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Protocol of May 30th, 1898, preliminary to the appointment of the Joint High Commission."

So far from the territory being in the possession of the United States ever since its acquisition from Russia in 1867, it was a territory which was taken possession of, so far as possession was taken by putting up these storehouses, with a sort of ceremonial that might be observed on landing in a strange country. Then the despatch from Mr. Hay to Lord Pauncefote is inclosed, which contains a statement substantially in the terms which I have quoted. Then, on p. 295, there is another despatch from Mr. Raikes, dated the 6th September, 1902, where Mr. Raikes, after referring to what had taken place between Lord Pauncefote and Mr. Hay, says:—

"In reply to this statement," that is, the statement that Mr. Hay was not aware that here had been any dispute as to the territory, "I am directed by the Marquess of Lansdowne to inform you that the Canadian Government, to whom copies of the correspondence have been forwarded, call attention to the note addressed by His Majesty's Minister at Washington to the United States' Secretary of State on the 5th June, 1891. In view of a certain passage in the report of the United States' Coast and Geodetic Survey, your Government was reminded in this note, at the desire of the Government of Canada, that the question of the boundary in the neighbourhood referred to was the subject of some difference of opinion, and that the actual line could only be properly determined by an International Commission.

"The Canadian Government point out that shortly after that date provision was made in the Convention of the 22nd July, 1892, for the delimitation of the boundary line in accordance with the 'spirit and intent of the Treaties,' and an agreement was entered into that the boundary was to be considered and established as soon as practicable after the receipt of the Report of the Commissioners. That Report was signed on the 31st December, 1895, and laid before the Parliament of Canada and the United States Congress early in 1896; but in the same year, before the High Contracting Parties had met to consider the boundary line, and while the matter was still sub judice, the United States erected the storehouses on part of the 'territory adjacent,' which was the subject of the operations of the joint survey and of the diplomatic negotiations.

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The Canadian Government conceive that occupation effected under such circumstances would not in international law have any validity, but they are of the opinion that nevertheless the matter should not be allowed to pass without protest, and they have, therefore, expressed the desire that your Government should be informed of their views on the subject. In making this communication and with reference to Mr. Hay's above mentioned statement, I have also to draw your attention to the remarks contained in Lord Salisbury's despatch No. 213 of the 14th October, 1899, to Mr. Tower, a copy of which was left with Mr. Hay on the 30th of that month."

Now, I submit that that for all purposes disposes of the erection of these storehouses, that they cannot be relied upon under the terms of the Treaty. And I should say in this connection that I rather understated my case on the point which the United States' Counter-Case makes with regard to the survey being only at the head of the canal. I said that the question of the entrance of Portland Canal does not depend upon survey; it depends upon identity to be collected from the materials before the negotiators, but I find, as a matter of fact, that the survey was carried out.

The PRESIDENT. There is an American set-an American surveywhich covers Portland Channel altogether. I forget the number of it, it is numbered on that.

Sir ROBERT FINLAY. It is No. 1.

The PRESIDENT. Yes; I thought it was the first one. They found an argument upon it, you know, with reference to how the line ought go from the Portland Canal up that valley on that survey.

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Sir ROBERT FINLAY. Of course, when the argument was put forward that they were encouraged to erect these storehouses, from the fact that the survey was confined to the head of the canal, they had forgotten that the survey was carried on at the mouth of the canal as well, and by themselves. But, in truth, it does not matter a straw for this purpose where the survey was carried out. It depends upon totally different considerations.

Now, there are two very minor points which are raised in the Counter-Case and arguments of the United States with reference to this question of Portland Canal which I must just advert to. One of them I have touched on already. It relates to the proposal which was made by the United States' Adventurers-a syndicate they are called a certain number of merchants of the United States in the year 1867. I think the word "adventurers" is in the papers in the Old English sense of those undertaking the enterprise, and arguments are based upon it in the United States' Counter-Case at pp. 18 and 19, and in the argument at p. 51, while the document itself will be found in the Appendix to the Counter-Case of the United States at pp. 33 and 34. It is a Memorandum enclosed in a letter from the Russian Minister of Finance to the Vice-Chancellor, and the enclosed Memorandum had been sent by the President of the Board of the RussianAmerican Company.

