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he has no knowledge that any Canadian officials made arrests on these trails; that Canadian officials often visited Dyea and Skagway and knew that he was holding court and exercising such jurisdiction, but so far as he was informed never made any protest against his acts; that in the month of September 1897, under instructions from his government, he visited Lake Linderman to investigate an alleged cutting of timber American territory, and that he assumed at that place jurisdiction of of an offense there, in the presence of the Canadian official in charge in that vicinity and without his protest; and that in October 1897, he was visited in Dyea by one Beran, who represented himself to be, and he believes him to have been, an inspector of Canadian police, who agreed with him that the limit of exercise of jurisdiction over the trails named should be at a point between Lakes Bennett and Linderman fixed upon between them and so indicated on a sketch, which is reproduced in his deposition."
It also appears from the deposition of the United States officials cited, the superintendent of the canneries, the owners of the trading posts, and other residents that from the first location of white settlers at the head of Lynn Canal in 1880 tip to the year 1898, all persons regarded and accepted all the localities in that vicinity as the territory of the United States, that all locations entry and record of titles were made under the laws of the United States, that jurisdiction and authority was in all cases exercised by United States officials; and that no British or Canadian official or subject during the period named ever made any claim of territory or filed or uttered any protest against the exercise of authority by the United States.
It is contended on the part of the l'nited States that the facts herein set forth, and in its Case, establish beyond controversy that the United States has been in complete and peaceful occupation and control of the territory about the head of Lynn Canal from 1867; that this occupation and control were well known to the Canadian Government and its officials; and that no claim was advanced by them to this territory or any protest made against the American occupation previous to 1898. In the presence of these facts and of the public declarations of the present Prime Minister of Canada and of the Minister of the Interior that Russia had been in possession of the territory in question from time immemorial, and that in 1567 it passed into the hands of the Americans, by whom it was held in undisputed possession up to 1898, it is suggested that the contention in the British Case is not well founded that these facts should have no intluence upon the Tribunal.
al'. s. Counter Case, Apr., pp. 22:2–227.
THE BOUNDARIES PROPOSED BY GREAT BRITAIN.
A serious embarrassment which has in the past presented itself to the United States in the consideration of the informal or unofficial claims of Great Britain and Canada respecting the boundary has been the variable and conflicting character of those claims advanced from time to time. The British Case presents for the tirst time in the history of the controversy a distinct, complete, and formal announcement of its claim respecting the boundary of the lisière. And this claim differs from every other claim which has been set forth by British or Canadian officials or subjects. A brief review of the various phases which the question has undergone at the hands of those officials and subjects, when they attempted to depart from the long-accepted interpretation of the treaty, may be useful in a consideration of the claim of Great Britain now before the Tribunal.
For about twenty years after the United States took possession of Alaska and published its official map of 1867, there was a general acceptance by British and Canadian officials, cartographers and writers of the line marked out by Russia and so explicitly and publicly laid down by the United States. It has been seen that when a movement was initiated in 1872 for a survey and delimitation, there was no dissent in the public offices either at London or Ottawa from the proposition that the line was to be drawn, under the treaty, across all the rivers and streams which empty into the inlets and straits of the
When gold was discovered near the headwaters of the Stikine in paying quantities a few years later, and an effort was made to push down the line which had heretofore been observed by the Hudson's Bay ('ompany and determined by the Canadian Privy Council, no suggestion was made that the line crossing the rivers should be abandoned. As Lord Iddesleigh, directing the foreign affairs of the British Gorernment in 1886, expressed it, in referring to the boundary marked as laid down by the l'nited States, it was admitted that the boundary was "somewhere in that region".
The first indication of a change in the views of Canadians on the subject was manifested in British Columbia. A report of the Execu
tive Council of the Provincial Government published in 1885" shows that a very full and detailed discussion of the boundary took place in the Council, with a copy of the treaty of 1825 published in McCul. lach's Commercial Dictionary before it. This text of the treaty did not contain in Article III the words “ calleil Portland Channel."
. l'pon this text the Council reached the following conclusion: “The Government of British Columbia contends that any recognition of the words Portland Channel'as being in the Treaty, was a grave mistake, and most injurious to the interests of British Columbia.” The official
' map makers of the Province were accordingly directed to prepare a map to conform “ to the interests of British Columbia," and it appeared with the boundary drawn from Cape Chacon up Clarence Strait, thus giving the Portland Peninsula and the Revillagigedo Archipelago to Canada. On this new map, however, the line crossed the Stikine at the point fixed by Hunter, and passed about 10 leagues around the heads of the inlets. It is a curious fact that the genesis of the Canadian claims had its origin in a false text of the treaty of 1825.
