The PRESIDENT. I understand, Mr. Attorney, you are not now on the point of what mountains are to be taken?

Sir ROBERT FINLAY. Not at the moment.

The PRESIDENT. No, I say I mean for the moment, but on the point of there being mountains which would answer the description of the Treaty.

Sir ROBERT FINLAY. Yes, exactly. I shall proceed, of course, presently, to deal with the specific mountains which we say should be taken:

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Throughout its entire length from the 56th parallel to Lynn Canal, the coast is bordered by mountains 3,000 to 5,000 feet in height, having rocky peaks and ridges. The summits average 5 or 6 miles in distance from the sea, and in many places they approach even nearer. These mountains preserve for considerable distances much uniformity of height, and also of direction, forming elongated mountain masses lying with their length parallel to the general line of the coast. Penetrating inlets and valleys separate these mountain masses from one another, but without greatly disturbing their continuity of direction. "They are fronted on the seaward side by wooded hills, rising from the shore to heights varying from a few hundred to 2,000 feet or more. These foot hills slope off into points (such as Point FitzGibbon, at the mouth of Burroughs Bay; Point Warde, at the mouth of Bradfield Inlet, and many others), and are cut by many bays and harbours, which give the coast-line the irregular outline shown on the charts. The mountains, however, keep a much more regular course. Their line of separation from the foot hills is frequently not very well marked-these last, in fact, form in the seaward face, or slope, of the mountains. Along the northern part of the coast the foot hills often vanish almost entirely and the rocky summits rise from the sea. These mountains are separated from the interior ranges by usually well-defined depressions.

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"A remarkable feature of the inland topography is the vast icefields filling the valleys of the mountains to the rear and overflowing in various directions to the cutlet valleys of rivers and inlets.

66 'One of these icefields lies to the north-west of the head of Portland Channel about 15 miles away; it discharges by glaciers both in valleys leading into the head of Portland Canal, and into the Chickamin and Unuk Rivers, and thence into Behm Canal.

"In like manner, a very extensive icefield lying to the west of Stikine River discharges by the Great Glacier and other glaciers towards the east to the Stikine and to the west by Le Conte Glacier, Baird Glacier (to Thomas Bay), and Dawes Glacier (to Endicott Arm to Holkham Bay).

"To the east of the southern part of Lynn Canal lies another icefield which discharges by the Foster Glacier into Taku Inlet, also further north, by other glaciers, to tributaries of the Taku River, and by the Mendenhall and other glaciers to Lynn Canal and the passage leading thereto. This icefield also discharges by the streams flowing into Berners Bay.

"A large icefield lying to the north and north-east of Glacier Bay discharges into the Takhin River (tributary of the Chilkat), also in part into Alsek River. The greatest flow of this icefield is however into Glacier Bay, by many large glaciers which, though bearing different names at their different outlets to the sea, are properly speaking one and the same. The best known of these outlets is the most easterly (so far as Glacier Bay is concerned), Muir Glacier. "Muir Glacier also discharges at its south-eastern corner into Endicott River, which finds its way by a very direct course, with a fall of less than 1,000 feet, through the mountains to Lynn Canal.

"The eastern side of the icefield also discharges into Lynn Canal by Davidson Glacier.

"We have in these cases large mountain masses adjacent to the coast, and cut off from the interior mountains by ice-filled valleys.

"The icefields naturally approach nearer the shore, in the northern part of the region under consideration, than in the southern. South of Taku Inlet they are found a considerable distance inland, but the topography between them and the coast suggests irresistibly a glacial origin for the valleys, similar to that which has, at Glacier Bay, cut the long inlet separating Fairweather Range from the mountains to the east of the bay, and has cut out the valley of Endicott River.

"This common glacial action accounts for the general regularity of the conformation of the mainland (and also of the adjacent islands of the archipelago). The mountainous coast region has at one time doubtless been covered with ice, which has, in course of time, forced its way through the mountains to the sea, forming the valleys of the inlets and rivers. These valleys will be seen by the map to be closely perpendicular to the general line of the coast. The ice, in flowing out of these passages, would also flow from either side into the valleys, grooving lateral valleys at right angles to them.

"Thus arise the above referred to elongated mountain masses which lie parallel to the general line of the coast. Such a mountain mass will be found to be separated from the mountains behind it by a depression, in which the streams flowing to the main valleys on either side take their rise.

"Hence a line following mountain summits parallel to the general line of the mainland is possible, subject only to the breaks caused by inlets and river valleys, which breaks are comparatively short compared to the lengths of the continuous lines of mountain summits.

"On the contrary, were it attempted to follow the summits of the mountains in a direction parallel to the shores of inlets, the line would, as soon as it passed inland from the general coast, encounter a succession of ends of comparatively narrow mountain ridges running at right angles to the course of the line, from each of which to the necks it would have to pass by springing over intervening valleys. Conformably to the requirements that the mountain boundary of the coast strip shall follow in a direction, as nearly as may be, parallel to the general line of the coast, the summits of the mountains nearest thereto, and that mountains are to be distinguished from hills by the fact of their peaks rising above the timber line, the mountains along which the boundary should follow will be selected by, at each point proceeding inland until the nearest summits of such character are reached, passing over the intermediate hills or spurs to seek the ridge of the mountain mass whereby the line may be carried along a well-defined crest. Where the crest is broken by a valley of considerable depth, the general parallelism of the line to the coast will be preserved by carrying it across the break by a straight line.

