read. It relates to other matters. Mr. Canning's observation is this beginning at the bottom of p. 90D:—

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'Your Excellency will observe that there are but two points which have struck Count Lieven as susceptible of any question. The first, the assumption of the base of the mountains instead of the summit as the line of boundary; the second, the extension of the right of navigation of the Pacific to the sea beyond Behring Straits."

As to the first, no great inconvenience can arise from your Excellency (if pressed for that alteration) consenting to substitute the mountains instead of the seaward base provided always that the stipulation as to the extreme distance from the coast to which the lisière is in any case to run, be adopted (which distance I have to repeat to your Excellency should be made as short as possible), and provided the stipulation be added that no forts shall be established or fortification erected by either party on the summit or in the passes of the mountains."

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

55

THIRD DAY.-WEDNESDAY, SEPTEMBER 16, 1903.

All the Members of the Tribunal were present.

The PRESIDENT. Mr. Attorney-General.

Sir ROBERT FINLAY. When the Tribunal adjourned yesterday, I was dealing with the fourth stage of the negotiations which took place in the summer of 1824, and I had just at the adjournment begun calling attention to certain passages in the despatch of Sir Charles Bagot to Mr. Canning of the 12th August, 1824, which will be found at the beginning of p. 92, British Case Appendix. There are some passages in the despatch to which I will call attention. He begins by saying:

"You will certainly learn with considerable surprise that, so far from having it in my power, as I had confidently hoped that I should have, to bring with me, on my return to England, a Treaty signed and ratified by the Russian Government upon the subject of the North-West Coast of America, I am already enabled to acquaint you that after only two meetings with the Russian Plenipotentiaries, I have ascertained that it is totally impossible to conclude with them any arrangement upon the subject which is at all reconcilable with the 'Projet transmitted to me in your despatch No. 26 of the 12th of last month, even if I were to take upon myself to exercise, upon several points of it, a discretion which is not given to me by your instructions."

Now the 66

And then he refers to the "Contre-Projet " which was offered by the Russian Plenipotentiaries on the day after the first meeting. Contre-Projet " is set out on pp. 94 and 95 of the Appendix, and I must call attention to that " Contre-Projet " because it brings forward a proposal with reference to the width of the belt, the "lisière" which is different in principle altogether from that which is afterwards adopted in the Treaty but a return to which would be practically effected if the contention of the United States were adopted. The first Article of that "Contre-Projet " runs thus:

"Article I.

"The line of demarcation between the possessions of the two High Contracting Parties upon the North-West Coast of America and the adjacent islands shall be drawn in the following manner: Commencing from the two points which form the southernmost extremity of the island called 'Prince of Wales Island,' which shall entirely belong to Russia, which points lie in the parallel of 54 degrees 40 minutes north latitude, and between the 131st and 133rd degree of west longitude (meridian of Greenwich) the line of frontier between the Russian and British possessions shall ascend northerly along the channel called Portland Channel until the said pass comes to an end in the interior of the mainland, situated at the 56th degree of north latitude."

The words in the French are:

66 * * * Jusqu'au point où cette passe se termine. * *

So there is no ambiguity there as to what is or is not terminated. "From this point it shall be carried along the coast in a direction parallel to its windings as far as the 139th degree of longitude west (same meridian), and thence the boundary between the respective possessions on the said continent of America shall be formed by the line of the said degree of longitude in its extension as far as the frozen sea."

S. Doc. 162, 58-2, vol 6-5

⚫65

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"Article II.

"The strip of the north-west coast belonging to Russia, from the Portland Channel up to the point of intersection of the 139th degree of west longitude (meridian of Greenwich), shall not have in width, upon the Continent, more than 10 marine leagues measured from the shore of the sea. There the Tribunal will observe that the mountains are not mentioned at all, but it is proposed there shall be a belt on the coast which is to be of not more than 10 marine leagues' width, and measured from the shore of the sea. That, of course, is a proposal of a totally different kind from what is embodied in the idea of taking the mountains as a guide; with that single exception of a point with regard to the line from which the 10 marine leagues is to be measured, it will make an enormous difference in the extent of territory; the line indicated on the map of the United States, as showing the territory obtained by them, is really a return to the principle of discarding the mountains, and taking a belt of a certain width to be measured from the sea. Then the IIIrd Article makes provision:

"It is understood:

"Article III.

