote to the Directors of the
Russian Company asking for merchandi7e to
enable the Russians to visit the straits themselves,
it being impossible to visit the Kolosh empty
handed. A report of the 28th April, 1834, shows U.S. App., p. 265.
that he received these supplies and entered into lb., p. 265.
direct communication with the Kolosh of the
neighbouring straits, sending a vessel to their
settlements and endeavouring to establish a
settlement on an advantageous point for this
trade. Next year he fitted out the brig " Chichagoff," lb., p. 265.
under Captain Etholine, to navigate all over the
principal parts of the Russian straits to get
acquainted with the localities, the inhabitants,

71
and the mode of trade with them, and report on
all these points.
From subsequent passages in the same despatch
it appears that this voyage was mainly employed
in exploring the straits between Sitka and the
Stikine, and it does not appear that Lynn Canal
was visited. The Governor announced, however,
that he intended to send next year a schooner,
then in construction, to trade in Chilkat under
2nd Lieutenant Kuzuetsof. The extract from
•this despatch, printed in the Appendix to the
U.S. App., p. 267. United States' Case, ends with the statement
that until further instructions the Governor
would hinder the British by force from sailing up
the Stikine River.
Two months after this despatch was written —
namely, in June 1834 — the British expedition in
the "Dryad" was accordingly stopped by the
Russians at the mouth of the Stikine.
During the same summer, as, appears from a
despatch of the 30th April of the next year (1835)
from the Governor to the Board of Directors, the
lb., p. 276. schooner " Chilkat. " was at Chilkat for " trading
purposes ; " and a letter of the 30th March, in the
same year, discloses that on their way thither the
lb., p. 273. Russians had discovered the River Taku. The
same letter shows that in 1835 it was intended to
lb., p. 274. visit Chilkat.
Ib., p. 291. On the 12th March, 1836, the Directors,
acknowledging the Governor's despatch above
quoted, noticed with pleasure that the scope of
Russian operations increased through acquaintance
with Chilkat, and that there was hope of obtain
ing furs from the natives of that bay.
It appears that in 1838 orders were again given
lb., p. 303. to a Russian vessel to visit Chilkat and Taku for
trading purposes with the inhabitants and for the
survey and sounding in a proper manner of the
mouths of these rivers.
Ib., p. 312. The survey of the mouth of the River Chilkat
was reported to have been accomplished in a
despatch of the 20th April, 1839.
From the documents above referred to, it
appears that— at least, till 1832— the Russians
were ignorant of Lynn Canal. They had not even
discovered the Taku. It must not be assumed
that when they refer to "the straits" Lynn Canal
is referred to, or that the Kolosh were Indians
from Lynn Ganal. In his despatch of the 30th
April, 1835, Baron Wrangell refers to the Stikine
as " the most important point of the straits for
[769] L

72
trade with Kolosh," and in all the documents of
this period printed in the Appendix to the United
States' Case the Stikine Indians are always called
Kolosh. The term translated " straits" in these
documents is used to denote the narrow seas
adjoining the mainland or between the islands on
the coast.
The action of the Russians in sending to
Chilkat during the period between 1833 and 1838
was taken under somewhat peculiar circum
stances. It was part of the effort made by Russia >
to meet the competition of the Hudson's Bay
Company. Baron Wrangell had, as already
mentioned, declared his intention of preventing
by force the navigation of the Stikine by the
British. The view on which he acted was in
direct conflict with the provisions of the Treaty,
and was disavowed by the Russian Government.
It is not probable that he was guided in his
determination to send vessels to Chilkat by any
more scrupulous regard for Treaty obligations.
But the whole question of the right of the parties
in this neighbourhood was no sooner raised than it
was settled until 1867, by the lease of the lisiere
to the Hudson's Bay Company.
Throughout this period the Stikine was con
sidered the most important point for trade, and
in the renewals of the lease the country leased,
which in fact extended to Mount Fairweather,
was always referred to as " the Stikine country."
In the Case of the United States, several
instances are given of the Russians bringing
influences to bear upon the natives. The centre
of these efforts was always at the Stikine. It
can never be shown that anything of this sort
took place in Lynn Canal. The facts referred to
have therefore no significance.
The Russians never exercised dominion in
Chilkat. As stated in the Report of the Governor
of Alaska for 1902, printed in the Appendix, the App., p. 18.
Russians avoided the Chilkats as much as possible,
and according to the depositions of In-da- Yonk,
put in evidence by the United States, the Chilkat U.S. App., p. 441.
Indians, among whom he was raised, considered
the Russians merely as traders temporarily in
their country. p
The affair of the " Dryad " is said to throw light lb., p. 78.
on the present controversy as illustrating in a
forcible manner why the Russian Company and
its government were so firm in their position
during the negotiations of 1825 that a strip of