The PRESIDENT. Could you, that I might follow this, for I do not know at present, tell me what they, roughly, say about it?

Sir ROBERT FINLAY. What they say is this, that they describe the southern boundary of the territory as 54 degrees 40 minutes.

The PRESIDENT. I see, yes.

Sir ROBERT FINLAY. That is really the whole point. There is a certain amount of wearisome reiteration among all this, but one must deal with all the points which are made, because the southern boundary at the southern point is very important.

The PRESIDENT. I am afraid I was only displaying my ignorance, Mr. Attorney. What I wanted to know is what the points were. Sir ROBERT FINLAY. The matter is one of really very great importance to Canada at this point as well as at the other.

The PRESIDENT. Certainly.

Sir ROBERT FINLAY. On p. 34 occurs the passage which I understand is relied upon:

"But before the Hudson's Bay Company made this offer" (that was an offer for the renewal of the lease) the Minister of the United States made the following proposition to the Board of Direction of the Russian-American Company on behalf of certain merchants in California, to wit:

"(1.) To grant to them the exclusive right of fishing, hunting, and trading with the natives within the following limits:—

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Beginning at the point on the Pacific Ocean where the 54 degrees 40 minutes north latitude intersects 134 degrees 30 minutes west longitude.'

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Now it will be seen that is far out into the seas-54 degrees 40 minutes intersects 134 degrees 30 minutes. That would take you well out to the westward of the southern point of Prince of Wales Island. It is on the longitude 134 degrees 30 minutes; it is almost on the line really of Chatham Strait, Christian Sound, and Chatham Strait.

"Beginning at the point on the Pacific Ocean where the 54 degrees 40 minutes north latitude intersects 134 degrees 30 minutes west longitude, along the Christian Sound and Chatham Strait to the 59th degree of north latitude on the chief promontory of Chilcate Peninsula, shown on the charts under the name

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of Lynn Channel; thence northward to the boundary between Russian and English possessions; thence southward along the above-mentioned boundary to latitude 54 degrees 40 minutes, and thence west to the point of beginning, including all islands, headlands, rivers, &c., within the said limits, with the right of navigation on the River Mackenzie, from its mouth to the British frontier."

I do not very well see how a proposal of that kind could possibly affect the construction of the Treaty,.but if the Tribunal will refer to the Counter-Case and Argument at the pages which I have mentioned it will appear how it is sought to use it. In the CounterCase it is at the bottom of p. 18.

"In 1867 an American Company attempted to enter into a lease with the Russian-American Company, as the term of the Agreement with the Hudson's Bay Company was about to expire. The Russian Company reported the circumstances to its Government and stated the area desired by the Americans was inclosed by the following limits:

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'Beginning at the point on the Pacific Ocean where 54 degrees 40 minutes north latitude intersects 134 degrees 30 minutes of west longitude, thence up Chatham Strait to the head of Lynn Canal, thence north to the boundary, thence southward along that boundary to latitude 54 degrees 40 minutes, and thence west to the point of beginning.' The report further stated that the said territory-excluding the islands-is exactly that which is now leased to the Hudson's Bay Company. It is manifest from this statement that the parallel 54 degrees 40 minutes was considered the Russian boundary to the south, and that the astronomical rather than the geographical description was intended to control the line of demarcation until it entered Portland Canal."

Surely that is a very extraordinary way of throwing light upon the construction of the Treaty concluded in 1825. It is merely another instance of the somewhat loose use of language by persons who are seeking to acquire this territory. It is to be ranked in the same category with Sir George Simpson speaking of 54 degrees 40 minutes as the southern boundary of Russian possessions upon the mainland, and even if anything more than that were intended it could not have the slightest effect upon the rights of the British Government under the lease of 1825. But it is dealt with in the Argument upon p. 51 to the extent of recurring a good deal to the subject at the middle of the page. In the Memorandum submitted by the Russian Minister of Finance to the Vice-Chancellor in his letter of the 16th March, 1867, he says of the lease that it related to "that part of the mainland belonging to Russia which lies between Cape Spencer and 54 degrees 40 minutes northern latitude," &c.

