ouest de l'Amérique soumise à la Russie, éprouve des entraves, et qu'il est exposé à des pertes sensibles par suite du commerce frauduleux qu'exercent des étrangers.

"Considérant, d'autre part, que la cause principale de ces pertes est le défaut de règles positives, tendantes à fixer les limites de la navigation le long de ces côtes."

It is the same expression which we have in dealing with the Portland Canal:

"Le long de ces côtes et l'ordre auquel doivent être soumises les relations maritimes, tant dans ces parages que sur toute la côte orientale de la Sibérie et aux Iles Kouriles, nous avons jugé convenable d'arrêter à cet égard les principes développés dans le Règlement spécial annexé au présent Ukase."

Then I think the first two of these regulations are the only two to which I need make any reference, at present at all events.

"1. The pursuits of commerce, whaling, and fishery, and of all other industry on islands, posts, and gulfs, including the whole of the north-west coast of America, beginning from Behring's Straits to the 51st degree of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring's Straits to the south cape of the Island of Urup, viz., to the 45 degrees 50 minutes north latitude, is exclusively granted to Russian subjects."

"2. It is therefore prohibited to all foreign vessels, not only to land on the coasts and islands belonging to Russia as stated above, but, also, to approach them within less than 100 Italian miles.

22

That would be somewhat less than 100 statute miles.

"The transgressors' vessel is subject to confiscation along with the whole

cargo."

The Tribunal sees that was a claim to the exclusive use for 100 miles around the whole sweep beginning on the American coast at 51 degrees north latitude, and going round to the latitude of 45 degrees 50 minutes on the coast of Asia, at the South Cape of the Island of Urup. The whole of that is exclusively granted to Russian subjects, and all foreign vessels were forbidden to approach these coasts within a distance of 100 Italian miles.

Now, that was the position with regard to Russia at the outset of the negotiations. On the other side, reference must be made to the position of England as represented by the Hudson Bay Company, and that is very clearly defined in a Memorandum which was drawn up by Mr. Pelly, who appears to have been the Chairman of the Company at that time, dated the 25th September, 1822, and which will be found in the British Case Appendix, pp. 24 to 28. It might be convenient for the Tribunal if I said that the posts which Mr. Pelly mentions are marked in Arrowsmith's map of 1822, which will be found in the British Case Atlas No. 8.

The Hudson's Bay Company, of course, were approaching this territory from the other side, from inland, and this Memorandum, which was sent to Mr. George Canning in September, 1822, by the Deputy-Governor of the Hudson's Bay Company, makes the following statement with reference to the claims set up by Russia to the part of the north-west coast of America to the north of the 51st degree of north latitude.

"In the year 1793 Sir Alexander McKenzie crossed the Rocky Mountains in 56 degrees 30 minutes north latitude, and penetrated to the Pacific Ocean in latitude 52 degrees 20 minutes. Immediately after his return the British fur traders sent expeditions and established trading posts in the country to the westward of the Rocky Mountains. New trading stations have been gradually

formed, as the country was more fully explored, and until 1821 the whole trade of an extensive district named New Caledonia, and extending from the mouth of Fraser's River, situated about 49 degrees north latitude to about 60 degrees north latitude, was carried on by the British North-West Company.

"The partnership of the British North-West Company being then about to expire, arrangements were made in 1821 by which the Hudson's Bay Company acquired possession of all the forts and trading stations of that Association situated in New Caledonia, as well as in other parts of British North America. "The principal forts or permanent and centrical trading stations in New Caledonia, now occupied by the traders and servants of this Company, are situated at the Rocky Mountains portage in 56 degrees north latitude and 121 degrees west longitude; on Stewart's Lake in 54 degrees 30 minutes north latitude and 125 degrees west longitude; on McLeod's Lake, in 55 degrees north latitude and 124 degrees west longitude; and on Fraser's Lake, in 55 degrees north latitude and about 127 degrees west longitude, and there are several minor trading posts the situation of which are occasionally changed according to local circumstances."

I need not refer to the position of these in detail on the map; they are generally shown. They were some way inland, and they might have communications with the coast, but they were not on the coast themselves.

"By these means an extensive trade is carried on with all those Indian tribes which inhabit the country from about 60 degrees north latitude as far south as the mouth of Fraser's River, which is in about 49 degrees north latitude, and between the Rocky Mountains and the sea.

66

The British fur traders have never met with the traders of any other nation in that country, and it does not appear that any part of it has ever been occupied by the subjects of Russia or of any other foreign Power.

"All the considerable rivers which fall into the Pacific Ocean in this extent of coast have not yet been sufficiently explored to ascertain whether any of them are navigable with large boats, and have safe harbours at their discharge into the sea; the furs procured in that country have therefore been brought to England down the Peace River and through the Hudson Bay Company's territories."