73
territory should be preserved on the shores of the
continent of sufficient width to act as a barrier to
keep the Hudson's Bay Company from interfering
with their trade in furs with natives inhabiting
those shores. In the view of Great Britain the
illustration afforded by the incident is of the
opposite tendency. It shows that the provisions
admittedly made could not have that effect. The
navigation of the rivers was fatal to any barrier,
and the admission of it shows no such idea was
thought of.
In the United States' Case some stress is laid
on the fact that the proposed settlement of the
U.S. Case, Hudson's Bay Company on the Stikine was to
Y\T\ 7ft— ftft
yy' " have been 10 marine leagues from the sea. It is
obvious that this distance was chosen because at
that spot the territory would be in every possible
event British. It is surely not contended that the
projectors of this settlement are to be taken to
have satisfied themselves that there existed no
mountains, answering the Treaty description,
lower down the course of the river.

[7691 L *

74

II.— UNITED STATES' OCCUPA
TION.

In 1867 the Russian possessions in America
were transferred to the United States. As stated
in the Case for the United States, the Government U.S. Case, p. 84.
of the latter Power were, at the time of the Treaty
for the cession, fully conversant with the negotia
tions that had taken place in 1824 and 18.25, and
with the Treaties concluded in those years, and
had also the maps and charts which had been
published. With regard to the maps it is not possible that
the Government of the United States should have
believed that the boundary marked represented a
delimited frontier. They knew that the Russian
possessions had been in the hands of a Fur Com
pany, whose rights on the mainland had, for nearly
thirty years, been leased to a British trading
Company. Nothing can be pointed to calculated
to induce a belief on the part of the United
States' Government that the maps represented
the ascertained boundary upon the ground.
The United States' Government must, under
these circumstances, have had recourse, for the
purpose of ascertaining what they were buying,
to the Treaty of 1825, and they must be taken
for the purpose of any judicial inquiry to have
correctly understood its provisions. In any case
the United States took what Russia had to give,
and no more — Avhat this was depends upon the
true construction of the Treaty of 1825, which is
the question now submitted for the decision of
the Tribunal.
In taking possession of their new territory the
United States appear, from the documents printed
in the Appendix to their Case, to have sent a
revenue-cutter to investigate and report upon the
coast territory, and the officer in command
extended his voyage to Chilkat inlet. Here, it
is stated in the United States' Case, he received
in return for presents the professed allegiance of
the Indians, and made certain local investigations.
It is important to realize the exact situation of
the Parties. The Hudson's Bay Company had
been under their lease trading upon this coast.
The termination of this lease necessarily involved

75
their withdrawal from their station at the mouth
of the Stikine and all their principal trading
grounds. They never had any station upon the
Lynn Canal, and had no interest in asserting the
right of the British Government to any part of it.
Indeed it does not appear that they knew any
thing of what is said to have taken place, and the
British Government itself knew nothing of the
proceedings of the United States' revenue-cutter.