"1. That within the possessions of the two Powers, as they are described in the preceding Articles, and specially up to the line of 59 degrees 30 minutes north latitude, but not beyond, their respective vessels and those of their subjects, for the space of ten years from the 5th (17th) April, 1824, shall reciprocally enjoy the liberty of visiting without hindrance the gulfs, havens, and creeks in the parts of the islands and coast not already occupied by either Russian or British establishments, and to fish and trade with the natives of the country."

Then there is a provision against landing at any spot where there may be an establishment of the other Power, a provision against trading in "spirituous liquors, in fire-arms, swords, bayonets, gunpowder," and so on; a provision for the free navigation of the rivers by the subjects of His Britannic Majesty on the strip of coast described by Article II. Then Sir Charles Bagot refers to that "Contre-Projet " at p. 92 of the Appendix, and goes on thus:

"The differences between this Contre-Projet' and the Projet' which I had given in are, in many respects, unimportant, consisting either in unnecessary changes in the expressions, or in the order of the Articles, or in other minor points, none of which, as I have reason to think, would have been tenaciously adhered to, and of which some might have been safely admitted. But there are three points upon which the differences appear to be almost, if not altogether, irreconcilable.

"These points are:

"1. As to the opening for ever to the commerce of British subjects, of the port of Novo-Archangelsk.

"2. As to the liberty to be granted to British subjects to navigate and trade for ever along the coast of the 'lisière' which it is proposed to cede to Russia from the Portland Channel to the 60th degree of north latitude, and the islands adjacent.

"As to the liberty to be given reciprocally to each Power to visit, for a term of years, the other parts of the north-west coast of America."

Then, I do not think I need read that which follows as to the freedom of access; but as to the second point on p. 93, Sir Charles Bagot goes on thus:

66 ** * * The Russian Plenipotentiaries declared that the coasts of North America extending from the 60th degree of north latitude to Behring's Straits, the liberty to visit which, under certain conditions, is stipulated in the 'Projet by Great Britain, in return for a similar liberty to be given, under the same

conditions, to Russian subjects to visit the North American coasts belonging to His Majesty are, and have always been, the absolute and undisputed territory of His Imperial Majesty, and that it is not the intention of His Imperial Majesty to grant to any Power whatever for any period of time the liberty which is required.

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Then I do not think I need read the rest of the passage. Near the bottom of the page he indicates how the negotiations for the time went on, and he says:—

"In closing yesterday the Conference, which assured me that all further chance of negotiation was, for the present at least, terminated, I thought it my duty to remind the Russian Plenipotentiaries that the maritime jurisdiction assumed by Russia in the Pacific, which he had hoped to see revoked in the simplest and least unpleasant manner by mixing it with a general adjustment of other points, remained, by the breaking off of our negotiations, still unretracted; and that my Government would probably be of opinion that, upon that part of the question, some arrangement must yet be entered into."

That marked the termination of this fourth stage of these negotiations, and the reasons why Russia broke off on that point are stated not only in the despatch of Sir Charles Bagot, but they are also stated in a very important despatch to Count Nesselrode, which is dated the 4th September, and will be found in the same Appendix, beginning on p. 96. The translation begins on p. 103. It is the despatch which is addressed to Count Lieven, who represented Russia, and passing over the initial portion of the despatch, I call the attention of the Tribunal to the passage which begins a little above the middle of p. 104. He had referred to the draft of the Convention, which he said was far from meeting the expectations of Russia.

"You have read it rapidly, M. le Comte, but in order that you may form a better estimate of it I send you a copy."

That copy is set out on p. 100, and there are in the opposite column, the second column, annotations by Count Nesselrode, to which I shall refer presently.

66 *

"I have made in some marginal notes [these are the marginal notes set out in these pages, pp. 100-3] * * some remarks as to minor points, and I reserve to myself the duty of making, in this despatch, the most important observations, those concerning clauses which it is utterly impossible for us to accept :

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-

They are three in number:

"1. Liberty to English subjects to hunt, to fish, and to trade with the natives of the country, perpetually, on the whole of that part of the coast which constitutes the subject of the discussion, and which extends from 59 degrees of north latitude to 54 degrees 40 minutes.