23

That is in the other direction altogether to the eastward.

"But it is probable that, in such an extent of coast, some practical communication with the sea will be discovered which would save the expensive transport of goods and furs through the interior of America.

"A direct communication by sea is found to be advantageous in the country to the south of New Caledonia situated on the various branches of the Columbia River, where this Company has extensive trading establishments extending to the head waters of that river in the Rocky Mountains, and the same advantages would be derived from a direct communication by sea with New Caledonia." Then this next sentence is important because Mackenzie's River is repeatedly referred to in the negotiation as a governing factor.

"This Company has trading establishments also in Mackenzie's River, which falls into the Frozen Ocean as far north as 66 degrees 30 minutes north latitude, which carry on a trade with those Indians who inhabit the country to the west of that river and to the north of 60 degrees of north latitude, and who, from the nature of the country, can communicate more easily with Mackenzie's River than with the trading posts in New Caledonia.”

Then follows a long Memorandum with observations upon the grounds which the Russians had advanced in supporting their claim to this jurisdiction.

Now, the information which was contained in that Memorandum was used for the purpose of starting these negotiations, and it may be for the convenience of the Tribunal if I at once state the divisions into which these negotiations fall in order of date and in order of subject. They fall into five groups.

The first group is in October and November 1822, when there were

66

pourparlers" between the Duke of Wellington, as representing Great Britain, and Count Lieven, as representing Russia, at Verona. These "pourparlers" had relation to the question of right to this coast as advanced on either side.

These were afterwards treated as "non-avenus," it being agreed that the matter should be determined on the principle of some convenient compromise by Convention between the Powers. I shall have to refer to some of these letters presently, because there again comes out the cardinal fact that 55 degrees north latitude was the limit on which the Russians were insisting. That is the first head.

The second head is in 1823, next year, when a series of conversations took place between Sir Charles Bagot and Count Nesselrode and M. de Poletica.

The conversations were of a somewhat desultory character. Various points are touched upon, and ultimately they ended at the time in nothing, because it was uncertain whether the United States of America would not become parties to the negotiations and any settlement that might be arrived at. But the pourparlers at this time, as represented in the reports which were made, require attention because in the first place they show again and emphasise 55 degrees north latitude as the Russian claim, and secondly they show the origin of the claim for a barrier on that coast which is so very much emphasised in the case of the United States on their contention that the strip of territory is to run inside of all the inlets.

The third stage of the negotiations is one which is of very great importance. It took place in February and March, 1824. Sir Charles Bagot represented England, Count Nesselrode and M. de Poletica again represented Russia. And these negotiations are of very great importance, although they went off at the time without any result being achieved, not only because they again refer to that point of 55 degrees north latitude, but because they develop very fully the nature of the claim which Russia was making for a conventional arrangement which would give her a strip of territory on the coast to serve as a "point d'appui " and the explanations are there given of what Russia wanted for what purpose she required the point d'appui," and what that "point d'appui" really meant.

And they also throw great light upon the contention which is raised upon the other side, as to the allegation that latitude 54 degrees 40 minutes was a governing factor-I am using an expression taken from the United States' Case--a governing factor in the negotia

tions and in the Treaty. It will be found from these negotia24 tions that although the Treaty with the United States, which

was entered into by Russia in that year-in the early part of 1824 is expressly referred to; and although in the Russian Treaty with the United States the limit is 54 degrees 40 minutes-with that before them, and making reference to the American Treaty-to the Treaty with the United States, they deliberately select, not the latitude as mentioned there, but the points on the islands and the mainland to which the Treaty makes reference..

These negotiations went off in the early part of 1824, forming the third stage, because Sir Charles Bagot would not concede the line of Portland Canal on the coast. He wanted to carry the British territory to a higher point on the coast than that represented by the mouth of the Portland Canal,

The fourth stage of negotiations runs from May to September in the same year-1824. By that time Mr. Canning had instructed Sir Charles Bagot to concede the line of Portland Canal upon the main land. But these negotiations again became abortive because Russia would not concede the claims which were put forward on behalf of England with regard to trade and fishery upon the north-west coast of America generally. But in this stage of the negotiations it will be found that not only are the points which I have referred to dealt with again and emphasised, but that England proposed taking mountains as the boundary, and proposed taking the base of the mountains. Mountains were spoken of as being at a little distance from the coast, near the coast, and so on, and in one passage it is actually pointed out by one of the Russian negotiators, as the Tribunal will find, that they must have the summit of the mountains instead of the base, because if they took the base they might have no territory at all. The base of the mountains might run down to the very edge of the ocean, so that no territory would be left at all, a point which is of great importance in determining what are the mountains which are designated by the Treaty. These negotiations went off at that time on the point which I have mentioned. And then in the same year, in December, 1824, the matter was put by Mr. George Canning into the hands of Mr. Stratford Canning, as he was at that time: he negotiated with Counts Nesselrode and Poletica, and success attended these efforts at last; the troublesome trade and fishery questions being settled by adopting some of the Articles which occur in the Russian Treaty with America, while at other points the Treaty with England took a thoroughly independent line, as on that of the question of latitude or bounds of territory as indicating the southern boundary, and a Treaty was signed concluding the fifth stage of these negotiations in 1825.

