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ST. JOHN FISHER COLLEGE lIBRAR
WITHDRAW. -

A rC/lives Edition

CANADA AND ITS PROVINCES

IN TWENTY.TWO VOLUMES AND INDEX

(Vols. 1 and 2)
SECTION I
NEW FRANCE, 1534- 1 7 60
(V ols. 3 and 4)
SECTION II
BRITISH DOMI
ION, 1760-184 0
(Vol. 5)
SECTION III
UNITED CANADA, 184 0 - 186 7

(V ols. 6, 7, and 8)
SECTION IV
THE DOMINION:
POLITICAL EVOLUTION

(V ols. 9 and 10)
SECTION V
THE DOMINION:
INDUSTRIAL EXPANSION

(Vols. II and 12)
SECTION VI
THE DOMINION:
MISSIONS; ARTS AND
LETTERS

(Vols. 13 and 14)
SECTION VII
THE ATLANTIC PROVINCES

(V ols. 15 and 16)
SECTION VIII
THE PROVINCE OF QUEBEC
(Vols. 17 and 18)
SECTION IX
THE PROVINCE OF ONTARIO

(Vols. 19 and 20)
SECTION X

THE PRAIRIE PROVINCES

(Vols. 21 and 22)
SECTION XI

THE PACIFIC PROVINCE

(Vol. 23)
SECTION XII
DOCUMENTARY NOTES
GENERAL INDEX

GENERAL EDITORS
ADA:J\.1 SHORTT
ARTHUR G. DOUGHTY

ASSOCIATE EDITORS
THOMAS CHAPAIS ALFRED D. DECELLES
F. P. WALTON GEORGE M. WRONG
WILLIAM L. GRANT ANDREW MACPHAIL
JAMES BONAR A. H. U. COLQUHOUN
D. M. DUNCAN ROBERT KILPATRICK
THOMAS GUTHRIE MARQUIS

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VOL. 8
SECTION IV

THE DOMINION
POLITICAL EVOLUTION
PART III

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LORD ASHBURTON
From an e1
l{ravÙr..f{ in the D01llinkl1l A nhivcs

CANADA
AND ITS PROVINCES
A HISTORY OF THE CANADIAN
PEOPLE AND THEIR INSTITUTIONS
BY ONE HUNDRED ASSOCIATES
ADAM SHORTT
ARTHUR G. DOUGHTY
GENERAL EDITORS

VOL U 1\1 E V I I I

F
\OCb
, "'1
I '

PRINTED BY T. & A. CONSTABLE
AT THE EDINBURGH UNIVERSITY PRESS
FOR THE PUBLISHERS' ASSOCIATION
OF CANADA Ll!vIITED

TORONTO
GLASGOVl, BROOK & COMPANY
1914

Cop)'righl in all countries subscribitzg to
th
Berne Convention

CONTENTS

PAGE

THE FISHERY ARBITRATIONS. By N. B. WORMWITH
I. THE NORTH ATLANTIC COAST FISHERY DISPUTES 681
Status prior to the Treaty of 1818-Interpretation of the
Treaty of 1818-The Arbitration before The Hague Tribunal
II. THE BERING SEA FUR-SEAL DISPUTES 723

BOUNDARY DISPUTES AND TREATIES. By JAMES \VHITE
I. FRO
I FUNDY TO JUAN DE FUCA. 751
lntroductory-St Croix River Commission-Passamaquoddy
Islands-The 'Due North J and' Highlands J Lines-Arbitra-
tion by the King of the N etherlands- The British Statement-
Statement on the Part of the United States-Second British
Statement-Second United States Statement-Award of the
King of the Netherlands - Frontier Strife -' Battle of the
Maps J - National Rights through Occupation - Results of
the Ashburton Treaty-Through the St Lawrence Basin to
Lake of the Woods-Boundary from Lake Huron to the
North-\Vest Angle of Lake of the Woods-Review of the
Awarded Boundary under Articles VI and VII of the Treaty
of Ghent- Bryce-Root Treaty, 1908- From Lake of the
\V oods to the Pacific Ocean - Historical Review - British
Statement-Statement of the United States-Occurrences,
1820-184o-The Oregon Treaty-Settlement in the Disputed
Area-Review of the Settlement-San Juan Controversy-
Award of the German Emperor-Hudson's Bay Company
Claims-Surveys of the Boundary
n. ONTARIO-MANITOBA BOUNDARY 878
Résumé of Differences-Hudson's Bay Company's Charter,
167o-Discoveries and Settlements in the Bay-Treaty of
Neutrality, 1686- Treaty of Ryswick, 1697 - Treaty of
Utrecht, 1713-Treaty of Paris, 1763-The Proclamation of
J763- Th e Quebec Act, 1774-The Constitutional Act, 1791
-Judicature Acts, 1803 and 18I8-Rupert's Land Act, 1870-
"ii

viii THE DOMINION: POLITICAL EVOLUTION

Arbitration of Boundary, 1878-Reference to the Imperial
Privy Council, 1884 - Review of the Differences - Map
Evidence before the Privy Council- Review of the Case
before the Privy Council
III. LABRADOR-CANADA BOUNDARY 9 08
The Royal Proclamation of 1763-The Quebec Act, 1774-
Imperial Legislation subsequent to 1774 - Historical-
Conclusions

PhGR

IV. ALASKA BOUNDARY. 917
Ukase of I821-Negotiations between the United States and
Russia-Joint Negotiation of Great Britain and the United
States with Russia-The Monroe Doctrine-Instructions to
Bagot-Bagot's Proposals-Modified Instructions to Bagot-
Instructions to Stratford Canning-Treaty of February 28,
18 2 5- The ' Dryad' Case-Neutralization during the Crimean
War-Sale of Russian America to the United States-British
Request for Joint Survey, 1872-Boundary on Stikine River
-DaB-Dawson Correspondence-British Protests-Boundary
Survey Conventions, 1892 and 1895-Friction at Chilkoot and
'Vhite Passes, 1896 - Joint High Commission, 1898-99-
Alaska Boundary Convention, 1903 - Alaska Boundary
Tribunal-Decision of Tribunal re Portland Canal-British
Case-United States Case-British Counter Case-United
States Counter Case-Decision of the Tribunal-Review

ILLUSTRA TIONS

LORD ASHBURTON

Frontisþiece

From an engraving in the Dominion Archives

NORTH ATLANTIC FISHERY LIMITS UNDER
TREATY OF 1818 Facingþage 686

NORTHERN PART OF THE NORTH PACIFIC
OCEAN

"

726

ISLANDS IN THE BAY OF FUNDY

"

766

EASTERN CANADA-UNITED STATES BOUNDARY

"

782

SAN JUAN WATER BOUNDARY

"

87 0

ONTARIO-MANITOBA BOUNDARY

"

894

CANADA-LABRADOR BOUNDARY

"

9 10

ALASKA BOUNDARY

"

9 18

Ix

THE FISHERY ARBITRATIONS

VOL. VIII

A

THE FISHERY ARBITRATIONS

I
THE NORTH ATLANTIC COAST FISHERY
DISPUTES

O N January 29, 19 0 9, the United States and Great
Britain entered into a special treaty agreement
for the submission to arbitration of all questions
relating to the fisheries on the coasts of Canada and New-
foundland.
For over a century and a quarter the dispute had been
carried on with more or less virulence, and on several occasions
had brought the two nations to the verge of war. It was
not a controversy that through lapse of time had acquired
merely historic interest; it affected interests that were
substantial and in some respects vital to portions of each
na tion. The views of both countries had been so long
maintained and so strenuously urged that neither could
with grace retreat from the position it had taken. The
na tional honour of each was in a measure involved. Through
the participation of many of the ablest and most honoured
statesmen on both sides of the Atlantic, the controversy
had acquired that sanctity which the sentiment of a nation
gives to the assertion of its rights. From the point of view
of international law, the questions involved were of special
interest and of the utmost consequence, not only to the
two powers directly concerned, but also to every nation of
the world. Every consideration that moves a sovereign
nation to regard and maintain the interests of its own people
urged Great Britain and the United States to press their
views of this controversy.

681

682 THE FISHERY ARBITRATIONS

STATUS PRIOR TO THE TREATY OF 1818
Dispute between the colonies and the mother country
on the fisheries question first arose in the years immediately
preceding the revolt of the American colonies. The nations
of Europe had been struggling for upwards of a century
for the possession of the fisheries in the northern parts of
North America. France, as the principal settler there,
had long claimed the exclusive right to them. Great Britain,
moved in no small degree by the value of these fisheries,
had won Canada from France, and had limited by treaty,
within a narrow compass, the right of France to any share
in the fisheries. Spain, upon some claim of prior discovery,
had for some time enjoyed a share of the fishery on the
Banks, but at the last treaty of peace, in 1763, had expressly
renounced it.
At the commencement of the American Revolution,
therefore, these fisheries belonged exclusively to the British
nation. The colonists of Massachusetts and other New
England states, as British subjects, had continuously
resorted to the fishing-grounds, which were an important
source of living and revenue to them. Though the fisheries
are relatively unimportant in modem times, they were of
vital importance to New England in 1782. The reigning
toast in Massachusetts was, 'May the United States ever
main tain their rights to the fisheries!' The American
colonists considered that these fisheries had been discovered,
exploi ted and developed by them; tha t they had been
won by their toil, by their blood, by their activity; and
when peace began to be talked about in 1782 they contended
that they had as good a right to maintain a claim to con-
tinue in the enjoyment of them as British subjects across
the sea, and a better right than the new subjects in Canada.
And so the American peace negotiators, Franklin, Adams and
Jay, were instructed by Congress' that in no case, by any
treaty of peace, the common right of fishing be given up.'
The Treaty of I78].-Resolutely maintaining that posi-
tion, the United States plenipotentiaries at Paris were able

NORTH ATLANTIC COAST FISHERY DISPUTES 683
to exact as the price of peace from Great Britain, in the
position of weakness in which she found herself in 1783,
the terms of a treaty by which equal rights with British
subjects to take fish of every kind in all British North
American waters were given to every inhabitant of the
United States. The right was unlimited as to any distance
from shore. It was absolutely the same right as British
subjects themselves had, except that American fishermen
were not permitted to dry and cure their fish on the Island
of Newfoundland.
The Treaty of Ghent, I8I4.-No question with respect
to the fisheries article of the treaty of 1783 or the use of
the fisheries under it arose until the close of the War of
1812, when Great Britain took the position that the rights
of American fishermen had been abrogated by that war,
the United States insisting with equal vigour that those
rights were perpetual. When the negotiators met at Ghent
in 1814 to sign a treaty of peace, it was found impossible
to reach any common ground, and the whole subject of the
fisheries was left open by that treaty as an unsettled subject
of difference between the two governments, and, possibly,
as Henry Clay expressed it, 'as a nest egg for another war.'
Period from r8I4-I8.-Continual collision and friction
were of course inevitable. Scarcely six months after the
signing of the Treaty of Ghent, occasion arose for the renewal
of the controversy as to whether the inshore fisheries of the
treaty of 1783 had survived the War of 1812. On June 19,
1815, occurred what is known as the 'Jaseur incident.'
Captain Lock of H.M.S. Jaseur warned an American
fishing vessel, engaged in cod-fishing about forty-five miles
distant from Cape Sable, not to come within sixty miles of
the coast. On the protest of John Quincy Adams, American
minister at London, Lord Bathurst hastened to disavow the
warning, and stated that the action complained of was
totally unauthorized. Lord Bathurst assured the American
government that Great Britain did not pretend to interfere
with the fishing operations of American vessels on the Grand
Banks of Newfoundland, in the Gulf of St. Lawrence, or at
places in the sea without the jurisdiction of the maritime

68 4 THE FISHERY ARBITRATIONS
league from the coasts under the dominion of Great Britain;
at the same time he informed Adams that Great Britain
could not acknowledge the right of the fishermen of the
United States to use the shores of British territory for pur-
poses connected with the fishery, and that their vessels would
be excluded from the bays, creeks, harbours and inlets of
all British possessions. ,
During the years 1816, 1817 and 1818, a score or more
American fishing vessels were seized in the Bay of Fundy
by British cruisers, and the result of four years was to
demonstrate that some arrangement must be made. Accord-
ingly after prolonged negotiations, in October 1818, a new
treaty was entered into, and it is upon the terms of this
treaty that American fishing privileges now rest, and it
was these terms that had to be interpreted by the Tribunal
of Arbi tra tion at The Hague.

INTERPRETATION OF THE TREATY OF 1818
Treaty of I8I8.- The fishery article of the treaty of 1818
is as follows:

WHEREAS differences have arisen respecting the
liberty claimed by the United States for the inhabitants
thereof, to take, dry and cure fish on certain coasts,
bays, harbours and creeks of His Britannic Majesty's
dominions in America:
IT IS AGREED between the high contracting parties
that the inhabitants of the said United States shall
have for ever, in common with the subjects of His
Britannic Majesty, the liberty to take fish of every
kind on that part of the southern coast of Newfoundland
which extends from Cape Ray to the Rameau Islands,
on the western and northern coast of Newfoundland,
from the said Cape Ray to the Quirpon Islands, on the
shores of the Magdalen Islands, and also on the coasts,
bays, harbours and creeks from Mount Joly on the
southern coast of Labrador, to and through the straits
of Belle Isle and thence northwardly indefinitely along
the coast, without prejudice, however, to any of the
exclusive rights of the Hudson Bay Company:

NORTH ATLANTIC COAST FISHERY DISPUTES 685
AND that the American fishermen shall also have
liberty for ever, to dry and cure fish in any of the un-
settled bays, harbours and creeks of the southern part
of the coast of Newfoundland hereabove described, and
of the coast of Labrador; but so soon as the same, or
any portion thereof, shall be settled, it shall not be law-
ful for the said fishermen to dry or cure fish at such
portion so settled, without previous agreement for such
purpose with the inhabitants, proprietors, or possessors
of the ground:
AND the United States hereby renounce for ever, any
liberty heretofore enjoyed or claimed by the inhabitants
thereof, to take, dry, or cure fish on, or within 3 marine
miles of any of the coasts, bays, creeks or harbours of
His Britannic Majesty's dominions in America not
included within the above-mentioned limits:
PROVIDED, HOWEVER, that the American fishermen
shall be admitted to enter such bays or harbours for
the purpose of shelter and of repairing damages therein,
of purchasing wood, and of obtaining water, and for no
other purpose whatever. But they shall be under such
restrictions as may be necessary to prevent their taking,
drying or curing fish therein, or in any other manner
whatever abusing the privileges hereby reserved to them.
Treaty of I7B3 and IBIB compared.-It will be observed
that the liberties granted by the treaty of 1818 are far more
restricted than those granted in 1783. In 1818 Great Britain
was in a very different position from that which she had
occupied thirty-five years before. The long wars with
Napoleon were over, and Napoleon himself was a prisoner
at St Helena. Great Britain was in a position to dictate
terms even to the United States, and we find her negotiators
taking an attitude far different from the one their predecessors
had taken in 1783. The United States, on the other hand,
dropped the extreme pretensions previously put forward.
In 1783 John Adams, the father, had pushed the American
claims as grounded on pure right alone. In 18 I 8 John
Quincy Adams, the son, was forced to urge 'considerations
of policy and expediency' as an inducement to Great
Britain to recognize such right. And so when the treaty
finally came to be signed, Great Britain's position, shortly

686 THE FISHERY ARBITRATIONS

stated, was: 'We will not recognize your extreme preten-
sion of right in these fisheries, but are willing to delimit
to you certain definite extents of coastal territory in British
North America, where your privilege of fishing in common
with British subjects shall continue, but only on condition
tha t you distinctly renounce the right or claim to fish wi thin
three miles of all the rest of our coasts.', The United States
therefore had lost much by this treaty. Formerly, American
fishermen could fish anywhere on the British North American
coasts; now, they could fish only on certain specified
portions. In 1783 they were unrestricted as to distance
from land; in 18 I 8, except on the coasts delimited, they
could not come within the three-mile limit. In 1783 they
could dry and cure their fish anywhere on the coasts of
Nova Scotia and Labrador; now, they could exercise such
privilege only on a small portion of the Newfoundland coast
and Labrador.
Period front I8I8 to I836.-During the eighteen years
immediately following the treaty, no serious trouble arose
respecting its provisions, although between 182 I and 1824
half a score or more of American sloops were seized in the
Bay of Fundy for alleged illegal fishing.
Period fronz I836 to I8S4.-In 1836, however, Nova
Scotia passed what was known as the' Hovering Act,' which
empowered customs officers to board and search any vessel
found hovering' within three marine miles of any of the
coasts, bays, creeks and harbours' of that province. All
the other provinces passed similar statutes. A t this time
also the mackerel left the New England coasts and entered
the bays of Canada. The question of practical importance
at once arose: what is meant by the phrase 'within three
marine miles of any of the coasts, bays, creeks and harbours' ?
When the United States in 1818 renounced the right of
taking fish' on or within three marine miles of any of the
coasts, bays, . . . of His Britannic Majesty's dominions in
America,' what were the bays in which they gave up the right
to fish? From where must be measured the 'three marine
miles' referred to in Article 1 ?
Great Britain took the position that the term 'bays'

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They also have the right to dry and cure fish in the unsettled
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NORTH ATLANTIC COAST FISHERY DISPUTES 687

was used in the renunciation clause of Article I, as including
all tracts of water on the non-treaty coasts which were known
under the name of bays in 1818, and that the three marine
miles must be measured from a line drawn between the
headlands of those waters. Great Britain claimed that the
negotiators of the treaty meant by 'bays' all those waters
which, at the time, every fisherman and every mariner
knew as bays; and she pointed to the maps published at
the time, with the waters in dispute marked as ' bays.'
The United States, on the other hand, early contended
that the word' bays' must be confined to small indentations,
that these small bays alone she had renounced in 1818,
and that the three marine miles must be measured from a
line following the sinuosities of the coast. This theory, if
sustained, would give American fishermen access to such
great bays as Chaleur Bay-which recedes seventy miles
into the interior before narrowing down to a point where
it is six miles wide-Miramichi Bay, Egmont Bay, Placentia
Bay, Fortune Bay and numerous others. By the same
process of reasoning Delaware Bay (eleven miles wide) and
Chesapeake Bay (thirteen miles wide at its entrance) would
be thrown open to Canada.
Bay of Fundy conceded to Al1zcricans.-Where the parties
took so widely dissimilar views of their rights, serious trouble
was inevitable. The Bay of Fundy was readily accessible
to the enterprising fishermen of Gloucester, Massachusetts.
They swarmed down on the Nova Scotian coasts every fishing
season, and at once ran foul of the colonial interpretation of
the treaty of 1818. The colonists had succeeded in inducing
the home government to exercise greater activity in patrol-
ling the fishing-grounds. Soon seizures of American fishing
vessels began to be made by British cruisers or men-of-war.
The Washington was seized in the Bay of Fundy at a point
over ten miles distant from land, and the Argus near Cow Bay
off the Cape Breton coast, at a point some twenty-eight miles
from land. Each nation vigorously maintained its position.
The seizures continued. The difficulty, as the y
ars passed
on, became more and more accentuated. Between 1839 and
1845 elaborate diplomatic representations were made between

688 THE FISHERY ARBITRATIONS

the two governments, and finally in 1845, after fruitless
negotiations, the British government felt that some arrange-
ment must be made at least as far as the Bay of Fundy was
concerned.
In that year Lord Aberdeen, the foreign secretary of
Great Britain, wrote a letter, which had been prepared as a
piece of diplomatic correspondence after, the most matured
deliberation, in which, while still maintaining the British view
on the question of bays, he expressed the willingness of the
British government, as a pure matter of grace and concession,
to forgo, as far as the Bay of Fundy was concerned, its strict
right to exclude American fishermen therefrom, and assented
to the use of those waters by American fishermen on the
understanding that as to the remaining colonial coasts the
claims of these fishermen should cease.
Lord Aberdeen's letter, forwarded on March 10, 1845,
to Edward Everett, American minister at London, coupled
with the understanding between the two powers that American
fishing privileges in the Bay of Fundy should not be included
in the points submitted to the arbitrators at The Hague in
1910, practically amounts to a permanent arrangement in
favour of the United States. The terms of this letter are
sufficiently important to warrant citation:

Her Majesty's government must still maintain, and
in this view they are fortified by high legal authority,
that the Bay of Fundy is rightfully claimed by Great
Britain as a Bay within the meaning of the treaty of
1818. And they equally maintain the position which
was laid down in the note of the undersigned, dated
the 15th of April last, that, with regard to the other bays
on the British American coasts, no United States' fisher-
man has, under that convention, the right to fish within
three miles of the entrance of such bays as designated by
a line drawn from headland to headland at that entrance.
But while her Majesty's government still feel them-
selves bound to maintain these positions as a matter
of right, they are nevertheless not insensible to the
advantages which would accrue to both countries from
relaxation of the exercise of that right; to the United
States as conferring a material benefit on their fishing

NORTH ATLANTIC COAST FISHERY DISPUTES 689
trade; and to Great Britain and the United States, con-
jointly and equally, by the removal of a fertile source of
disagreement between them.
Her Majesty's government are also anxious, at the
same time that they uphold the just claims of the
British crown, to evince by every reasonable concession
their desire to act liberally and amicably towards the
United States.
The undersigned has accordingly much pleasure in
announcing to Mr Everett, the determination to which
her Majesty's government have come to relax in favor
of the United States' fishermen, that right which Great
Britain has hitherto exercised, of excluding those fisher-
men from the British portion of the Bay of Fundy, and
they are prepared to direct their colonial authorities
to allow henceforward the United States' fishermen to
pursue their avocations in any part of the Bay of Fundy,
provided they do not approach, except in the cases
specified in the treaty of 1818, within three miles of the
entrance of any bay on the coast of Nova Scotia or New
Brunswick.
The American government, while courteously acknowledg-
ing the spirit that had moved the writing of the letter, refused
to accept as a mere favour that for which they had so long
and strenuously contended as due them as of right under the
convention. Ever since the writing of that letter in 1845,
American fishermen have continued to fish in the Bay of
Fundy as waters open to them. I t is now most unlikely that
any British government would revert to the strict construction
of the treaty, as far as the Bay of Fundy is concerned, and
attempt to exclude American fishermen from it. When the
treaty that provided for the submission of the whole fishery
dispute to arbitration was signed, it was expressly agreed
between the parties, by an exchange of notes, that any question
as to American claims in the Bay of Fundy should be ex-
cluded. That point was left untouched by the arbitration.
The United States minister had refused to accept the
relaxation thus made as a mere favour, and he wrote to his
government that he anticipated an even more liberal con-
struction of the treaty by Great Britain. Everett's expecta-
tion proved well founded. Having given up the Bay of

690 THE FISHERY ARBITRATIONS

Fundy, Great Britain seemed disposed to be generous, and in
May 1845 the governor of Nova Scotia was informed that
'Her Majesty's Government deem it advisable for the
interests of both countries to relax the strict rule of exclusion
exercised by Great Britain over the fishing vessels of the
United States entering the bays of the sea on the British
North American Coast.' .
The proposal to throw open all the bays of British North
America to American fishermen provoked the most vigorous
protest from Nova Scotia. That colony's views on the
subject were embodied in a report of its attorney-general,
which began with the statement that' the concession of a
right to fish in the Bay of Fundy has been followed by the
anticipated consequence-the demand for more extended
surrenders based upon what has already been gained.' This
remonstrance had the desired effect, and the governor of
Nova Scotia was informed that Her IVIajesty's government
had abandoned its original intention and would adhere to
the strict letter of the treaty, except with regard to the Bay
of Fundy.
Great Britain having declined to make a relaxation as to
bays other than the Bay of Fundy, the parties reverted to
the strict letter of their rights. In 1852 the British govern-
ment was again compelled to dispatch a considerable armed
force to protect colonial rights. Each of the provinces sent
cruisers. l\1atters looked serious. Hot words passed in the
United States Senate, and an American force was sent to
the fishery grounds.
To complete the history of the period prior to the
Reciprocity Treaty of 1854, in connection with this subject
of 'bays' there should be mentioned two incidents which
in subsequent years were the cause of much embarrassment
to those seeking to support the claims of their respective
governments-an extraordinary blunder on the part of Great
Britain and a damaging admission on the part of the United
States.
Great Britain's Blunder.-It was the people of Nova
Scotia who had originated the C headland' theory, and, for
the purpose of ascertaining whether the theory was tenable,

NORTH ATLANTIC COAST FISHERY DISPUTES 691
the House of Assembly of Nova Scotia in April 1841 prepared
a case-stated for the purpose of being referred to the law-
officers of the crown in England.
The opinion of the law-officers of the crown was rendered
in August 1841. On the question of bays, in so far as now
material, it was as follows:

We are of opinion that by the terms of the treaty
American citizens are excluded from the right of fishing
within three miles of the Coast of British America, and
that the prescribed distance of three miles is to be
measured from the headland or extreme point of land
next the sea of the coast, or the entrance of the bays
and not from the interior of such bays. . . as we are of
oPinion the term headland is used in the treaty to express
the part of land we have before mentioned, excluding the
interior of the bays and the indents of the coast.

It is noteworthy that the law-officers of the crown did not
base their decision upon any historic claim of jurisdiction by
Great Britain over the waters in dispute; or upon any
examination into the negotiations antedating and leading up
to the treaty of 1818 for the purpose of obtaining the true
in terpreta tion of this clause; nor did their opinion rest on
any general principles of international law establishing the
extent of jurisdiction over the territorial sea. They relied
solely on the alleged fact that the word headland was used in
the treaty in accordance with the British construction.
Unfortunately for their accuracy and reputation, the
word headland is not in the treaty. The law-officers made the
grievous error of adopting the words of the case-stated
instead of examining and passing upon the actual words
of the treaty. The 'opinion' was not communicated to
the United States at the time and was not therefore made a
subject of diplomatic discussion. The incident is of im-
portance, for it was admittedly' this high legal authority'
which was mainly instrumental in leading the home govern-
ment to adopt the colonial construction of the treaty, and
in this respect of course it rested upon an imaginary basis.
The opinion of the law-officers was reverted to with keen

692 THE FISHERY ARBITRATIONS
satisfaction by American diplomatists and counsel in sub-
sequent years.
The Da1naging Admission by the United States.- The
admission, prejudicial to the contention of the United States,
was made by Daniel \Vebster, then secretary of state, in
July 1852. At this time cruisers of both powers were patrol-
ling the fishing-grounds, and the controv.ersy had become so
acute that the United States felt it necessary to assume some
clearly defined attitude towards the 'bay' question. On
JuIJ. 6, therefore, Webster, in his official capacity as secretary
of state of the United States charged with the conduct of
her foreign affairs, published a proclamation for the avowed
purpose 'that American fishermen might perceive how the
case at present stands and be on their guard.' In this pro-
clamation he made the remarkable admission that:
I t would appear that by a strict and rigid construction
of this article, fishing vessels of the United States are
precluded from entering into the bays or harbors of the
British provinces except for the purposes of shelter,
repairing damages and obtaining wood and water. . _ .
It was undoubtedly an oversight in the Convention of I8I8
to 'make so large a concession to England.
That \Vebster was right is proved by the award of the
arbitrators at The Hague in 1910, but his injudicious ad-
mission of the correctness of the British construction of the
treaty was in after years a source of constant embarrassment
to the United States, and in fact was never successfully
explained away. In the printed case, counter-case and
argument submitted by the United States in connection with
The Hague Arbitration, an attempt was made to justify the
, Webster proclamation,' but, in his argument which closed
the proceedings, Senator Root had finally to admit that
it was quite inexplicable on ordinary grounds, and that
it must be ascribed to the excitement induced by the
disease that resulted in \Vebster's death a few weeks after
its publication.
Period from I8S4 to I87I.-Attempts to harmonize the
views of the two countries through diplomatic channels
having failed, in 1854 it was determined to settle the whole

NORTH ATLANTIC COAST FISHERY DISPUTES 693
dispute, if possible, by making a new treaty. Accordingly
the treaty known as the' Reciprocity Treaty' was entered
into. It admitted American fishermen to the enjoyment of
all British coast fisheries in the Atlantic in exchange for the
admission of British fishermen into certain United States
coast fisheries, and it provided also for reciprocal abatement
in customs dues.
In December 1854 the joint commission, established for
the settlement of claims for damages for the seizures of
the Washington and the Argus by Great Britain, rendered
its award, both of these cases being decided in favour of
the United States by the umpire-Joshua Bates. The
Washington had been seized in 1843 in the Bay of Fundy at a
poin t between ten and twenty miles distant from land, and
the legality of the seizure was questioned by the United
States. The umpire awarded the owners of the Washington
$3000 damages, mainly on the ground that as one of the head-
lands of the Bay of Fundy was in the United States it was not
a British bay. The Argus had been seized in 1844 at a point
twenty-eight miles distant from land, and admittedly outside
the three-mile line drawn between the headlands of Cow
Bay. In the case of the Argus the owners were awarded
$2000 damages. In both cases, therefore, the theory of the
headlands was not squarely presented, and the decision of
the umpire left the question still an open one.
During the currency of the Reciprocity Treaty of 1854,
inasmuch as the inhabitants of the United States were by its
terms permitted to resort to all the inshore fisheries without
any limitation as to the distance from shore, no question of
dispute arose involving the fisheries. In March 1866 the
treaty was terminated by notice given by the United States,
in accordance with its provisions, and American fishermen
reverted to the treaty of 1818 as the measure of their right
on the non-treaty coasts.
From 1866 to 1869 the Canadian government resorted to
the system of issuing licences permitting American fishermen
to use the inshore fisheries. The system was not successful
and was discontinued in 1870.
In the years immediately following the abrogation of

694 THE FISHERY ARBITRATIONS
the Reciprocity Treaty of 1854, Canadian negotiators made
several journeys to Washington in an attempt to conclude a
new treaty. They were unsuccessful. The tremendous fiscal
necessities of the United States at this time, occasioned by the
Civil War which had just come to a close, left no choice to
the government but to raise the tariff wall. A general abate-
ment in customs dues by the Unite<;l States, in favour of
Canada, was at this time altogether impossible.
Washington Treaty, 187I.-However, in 1871 Sir Edward
Thornton, British minister at Washington, acting under
instructions from Lord Granville, then colonial secretary,
proposed to the American secretary of state that another
attempt should be made to come to a complete understanding
with regard at least to the fisheries question. This suggestion
of Lord Granville, and the subsequent notes exchanged be-
tween the two powers, eventually led to the negotiations
resulting in the treaty of May 8, 1871, known as the Treaty of
Washington. This treaty extended to the inhabitants of the
United States the benefit of all the inshore fisheries without
limitation as to distance from shore, and a similar liberty
was extended to the subjects of Great Britain, to the sea-
coasts and shores of the United States north of the 39th parallel
of north latitude. The treaty was made applicable to
Newfoundland in 1874. The fisheries articles of the treaty
were to remain in force for ten years, and further until the
expiration of two years after either power had given notice
of its desire to terminate them. These articles were in effect
a renewal of the fisheries provisions of the Reciprocity Treaty
of 1854; but no provision was made for reciprocity in the
exchange of products between the British possessions in
North America and the United States, except that fish and
fish-oil of all kinds, the product of the other country, were to
have free entry. And whereas Great Britain asserted that
the fishing liberties accorded to the citizens of the United
States were of greater value than those conferred on the
citizens of Great Britain, it was provided by Article 22 of
the treaty that a commission should be appointed to determine
the value of these additional privileges and award compensa-
tion if found due. The fisheries clauses of this treaty were