In 1888 Dr. Dawson, who was in Washington seeking to impress upon Dr. Dall the views of General Cameron, produced a new map, also originating in British Columbia. The hallucination seemed still to exist that " Portland Channel " did not exist in the treaty, but a step further had been taken to protect "the interests of British Columbia.” Hunters range of mountains disappeared, all the rivers were pushed back into Canada by the pencil of the draughtsman, and the line was drawn across the heads of all the inlets. A still further advance was made in British Columbia, in the contention that the political coast line outside the Alaskan archipelago was the line from which the treaty limit of ten leagues from the coast was to be drawn, a contention which effaced the listine from the mainland. This latter claim was probably of the class referred to in the semi-official Ottawa article in the Edinburgh Review, as “ the extravagant claims put forward by over-zealous British Columbians," although it is reproduced and insisted upon in the British Columbia Year Book for 1901.”
From about 1858 the Canadian official maps ceased to appear, as formerly, with the boundary marked in accordance with the official maps of the United States, although it was asserted in the Dominion House of Commons on May 6, 1901, that the large official map of the Dominion of Canada exhibited by the Canadian commission at the last Paris Exposition had the boundary marked as claimed by the United States. On the other hand, it will be seen by an examination of the Appendix to this Counter Case that the British map publishers continued almost uniformly even up to a very late date, to mark the boundary as it appears on the official maps of the United States. This is especially noticeable in the British Admiralty charts. The British Colonial Office List, although not an official issue, is understood to be the only publication of the kind, and to be circulated by the Colonial Office; and it is professedly " compiled from official records," etc. In 1869 this publication contained a general map of the British Dominions showing the Alaskan lisière substantially as claimed by the United States, Similar maps appeared in its annual issues up to and including 1902. In the issue of 1903 the map was omitted.
al'. S. Counter Case, App., p. 180-190.
There has been as much variance and modification of views on the boundary question by the public men and writers of Canada, as in the map publications. Extracts from some of the recent published articles are given. Hon. David Mills, in 1879, in the Dominion Parliament, combatted the opinion of the British law officers that the right had been lost to navigate the rivers and streams which flowed through Russian territory to the sea, but in an article printed in 1899. he claimed that the true boundary line should be drawn across the inlets, thus placing all the rivers except the Stikine in British territory. In the same article he contended that the ten years' privilege of trade granted by Article VII of the treaty of 1825 was confined to the lisières and yet the British Government in the Fur Seal Arbitration at Paris in 1593 maintained that it applied to the whole of the Northwest Coast of America. He asserted in 1899 that the true interpretation of the
! treaty required that the boundary line should pass up Clarence Strait, while the government of which he was a minister has now asserted that the true interpretation of the treaty requires it to pass up Pearse and Portland Canals.
It has been seen that Hon. R. W. Scott, Minister of State in the present Canadian Cabinet, declared in the Dominion Senate in 1892
al'. S. Counter Case, App., p. 173. ” Ibid., pp. 213—250.
Ibid., p. 165. s Ibid., 9 Ibid., pp. 190–194.
il Ibid., pp. 200–211.
that there was no dispute as to the boundary, and he described the line, according to the treaty, as follows: " It commences at Portland Channel and extends along the summit of the mountains, where those mountains do not extend more than 10 marine leagues inwards, and if they are more than 10) marine leagues, then 10 leagues is the limit to a certain meridian, and from that point it is a straight line to the frozen ocean."« How railically that line differs from the one his own government has now submitted to the Tribunal may be seen by reference to Map No. 37 of the Atlas accompanying the British Case.
Attention has been called to the parliamentary declarations of the Prime Minister and the Minister of the Interior of Canada that there has been undisputed American possession about the head of Lynn (anal, and that it has been held from time immemorial by Russia and the United States; nevertheless the British (ase has occupied considerable space in the attempt to show repeated protests by Great Britain against this occupation, and a line is insisted upon which places the larger portion of that arm of the sea in British territory. Without dwelling further upon the inconsistencies and conflict of views of the statesmen of Canada, attention is called to extracts from various recent articles published by prominent Canadians, showing similar inconsistencies and as marked conflict with the position in the British Case as those already cited.
In order to illustrate more graphically these inconsistent claims, a comparative reproduction on a reduced scale is presented, in the Atlas accompanying this Counter Case, of five British Columbian maps and of three British maps to which official authenticity has been given at different times. (See Sheet No. 28.) An examination of them will show the appropriateness of the following colloquy which took place in the Dominion Parliament, February 11, 1898: Sir CHARLES HIBBERT TIPPER.
I do not know how far the government would be warranted in marking what is disputed territory, nevertheless I think it would not confound any proper conception to mark the points they (the l’nited States] have already occupied in the territory with customs officers.
The MINISTER OF MARINE AND FISHERIES (Sir Louis Davies). It might be as hard to find the disputed boundary as the real boundary.
Sir Charles HIBBERT TUPPER. I do not press for any impropriety being committed, but I think this can be done
al'.S. Counter Case, App., p. 167. U.S. Counter Case, Atlas, No. 26.
I'.S. Counter Case, App., pp. 200–211. «Ibid., pp. 168–9.