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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.

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." 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 mouths of the rivers in question as points from which the necessary triangulation surveys should commence, in order to determine the ten marine leagues back."

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 United States the free navigation of the St. Lawrence, and declared the Yukon, Porcupine and Stikine free and open,

a British Case, App., p. 183.
© V. S. Counter Case, App., p. 67.

c British Case, App., pp. 188, 190.
a Ibid., p. 178.

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 by 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 ran 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,

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“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

It is submitted that the correspondence of the two governments between 1872 and 1878, establishes, 1st, that there was no controversy as to the interpretation of the treaty of 1825, and that all that was contemplated at that period was a surveġ to fix 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 water's. 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 Congress of the United 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 Commis. sioner of Crown Lands and now Secretary of State in the Canadian

<Ibid., p. 201.

aU. S. Counter Case, App., pp. 16+-166. v Ibid., p. 210.

Cabinet, stated in the Senate in 1892 that "the only reason why it [the line) was not settled twenty years ago was that the expense was too heavy. The United States at one time proposed a vote for the purpose

and it was then said that it would cost about two million dollars. The population was small, and they did not feel warranted at the time in making that particular survey."" It will be shown later that remissness as to a joint survey cannot be charged against the United States alone.

THE BOUNDARY ON THE STIKINE.

The Stikine River is the only stream crossing the lisière which is navigable for any considerable distance by steam vessels, and since the cession it has been the chief water communication with the British possessions beyond the boundary. While the correspondence between the two governments initiated in 1872, respecting the joint survey, was in progress, various questions arose regarding the navigation of this river. These are treated at some length in the British Case, but not in such a way as to greatly aid the Tribunal in determining the boundary in that region. With the latter object in view, it has been thought necessary to publish some of the documents found in the Canadian Sessional Paper No. 125 of 1879, and others pertinent to the subject.

It has been seen that in the proposed survey one of the points of the boundary to be marked was to be on the Stikine River. An examination of the papers produced in the British Case and those to be found in the Appendix to this Counter Case, will enable the Tribunal to ascertain the views of the two governments, and of the various authorities representing them, as to the point on the Stikine River at which it should be crossed by the international boundary. It is believed that the facts so established will materially assist the Tribunal in fixing the course of the international line between the head of Portland Canal and mount St. Elias.

Reference has been made to the questions which arose as to the navigation of the Stikine after the cession to the United States and up to the year 1874. The local customs authorities of the United States at first held that the lower portion of the river was not open to British subjects, and a few years later the British customs officials sought to exclude American vessels from the navigation of the upper part of the river, but when the questions reached the higher authorities, both governments promptly decided that the river was free throughout its whole extent to their citizens and subjects for commercial purposes." That discussion is only useful at the present time to show that, in the minds of the officials of the two governments, the river flowed for a considerable distance through the territory of both countries.

Ibid., pp. 53–86.

a U. S. Counter Case, App., p. 167. 26626- -5

The Stikine is navigable for river steamers for upwards of one hundred miles, and for light draught vessels and at a certain period of the year for a considerable distance further. From an early period its navigability and topography became known. In 1833 Peter Ogden, the Hudson's Bay Company's agent, made a journey up the river for a considerable distance above the point fixed by him as ten marine leagues from the ocean coast. In 1837 the Russian Government made a survey of the river and published a map of it. In 1867 a Hudson's Bay post existed presumably at the place selected by the company in 1833. In 1862 gold was discovered on the river above the boundary as marked by the Russian survey. In 1863 the Russian Government dispatched a government vessel to investigate the facts as to the gold deposits, and a full survey of the river was made.

This expedition was accompanied by Professor Blake of Yale University and his report and map were published by the United States in 1868. From 1862 onward the locality was continuously visited by many hundreds of miners. In 1872 extensive gold deposits were found in the Cassiar district, reached from the headwaters of the Stikine, and for successive years it was a popular mining resort. Several steamers were kept employed, carrying from two to three thousand passengers annually. In 1875 and 1876 the yield of gold exceeded $1,000,000 per year. The British authorities caused the river to be accurately surveyed at different dates. In 1868 a survey was made by Professor Leach for the Hudson's Bay Company to ascertain the bourdary. In 1875 the entire river including

a U. S. Counter Case, App., pp. 53–61, 182. • Ibid., p. 85; British Case, App., p. 228. CU. S. Case, App., pp. 272, 283, 313. «Ibid, p. 514. * Ibid., p. 339. | See map in Atlas accompanying this Counter Case, Map sheet No. 29. gU. S. Counter Case, App., p. 28. Ibid., pp. 73, 79.

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