NORTH ATLANTIC COAST FISHERY DISPUTES 695
terminated in July 1885, on notice given by the United
States.
Period from I87I to I88s.-ln 1877 Great Britain asked
for the appointment of the commission agreed upon in
Article 22 of the Treaty of Washington, which was to deter-
mine the excess value of the privileges accorded to American
citizens over those accorded to the citizens of Great Britain.
This commission, which was composed of three members-
Sir Alexander Galt, chosen by Great Britain; the Hon.
H. E. Kellogg of Massachusetts, appointed by the United
States; and Maurice Delfosse, Belgian minister at Washington,
appointed conjointly by the parties-met at Halifax in June
1877. The case was elaborately argued on both sides.
Finally in November of that year by a vote of two to
one, the American commissioner dissenting, a decision was
rendered which awarded 'the sum of $5,500,000 in gold to
be paid by the United States to Great Britain' as the amount
of the compensation due her for the use of the fishery privi-
leges for twelve years. I t was claimed by the American
government that this award was grossly exorbitant. The
customs receipts for the four years from 1873 to 1877 showed
that the United States had remitted duties on fish amount-
ing to $350,000 a year, and this added to the award made the
equivalent of almost $10,000,000 for the use of the inshore
fisheries for twelve years. It was said to be, in fact, worth
not more than $25,000 a year. Objection was also taken
in the United States Senate to the method of the appointment
of the neutral commissioner. Finally, after extended delibera-
tion, the award was paid. It must be admitted that the
arbitration was decidedly favourable to Great Britain.
Fortune Bay Controversy, I878.-ln January 1878, barely
a month after the date of the Halifax award, occurred what
is known as · the Fortune Bay incident.' A number of
American fishermen while carrying on their opera tions in
Fortune Bay, in accordance with the Washington Treaty
of 1871, were attacked by large and violent mobs of the in-
habitants of Newfoundland, were compelled to take up their
seines, to release the fish already enclosed and to abandon
their fishery. Several of their nets were destroyed. The
VOL. VIII B

ST. JO
irJ FISHER CO' !_Fr'C 'IR
j

696 THE FISHERY ARBITRATIONS
justification aUeged was that the Americans were violating
the provisions of Newfoundland statutes in C barring' herring
in a close season and in fishing on Sunday. The long diplo-
matic correspondence that ensued ended by the payment
of f'15,ooo to the United States by Great Britain, on the
ground that, whatever provocation the inhabitants of New-
foundland had received from the Ame,rican fishermen, and
whether or not those fishermen were in the wrong (as to
which both parties maintained their own views), British
private citizens had no right to take the law into their own
hands.
But although this point is absolutely clear, the incident
was the occasion of an important discussion, for the first
time, between the two governments as to whether the right
to regulate the fisheries existed at all. Thus in 1878, ninety-
five years after the treaty of 1783 and sixty years after the
treaty of 1818, arose, in a practical way, the question as
to how far the treaty rights accorded to American fisher-
men were affected by local laws and regulations. Shortly
stated, the question was, whether or not Canadian and
Newfoundland law, appropriate or necessary for the pro-
tection and preservation of the fisheries and desirable or
necessary on grounds of public order and morality, should
be binding upon the fishermen of the United States without
their consent. For upwards of two centuries Nova Scotia
and Newfoundland had had on their statute books and had
been enforcing regulations designed to protect and preserve
the immensely valuable fisheries on their coasts. Such
laws related to: the care of the spawning-beds during the
spawning season; the prohibition of fishing on Sunday; the
prohibition of the throwing overboard of offal which infected
the waters and poisoned the fish, causing them to desert the
Banks; the regulation of the size and kind of nets; pro-
hibition of 'purse seines' and other implements used in
carrying on the fishery operations along the coast. Such
regulations had always been in force and had never before
been questioned by the United States government.
Lord Salisbury, therefore, in 1878, took the position on
behalf of Her Majesty's government that the fishery to

NORTH ATLANTIC COAST FISHERY DISPUTES 697
which the inhabitants of the United States were admitted
in 1783, in 1818, in 1854 and in 1871, was a regulated fishery,
and that American fishermen when exercising the privileges
accorded them by these treaties must conform with Canadian
or Newfoundland law passed in good faith for the protec-
tion and preservation of the fisheries. William M. Evarts,
United States secretary of state, on the other hand, strenu-
ously maintained that the fishery rights of American citizens
conceded by prior treaties were to be exercised wholly free
from the restraints and regulations of the statutes of Canada
and Newfoundland. This question of the' right to regulate'
was finally submitted to The Hague Tribunal as Question
No.1.
Joint Regulations Proposed.-In the course of the dis-
cussion that grew out of the Fortune Bay case, the question
of joint regulation of the fisheries came up for consideration,
and an attempt was made by both powers to co-operate in
an effort to make those regulations a matter of reciprocal
convenience and right. But the negotiations fell through.
Modus Vivendi, I885.-Ir.. pursuance of instructions
from Congress, the president gave the required notice of
the desire of the United States to terminate the fishery
articles of the treaty of 1871, and consequently they came
to an end on July I, 1885. As this happened to be the
middle of the fishery season, the terms of the treaty were
prolonged throughout that year by a modus vivendi. The
temporary arrangement terminated with the season of 1885,
and from 1885 to 1886 there was no formal understanding
between the two powers.
Events from I886 to I888.- The treaty of 1818 once more
became the measure of the rights of both powers. Great
Britain immediately proceeded to enforce a strict and literal
interpretation of that treaty. The 'Foreign Fishing
Vessels Act' was passed by the Canadian government, and
instructions were forwarded to the naval officers in command
of government cruisers engaged in patrolling the fishing-
grounds, to enforce rigidly the three-mile limit rule and
seize all vessels found fishing in the prohibited waters.
The instructions to the naval officers included a rigorous

698 THE FISHERY ARBITRATIONS
command to see that American fishermen obeyed colonial
regulations.
But the most noteworthy clause in these instructions
was one reminding the commanders that American fisher-
men had no commercial privileges in Canadian ports on the
treaty coasts-the words of the treaty permitting them to
en ter Canadian or Newfoundland harbours only for certain
specified purposes: for shelter, for repairing damages, for
purchasing wood, and for obtaining water. The words of
the treaty explicitly said:
'Provided, however, that the American fishermen shall
be admitted to enter such bays or harbours for the purpose
of shelter and of repairing damages therein, of purchasing
wood, and of obtaining water, and for no other purpose
whatever.' .
The commanders, therefore, were ordered to keep foreign
fishing vessels from entering the harbours and bays of Canada
for the four legal purposes, from taking advantage thereof,
to take fish there, to purchase bait, ice or supplies, or to
tranship cargoes or from transacting any business in con-
nection with their fishing operations. It was a privilege
of the greatest value to American fishermen, when hundreds
of miles away from the base of supplies at Gloucester,
Massachusetts, to be able to resort to the ports of Canada
and Newfoundland for the purposes above mentioned, and
especially, in regard to the fisheries of the Banks in the open
sea, for the purpose of purchasing tait. All these privi-
leges were denied them under the interpretation of the treaty
now sought to be enforced by the colonial authorities.
The Canadian marine police at once proceeded to en-
force a strict observance of the instructions sent them by
the department of Marine and Fisheries. In 1886 700
American fishing vessels, and in 1887, 1362 were boarded,
some 400 were seized; and many of them were condemned to
forfeiture. A period of extreme diplomatic tension followed.
In July 1886 the David J. Adams was seized in Digby Gut,
Nova Scotia, for purchasing bait; the Thomas F. Bayard
was warned out of Bonne Bay on the western coast of New-
foundland for attempting to do the same; the Mascot was

NORTH ATLANTIC COAST FISHERY DISPUTES 699
threatened with seizure at Port Amherst, Magdalen Islands,
on similar grounds. Thomas F. Bayard, United States secre-
tary of state, in a dispatch to Sir Lionel Sackville-West,
British minister at Washington, made these interferences the
occasion of a vigorous protest against the Canadian and
Newfoundland attitude on the question of the commercial
privileges of American fishing vessels. He conceived 'such
proceedings to be flagrantly violative of the treaty rights
of their citizens, for which the United States expected prompt
remedial action by Her Majesty's Government,' and he
would ask that <<such instructions may be issued forthwith
to the provincial officials of Newfoundland and the Magdalen
Islands as will cause the treaty rights of citizens of the United
States to be duly respected.'
Daniel Manning, United States secretary of the Treasury,
reported that <<while his department protected Canadian
fishermen in the use of American ports, the Dominion of
Canada brutally excludes American fishermen from Canadian
ports.' And he claimed on behalf of the United States that
'American fishing vessels duly authenticated by the Depart-
ment, and having a permit to II touch and trade," should
be permitted to visit Canadian ports, and buy supplies,
including bait, and enjoy ordinary commercial privileges,
unless such right is withheld in our ports from Canadian
vessels.' He complained of 'mediæval restrictions on free
navigation'; of 'Canadian inhumanity'; and contended
that C American fishermen were not outcasts,' and that
C they were entitled to the ordinary rights of hospitality
which the citizens of every civilized nation enjoy in the
ports of another.'
Reply was made by Lord Rosebery on behalf of Canada
and Newfoundland, that the words of the treaty of 1818 were
clear and unambiguous. This treaty prohibited American
fishing vessels from entering a Canadian or Newfoundland
port for any purpose whatever, except for four legal purposes,
namely, to obtain wood or water, to repair damages and to
seek shelter. This was not only the language of the treaty
of 1818, but its true spirit and plain intent. He pointed out
that the American negotiators of that treaty had sought to

700 THE FISHERY ARBITRATIONS
make the proviso at the end of it to read thus: C Provided
that American fishermen shall be pennitted to enter such
bays and harbors for the purposes of obtaining shelter,
wood, water, and bait and for no other purpose whatever,'
and the insertion of the words C and bait' had been resisted
by the British negotiators and struck out.
In this way arose Question NO.7, the question of ' Com-
mercial privileges,' afterwards submitted to The Hague
Tribunal for an answer.
Customs Entry.- Two practically new questions, involv-
ing the interpretation of the treaty, also arose at this period.
In August 1886 the American fishing sloop Rattler was
boarded while taking shelter in Shelburne Harbour, Nova
Scotia, and threatened with seizure unless the captain
reported at the Customs House. A score or more of vessels
were at once subjected to similar requirements in other
ports. Great Britain claimed that the reporting of American
fishery vessels at the customs was clearly necessary for the
prevention of smuggling. The vast extent of the sea-coasts
of Canada and Newfoundland in the Gulf of St Lawrence,
their thickly wooded shores, their numerous bays and
harbours, the scattered population, the almost constant
prevalence of fog, rendered it of the utmost importance
that laws against smuggling should be simply but strictly
enforced. This could be accomplished only by requiring
the master of each vessel to enter and report at customs
immediately on arrival. These laws were enforced against
colonial vessels, and it was claimed that they should also
be observed by fishing vessels of the United States. In
exercising their treaty rights they were not, and could not
be, independent of the custom laws.
Payment of Light Dues.-At this period of the contro-
versy, American fishing vessels, on the ground no doubt
that they were being denied commercial privileges, for the
first time refused to pay light dues. This requirement, it was
claimed on behalf of Great Britain, involved no unreason-
able interference with the exercise of the fishery rights of
American fishermen. These dues were payable by all
vessels of whatever description or nationality, with the

NORTH ATLANTIC COAST FISHERY DISPUTES 7 01
exception of coasting and fishing vessels of the colonies.
whose owners paid taxes for the upkeep of these lighthouses,
and it was not unfair or any discrimination to ask American
vessels to contribute towards their maintenance.
The American reply to the British contention on these
two points was :
'The Government of Newfoundland cannot be per-
mitted to make entry and clearance at a Newfoundland
customs house and the payment of a tax for the support
of Newfoundland lighthouses, conditions to the exercise of
the American right of fishing.'
In this way arose Questions Nos. 3 and 4, afterwards
submitted to The Hague Tribunal for an answer.
The seizures still continued. American authorities at
this time, drawing up a statement of their own complaints
against Canadian authorities, calculated that between 1818
and 1888, 97 of their vessels had been seized and condemned,
and during the years 1886 and 1887 over 2000 had been
boarded or seized and in many instances forfeited. In only
one case, it was claimed, that of the Washington in 1853, had
reparation been made by Great Britain. The situation became
more and more acute. For 5everal weeks the fishery question
was an all-absorbing topic and threats of war were freely
made. Canadian cruisers diligently patrolled the fishing-
grounds. The United States also sent a war-vessel with
instructions to watch over American interests. The indig-
na tion in Congress found expression in two bills looking
toward retaliation. The one introduced in the House of
Representatives prohibited all commercial intercourse with
Canada by land or water. The Senate would not agree
to so radical a measure, and finally passed a statute giving
the president of the United States power, in his discretion,
whenever he should be satisfied that American fishermen
were denied or abridged in the enjoyment of any rights
secured them by treaty or law, or unjustly vexed or harassed
in the treaty waters or ports of Canada or Newfoundland,
or subjected to unreasonable restrictions or regulations in
respect of their rights, to deny to vessels of Canada or New-
foundland any entrance into the waters or ports of the United

702 THE FISHERY ARBITRATIONS
States; and also to deny entry into any port or place of
the United States of fresh fish or salt fish or of any product
of Canada or Newfoundland coming from those dominions
into the United States. The president has never exercised
the retaliatory power thus conferred upon him.
Negotiations of I888.-An elaborate diplomatic corre-
spondence took place during the years 1886, 1887 and 1888.
Neither side would yield its convictions to the reasoning
of the other. This being exhausted, there was no resource
left to nations disposed to peace but a compromise. Great
Britain was willing to give up something. The United
States consented to take less than the whole. Manyexpres-
sions are to be found in the diplomatic correspondence of
this time of a sincere desire to settle the en tire controversy
by entering into an arrangement for adjusting the fisheries
question on some new basis mutually acceptable. In recog-
nition of this situation, Bayard, the United States secretary
of state, forwarded to Lord Iddesleigh a draft agreement
'in the hope that it would be found to contain a satisfactory
basis for the solution of existing difficulties, and assist in
securing an assured settlement of the long-vexed question
of the North Atlantic fisheries.'
The main feature of Bayard's proposal was the appoint-
men t of a mixed commission for the purpose of deciding
upon the meaning and scope of the disputed provisions
of the treaty of 1818. It was proposed that the commission
should negotiate a new treaty, and for this purpose Great
Britain appointed her plenipotentiaries, Joseph Chamberlain,
Sir Charles Tupper and Sir Lionel Sackville-\Vest
These plenipotentiaries, in conjunction with those of
the United States, reached an agreement for a treaty on
February IS, 1888, called the Chamberlain-Bayard Treaty ;
but this proposed treaty, though it passed in the House of
Representatives, when submitted to the Senate failed to
secure approval, and therefore never became effectual.
Another attempt to settle' the long-vexed question of the
North A tlan tic fisheries ' had failed.
Chamberlain-Bayard Treaty, I888.-This so-called Cham-
berlain-Bayard Treaty of 1888, though never ratified by

NORTH ATLANTIC COAST FISHERY DISPUTES 703
the United States government, nevertheless marks an im-
portant epoch in the history of the controversy. Without
going as far as to recognize the theory upon which the British
contention on the question of bays was based, yet, for all
practical purposes, it gave effect to this contention by
specifically delimiting the lines beyond which American
fishermen could not go in Canadian and Newfoundland
waters. In practically all the important bays the' headland
principle' was applied. The limits of exclusion of American
fishing vessels were thus established: in Chaleur Bay by
a line measuring 16 miles from headland to headland;
Miramichi Bay, 17t miles; Fortune Bay, 10 and I I miles;
Placentia Bay, I I miles; Mira Bay, 9 miles; St. Peter's
Bay, 9 miles. And as to bays and harbours not specifi-
cally provided for in the treaty, the three marine miles were
to be measured from a straight line drawn across the bay or
harbour at the point nearest the entrance where it was ten
marine miles wide.
This was the compromise attempted on the question of
bays.
The treaty also provided that whenever the United
States should remove the customs duties upon fish and
certain fish products, then:
'The privilege of entering the ports, bays, and harbours
of the Atlantic coast of Canada and Newfoundland shall
be granted to United States fishing vessels by annual licences,
free of charge, for the following purposes, namely:
, I. The purchase of provisions, bait, ice, seines, and
other supplies and outfits;
'2. Transhipment of catch, for transport by any means
of conveyance;
'3. Shipping of crews.'
This was the compromise attempted on the question of
commercial privileges.
Modus Vivendi, I888.-As has been stated, the United
States Senate declined to ratify this convention and there-
fore it neTer became operative. But the wisdom of the
negotiators had provided a modus vivendi, pending legislative
action with regard to the convention, and, in order to avoid

704 THE FISHERY ARBITRATIONS
any difficulty during the intervening months, it was agreed
between the parties that, for a period not exceeding two
years from date, American fishing vessels should be per-
mitted to enter freely Canadian harbours and buy supplies,
bait, outfit; to tranship; and generally to exercise the com-
mercial privileges of Canadian ports to the full extent to
which the vessels of any foreign country could be given
them. This temporary arrangement (as far at least as
Canada is concerned) has simply continued from that day
to this. \Vhen the treaty to which the arrangement was
subsidiary was rejected by the Senate of the United States,
and fell entirely to the ground, the intervening or temporary
arrangement did not necessarily fall with it. It has been
rescinded by neither party, and by simple acquiescence it
has continued till the present time. Accordingly, on the
payment of an annual fee of $1.50 per ton to the Canadian
governmen t, American fishing vessels are at liberty to resort
to Canadian ports and bays.
Period from 1888 to 1905.-The year 1888 marks the
end of the controversy between Canada and the U ni ted
States until the formal arbitration. Not so in the case of
Newfoundland: and it was the persistence with which that
colony clung to its rights, as it saw them, under the treaty
of 1818, and the vigorous methods it took for the protec-
tion of these rights, that eventually led to the submission
of the whole fisheries question to arbitration in 1909.
Bond-Blaine Treaty, 189I.-What Newfoundland desired
above all was a market for her fish and fish products-access
to the markets of the United States, free from customs duties.
In accordance with this object, in 1891 a convention was
entered into by Sir Robert Bond, on behalf of Newfound-
land, and James G. Blaine, on behalf of the United States,
which provided for the admission of dry cod-fish, cod-oil,
etc., free of duty into the United States in return for the
privilege granted American fishing vessels of purchasing
bait and supplies and of touching and trading and exercising
commercial privileges generally. Canada protested against
the adoption of this treaty; Great Britain found herself
unable to ratify it, and it fell to the ground.

NORTH ATLANTIC COAST FISHERY DISPUTES 705
Hay-Bond Treaty of 1902.-But Newfoundland had not
given up hope of reciprocal free trade with the United States,
and in 1902 Sir Robert Bond entered into negotiations
with John Hay, secretary of state, for a new treaty. Its
terms were practically the same as those of the 1891 treaty,
providing for reciprocal freedom from customs duties of
certain articles, and for permission to American fishermen
to purchase bait and other supplies in ports of N ewfound-
land. But this treaty also failed to receive confirmation
in the United States Senate in 1904.
The Newfoundland Controversy, I905-7.-Failing in his
attempts to obtain reciprocity in trade with the United
States by means of treaty agreements, the premier of New-
foundland had recourse to an entirely new policy. Since
1893 American fishing vessels had been allowed by New-
foundland to purchase bait and supplies and to ship crews,
if duly licensed to do so. In 1905, however, immediately
after the failure of the Hay-Bond treaty, the Newfoundland
government passed what is known as the & Foreign Fishing
Vessels Act,' which put an end to the licence system, and by
the most stringent provisions prohibited absolutely within
Newfoundland waters the sale of bait, lines and supplies
to foreign fishing vessels and the hiring of crews by such
vessels. The purpose of this new policy, tacitly admitted
by Sir Robert Bond, was & to bring the fishing interests of
Gloucester and New England to a realization of their depend-
ence on the bait supplies of this colony'; to show them
, that the fishermen of this colony had the whip-hand in regard
to the fisheries of British North America,' and to compel the
American government by pressure thus exerted to open the
American market to Newfoundland fish and fish products,
free of duty, in exchange for more extensive fishing and
commercial privileges.
The sale of bait and supplies to American fishing
vessels being prohibited In Newfoundland, American
fishermen after the act of 1905 tried to evade the effect
of that prohibition by engaging Newfoundlanders to
fish for them. Instead of buying the fish which the
Newfoundlanders had caught, they, in order to avoid

706 THE FISHERY ARBITRATIONS
the operation of the local law, proceeded to employ New-
foundlanders.
But the legislature of Newfoundland was equal to the
occasion, and in 1906 passed an act prohibiting Newfound-
landers from taking employment in any foreign fishing vessel,
and subjecting any foreign vessel employing them to a fine
of $100, or forfeiture, in the discretion of the magistrate.
These circumstances gave rise to the controversy as to
whether, under the treaty, United States fishermen were
entitled to employ persons other than the inhabitants of
the United States in the prosecution of the fisheries. Sir
Robert Bond turned up the treaty and found that the liberty
to take fish was accorded C to the inhabitants of the United
States,' and the liberty to dry fish was given' to American
fishermen.' The Newfoundland position, therefore, and the
position of the British government was that the liberty to
fish was restricted C to the inhabitants of the United States,'
and that under the treaty, strictly interpreted, Americans
had no right to bring into British waters on their fishing
vessels for fishing purposes, Norwegians, Swedes, Danes,
etc., or any person who was not an inhabitant of the United
States, and of course this would include Newfoundlanders,
if the government of that colony chose to prohibit them from
taking employment on American vessels.
In this way arose Question NO.2, submitted to The
Hague Tribunal for an answer.
Question No. 6.-The last question that arose concerning
the interpretation of the treaty of IS18 is an entirely new
one, and a somewhat close reading of Article I is required
for its appreciation. It was originated by Sir Robert Bond,
premier of Newfoundland, in a debate in the House of
Assembly of that colony on April 7, 1905, eighty-seven
years subsequent to the ratification of the treaty of ISIS.
A perusal of the fishery article of the treaty on page 684
will show that while it grants to American fishermen liberty
to take fish C on the coasts, bays, harbours and creeks from
Mount Joly on the southern coast of Labrador,' etc., it
gives liberty on the · coast' merely of Newfoundland and
on the · shores' of the Magdalen Islands. And the question

NORTH ATLANTIC COAST FISHERY DISPUTES 707
is, whether the more restricted liberty in these two localities
is to be construed as meaning the same as the more ample
liberty on the Labrador coast.
Stated in another form, Sir Robert Bond's argument
was based on the use of the word 'coasts' followed by the
words 'bays, harbours and creeks' in defining the liberty
to fish on the Labrador coast, and on the use of the word
, coast' alone when speaking of the liberty on the Island of
Newfoundland, and the use of the word 'shores' alone
when speaking of the liberty on the Magdalen Islands.
The effect of the contention would be that Americans
could fish on the 'coast' of Newfoundland specified as
being open to them under the treaty, but could not enter
any of the · bays, creeks or harbours' for that purpose.
There was evidence to show that Americans had been fishing
in the bays on the western coast of Newfoundland as early
as 1823, in the belief that they had a right to do so, but it
was reserved for Sir Robert Bond to discover tha t they
had slept in peace for nigh a century in blissful ignorance
of their insecurity . Not a suggestion is to be found in the
diplomatic records in regard to the point. It is a question
which all the years of debate had never brought to the surface;
but Sir Robert Bond refused to assent to the submission of
the controversy to arbitration unless this belated conten-
tion were included. Both powers finally agreed.
In this way arose Question No.6, submitted to The
Hague Tribunal for an answer.
Modus Vivendi of 1906 and 1907.-The passage of the
Foreign Fishing Vessels Act of 1906 in the legislature of
Newfoundland was the subject of so vigorous a protest on
the part of the government of the United States, that
imperial assent was withheld and the measure never became
operative. An exchange of important diplomatic notes
followed between the United States secretary of state, Elihu
Root, and Sir Edward Grey, which, starting merely with
a discussion of the right of American fishing captains to hire
Newfoundlanders, finally resulted in the opening up of the
entire controversy.
The wide divergence of the views taken by the two

708 THE FISHERY ARBITRATIONS
governmen ts, as disclosed in the correspondence, showed
the hopelessness of expecting an immediate settlement of
the various questions at issue; but the wiIIingne
s of both
to come to a temporary settlement, at least, was exhibited
in a modus vivendi, to take effect during the fishing season
of 1906. At the end of that year it was renewed in prac-
tically the same form for 1907.
In June 19 0 7 Sir Edward Grey sent a dispatch to the
American minister at London, Whitelaw Reid, summing
up the views of Great Britain, and the propositions there
stated were so much in conflict with the views of the United
States government on the subject that the task of reconciling
them seemed hopeless. Reid then wrote to Sir Edward
Grey: 'In this conviction my government authorizes me,
and I now have the honor to propose a reference of the
pending questions under the Treaty of 1818 to Arbitration
before The Hague TribunaL' This was agreed to by Great
Britain, and, in January 1909, the treaty agreement pro-
viding for the submission was signed.

THE ARBITRATION BEFORE THE HAGUE TRIBUNAL
It was agreed that all points in controversy should be
submitted in the form of seven questions, in accordance with
the provisions of the convention for the settlement of inter-
national disputes, concluded at the second Peace conference
at The Hague in 1907. The tribunal of arbitration was to be
chosen from the general list of members of the permanent
court at The Hague. The United States chose George Grey,
judge of the United States Circuit Court of Appeal; Great
Britain chose Sir Charles Fitzpatrick, chief justice of Canada;
the two powers agreed upon Dr. H. Lammasch, professor of
international law at the University of Vienna, member of the
upper house of the Austrian parliament, as president, and on
Jonkheer A. F. De Savomin Lohman, minister of state of the
Netherlands, and Luis M. Drago, former minister of Foreign
Affairs of the Argentine Republic, as members. All the pro-
ceedings, including the oral argument of counsel, were to
be in English. Each side was to submit a printed case,

NORTH ATLANTIC COAST FISHERY DISPUTES 709
counter-case and argument. The tribunal assembled at The
Hague on June I, 1910. The oral argument of counsel, four
on each side, was not completed until August 12, and on
September 7 the arbitrators rendered the award.
Question I.-The most important question related to
the right to regulate the fisheries in treaty waters. The
greatest difficulty was experienced in settling the form of
the question. Shortly stated it was this: Has Great Britain
the right, without the consent of the United States, to regulate,
in a reasonable manner, the fishermen of both nations in their
enjoyment of the common fishery?
The full text of the question is as follows :
To what extent are the following contentions or either
of them justified?
It is contended on the þart of Great Britain that the
exercise of the liberty to take fish referred to in the
said article, which the inhabitants of the United States
have forever in common with the subjects of His Britannic
IVlajesty, is subject, without the consent of the United
States, to reasonable regulation by Great Britain,
Canada, or Newfoundland in the form of municipal laws,
ordinances, or rules, as, for example, to regulations in
respect of (I) the hours, days, or seasons when fish may
be taken on the treaty coasts; (2) the method, means
and implements to be used in the taking of fish or in the
carrying on of fishing operations on such coasts; (3) any
other matters of a similar character relating to fishing;
such regulations being reasonable, as being, for instance-
(a) Appropriate or necessary for the protection and
preservation of such fisheries and the exercise of the rights
of British subjects therein and of the liberty which by
the said Article 1 the inhabitants of the United States
have therein in common with British subjects;
(b) Desirable on grounds of public order and morals;
(c) Equitable and fair as between local fishermen and
the inhabitants of the United States exercising the said
treaty liberty, and not so framed as to give unfairly an
advantage to the former over the latter class.
It is contended on the part of the United States that the
exercise of such liberty is not subject to limitations or
restraints by Great Britain, Canada, or Newfoundland
in the form of municipal laws, ordinances, or regulations

710 THE FISHERY ARBITRATIONS

in respect of (I) the hours, days, or seasons when the
inhabitants of the United States may take fish on the
treaty coasts, or (2) the method, means and implements
used by them in taking fish or in carrying on fishing
operations on such coasts, or (3) any other limitations or
restraints of similar character-
(a) Unless they are appropriate and necessary for the
production and preservation of the common rights in
such fisheries and the exercise thereof; and
(b) Unless they are reasonable in themselves and fair
as between local fishermen and fishermen coming from
the United States, and not so framed as to give an
advantage to the former over the latter class; and
(c) Unless their appropriateness, necessity, reasonable-
ness, and fairness be determined by the United States and
Great Britain by common accord and the United States
concurs in their enforcement.