"2. Liberty to English subjects to hunt, to fish, and to trade with the natives of the country for ten years on another part of our coasts and islands, from 59 degrees north latitude to Behring Strait.

66

'3. The permanent opening of the port of Sitka or Novo-Archangelsk.

"As to the first: The draft of Convention of the Cabinet of London does not express itself with perfect precision upon this Article, and it was only through our oral conversations with Sir Charles Bagot that we learned that England demanded the right to hunt, to fish, and to trade, for ever, in that part of the dominion of Russia; but those explanations were so positive that they left us in no doubt as to the wishes of the British Cabinet.

"In order to know whether we had no reason to be surprised at it, and whether it is possible for us to grant it, it suffices to read again, on the one hand, the passage from Mr. Canning's Memorandum which I cited above, and, on the other hand, to glance at our Convention with the United States.

"The Chief Secretary of State of His Britannic Majesty has declared to you officially and in writing that England would ask of us commercial privileges similar to those which we might grant to other Powers. Now, the United States

is the only Power to which we have ever granted any, and those which we have guaranteed to her by the Convention of April 5 (17) of the present year are to last only ten years.

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"We would, therefore, satisfy the demands which England herself has presented to us by guaranteeing the same privileges to her for the same space of time. Besides, how could we consent to grant to British subjects privileges of this kind, which we have just refused to American subjects? The British subjects—and we cannot repeat this too often-have never pushed either their establishments or their commercial operations as far as the northwest coast. The evidence of the latest maps published in England reveals and proves this fact. If the Hudson Bay and the North-West Companies have approached the coast, it is only within the last three years; whereas the American subjects have constantly frequented these waters, and it is their enterprises that have given rise to the discussions which we are labouring to terminate. Would it be possible for us, after this, even if our interests permitted it, to give them for ten years (only) what we would give for ever to the British subjects?"

I refer to that only as showing how prominently there was before the minds of the negotiators at that time the American Treaty with the terms of its provisions, and they emphasise the contention which I make, that while upon certain points the American Treaty was followed, on other points it was deliberately departed from.

"We have been willing to suppose that, in spite of a formal taking possession, a long occupation of the principal points, and a peaceful exploitation of the sources of revenue and wealth presented by the countries in question, Russia's rights of sovereignty to the 51st degree of north latitude might be the subject of a doubt. We have, consequently, confined them to the 54 degrees 40 minutes, and, to prevent any new dispute from arising on this point, we have permitted one of the Powers with which we were in litigation to share for ten years, on the whole extent of the coast where our rights have been disputed, the profits of hunting, fishing, and trading with the natives.

66

We offer the same advantages to England; but to grant them for ever would be to obtain the recognition of our rights of sovereignty, only to abandon the exercise of them. It would be consenting to possess hereafter only in name what we now possess in fact.

"The English Ministry will be struck by these arguments, and we venture to believe that it will then bring back to the terms of its previous declarations the demands contained in its draft of Convention with regard to commercial privileges."

There again reference is made to the limit which is taken in the American Treaty of 54 degrees 40 minutes.

As to 2-that is, liberty to English subjects to hunt, fish, and to trade with the natives of the country perpetually in that part of the coast extending from 59 degrees of north latitude to Behring Straits, the Count says:

"Besides the right to hunt, to fish, and to trade for ever on that part of the north-west coast which would belong to us from 54 degrees 40 minutes of north latitude to 59 degrees, the Cabinet of St. James, according to the meaning which Sir Charles Bagot attached to its propositions, demanded the same right for ten years on the coast and islands extending from 59 degrees to Behring Strait.

"Here we will again cite the Memorandum which Mr. Canning addressed to you, M. le Comte, under date of May 29th. It is there stated that England would demand the free use of all the rivers which might cross the strip of coast belonging to Russia, and of all the seas, straits, bays, &c., which might be within her dominions. * * * A few lines further down the Memorandum of the Chief Secretary of State adds that he considers it to be understood and agreed upon that Russia will withdraw all the exclusive claims which she had set up in the Ukase of 1821 with respect to the navigation and jurisdiction of the North Pacific Ocean. When we compare these two demands, which follow each other so closely, and which, so to speak, explain and complete each other with each other, it is difficult to find anything more in them than the free navigation of the waters and seas bathing the possessions of Russia. Now, we have always shown ourselves ready to guarantee this freedom [of navigation].