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THE COUNTER CASE OF THE UNITED

STATES.

INTRODUCTORY STATEMENT.

The United States, pursuant to the provisions of Article II of the treaty of January 24, 1903, herewith submits to the Tribunal created thereunder, its printed Counter Case and additional documents, correspondence and evidence, in reply to the printed Case, documents, correspondence and evidence presented to the Tribunal on behalf of Great Britain.

The United States, considering that the scope of the printed Cases was to set forth the positions of the respective governments as to the matters in controversy without reference to the attitude heretofore taken by the other, did not in its printed Case anticipate the claim which it was presumed would be advanced by the British Government, or adduce evidence to controvert the same. Furthermore, had such a course, in the opinion of the l'nited States, been in accord with the intent of the treaty of January 24, 19903, that government would have been embarrassed in pursuing it by reason of the varied and conflicting claims, which have been from time to time in recent years advanced by public men and writers in Canada, as to the delineation of the boundary line now under consideration. As a further reason for avoidance of such a course by the l'nited States, the Government of Great Britain had never officially indicated which, if any, of the several lines heretofore proposed by Canadian statesmen, writers and cartographers would receive its official approval and support.

Under these circumstances the United States deems that it would have been inappropriate on its part to have followed a method of treatment based solely upon conjecture as to the attitude which would be assumed by His Majesty's Government. Moreover, since the attitude of Great Britain was uncertain, the concessions which might be made on her part were equally so. It was, therefore, a matter of

1

speculation how relevant and how material, if at all, would be evidence establishing British and Canadian acquiescence in, and agreement with, the interpretation placed upon the treaty of 1825 by the l’nited States, until the British Government had distinctly defined its position in the Case, which it has submitted to this Tribunal.

The United States, therefore, in this ('ounter (ase presents to the Tribunal the evidence of such acquiescence by British authorities and subjects in the boundary line set forth in the Case of the United States, together with such other evidence in substantiates the reply of the United States to the claim of Great Britain or such as is in rebuttal of the evidence adduced in the Britih Case.

THE BRITISH NEGOTIATIONS OF 1823-1825.

The l'nited States has no further evidence to present as to the course of the negotiations which took place between Great Britain and Russia during the years 1923, 1524 and 1523; but since there have been submitted to the Tribunal in the British Case certain documents bearing upon this subject it becomes necessary to consider them in connection with the statement already made in the Case of the l'nited States. It is, however, contended that this additional evidence in no way alters any material allegation made in the Case, but on the contrary contirms and strengthens the position therein set forth.

The first document submitted by Great Britain and not included in the Appendix to the case of the United States is a memorandum enclosed in the letter of Mr. J. II. Pelly, the deputy governor of the Iludson's Bay ('ompany, to Mr. Canning, dated September 25, 1822." It contains comments upon the grounds advanced by M. de Poletica in his correspondence with Secretary of State Adams,” in support of Russia's claim to the Northwest Coast as far south as 51 north latitude. The memorandum, while it forms part of the correspondence, does not bear upon any question at issue before this Tribunal, other than to show that the officers of the Hudson's Bay Company examined the narratives of Cook, Vancouver, Meares, and Portlock for the purpose of traversing the argument of M. de Poletica, which it was natural to suppose would be reiterated in the approaching negotiations between Great Britain and Russia.

The second document demanding attention is a letter of July 25,

« British Case, APP, p. 25.

Bl. S. Case, App., PP. 32–38.

1823, from Mr. Canning to Sir Charles Bagot“ modifying a minor point in the instructions given the latter on July 12, 1823. It in no way affects any statement made in the Case of the United States.

The third document is the text of the full power of the l'nited States minister at St. Petersburg. It establishes no new fact, only emphasizing the object sought by the l'nited States in its negotiations with Russia, as set forth in the Case.

The fourth document is an unsigned memorandum dated January 13, 1824, and addressed to Mr. Canning. In this memorandum there appears to have been enclosed "a Russian Chart (copied from Vancouver's survey)" for the purpose of proving that Sitka was located upon an island. From the suggestion as to a boundary line through Chatham Strait and Lynn Canal being similar to the one proposed by Mr. Pelly, January 8, 182+, it would appear that this memorandum, like others utilized by the British Government, originated with the Hudson's Bay Company, the real party in interest. The chart mentioned is not produced, but it establishes the important fact, that there were Russian copies of Vancouver's charts, which, it may be presumed were consulted by the Russian representatives during the negotiations, and from which by retranslation were derived the names used in the correspondence and treaty drafts.

The fifth document is also a memorandum from the Iludson's Bay Company, dated January 16, 1821. It appears in the British Case as an enclosure to Sir Charles Bagot's instructions, though the latter are dated January 15, 1824, one day previous to the date of the memorandum. It is to be presumed, however, that if the document was not enclosed in that letter, it was forwarded in the letter of January 20, 1924," from Mr. Canning to the British minister at St. Petersbury, which enclosed certain information and suggestions" respecting the negotiation, which Mr. (anning stated he had received since his “ despatch on that subject was prepared“.