The form in which the question was submitted to the
tribunal is exceptional in international arbitration. Instead
of asking the broad question, the submission was made by
presenting to the tribunal the respective contentions of both
powers and asking it to determine to what extent either
the one or the other was justified. This course was adopted
because it was the only one that could reach any result.
Where the starting-points were so far apart, and the conten-
tions of the parties were so utterly different and irrecon-
cilable, the device had ultimately to be adopted of having
each side state its own contention and leaving the tribunal
to say what was the true meaning of the treaty.
The two parties, in fact, approached the subject of
the first question from entirely different points of view.
Great Britain approc:.ched it from the standpoint of her
sovereignty. The United States approached it from the
standpoint of her granted right. And, the two approaching
the subject thus from different points, there came a line of
cleavage between them, and it rested with the tribunal to
clearly define the situation.
The Argu-ments.-In perusing the treaty of 1818, it will
have been observed that it contains no explicit disposition
in regard to the right of regulating the fishery, reasonable

NORTH ATLANTIC COAST FISHERY DISPUTES 711

or otherwise; it neither reserves this right in express tenns,
nor refers to it in any way. And considering that the
fisheries, which were to be subject to regulation, are in
waters over which the territorial jurisdiction of Great Britain
nonnally extends, the burden fell upon the United States
to establish the proposition that the full exercise of this
sovereign right had been voluntarily restricted by Great
Britain in the treaty of 1818. In other words, since Great
Britain was the owner of the coasts to which the fisheries
were appurtenant, and those fisheries were within her juris-
diction, she would ordinarily have the power to pass laws
for their regulation; and the United States had therefore
to show that she had in some way restricted herself from
so doing. Now such restriction, it is conceivable, could
arise in two ways: either by an actual transfer by Great
Britain of a portion of her sovereign rights over the coastal
waters defined in the treaty, or by an obligation on her part
to refrain from exercising her sovereignty in so far as this
would restrict in any way the enjoyment by American
fishermen of their liberties in the treaty waters.
The United States in its printed and oral arguments
advanced both these theories. First, it based its conten-
tion upon a transfer by Great Britain of sovereign rights,
and this involved a full discussion of the technical doctrine
of international servitudes. This branch of the oral argu-
ment was elaborately and exhaustively discussed by Senator
Turner in his opening address on behalf of the U ni ted States.
The words of every international writer of authority, past
and present, of every country of the world were searched
and their opinions were laid before the tribunal.
This branch of the American argument failed absolutely.
The doctrine that the fishery liberty granted to the inhabit-
an ts of the U ni ted States was an in terna tional servitude
had been reserved by American counsel until very late in
the proceedings, and was something of a coup. It had never
been raised in the diplomatic discussions which had been
carried on for upwards of a century and a quarter by the
keenest minds on both sides of the Atlantic. It had received
no mention in the American printed case or counter-case,
VOL. VIII C

712 THE FISHERY ARBITRATIONS
and was first raised in the printed argument, one month
before the assembling of the tribunal. The contention was
unequivocally rejected by the tribunal. It was not supported
in a single particular.
The alternative contention of the United States was:
that in case an international servitude did not exist, in case
Great Britain had not transferred a portion of her sove-
reignty to the United States and th
s given that country
a voice in the making of regulations while restricting her
own, Great Britain had nevertheless put herself under an
obliga tion to refrain from exercising her sovereignty in an
unreasonable manner; that although Great Britain possessed
the right of territorial jurisdiction over the fishery waters,
there was established by the treaty a line beyond which
the legislative and executive authority of Great Britain
could not go without violating the treaty; that the deter-
mination of what was reasonable regulation, which fixed
the line, was a matter of opinion and judgment; that neither
Great Britain nor a British colony was competent to act
as sole judge of reasonableness, because they would un-
, doubtedly be influenced by local interest and prejudice,
giving the advantage to their own nation, and that there-
fore in equity there should be an agreement between the
United States and Great Britain as to the reasonableness
of a regulation; and furthermore, since such mutuality
was the only possible security to Americans from unjust
restraint, it must be implied in the treaty of 1818.
This feature of the United States contention was strenu-
ously urged by Senator Root in his argument which closed
the proceedings at The Hague. But it was completely
rejected by the tribunal. The decision of the tribunal on
this point was reached only after the most exhaustive study
of diplomatic correspondence, statutes and treaties, which,
for a period of over a hundred years, had marked the course
of the controversy. Every ground upon which the view
of the United States on this branch of the case could by any
possibility be supported, was examined by the arbitrators,
and in its turn rejected. Shortly stated, the four chief
reasons for its dismissal in the award were:

NORTH ATLANTIC COAST FISHERY DISPUTES 713
I. Because every state is bound to execute the obligations
of a treaty in good faith, and no reason has been shown why
this treaty of 18 I 8, in this respect, should be considered
as different from others.
2. Because the exercise of a right of consent by the
United States would predicate an abandonment by Great
Britain of her independence to that extent, which has not
been proved.
3. Because on a true construction of the treaty the
question is not whether the United States agreed that Great
Britain should retain the right to legislate with regard to
the fisheries in her own territory; but whether the treaty
contains an abdication by Great Britain of the right, which
Great Britain as the sovereign power undoubtedly possessed
when the treaty was made, to regulate those fisheries; and
there are no words contained in the treaty to justify the
assumption that Great Britain's sovereignty over its territory
was in any way affected or that any part of it was transferred
to the United States.
4. Because to hold that the United States had a voice
in the preparation of fishery regulations involves the recog-
nition of a right to participate in the internal legislation
of Great Britain and her colonies, and to that extent would
reduce them to a state of dependence.
Therefore the tribunal decided and awarded:

The Award.-The right of Great Britain to make
regulations without the consent of the United States,
as to the exercise of the liberty to take fish referred to
in Article I of the treaty of October 20, 1818, in the
form of municipal laws, ordinances or rules of Great
Britain, Canada, or Newfoundland is inherent to the
sovereignty of Great Britain.
The exercise of that right by Great Britain is, however,
limited by the said treaty in respect of the said liberties
therein granted to the inhabitants of the United States,
in that such regulations must be made bona fide and
must not be in violation of the said treaty.
In other words, it would be incompetent for Great Britain
or her colonies to derogate from the treaty itself by dis-

714 THE FISHERY ARBITRATIONS
criminatory legislation calculated to whittle away or lessen
the liberties that were given under the treaty to the United
States; but so long as the regulations were made in good
faith and not in vialation of the treaty, they are regulations
which it is the inherent sovereign right of Great Britain
and her colonies to exact, and which must be observed by
all men regardless of their nationality. The effect of the
award on Question 1 is therefore to preserve inviolate the
sovereignty of Great Britain; she alone, or her colonies,
can pass regulations, and without the consent or concurrence
of the United States. But inasmuch as Great Britain had
unequivocally admitted, both in her written argument and
through her counsel in their oral argumen ts, that her right
to regulate was limited to 'reasonable regulation, , and in
view of the fact that Great Britain had clearly assumed the
position, by the form in which she had agreed to present
this question to arbitration, to submit the reasonableness
of any future legislation to an impartial arbitral test in case
the United States objected, therefore the tribunal, in accord-
ance with these admissions and Articles 3 and 4 of the special
agreement for arbitration, instituted a mixed commission
of experts, consisting of a national of each party and a non-
national named in the award, to pass on the reasonableness of
fishery regulations applicable to Americans in treaty waters.
As far as Canadian regulations are concerned, this board
will not have to be convened (for the present at least). In
January 1911 an agreement was easily reached with the
United States government as to existing regulations. New-
foundland was not a party to this arrangement.
With -regard to future regulations, the tribunal recom-
mended (it had no power to do more) tha t Canada and
Newfoundland should give two months' notice of intention
to enact new laws, and that these, if objected to by the
United States, should be passed upon by a permanent mixed
fishery commission composed of two nationals and a non-
national umpire, each appointed for a term of five years.
This is a recommendation merely, and under the award the
question of 'reasonableness' would ultimately have to be
submitted to The Hague Tribunal itself.

NORTH ATLANTIC COAST FISHERY DISPUTES 7 1 5
Question No. 5.-' From where must be measured the
" three marine miles of any of the coasts, bays, creeks or
harbours" referred to in the said article? '
This question of ' bays' is the shortest but possibly the
most important of the seven.
The Argulnent.-The parties had no difficulty in agree-
ing that on straight or unindented coasts the three marine
miles should be drawn 'from the shore line at low tide.'
The question was as to indented coasts or bays. When
the United States in 1818 renounced 'forever' any liberty
claimed to take fish ' on or wi thin three marine miles of any
of the coasts, bays, creeks or harbours of His Britannic
Majesty's Dominions in America not included in the above-
mentioned limits,' what were the bays they renounced the
right to fish in? From where was the limit of three marine
miles to be measured in respect to bays?
Now, the historic contention of the United States was
that the three marine miles should follow all the windings
and sinuosities of the shore, dipping deep into the bottoms
or extremities of all the bays. This interpretation would
have resulted in reading the word' bays' out of the treaty
altogether, and the argument was changed for consistency's
sake to this: that the phrase in question must be read as
including only t!lose bays that were under the territorial
sovereignty of Great Britain in 1818, and that waters were
, territorial' only if the distance across their mouths was
six miles or less. Stated in another form, the United States'
contention was that it was only the small bays, the six-
mile bays, in which they had renounced the right to fish.
The six-mile theory is thus explained. The three-mile
lines following the winding of the coast, drawing near to
each other from opposite directions, would necessarily con-
verge and meet at a point where the body of water was only
six miles wide, and it was from this point that the three
miles should be measured.
In support of their contention, counsel for the United
States cited an imposing array of authorities to show that
the limit of jurisdiction of a nation over marginal seas was
in 1818 fixed at the range of cannon-shot from the shore,

7 16 THE FISHERY ARBITRATIONS
which did not then exceed three marine miles, and as a
result, that line was arbitrarily taken as the line of juris-
diction. In a word, the American contention was that the
same rule should apply to bays as to unindented coasts.
Recognizing the weakness of this con ten tion as a matter
of law, United States counsel had recourse to an elaborate
examination of the negotiations preeeding the treaty, in
an endeavour to show that the intention of the negotia-
tions was in accordance with their interpretation.
Great Britain, on the other hand, took the position that,
irrespective of the existence of any three-mile rule in 1818,
the treaty, if read naturally, meant exactly what it said,
and referred to bays in general, that is the geographical
bays, without regard to their form or width, and that all
bodies of water named on the maps of the period · bays,
creeks or harbours,' or commonly known as such, were the
ones in which the United States renounced its rights of
fishery. And as a subsidiary argument, if the phrase
demanded interpretation in a juristic sense, British counsel
contended that the only intelligible principle enumerated
by the authorities on international law was that of Grotius,
namely, that a bay was not known by the width of its head-
lands alone but by the proportion that the width of its
headlands bears to the depth and extent of coast-line within
its headlands, and they argued that this principle should
be applied to the case.
The Award.- The tribunal (Dr Drago, the arbitrator
from Argentina, alone dissenting) decided and awarded:
· In case of bays the three marine miles are to be
measured from a straight line drawn across the body of
water at the place where it ceases to have the configuration
and characteristics of a bay. At all other places the three
marine miles are to be measured following the sinuosities
of the coast.'
But considering that this answer while correct in prin-
ciple was not entirely satisfactory as to its practical
applicabili ty, the tribunal proceeded to recommend for the
acceptance of both powers a series of lines drawn from
headland to headland of the bays in dispute, marking out

NORTH ATLANTIC COAST FISHERY DISPUTES 7 1 7
with definiteness the point beyond which American fishermen
could not go. These lines are the same as those adopted
in the Chamberlain-Bayard Treaty of 1888, but rejected by
the United States Senate, and they give all the important
bays to Great Britain.
On this most important question (Question 5), therefore,
Great Britain was entirely successful. The tribunal in its
award, after dealing with the various arguments advanced
by the United States, rejected them all.
The main contention of the United States that the words
, coasts, bays, creeks and harbours' were used in the treaty
only to express different parts of the coast, and were intended
to express and be equivalent to the word' coast' whereby
the three marine miles should be measured from the sinuosi-
ties of the coast, was rejected for two principal reasons:
I. Because it is a principle of interpretation that words
in a document ought not to be considered as being without
any meaning if there is not specific evidence to that purpose,
and the American interpretation would lead to the result,
practically, of reading the words' bays, coasts and harbours ·
ou t of the treaty;
2. Because the tribunal is unable to understand the
term 'bays' in the renunciatory clause in other than its
geographical sense, by which a bay is to be considered as
an indentation of the coast, bearing a configuration of a
particular character easy to determine specifically, but
difficult to describe generally.
The contention that the renunciation made by the United
States applied only to bays six miles or less in width, those
alone being territorial bays, was rejected' because the opinion
of jurists and publicists quoted in the proceedings conduced
to the opinion that speaking generally the three mile rule
should not be strictly and systematically applied to bays.'
Nor, according to the tribunal, was it shown, by the docu-
ments and correspondence submitted to it, that the application
of the three-mile rule to bays was present in the minds of the
negotiators in 1818. It was evident that the three-mile rule
is not applied strictly to bays by the United States or any
other power. It was in fact recognized by the United States

718 THE FISHERY ARBITRATIONS
that bays stand apart, and that in respect of them territorial
jurisdiction may be exercised farther than the marginal belt
in the case of Delaware and Chesapeake bays.
The award also states that:
, The negotiators of the treaty of 1818 probably did not
trouble themselves with such subtle theories concerning
the notion of "bays"; they most probably thought that
everybody would know what was a bay. In this popular
sense the term must be interpreted in the treaty.'
Hudson Bay is not considered in the award. Byagree-
ment it was expressly excluded from the scope of this
arbitration.
Question No. 2.-' Have the inhabitants of the United
States, while exercising the liberties referred to in said
article, 1 a right to employ as members of the fishing crews of
their vessels persons not inhabitants of the United States? '
The question related to the right of the inhabitants of
the United States, while enjoying their fishing liberties on
the treaty coasts, to employ non-inhabitants as members
of the crews of their vessels. I t turned on two phrases in
the treaty of 1818, namely: 'inhabitants of the United
States' and' American citizens.'
The tribunal decided and awarded:
Now therefore, in view of the preceding considerations
this Tribunal is of opinion that the inhabitants of the
United States while exercising the liberties referred to in
the said Article have a right to employ, as members of
the fishing crews of their vessels, persons not inhabitants
of the United States.
But in viewof the preceding considerations the Tribunal,
to prevent any misunderstanding as to the effect of its
award, expresses the opinion that non-inhabitants
employed as members of the fishing crews of the United
States vessels derive no benefit or immunity from the
Treaty, and it is so decided and awarded.
This answer is decidedly unsatisfactory. It is difficult
to apprehend exactly the effect of it. Americans may employ
non-inhabitants, but these derive no immunity from the
treaty. This portion of the award, it is clear, does not,
1 Article I of the treaty of 1818.

NORTH ATLANTIC COAST FISHERY DISPUTES 719
however, debar Newfoundland prohibiting her inhabi tan ts
from engaging themselves on American fishing vessels. That
is very important from her standpoint. It does not affect
Canada. Both sides claim a victory on the question, and
possibly it may take another arbitration to decide it.
Questions Nos. 3 and 4.- These questions are compara-
tivelyof minor importance, and relate to the right of Great
Britain to require American fishing vessels to make entry
and report at customs, and to impose upon them customs,
light, harbour and similar dues while exercising their liberties
under the treaty.
Question No. 3 applied to treaty coasts and is mostly
of interest to Newfoundland, as Canada exacts no light dues
whatever, and has no customs house on the treaty coasts,
except at the Magdalen Islands.
On Question NO.3 the tribunal decided and awarded:
The requirement that an American fishing vessel should
report, if proper conveniences for doing so are at hand,
is not unreasonable, for the reasons sta ted in the foregoing
opinion. There should be no such requirement, however,
unless there be reasonably convenient opportunity
afforded to report in person or by telegraph, either at a
custom house or to a customs official.
But the exercise of the fishing liberty by the in-
habitants of the United States should not be subjected
to the purely commercial formalities of report, entry and
clearance at a custom house, nor to light, harbour or other
dues not imposed upon Newfoundland fishermen.
Question NO.4 applied to non-treaty coasts, and asked
whether American vessels entering the bays, harbours, etc.,
on the non-treaty coasts for the purpose of shelter, to
make repairs, or to obtain wood or water, should be placed
under restrictions making the exercise of these privileges
conditional upon the payment of light or harbour dues, or
entering at customs houses.
The tribunal decided and awarded that:
'Such restrictions are not permissible,' but modified
this broad decision by declaring that it would be only
reasonable for" American fishermen entering colonial bays

720 THE FISHERY ARBITRATIONS
and remaining therein for more than forty-eight hours, to
be required to report either in person or by telegraph at
customs, 'if reasonably convenient opportunity therefor is
afforded. '
The award on these two questions is eminently fair, and
entirely satisfactory to Canada and Newfoundland.
Question No. 6.-This question rel<;tted to the ingenious
contention of Sir Robert Bond, prime minister of New-
foundland, that Americans had no right to fish in the bays
on the treaty coast of Newfoundland or of the Magdalen
Islands, because the words 'bays, creeks and harbours'
were omitted in describing the liberty there given them.
He argued that these omissions were not accidental, but
showed an intention of the framers of the treaty to restrain
Americans from entering the bays, and to restrict them to
the broad, open coasts. I t was a strained construction,
never advanced by Great Britain in prior diplomatic corre-
spondence, and adopted by the Newfoundland government
in 1905 as part of its retaliatory policy toward American
fishermen. However, at the instance of Sir Robert Bond,
it was submitted to the tribunal along with the others, but
as expected it was rejected. It is entirely a question of
interest to Newfoundland, and no one but Sir Robert Bond
thought it would be allowed.
Question No. 7.-This, the last question submitted to
the tribunal, related to the exercise of commercial privileges
by American fishing vessels on the trea ty coasts. Could
American fishing vessels exercising the liberty of fishing
on the allotted coasts at the same time engage in trade; e.g.
purchase bait, supplies, lines, ice, etc.? Great Britain con-
tended that this would result in violation of the revenue
laws. The soundness of the arguments advanced on both
sides led to a modified answer by the tribunal. I twas :
For these reasons the tribunal is of opinion that the
inhabitants of the United States are so entitled in so
far as concerns this Treaty, there being nothing in its
provisions to disentitle them, provided the Treaty liberty
of fishing and the commercial privileges are not exercised
concurrently, and it is so decided and awarded.

NORTH ATLANTIC COAST FISHERY DISPUTES 721
In other words, assuming that American fishing vessels
had been accorded commercial privileges by agreement or
otherwise, and since there is nothing in the treaty to take
them away, the tribunal decided that these fishing vessels
may touch and trade, but they must not trade and fish
during the same voyage or 'concurrently.' They may go
to the treaty coast and fish but then they may not trade;
or they may trade but then they may not fish. The answer
to the question is very indefinite, but it is apprehended that
it is in accordance with the British contention, although,
as in the case of Question NO.2, it may take another arbitra-
tion to decide it. Both sides claim a victory on the po in t.

To sum up: Upon Question I, the great question of the
right to regulate, the answer of the tribunal effected some-
thing of a compromise. Great Britain scored a diplomatic
victory. The question of abstract right was decided in her
favour. But the tribunal gave full effect to the admission
which Great Britain was forced to make, that her regu-
lations must be reasonable, by instituting a commission
of experts to pass upon those regulations. In that way
the British contention was sustained, while at the same
time American fishermen were protected from unfair and
discriminatory legislation. Question 5, the important
question of bays, was decided in accordance with the
British contention. But it must be noted that no principle
applicable to all bays was laid down. The opinion of the
arbitrators (for in this particular Dr Drago agreed with
the majority) was that a general rule for all bays does not
exist in international law. After months of study, and no
less than fifteen days of oral debate at The Hague, the
arbi tra tors frankly admitted tha t to transla te the popular
meaning of the word 'bays' into a legal definition was
beyond their powers. Questions 3 and 4, the questions
relating to light and harbour dues and reporting at customs,
resulted in a very fair compromise, entirely satisfactory
to both parties. Question 6, the belated question raised
by Sir Robert Bond, was decided in favour of the United
States. Question 7, relating to commercial privileges, was

722 THE FISHERY ARBITRATIONS
probably decided in Great Britain's favour, although the
decision was indefinite. Question 2, relating to the
employment of non-inhabitants by United States captains,
also received an unsatisfactory answer, and the effect is
uncertain.
In 1912 representatives of both powers met at Washington
for the purpose of giving binding eff
ct to those parts of
the award of The Hague Tribunal of September 7, 1910,
which were in the nature of recommendations only. On
July 20 a treaty was passed and subsequently duly ratified,
which carries out, with minor modifications, the rules and
methods of procedure recommended by the arbitrators two
years before.
The treaty provides that all future laws or rules for the
regulation of the fisheries of Great Britain, Canada, or
Newfoundland, such as rela te to the time and method of
taking fish, shall be promulgated and come into operation
during the first fifteen days of November in each year.
At ten-year intervals a change in the date may be made
the subject of negotiation, and, if necessary, of submission
to a commission.
After the promulgation the United States is given forty-
five days in which to object. It is provided that the
objection may be submitted to a permanent mixed fishery
commission. This commission is to consist of three members
appointed for five years, two of whom shall be experts, one
from Great Britain and the other from the United States.
The recommendations of The Hague Tribunal regarding
the determination of the limits of the bays enumerated in
the award were adopted in so far as they related to the bays
contiguous to the territory of the Dominion of Canada. It
was expressly asserted that the two nations understood
that the award did not cover Hudson Bay. It was further
agreed that the delimitation of bays on the Newfoundland
coast, whether mentioned in the recommendations or not,
did not require present consideration.
\Vhile, therefore, two of the points in dispute remain
in an unsatisfactory position, and may give rise to future
trouble, the award of 1910 and supplementary treaty of

THE BERING SEA FUR-SEAL DISPUTES 723
1912 as a whole must commend themselves, because they
seem to provide a practical and permanent solution of most
of the questions at issue. And it certainly would be a matter
of general congratulation, and a potent argument in favour
of international arbitration, if the award of The Hague
Tribunal has successfully brought to a close a controversy
which, in its various aspects, has been a constant source of
vexatious dispute, and has menaced for upwards of a century
the peaceful relations existing between the United States
and Great Britain.

II
THE BERING SEA FUR-SEAL DISPUTES

B y virtue of the discoveries of Vi tus Bering, a Danish
navigator in the Russian service, Russia, early in the
eighteenth century, acquired possession of a portion of
the north-west coast of North America. This region, after-
wards called Alaska, was ceded by Russia to the United States
in 1867 for the sum of $7,200,000. In 1870 the Seal Islands
in Bering Sea, called the Pribyloff group, were leased by the
United States government to a private company, the Alaska
Commercial Company, with the privilege of taking one
hundred thousand fur-seals annually. In consideration of
this privilege, which was granted for twenty years from May
1870, the company agreed to pay the annual sum of $55,000,
a tax of two dollars on each fur-seal taken, a duty of fifty-
five cents on each gallon of oil obtained from the seals, and
to maintain a school on the islands.
Very soon it became apparent that the seal herd was
exposed to serious diminution by means of pelagic or open-
sea hunting. As early as 1872 a suggestion had been made
by the United States collector of customs at San Francisco
to the secretary of the Treasury, that a revenue cutter should
be sent to the Pribyl off Islands with a view to prevent such
destructive hunting. This was not done.
In the sum.mer of 1886 the Carolina, Thornton and Onward,
three Canadian sealing vessels, were seized by the United

724 THE FISHERY ARBITRATIONS

States cruiser Corwin at points in Bering Sea over seventy
miles from land, for alleged violation of an act of Congress
which forbade the taking of fur-seals in Alaskan waters.
Sir Lionel Sackville-West, British minister at Washington,
at once protested that the seizures were illegal, because they
had been made in the open sea and at a greater distance
from land than three miles, and therefore outside the terri-
torial jurisdiction of the United States. A prolonged diplo-
matic controversy ensued. Neither country would yield
to the contention of the other. In August 1887 Thomas F.
Bayard, the United States secretary of state, without dis-
cussing the grounds upon which the seizures had been made,
proposed that the various nations interested should unite
in an in terna tional arrangement for the protection of the
seals from extermination. Although the prospect of an
agreement being signed appeared for a time promising, the
plan ultimately failed because of the refusal of Great Britain
to proceed with it against the remonstrance of Canada.
No seizures took place in 1888, but in 1889 six Canadian
sealing vessels were seized, and the United States secretary
of state, James G. Blaine, asserted the right of the United
States to protect the seals on the twofold ground of that
government having succeeded by the treaty of cession of
186 7 to certain alleged rights of Russia in Bering Sea, and
of the urgent necessity of such measures in order to pre-
serve the seal herd from being destroyed by open-sea or
pelagic hunting. The whole controversy was renewed, and
the views exchanged between the two govemmen ts were
in such hopeless disagreement that it soon became evident
that no satisfactory solution of the difficulty could be reached
through diplomatic channels. It was then proposed by
Lord Salisbury, on behalf of Great Britain, that the ques-
tions in dispute between the two countries relating to the
regulation and ownership of the Alaskan seal fisheries should
be referred to impartial arbitration. This was agreed to
by the United States.
Effect was given to the proposal by the treaty of February
29, 18 9 2 , which provided for the creation of a Board of
Arbitration composed of seven members, two to be named

THE BERING SEA FUR-SEAL DISPUTES 725
by the president of the United States, two by the queen of
England, and one each by the president of France, the king of
Italy and the king of Sweden. The arbitrators were required
to be ' jurists of distinguished reputation in their respective
countries,' and if possible 'acquainted with the English
language. '
By Article 6 of this treaty the arbitrators had referred
to them, in the first place, certain points bearing on the
question whether the United States had acquired from
Russia, upon the purchase of Alaska in 1867, any extra-
ordinary jurisdictional powers in Bering Sea; in the second
place, whether the United States had any right of property
or protection in the fur-seals when found outside the
ordinary three-mile limit.
Assuming that these legal questions should be so decided
as to deprive the United States of the right to make necessary
regulations for the protection of the seal fisheries without
the concurrence of Great Britain, then, by Article 7 of the
treaty, it was agreed that the arbitrators should them-
selves determine what concurrent regulations outside the
jurisdictional limits of the respective governments were
necessary and over what waters they should extend. Two
commissioners on the part of each government were appointed
to investigate all the facts relating to seal life in Bering Sea,
and their separate reports and their joint report upon the
points on which they were able to agree were to be laid
before the arbitrators along with such other evidence as
ei ther govemmen t might su bmi t.
The other class of questions had reference to damages
claimed by Great Britain for the seizures of the vessels above
referred to. This liability, however, was left as a subject for
future negotiation, and only questions of fact involved in
such claims were to be submitted to the arbitrators and a
finding asked upon them. A modus vivendi was arranged
and was to remain in force until the award of the tribunal
was rendered.
The tribunal assembled at Paris on March 23, 1893. As
American arbitrators the president of the United States
named John M. Harlan, a justice of the Supreme Court of

726 THE FISHERY ARBITRATIONS
the United States, and John T. Morgan, a senator of the
United States. On the part of Great Britain the arbitrators
named were Lord Hannen of the High Court of Appeal, and
Sir John Thompson, minister of Justice for Canada. As
neutral arbitrators the president of France named Baron
Alphonse de Courcel, a senator and ambassador of France;
the king of Italy named Marquis Venosta, formerly minister
of Foreign Affairs; and the king of Swe'den named 1\.1. Gregors
Gram, a minister of State. Baron de Courcel was chosen
president of the tribunal.
Five questions, covering all the points in dispute between
the two powers, were submitted to this high tribunal. The
first four were:

I. What exclusive jurisdiction in the sea now known
as the Behring's Sea, and what exclusive rights in the
seal fisheries therein, did Russia assert and exercise prior
to and up to the time of the cession of Alaska to the
United States?
2. How far were these claims of jurisdiction as to the
seal fisheries recognized and conceded by Great Britain?
3. Was the body of water now known as the Behring's
Sea included in the phrase' Pacific Ocean' as used in the
Treaty of 1825 between Great Britain and Russia; and
what rights, if any, in the Behring's Sea were held and
exclusively exercised by Russia after the said Treaty?
4. Did not all the rights of Russia as to jurisdiction
and as to the seal fisheries in Behring Sea east of the
water boundary, in the Treaty between the United States
and Russia of the 30th March 1867, pass unimpaired to
the United States under that Treaty?

These four questions relate to the exclusive right in the
seal fisheries in Bering Sea claimed by the U ni ted States and
may be dealt with conveniently together.
Now considering that, in the absence of treaty or some
claim based on acquiescence, the right of exclusive fishing on
the high sea conceded to any country by international law
is limited to a marginal belt along the coast three miles in
width, and that the seizures of the Canadian sealers had been
effected at points from jO to 1 IS miles distant from land,

150

140

, I
II

Number of Russians and Half-breeds under the administration of the Russian American
Company on the first of January 1819, according to Tihhmeniejf.
(Istoricheshoye Obozvanie Rossiishoi Amerihanshoi Kompanii, Vol. 1, pp. 252, 258).

RU6sians

Half-breeds

LOCALITY
Males Females Males Females
,. 8itka or New Archangel 198 11 98 111
2. Kadiah and Neighbouring Islands 78 39
8. Uhamoh Island 2
4. Katmai Factory 4 !
5. 8uthhom 3
6. Fort Voshrosenshy 2 ' i
7. " Constantine - 17 I
8. " Nicholas 11
9. " Alexander 11
10. 8eal Islands 27
11. Nushagah 8 2
f L A

60

I I

Russian 8ettlement furthest
to East and 80uth in 1821

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.

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Coast and Islands North of
ciaimed by Ukase

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NORTHERN PART OF THE
NORT
PACIF!C OCÆAY

ON MERCATORS PROJECTION

ST. JOliN ISHER COllE E III

150 140

160

170

180

I B E
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SOUTHERN IMIT

Coast and Islands Northward from apan
claimed by Ukase of 1799

: I

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I'l-l"' lAmLu.,iL. G
ugr-
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160

170

180

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I'ro>pat'ed b.y .failles Whit, R. G.S

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- - - - -----
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-

170

160

150

140

Number of Russians and Half-breeds under the administration of the Russian American
Company on the first of January 1819, according to Tihhmenieff.
(/storicheskoye Obozuanie Ross;;shoi Amerihanshoi Kompan;;, Vol. 1, pp. 252, 258).

Russian8 Half-breedtJ
LOCALITY
Malee Femalee Males Females
,. Sitha or New Archangel 198 11 98 711
2. Kadiah and Neighbouring Islands 78 39
3. Uhamoh Island 2
4. Katmai Factory 4
5. Suthhom 3 7
8. Fort Voshrosenshy 2
7. " Constantine - 17
8. " Nicholas 11
9. Alexander 11
10. Seal Islands 27 ..
11. Nushagah 3 2 ..

I I
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i

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I Easternmost Post of
ussian Company in 1798

Russian Settlement furthest
to East and South in 1821

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Coast and Islands North of
claimed by Uhase

.

OCTOBER 31st, 1 0 2)
BY BARON NICOLAY,
1M (SEE LETTER

50 1

NORTHERN PART OF THE

OJRt:!i PACIFIC DCJEAN

ON MERCATORS PROJECTION

ST. JOHN

ISHER COllE EI ilIBRAI

I

170

Long'tud, Jv;..t of' Gru"u+?-h.

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140

I.. 6.S., f>,J'P'
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Jõhn.Bart1ol.am."... 8: c...

