Sir ROBERT FINLAY. Perhaps I ought to say-I will do my best, but I very much doubt whether the Arguments can be concluded by the 9th of October. That is my impression, and I think I ought to say so at once. (The Tribunal deliberated.) The PRESIDENT. Then I think it would be better to say Tuesday, the 15th, Mr. Attorney and Mr. Dickinson-Tuesday, the 15th, at 11. Mr. DICKINSON. The 15th will be satisfactory. The PRESIDENT. There is nothing else, I suppose, for to-day, is there? Sir ROBERT FINLAY. Nothing, my Lord. The PRESIDENT. Then Tuesday, the 15th, at 11 o'clock. 6 SECOND DAY.—TUESDAY, SEPTEMBER 15, 1903. All the Members of the Tribunal were present. The PRESIDENT. Mr. Attorney-General. Sir ROBERT FINLAY. May it please the Tribunal, it is now my duty to state the case in opening on behalf of Great Britain with regard to this question of frontier as between the Dominion of Canada and the United States of America. It is quite unnecessary that I should say anything with regard to the importance of the question raised by this Arbitration. The territory in dispute, as the Tribunal is aware, comprises what is known as South Eastern Alaska, extending from Mount St. Elias on the north to the southern point of Prince of Wales Island-roughly speaking from the latitude of a little below 55 degrees north to 60 degrees. Having regard to recent discoveries not very far off, the territory may be of very great value in itself, but to Canada it is, of course, of very special value, having regard to the fact that through certain portions of this territory access may be had from the Yukon Territory to the Pacific. The Tribunal is aware that recent discoveries of gold in the Yukon Territory, which is in the north-west of the Dominion of Canada, has opened up a great amount of trade with that region. Access is obtained to the Yukon Territory from the head of the Lynn Canal, which forms a portion of the territory which is now in dispute. The other access to the Yukon Territory is one which is open during, I believe, only two months of the year, from Norton Bay away far to the north, also in the Alaska Territory, but not in this portion. From Norton Bay, during the two months of July and August, access may be obtained to the Yukon Territory up the River Yukon and the other rivers which flow into the Yukon, but the main access, and one which may be of the greatest possible importance to Canada, must be from the head of the Lynn Canal, which affords a much more convenient mode of access to the territory of which I am now speaking. Now, the question of the frontier of this territory has been in dispute ever since the year 1872. The Tribunal will find, when the negotiations are looked at, that at no time during the period has there been anything like acquiescence or consent as between the United States of America and Great Britain, as to what is the proper frontier to be drawn of the region now in dispute, and I ask the Tribunal to bear that point in mind, for it will be found to be of very great importance, as throwing a flood of light upon certain contentions which have been put forward by the United States, as to acts of possession at certain points in this territory on behalf of the United States. I shall presently have to call the attention of the Tribunal to the provisions of the Treaty with regard to the effect which is to be given to any such acts. What at the present moment I ask the Tribunal to bear in mind throughout is, that for more than thirty years 10 the question of boundary has been in dispute always in disputesometimes actively in dispute, and always a subject of difference between the two Governments. There is another point which I think, as the case proceeds, the Tribunal will find to be of great importance, and it is this, that the region is a very remote one, and that until very recent years it was little known. Of course, the development of the Yukon Territory has now called special attention to the Lynn Canal and to everything which takes place there, but up till, I think I am safe in saying, about the year 1896, spots like the Lynn Canal were comparatively little known, even in America. They, of course, were known to a certain number of persons, but events taking place there, acts done there, were not matters which arrested the attention of people in other parts of Canada or in the United States. In Great Britain, I need hardly say, they were almost unknown. It is within the last seven years or so that these spots have drawn to them the eyes of all who are interested in the question of America and the relations between the United States and Canada, but before that period comparatively little was known of many spots which are now extremely important. 7 The disputes which have so long existed-disputes, I am glad to say, of an extremely amicable kind-between Great Britain and the United States of America, have led to several endeavours towards adjustment. There was a survey undertaken under a Convention of 1892 of a large portion of this territory, in order to supply materials for arriving at some conclusion as between the two Powers. To the labours of that Commission on that survey the attention of the Tribunal will. by and bye, have to be drawn somewhat in detail. Another attempt to arrive at a solution was made under the arrangement of 1898-the Joint High Commission of 1898-when a number of pending points were submitted for consideration by Commissioners, and an effort was then made to secure some adjustment on the question of the Alaskan Boundary. Those efforts were not consummated by success owing to circumstances to which it is unnecessary that I should refer, and the question still remains open. The Treaty of Arbitration to which I now propose at once to call the attention of the Tribunat is the last effort which has been made for the purpose, and I need not say how intently the eyes of all who are interested in this great question are fixed upon the proceedings which have this day been initiated. The Treaty is before the Tribunal, and there are only one or two Articles in it to which it is necessary at this stage I should direct attention. The first Article provides for the appointment of the Tribunal, and the Tribunal is appointed to consider and decide the questions set forth in Article IV of this Convention. It will be observed that no power is given to the Tribunal to do anything except to answer the specific questions which are put to it. There is no power given to draw the line of boundary. The Tribunal is to provide materials for settling the questions by answering those questions which are put to the Tribunal in the Convention, and no other. Article I also contains a provision of which the Tribunal may find it necessary to avail itself. In the third sentence there occur these words: : "The Tribunal * * * may employ scientific experts if found to be necessary." And in dealing with one, at least, of the questions which are submitted to the Tribunal the exercise of that power may be found to be very beneficial. Article III sets out the most material Articles of the Treaty of 1825, and the first observation I wish to make is this:-That the Tribunal is appointed for the purpose of giving a meaning to that Treaty, and that acts or transactions outside the Treaty can be looked at only to the extent specified in this Article, and for the particular purposes which are there enumerated. "It is agreed by the High Contracting Parties that the Tribunal shall consider in the settlement of the questions submitted to its decision the Treaties respectively concluded between His Britannic Majesty and the Emperor of all the Russias under date of the 28th (16th) February, A. D. 1825, and between the United States of America and the Emperor of all the Russias, concluded under date of the 18th (30th) March, A. D. 1867, and particularly the Articles III, IV, and V of the first-mentioned Treaty, which in the original text are, word for word, as follows." I do not think I need read them at this moment, because I shall have to read them presently when I come to deal with the Treaty of 1825 itself. Now, after setting out the most material Articles of that Treaty of 1825, Article III of the Treaty of Arbitration proceeds as follows: "The Tribunal shall also take into consideration any action of the several Governments or of their respective Representatives, preliminary or subsequent to the conclusion of said Treaties as 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." Now the language of that sentence requires careful consideration. The only action which can be taken into account is the action of the Governments or their Representatives. The actions of private individuals are excluded, and most properly excluded, from the consideration of the Tribunal in dealing with the interpretation of the Treaty of 1825. The acts that are to be taken into consideration are to be acts which were preliminary to or subsequent to the conclusion of the Treaty; that is to say, acts which preceded the Treaties so that they can be considered to have some relevancy to their interpretation, and acts subsequent to the Treaties for the purpose which is specified in the immediately following words :— 8 "So far as the same tend to show the original and effective understanding of the parties interested of the limits of their several territorial jurisdictions under and by virtue of the provisions of said Treaties." The only object in view, according to this Treaty of Arbitration, in taking into account such action as is here referred to is in order to give the Tribunal help in finding out what was the understanding of the parties-that is of both parties-in respect to the limits of their several territorial jurisdictions under the Treaties. It is not enough to say that any act done, either by the United States or by Great Britain, evidenced the understanding of the Power doing the act. It is necessary to show that there was such conduct on the part of the other Power, either in expressed terms or by action, as to show that that other Power concurred in the view which the doing of that act appeared to assert with regard to the interpretation of the Treaty. I at this early stage desire very respectfully to press this view upon the attention of the Tribunal, and I submit that what has to be ascertained in dealing with the action of the parties is this: does it show that both parties took a particular view of the Treaty? If it does not, such action is altogether immaterial. I make that observation the more pointedly because, if I may say so, with very great respect, I think that a large portion of the Case and Argument submitted on behalf of the United States of America deals with this matter as if it were a question of showing a title by prescription or by occupation. There is a vast amount of evidence which has accumulated apparently with that view, apparently on the assumption that the question for the Tribunal is whether a title could be shown according to such canons as obtain in determining disputes of this kind between nations if there were no Treaty at all. That is not the question, for the Tribunal in the slighest degree. The question, and the only question, for the Tribunal is, how these particular points which are enumerated in the next Article are to be dealt with according to the terms of the Treaty, and action outside the Treaty, either before its conclusion or afterwards, can be looked at only so far as it is action of Great Britain or America, or their Representatives, only in so far as it tends to show the understanding of both Powers with regard to the meaning of the Treaty. Now, the questions which the Tribunal is to answer are enumerated in the Vth Article. I propose at this stage merely to read these questions and to tell the Tribunal in one word almost, with regard to each, the answer which I ask them to give. The first is-I had better read the Article as it stands Referring to Articles III, IV, and V of the said Treaty of 1825, the said Tribunal shall answer and decide the following questions:"1. What is intended as the point of commencement of the line?" I may say that question makes it proper that I should say that this line is in dispute at every point. The point of commencement is in dispute, and the course of the line up to the point where it strikes a meridian which it follows up to the Arctic Ocean is matter of debate as between the Representatives of the two Governments at this moment. The point of commencement of the line is specified, I submit, in the Treaty in so clear a way that hardly any discussion can take place upon it-it is the southern point of Prince of Wales Island. There is a latitude added on which some stress is laid in some parts of the Argument for the United States, but I submit that that latitude was mere matter of description. It is slightly inaccurate. The true point, and the only point, to look at as the point of commencement is the southernmost point of Prince of Wales Island. The second question is: "What channel is the Portland Channel? " With that question I shall ask the Tribunal to deal in this way. It is a simple question of identity. What channel did those who framed the Treaty designate as the Portland Channel? On that I submit that the evidence is conclusive, that the channel which 9 they had in view was that which runs to the north of the island known as Wales Island, to the north of Pearse Island, and away up-hill it gets to the 56th degree of north latitude. On the part of the United States the contention is that the channel in question is the wider channel to the south of Wales Island and of Pearse |