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"It should be remarked that while the preceding remarks apply particularly to the coast from the 56th parallel to Lynn Canal, there is also to the west of Cape Spencer a repetition of the parallelism of the mountains to the coast, in the massive Fairweather Range. These mountains rise almost immediately from the ocean shore to a high and continuous range several thousand feet in height. Beyond, across the Alsek River, are the Mount St. Elias Alps, also of great height, but further from the shore. The survey of this range by the Commissions under the Convention of 1892 was imperfect. The accurate investigation of the topography was resumed near Yakutat Bay.

"Between Lynn Canal and Cape Spencer, Icy Strait cuts in nearly perpendicular to the ruling north-north-west direction of the coast, and at right angles to the valley of Glacier Bay, and the general trend of the mountains. There is, therefore, for the short space between Lynn Canal and Glacier Bay an exception to the general rule of mountain ridges paralleling the adjacent coast. To find the mountain ridges parallel to the coast it is necessary to go somewhat further back."

Now, that is a general description of the region which is given by Mr. King. I turn from that to the affidavits which have been filed on behalf of the United States for the purpose of negativing the existence of any mountains at all. In p. 529 of the Appendix to the American Case, these declarations will be found to be given. It is at the top of the page. Now, the first point I call attention to in these statements-there is a covering letter from Mr. Tittmann, and then there follow the depositions. The first point I call attention to is that Mr. Tittmann begins by stating what the question was. It is his letter of the 16th April, 1903. At p. 529 of the United States Appendix:

"In reply to the question of what are the

The PRESIDENT. If you are just beginning this, Mr. Attorney, I think we had better break off here.

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

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SEVENTH DAY.-TUESDAY, SEPTEMBER 22, 1903.

All the Members of the Tribunal were present.

Sir ROBERT FINLAY. I had yesterday read the first Memorandum by Mr. King annexed to his declaration in which he sets out the general features of this Case. He describes the range of mountains, the wooded hills which run at most parts of the coast between the Rocky Mountains behind them, and the margin of the sea itself. Now, I think it is very well worth observing that that declaration of Mr. King was put forward in the Appendix to the British Case-put forward in the first instance. There has been every opportunity of dealing with it, and I think I am right in saying that there is really no contradiction of the facts as they are alleged by Mr. King. So far from there being contradiction, I think when the depositions that have been put forward on behalf of the United States on this point are looked at, it will appear that there is very material confirmation in some most important parts.

Now, these declarations on behalf of the United States are set out in the Appendix to the Case of the United States, pp. 529 to 538, and in the Counter-Case Appendix, at pp. 262 to 265.

Now, I must invite the attention of the Tribunal to the particular terms in which these depositions are expressed, for I think you will find in the all-important question of contention which is put forward on behalf of the United States, there are no mountains that answer the indications of the Treaty. I was just about, when the Tribunal adjourned yesterday, to call attention to the terms of the question on which these answers of the depositions were invited. It is set out at the beginning of Mr. Tittman's despatch to the Secretary of State, dated 15th April, 1903, at p. 529 of the United States' Appendix. Now, the question is this:

"Now what are the facts, and especially what is the evidence presented by the joint surveys and explorations of the International Boundary Commission of 1893-1895 in regard to the existence of a mountain range in South-East Alaska corresponding to that contemplated as the line of demarcation by Articles III and IV of the Treaty of 1825?"

Now, I have two observations to make on that question. The first is that they speak of “a mountain range," which is a phrase which does not occur in the Treaty itself, and the second is that very great vagueness is introduced into the question by throwing upon experts whose answer is requested the construction of the Treaty. The last words are "corresponding to that contemplated as the line of demarcation by Articles III and IV of the Treaty of 1825." It is a question which only could be admitted in any legal proceedings where experts were being examined, because it is for the Tribunal to construe the Treaty, it is for experts to give evidence of the facts, but that question has in it an element of vagueness which would largely vitiate the result, even if it were more specific than I am going to show the Tri