THE BERING SEA FUR-SEAL DISPUTES 727
the heavy burden fell upon the United States to prove, in the
face of these general principles of international law, that
Russia by the express consent or acquiescence of other
nations had effectively asserted jurisdiction over the fur-seals
swimming about in the open waters of Bering Sea. For
it is obvious that if Russia did not exercise jurisdiction in
Bering Sea or have an exclusive right to the' seal fisheries'
there, she could not cede it to the United States in 1867.
The historical background to this part of the case is not
extensive. Vitus Bering in 1728 and 1741 explored the main-
land and neighbouring islands of what is now Alaska. The
claims of Russia to this country were con tested by Spain and
Great Britain, but were partly settled by the Nootka Sound
Convention of 1790. In 1799, by an imperial ukase or edict,
Paul I, the emperor of Russia, granted to the Russian-
American Company certain exclusive commercial privileges
in Alaska and the adjacent islands. The ukase was purely
territorial; it did not claim jurisdiction over the sea, or
profess to affect foreigners.
In 1821 Alexander, the emperor of Russia, issued a ukase,
by which he gave his sanction to certain regulations adopted
by the Russian-American Company respecting foreign com-
merce in the waters bordering on its establishments. By
these regulations the pursuits of commerce, whaling and
fishing and every other industry on the north-west coast of
America and the adjacent islands from Bering Strait down to
the 51st parallel of north latitude, were 'exclusively granted
to Russian subjects,' and all foreign vessels were forbidden,
except in case of distress, , not only to land in the coast and
islands belonging to Russia, as stated above, but also to
approach them within less than 100 Italian miles.' A
prin ted copy of the ukase and of the regulations was sent
by Russia to the United States and Great Britain. John
Quincy Adams, then secretary of state of the United States,
entered an immediate and vigorous protest against every
part of the Russian claim. He stated that' the attempt to
exclude American citizens from the shore, beyond the ordinary
distance to which the territorial jurisdiction extends, has
excited the greatest surprise.' In a word, the United States
VOL. VIII D

7 28 THE FISHERY ARBITRATIONS
in 1822 protested in the most emphatic manner against the
assertion by Russia of certain exceptional jurisdictional
rights, although the United States afterwards claimed that
these same rights had been ceded to her by Russia at the
purchase of Alaska in 1867.
Great Britain, as well as the United States, protested
against the ukase of 1821, and the :result was that Russia
entered into negotiations with both powers for treaties which
would settle all points in dispute and mark out with precision
the boundaries of Russian territory in America.
In 1824, therefore, the United States and Russia entered
into a treaty, by the first article of which it was agreed' that,
in any part of the Great Ocean commonly called the Pacific
Ocean, or South Sea, the respective citizens or subjects of
the high contracting powers shall neither be disturbed or
restrained either in navigation or fishing, or in power of
resorting to the coasts which are unoccupied,' etc. Various
stipulations followed, the sum and substance of which was
that there should be no interference with navigation or fish-
ing, or with resort to unoccupied coasts in any part of the
Pacific Ocean, and that the dividing line between the territorial
claims or 'spheres of influence' of the United States and
Russia on the north-west coast of America should be the
parallel of 54 0 40' north la ti tude.
In 1825 the dispute between Great Britain and Russia,
growing out of the ukase of 1821, was settled by treaty. In
respect of territorial claims a line of demarcation was adopted,
afterwards definitely determined by the Alaska Boundary
Award of 1903. In regard to the rights of navigation and
fishing and of landing on the coasts, its provisions were
substantially the same as those of the convention of 182 4
between Russia and the United States. In both these
treaties, in fact, Russia, owing to the protest of Great Britain
and the United States, withdrew and abandoned the claims
of exceptional authority over waters one hundred Italian
miles from land, which she had asserted in the ukase of 1821.
The term used in the treaties was' in any part of the Pacific
Ocean or South Sea,' and when the controversy broke out
between Lord Salisbury and James G. Blaine, United States

THE BERING SEA FUR-SEAL DISPUTES 729
secretary of state, in 1886, the question at once arose, Did
, Pacific Ocean' include Bering Sea? Did Russia renounce
her pretensions merely in the' Pacific Ocean' (south of 60 0
north latitude) along the' North-Western coast,' as the United
States claimed, or did the phrase 'Pacific Ocean' include
Bering Sea as claimed by Great Britain.
In 1867, by a convention signed at Washington, the
emperor of Russia, in consideration of the sum of $7,200,000
in gold, ceded 'all the territory and dominion' which he
possessed 'on the continent of America and in the adjacent
islands' to the United States. It is to be observed that
the western boundary of the territory ceded (as shown on
the map) is defined by a water line beginning in Bering
Straits and running almost south-west, through Bering
Straits and Bering Sea to a point where it intersects the
meridian of 1630 west longitude. Great Britain early in the
controversy took the position that the treaty did not purport
to convey the waters of Bering Sea, but in terms conveyed
only' the territory and dominion' of Russia' on the continent
and adjacent islands,' and drew a water boundary so as to
effect a transfer of the islands, many of them nameless, which
lay in the intervening seas. The United States, on the other
hand, originally justified the seizures of Canadian sealers
one hundred and fifteen miles from land, on the ground that
the waters of Bering Sea within this boundary-line were part
of the territory of Alaska.
In 1886 occurred the seizures of Canadian vessels, finally
followed by the arbitration at Paris in 1893. The arguments
of the parties on the first four questions may be briefly
summarized thus:
Question I.-The United States contended that while
Russia never at any time prior to the cession of Alaska to the
United States claimed any exclusive jurisdiction in the sea
now known as Bering Sea, beyond what was commonly termed
territorial waters, yet she did, at all times since the year 1821,
assert and enforce an exclusive right in the 'seal fisheries'
in the said sea, and also asserted and enforced the right to
protect her industries in the said 'fisheries' and other
industries, by establishing prohibitive regulations interdicting

73 0 THE FISHERY ARBITRATIONS
all foreign vessels, except in certain specified instances, from
approaching these islands and shores nearer than one hundred
miles.
Great Britain contended that Russia had exercised no
exclusive jurisdiction in Bering Sea prior to 1867; that in
1821 only Russia had asserted exclusive jurisdiction over a
part of Bering Sea, but that she afterwards withdrew it;
that Russia had never exercised rights in the' seal fisheries'
prior to 1867; that her claim to jurisdiction extending one
hundred miles from the coast had been withdrawn and never
afterwards asserted.
Question 2.-The United States contended that the claims
of Russia above mentioned as to the' seal fisheries' in Bering
Sea were at all times, from the first assertion thereof down
to the time of the cession to the United States, recognized
and acquiesced in by Great Britain.
Great Britain contended that she had neither recognized
nor conceded any claims of Russia to jurisdiction as to the
seal fisheries, i.e. either to exclusive jurisdiction in Bering Sea
or exclusive rights in the fisheries in Bering Sea.
Question 3.-The United States contended that the body
of water now known as Bering Sea was not included in the
phrase' Pacific Ocean' as used in the treaty of 1825 between
Great Britain and Russia; that Russia had never relinquished
her exceptional authority in Bering Sea, but had continued to
exercise exclusively a property right in the fur-seals resorting
to the Pribyloff Islands, and had established a further right
of protecting the seals by the exercise of necessary and
reasonable force over Bering Sea.
Great Britain contended that Bering Sea was included in
, Pacific Ocean' in the treaty of 1825, and that Russia had
no rights in Bering Sea save only such territorial rights as were
allowed her by international law.
Question 4.-The United States contended that all the
rights of Russia as to jurisdiction and as to the seal fisheries
in Bering Sea east of the water boundary in the treaty of
cession of 1867 passed unimpaired to the United States
under that treaty.
Great Britain contended that no rights as to jurisdiction

THE BERING SEA FUR-SEAL DISPUTES 73 1
or as to the seal fisheries east of the water boundary passed
to the United States under the treaty of 1867, except such as
were incidental to the islands and other territory ceded.
It must here be noted that there were several legal and
historical antecedents which worked against the absolute
consistency and distinctness of the grounds upon which the
United States based their claims on this branch of the case,
and which indeed were fatal to success.
The first is: That the original ground upon which the
vessels seized in 1886 and 1887 were condemned, was that
Bering Sea was a 1Jlare clausum or ' closed sea,' and as such
had been conveyed, in part, by Russia to the United States.
Judge Dawson, who presided in the Federal court at Sitka at
the trial of the Thornton, the Canadian sealer seized seventy
miles distant from land, held that' all the waters within the
boundary set forth in the treaty . . . are to be considered
as comprised within the waters of Alaska.' The same judge,
in the case of the DolPhin, justified the seizure on the ground
that the United States had purchased the sea east of the
boundary-line, and that the action of the United States was a
, legitimate exercise of the powers of sovereignty under the
law of Nations.'
This can ten tion, put forth by the U ni ted States in the
first stages of the controversy-that Bering Sea was a mare
clausum or ' shut sea' -was early found to be so untenable
that her counsel hastened to abandon it.
James G. Blaine later renounced it. He said:
The repeated assertions that the Government of the
United States demands that the Behring Sea be pro-
nounced mare claUSU1Jl, are without foundation. The
Government has never claimed it and never desired it.
It expressly disavows it. . . _ Much learning has been
expended upon the discussion of the abstract question
of the right of mare claUSU111. I do not conceive it to be
applicable to the present case.
F. C. Carter, senior counsel for the United States at the
arbitration, also thought it necessary to disavow the claim
of mare clausu111, and in his oral argument used somewhat
contemptuous expressions in referring to the courts at

732 THE FISHERY ARBITRATIONS
Sitka, and denied that they represented the real views of the
treaty held by the United States.
The second is : That the ukase of 1821 which contained the
only distinctive claim of mare clausum ever put forward by
Russia, did not assume to treat the whole of Bering Sea as a
closed sea, but only to exclude foreign vessels from coming
within one hundred Italian miles, from the 51st parallel of
north la ti tude to Bering Straits wi thou t discrimination as to
localities.
That against this ukase both the United States and Great
Britain protested; and that by the treaties of 1824 and 1825
Russia agreed not to interfere with their citizens or subjects
either in navigating or in fishing in << any part' of the Pacific
Ocean, thus abandoning the exclusive jurisdictional claims
announced on the ukase.
The third is : The declaration of James G. Blaine, secretary
of state of the United States, on December 17, 1890. After
observing that legal and diplomatic questions, apparently
complicated, were often found after prolonged discussion to
depend upon the settlement of a single point, Blaine stated
that such was the position of Great Britain and the United
States in respect of the phrase << Pacific Ocean.' Great Britain
contended that that phrase, as used in the treaties of 1824 and
1825, included Bering Sea; the United States contended that
it did not. If Great Britain could maintain her position on
this point, declared Blaine, the government of the United
States had' no well-grounded complaint against her.' And
it was afterwards unanimously found by the arbitrators that
the phrase ' Pacific Ocean ' did include Bering Sea.
The fourth is: That it was not until the sensational
discovery had been made, upon the presentation of the printed
case of the United States, that an astounding series of false
translations had been made by Petroff, the translator of
documents in the Russian archives, and handed over to the
United States at the cession, that the broad claim of excep-
tional jurisdiction over Bering Sea was dropped by the
United States and the' exclusive right to the seal fisheries'
was relied on. It appears that Petroff, with a view to
ingratiate himself with the government of the United States

THE BERING SEA FUR-SEAL DISPUTES 733

and impress upon it the importance of the Russian archives,
had by elaborate mistranslations and interpolations grossly
imposed upon that government. When John W. Foster,
agent for the United States, discovered the fraud, he at once
withdrew the documents in their entirety, substituting revised
transla tions.
Sir Charles Russell, senior counsel for Great Britain, says
on this point:
Petroff was an acute and accomplished artist. He
had realized the position completely and had built up the
documents by means of interpolations exactly fitted to
the case of dominion and exclusive jurisdiction. \Vhen
the United States had discovered the fraud and had
withdrawn the forgeries and had substituted amended
and corrected translations, their whole case of exclusive
jurisdiction of Russia vanished.
The effect of the false translations, their detection and
withdrawal, was to remove practically the only evidence from
distinctively Russian sources, apart from the ukase of 182 I,
of the assertion by Russia of any exceptional jurisdiction in
Bering Sea. Foster, who represented the United States
governmen t in all matters connected with the arbi tra tion,
said: 'It is a singular incident that when the case of the
United States came to be prepared and the Russian archives
examined, what had been assumed in the legal proceedings to
be historical facts, could scarcely be substantiated by a single
official document.' He also admitted: 'Had our effort to
save the seals from destruction been from the outset based
upon a right of protection and property in them, our case
before the Tribunal would have been much stronger and the
decision might have been different.'
Thefifth question submitted to the tribunal was:
Has the United States any right, and if so, what right
of protection or property in the fur-seals frequenting
the islands of the United States in Behring Sea when such
seals are found outside the ordinary three-mile limit?
It is noteworthy that the point involved in this question
-the right of protection or property in the fur-seals, which in

734 THE FISHERY ARBITRATIONS
the judgment of American counsel became the leading, if not
the only ground of defence of the seizures-was not advanced
in the legal proceedings of 1886, and was not mooted until a
late stage of Blaine's controversy with Lord Salisbury. It
was an afterthought, the product of the mind of Benjamin
F. Tracy, United States secretary of the Navy. When the
claims of ' exclusive jurisdiction' and '. exclusive right to the
seals' failed, it was advanced in a kind of despair-a sort of
, desperation argument.'
This constant shifting of base in the American argument
was adverted to throughout the proceedings with keen satis-
faction by British counsel. Comment on this point in the
British argument, in part, is :
Seldom, if ever, has such a claim been based upon such
varying contentions.
Seldom have the arguments supporting a claim of
right been shifted so lightly from one standpoint to
another.
N ow it is asserted as a clain1 of old descent from Russia;
then, when it is shown that Russia neither had nor
claimed to have a right at all commensurate, it becomes
a claim by the United States in their own right of
dominion.
At one time it is a claim to a vast area of Behring Sea
as territorial waters; but, when the limitation of territorial
waters assented to by all nations is insisted on, it becomes
reduced to a claim of jurisdiction on the high sea-a
claim based upon a false analogy.
Fur-seals are undeniably ferae naturae, yet a claim to
property therein, with all its attendant rights, is asserted,
and they are gravely relegated to the same category as
a herd of cattle on the plains. Then, when the im-
possibility of establishing property in free-swimming
animals in the ocean is demonstrated, the pretension
resolves itself into a general and undefined claim to
protect the seals in the Pacific.
Finally, a vague appeal is made to the principles of
the common and the civil law, to the practice of nations,
the laws of natural history, and the common interests
of mankind; but one looks in vain for any vindication
of the unprecedented pretensions put forward upon any
such principles.

THE BERING SEA FUR-SEAL DISPUTES 735
Two distinct points are involved in Question 5.
The first is: \Vhether the United States have a property
interest in the seals themselves, not only while they are upon
the breeding islands, but also while they are on the high seas.
The second is: Whether, if they have not a clear property
in the seals themselves, they have a right to extend their
protection to such herd against capture while it is on the
high seas, and to require and receive from other nations an
acquiescence in reasonable regulations designed to afford such
protection. The United States advanced both these claims
for the same purpose, and, either being allowed, would exercise
the right by prohibiting absolutely pelagic sealing and confine
the taking of seals to the Pribyloff Islands by the lessees of the
United States.
The' property argument' will first be dealt with.
In support of the claim to ownership in the seal herd, it
was urged by the United States that seals in international
law were analogous to such animals as bees, wild geese, swans
and pigeons (especially homing - pigeons), which, at the
common law, as Blackstone said, continued to be the property
of their custodian when flying at a great distance from home,
because of their having a fixed intention to return-the
animus revertendi. It was acknowledged that animals ferae
naturae-animals of a wild nature-were not capable of
ownership until reduced to possession; but it was contended
that the term ferae naturae was not sufficiently precise for a
legal classification of animals in respect of the right of property
in them, and that the determination of the question whether
an animal was of a wild nature or not depended in each case
upon the characteristics of the particular animal. There was
no principle of jurisprudence, it was urged, to the effect that
no wild animals were the subject of property. Elaborate
citations from the Roman law and common law of England
were advanced in proof of the proposition. F. C. Carter, who
had charge of this branch of the American argument, stated that
the essential facts which, according to these doctrines, render
animals commonly designated wild, the subjects of property,
not only while in the actual custody of their masters, but also
when temporarily absent therefrom, were' that the care and

736 THE FISHERY ARBITRATIONS
industry of man acting upon a natural disposition of the
animals to return to a place of wonted resort secures their
voluntary and habitual return to his custody and power, so
as to enable him to deal with them in a similar manner and
to obtain from them similar benefits as in the case of domestic
animals. '
It was contended that the Alaskan fur-seals were a typical
instance for the application of this doctrine. By their im-
perious and unchangeable instincts they are impelled to return
from their wanderings to their original habitat; they are
defenceless against man, and, in returning periodically to
the same place, voluntarily subject themselves to his power,
and enable him to treat them in the same way and to obtain
from them the same benefits as may be had in the case of
domestic animals. They thus become the subjects of ordinary
husbandry as much as cattle or sheep. The selections for the
slaughter are easily made. They are compelled to breed upon
the land and are confined to that element for half the year.
During the entire periods of absence, even when swimming
thousands of miles away along the coast of Southern California
during the winter months in search of food, the animus
revertendi-this fixed habit of returning-is ever present.
Under the circumstances, asked the United States, could
anything be clearer as a moral, and under natural laws a
legal, obligation than the duty of other nations to refrain
from taking any action which would prevent the United
States, the owner of the lands to which the seals resort, from
performing the trust which it acknowledged and had dis-
charged? To say that the United States had no power to
prevent sealing on the high seas was to beg the question. If
they had a property right in the seals, the power to protect it
could not be wanting.
If it were asked whether the United States asserted a legal
right of property on any individual seal that might be found
in the sea, on which an action for trespass might be maintained
in a municipal tribunal to recover damages from the slayer,
or to recover the skin of the animal, if it should anywhere
be found, the answer was that the United States did not insist
upon this extreme point because it was not necessary for the

THE BERING SEA FUR-SEAL DISPUTES 737
consistency of its argument to go so far. Summing up this
branch of the case Carter said :
All that is needed for the United States purpose is that
their property interest in the herds should be so far
recognized as to justify a prohibition by them of any
destructive pursuit of the animal calculated to injure the
industry prosecuted by them on the Islands. The
conception of a property interest in the herd as distinct
from a particular title to every seal composing the herd,
is clear and intelligible.
This branch of the American argument involved of neces-
sity an elaborate examination into the life-history of the
fur-seal. It is practically a chapter in natural history.
Into the particulars relating to the general nature and
characteristics of the fur-seal, the physiology, the instincts,
the habitats, the life on the rookeries on the Pribyloff Islands,
the migration, differences of form, mode of reproduction, the
nursing of the young seals or 'pups,' the immorality and
destructiveness of pelagic sealing and numerous other
considera tions relating to seal life, space will not permi t us
to enter. Upon nearly all the important points there was the
sharpest conflict between the parties, both as to facts and the
inferences to be drawn from them. Each traversed the facts
and theories of the other.
The British argument maintained that fur-seals were
animals ferae naturae, and in support of this contention
recited: that' the fur-seal is not only a marine animal, but
pelagic in habit, spending most of its time at large on the open
sea'; that 'its food is entirely derived from the ocean' ;
that such an animal cannot be said to have a 'home'; that
they have none of the characteristics of a land animal.
C All ideas attached to the word" domestic" are,' said the
British argument, C therefore wanting in the case of fur-seals.'
C No scientific authority can be adduced in support of the
contention that the seal is other than a wild animal.' The
common law in force in both America and England' recognized
no property in animals ferae naturae until possession.' Pro-
perty while the animals are alive remains only as long as this
possession lasts; when this possession is lost the property is

73 8 THE FISHERY ARBITRATIONS
lost. The fur-seals are wild animals at large, and Great
Britain has as much right to reduce them to possession as the
United States. 'At various stages in the world's history,
nations had,' said Sir Charles Russell, according to their
varying powers advanced 'extravagant pretensions.' But
these pretensions, generally speaking, belonged to a com-
paratively remote period, when the rule Ç>f might rather than
the rule of right prevailed, and before the moral force of public
opinion had acquired its great controlling power. Assertions
had been made of control, dominion, and sovereignty over a
large extent of ocean without physical boundary and without
any external marks of delimitation, and there resulted from
those assertions a claim to exclude others from the given
area and to deal exclusively with whatever was found in it.
But this was a very different thing from an assertion of
property in the particular animals which might inhabit
the area. And declared Sir Charles, 'this is the first time
in the history of the world that a nation or an individual
has ever claimed property in a free-swimming animal in
the ocean.'
In reply to the argument that the fur-seals are as much
a subject of ordinary husbandry as cattle or sheep, Sir
Charles's answer in part was:

Now, it is said that these animals resort to the islands
to breed and resort there in compliance with what has
been picturesquely described as the ' imperious instincts
of their nature.' They do.
And when they get there what do the representatives
of the United States do? Can they do anything to
improve the breed ? Nothing. Do they make any
selection of sire and dam: of bull and cow? Indeed
could they? No. What do they do? They do two
things, one positive and the other negative, and two
things only. The positive thing is that they do what
a preserver-game [sic] does; he has a game-keeper to
prevent poaching; they have people on the islands to
prevent raiding. The negative thing they do is that they
do not kill all. They knock on the head a certain
number, but exercise a certain amount of discrimination
or a large amount of discrimination. That is the whole

THE BERING SEA FUR-SEAL DISPUTES 739
sum and substance of what they do, no more, no less
the only thing that nature does not do is that she does
not knock them on the head.

The contention of the United States that the seal herd
was as much a subject of domestication as sheep or cattle
on the plains was challenged by Russell. There was but
one instance given in the case of the United States, he said,
in which an attempt was made to tame a young seal-the
case of the pup called C Jimmie.' His mother gave birth to
him away from the rookeries while on her way from the
killing-grounds to the water, and he was taken in charge by
an employee of the sealing company with a view to saving
his life and making a pet of him. As stated by the witness,
the pup could not be made to eat, and generally bit those
who attempted to feed him. Spoons and nursing bottles
were tried in vain; and after two weeks or more of futile
effort, a flexible tube was put down his throat, and by means
of a syringe a pint of fresh cow's milk was injected into his
stomach. After the operation he showed C in the most
unmistakable manner the greatest of seal delight' by lying
on his back and side bleating and fanning and scratching
himself. The next morning he was dead. A single fact,
continued Sir Charles, rendered the complete domestication
of the seals impossible, and that was that if you attempted
to keep them under control and on land they would inevit-
ably die. To use the words of the United States case, by
C the imperious necessity of their nature' they must go to
sea. Was it gravely to be said that seals were tame animals?
Had the United States ever professed to tame them? Had
they alleged, and could they truly allege, anything more
than that, by reason of the incapacity of the animal to defend
himself on land, he could be easily killed with a club?
Taking the facts which were not in dispute concerning
the seal, who could doubt that it was anything but ferae
naturae-an animal in the state of nature?
As to the C protection argument' of the United States,
the American case had thus far proceeded on the ground
of a national property in the seal herd itself. But admitting

740 THE FISHERY ARBITRATIONS
for the sake of argument that no such right of property
existed, and that the seals outside of territorial waters were
animals ferae naturae, let them be likened, if that be possible,
to the fish whose birthplace and home are in the open sea,
and which only approach the shores for the purpose of food
at certain seasons. The question remained, Had not the
United States government, for itself and for its people, an
interest, an industry and a commerce in the seal herd in its
territory, which it is entitled, upon all principles applicable
to the case, to protect against wanton destruction by indi-
viduals for the sake of the small and casual profits in that
way gained? Assuming, said the United States, that it
had no property interest in the seal herd outside the limits
of its jurisdiction, there was still the question, whether upon
that hypothesis the industry established and maintained by
its government on the Pribyloff Islands, in the taking of
seals and the commerce that is based upon it, are open to
be destroyed at the pleasure of citizens of Canada by a
method of pursuit outside the ordinary lines of territorial
jurisdiction, which must result in the extermination of the
animals. Was there, even in that view of the case, any
principle of international law which deprives the United
States government of the right to defend itself against this
destruction of its unquestioned interests, planted and estab-
lished on its own territory? In other words, is the right
of individual citizens of another country to the temporary
profit to be derived out of such extermination, superior, on
the high sea, to that of the United States government to
protect itself against the consequences? Was any part of
the high sea open to individuals for the purpose of ac-
complishing the destruction of national interests of such a
character and importance? The United States conceded the
general rule of the freedom of the ocean, but asserted that
the sea is free only for innocent and inoffensive use, not
injurious to the just interests of any nation which borders
upon it.
Further, it was contended that the United States, possess-
ing, as they alone possessed, the power of preserving and
cherishing this valuable interest, were in a most just sense

THE BERING SEA FUR-SEAL DISPUTES 741
the trustee thereof for the benefit of mankind, and should
be permitted to discharge their trust without hindrance.
The United States admitted that no precise precedent
existed for the support of this novel contention; but its
claim to protect the seals outside territorial waters, it was
urged, could be justified by reference to the uniform practice
of nations. An elaborate examination was then made of
the measures taken for the protection of other seal herds,
including those of the Falkland Islands, New Zealand, Cape
of Good Hope, Newfoundland and Greenland. Grea t
Britain had found it necessary to protect from extermina-
tion the hair-seal in the North Atlantic, and other nations
had adopted similar measures. Reference was also made to
the protection by Great Britain of the Irish oyster fisheries,
the Scotch herring fisheries, the pearl fisheries of Ceylon
and Australia; to the regulation by France of the coral
fisheries of Algiers, which extend out at some points seven
miles into the sea; to the protection by Italy of coral beds
distant from three to fifteen miles from the coast; to the
protection by Norway of whales in the Varanger Fjord, an
arm of the sea about thirty-two miles wide; and to the control
by l\1exico of pearl fisheries off the coast of Lower California
to a distance of more than three miles from land.
In support of this contention the United States fell back
upon the Law of Nations. This claim to protect the seals
in Bering Sea, it was argued, presented 'nothing new, except
the particular circumstances of the application of a universal
and necessary principle to an exigency that has not arisen
in this precise form before.' But, urged American counsel,
the advance of the Law of Nations must be by the process
of analogy, in the application of fundamental principles to
new cases as they arise. Even if it were admitted that a
precedent were not to be found, this was simply because the
same right was never before invaded in the same way. The
particular precedent is created when the necessity for it
appears. The absence of it, when the necessity has never
arisen, proves nothing. And if it were possible to regard
the present case as in any respect outside the rules previously
established, its determination 'would then be remitted to

742 THE FISHERY ARBITRATIONS
those broader considerations of moral right and justice
which constitute the foundation of international law.'
Great Britain on the other hand contended that an
abstract right of protection (such as was here claimed),
distinct from a right of property in the animal sought to
be protected, could not exist. It would involve the right
to make the protection respected, and therefore an inter-
ference with the equality and independence of other nations
upon the high seas; and interference which would take the
concrete form of a right of visit and search. The exclusive
righ t to take possession of animals on land 'does not carry
with it a right to protect such animals when they leave the
land.' In a word, said Great Britain, 'the right to protect
depends on the existence of property.'
Great Britain denied that the principles of the Law of
Nations applied to the case:
Shorn of all support of international law, and of
justification from the usage of nations, the claim of the
United States to possess and to protect the seals in the
high sea takes, at last, its final form-a claim of property.
Yet not wholly is it rested on property. The greatest
jurists of the world have dealt with 'property' and
'possession' in such fashion, have defined their meanings
with such precision of thought and language that it is
not surprising the United States should shrink from the
hopeless task of attempting to formulate a new species
of ownership. And so, at last, driven from all the
standpoints of admitted and long-known rights, the
argument of the United States takes refuge in a claim for
protection where there is no property, under circum-
stances so novel that its supporters confess with candour
that it can be rested on no precedent, but that a precedent
ought to be established by international law to meet the
exigencies of the case.
To all this shadowy claim the Government of the Queen
submit but one answer-the law. . . . The whole case,
and every part of it, and every form in which ingenuity
can frame it, is covered by the law. And to this law
Her l\1ajesty's Government most confidently appeal.
Great Britain impugned the motives of the United States
for desiring to protect the seal herd. \Vhy did the United

THE BERING SEA FUR-SEAL DISPUTES 743
States delegate to itself the office of trustee of the seal herd for
the benefit of mankind? The United States contend, said
Sir Charles Russ
lI, in effect this :
We, the United States, are not making this claim from
any selfish motives. \Ve are here as friends of humanity.
We acknowledge that this is not our property absolutely.
We are trustees for the world at large. . . . \Ve only ask
to be permitted in the interests of mankind, for the
benefit of mankind, to perform the office of trustees, as
friends of humanity, as philanthropists, as champion of
the interests of the world. . . . They say: 'Give us,
the tenants and owners of these islands, the power to
exclude everybody but ourselves from the great expanse
of ocean in which those islands are situate. Put an end
to pelagic sealing. . . . Authorize us by your award to
search, and if necessary to seize and confiscate vessels
that are engaged in this inhuman, this immoral traffic,
and having given us that authority we will recognize
our duty as trustees to mankind by giving to mankind
the benefit of the fur-seal at the market price.
The chances of success on the part of the United States
on the property and protection branch of their case were
diminished by the following considerations:
I. It was admitted by American counsel that no municipal
law of the United States had treated the species, individually

r collectively, as the subject of property and protection on
the high seas.
2. I t was admitted by the U ni ted States that, for the claim
of property and protection on the high seas, there was no pre-
cise precedent in international law, though it was strongly
maintained that the claim was justified by analogies. But the
tribunal considered that these questions should be decided
upon the existing state of the law, and, finding no precedent in
international law, they did not feel warranted in creating one.
3. The effort to support this claim was embarrassed by
its relation to the subject of visitation and search on the
high seas.
It will have been observed, that if the determination of
the above five questions should leave the subject in such a
position that the concurrence of Great Britain was necessary
VOL. VIII E

744 THE FISHERY ARBiTRATIONS
to the establishment of regulations for the proper protec-
tion and preservation of the fur-seal in Bering Sea, then it
was agreed by the treaty that the arbitrators themselves
should determine what concurrent regulations were necessary.
On this subject, to all the schemes proposed by the
British commissioners, the United States had one answer-
that they were not suited to their purpose, and that the only
true and effective remedy consisted i'n absolute prohibition
of pelagic sealing. The arguments of both parties on this
point are founded on the same divergence of views as to the
facts and inferences. The chief features briefly are: That
while the United States traced the destruction of seal life to
pelagic sealing, involving the slaughter of pregnant females
and the death of pups, born and unborn, Great Britain
contended that the killing on the Pribyloff Islands had been
excessive in respect of males, so that there was a deficiency
for the purposes of impregnation, the harems having become
too large; that the' driving' had been so recklessly and
cruelly done on the islands that the reproductive powers of
the males not killed were destroyed; that any regulations
rela ting to pelagic sealing would be useless unless they
applied equally to the management of the islands themselves.
Great Britain denied the legal right of the United States
to impose regulations without her concurrence, but when
the question was put on the lower and practical plane of
common benefit to all the nations interested, then she stated
her willingness to co-operate cordially in giving effect to such
measures as might be found necessary for the preservation
of the fur-seals. So far as pelagic sealing was concerned,
this object would be attained by the establishment of a
protective zone around the Pribyloff Islands.
The sittings of the tribunal had commenced on February
23, 1893, and on August 15 of that year it rendered its
decision. On the five questions of right submitted to the
tribunal, its decision was against the United States. Every
disputed point of law submitted by the treaty to the tribunal
was decided in favour of Great Britain.
As to thefirst, the tribunal (Senator Morgan dissenting)
decided and determined :

THE BERING SEA FUR-SEAL DISPUTES 745
By the Ukase of 1821, Russia claimed jurisdiction in
the sea now known as the Behring Sea, to the extent of
100 Italian miles from the coasts and islands belonging
to her, but, in the course of the negotiations which led
to the conclusion of the Treaties of 1824 with the United
States and of 1825 with Great Britain, Russia admitted
that her jurisdiction in the said sea should be restricted
to the reach of cannon shot from shore, and it appears
that, from that time up to the time of the cession of
Alaska to the United States, Russia never asserted in
fact or exercised any exclusive jurisdiction on Behring
Sea or any exclusive rights in the seal fisheries therein
beyond the ordinary limits of territorial waters.
As to the second, the tribunal (Senator Morgan dissenting)
decided and determined:
That Great Britain did not recognize or concede any
claim, upon the part of Russia, to exclusive jurisdiction
as to the seal fisheries in Behring Sea, outside the ordinary
territorial waters.
As to the third, the tribunal unanimously decided and
determined:
That the body of water now known as the Behring
Sea was included in the phrase' Pacific Ocean' as used
in the said treaty.
As to the fourth, the tribunal unanimously decided and
determined:
That all the rights of Russia as to jurisdiction and as
to the seal fisheries in Behring Sea, east of the water
boundary, in the treaty between the United States and
Russia of 1867, did pass unimpaired to the United States
under the said Treaty.
As to the fifth, the tribunal (Senator Morgan and Justice
IIarlan dissenting) decided and determined:
That the United States has not any right of protection
or property in the fur-seals frequenting the islands of the
United States in Behring Sea, when such seals are found
outside the ordinary three-mile limit.
The decisions on questions of law being against the United
States, and the subject left in such a position that the concur-
rence of Great Britain was necessary to the establishment of

746 THE FISHERY ARBITRATIONS

regulations outside territorial waters, the tribunal, in accord-
ance with the treaty (Sir John Thompson, Senator Morgan
and Justice Harlan dissenting), prescribed certain regulations,
the important features of which are three, and comprise:
I. Prohibition at all times of pelagic sealing within a zone
of sixty miles around the Pribyloff Islands.
2. The establishment of a close season for fur-seals during
the months of May, June and July, within which sealing is
prohibited over the whole of Bering Sea and that part of the
Pacific Ocean lying north of the 35th parallel of north latitude
and east of certain defined boundaries.
3. The prohibition of the use of nets, firearms and ex-
plosives in taking seals.
I t may fairly be said, then, that the arbitration resulted
in a victory for Great Britain. On all questions of right the
decision was against the United States. This was not due to
any lack of ability or effort on the part of American counsel.
The views of the United States were urged with great persistency
and force, and, at the end of weeks of discussion on both sides, its
posi tion remained unshaken. But the American contention was
so novel, and in such open conflict with the accepted doctrine
of the freedom of the seas, that the decision of the tribunal,
on the first four questions at least, was not unexpected.
Attempt has been made to attenuate the American defeat
by the assertion that while Great Britain won on the law, the
United States won on the facts. There is small measure of
truth in the claim. The desire of both Great Britain and the
United States, and the main object of the Treaty of Arbitra-
tion, was the preservation of the seals from extermination.
While Great Britain denied the claim of the United States to
the ownership of the seals and the legal right to impose regula-
tions without her concurrence, she expressed her willingness to
abide by any regulations which the tribunal should deem
necessary for their preservation.
The regulations finally framed and promulgated by the
arbitrators (the Canadian arbitrator, Sir John Thompson,
and the American arbitrators, Justice Harlan and Senator
Morgan, dissenting) were the result of long and anxious con-
sideration. \Vhile they lean in the direction of abolition of
pelagic sealing, the establishment of a sixty-mile protected

THE BERING SEA FUR-SEAL DISPUTES 747
zone about the Pribyloff Islands is far less than a total
prohibition of pelagic sealing; and the maintenance of a circle
of protected waters and the establishment of a close season
was advocated by Great Britain herself in the report of her
commissioners, and in her counter-case and argument. This
is something infinitely less than a declaration that the right
of property and protection of the entire seal herd was vested
in the United States. Finally, when in 191 I Great Britain
agreed to abandon pelagic sealing for a limited number of
years, it was only on condition that she be paid $200,000
and a percentage of the catch of other nations.
In 1894 Great Britain agreed to accept the sum of $425,000
as damages growing out of the seizures in connection with the
con troversy.
The American agi ta tion against pelagic sealing con tin ued;
and finally, in 1896, a joint high commission representing
Canada and the United States was appointed to investigate
the conditions of seal life in Bering Sea. In 1898 the com-
mission met at Washington, but so far as the regulation of
pelagic sealing was concerned nothing resulted.
It was not until 1908 that Canada would agree again to
discuss the matter of prohibiting pelagic sealing. Finally
on May IS, 191 I, an International Seal Conference, composed
of representatives of the United States, Great Britain, Russia
and Japan, met at \Vashington, and after nearly two months'
deliberation came to an agreement for a treaty, which promises
to furnish the most satisfactory solution yet found for this
difficult problem. James Bryce, British ambassador at Wash-
ington, together with Sir Joseph Pope, under-secretary of state
for External Affairs for Canada, represented Great Britain.
The terms of this treaty provide for the prohibition of
pelagic or open-sea sealing for a period of fifteen years.
Canada, as the only country interested which owns no seal
rookeries, was able to secure favourable terms of compensa-
tion for desisting from pelagic sealing. Canada is to receive
$200,000 cash advance from the United States; this to be
used as the Dominion government sees fit, but probably in
part in compensation to Canadian sealers for loss of their
trade. This amount is to be repaid out of the sales from the
sealskins received from the United States government.

