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Columbia.” The Secretary ** was perfectly satisfied of the expedieney of such a measure," but expressed some doubt, for reasons given, as to whether Congress would make the necessary appropriation. But on a second call the minister learned that the President was so impressed with the advantage of having the boundary line laid down at once," that he would recommend favorable action on the part of Congress.
In his next annual message President Grant referred to the happy result of the arbitration which adjusted the water boundary from the +9th parallel, and said the award leaves us, for the first time in the history of the United States as a nation, without a question of disputed boundary between our territory and the possessions of Great Britain on this Continent.” He then referred to the difficulties attending the determination of our admitted line of boundary" after occupation and settlement, and in view of the sparsely occupied condition of Alaska, he recommended Congress to provide for a joint Commission to determine the line between that territory and British Columbia.
In no part of the correspondence is there any indication of the existence of a controversy over the terms of the treaty, but on both sides it was agreed that it was desirable to have the line laid down and marked by a joint survey and this fact seems to be recognized in the British Case. There was, however, a further fact established by the correspondence of special significance in the determination of the questions submitted to the Tribunal-to wit, certain points were approximately indicated through which the boundary line should be drawn between the head of Portland (anal and mount St. Elias.
After the President's message had been sent to Congress and a bill introduced to carry out his recommendation, the British Minister called upon the Secretary of State and was informed by him that the subject of the joint survey had been under investigation by the engineer department, and it had been found that for the United States alone it would cost one million and a half of dollars, and would require ten years of labor; and he feared that Congress would not authorize such an expenditure. Under the circumstances it was believed that it would be quite sufficient “ to decide upon some particular points to be marked," and these it was suggested “should be the head of the Portland Canal, the points where the boundary live crosses the rivers Skoot, Stickeen, Takı, Islecat [Chilkoot) and Chilkaht, Mount
« British Case, App., pp. 16+-5.
ol'. S. Counter Case, p. 145.
St. Elias, and
the rivers Yukon and Porcupine.” The determination of these points alone it was estimated would occupy four years of time and cost the United States a half a million of dollars.
These suggestions were accepted by the British Minister without dissent, forwarded by him to London and thence communicated to the Dominion Government, with instructions to report upon the cost of the last proposed survey. The Privy Council took it under consideration and referred it for an estimate to Captain D. R. Cameron, the commissioner engaged in the survey of the boundary along the 19th parallel, transmitting to him the American proposition, including the points to be fixed and a list of the rivers named. The subject also engaged the attention of the Dominion Surveyor General, J. S. Dennis, who, in a report to the Minister of the Interior, enumerated the rivers which were to be crossed by the boundary, giving the list which the British Minister had furnished. Later the Secretary of State sent to the British minister a written report on the subject, prepared by Gen. Humphrey's, Chief of Engineers, in which were enumerated the “Staken, Taku, Chilkat, the Alsekh rivers," on which were to be fixed “the points of intersection with boundary line;" and this latter was also sent to Captain Cameron, as well as to the Foreign Office in London. In making his report in 1875, Captain Cameron included this list of rivers on which the boundary was to be marked. The next year the Prime Minister of Canada in a report to the Privy Council mentioned the rivers named by the Secretary of State as the particular points whereon the boundary line should be marked;' and a year later, 1877, the Privy Council, in a Minute, repeated the list.
Neither the British representative at Washington, the Foreign nor Colonial Office in London, the Prime Minister of Canada, its Privy Council, nor the Surveyor General entered any dissent from the proposition that the boundary line when laid down was to cross the rivers named. The British Case quotes a sentence from Captain Cameron's report in which he stated that the Government of Canada “expect the terms of the Treaty to be fully and strictly carried out."! It is not clear, from the context, to what he refers. He was called upon for an estimate of the cost and time required for the survey, not to construe the treaty, and whatever may have been his meaning, he did not dissent from the enumeration of the rivers, but included them in his report.
a British Case, App., p.168.
s British Case, App., p. 238.
Other official declarations are found in the correspondence under review, which show that the rivers upon which the boundary was to be marked, were streams which had their origin in British territory and which reached the ocean in American territory. In a despatch of the British minister at Washington to the Secretary of Foreign Affairs in London, he reported an interview with the Secretary of State in which he recalled the proposition made by the latter that if the whole survey could not be made, “the points where the territories met could be fixed on the rivers which run through both of them.”a This proposition received the approval of the British minister, and had the concurrence of the Canadian Prime Minister and Privy Council. In considering the subject, the Surveyor General of Canada referred “to the mouth of the rivers in question as points from which the necessary triangulation surveys should commence, in order to determine the ten marine leagues back.” a
This correspondence furnishes further evidence of the interpretation placed upon the treaty by the British and Canadian authorities respecting the boundary line from Portland Canal to mount St. Elias. The discussion which arose over the case of Peter Martin, an American who was being conveyed as a prisoner from British territory, caused an examination to be made by the British Government of the question whether Article VI of the treaty of 1825 was still in force. By the terms of that article British subjects had forever "the right of navigating
* * * all the rivers and streams, which, in their course towards the Pacific Ocean, may cross the line of demarcation upon the coast described in article three of the present convention." By the last clause of Article VI of the treaty of cession of 1867, Russia sought to dis-annul Article VI of the Anglo-Russian treaty of 1825. Article XXVI of the British-American treaty of 1871 gave to the citizens of the Cnited States the free navigation of the St. Lawrence, and declared the Yukon, Porcupine and Stikine free and open,
a British Case, App., p. 183.