From this point forward it only remains to
consider the action of the United States as set
forth in the Case and Appendix presented on
their behalf. The difficulty in which Great
Britain finds herself with regard to dealing with
the matters of fact alleged under this head have
been already referred to. Even if it could be
assumed that the facts put forward by the United
States are not susceptible of substantial contra
diction or qualification, there are still a number of
considerations which must be kept in view in
estimating the weight of the arguments founded
upon them.
The question here has not reference to an un
occupied region not affected by Treaty, and even
if it were conceded that the action of the United
States might be sufficient, in the absence of any
determination by Treaty, to give a primd facie
title to the waters of the inlets, it must be re
membered that the test to be satisfied in this
case is of a totally different kind. The dispute
turns on the construction of the Treaty, and
subsequent action can be referred to only in as far
as it throws light upon this question.
As has already been pointed out, the action
relied upon must be such as to show the under
standing pf both Parties. This is necessary to
the admissibility of such evidence at all. It will
be important, therefore, while following the course
of United States' action locally to have regard
concurrently to the diplomatic position existing
between the two countries from time to time, with
reference to the boundary.
From 1867 to 1877 the Government of Alaska
was committed to the military authorities.
During this period the Case of the United
States reveals three visits to the head of Lynn
Canal by General Davis, one by Mr. Seward, and
one by General Howard. There were also five or
six occasions when United States' revenue-cutters

76
or vessels belonging to the navy visited this spot.
There was no military station nearer than Fort
Wrangell, and on the occasions of the visits above
referred to, although there were the usual inter
views with the Chiefs, nothing was done on land ;
and the Chilkat country remained closed to white
men till 1879.
In 1877 the duty of administering the Govern
ment of Alaska was transferred to the navy. In
1879, by means of the influence of certain Chilkat
Indians who had come to Sitka and there taken
service with the United States' Government,
Captain Beardslee succeeded in obtaining what
he himself describes as the removal by the Chiefs
of the Chilcat and Chilcoot tribes of all prohibition
to the white men from entering their territory
which prohibition had alw'ays been strictly main- U.S App. p. 365.
tained. It is to be noticed that Captain Beardslee
instructed the officer who was charged with this
mission that he was to inform the Indians that if
they did not keep their promises, no Chilcat
Indians would in future be allowed to land at
Sitka. His instructions expressly stated that lb., p. 368
there was " no governing power or code of laws in
existence in the Territory," and authorized him to
use his own discretion in all emergencies that lb., p. 365
might arise."
The Secretary of the Navy in acknowledging
the services rendered by Captain Beardslee, noted
the fact that "no law existed in Alaska." Captain lb., p. 364.
Beardslee's report states also that his position
with regard to the Indians would have been very
complicated had he made effort to control them in
accordance with the provisions of the revised
Statutes bearing upon Indian affairs ; for nearly
all of the sections presupposed " a very different
condition of affairs than prevailed in Alaska." As
up to this date there were none but Indians in
Chilcat, it follows that there was no government
there under the laws of the United States.
By virtue of the permission obtained under
Captain Beardslee's auspices, a pioneer party of
miners entered the Chilcat country ; and a salmon
cannery, a trading store, and a Presbyterian
Mission were shortly afterwards established by
private persons. There was, however, no pro
vision for acquiring title to land or even to mining
claims. In 1884 an Act was passed providing Civil
Government for Alaska. The territory was

77
created a land district, a land office being located
U.S. App, p. 493. at Sitka. The United States' mineral laws were
extended to the district, subject to regulations
to be made by the Secretary of the Interior,
approved by the President. These regulations
were made on the 28th July, 1885. The earliest
mineral location in the vicinitv of Lynn Canal
was at Berner's Bay, and was made on the
3Cth May, 1885, and registered on the 3rd June,
1885.. The Patent was not obtained till the
lb., p. 494. i6th February, 1900. The date of the earliest
lb., p. 495. Patent disclosed in tbe United States' Appendix
is the 1st August, 1894.
Although Civil Government had been intro
duced in 1884, it is shown hy the Reports of the
App., pp. 19-36. Governors from 1884 to 1902, extracts from which
are printed in the Appendix hereto, that it was
merely nominal. In 1888 the then Governor
wrote, " the Civil Government of Alaska is little,
if any, better than a burlesque, both in form
App., p. 23. and substance." This no doubt applied, a fortiori,
to the district at the head of Lynn Canal, and on
the other inlets. Each successive report makes
the same complaints, dwelling especially upon the
withholding of land laws. The report for 1902
lb., p. 34. states that legislation extending the homestead
laws to Alaska had passed in 1898. It is added,
lb., p. 35. however, that as these laws applied only to sur
veyed land, of which there was none, not a single
homestead entry had been allowed.
At this point it is convenient to refer to what
had passed between the Governments of Great
Britain and the United States with reference to
the Alaskan boundary up to the date of the
introduction of Civil Government. Reference
is made, for this purpose to the Summary con
tained in Chapter II (pp. 28 and following) of the
British Case. It will be seen that the delimita
tion of tbe boundary had been suggested by
Sir Edward Thornton to Mr. Fish in 1872.
Between 1875 and 1»78 there had been frequent
interchange of views with reference to the Stikine,
from which it clearly appears that the boundary
remained to be applied when the topography
British App. r, should be ascertained. In 1884 Mr. Dall put
p- forward the theory that the mountain boundary
lb., p. 249. was inapplicable. In 1885 Mr. Bayard declared
the boundary shown on the maps to be conjectural
lb., p. 254, and theoretical, and in 1886 Mr. Phelps stated
that the Treaties really gave no boundary at all.
This was the position of affairs at the moment