748 THE FISHERY ARBITRATIONS
The United States, Russia and Japan, owners of the seal
rookeries, are to contribute to a general fund, the United States
and Russia thirty per cent, and Japan fifteen per cent, of the
skins they may obtain by land sealing. Thisfund thus obtained
is to be divided between Canada and Japan, to compensate
them for the suspension of their pelagic sealing operations.
The United States gives Canada and Japan thirty per cent
of her annual catch on the Pribyloff Islands, or fifteen per cent
each; Russia gives Canada and Japan thirty per cent of her
catch in Commander Islands, of which Canada gets ten per
cent and Japan twenty. Japan gives Canada fifteen percent
of the catch on her rookeries on Robber Island. The rookeries
in each case are now owned and operated by the government
of the three respective nations. The catch of fur-seals on
the Pribyloff Islands from 1867to 1908 amounted to 2,494,176,
valued in London at $31,850,097. The fur-seals taken in the
same period in the open sea were 930,313, valued, as sold by
the sealers, at $11,251,788.
Canada may be regarded as being a distinct gainer under
this agreement. She is the only nation which has no rookeries
to protect, and her pelagic sealing industry is so small that
under present conditions it would have vanished in a few years.
She is to receive more each year from the general fund
contributed by the United States, Russia and Japan, than is
earned by her sealers in the entire industry.
On August IS, 1912, the treaty was formally ratified by
the United States Senate; and, as all the other powers to
it had already given their assent, it is now effective. The
Senate also enacted a provision prohibiting land-killing of
seals on the Pribyloff Islands for a period of ten years. It is
confidently expected that the treaty of 1912 will offer a
practical and effectual solution of the fur-seal problem.
The claims of all powers interested were fuIJy satisfied, and,
as regards Canada and the United States, its signature
removes one of the last serious outstanding difficulties
between them.

.

BOUNDARY DISPUTES AND
'[REA TIES

BOUNDARY DISPUTES AND TREATIES

I
FROl\I FUNDY TO JUAN DE FUCA

INTRODUCTORY
T HE following article considers the international boun-
dary between Canada and the United States from
the Atlantic to the Pacific. So far as chronology
is concerned, it includes negotiations and differences that
commenced in 1782, and that have, in some instances, con-
tinued down to the present time and are, even yet, unsettled.
Obviously, the demands of historical sequence require that
these differences be examined from the initial to the final
steps.
Boundary differences between Canada and the United
States respecting the line between the Bay of Fundy and the
Pacific can be most conveniently considered by a territorial
division from east to west, which also approximates to a
chronological division. They have been considered under the
following heads :
(I) St Croix River Commission.
(2) Passamaquoddy Islands.
(3) Line from the source of the St Croix River to the
River St Lawrence.
(4) Boundary through the River St Lawrence and
Lakes Ontario, Erie, Huron and Superior and
through the water-communications to the north-
westernmost point of the Lake of the Woods.
(5) Lake of the Woods to the Pacific, including the
C Oregon ' and << San Juan ' boundaries.
The important C date-line' of the territorial history of

75 2 BOUNDARY DISPUTES AND TREATIES
Canada is the preliminary treaty of 1782. On November 3 0 ,
17 82 , Richard Oswald, on the part of Great Britain, and
John Adams, Benjamin Franklin, John Jay and Henry
Laurens, on behalf of the United States, signed at Paris the
provisional treaty of peace. It acknowledged the indepen-
dence of .the United States.
Article II provided

that all disputes which might arise in future on the
subject of the Boundaries of the said United States
may be prevented, it is hereby agreed and declared,
that the following are and shall be their Boundaries, viz.
from the north-west angle of Nova Scotia, viz., that
angle which is formed by a line drawn due north from
the source of St Croix River to the Highlands; along the
said Highlands which divide those rivers that empty
themselves into the River St Lawrence, from those
which fall into the Atlantic Ocean, to the north-western-
most head of Connecticut River; thence down along the
middle of that River, to the 45th degree of north latitude;
from thence, by a line due west on said latitude, until it
strikes the River Iroquois or Cataraquy; thence along
the middle of said river into Lake Ontario; through the
middle of said Lake until it strikes the communication
by water between that Lake and Lake Erie; thence along
the middle of said communication into Lake Erie; through
the middle of said Lake until it arrives at the water-
communication between that Lake and Lake Huron;
thence along the middle of said water-communication into
the Lake Huron; thence through the middle of said Lake
to the water-communication between that Lake and Lake
Superior; thence through Lake Superior, northward of the
Isles Royal and Phelipeaux, to the Long Lake; thence
through the middle of said Long Lake, and the water-
communication between it and the Lake of the Woods,
to the said Lake of the Woods; thence through the said
Lake to the most north-western point thereof, and from
thence on a due west course to the River Mississippi, . . .
East, by a line to be drawn along the middle of the
River St Croix, from its mouth in the Bay of Fundy to its
source, and from its source directly north to the afore-
said Highlands, which divide the Rivers that fall into the
Atlantic Ocean from those which fall into the River

FROM FUNDY TO JUAN DE FUCA 753
St Lawrence; comprehending all Islands within 20
leagues of any part, of the shores of the United States,
and lying between lines to be drawn due east from the
points where the aforesaid Boundaries between Nova
Scotia on the one part, and East Florida on the other,
shall respectively touch the Bay of Fundy, and the
Atlantic Ocean; excepting such Islands as now are, or
heretofore have been, within the Limits of the said
Province of Nova Scotia.

On September 3, 1783, David Hartley, on the part of
Great Britain, and John Adams, Benjamin Franklin and
John Jay, on the part of the United States, signed at Paris
the definitive treaty of peace. Article II of this treaty-
commonly known as the Treaty of Paris-is identical with
Article II of the preliminary treaty.
The foregoing description of the boundaries was based, in
part, upon the boundaries of Nova Scotia and Quebec as
defined in various acts of state. For geographical information,
the negotiators used Mitchell's map of North America, 1755.
\Vhile it was in many respects a great advance on any maps
that antedated it, the fact that much of the country was
absolutely unexplored, and that much information obtained
by the French was not available, effectually prevented any-
thing like accuracy in the modern sense of the word. It was,
in short, only the best compilation possible with the limited
and inaccurate information available, and, unfortunately,
most of the errors founded on its inaccuracies enured to the
injury of Great Britain. The net result of these erroneous
descriptions was that, instead of preventing disputes, they
were exceedingly fruitful of them, and, on several occasions,
brought the two nations to the verge of hostilities. An
additional difficulty arose from the fact that the negotiators
did not agree on an official map and attach it to the treaty.

ST CROIX RIVER COMMISSION
Hardly was the ink dry on the treaty, when disputes arose
respecting the boundary. The first was with reference to the
identity of the St Croix River. The initial point, by Article II,

754 BOUNDARY DISPUTES AND TREATIES
was the' north-west angle of Nova Scotia,' which was also
the north-east angle of the United States, and, therefore, the
determining factor of the eastern and northern boundaries.
On Mitchell's map the River St Croix is indicated as head-
ing in a large lake called Kousaki, and emptying into a large
unnamed bay evidently intended to indicate what we now call
Passamaquoddy Bay. To the west of it is the Passamacadie
River, emptying into a small inlet of the large unnamed bay
and designated Passamacadie Bay. While there are two
rivers falling into Passamaquoddy Bay proper, the eastern
stream was, and is still, known as the Magaguadavic and
the western as the Schoodic. A third stream, the Cobscook,
falls into the bay of the same name. Though the latter
is usually considered a portion of Passamaquoddy Bay, it
may, from its geographical relations, be equally well con-
sidered a separate inlet of the Bay of Fundy. It is not
certain whether the St Croix and the Passamacadie of the
Mitchell map are one and the same stream, or whether the
Passamacadie is not identical with the Cobscook. Ganong 1
attributes the error to the use by Mitchell of Southack's
chart, 1733, and identifies Southack's River St Croix with the
passage north of Deer Island, and his Passamaquoddy River
wi th the passage to the sou th of it.
Britain claimed that the Schoodic was the true St Croix,
and that the most distant spring on the western branch was
the source. The United States claimed that the eastern
stream, the Magaguadavic, was the St Croix, and that the
most remote waters of the lakes at the head of its western
branch were the source. Both streams drain lakes of con-
siderable size, but, as the source of the Magaguadavic is in
longitude 67 0 12' ,v, and the source of the west branch of
the St Croix is in longitude 68 0 10' w, the question of identity
involved the ownership of a strip nearly fifty miles wide,
extending from the Bay of Fundy to the northern boundary
of Maine.
\Vhen the Treaty of Paris, 1763, ceded Canada, Cape
Breton, and the islands and coasts in the Gulf of 5t Lawrence
to Great Britain, it became necessary to provide governments
1 Ganong's Boundaries of New Bmnswick, p. 267 et sel.

FROl\1 FUNDY TO JUAN DE FUCA 755
for the new possessions. Prior to the trea ty, commissions
to the governors of Nova Scotia merely described it as the
'province of N ova Scotia or Acadie in America.. On
November 21, 1763, a commission as governor of Nova Scotia
was issued to Montagu \Vilmot. It defined his jurisdiction
as extending over
our Province of Nova Scotia, and which we have thought
better to restrain and comprise within the following
limits, viz.: To the northward our said Province shall
be bounded by the southern boundary of our Province
of Quebec, as far as the western extremity of the Bay des
Chaleurs . . . although our said Province has anciently
extended and does of right extend as far as the River
Pentagoet or Penobscot, it shall be bounded by a line
drawn from Cape Sable across the entrance of the Bay
of Fundy to the mouth of the River St Croix, by the said
River to its source, and by a line drawn due north from
thence to the southern boundary of our Colony of Quebec.
The sta temen t tha t Nova Scotia 'does of right extend '
to the Penobscot was omitted from later commissions. The
omission was, doubtless, compensation to Massachusetts for
the surrender of her claims to the country immediately south
of the St Lawrence, which by the proclamation of October 7,
1763, had been included in the new Province of Quebec.
The St Croix, therefore. for twenty years fonned part of
the boundary between Nova Scotia and the colony of Massa-
chusetts Bay, and attempts at its identification were made by
the authorities of the two colonies. In 1764 John Mitchel
was instructed to determine its position. In his report he
stated that the present Magaguadavic is 'R. St Croix
called by modern Indians, but does not agree with Champlain.'
The modern Digdeguash he designates the 'R. St Croix
according to Champlain,' and an island at the mouth of
Digdeguash Inlet is styled' I. St Croix.' \Vhen in 1796-98
the United States commissioners were endeavouring to
establish the Magaguadavic as the true St Croix. much stress
was laid on this' identification' by the Indians. That the
Indians ever called this or any other stream falling into
Passamaquoddy Bay, St Croix, is more than doubtful. This

756 BOUNDARY DISPUTES AND TREATIES
statement was either suggested by some person with an
ulterior motive, or made by the Indians because they thought
Mitchel desired to identify that particular stream as the
St Croix. In 1765 they stated to Morris that the Cobscook
was the St Croix. \\lith others, they agreed that the Schoodic
was the St Croix. At the same time it is worthy of note that
Mitchel was employed by Governor. Bernard of Massachu-
setts Bay and that Morris was surveyor-general of Nova
Scotia. Bernard had requested the government of Nova
Scotia to make land grants to himself and to his friends.
To have them as near his colony as possible, and, at the
same time, to avoid the adverse criticism he would have
received had he made grants to himself and his friends in
the colony of which he was governor, the grants were to be
made immediately east of the St Croix. In 1765 Nova
Scotia granted 100,000 acres between the Schoodic and
Cobscook to Bernard, Pownal, Thornton, Jackson and
Mitchel, this area, doubtless, being selected to enlist Governor
Bernard's influence in the attempt to secure recognition of the
Cobscook as the St Croix.
So far as maps are concerned, the English maps, prior to
1763, showed the western boundary following the St Croix
to its source and thence by a due north line to the River St
Lawrence. This was doubtless due to a misreading of the
grant to Sir William Alexander, which defined the boundary,
in part, as following, from the source of the St Croix, an
, imaginary straight line which is conceived to extend through
the land, or run northward to the nearest bay, river or stream
emptying into the great river of Canada; and going from
that eastward along the low shores of the same river of
Canada.' Map-makers, being without any accurate know-
ledge of the geography of the territory, tran
lated 'north-
ward' as due north, and so indicated it on their maps. While
this was obviously the only course then open to them, we now
know that the line to the' nearest' stream emptying into the
St Lawrence would run about west-north-west to a point in
the present county of Beauce, Quebec.
After the definition, by royal proclamation, in 1763, of
the Province of Quebec, the boundary of Nova Scotia was

FROM FUNDY TO JUAN DE FUCA

shown as following the due north line to the southern water-
shed of the St Lawrence, and thence, eastward, following the
watershed.
Shortly after the signing of the treaty of 1783, the
governmen t of Nova Scotia, assuming the Schoodic to be the
St Croix, made grants of land on its eastern bank to loyalist
refugees. At the instigation of John Allan, a prominent
revolutionary partisan, this action was promptly protested
by the Massachusetts government.
A commission appointed to make an investigation, stated
that the Magaguadavic was the St Croix of the treaty.
Statements were obtained from John Jay and John Adams,
two of the American negotiators of the treaty, and from the
John Mitchel who, in 1764, had been employed on the same
mission by Governor Bernard. Adams, in a letter dated
October 25, 1784, states that the Mitchell map was used by
the negotiators; that the' St Croix, which we fixed on, Wê.S
upon that map the nearest river to St Johns; so that in all
equity. good conscience and honour, the river next the
St Johns should be the boundary '-a somewhat novel line
of argument.
On the strength of this report Governor Hancock of
Massachusetts requested Governor Parr of Nova Scotia, in
the interests of peace and harmony, to recall' those subjects
of His Majesty who have . . . planted themselves within
this commonwealth.' Carleton, governor of the newly formed
province of New Brunswick, replied that Great Britain con-
sidered that the Schoodic was the boundary.
As matters had reached an impasse, Congress in 1785
resolved that the United States minister at London be
instructed to propose a settlement by negotiation, and, failing
this, to propose a reference to a commission. Nothing was
accomplished, however, and in 1790 the Senate advised
that measures be taken to settle the dispute, and that' it
would be proper to cause a representation of the case to be
made to the court of Great Britain, and, if said disputes
can not be otherwise amicably adjusted, to propose that
commissioners be appointed to hear and finally decide those
disputes. '

. ..

757

LJII

.
\

758 BOUNDARY DISPUTES AND TREATIES
Nothing was done till, in 1794, Jay negotiated a treaty for
the adjustment of the differences. Article v of this treaty
reads as follows :

\Vhereas doubts have arisen what river was truly in-
tended under the name of the River St Croix, mentioned
in the said treaty of peace, and forming a part of the
boundary therein described; that question shall be
referred to the final decision of commissioners to be
appointed in the following manner, viz. :
One commissioner shall be named by His Majesty,
and one by the President of the United States, by and
with the advice and consent of the Senate thereof, and
the said two commissioners shall agree on the choice
of a third; or, if they cannot so agree, they shall each
propose one person, and of the two names so proposed
one shall be drawn by lot in the presence of the two
original Commissioners. . . . The said Commissioners
shall, by a declaration, under their hands and seals, decide
what river is the River St Croix, intended by the treaty.
The said declaration shall contain a description of the
said River, and shall particularize the latitude and
longitude of its mouth and of its source. . . . And both
parties agree to consider such decision as final and con-
clusive, so as that the same shall never hereafter be
called into question, or made the subject of dispute or
difference between them.

Thomas Barclay, of Annapolis, Nova Scotia, was ap-
pointed commissioner on the part of Great Britain. The
president appointed General Knox as United States com-
missioner. He declined to serve, and David Howell, a
prominent lawyer of Rhode Island, was appointed in his
stead. In June 1796 Barclay and Howell had an informal
meeting in Boston respecting the appointment of the third
commissioner. Howell suggested the appointment of Egbert
Benson of New York, <<who was Barclay's cousin of the
half-blood, his father having been a half-brother of Barclay's
mother.' No choice, however, was made, and it was agreed
tha t each side should name <<three able and respectable
characters' from the list of whom the opposite party should
strike the names of two, and that the two remaining names

FROM FUNDY TO JUAN DE FUCA 759
should be put into a box and that one should be drawn out
to determine who should be the third commissioner.!
Ward Chipman, solicitor-general of New Brunswick, and
J ames Sullivan, attorney-general of Massachusetts, were
appointed agents on behalf of Great Britain and the United
States respectively. Both agents applied themselves to the
preparation of their respective cases. Chipman had the
assistance of Phineas Bond, British consul at Philadelphia,
Judge Pagan of New Brunswick, and others. Moore says:
, Among the U and others" there seems to have been a person
who was able to supply the British minister and British consul
at Philadelphia, in the early stages of the business, with copies
of papers on which the United States relied, and probably
with a copy of its claim.'
On August 2!, 1796, Barclay and Howell met at Halifax.
On comparing commissions, it was found that, while Howell's
authorized him 'with the other commissioners duly sworn to
proceed to decide the said questions and exactly perform all
the duties conjoined and necessary to be done to carry the
said fifth article into complete execution,' the commission to
the British commissioner read: 'We will give and cause to
be given full force and effect to such final decision in the
premises as by our said Commissioner together with the other
two commissioners above mentioned, or the major part of the
said three Commissioners, shall duly be made according to the
Provisions of the said Treaty.'
Barclay requested Howell to inform his government of
the variance, that his commission might be altered to conform
to that of the British commissioner.
Mr Howell, who doubtless was not aware of the fact
that on the 26th of the preceding July the Attorney-
General of the United States, Mr Lee, had advised the
Secretary of State that the concurrence of all three
commissioners was necessary to a decision, declined to
accede to this request, declaring that it was not only his
own opinion but that of every man in office in the United
States with whom he had conversed on the subject,
that a declaration under the hands and seals of a majority
of the commissioners would be final and conclusive.

1 Moore's International Arbitrations, i. p. 9.

VOL. VIII

F

.

760 BOUNDARY DISPUTES AND TREATIES
Barclay referred the matter to the British government,
and Lord Grenville, though he considered the variation
extremely unimportant, instructed the British minister to
ask the government of the United States for a declaration
that a decision of a majority of the commissioners would
be accepted as valid. The minister, Robert Liston, mis-
understanding the point at issue, a,sked for a declaration
that the United States would give the decision of the com-
missioners 'full force and effect.' The secretary of state,
Colonel Pickering, was hurt at the imputation that the
United States would not keep faith, and Liston contented
himself with a general declaration 'that the President
would give the decision of the Commissioners full force
and effect.' 1
On August 26 Barclay and Howell, after a discussion
of the point at issue with the agents, decided that, pending
the appointment of the third commissioner, they could not
perform any official act. By mutual agreement, in order
to hasten the settlement, they advised the agents to proceed
with the required surveys. The agents agreed to have sur-
veys made of Passamaquoddy Bay, and of the Schoodic and
Magaguadavic Rivers and their tributaries. On August 30
they agreed upon Egbert Benson as the third commissioner.
Barclay assented to his appointment because he was con-
vinced that, unless he did so, it would be decided by lot.
To this he was averse, as he was convinced of the justice
of the British claim. He wrote, 'To leave it therefore to
a ballot, would be putting what I looked on as a certainty
in hazard, a game I by no means conceived myself
authorized to play.' This appointment was also warmly
approved by Sullivan.
On October 4 the three commissioners met at St Andrews,
N.B., and were duly sworn. The agents filed their respec-
tive memorials, Chipman claiming the Schoodic and Sullivan
the Magaguadavic. The commissioners examined these
rivers, and visited the island in the Schoodic identified by
the Bri tish agent as the lie St Croix described by
Champlain.

1 Rives's Correspondence of Thomas Barcia}'.

FROM FUNDY TO JUAN DE FUCA 761
In July 1797 they met at Boston. President John Adams,
one of the surviving American plenipotentiaries, deposed
that Mitchell's map was the only one used in negotiating
the treaty of 1783; that lines designating the boundaries
of the United States were marked upon this map; that the
British negotiators first claimed the Piscataqua; that the
Americans claimed the St John, but, later, compromised on
the boundary of Massachusetts Bay-the St Croix.
John Jay, another negotiator for the United States,
deposed that
it became a question which of the rivers in those parts
was the true River St Croix, it being said that several of
them had that name; that they did finally agree, that the
River St Croix laid down in Mitchell's Map, was the
River 5t Croix which ought to form a part of the said
boundary line. . . . It seems to him that certain lines
were marked on the copy of Mitchell's Map, which was
before them at Paris, but whether the Map mentioned
in the Interrogatory as now produced, is that copy,
or whether the lines said to appear in it are the same
lines, he cannot without inspecting and examining it,
undertake to judge. l
In a letter written to Jefferson by Franklin, April 8, 1790
-nine days before his death-he also stated that they
used Mitchell's map only, during the negotiations.
The foregoing was conclusive. The only question to
be settled was: Which stream was the 5t Croix of Mitchell's
map?
Passamaquoddy Indians swore that de Monts wintered
in the 5choodic, but that he had erected a cross at the mouth
of the Magaguadavic, and that the latter was the 5t Croix.
As already stated, while Indian evidence respecting occur-
rences is sometimes trustworthy, their evidence respecting
names given by white men is not to be relied on.
The agent of the United States presented a copy of
Mitchell's map found in the office of the secretary of state.
It was said to be the copy used by the United States
negotiators at Paris, and contained a boundary marked
1 :\!oore's International Arbitrations, i. p. 21.

762 BOUNDARY DISPUTES AND TREATIES
in pencil. It was not presented during later negotiations, as
the Americans were unable to establish its authenticity.
On March IS, 1798, Lord Grenville concluded with Rufus
King, minister of the United States at London, an 'explana-
tory article' whereby the commissioners were released from
the obligation to ascertain the latitude and longitude of the
source of the St Croix. It provided that
they shall be at liberty to describe the said river, in such
other manner as they may judge expedient. . . . And
to the end that no uncertainty may hereafter exist on
this subject, . . . measures shall be concerted . . . in
order to erect and keep in repair a suitable monument
at the place ascertained and described to be the source
of the said River St Croix.
On September 22, 1798, the arguments of the agents were
closed. The commissioners entered upon the consideration
of their decision on October IS, and rendered it on October 26.
There were four questions to be considered: (I) the
intentions of the negotiators of the Treaty of Paris; (2)
the identity of the River St Croix; (3) the boundaries of
Nova Scotia; (4) the fulfilment of the conditions of the
treaty.
I. Respecting the intentions of the negotiators, the
evidence of Adams and Jay and Franklin's letter to Jefferson
demonstrated that they had adopted the St Croix of Mitchell's
map, and that it was only necessary to identify it
also, that
the St Croix was adopted because it was the eastern boundary
of Massachusetts Bay. Adams was emphatic on the latter
point, and Franklin, in his letter, states that: 'I remember
too, that in that part [the eastern] of the boundary, we
relied much on the opinion of Mr Adams, who had been
concerned in some former disputes concerning those terri-
tories. '
2. Respecting the identity of the St Croix: when the
commissioners visited Dochet Island in October 1796 they
had only the memorials of the commissioners appointed
under the Treaty of Utrecht. In the following year,
Chipman received a copy of Champlain's map. Excavations
made at his instance on the site indicated by the map, dis-

FROM FUNDY TO JUAN DE FUCA 763
dosed the remains of de Monts' settlements. Comparison
of this map with the maps made by their surveyors com-
pleted the identification with the lie Ste Croix of Champlain,
and proved decisive with the commissioners.
3. When it was decided that the Schoodic was the St Croix
of Champlain and of the treaty, it remained to determine
its identity from the mouth to its source. A short distance
from its mouth this river divides into two branches. The
eastern, and longer, rises about fifty miles north-north-west
of the confluence, and flows through a series of lakes, known
collectively as the Chiputneticook Lakes. The western branch
rises about thirty-five miles west of the confluence and flows
through Grand and Big Lakes. The British agent daimed
that the western branch was the true St Croix, and that
its source was to be found in its most distant spring, measur-
ing from the mouth. He based his contention on the grant
of Nova Scotia made by James I to Sir \Villiam Alexander
in 1621. In this grant, the boundary follows a straight line
from St Mary Bay to the mouth of Passamaquoddy Bay,
thence, 'ad jlUViUl1t vulgo nomine Sanctae Crucis appellatul1t
et ad scaturiginem remotissimam sive jontel1t ex occidentali
parte ejusdem qui se primu1n praedicto jluvio irl'l1niscet,' or, in
English, 'to the river generally known by the name of St
Croix, and to the remotest springs, or source, from the
western side of the same, which empty into the first
mentioned river.' 1 The British agent contended that this
clause meant the most western spring draining into the St
Croix. The United States agent contended that it meant
the 'remotest springs ' draining in to the east branch on its
western side. To a geographer, the American contention
was special pleading, and without foundation. So far as the
boundaries of N ova Scotia as defined in Alexander's grant
were concerned, the British contention was unassailable.
Prior to 1763, the commissions to the governors of Nova
Scotia defined their jurisdiction as including' our province
of Nova Scotia or Acadie in America.' In the commission
to Montagu Wilmot, 1763, two variations were introduced.

1 Slafter's translation, quoted by Bourinot in Transactions of Royal Society oj
Canada, 1899. ii. p. 105.

764 BOUNDARY DISPUTES AND TREATIES
I t declared that, , although our said province both anciently
extended and doth of right extend [to the westward] as far
as the River Pentagoet or Penobscot, it shall be bounded
by a line drawn from Cape Sable across the entrance of the
Bay of Fundy to the mouth of the River St Croix, by the
said river to its source and by a line drawn due North from
thence to the southern boundary of our colony of Quebec.'
The first variation omitted all reference to the western
branch. In the second variation the line from the source
of the St Croix to the nearest branch of the St Lawrence
was altered to read' due north.' As we now know that
the Alexander line ran west-north-west, to a point in what is
now the county of Beauce, in approximate latitude 45 0 55', it
is evident that the pedantry of a precisian in the office of
the law-officers or in the Colonial Office lost to Great Britain
the northern half of Maine.
Barclay and Benson contended that, inasmuch as the
western branch had always been known as the Schoodic-
the Indian name of the main stream-it was the St Croix.
Howell argued that, as the eastern branch-then known as
the Chiputneticook-was the larger stream, it was the St
Croix. But while Barclay held that the most distant
spring was the source, Benson put forward the extraordinary
contention that the word 'source' referred to the point at
which it issued frol1t the first lake. He argued that' a chain
of lakes is not a river.' Howell agreed with him, but applied
this curious dictum to the eastern branch, arguing that
, the source of a river is where it lodges itself in waters of
a different denomination' -a novel doctrine, and one not
likely to receive general acceptation.
4. The British agent cited in support of his contention
for the western branch, that a due north line from it, and
it only, would fulfil the conditions of the treaty.
In the Treaty of Paris the boundary is defined as pro-
ceeding from the north-west angle of Nova Scotia along
the' Highlands which divide those rivers that empty them-
selves into the River 5t Lawrence from those which fall into
the Atlantic Ocean.' Barclay argued that a due north line
from the source of the eastern branch 'will not intersect

FRO?vI FUNDY TO JUAN DE FUCA 765
the highlands here described, but will intersect the River
Restigouche, which empties itself into the Bay of Chaleurs,
which falls into the Gulf of St Lawrence, and will also inter-
sect the Metabediac Lake, which is the head or source of
the river likewise falling into the Bay of Chaleurs . . . the
source of this branch of the Scoudiac or 5t Croix cannot be
the source intended by the treaty of peace, because in such
case we cannot arrive at the north-west angle of Nova
Scotia.' 1 lIe pointed out that, if the highlands were south
of the Restigouche, they would divide the waters that fall
into the Gulf of St Lawrence from those that fall into the
Atlantic; if north of the Restigouche, they would divide
the waters of the River 5t Lawrence and those of the Gulf
of St Lawrence; whereas a line from the source of the
western branch of the 5t Croix would fulfil the conditions
of the treaty' except in that of the River St John, wherein
it becomes impossible, by reason that the sources of this river
are to the westward, not only of the western boundary-line of
Nova Scotia, but of the sources of the Penobscot and even
of the Kennebec, so that this north line must of necessity
cross the 5t John.' The American agent replied that, as
neither the north-west angle of Nova Scotia nor the high-
lands had been determined, there was no basis for argu-
ment. It is of interest to note that, later, Great Britain
and the United States reversed their respective arguments.
Finally, Barclay conceded to Benson in fixing the source in
the western branch at the outlet of Genesagenagumsis or Lesser
Big Lake, and a declaration to that effect was drawn up, but
Howell refused to sign. At this juncture Liston intervened.
After conferences with Barclay, Chipman and Sullivan, it
was agreed to accept the remotest spring of the eastern branch
as the source of the 5t Croix. As compared with the line
from Lesser Big Lake, this gave the United States an area
of about one hundred and forty square miles lying to the
north and west of the confluence; but, north of Chiputneti-
cook Lake, Great Britain gained a strip eleven miles wide,
and the boundary, instead of intersecting the 5t John four
miles west of Grand Falls, as at present, would have inter-
1 American State Papers, Foreign Relations, vi. p. 919.