He also says that the United States Minister, on behalf of certain merchants in California has offered to lease exactly the same territory leased to the Hudson's Bay Company, together with the islands, and this territory he describes as running part of the way "southward along the above-mentioned boundary (the boundary between Russian and English possessions) to latitude 54 degrees 40 minutes, &c."

That is, put into the middle of the passage in which the various statements of Sir George Simpson, in the letters preliminary to the lease to the Hudson's Bay Company, are contained, and I submit that the same answer which is made to these statement applies to this.

There is one other point that is made on behalf of the United States, and I refer to it more particularly because of the terms in which they refer to a portion of the British Case Appendix. It relates to an extract from the journal of the Royal Geographical

Society of 1869, which was in the appendix to Mr. Cameron's report of 1878.

Mr. DICKINSON. Mr. Attorney-General, permit me to interrupt you. I wish to say that that is a mere mistake, that you need not address your attention to that.

Sir ROBERT FINLAY. I am very much obliged to Judge Dickinson for his courtesy in relieving me of the necessity of dealing with that part. I am very glad to know that there is nothing in the nature of an attack upon the intention completely to present everything relevant to the case.

151 Mr. DICKINSON. It is simply an inadvertence which arose from an incomplete examination of the record. A more careful examination disclosed that that was a mistake.

The PRESIDENT. Will you give us the page you refer to?

Sir ROBERT FINLAY. The passage occurs in the Counter-Case of the United States on p. 19, but after what Judge Dickinson has saidThe PRESIDENT. It is not the least necessary; nothing could be fairer.

Sir ROBERT FINLAY. After what Judge Dickinson has been good enough to say, I am entirely relieved of any necessity of dealing with it. I was going to deal now with the subsequent maps.

(Adjourned till to-morrow at 11 a. m.)

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FIFTH DAY.-FRIDAY, SEPTEMBER 18, 1903.

All the Members of the Tribunal were present.

Sir ROBERT FINLAY. Yesterday, when the Tribunal adjourned, I was about to refer to the subsequent maps. I have already dealt with the maps which might have been before the negotiations, but the subsequent maps were a good deal referred to in the course of the Cases and Arguments, and it is only right that I should now deal with them. The first map subsequent to the Treaty is in the year 1826. It is the Russian map which is in the United States' Atlas, Map No. 11; the inlet is shown very distinctly with the two branches, and then there are two dots representing the islands near the outlet, and then the name appears to be given at the top of the western branch, something in Russian characters.

The PRESIDENT. I believe that is Canal Portland?

Sir ROBERT FINLAY. Yes.

The PRESIDENT. I was told so. What is the word immediately above the Canal Portland, Mr. Attorney?

Sir ROBERT FINLAY. It relates to Revilla, the island opposite.
The PRESIDENT. Thank you.

Sir ROBERT FINLAY. As your Lordship said, the legend at the top of the western inlet is clearly Canal Portland, and then below is the Observatory Canal or Observatory Inlet.

Mr. AYLESWORTH. What are the words that occupy the place in Dixon's Passage? Will somebody tell us?

Sir ROBERT FINLAY. I think one can make the word out to be Dixona.

The PRESIDENT. It is Canal Dixona, I think.

Sir ROBERT FINLAY. I am told that the other word is Cordova.

Mr. AYLESWORTH. That is the other name for it-I suppose, the Spanish name.

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Mr. LODGE. It refers to the Spanish navigator, I suppose?

Sir ROBERT FINLAY. I think it does.

The PRESIDENT. I must apologise for troubling you, but would you, or Mr. Simon, read the words above that line?

Sir ROBERT FINLAY. I am told, my Lord, these words are "the boundary under the Treaty with England of 1825."

The PRESIDENT. "With America," is it not?

Sir ROBERT FINLAY. No; the date is 1825, and I think one can see that the word is not America.

The PRESIDENT. That is a manifest mistake, but I should guess it is England.

Sir ROBERT FINLAY. If your Lordship would look at the top of the map, where the boundary runs due north from Mount Elias, the same words at greater length occur. There is the boundary.

The PRESIDENT. That is translated in one of the English maps.

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