78
when the action of the United States, relied upon
in the United States' Case as showing the under
standing of the Parties, becomes the subject of
more frequent reference.
From 1884 Lieutenant John Stewart, under
Lieutenant-Commander Nichols, was, on duty in
the waters of South-East Alaska. A letter from
Lieutenant Stewart, dated the 14th March, 1903, u-s- App., p. 401.
states that he was on duty on board the " Pinta"
from September, 1884, to October, 1886, and that
during these two years he was several times sent
to Dyea to preserve order between the Indians
and miners, with discretionary orders as to how to
act in case of trouble. He states there were a
few arrests of Indians for witchcraft and illicit
distilling, but these arrests are not mentioned in
the log of the " Pinta," and Lieutenant Stewart lb., p. 398.
states that he does not know whether or not they
Avere made' by the order of the civil authorities.
The first arrest, followed by a trial, disclosed by
the United States' Appendix, was that of Klannot,
in 1887. The United States' Appendix prints a
number of memoranda of cases tried, arising on
Lynn Canal, the first of which is in 1887. In lb., p. 407.
1887 exclusive use of the trail over Chilcoot
Pass was still being claimed by the Indians. A ib., p. 393.
Customs station was not established at Chilcat jb. p. 447
till 1890.
Returning for a moment to the diplomatic cor
respondence, it is to be remembered that in 1887
the United States had notice, through Mr.
Dawson's letter referred to in a Message of the
President, that, according to the Canadian conten
tion, the boundary crossed inlets, and the map
contained in the Report showed it as crossing
Lynn Canal near Berner's Bay.
Great Britain contends that the whole of the
facts must be looked at together, and that, even
assuming that those who represented the United
States in Alaska were taking the view that the
whole of Lynn Canal was in United States'
territory, still, inasmuch as it appears that as
between the two Governments the true location
of the boundary was treated as undetermined, the
view acted on locally becomes of no importance.
Such then was the position of affairs when, in
1892, the Parties, each Avith full knowledge of
the contentions of the other, agreed to have a
coincident or joint survey of the territory, with a
view to the ascertainment of the facts and data
necessary to the permanent delimitation of the

79

From a despatch
of Secretary
of State,
Frelinghuyson,to Mr. Romero,
July 10', 1884,
found in