766 BOUNDARY DISPUTES AND TREATIES

sected it twice, near the present town of Woodstock, and,
again, below Presqu'ile.
Considered on this basis, the settlement was the most
advantageous Great Britain could have made, and the
United States commissioner and agent probably agreed to
it to save the grants made by Massachusetts in the triangular
area above referred to. While the contentions of Howell
and Benson were geographically absúrd, the fact that the
Indians applied the same name to the western branch as to
the main stream did not in any way affect the name given by
the French, which was a thing apart. But, in this case, the
identification of the lie Ste Croix of the French explorers of
1604 demonstrated that the Schoodic and the St Croix were
identical, and thus determined the identity of the lower portion
of the historical St Croix. The grant to Sir William Alexander
in 1621, in set tenns, applies the name to this river from the
mouth in Passamaquoddy Bay to the most distant spring of
the western branch--conclusive evidence of the correctness
of Barclay's contention. But between Benson's absurd ideas
respecting geographical usage, and Howell's claim for a point
on the east branch-forty-five miles from its source-Barclay
wisely agreed to a compromise. On the other hand, this
territorial loss to Great Britain is, as above stated, largely
due to the pedantry of the draughtsman of Montagu Wilmot's
commISSIon.
C Mr Howell declined being a party to the declaration until
it was engrossed and ready for execution. He then reluctantly
directed his name to be inserted in the Declaration, which
he eventually signed.' 1
The declaration of the commissioners was signed October
25, 1798. They decided that the river specifically designated
on an attached map-the Schoodic to the junction of the
eastern and western branches, and, thence the eastern branch
to its remotest spring-was
the River truly intended under the name of the River
St Croix, in the said Treaty of Peace, and forming a
part of the boundary therein described; that is to say,
the mouth of the said river is in Passamaquoddy Bay, at
1 Rives's Corresþondence of Thomas Barclay, p. 93.

ISLANDS IN THE BAY OF FUNDY

b

EngU,h .Hiù..
.J.

M

LEGEND
Boundary claimed by Great Britaln.
.............,...... Boundary claimed by United States.
+ + + + + + Boundary a.s fixed by Commissioners a.ppointed
under .Article IV. of the Treaty of Ghent.

45

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67

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P,'ef'lUY'd by J.Ull
8 n71i1#'. FR. N.S" e.rpl.'......'.{'I' r..)r "ltJ./wda mId Its P,,,-winces"

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Jclm.Bortho1omø. & (

FROM FUNDY TO JUAN DE FUCA 767
a point of land called Joe's Point. . . and the course of
the said river up from its said mouth, is northerly to a
point of land called the Devil's Head, then tun
ing the
said point, is westerly to where it divides into two streams,
the one coming from the westward, and the other coming
from the northward, having the Indian name of Chiput-
naticook . . . then up the said stream, so coming from
the northward, to its source.!
The day the declaration was signed, Sullivan wrote
Timothy Pickering, secretary of state, that he had' filed a
memorial urging the Commissioners to fix the mouth between
Deer and Moose Islands or between Deer Island and Letite
Point in the Bay of Fundy, but they declined it under an idea
that unless Passamaquoddy was a section of the Bay of Fundy
the St Croix had no mouth in that Bay.' 2 He further stated,
and as the sequel shows, correctly, that' If the bay of Passa-
maquoddy is not considered as sea a negociation may be
yet necessary.'
The work of the St Croix Commission did not decide the
ownership of the islands in the 5t Croix River, nor did it
define the boundary through its lake-expansions-the Chiput-
neticook Lakes. On April II, 1908, a treaty was signed at
Washington providing for the demarcation of this portion of
the boundary. Article II provided for the appointment by
each nation of a commissioner, the commissioners so appointed
to lay down upon accurate modern charts, 'the line of boun-
dary along the middle of the River St Croix from its mouth
to its source,' the line of boundary to be a water line through-
out and to follow the centre of the main channel or thalweg,
except where it would conflict with the recognized national
status of an island; that, failing agreement within six months,
each party should submit its case to an arbitrator, whose
decision should be final. I t further provided for the establish-
ment of boundary monuments, ranges and buoys.
Up to March 1913 the 5t Croix had been surveyed, under
the provisions of this treaty, from the source to the mouth;
the boundary had been determined, except at one point where

) Ame,.i.::an State Paþers, Foreign Relations, vi. p. 921.
2 MSS.,Dcpartment of State,qnoted in :Moore's T,.eaties andArbitraticms,i. p. 3 2 .

768 BOUNDARY DISPUTES AND TREATIES
decision was reserved, and reference monuments had been
placed on the bank of the river.

PASSAMAQUODDY ISLANDS
Article II of the Treaty of Paris defined the eastern
boundary of the United States as follows:
East by a line to be drawn along the middle of the
River St Croix, from its mouth in the Bay of Fundy to
its source. . . comprehending all Islands within twenty
leagues of any part of the shores of the United States,
and lying between lines to be drawn due east from the
points where the aforesaid Boundaries between Nova
Scotia on the one part, and East Florida on the other,
shall respectively touch the Bay of Fundy and the
Atlantic Ocean; excepting such Islands as now are,
or heretofore have been, within the Limits of the said
province of Nova Scotia.
The obvious intent was to confirm to the United States
all the islands wi thin the area bounded on the north and west
by the eastern coast-line of the United States, and on the east
and south by a line drawn parallel to said coast and distant
twenty leagues therefrom, saving the islands, in this area, if
any, appertaining to Nova Scotia. Such a belt would,
obviously, be bounded at each extremity by lines drawn at
right angles to the boundaries of the belt. This condition is only
fulfilled by a due east line from the mouth of the St Mary
and a due south line from the St Croix.
Again, we have conclusive evidence in the King George III
map, 1 where the boundary is drawn 'as described by Mr
Oswald.' On this map the line is drawn parallel to the
Atlantic coast and approximately twenty leagues therefrom,
till it reaches a point about six leagues from the western
extremity of Nova Scotia, and due south from the mouth of
the St Croix. It then ascends to the latter but is curved to
the westward, so as to include Grand Manan and 'Passa-
macadie' islands in Nova Scotia; thence by a right line to
the St Croix. Moreover, Grand Manan is coloured red to
1 11Ifra, p. 82 3.

FROM FUNDY TO JUAN DE FUCA 769
indicate that it formed part of Nova Scotia. The foregoing
amounts, almost, to a demonstration of the correctness of
the theory that · due east' is a slip of the pen for · due
south.' 1 Any other theory attributes striking incapacity to
the astute negotiators of 1782. The King George III map
would have been conclusive evidence had it been produced,
but it was not produced, either because it had been forgotten,
or because it would have been detrimental to, if not destructive
of, the British claim respecting the · Highlands.'
The original error occurs in the statement of boundaries
claimed by the Congress of the Confederated States, August
19, 1779, but was not known till the Secret Journals of
Congress were published in 182 I. The lapsus calami is
probably due to the draughtsman having in his mind the fact
that the Atlantic coast of North America has a general
north-and-south trend. Any question respecting the owner-
ship of these islands, however, was covered by the exception
of islands that were, or had been, within the limits of Nova
Scotia.
Disputes soon arose respecting the ownership of Moose,
Dudley and other islands which were claimed by the British
and by United States authorities. The British claim was
based on the grant to Sir William Alexander in 1621, and
was strengthened by the fact that the authorities of Nova
Scotia had exercised jurisdiction over all the larger islands.
The British authorities had granted Moose Island, in 1764,
to Governor Bernard and others, and made grants of Deer
and Campobello Islands in 1767. Grand Manan Island had
been reserved pending the issuance of a grant to Sir William
Campbell, and Nova Scotia courts established at St Andrews
and Campobello had exercised unprotested jurisdiction over
Moose and other islands. On the other hand, l\1assachusetts
had not, prior to the treaty of peace, made any effort to
exercise jurisdiction in this region.
In 1784 Massachusetts surveyed lVloose, Dudley and
1 Moore (Treaties and Arbitrations, i. p. 45) says: · The negotiators of the
treaty of peace seem to have considered Passamaquoddy Bay either merely as a
part of the Bay of Fundy, or else as the mouth of the St Croix River! Ganong
(Boundaries of New Brunswick, p. 279) also accepts Moore's theory, although a
due east line would cut off part of the mainland of what is now Kew Brunswick.

770 BOUNDARY DISPUTES AND TREATIES
Frederick Islands, and sold Dudley Island. In 1785 the
inhabitants of Moose Island, when summoned by the high
sheriff of Charlotte county, New Brunswick, to attend 5t
Andrews courts as jurymen, refused to do so. On September
22, 1785, John Jay, secretary for Foreign Affairs, advised
garrisoning by Massachusetts 'without noise or delay.' 1
Congress, however, resolved that Rufus King, United States
minister at London, be instructed to attempt a settlement.
Nothing was accomplished. 2 As noted above, Sullivan, the
American agent of the St Croix Commission, insisted that the
mouth of the 5t Croix be fixed among the islands. The
British agent declined to consider the proposition, and, in a
letter to Governor Carleton, December 26, 1798, he says:
, The Agent of the U ni ted States did not seem to be aware
during the discussion of the case that the right to the islands
would be at all affected by the decision respecting the mouth
of the river, and therefore did not in any respect combat
any of my arguments upon this point.' Later, Sullivan
apparently discovered the effect of the decision, and pro-
tested that the treaty of peace never contemplated the in-
clusion of Passamaquoddy Bay in the Bay of Fundy; that
the mouth should be in the Bay of Fundy; and that he con-
ceived it should be between Letite Point and Deer Island or
between Deer and Moose Islands. The commissioners, how-
ever, adopted Chipman's contention that they were simply
charged with the determination of the St Croix River of
the treaty of peace. This left the question of the islands
where it was before, except that the point at issue was more
clearly defined.
In 1801 Rufus King was instructed to enter into negotia-
tions for a settlement of the title to the islands and to naviga-
tion of the channels between them. On May 12, 1803, he
concluded with Lord Hawkesbury a convention commonly

1 Ganong's Boundaries of New Brunswick, p. 283.
: The treaty of 1783 had never been complied with by the United States in
its exact terms, and the British government did not send a diplomatic represen-
tative to the United States until 1791. 'In 1788, when Mr Adams was about
leaving London, he was given to understand that, until a national government
was established capable of enforcing its obligations, it was useless to send a
Minister' (Foster, A Century oj American Diplomacy, p. 159).

FROM FUNDY TO JUAN DE FUCA 771
known as the King-Hawkesbury Convention. By the first
article it was provided that:
The Line hereinafter described shall and hereby is
declared to be the Boundary between the mouth of the
River Saint Croix and the Bay of Fundy; that is to
say, a Line beginning in the middle of the channel of the
River Saint Croix, at its mouth (as the same has been
ascertained by the Commissioners appointed for that
purpose); thence through the middle of the channel
between Deer Island, on the East and North, and Moose
Island and Campo Bello Island, on the West and South,
and round the eastern point of Campo Bello Island, to the
Bay of Fundy. And the Islands and \Vaters Northward
and Eastward of the said Boundary, together with the
Island of Campo Bello, situated to the Southward thereof,
are hereby declared to be within the Jurisdiction and part
of His Majesty's Province of New Brunswick; and the
Islands and Waters Southward and Westward of the
said Boundary, except only the Island of Campo Bello,
are hereby declared to be within the Jurisdiction and part
of Massachusetts.

The United States Senate amended the treaty by striking
out the fifth article respecting the boundary between Lake
of the Woods and the Mississippi. As Great Britain refused
to accept the amendment, it was never ratified, though the
proposed division of the islands was the same as in the final
settlement. A similar agreement, proposed by Lords
Holland and Auckland, and Messrs Monroe and Pinkney,
in 1807, failed on account of differences respecting con-
current negotiations.
On December 24, 1814, Lord Gambier, Henry Goulburn
and William Adams, on behalf of Great Britain, and John
Q. Adams, James A. Bayard, Henry Clay, Jonathan Russell
and Albert Gallatin, on behalf of the United States, signed
at Ghent the treaty that closed the War of 1812-14. Though
it was negotiated on the basis of the status quo ante bellum,
Great Britain refused to consider the Passamaquoddy islands
as territory' taken by either Party from the other during
the War.' The treaty provided that' Such of the islands in
the Bay of Passamaquoddy as are claimed by both Parties,

772 BOUNDARY DISPUTES AND TREATIES
shall remain in the possession of the Party in whose posses-
sion they may be at the time of the exchange of the Ratifi-
cations of this Treaty, until the decision respecting the title
to the said Islands shall have been made in conformity with
the Ivth Article of this Treaty.' In effect, pending the
decision of the commission appointed under Article IV, the
treaty confirmed Great Britain in possession of lVIoose Island,
which she had seized during the war.
Article IV provided that, to decide the conflicting claims
to the Passamaquoddy Bay islands, the differences should
be referred to commissioners, one to be appointed by Great
Britain and one by the United States; that the commis-
sioners should impartially examine and decide upon the
claims according to such evidence as should be laid before
them on the part of His Britannic Majesty and of the United
States, respectively; that they should decide to which of
the two contracting parties the several islands respectively
belonged, in conformity with the true intent of the treaty
of peace of 1783; that if the commissioners should agree
in their decision, both parties should consider such decision
as final and conclusive; that, if the commissioners should
differ upon any of the matters so referred to them, or both
or either refuse, or decline, or wilfully omit to act as such,
they should make, jointly or separately, a report or reports,
to both governments, sta ting the poin ts of difference and
the grounds upon which their respective opinions were
based; tha t the report or reports should then be referred
to some friendly sovereign or state, to decide on the differ-
ences; and that the decision of such friendly sovereign or
state should be final and conclusive.
Under this article, Thomas Barclay, who had been
British commissioner on the St Croix Commission, was
appointed as commissioner for Great Britain. John Holmes,
a prominent citizen of Massachusetts, was appointed com-
missioner for the United States. Ward Chipman, who had
filled a similar position on the St Croix Commission, was
appointed agent for Great Britain, and his son, of the same
name, was joint agent. James T. Austin, a prominent lawyer
of Massachusetts, was appointed agent for the United States.

FROM FUNDY TO JUAN DE FUCA 773
Lord Castlereagh's instructions to Barclay indicated
that the British right was based on the treaty of 1783, which
expressly excepted 'such Islands as now are or heretofore
have been within the Limits of Nova Scotia'; that Nova
Scotia had exercised jurisdiction up to 1783; that the
Alexander grant was conclusive, inasmuch as it included
all islands within six leagues of any part of the circumfer-
ence, and that, during the proceedings before the St Croix
Commission, the American agent had objected that fixing
the mouth of the river at Joe Point had conferred upon
Great Britain title to the disputed islands. Barclay, in
his reply, stated that the British case was incontrovertible
except with regard to Grand Manan, the most important
of all.
At the first meeting of the commissioners, held at St
Andrews, N.B., on September 23, 1816, the United States
commissioner objected to the commission presented by
vVard Chipman, Sr., because it was a letter from Lord
Bathurst, secretary for War and for the Colonies, convey-
, the commands of' the Prince Regent that he ' act as agent
to the Commission.' After discussion, it was agreed that
Chipman should act as agent, pending the issue of a formal
commission. The commission to him and to his son, empower-
ing them to act jointly or severally, was issued on January 24,
181 7.
The agent for Great Britain claimed Grand Manan and
all the islands in Passamaquoddy Bay on the ground that
they were' within the Limits of Nova Scotia.' The United
States agent claimed them as being' within twenty leagues'
of the shores of the United States and included between the
due east lines from the St Croix and St Mary Rivers and as
being without the limits of Nova Scotia. After agreeing
to accept as authoritative the maps and plans of the 5t
Croix and Passamaquoddy Bay, compiled for the 5t Croix
Commission, they adjourned.
In June 1817 the agents presented their memorials and
arguments. On September 2S following the commissioners
met in Boston to hear the replies of the agents, the hearing
being concluded on October I. Both agents requested a further

774 BOUNDARY DISPUTES AND TREATIES
hearing, and suggested an adjoummen t till the following
spring. On October 8, after considerable discussion, the
commissioners announced that the agents had C done honor
to themselves and justice to their respective Governments,'
and that it was C therefore inexpedient that they should be
further heard.' 1
Great Britain claimed Grand Manan Island and all the
islands in Passamaquoddy Bay as being within the limits
of Nova Scotia. The grant of Nova Scotia to Sir William
Alexander, 1621, translated from the Latin original, reads:
All and singular, the lands of the Continent, and islands
situated and lying in America, within the head or pro-
montory commonly called Cape of Sable, lying near the
forty-third degree of north latitude, or thereabouts;
from this Cape, stretching along the shores of the sea,
westward to the roadstead of St Mary, commonly called
St Mary's Bay, and thence northward by a straight line,
crossing the entrance, or mouth, of that great roadstead 2
which runs towards the eastern part of the land between
the countries of the Suriqui and Etchimini, commonly
called Suriquois and Etechemines, to the river generally
known by the name of St Croix . . . including and con-
taining within the said coasts and their circumference,
from sea to sea, all lands of the continent, with the
rivers, falls, bays, shores, islands, or seas, lying near or
within six leagues on any side of the same on the west,
north or east sides of the same coasts and bounds.

This grant indubitably included all the territory lying
to the east of the line from the entrance of St Mary Bay to
the mouth of the St Croix. This line intersects Grand
Manan, leaving about one-third of its area to the east of it
and two-thirds to the west. It bisects Campobello. Nearly
the whole of Deer Island lies to the east of it. Great Britain
claimed that the grant included all islands within six leagues
of the bounding lines, as well as those within six leagues of
the shores. The United States claimed that the six-leagues
line was to be drawn parallel to the shores, and that all

1 MSS., Department of State, quoted in :;\Ioore's Treaties and Arbitrations,
i. p. 55.
2 Bay of Fundy.

FROM FUNDY TO JUAN DE FUCA 775
islands in the Bay of Fundy and outside it belonged to the
United States, provided they were within twenty leagues
of the shores of the United States. A second question also
arose: Did the Alexander grant fix the limits of Nova Scotia,
or had they been affected by the commissions to governors
of the province between 1763 and 1783? The commission
to Montagu Wilmot, 1763, defines his jurisdiction as bounded
on the westward 'by a Line drawn from Cape Sable across
the entrance of the Bay of Fundy to the mouth of the River
St Croix,' etc. The commissions to Lord William Campbell,
August II, 1765, and to Francis Legge, July 22, 1773, use
the same phraseology. In all three commissions, the
eastern boundary includes' the said Bay [Chaleur] and the
Gulf of St Lawrence, to the cape or promontory called Cape
Breton, in the island of the same name, including that Island,
the Island of St John, and all other Islands wi thin six leagues
of the coast,' etc.,l but no mention is made of islands lying
to the westward of the line from St Mary Bay to the St Croix.
In the discussions that took place between October 2 and
9, the United States commissioner, at first, contended that
there could be no question respecting the meaning of the
Alexander grant, so far as it affected the islands; that' the
Crown had decided it repeatedly in the Commissions to
the Governors of Nova Scotia, wherein the Limits of Nova
Scotia were defined. He referred to the Commission to
Montagu Wilmot Esqr., in 1763, wherein all Islands on the
North and East within six leagues of the Coasts, are declared
to be within the Limits of Nova Scotia, and to the South-
ward, all Islands within forty Leagues of the Coast, but that
to the \Vestward no mention was made of Islands.' The
British commissioner argued that the commissions were
usually · penned in haste, by Clerks in the public offices,
and in tended merely as instructions to Governors, not as
acts which were to bind His Majesty on other points and
the foreign powers; because, if Declarations contained in
such Commissions could not bind foreign Powers, it was
unreasonable that the Power making such Declarations
and possibly with private views confined to its own Subjects
1 American State Papers, Foreign Relations, vi. p. 917.
VOL. VIII G

ST. J
i

J fI
'{ER COllfh

776 BOUNDARY DISPUTES AND TREATIES
should be bound thereby,' etc. After further discussion,
Barclay asked Howell to unite in a decision that all the
islands belonged to Great B ri tain. Howell refused on the
ground that Moose, Frederick and Dudley Islands had been
awarded to the United States by the convention of 1803
and by the treaty of 1807; that, though neither treaty had
been ratified, on both occasions Great Britain had been
willing to relinquish her claims to them in return for an
acknowledgment of her title to the other islands in Passa-
maquoddy Bay; that, if this division was not satisfactory to
Barclay, they would have to report their differences to their
respective governments for reference to some friendly sove-
reign or state for decision, as provided by the Treaty of
Ghent-which decision, he argued, could not possibly be
more adverse to the claims of the United States, and might
be more favourable than that proposed by Barclay.
Barclay communicated to Chipman the substance of
this discussion. They were agreed that a friendly sovereign
would probably adopt the line fixed upon-though not
ratified-in 1803 and in 1807; that this would leave the
ownership of Grand Manan for a separate decision, and that
this island, which was more valuable than all the Passama-
quoddy islands combined, might be lost to Great Britain;
or the friendly power might decide that' the small portion
of it belonged to His Majesty, and the remainder to those
States.' On October 6 Barclay informed Howell that he
would agree to yield Moose, Dudley and Frederick Islands
to the United States, on condition that the other islands in
Passamaquoddy Bay and Grand Manan be awarded to
Great Britain. Howell was astonished at a serious claim
to Grand Manan being put forward by Great Britain, but
eventually offered to give up Grand Manan in return for
Campobello. Barclay informed him that he had his ulti-
matum. It was not until the morning of the 9th that he could
induce Howell to agree to these terms, 'and then with great
reluctance and apparent Hesitation, and only on condition
tha t I would unite wi th him in a Letter to both Governments,
expressive of our opinion that the Eastern Passage from the
Bay of Passamaquoddy was common to both nations.'

FROM FUNDY TO JUAN DE FUCA 777

Howell's 'reluctance' and 'hesitation' are understand-
able. There is no doubt that a reference to a friendly
sovereign, as provided by the treaty, would have resulted in
a settlement as favourable to the United States, and, probably,
more favourable. 1VIoose Island was the only island of
importance awarded to the United States. As the channel
between it and the mainland is unnavigable, it properly
belongs to the State of Maine. Frederick and Dudley Islands
are very small isla.nds, dependent upon Moose. In addition,
Moose Island had been granted to citizens of the United
States.
As President Monroe in his first annual message, December
2, 1817, only expressed' satisfaction' with the division of the
islands in Passamaquoddy Bay, and omitted all reference to
Grand Manan, Barclay surmised that the president' felt sore
on the point.'
The commissioners reached an agreement on October 9,
1817, and on November 24 executed the award. They
decided that

We . . . have decided, and do decide, that Moose
Island, Dudley Island and Frederick Island, in the Bay
of Passamaquoddy, which is part of the Bay of Fundy,
do, and each of them does, belong to the United States
of America; and we have also decided, and do decide,
that all the other islands, and each and every one of
them, in the said Bay of Passamaquoddy, which is part
of the Bay of Fundy, and the island of Grand Menan,
in the said Bay of Fundy, do belong to his said Britannic
Majesty.1

This decision settled the title to the islands, but did not
delimit the boundary-line through the water channels. As a
result, there were numerous disputes respecting the national
title to certain fishing-grounds, and these disputes frequently
became violent. The lack of definition was also taken
advantage of by smugglers and other law-breakers. On
July 22, 1892, a convention respecting the boundaries between

1 Treaties and Conventions between the United States and other Powers, 1776-
1887) p. 406.

77 8 BOUNDARY DISPUTES AND TREATIES
Canada and the United States was signed at Washington.
By Article II it was agreed that the contracting parties should
appoint two Commissioners, one to be named by each
party, to determine upon a method of more accurately
marking the boundary line between the two countries
in the waters of Passamaquoddy Bay in front of and
adjacent to Eastport, in the State, of Maine, and to place
buoys or fix such other boundary marks as they may
determine to be necessary.
Wm. F. King of Ottawa was appointed commissioner
on behalf of Great Britain, and T. C. Mendenhall on behalf
of the United States. They met at Washington in March
18 93. A basis of agreement was decided on, viz.: that,
so far as possible, the line should be drawn so as to give
each nation equal water areas; that the boundary should
consist of a series of straight lines, the angles being marked
by buoys and range marks on the shores, and that the number
of lines should be reduced to the minimum. I t was further
agreed that it should be marked from Joe Point-fixed by
the St Croix Commission as the mouth of the St Croix River
-to West Quoddy Head, opposite the southern entrance to
the channel between Campo bello Island and the mainland.
Based on these principles, the major portion of the line was
laid down on charts, and, later, marked by buoys and shore
marks.
Differences arose, however, respecting a small island-Mark
Island or 'Popes Folly Island.' The commissioners were also
unable to agree respecting the ownership of Cochran Ledge,
opposite Eastport. Another difficulty arose respecting certain
fishing-grounds south of Lubec Narrows. The American
commissioner agreed that the line should be drawn along the
dredged channel which passes to the westward of the natural
channel, but the United States fishermen forwarded strong
protests to \Vashington, and the matter remained unsettled.
On April 1 I, 1908, a treaty respecting the demarcation of the
boundary between Canada and the United States was signed
at Washington. By Article I the contracting parties agreed
that each should appoint an expert geographer or surveyor
to serve as a commissioner to define and mark the international

FROM FUNDY TO JUAN DE FUCA 779
boundary-line through Passamaquoddy Bay. It confirmed
the marking of the line so far as it had been carried by the
commission of 1892. The cases were exchanged on December
3, 19 08 ; the counter-case for the arbitration proceedings
was prepared but was not presented to the United States
governmen t.
In May 1909 \Vm. F. King was instructed to confer
wi th Chandler P. Anderson, representing the U ni ted States
department of State, with a view to a settlement. These
negotiations were without result, and the twelve months
from ratification elapsed without agreement between the
governments. To adjust the matter a treaty was signed
at Washington on 1'lay 21, 1910. It conceded Popes Folly
Island to the United States, and the fishing-grounds south of
Lubec to Great Britain.
Up to March 1913 no field-work had been done under
Article I of the International Boundary Treaty of 1908.

THE C DUE NORTH' AND C HIGHLANDS' LINES
Having disposed of the southern portion of the boundary
between New Brunswick and Maine, the next dispute to be
considered is that concerning the line between the source of
the St Croix River and the St Lawrence. Though it was only
acu te respecting the north -eastern boundary of Maine, it
involved the whole line to the St Lawrence.
The decision of the commissioners appointed under
Article IV of the Treaty of Ghent fixed the source of the
St Croix, but left unsettled the whole question of the boundary
from that point northward and westward.
The Treaty of Paris, 1783, defined the boundaries of the
United States, in part, as follows:
From the north-west angle of Nova Scotia, viz., that
angle which is formed by a line drawn due north, from
the source of Saint Croix River to the Highlands; along
the said Highlands which divide those rivers that empty
themselves into the River St Lawrence, from those which
fall into the Atlantic Ocean, to the north-westernmost
head of Connecticut River; thence down along the

780 BOUNDARY DISPUTES AND TREATIES
middle of that River, to the forty-fifth degree of north
latitude; from thence, by a line due west on said latitude,
until it strikes the River Iroquois or Cataraquy; thence
along the middle of said river. . . . East, by a line to be
drawn along the middle of the River St Croix, from its
mouth in the Bay of Fundy to its source, and from its
source directly north to the aforesaid Highlands which
divide the Rivers that fall into the Atlantic Ocean from
those which fall into the River St Lawrence, etc.

An examination of this description indicates that the basal
point is the 'north-west angle of Nova Scotia,' which is
defined as the intersection of the due north line from the St
Croix to the ' highlands.' As the source of the St Croix was
already determined, the determination of the due north line
was a simple matter of careful surveying. Though the
meaning of the word' highlands' is plain, viz., lands that are
high enough to form a water-parting between the streams that
flow into the St Lawrence and those that flow to the Atlantic,
and are, therefore, higher than the surrounding country, yet
the controversy raged for over half a century and, on several
occasions, brought two great nations to the verge of war.
The primary error respecting the meaning of the word
, highlands' as used in the treaty of peace seems, strangely
enough, to be attributable to a citizen of the United States,
James Sullivan, who was, later, agent for the United States
on the St Croix Commission. In a map accompanying his
History of the District of Maine, a continuous range of moun-
tains following the southern watershed of the St Lawrence
is shown, and is designated 'High Lands being the boundary-
line between the United States and the British Province of
Quebec.' In 1798, three years later, when presenting the
United States case before the St Croix Commission, 'he
declared that the question of the highlands was ., yet resting
on the wing of imagination," and that the U point of locality
of the north-west angle" was U to be the investigation of the
next century" -a prophecy remarkably fulfilled.' 1 In 1802,
apparently in reply to a request, he wrote President Madison
a lengthy memorandum respecting the islands in the Bay of
1 Moore's Treaties and .1rbitrations, i. p, 66.

FROM FUNDY TO JUAN DE FUCA 781
Fundy and the ' highlands' line. Referring to the latter, he
wrote:
The line which runs north from the source of the
St Croix, crosses the river St John, a great way south of
any place which could be supposed to be the highlands;
but, where that line will come to the north-west angle of
N ova Scotia and find its termination, is not easy to
discover. . . . Commissioners who were appointed to
settle that line, have traversed the country in vain to
find the highlands designated as a boundary. I have
seen one of them, who agrees with the account I have
had from the natives and others, that there are no
mountains or highlands on the southerly side of the
St Lawrence, and north.eastward of the River Chaudière ;
that, from the mouth of the St Lawrence to that river,
there is a vast extent of high, flat country, thousands of
feet above the level of the sea in perpendicular height,
being a morass of millions of acres, from whence issue
numerous streams and rivers, and from which a great
number of lakes are filled by drains; and that the rivers,
originating in this elevated swamp, pass each other, wide
asunder, many miles in opposite courses, some to the
St Lawrence, and some to the Atlantic Ocean.
Should this description be founded in fact, nothing
can be effectively done, as to the Canada line, without a
commission to ascertain and settle the place of the north-
west angle of Nova Scotia. Wherever that may be
agreed to be, if there is no mountain or natural monu-
ment, an artificial one may be raised; from thence
the line westward to Connecticut River may be estab-
lished by artificial monuments. . . . Though there is
no such chain of mountains as the plans or maps of the
country represent under the appellation of the highlands,
yet there are eminences from whence an horizon may
be made to fix the latitude from common quadrant
observations. 1

The Sullivan letter has been quoted at length because
it formed the basis of representations made by the United
States; it indicates dearly the erroneous ideas entertained
respecting the meaning of ' highlands'; it is highly probable
that, had it never been written, the British government
1 Amory's Life of Sullivan, ii. pp. 405-6.