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bunal it was. Now what Mr. Tittman himself says, in his statement. which he says is based on personal observation and the study of the maps, is this. After stating his qualifications and how he was engaged on the American Survey, he says, at the middle of p. 529:— "I determined the position and altitude of mountain peaks which could be seen from various points on the river, including several peaks about 8 miles distant from the river, and approximately 10 marine leagues from the coast. These peaks were Kate's Needle on the west, and Big Mountain on the east. I paid special attention to identifying and locating the crest of the mountains which would conform to the line of demarcation under the Treaty of 1825 between Russia and Great Britain, but found that within the 10 marine league limit there is a total absence of that continuity and system which would constitute a mountain range parallel to the coast. In my report to the Superintendent, dated April 17th, 1894, I stated as follows: The group of mountains to the westward of the Stikine, on which Kate's Needle appears to be the highest, overtops the mountains between it and the coast, and the same remark holds good of Big Mountain and Pinnacle to the eastward of the river. Whether the mountains still farther inland are higher than those mentioned, I am unable to say, but it is evident that if this mountain region is to be regarded, in a broad sense, as a range, its crest does not lie oceanward from those peaks.' "In 1900 I went in the service of the United States for the purpose of delimiting the provisional boundary between the United States and Canada under the modus vivendi of 1899. I went to the head of Lynn Canal, to Chilkoot Pass, and White Pass, up the Chilkat River, following up the Klehini River, we marked the limits of the provisional boundary on the ground. From the examination which I made I reached the conclusion, which was confirmed by a study of the maps of the Commissioners of 1893-95, that there does not exist any defined or continued mountain range or chain running generally parallel to the coast, and situated anywhere oceanward from a line projected from the head of Lynn Canal southward, and drawn to the 56th parallel to a point near the head of Portland Canal, such line being parallel to the sinuosities of the coast line which proceeds around the bays and inlets, and not more than 10 marine leagues therefrom. I also went up Glacier Bay, and state that there is no mountain axis which has a trend across that bay."

Now, I call attention to the fact that Mr. Tittman introduces a further element of uncertainty into his answer. The question put, I submit, was one not justified by the Treaty as to the existence of a mountain range, but Mr. Tittman, when he comes to give his answer, says there does not exist any defined or continued mountain range generally parallel to the coast. Then he incloses a variety of depositions, and I must call the attention of the Tribunal to the language of those depositions, because, I submit, they afford very cogent confirmation of Mr. King's account in some very important particulars. The first is a deposition of Mr. Ogden. I pass over all the earlier part, and begin to read at the bottom of p. 530, where he says:—

"I felt particularly interested myself as we sailed up Taku Inlet, the appearance of that region striking me as one that was almost impassable. There were great peaks to be seen ahead, sharp and impossible of ascent, and it interested me and excited my curiosity, that I hoped to satisfy in the future, whether I could get around between them. Many of them were very much like the Sugar Loaf of our old atlases."

Then on p. 531 he says:—

"A careful survey was made of the Taku River by a small triangulation as a base for it, which was a continuation of the scheme of triangulation extending along the coast of Alaska. On this point I determined the contour and height of all the mountains that were visible from the bed of the river. The river valley is about 3 miles wide, and some of these peaks were probably 5 or 6 miles on either side of it."

Then passing on to the end of the next paragraph, after he has referred to Mr. Welker's work and the work of the Canadian parties and the two officers who ascended the mountains, he says this:

"Those two officers who ascended the mountains were, unfortunately, restricted in their ascents by the operations of the Canadian parties, as they had no means of making an ascent independently. They both assured me, and I made careful inquiry from them, that, so far as they could judge from the character of the country as they observed it, there is no well-defined range of mountains passing through the region."

Here another adjective is introduced in answering the question, "There is no well-defined range of mountains" then :

"Mr. Welker's sketch accompanying his report on the results of his work showed a very decided jumble, and nothing that could be construed into a range.'

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Then down at the bottom of p. 531 he talks of his work on the Stikine River, where he was joined by Mr. Dickins, and he

says this:

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On establishing a camp some 6 or 8 miles above Point Rothsay, at the mouth of the Stikine, I ascended the river in a canoe to Mr. Tittman's camp up the river. This gave me an opportunity to see a large section of the country back from the shore connected with the region I had been studying, and gave further confirmation of the opinion I had formed as the features were developing, that there was no well-defined range of mountains; that the peaks and hills we had observed immediately on the shores of the inlet were in the nature of detached groups, and might be called foothills, there being much higher mountains behind them. My work on the Stikine ascended the river about 12 miles by the courses of the river, where I joined Mr. McGrath, who worked the section above me until he joined with Mr. Tittman above him. From my observations made in Taku Inlet and on the Stikine River, and in running along the coast, and from all information I gained, I am satisfied that there is not, within 10 marine leagues from the coast, any continuous chain of mountains in the form of a summit range running from the 56th degree of latitude until it intersects in the northern direction with the 141st degree of longitude."

There we have the expression that there is no " continuous chain of mountains," and it is to be in the form of "a summit range." I am not perfectly certain I know what that means; I suppose it means a dominant range.

The PRESIDENT. The highest range, I suppose?

Sir ROBERT FINLAY. The highest range. Well, that is not what the Treaty contemplates at all. Very far from that. What the Treaty contemplated was the tops of mountains which any one could see navigating, as Vancouver did, along the coast. But the question is, is there a well-defined dominant range? The question is, can you or can you not find within a short distance from the coast mountains which will give such a guide as that which the Treaty desiderates?

The PRESIDENT. Of course, it is more for your opponents than for you, Mr. Attorney-General; but one cannot help feeling, on reading these depositions, that these gentlemen thought, because they saw these mountains when they got to the top, there could be no mountains which would correspond to the Treaty-it seems to me.

Sir ROBERT FINLAY. That is, I submit, the fallacy which underlies these depositions. I am not impugning for one moment the good faith of the deponents. The care that they took to guard their answers shows that they really throw no light whatever on the ques

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