boundary line in accordance with the spirit and
intent of the existing Treaties between Great
Britain and Russia, and between the United
States and Russia. This was a plain Agreement
that the boundary was then uncertain, and a
matter as to which there was cause of difference ;
but there was then no suggestion that Articles HI
and IV had been already interpreted by the
United States with the acquiescence of Great
Britain in such a way as to bring these inlets
within the line to be drawn in the absence of a
mountain boundary, or establish the principle that
no such boundary existed.
These were both questions to be settled by the
facts and data to be ascertained, and it is out of
the question now to argue that they had been
already settled by the conduct of the Parties, or
that they could be prejudiced by future action
taken while the inquiry was proceeding.
So far as Great Britain was concerned, there is
no reason to suppose that she was aware of any
of the occurrences in Lynn Canal now disclosed
by the Case for the United States. As to the
action relied upon between 1867 and 1880, con
sisting as it did merely of occasional visits by
officers in United States' vessels, leaving no
impression of government upon the country, and
not affecting any white man, it is in the nature of
things almost impossible that the British Govern
ment should have knowledge of it. But all these
things were within the knowledge of the United
States Avhen they entered into the Convention of
1892. The ignorance and absence of action by Great
Britain with respect to this territory cannot be
relied upon as showing acquiescence in the actions
of the United States. The question was at that
time of no practical importance, the territory was
remote, and as the Treaty of 1825 stood as a
record of the rights of the Parties, there was
no obligation upon either nation to watch for any
dealings by the other with the subject-matter of
that arrangement.
No nation has expressed this general view more
plainly or forcibly than the United States, as the
following extracts show : —
" The Government must deny the implication conveyed
in your note of the 12th June, and its accompaniments,
that the United States have tacitly acquiesced in the
jurisdictional rights from time to time assumed by the
Mexican local authorities over the territory covered by
[769] M

80
the islands in question. No case in point has arisen to Wharton's Digest
call the attention of this Government to the question. ° , . e ,n, " .
The owners of the land were Mexican citizens, as it the United States,
appears, and their acquiescence in the Mexican claims section 30, 2nd
of jurisdiction over their land, although natural under pp 87-89.
the circumstances, was wholly devoid of any confirma
tory power as against the rights of the United States
under the Treaty. It was not until very recently, when
the action of the Mexican authorities at Mier developed
a wholly untenable claim to jurisdiction over a broad
tract of low-lying land on the United States' bank of
the river, which land it was pretended had at some
time become united with one of the islands through the
filling up of the waterway between them, that a case
calling for investigation and action was presented,
involving also, as it does, the question of the true
ownership of the island claimed to have been enlarged
by the accretion of United States' territory. The
rights of the United States in the premises remained,
perhaps, dormant, but without laches on their part, and,
on the issue being re-vived those rights revive, too, in
all their force."
" The right of Great Britain to the territory had never From the definitive
been called in question by the United States before the statement of the
. . United states on
negotiations at Ghent in 1814, because it was then for the reference to
the first time made known to them that Great Britain the King of the
intended to set up such a claim. And her right to the t^e Majae
possession of the Madawaska Settlement was not called Boundary, p. 59.
into question, or even alluded to at Ghent, because it
had not been ascertained at that time whether that
settlement lay east or west of the line draAvn due north .
from the source of the St. Croix.
."That line was not surveyed till the years 1817-18 ;
and this is also the reason why the inhabitants of
Madawaska were included in the American Census of
the year 1820 and not in that of the year 1810.
" The remoteness of the territory on the waters of
the River St. John from the American Settlements,
which did not extend far up the Penobscot, had
rendered other acts of jurisdiction on the part of the
United States unnecessary prior to the war, which was
terminated by the Treaty of Ghent. And their subse
quent, forbearance since that question has become a
subject for discussion, notwithstanding the continued
usurpation of New Brunswick over the contested terri
tory, is very improperly converted into an assertion of
exclusive and undisturbed possession by Great Britain."
Reference might also be made to the attitude
of the United States, with regard to the position
of the international boundary line near Pern ina,
Minn., and also at the St. Clair Flats. App., p. 85.
Before leaving this part of the subject reference
must be made to the two towns of Dyea and
Skagway. These sprang up in consequence of the
rush of miners to the Klondike in 1897, as stated

81
in the British Case. Nothing that occurred at
that date could, however, affect the question. As
a matter of fact it appears from the deposition of
Mr. Wickett, printed in the Appendix hereto, that
Dyea has already fallen into decay and Skagway
is rapidly declining. In the case of Dyea, the
population, which during the rush was 12,000
souls, has dwindled to a single individual. The
district at the head of Lynn Canal has, in fact, no
importance as part of Alaska. Its whole value
lies in its connection with the Canadian Yukon.
It is an economic unit with British Columbia and
the Yukon Territory.