7 82 BOUNDARY DISPUTES AND TREATIES
would not have raised the question, nor could it have been
done so effectively but for this remarkable concession of
United States diplomacy.
J ames Madison, secretary of state, requested this informa-
tion, as he had already opened negotiations for the settlement
of the boundary in Passamaquoddy Bay, and desired to include
the remainder of the line in a general settlement. In his in-
structions to Rufus King, United States minister at London,
he said it had been found that the highlands had no definite
existence. He therefore suggested that a commission, simi-
lar to the St Croix Commission, should be appointed
to determine on a point most proper to be substituted
for the description in the second article of the treaty of
17 8 3, having due regard to the general idea that the line
ought to terminate on the elevated ground dividing the
rivers falling into the Atlantic, from those emptying
themselves into the St Lawrence. The commissioners
may also be authorized to substitute for the description
of the boundary between the point so fixed, and the
north-westernmost head of Connecticut river, namely,
a line drawn along the said highlands, such a reference
to intermediate sources of rivers, or other ascertained
or ascertainable points, to be connected by straight lines,
as will admit of easy and accurate execution hereafter,
and as will best comport with the apparent intention of
the treaty of 1783.1

The suggestion in these instructions that the' highlands'
contemplated by the treaty were necessarily a mountainous
tract of country can be traced to Sullivan's memorandum
quoted above. 'Though the idea underlying the intimation
obviously was, that the substituted line should be drawn as
nearly as possible through the region where the U highlands"
had been supposed to exist, yet the letter of Mr Sullivan 2

1 American State Papers, Foreig1
Relations, ii. p. 5 8 5.
Z Gallatin. in a letter to Chas. S. Davies, June 14, 18 39. said: C Governor
Sullivan's blunder in that respect was the source whence arose our difficulties.
and which led our Government to declare, in fact. that in its opinion there were,
in the topography of the country. obstacles to the execution of the treaty' (Adams,
Writings of Gallatin, ii. p. 546).
· Even in America. where the term cc dividing highlands" is generally used.

66

48

Boundary clai

+ + + + Boundary claim

Boundary accort...... o l ..
Boundary as fix
Boundary conte.

Boundary conte )

_++_++ Boundary awar

0+0+ 0 Limits of Grant i

A5 ". Jft1

: !

I I

i'
I I
: I
I (
I,
II
I I B U N S W
'i}
I 41.

II

Ii

I'

66

71-

72

, I

};A5T:E1rt
Clli1KD}
- D'1'$fl1r1EI)

f:&..l!:E S
I3 {) 1JNI)li:fr'Y

EngÜ6h. H.ílu

þ)

80

200

++ ++

LEGEND
Boundary claimed by Great Britain, 1798-1842.
Boundary claimed by United states, 1798-1842.
Boundary according to the Award of the King of the Netherlands, Jan. 10th, 1831.
Boundary as fixed by the Ashburton Treaty, Aug. 9th, 1842.
Boundary contended for by Great Britain, 1798.
Boundary contended for by United states, 1798.
Boundary awarded Oct. 25th, 1798, by Commissioners under Jay Treaty.
Limits of Grant to Sir William Alexander, Sept. 29th, 1621.

-++-++

0+0+0

Wi

I'
I:
I
1,4H
I

! I
1-

H

72

--
1.hP "FdmlnlI.gb.. &eoð'r r. a1 Jnøhtute

70

L'"':9r.tu.de West 70

Prep'lrf"] l{y James J'7Lit,-. FR. G.S.,

66

136

411

46

l

n..-idL

68

66

...
ßa.rthõL:anr.,.-&Co

I '.rs/
lor "làlw,la t1IlIl It.v l'",w;ruv-.v"

FROM FUNDY TO JUAN DE FUCA 783
and the instructions of l\Ir Madison having been com-
nlunicated to Congress and thus made a matter of public
record, conceded a point which it was never possible to
regain.' 1
On May 12, 1803, Lord Hawkesbury and Rufus King
signed at London a Convention of Boundary between Great
Britain and the United States. Article II provided that:
\Vhereas it has become expedient that the North-west
Angle of Nova Scotia, mentioned and described in the
Treaty of Peace between His Majesty and the United
States should be ascertained and detennined . . . it is
agreed that for this purpose [three] Commissioners shall
be appointed. . . to ascertain and determine the said
North-west Angle of Nova Scotia, pursuant to the
Provisions of the said Treaty of. Peace, and likewise to
cause the said Boundary Line . . . to be run and marked
according to the Provisions of the Treatyaforesaid. 2
The United States Senate desired to insert an explanatory
article respecting the boundary-line between the Lake of
the Woods and the Mississippi. This the British govern-
ment refused to accept. A similar settlement attempted
in 1807 by Lords Auckland and Holland, and Messrs Pinkney
and Monroe, also came to naught, owing to differences
respecting impressment, etc.
On February IS, 1814, the House of Assembly of New
Brunswick resolved that a committee should be appointed
to prepare a petition to the Prince Regent praying that,
when negotiations for peace took place, he would · direct such
measures to be adopted as he may think proper to alter the
boundaries between those States and this Province, so as
that the important line of communication between this and
the neighbouring Province of Lower Canada, by the River
Saint John, may not be interrupted.' 3
The importance of securing this territory to Canada was

some otherwise well-informed men, such as Mr Sullivan, were not acquainted
with its technical meaning. (Gallatin, Right of the United States to the North-
eastern Boundary, p. 32).
1 :Moore's Treaties and Arbitrations, i. p. 68.
2 British and Foreign State Paþers, i. p. 1637.
a Ganong, Boundaries of New Brunswick, p. 314.

784 BOUNDARY DISPUTES AND TREATIES
thoroughly appreciated by the New Brunswick authorities.
They recognized that the due north line would cut off the
portion of the St John Valley lying above Grand Falls.
\Vard Chipman, Governor Carleton and others conceded it,
but hoped that British diplomacy would effect a satisfactory
arrangement. Thus Chipman, in 1799, suggested that the
right of navigation between the islands of Passamaquoddy
Bay might be conceded to the United States in return for
an alteration of the boundary that would preserve the
Madawaska settlements to Great Britain.
It was probably due to the New Brunswick petition that,
at the first conference of the British and American negotiators
of the Treaty of Ghent, August 8, 1814, the former proposed
'a revision of the boundary-line' between the British and
American territories' merely for the purpose of preventing
uncertainty and dispute.' Later, they explained that their
proposal involved' such a variation of the line of frontier as
may secure a direct communication between Quebec and
Halifax.' To this proposition the American negotiators
replied that' under the alleged purpose of opening a direct
communication between two of the British provinces in
America, the British government requires a cession of territory,
forming a part of one of the States of the American Union. . . .
They have no authority to cede any part of the territory of
the United States, and to no stipulation to that effect will
they subscribe.'
The British negotiators replied that the boundary of the
district of Maine had · never been correctly ascertained;
tha t the one asserted, at present by the American Govern-
ment by which the direct communication between Halifax
and Quebec becomes interrupted, was not in contemplation
of the British plenipotentiaries who concluded the treaty
of 1783.' They explained that 'the British Government
never required that all that portion of the State of Massa-
chusetts intervening between the provinces of New Bruns-
wick and Quebec should be ceded to Great Britain, but
only that small portion of unsettled country which intercepts
the communication between Quebec and Halifax; there
being much doubt whether it does not already belong to

FROM FUNDY TO JUAN DE FUCA 785
Great Britain.' The United States commissioners declared
, that they did not decline discussing any matter of uncer-
tainty or dispute respecting the boundaries,' and that they
were · prepared to propose the appointment of commissioners
by the two governments to extend the line to the Highlands
conformably to the treaty of 1783.' On November 10
they proposed that articles be inserted in the treaty provid-
ing for the appoin tmen t of commissions to ascertain and
mark the line from the source of the St Croix to the Lake
of the Woods, and to decide upon the claims of Great
Britain and the United States to Grand Manan and the
Passamaquoddy Bay islands.
Article V provided that
\Vhereas neither that point of the Highlands lying due
North from the source of the River St Croix, and desig-
nated in the former Treaty of Peace between the 2 Powers,
as the North-\Vest Angle of Nova Scotia, nor the North-
Westernmost head of Connecticut River, has yet been
ascertained: and whereas, that part of the Boundary
Line between the Dominions of the 2 Powers, which
extends from the source of the River St Croix, directly
North to the above-mentioned North-West Angle of
Nova Scotia, thence along the said Highlands which
divide those Rivers that empty themselves into the River
St Lawrence from those which fall into the Atlantic
Ocean, to the N orth- \Vesternmost head of Connecticut
River, thence down along the middle of that River to the
45th degree of North Latitude; thence by a Line due west
on said Latitude, until it strikes the river Iroquois or
Cataraquy, which has not yet been surveyed; it is agreed
that, for these several purposes 2 Commissioners shall
be appointed, sworn and authorized to act exactly in
the manner directed with respect to those mentioned in
the next preceding article [respecting Passamaquoddy
Bay islands] unless otherwise specified in the present
article.

The treaty further empowered the commissioners to
cause the boundary from the source of the St Croix to the
St Lawrence to be surveyed and marked. I t also provided
for the preparation of a map of the boundary which should

786 BOUNDARY DISPUTES AND TREATIES
be considered as 'finally and conclusively fixing the said
Boundary' and for a reference to a 'Friendly Sovereign or
State' if the two commissioners differed.
Under the provisions of Article v, Thomas Barclay, who
had already served on the St Croix Commission, was appointed
on the part of Great Britain. Cornelius P. Van Ness, a
citizen of Vermont, was appointed commissioner on the part
of the United States. As Barclay was also a member of the
Passamaquoddy Islands Commission, it was arranged to hold
the initial meetings of the two commissions at the same time.
Their first meeting was held at St Andrews, N .B., on September
23, 1816. Ward Chipman appeared as agent on the part of
Great Britain. The same objection was taken to his com-
mission under Article v as to his commission under Article IV
-the Passamaquoddy Islands Commission-and the diffi-
culty was solved in the same way.
On June 4, 1817, the commission reconvened at Boston,
and William C. Bradley presented his commission as agent
on the part of the United States. Two parties of surveyors
were instructed to commence operations. One, under
Colonel Joseph Bouchette, surveyor-general of Quebec, was
instructed to make a reconnaissance of the country along
the due north line from the source of the St Croix to ascertain
whether it intersected the highlands of the treaty of 1783.
The other, under John Johnson, as chief surveyor for the
United States, was to survey the due north line with a
fair amount of accuracy, measured by the standards of that
time.
On J\1ay 24, 1821, the commission met at New York to
hear the arguments of the agents. Various meetings were
also held in June, August, September and October, and on
October 4 were brought to a close. As the commissioners
had failed to agree, they adjourned till the following year
to prepare their respective reports for reference to a · Friendly
Sovereign or State' as provided by the treaty. Moore
says that when the board reconvened on August I, · the
controversy as to procedure was renewed, with many
criminations and recriminations as to the responsibility for
the delays that had supervened in the execution of the work

FROM FUNDY TO JUAN DE FUCA 787

of the commission,' and that the arguments were' charac-
terized by not a little acrimony.'
The British agent claimed Mars Hill, forty miles north
of the source of the St Croix, as the north-west angle of
Nova Scotia. The surveys of the due north line showed
that it was the first mountainous elevation intersected;
that the St John River was crossed at the 77th mile; that
the water-parting between the St John and the Restigouche
-a river flowing to Chaleur Bay-was intersected at the
97th mile, and that the watershed between the Metis and
Restigouche-the water-parting between the St Lawrence
and Chaleur Bay-was intersected at the I43rd mile.
Between the 97th and I43rd miles, therefore, the line
was in a basin draining to Chaleur Bay, and, unless the
Gulf of St Lawrence was considered part of the Atlantic,
it nowhere intersected the water-parting that' divides those
rivers that empty themselves into the River St Lawrence,
from those which fall into the Atlantic Ocean.' He further
claimed that the water-parting between the Metis and Resti-
gouche did not possess the elevation or continuity charac-
teristic of all & highlands,' whereas the Mars Hill line did.
That the latter did not itself divide St Lawrence waters
from Atlantic waters, but, in part of its course, divided minor
tributaries of the St John, and, in the remainder, to the
source of the Chaudière River, divided the St John from
the Penobscot and Kennebec would seem to require ex-
planation. But the British agent anticipated objections
on this score by arguing that the treaty should be inter-
preted according to its spirit and not its letter. He said
that the words 'north to the highlands' are & evidently
to be understood as intending that the North line should
terminate whenever it reached the highlands, which, in any
part of their extent, divide the waters mentioned in the treaty,' 1
and that they need not divide the waters & in their whole
extent.' He proposed to reverse the language of the treaty
and trace the line & from the north-westernmost head of the
Connecticut River, along the highlands which divide those rivers,

1 Gallatin, The Right of the United States to the Nort',-eastern Boundary claimed
by Them, p. 23.

788 BOUNDARY DISPUTES AND TREATIES
etc., to the North-west Angle of Nova Scotia, viz., that angle
which is formed by a line drawn due north from the source
of St Croix River to the Highlands.' This suggested line
followed the southern watershed of the St Lawrence to
Metjermette Portage at the head of the Penobscot, and for
that distance coincided with the line claimed by the United
States. From l\1etjermette Portage it ran eastward along
the southern watershed of the St John and of the Des Chutes,
a tributary of the former. The British agent contended that
this line was to be followed because it was absolutely essential
that it should follow highlands, whether they divided rivers
mentioned in the treaty or not; also, that the elevations on
this line were a continuation of the highlands which, from the
Connecticut to l\1etjermette Portage, were acknowledged by
both parties to fulfil all the conditions of the treaty.
To support his contention that the treaty assigned to
each nation the sources of the rivers emptying through its
own territories, the British agent quoted the boundaries
claimed by Congress in 1779. They claimed the St John
from its ' source to its mouth ' as the eastern boundary and,
practically, identified the source of the St John with the
north-west angle of Nova Scotia. He argued that, having
forced the Americans to recede from the St John, it was
inconceivable that Great Britain would concede the upper
portion of its valley.
He also claimed that the disputed territory had been
occupied and jurisdiction had been exercised by Great
Britain since 1763, and by France, her predecessor in title,
for many years prior to that date.
The agent for the United States claimed, as the north-
west angle of Nova Scotia, the intersection of the due north
line with the water-parting between the St Lawrence and
the Restigouche. His claim was based upon the recognition
of this water-parting, for many years, as the boundary
between Quebec and Nova Scotia; that it was so indicated
in all maps and records from the cession of Canada in 17 6 3,
till the treaty of peace in 1783, and later; that, in 1797,
the British agent, when making his argument before the
St Croix Commission. had admitted the correctness of the

FROM FUNDY TO JUAN DE FUCA 789
United States claim, and that it had been admitted by
British officials and other authorities. He contended
that the term 'highlands,' being connected with the words
'which divide the rivers,' etc., affixed to the expression a
definite and precise meaning; that, as the ground dividing
rivers is necessarily more elevated than those rivers and
their banks, it is properly designated 'highlands' in rela-
tion to those rivers, and that the reports of the surveyors
showed that the country was sufficiently rugged to fulfil
the conditions claimed by Great Britain as necessary to
constitute 'highlands.' In reply to the British contention
that the line did not divide the waters flowing into the 5t
Lawrence from those falling into the Atlantic, he argued
that it was only necessary that it separate one class of waters,
viz., those falling into the 5t Lawrence, from another class,
viz., all other waters, and that, therefore, it fulfilled this
condition; and that the British contention was unimportant,
as l\1i tchell' s map showed the Restigouche lying altogether
to the east of the due north line, and the intent of the
negotiators was apparent.
For the 'north-westernmost head of the Connecticut
River' the British agent claimed Indian Stream, while the
United States agent claimed HaIl Stream.
From the Connecticut River, the line followed the
45th parallel to the St Lawrence. As this line had been
surveyed by Valentine and CoIlins prior to 1774, and as
the western terminus had been verified by Andrew EIIicott
in 1817, no suspicion was entertained that it had not been
correctly surveyed. In 1818 Dr Tiarks and F. R. Hassler,
the British and American astronomers, discovered that,
at Rouses Point, on the west shore of Lake Champlain, the
'old line' was 4200 feet north of the parallel, thus throwing
the Rouses Point fort, constructed at a cost of $1,000,000,
and another fortification into British territory. When the
line was surveyed and marked under the provisions of the
Ashburton Treaty, it was found to be, in places, one and a
quarter mile north of its true position, and south of Hunt-
ingdon, Quebec, to be six-tenths of a mile south of the
parallel. Fearing a local uprising, the astronomers, at first,

79 0 BOUNDARY DISPUTES AND TREATIES
disclosed it only to the agents. The United States agent
proposed to claim that the line be determined by geocentric
latitude instead of observed latitude, which would have thrown
the parallel thirteen miles north of the true latitude. This
preposterous proposition, however, was not sustained by the
commissioner for the U ni ted States.
The commissioners held their final session at New York,
April 13, 1822. They filed their disagreeing opinions which
had been exchanged at New York on October 4 in the pre-
ceding year, and presented their respective reports, which were
transmitted to the contracting governments.
The British commissioner stated that, in his opinion,
(a) l\1ars Hill was the north-west angle of Nova Scotia;
(b) that the north-westernmost stream which emptied into the
third lake of Connecticut River was the north-westernmost
head of the Connecticut; (c) that, west of the Connecticut
River, the boundary should follow the 45th parallel, which
should be surveyed 'according to ordinary geographical
princi pIes. '
The United States commissioner was of the opinion
(a) that the north-west angle of Nova Scotia was one hundred
and forty-three miles north of the St Croix, in the water-
parting between the St Lawrence and Restigouche waters;
(b) that the head of the west branch of Indian Stream was
the source of the Connecticut; (c) that it was not necessary
to report any opinion respecting the' 45 th parallel' line.

ARBITRATION BY THE KING OF THE NETHERLANDS
Article V of the Treaty of Ghent provided that in the
even t of the commissioners differing, a reference should be
made 'to a Friendly Sovereign or State,' but there was no
provision respecting the procedure, limitation of time for
making the reference, etc. With the government of New
Brunswick and the government of Maine both claiming
jurisdiction in the disputed area, the material for a conflict
was ready, only requiring the match to be applied by some
trivial dispute.
In 1825 trouble arose respecting licences to cut timber in

FROM FUNDY TO JUAN DE FUCA 79f
the disputed territory. Great Britain claimed that, while
no encroachments on acknowledged United States territory
would be permitted, the British settlements on the St John and
Madawaska Rivers had been granted by the crown thirty years
before, and had been unprotested for twenty years. Pending
a settlement, it was agreed, in 1827, 'that no exercise of ex-
clusive jurisdiction by either party, while the negotiation
was pending, should change the state of the question of right
to be definitively settled.' In the same year one John Baker
was arrested by the authorities of New Brunswick. The
United States demanded his release, and' a full indemnity
for the injuries which he has suffered.' A protest was made
, against any exercise of acts of exclusive jurisdiction by the
British authority' in the disputed territory. The British
government replied that Baker had stopped the mail from
Canada, hoisted the American flag, and had formed a com-
bination ' to transfer the territory in which he resided to the
United States.'
In 1826 the United States, through Albert Gallatin, United
States minister at London, opened negotiations with a view to
settling differences between the two nations. On September
29, 1827, a treaty was signed by Charles Grant and Henry
U. Addington, on behalf of Great Britain, and by Albert
Gallatin, on the part of the United States. It provided
that the contracting powers should proceed in concert to the
choice of a friendly sovereign or state as arbitrator, and
endeavour to obtain a decision within two years; that new
statements of case should be prepared for submission to the
arbitrator and mutually communicated to each other, each
party to be at liberty to draw up a counter-statement; that
Mitchell's map and map C A '-which had been agreed on as
a delineation of the water-courses-were the only maps to
be considered as evidence, mutually acknowledged, of the
topography, though either party was to be at liberty to annex
other maps to its first statement, for purposes of illustration;
all statements, etc., to be delivered in to the arbiter within
two years after the exchange of ratifications, unless he had
not, within that time, consented to act; in which case they
were to be laid before him within six months after he con-

VOL. VIII

H

79 2 BOUNDARY DISPUTES AND TREATIES
sented to act; that the arbiter could ask for further evidence
and for additional surveys. Article VII provided that the
decision of the arbiter should be final and conclusive, and
should be 'carried without reserve, into immediate effect
by Commissioners appointed for that purpose by the con-
tracting parties.'
The convention was ratified at LOlldon on April 2, 1828.
For arbitrator, the contracting parties agreed on the king of
the Netherlands.
The case for Great Britain was apparently prepared by
William H uskisson and Henry IJ. Addington, assisted by Ward
Chipman, Jr. The statement for the United States was
prepared by Albert Gallatin and William Preble. As might
be expected from the ability of those engaged in their prepara-
tion, and as they represented the results of investigations
extending over fifteen years, the statements were masterly
presentations of the respective cases.
Before discussing the sta temen ts of case, it is necessary
to review the acts of state, etc., that affect the title to the
disputed area. To do so we must retrace our steps to the
Alexander grant.
As already stated, James I granted Nova Scotia to Sir
William Alexander, September 10, 1621. The grant was
bounded on the west by the River St Croix from the Bay of
Fundy to the remotest source of its western branch, thence by
an imaginary straight line which extended through the land
or ran northward to the nearest tributary of the 5t Lawrence,
thence easterly along the south shore of the St Lawrence to
Gaspe, etc.
On April 3, 1639, Charles I made a grant to Sir Ferdinando
Gorges, which virtually confirmed a patent given to him in
1622 by the Plymouth Company. It included the territory
between Piscataqua River on the west and 5agadahock 1
River on the east, and extended one hundred and twenty
miles northward. This grant was transferred to the Massa-
chusetts Bay Company, March 13, 1677.
On March 12, 1664, Charles II granted to James, Duke of
York, the area commonly designated on old maps-including
1 The Kennebec River below the Androscoggin.

FROM FUNDY TO JUAN DE FUCA 793
Mitchell's map-Sagadahock. It extended from the St
Croix westward to the Pemaquid and from the sea-coast to the
St Lawrence. As, by the Treaty of Breda, Acadia or Nova
Scotia had been restored to France, the grant was confirmed
by Charles II, June 29, 1667. On the Duke of York's accession
as James II it was merged in the crown.
On October 7, 1691, William and Mary granted the
charter of the Province of Massachusetts Bay. It included
'The Colony of Massachusetts Bay and Colony of New
Plymouth, the Province of l\IIain, The Territory called Accadia
or Nova Scotia,' and the tract of land between Nova Scotia
and Maine. By the Treaty of Ryswick, September 10, 1697,
Nova Scotia was again restored to France.
By the Treaty of Utrecht, March 31, 1713, Nova Scotia
was retroceded to Great Britain, but was not re-annexed to
Massachusetts Bay, being erected into a separate province.
In the commissions to its third governor, Richard Philipps,
issued September I I, 1719, and other governors down to
1761, it is described as the province of Nova Scotia or
Acadie in America.
By the Treaty of Paris, February 10, 1763, Nova
Scotia, Cape Breton and Canada were ceded to Great
Britain.
The royal proclamation, October 7, 1763, described the
new Province of Quebec as bounded on the south by a line
drawn from the south end of Lake Nipissing; 'from whence
the said line, crossing the River St Lawrence and the Lake
Champlain in forty-five degrees north latitude, passes along
the high lands which divide the Rivers that empty themselves
into the said River St Lawrence from those which fall into the
Sea; and also along the North Coast of the Baye de Chaleurs,
and the coast of the Gulph of St Lawrence to Cape Rosiers.'
The Quebec Act, 1774, defined the enlarged province as
'bounded on the south by a line from the Bay of Chaleurs,
along the high lands which divide the rivers that empty
themselves into the River St Lawrence from those which fall
into the Sea, to a point in forty-five degrees of northern
latitude, on the eastern bank of the River Connecticut,
keeping the same latitude directly west,' etc. These were,

794 BOUNDARY DISPUTES AND TREATIES
of course, the boundaries of Quebec at the date of the treaty
of peace, 1783.
As already stated, the commissions of governors of Nova
Scotia did not, prior to 1763, define the boundaries of their
government, the lack of definition being due to the differences
between France and Great Britain respecting the limits of
Acadia or Nova Scotia. On November 21, 1763, six weeks
after the proclamation, a commission was issued to Montagu
Wilmot as governor of Nova Scotia. I t defines the bounds of
his government, in part, as follows:
And to the westward, although our said Province hath
anciently extended, and doth of right extend, as far as
the River Pen tagoet or Penobscot, It shall be bounded
by a line drawn from Cape Sable across the entrance of
the Bay of Fundy to the mouth of the River St Croix;
by the said river to its source, and by a Line drawn due
North, from thence to the Southern Boundary of our
colony of Quebec. .
The foregoing includes the principal acts of state, prior
to the initiation of negotiations for the peace between Great
Britain and the United States, that affect the disputed area.
On August 14, 1779, the Congress of the Confederated
States defined, as a basis of peace, the boundaries claimed by
them. They are defined as follows:
These States are bounded north, by a line to be drawn
from the north - west angle of Nova Scotia along the
highlands which divide those rivers which empty them-
selves into the river St Lawrence, from those which fall
into the Atlantick Ocean, to the north-westernmost head
of Connecticut River; thence down along the middle
of that river to the forty-fifth degree of north latitude;
thence due west in the latitude forty-five degrees north
from the equator to the north-westernmost side of the
River St Lawrence, or Cadaraqui; thence straight to the
south end of Nepissing; and thence straight to the source
of the river Mississippi: west, by a line to be drawn along
the middle of the River Mississippi from its source . . .
and east, by a line to be drawn along the middle of
St John's River from its source to its mouth in the
Bay of Fundy, comprehending all islands within twenty

FROM FUNDY TO JUAN DE FUCA 795
leagues of any part of the shores of the United States,
and lying between lines to be drawn due east from the
points where the aforesaid boundaries between Nova
Scotia on the one part, and East Florida on the other
part, shall respectively touch the Bay of Fundy and
Atlantick Ocean. . . If the line to be drawn from the
mouth of the Lake Nepissing to the head of the Mississippi
cannot be obtained without continuing the war for
that purpose, you are hereby empowered to agree to some
other line between that point and the river Mississippi;
provided the same shall in no part thereof be to the
southward of latitude forty-five degrees north. And
in like manner, if the eastern boundary above described
cannot be obtained, you are hereby empowered to agree,
that the same shall be afterwards adjusted, by Com-
missioners to be duly appointed for that purpose.

It will be noted that:
I. The description of the' highlands' of the northern
boundary is the same as in the proclamation of 1763 and in
the Quebec Act, except that' Atlantick Ocean' is substituted
for 'Sea,' doubtless to make the description more specific.
This identity proves that, in drafting the instructions, this
portion was copied from the Quebec Act.
2. For the first time the term' north-west angle of Nova
Scotia' is used and defined. As this was the initial point of
the northern boundary, it is obvious that it must be the
intersection of the eastern and northern limits, and that the
descriptions of these limits should define its position. Arguing
on this basis, it is evident that Congress, in 1779, placed it in
the highlands at the head of the St John. Moore argues that
it is the branch 1 shown on Mitchell's map as heading in
Lake Medousa,2 but this is inadmissible. This theory was
also advanced by Gallatin, who says, 'If the source of the
Stjohn, designated in Mitchell's Map by the name of Nepissi-
gouche 3 was, as it is believed, the source intended by Congress
and by the American negotiators, the River 5t John from its
source to its mouth, would have been with great propriety

1 Madawaska river of modern maps.
Z Temiscouata Lake of modern maps.
3 A lake near the head of Temiscouata Lake.

796 BOUNDARY DISPUTES AND TREATIES
described as the eastern boundary of the United States.'
To the lack of any evidence whatsoever that Mitchell's map
was used by Congress, there is the additional fact that the
theory presupposes the committee of Congress that drafted
the description to have been composed of men of unusual
and extraordinary stupidity. Finally, on Mitchell's and
other authoritative maps, while this branch is not designated
St John river, the main stream above its confluence is so
designated. While the wording of the description is absolutely
in accordance with the British contention, it is only necessary
to examine the matter, bearing in mind the circumstances
connected with the drafting of it. A critical examination
shows that, so far as this portion of the boundary was con-
cerned, Congress was claiming up to the limits of Nova
Scotia and Quebec as fixed in 1763. The intersection of the
western boundary of Nova Scotia and the. southern boundary
of Quebec was taken as the initial point, and the description
of the southern boundary of Quebec was inserted; the western
and southern boundaries were then drafted. On the east,
the plenipotentiary was to demand the St John, but if it
'cannot be obtained' he was empowered to agree to the
appointment of commissioners who should determine the
boundary, the awarded line to follow the boundary between
Massachusetts Bay and Nova Scotia. In short, he was to
claim to the St John; if this was not obtainable, they were
to accept the St Croix. In proposing to carry the boundary
to the St John, they overlooked the defect thus created. It
must also be borne in mind that, at that date, the unsettled
wilderness of the interior appeared almost valueless compared
with the sea-coast. Again, had they claimed the 5t John to
the due north line and thence northward, they would have
stultified themselves by acknowledging the baselessness of
their claim to the more easterly river.
(a) So far as the writer is aware, this is the first time that
the term 'north-west angle of Nova Scotia' was used in
any official document. As indicated above, it is uninten-
tionally placed at the head of the St John, instead of at the
northern extremity of the due north line from the source
of the St Croix.

FROM FUNDY TO JUAN DE FUCA 797
(b) The error of defining the boundary-line from the
mouth of the St Croix as running C due east' instead of 'due
south' also originated in this document. This error has
been discussed in connection with the Passamaquoddy
islands. 1
(c) Between the St Lawrence and Lake Nipissing, the
commissioner was to demand the southern boundary of
Quebec as defined in the Proclamation of 1763, and thence
due west. If this was unobtainable, he was empowered to
accept the 45th parallel-the prolongation westward of the
northern boundary of New York State.
These instructions have been discussed at length, as, In
1782, they formed the basis of the demands of the American
negotiators. The instructions demanded the St John,
although a special committee of Congress had, on August 16
of that year, reported that the territory designated Sagada-
hock 'cannot be proved to extend to the River St John as
clearly as that of the St Croix.'
During the summer of 1782, negotiations for a treaty
of peace were carried on by Richard Oswald on the part of
Great Britain, and Benjamin Franklin and John Jay on
behalf of the United States. Later, John Adams joined
them as an additional American negotiator. Oswald 2
assented to the demand for the St John River, and the line
from the St Lawrence to Lake Nipissing and thence west
to the Mississippi. The British government refused to
approve these boundaries, and, eventually, the eastern
boundary was settled as described in the treaty of peace. 3
On the north, the Americans offered to accept either the
45th parallel or a line up the St Lawrence, through
the Great Lakes, up 'Long Lake and River' to Lake of the
Woods and due west to the Mississippi. The latter line was
adopted, and the preliminary treaty of peace was signed on

1 Suþra, p. 7 68 .
Z Oswald was described by Franklin as a . pacifical man: Fitzmaurice;
the biographer of Lord Shelburne, says, · Nobody could in any case have been
more unfit both by character and habits for engaging in a diplomatic intrigue
than Oswald, whose simplicity of mind and straightforwardness of character,
struck all who knew him' (Life of William, Earl of Shelburne, iii. p. 185).
3 Supra, p. 752.