< British Case, App., pp. 188, 190.
for the purposes of commerce, to the citizens and subjects of both nations. The law officers of the British Crown held that the Stikine was open for the purposes of commerce only, and that in accepting Article XXVI of the treaty of 1871, Great Britain had lost for her subjects the right, secured by Article VI of the treaty of 1825, of “the free and unrestricted navigation of the rivers flowing through that territory [Alaska] to the sea”. It is to be noted that the crown lawyers assumed that these rivers flowed through American territory. This opinion was bitterly attacked by Canadian statesmen and jurists as surrendering valuable rights. Honorable Edward Blake, then Minister of Justice, in a report to the Canadian Privy Council in 1877, stated that the so-called concession by the United States was in fact a concession by Great Britain to the former country, which gave nothing and got everything”; and he added that he had never been able to form a plausible conjecture as to the reason for the action of the British Commissioners”, who negotiated the treaty of 1871." His successor as Minister of Justice, in a further report on the same subject, after quoting the opinion of the British law officers, stated that it was “the painful conclusion that our rights existing at the time of the treaty of Washington (1871] have been lost through that treaty."
In 1879 the opinion of the law officers was made the subject of an animated debate in the Canadian Parliament. The member from Victoria, British Columbia, referred to the loss of British rights in Alaska hy the treaty of 1871, and pointed out that “under the convention of 1825 with Russia, we had the right to navigate all the rivers that run out of our territory and through Alaska, but by the act of Russia in 1867, in transferring the territory of Alaska to the United States, we lost the right of navigating the rivers. This was because the negotiators of the treaty of 1871 neglected their duty." Honorable David Mills, late Minister of Justice in the cabinet of Sir Wilfrid Laurier, pointed out the effect of the treaty of 1825, “ which gave to Russia a narrow strip of territory upon the coast south of Mt. St. Elias, extending as far south as Portland Canal, upon the express condition that all the rivers flowing through this Russian territory should be open to navigation by Great Britain, for all purposes whatsoever”; and, citing the opinion of the law officers of the crown, he said that, “if the people on the western coast were now in a worse position than they were before, it was due to the negotiations which took place at Washington". Sir John A. Macdonald, the Prime Minister, while conceding that there existed two opinions on the subject, stated that the best international lawyers in England, Mr. Montague Bernard and Lord Tenterden, “were united in the opinion that, by the transfer of Alaska, the effect of the treaty of 1825 was gone "."
a British Case, App., p. 211.
1 Ibid., p. 233.
It is submitted that the correspondence of the two governments between 1872 and 1878, establishes, 1st, that there was no controverss as to the interpretation of the treaty of 1825, and that all that was contemplated at that period was a survey to tix and mark the boundary line; 2nd, that it was conceded that this line should cross the rivers Iskoot, Stikine, Taku, Chilkoot, Chilkat and Alsekh; 3rd, that the rivers and streams which had their origin in British territory between Portland Canal and mount St. Elias and emptied into the ocean passed through American territory before reaching the sea; and, 4th, that, when it was decided that the right to navigate these rivers and streams had been lost to British subjects, it was regarded as a serious injury to British interests. It is hardly necessary to point out how inconsistent are these facts with the contention in the British Case, that all these rivers and streams, except the Stikine, flow entirely through British territory, and empty into the sea within British waters. Mr. Alexander Begg, the British Columbian historian, who is recognized by Canadians as a careful student of the boundary question and who has written much upon it, states that he has no doubt that, if the boundary had been surveyed at the time under consideration, the line would have been drawn on the rivers named, in accordance with the proposition of the United States. Mr. Gosnell, author of the British Columbia Year Book, after quoting the proposition of the C'nited States Government in 1873 as to marking the line upon the rivers named, adds, “the Canadian Government was quite willing to accept the proposition.
The reason why the ('ongress of the U'nited States failed at the time to make the appropriation necessary for the survey is fully set forth in the correspondence, and it seems to have been properly understood in Canada. Honorable Richard W. Scott, at that time Commissioner of Crown Lands and now Secretary of State in the Canadian
(Ibid., p. 201.
al'. s. ('ounter (ase, APP., pp. 164–166.