Now, having indicated the divisions under which these negotiations fall, I think that it will now be my duty to call the attention of the Tribunal to certain passages in the despatches marking each of these five periods which are of any importance with regard to the questions which fall to be decided by the Tribunal. I take the first period-the pourparlers between the Duke of Wellington and Counts Nesselrode and Poletica at Verona in October, 1822. They open by the despatch of the 27th September from Mr. George Canning to the Duke of Wellington. It will be found on pp. 28 and 29 of the British Case Appendix. There are only a few sentences of it which I need read. He says:

66

'Your Grace is already in possession of all that has passed, both here and at St. Petersburgh, on the subject of the issue in September of last year, by the Emperor of Russia, of an Ukase indirectly asserting an exclusive right of sovereignty from Bering's Straits to the 51st degree of north latitude on the west coast of America."

The PRESIDENT. Mr. Attorney, we want you, of course, to read any passages upon which you rely. With regard to what I may call the general correspondence, that is to say, the people to whom it is addressed, and the general particulars of the letters you may assume we have read them, and therefore, if you call attention to the passages themselves, you need not trouble to read anything except that upon which you rely. I think I may say that for all the members.

Sir ROBERT FINLAY. That will enable me to shorten.

The PRESIDENT. Please do not think that we want to interfere with

25

you in anything. It is only with reference to these particular documents which we have all studied. We shall quite appreciate the points if you call attention to any passages which you think necessary.

Sir ROBERT FINLAY. I am obliged to you,—

"And to the 45th degree north on the opposite coast of Asia."

And then he states the effect of the ships not approaching within 100 Italian miles of the coast.

Then, with regard to the portion of the despatch which relates to the Ukase, with regard to use of the ocean I need not trouble the Tribunal. It is enough to have stated its nature, which enables one to realise what was done in treaty with regard to it.

With regard to the territorial claim there is a paragraph near the bottom of p. 28, which calls the attention of the Duke of Wellington to the opinions which had been taken upon the point, and this is of importance in addition to these opinions:-

As, in both these opinions "I am reading the third paragraph from the bottom of the page-"As, in both these opinions, much stress is very properly laid upon the state of actual occupation of the territories claimed by Russia and the different periods of time at which they were so occupied, I have obtained from the Governor of the principal Company of His Majesty's subjects trading in that part of the world the information which your Grace will find in the inclosed papers. That information will enable you sufficiently to prove to the Russian Ministers, not only that the point of prior discovery may be fairly disputed with Russia, but that the much more certain title of actual occupation by the agents and the trading servants of the Hudson's Bay Company extends at this moment to many degrees of higher latitude on the north-west coast of America than is claimed as the territory of Russia by the Ukase in question.'

Now, that is important, because in the materials laid by Mr. Pelly on behalf of the Hudson's Bay Company before Mr. Canning there was included the Memorandum inclosed in his letter which is set out, pp. 25 to 28 of the British Case Appendix; and in that Memorandum reference is repeatedly made to the researches and discoveries of Captain Vancouver. Now, a point is made, and if it can be established it would be a very important one in the United States Case that the Vancouver narrative was not before the negotiators. It is asserted that it is not shown that it was before the negotiators. Now, in this Memorandum of Mr. Pelly's reference is over and over again made to Vancouver's narrative in terms which leave no doubt whatever. That Memorandum formed part of the materials laid before the Duke of Wellington, and the Tribunal will find that the very same terms which were laid before the Duke of Wellington were materials afterwards to be supplied to Sir Charles Bagot for his use in the negotiations. Now, in these materials were references to Vancouver's narrative. Then on p. 29 the Duke of Wellington

The PRESIDENT. Give the page of Mr. Pelly's Memorandum again, Mr. Attorney.

Sir ROBERT FINLAY. Pages 25-28. I will mention, if it would be convenient to the Tribunal at this moment, the passages where Vancouver's narrative is referred to. Near the top of p. 27 the

S. Dec. 162, 58-2, vol 6- -3