In this memorandum the writer, Mr. Pelly, said that, "as in the conversation he bad with Mr. Canning, he [Mr. Camning) seemed to consider Mr. Faden's map as the most authentic (an opinion which in so important a question as that of settling a national boundary, it may, perhaps, be dangerous hastily to admit) Mr. Pelly has had the posts of the Hudson's Bay Company, in that part of the territory under consideration, marked on it; he has likewise had coloured the proposed line from Lynn Canal, the northern extremity of Chatham Strait, as well as the less objectionable one from Mount Elias."

a British Case, App., p. 43.
bl'. S. Case, App., p. 12:3.
(British ('ase, App., p. 18.
d! Ibid., p. 59.

Ibid., p. 61.
1 Ibid, p. 65.
g Ibid., p. 59.
1 Ibid., p. 65.

The map, which was thus endorsed by Mr. Canning and which he, on account of his opinion as to its authenticity, doubtless forwarded to Sir Charles Bagot, would appear to have been the one published by James Wyld, the successor of W. Faden, London, June 1, 1823. The other so-called Faden map was not published until June 1, 1824, at which time the boundary line had been substantially agreed upon up to 56 north latitude. The first of these

maps,

therefore, was undoubtedly consulted both at London and at St. Petersburg as to the entire boundary, while the second could only bave been used in determining the line northward from the 56th parallel. These two maps will be considered more in detail in the discussion of the line of demarcation drawn by the treaty.

The sixth document is the letter of Mr. Canning to Sir Charles Bayot of January 20, 152, to which reference has just been made. The enclosures, which are not produced, appear to have been additional memoranda, containing information and suggestions, which, because of the extravagance of the views expressed, Mr. Canning was unwilling to endorse, as he was also unwilling to modify, in accordance therewith, his instructions of January 13, 1924. The nature of these suggestions can only be conjectured from the colors placed upon the Faden map, which made Cross Sound and Lynn Canal the southeastern boundary of the Russian possessions.

The serenth document is a letter from the Hudson's Bay ('ompany to Mr. Canning under date of April 19, 1824" Mr. Pelly had received from Mr. Canning a few days previously the despatch and papers sent to the Foreign Office on March 29. These he laid before the Committee of the Hudson's Bay Company, and he stated to Mr. Canning in this letter, that, if the British Government considered it advisable to accede to the last proposition made by Russia, his committee could see no reason to object to it. He suggested, however, that, on account of the lack of accurate geographical information, there should be inserted in the article of the treaty, "providing

British (ase, Atlas, No. 10. } Ibid., No. 11. € British Case, App., p. 65.

« Ibid., p. 78. + Ibidl., p. 66.

for the boundary on the mainland the nearest chain of mountains, not exceeding a few leagues of the coast."

The eighth document is another letter from the Hudson's Bay Company to the Foreign Office, dated May 26, 1824." To Mr. Pelly had been submitted for comment, on May 25, the copy of a communication, presumably, from the context, the one sent on May 29, 1824, by Mr. Canning to the Russian minister at London. This letter, containing his views, states that the proposed communication embraced all the points which appear necessary to secure the objects of the Hudson's Bay Company, with the exception of a more particular description of how the mountains range with the sinuosity of the coast, as it is possible that those mountains represented in the charts as closely bordering on the sea, and described by the Russians as a 'très-petite distance,' may really be at a very considerable distance from the coast; and to provide for which case the distance ought to be limited, as Sir Charles Bagot proposed, to a few leagues, say, not exceeding 10 from the shores."

The remainder of the letter contains a discussion of the question in the light of the treaty of April 5 17, 1924, between the United States and Russia. Since Russia bad agreed not to establish any settlements below 5ť to', Mr. Pelly stated that she had nothing to concede to Great Britain, and for that reason he was at loss to understand why Great Britain should cede to Russia the exclusive right to the islands and the coast from lat. 57° 40' northward to Mount Elias."

The ninth document is a letter of Lord F. Conyngham to Mr. Pelly, dated October 19, 1824, transmitting copies of papers received by the Foreign Office from Count Lieren, the Russian minister at London, with a request for Mr. Pelly's observations upon them. The papers enclosed were undoubtedly Count Nesselrode's important despatch of August 31, 1824,"' to Count Lieven, which the latter was authorized to communicate to Mr. Canning, together with the enclosures which it contained.

The tenth document is Mr. Pelly's reply to the letter of Lord ('onyngham, dated October 20, 1824,9 containing his comments upon the Russian papers.

In it he stated that the counter draft of Russsiah “ British (ase, lpp., p. 80.

* Ibiil., p. 204. "l'. S. Case, App., p. 180.

s British Case, App., pp. 100, 107, 108. < British Case, App., p. 110.

g Ibid., 110. 11. S. Case, App., p. 200.

1 Ibid., p. 94.

p.

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