798 BOUNDARY DISPUTES AND TREATIES
November 30, 1782. The same article was included in the
definitive treaty, September 3, 1783.
In 1784 New Brunswick was erected into a separate
province. In the commission of its first governor, Thomas
Carleton, August 16, 1784, it is described as bounded on
the west by the St Croix and the due north line, and, on the
north, by the southern boundary of Quebec.
The foregoing is a brief review of the principal acts of
state, etc., prior to the submission to the arbitrator, the
king of the Netherlands. The principal grounds of claim
put forward by the contending parties will be now stated,
with comments.
The' Statements' 1 dealt with the subject under three
general heads, viz. :
(I) North-west angle of Nova Scotia and the Highlands.
(2) North-westernmost head of Connecticut River.
(3) The line along the 45th parallel from the Connecticut
to ' the River Iroquois or Cataraquy '-the St Lawrence.

THE BRITISH STATEMENT
North-west Angle of Nova Scotia.-Great Britain con-
tended that Mars Hill, the first considerable elevation
encountered on the due north line from the source of the
St Croix, and forty miles distant therefrom, was the north-
west angle of Nova Scotia; 'that the highlands intended
by the treaty are those extending from that point to the
Connecticut River; and that the Rivers Penobscot, Kennebec,
and Androscoggin are the rivers falling into the Atlantic
Ocean which are intended by the treaty to be divided from
the rivers which empty themselves into the River St
Lawrence' ; 2 that the highlands claimed by the United
States divided, near the due north line, waters falling into
the River St Lawrence from those falling into the Gulf of
St Lawrence, and, farther west, waters falling into the St

1 'These statements, which were printed, but not published, were bound
up in a volume of which there are only a few copies in existence' (Moore, Tf'eaties
and Arbitrations, i. p. 91).
Z 'First Statements on the part of Great Britain' (Moore, Treaties and
Arbitrations, i. p. 107)'

FROM FUNDY TO JUAN DE FUCA 799
Lawrence from those flowing through the St John River
into the Bay of Fundy, while the' highlands' of the treaty
divided waters flowing into the St Lawrence from those
falling into the Atlantic Ocean. According to the British
statement, this was 'the cardinal point of the whole of
this branch of difference,' inasmuch as the treaty contra-
distinguished the Bay of Fundy from the Atlantic Ocean.
Thus, the St Croix was defined as the extreme eastern limit
of the United States, and the highlands were those that
divided, on the south, rivers that fell into the Atlantic
between the Connecticut and the said eastern limit-the
St Croix. Further ground for this argument was obtained
from the negotiations for the treaty of peace. The Americans
first demanded the St John. \Vhen this was refused by Great
Britain they accepted the St Croix; consequently the new,
and contracted, line must have lain within the line of that
river. Therefore, at no point east of the source of the St
John did the highlands claimed by the United States meet
the requirements of the treaty.
Further support was obtained from the grant of the
seigniory of Madawaska. In 1683, eight years prior to the
charter of Massachusetts Bay, this fief was granted by the
then governor of New France (Canada). From the date
of the grant till 1763, when Canada was ceded to Great
Britain, it was under the jurisdiction of New France. Since
1760 the British government had been in undisturbed pos-
session. Along the St John River, between the due north
line and the mouth of the St Francis, there was a fringe of
settlements on each bank of the river. This, usually referred
to as the Madawaska settlement, and which should not be
confounded with the Madawaska seigniory, was settled by
Acadians, who had originally occupied territory near the
site of the present city of Fredericton, N .B. When the
British extended their settlements up the St John, these
Acadians removed to the St John near the confluence of the
Madawaska. Grants of land had been made to them, and
jurisdiction exercised by the Province of New Brunswick
since 1783. The territory was traversed by a road, the
main highway from the Maritime Provinces to Quebec.

800 BOUNDARY DISPUTES AND TREATIES

Though comparatively modern, the settlement was, unques-
tionably, a de facto possession of Great Britain. Prior to
1820 no mention was made of it in the United States census,
and even then it was stated that the inhabitants C supposed
they were in Canada.'
The Highlands. - Great Britain contended that the
term C highlands' employed in the treaty implied not a
mere watershed, but a mountainous tract of country; that,
while not necessary that they should present an absolutely
unbroken ridge, they should have a generally elevated and
moun tainous character; tha t the highlands from Mars
Hill westward conformed to this definition, and that not
one-third of the United States line followed country entitled
to the appellation of highlands.
In brief Great Britain contended:
(I) That in the treaty of 1783 the Bay of Fundy was
contra-distinguished from the Atlantic Ocean; that the
St John River was therefore not to be included in the rivers
, which fall into the Atlantic Ocean'; and that, consequently,
the highlands must lie to the southward of that river.
(2) That in 1782, plenipotentiaries for the United States
claimed the St John River from the mouth to the source as
the eastern boundary of Massachusetts Bay; that, later,
they agreed to a material contraction of this line.
(3) That within the territory claimed by the United
States, France, and Great Britain as the successor in title
to France, had exercised jurisdiction since 1683.
(4) That from the treaty of peace in 1783 to the Treaty
of Ghent, 1814, Great Britain had exercised continuous and
unchallenged jurisdiction in the Madawaska, Aroostook and
other settlements in the disputed territory.
(5) That the line claimed by Great Britain followed
, highlands' that conformed to the requirements of the treaty,
and that the highlands claimed by the United States did
not so conform, either in position or in character.
'North-westernmost Head of Connecticut River.'-Great
Britain claimed that this point was to be found in the most
north-westerly spring measuring from the highest point on
the river bearing the name' Connecticut.' Near the 45th

FROM FUNDY TO JUAN DE FUCA 801
parallel, two considerable branches, known as Hall
Stream and Indian River, fall into the Connecticut. The
latter, however, retains its name up to an expansion known
as Connecticut Lake. The British statement, therefore,
contended that the most north-westerly spring in the drainage
area above Connecticut Lake was the desired point. The
statement also pointed out that, while the American agent,
under Article V of the Treaty of Ghent, had contended for
Hall Stream, the American commissioner had claimed
Indian River. The government of the United States had
adopted the claim for Hall Stream, and had also tlaimed
the e old line' for the 45th parallel. Inasmuch as the 'old
line' intersected Hall Stream above its junction with the
Connecticut River, this boundary could never strike the
real Connecticut river at all.
e Forty-fifth Degree of North Latitude.'-By the treaty
of 1783, the boundary followed due west on the e forty-fifth
degree of north latitude' till it intersected the St Lawrence.
The surveys of 1818 showed that the e Valentine and Collins'
or e Old' line was, in places, in error; and that at Rouses
Point the fortifications erected by the United States were
on British territory. The British statement claimed that the
treaty required that the line should follow the 45th parallel
of north latitude as determined by accurate methods of
survey.

STATEMENT ON THE PART OF THE UNITED STATES
The statement of the United States dealt with the subject
under the same heads as the British statement.
The e Highlands.'-Respecting the highlands, it was
declared that they constituted the fundamental point.
The term e highlands' was never used in the treaty, except
when connected with the words e which divide the rivers,'
and, therefore, this property of dividing designated rivers
affixed to the term a definite and precise meaning; united
with that adjunct, the word was judiciously selected, as
it was applicable to any lands sufficiently elevated to
form a watershed. The term' highlands which divide rivers'

802 BOUNDARY DISPUTES AND TREATIES

and C height of land' were synonymous. Even so late as
1817 the character of the country was unknown, and the
United States line was still only partially examined. The
elevated or mountainous character of either line was un-
important and irrelevant to the questions at issue.
North-west Angle of Nova Scotia.-The United States
statement claimed that there were only two places on the
'due north' line which divided rivers recognized by the
treaty. About ninety-seven miles from the source of the
St Croix, the line reached a ridge or C highland' which divided
waters that fell into the St John from waters that flowed
through the Restigouche into the Gulf of St Lawrence. At
about one hundred and forty-three miles from the source
of the St Croix, it reached the & highlands' that divide the
waters of the Restigouche from the waters of the Metis,
a tributary of the St Lawrence. There was no possible
choice except between those two places. Since there is no
other point on the due north line which divides any other
waters but such as empty themselves into the same river,
the north-west angle must, of necessity, be found at one or
the other.
The American statement argued that the selection
between these two dividing 'highlands' depended upon
what the negotiators of 1783 meant by rivers that fall into
the St Lawrence, and by rivers that fall into the Atlantic.
The treaty recognized only two classes of rivers. The first
class included only tributaries of a river specifically designated,
thus explicitly excluding any other rivers. All other streams
intersected by the line were considered as falling into the
Atlantic Ocean. This conclusion perfectly accorded with the
accepted meaning of the term 'Atlantic Ocean.' In its
general sense it embraced all the bays, gulfs and inlets,
though distinguished by different names, which were formed
by the shores of Europe and North America. In the case
under consideration, every river, not emptying itself into the
St Lawrence, and intended to be divided which was, or could
have been, contemplated by the negotiators of 1783 as falling
into the Atlantic, fell into it through some gulf or bay,
known and, in Mitchell's map, specifically designated; that

FROM FUNDY TO JUAN DE FUCA 803
is to say: the Restigouche through Chaleur Bay and Gulf
of St Lawrence, the St John through the Bay of Fundy, the
St Croix through Passamaquoddy Bay and Bay of Fundy, etc.
So that if the rivers which fell into the Atlantic through a
bay, gulf or inlet known by a distinct name, were not, under
the treaty of 1783, rivers falling into the Atlantic Ocean,
there was n()t a single river intended to be divided to which
the description applied. The north-west angle was, there-
fore, at the point where the due north line intersected the
watershed between the Restigouche and Metis.
From 1763 to 1782 the northern boundary of Nova Scotia,
as defined in commissions to the governors of that province,
coincided with the southern boundary of Quebec to the
'western extremity of the Bay des Chaleurs.' From 1763
to 1774, in the commissions to governors of Quebec, the
southern boundary of that province was described, in con-
formity with the proclamation of 1763, as a line which
, passes along the highlands which divide the rivers that empty
themselves into the said River St Lawrence from those
which fall into the sea, and also along the north coast of the
Bay des Chaleurs.' The 'highlands' of the treaty were
identical with the 'highlands' of the proclamation of 1763
and of the Quebec Act, 1774, and the term' Atlantic Ocean,'
as used in that clause of the treaty, was synonymous with the
word' Sea' as used in previous acts of the British government.
Nineteen maps, published between 1763 and 1783, were
annexed to the United States statement. In some the
Penobscot was indicated as the western boundary; in others,
where the St Croix was indicated as the boundary, the name
was sometimes applied to the present Cobscook, to the
Magaguadavic and to the Schoodic. The course of the line
from the source of the St Croix was generally due north.
The line, in most of the maps, crossed no other waters
but the St John and its tributaries; in others, it crossed the
Restigouche.
But, in every instance . . . that line crosses the
River St John and terminates at the Highlands in which
the rivers that fall into the River St Lawrence have
their sources; in every instance, the north -west angle of

80 4 BOUNDARY DISPUTES AND TREATIES
Nova Scotia is laid down on those Highlands and where
the north line terminates; in every instance, the High-
lands, from that point to the Connecticut River, divide
the rivers that fall into the River St Lawrence, from the
tributary streams of the River St John, and from the
other rivers that fall into the Atlantic Ocean. l

Four maps published in London during the interval
between the signing of the preliminary treaty, November
17 82 , and of the definitive treaty, September 1783, showed
the same lines.
Respecting the line from Mars Hill, the United States
statement said: that so far from being a highland which
divided St Lawrence waters from Atlantic waters, it was one
hundred miles distant from any tributaries of the St Lawrence
and, from Mars Hill to the nearest source of the Penobscot,
it only divided two minor tributaries of the St John; that
no highlands extended eastward from it to form the northern
boundary of Nova Scotia; that, for one hundred and fifteen
miles in a straight line-from Mars Hill to Metjermette
Portage-it nowhere divided waters falling into the St
Lawrence, and that only for some eighty miles, between
Metjermette Portage and the Connecticut, did it follow the
highlands of the treaty.
North-westernmost Head of Connecticut River.-The United
States statement alleged that the geography of the upper
Connecticut was imperfectly known in 1783. Surveys under
Article V of the Treaty of Ghent showed four branches with
their sources in the highlands, viz., Hall, Indian, Perry and
Main Connecticut. From its peculiar characteristic, the last
branch might be called Lake Stream. In 1783, the river
formed by the j unction of Indian and Perry and Lake Streams
was known as the Connecticut River. The mouth of Hall
Stream was about two miles below this junction. It was a
quarter of a mile south of the' old line,' but half a mile north
of the 45th parallel, as determined by later and more accurate
observations. The source of the middle branch of Hall
Stream was the north-westernmost head of the branches

1 Gallatin, Right oj the United States to the North-eastern Boundary claimed
by Them, p. 78.

FROM FUNDY TO JUAN DE FUCA 805
above-mentioned, and it had accordingly been claimed by the
United States as the north-westernmost head of the Con-
necticut. On the other hand, the United States commissioner,
under Article V of the Treaty of Ghent, had conceded that
the boundary-line, where it met the 45th parallel, must be
in the middle of the stream, which was, prior to the treaty of
1783, recognized as the main Connecticut River. It had been
shown that this argument was not conclusive, but, should it
prevail, the source of Indian Stream must be considered the
north-westernmost head of Connecticut River contemplated
by the treaty.
Forty-fifth Parallel of North Latitude. - Respecting the
boundary between the Connecticut River and the St Law-
rence, the United States statement said that by an order-
in-council of July 20, 1764, the Connecticut River, between
the 45th parallel and the northern boundary of Massachusetts
Bay, was declared to be the boundary between New York and
New Hampshire. On August 12, 1768, this parallel was
confirmed as the boundary between N ew York and Quebec.
It had been surveyed between 1771 and 1774. It had ever
since been the basis of jurisdiction and grants of land, and
in 1783 it was established and in full force. Though the
Treaty of Ghent declared that the boundary between the
St Croix and the St Lawrence' had not yet been surveyed,'
it was submitted whether it was not the true intention of
that treaty that the boundary should be surveyed only where
not already run, and marked, and whether the 'old line'
was not excepted from the provision directing the survey of
the boundary.

SECOND BRITISH STATEMENT
The second or definitive British statement, in the main,
presented a supplementary view of the British case.
In order to determine the true situation of the point of
departure, said the second British statement, the highlands
intended by the treaty must first be determined. Since in 1783
a large part of the frontier territory was practically unex-
plored, it was impossible for the negotiators of the treaty to

806 BOUNDARY DISPUTES AND TREATIES

describe the boundary with accuracy and precision, but it
was not impossible to show their intent. They intended
(I) to define exclusively the limits of the United States;
(2) to define them peremptorily; (3) to define them in such
a manner as to promote the 'reciprocal advantage and
mutual convenience' of both countries. Such being the
animating motives, it was inconceiv:able that the British
government could have intended to carry the boundary-line
north of the St John, thus losing not only a considerable
area, but surrendering the direct communication between
Nova Scotia and Canada. With respect to the question of
highlands, it sufficed to quote, as to Mars Hill, the statement
of the American surveyor that it was · about 1000 feet above
the general level.' The question of the north-west angle was
subordinate to that of the highlands, and its position was
unknown in 1783. According to the United States, the
charter of Massachusetts Bay would place it on the right
bank of the St Lawrence, and the proclamation of 1763 and
the Quebec Act would place it, in certain highlands, south of
the St Lawrence, while the proposal of the United States
negotiators of 1782 fixed it at the source of the St John.
So far as ancient provincial boundaries were concerned,
said the second British statement, the United States had
laboured to prove the identity of the due north line from the
St Croix to the Metis River with the boundaries between the
British provinces of Nova Scotia, Quebec and Massachusetts
Bay, but this was a mere matter of conjecture. If the
negotia tors had in tended to adopt an existing line, they
might have defined it as a due north line from the St Croix
to the southern boundary of Quebec. Instead of adhering
to ancient boundaries, which might have prolonged the
negotiations indefinitely, they adopted a new line.
Respecting the maps submitted by the United States,
the second British statement contended (I) that these maps
were grossly in error, inasmuch as they indicated a line of
visible elevations, later found to be non-existent; (2) that,
in some of them, the line of visible elevation intersected
waters of the St John, or of the St Lawrence, or both, thus
disproving any intention to indicate it as dividing those

FROM FUNDY TO JUAN DE FUCA 807
waters; (3) that the agreement provided that no maps but
l\litchell's and map' A. were to be received as authority;
(4) that maps were copied one from another, so that coinci-
dence did not signify additional evidence; and (5) that the
selection by the negotiators of Mitchell's map, published
prior to the proclamation of 1763, materially contributed to
show that the line indicated on the later maps was not the
in tended boundary.
The second British statement laid great stress on the
injury which would be occasioned to the British provinces
by allowing the American claim.
Respecting the 45th parallel, the second British statement
said that while the old line was considered accurate, in 1774
both governments had, prior to the Treaty of Ghent, received
information impugning its accuracy. The United States
had not made any objection to its rectification until it was
discovered that it would be injurious to American interests,
principally by the loss of the Rouses Point fortifications.

SECOND UNITED STATES STATEMENT
The second United States statement declared that the
question at issue was whether the highlands of the treaty
actually need not, as the British contention implied, for three-
fifths of their extent divide the rivers that were specified.
To support this extraordinary pretension, Great Britain had
appealed from the letter of the treaty to what was improperly
called its spirit. Even admitting that there was some founda-
tion f(Jr her position in regard to the terms' Atlantic Ocean'
and 'highlands,' the line claimed by her would still fail to meet
the requirements of the treaty.
The British statement had declared that, in 1782 and 1783,
the position of the north-west angle of Nova Scotia was
unknown, and that the negotiators had adopted boundaries
intended to give each government possession of the basins
of all rivers having their mouths within its territory. The
second United States statement contended that there were,
at the time of the treaty, certain and acknowledged boundaries
between Canada and Nova Scotia, and it was supposed that
VOL. VIII I

808 BOUNDARY DISPUTES AND TREATIES

the ascertainment of the position of the' north-west angle'
was a mere operation of surveying. The alleged intention of
the negotiators was disproved by the decisive fact that it
was not adhered to with respect to any other part of the
boundary; thus, along the 45th parallel, it intersected lakes
and streams, leaving the upper waters in one country and the
lower waters in the other. All the inconveniences with
respect to navigation, or to a division, between the two
powers, ascribed by Great Britain to the boundary, so far as
it affected the St John, applied with greater force to the St
Lawrence and its basin. And, on the principle she assumed,
she might, with equal consistence and justice, have claimed all
the territory on the south of the St Lawrence and Great
Lakes.
The term C Atlantic Ocean.'-As to the term 'Atlantic
Ocean,' the second United States statement argued that the
words' rivers which fall into the Atlantic Ocean' necessarily
embraced rivers falling into its inlets, the Bay of Fundy
and the Gulf of St Lawrence, according to geographical
usage, to common language and to official documents. The
description of the St Croix, as having its mouth in the Bay
of Fundy, had been taken from the grant to Sir William
Alexander and the commissions to the governors of Nova
Scotia, and various British documents were cited to prove
that the term · A tlan tic Ocean' had been used so as to
include Massachusetts Bay, Bay of Fundy, Gulf of St
Lawrence and other bodies of water. As to the intent of
the negotiators, it was contended that the original proposi-
tion of the American commissioners proved conclusively
that, though the St John was stated to have its mouth in
the Bay of Fundy, it was classed as one of the rivers falling
into the Atlantic, inasmuch as the northern boundary
divided St Lawrence waters from the rivers 'which fall
in to the A dan tic Ocean,' and the eastern boundary followed
the St John from its mouth to its source.
The term' Highlands.'-Respecting the term' highlands,'
the second United States statement contended that the
name · height of land ' was not peculiarly applicable to the
highlands between the Connecticut and Kennebec and the

FROM FUNDY TO JUAN DE FUCA 80g
St Lawrence; and that the only semblance of ground for
the supposition was its use by Pownall; and Pownall,
Mackenzie and others were cited to prove that' lands height,'
C height of land,' C height of the land' and C highlands' were
used synonymously.
The Madawaska Fief and Settlement.-Respecting the fief
of Madawaska, the second United States statement denied
that a grant by the governor of New France could affect
the limits of Massachusetts Bay, and contended that neither
England nor France, in its grants of land, paid the slightest
respect to the claims or rights of the other. It maintained
that no proofs had been adduced that the British purchasers
of the fief had ever performed any of the conditions incumbent
upon the holder under feudal tenure, or that acts of juris-
diction had been performed therein and that some obscure
transactions had occurred, but that every one included not
only the fief of Madawaska, but also other lands situated
within the acknowledged boundaries of the British Province
of Quebec, and that some of the deeds included Foucault
seigniory, known to be situated without those boundaries.
Respecting the Madawaska settlement, the American
definitive statement claimed that it was not evidence that
New Brunswick, prior to the Treaty of Ghent, had exercised
jurisdiction in this area. It was settled by Acadians who
had moved there when British settlements were extended
to the vicinity of their original settlement on the Lower
St John. At that date the position of the due north line
was unknown, and it was therefore not until the survey of
1817-18 that exercise of jurisdiction by New Brunswick
was protested. The British agent under the Jay Treaty
admitted that the due north line crossed the 5t John, but,
later, as agent under Article v of the Treaty of Ghent, endea-
voured to explain it away. No claim to the territory had
been preferred by Great Britain until the Treaty of Ghent,
when her commissioners proposed a ' revision of the boundary-
line' which would 'secure a direct communication between
Quebec and Halifax.'

810 BOUNDARY DISPUTES AND TREATIES

AWARD OF THE KING OF THE NETHERLANDS
On January 10, 1831, the king of the Netherlands ren-
dered his award. He decided that the term C highlands r
applied to land which, without being hilly, divided waters
flowing in different directions; that the boundaries through
the Great Lakes, as defined in the treaty of 1783, departed
from the ancient provincial boundaries; that the Treaty
of Ghent stipulated for a new examination, which could not
be applicable to an historical or administrative boundary;
that, therefore, the ancient delimitation of the British pro-
vinces did not, either, form the basis of a decision; that
the arguments deduced from the rights of sovereignty
exercised over the fief of Madawaska and over the Mada-
waska settlement could not decide the question, for the reason
that those two settlements embraced only a portion of the
territory in dispute; that neither the 'highlands' line
claimed by Great Britain nor that claimed by the United
States fulfilled the requirements of the treaty of 1783
respecting the division of the rivers; and that the evidence
adduced on either side could not be considered as suffi-
ciently preponderating to determine a preference in favour
of either one of the two lines respectively claimed. He
therefore recommended a line of convenience.
The arbitrator's line coincided with the present boundary
from the source of the St Croix to the St Francis. It followed
the latter to the source of its south-westernmost branch,
thence due west to the southern watershed of the St Lawrence
-the line claimed by the United States-thence following
the United States line to the Metjermette Portage, where
it united with the British line.
Respecting the north-westernmost head of the Con-
necticut River, he decided in favour of the British claim.
Respecting the 45th parallel line, he adopted the British
contention, except that he recommended that the Rouses
Point fortifications and a radius of one kilometre should
remain in the possession of the United States.
Out of the total area of about 12,000 square miles, about

FROM FUNDY TO JUAN DE FUCA 811
4100 square miles were awarded to Great Britain and 7900
to the United States. On January 12, 1831, Mr Preble,
United States minister at The Hague, though without
instructions, protested the award on the ground that the
arbitrator had exceeded his powers. The question where
the boundary should run, said Preble, if the treaty of 1783
could not be executed, was one which, he believed, the
United States would submit to no sovereign. When the
arbitrator proceeded to say that it would be suitable to draw
an arbitrary compromise line, thus abandoning the boun-
daries of the treaty and substituting for them a different
line, Preble said it became his duty to enter a protest, on
the ground that this decision constituted a 'departure from
the powers delegated by the High Interested Parties,'
and that the rights and interests of the United States might
not be compromised by any presumed acquiescence on the
part of its minister.
The British government accepted the award, but notified
the United States government that it was willing to consider
modifications of the line for mutual cOllyenience. The
United States government hesitated. President Jackson
was inclined to accept the award,! but, doubtless, owing to
the opposition of Maine and Massachusetts, submitted it
to the Senate. The Senate withheld their assent, and recom-
mended 'the President to open a new negotiation. . . for
ascertaining the true boundary.' The British government
offered to avail themselves of any chance of bringing the
dispute to a satisfactory settlement, but declined to connect
with it the question of the navigation of the St John. Mean-
while the United States government endeavoured to arrange
a settlement with Maine and Massachusetts. In return
for a surrender of her claim to territory north of the St John,
Maine was to be indemnified by lands in adjoining territory
and in Michigan. The negotiations, however, came to
naught.
On April 30, 1833, the Hon. E. Livingston, United
States secretary of state, wrote the British minister at

1 ' He afterwards regretted that he had not done so' (l\loorc, n'eaties and
Arbitrations, i. p. 138).

812 BOUNDARY DISPUTES AND TREATIES

vVashington, proposing 'a new commission, consisting of
an equal number of commissioners, with an umpire selected
by some friendly Sovereign . . . or by a commission entirely
composed of such men [experts], so selected, to be attended
in the survey and view of the country, by agents appointed
by the parties.' He further proposed that, if the due north
line would not reach the highlands of the treaty, 'then a
direct line. . . whatever may be its direction to such
highlands, ought to be adopted.' The British government
feared that this might pledge them to drawing the line to
the eastward, but Livingston explained that his proposed line
C would be carried to the left of the due north line, or west-
ward . . . upon a supposition that at a point some fifty
miles. . . westward' of the head of the 5t Francis River,
highlands would be found that divided rivers falling into
the St Lawrence from rivers falling into the Atlantic. The
British government, however, had no hope of reaching a
solution of the matter in this way. Sir C. R. Vaughan,
in a dispatch to Lord Palmerston, June 4, 1833, pointed out
that, as the negotiations with Maine in the previous year
had come to naught, the constitutional difficulties still
remained; that, when Livingston pointed out his imaginary
line on the map, it might have been implied that' it would
result in a more advantageous boundary to Great Britain,
than that offered by the due north line,' but that a later
conversation with MCLane-Livingston's successor--with
a better map before them, indicated an intention to direct
the commission to explore in search of the highlands, thus,
possibly, placing Great Britain in a worse position than
by the arbitrator's award; that it was not probable' the
Americans will ever be brought to consent' to drawing the
line to the sources of the Chaudière; that insurmountable
constitutional difficulties' restrict the President from treating
for a boundary more satisfactory to both parties than the one
suggested by the King of the Netherlands'; and that it
was hopeless to entertain the offer to negotiate, 'restricted
as the American govern men t is, to an inadmissible basis.'
Further discussion demonstrated the impossibility of a
settlement that would be even as favourable to the interests

FROl\I FUNDY TO JUAN DE FUCA 813
of Great Britain as the decision of the king of the Nether-
lands. In October 1835 the British government declared that
it was 'fully and entirely released' from its conditional
offer to accept the award of the arbitrator, and proposed
as the boundary the St John River from the due north
line to its source. The President made a counter-proposal
of the St John from its mouth to its source, provided Maine
would consent. Mr Bankhead, British chargé at Washington,
, stated the impossibility, on the part of the British Govern-
ment, of agreeing to such a proposition.'
These negotiations have been referred to in detail, because
it has been popularly understood that, on this occasion,
Great Britain lost an opportunity to secure a very favourable
settlement. An examination of all the correspondence,
however, demonstrates the fallacy of this impression. At
no time was there any possibility of her securing even as
favourable a settlement as the award' of the king of the
Netherlands. If the decision were more favourable to the
United States than the award had been, the United States
Senate 'inight accept it; if less favourable, its rejection was
certain. The Senate could not, and would not, coerce Maine,
and Maine would not give the federal government any con-
siderable latitude as a basis for a compromise.
President Jackson's endeavours to effect a settlement
before the close of his administration were unsuccessful, and
the thread of negotiations was taken up by his successor,
President Van Buren. Another attempt was made to do
what Great Britain had insisted was a necessary preliminary
to negotiations, viz., induce Maine to concede the principle of
a conventional line as a basis of settlement. The legislature
of Maine, impracticable as ever, refused to assent to any
concessions, and resolved that the United States should,
either alone, or in conjunction with Great Britain, survey
and mark the boundary-line.
In 1839 Featherstonhaugh and Mudge surveyed a part
of the disputed area for the British government. In their
report they took the ground that previous lines were erroneous,
and proposed a new one. They followed the description of
the western boundary of Nova Scotia as given in the grant to

814 BOUNDARY DISPUTES AND TREATIES
Sir William Alexander. As already stated, this line foIIowed
the St Croix from its mouth to the source of its west branch,
thence by a straight line to the nearest tributary of the St
Lawrence. ' Such a course leads directly to the east branches
of the Chaudière, which are in the 46th parallel of north
latitude, and on the ancient confines of Acadia.' They said
that the Green Mountains divided in latitude 44 0 N, the
southern branch proceeding from the sources of the Connecti-
cut river in an east-north-easterly direction to Chaleur Bay
and passing south of the Aroostook, upper Tobique and
Restigouche. This, they claimed, was the' axis of maximum
elevation' and constituted the' true Highlands intended by
the 2nd article of the treaty of 1783.' The line from the
St Croix, however, intersected the' highlands' line claimed
by Great Britain before it reached the highlands dividing the
waters of the River St Lawrence from those that 'fall into
the A tlan tic.'
In 1840-42 the United States expended $100,000 in
surveys and explorations in the disputed territory. The
report of their surveyors challenged the 'maximum axis of
elevation' of Featherstonhaugh and Mudge. It was stated
to be represented by eminences separated one from another
by spaces of low country so extended as to preclude the idea
of a continuous range of highlands.

FRONTIER STRIFE
While negotiations proceeded, the authorities of Maine
and New Brunswick and settlers in the disputed area had
clashed on several occasions. In 1831 certain persons who
attempted to hold an election under the laws of Maine, in
the Madawaska settlement, were arrested by the New Bruns-
wick authorities. Though convicted, they were afterwards
released, on disavowal of their acts by the Maine authorities.
In 1836 a Canadian justice of the peace was arrested by
New Hampshire militia for attempting to execute process
in the Indian Stream territory. In 1837 an officer taking
the census for Maine in the Madawaska settlement was
arrested by New Brunswick authorities.

FROl\f FUNDY TO JUAN DE FUCA Srs
In 1838-39 the so-called · Restook \Var ' broke out. An
agent sent by the State of Maine to arrest British subjects
who were cutting timber in the Aroostook region was arrested
by the authorities of New Brunswick. 1YIaine raised an
armed 'civil posse' and erected · fortifications' in the
territory.1 The legislature of Maine appropriated $800,000
for military operations; Congress authorized the president
to call out the militia and to accept 50,000 volunteers, and
voted $10,000,000 for purposes of war. The president,
however, dispatched General Scott to arrange a 11lodus vivendi
with the British authorities. It was agreed that Great
Britain should remain in possession of one part of the territory
and Maine in possession of the other, but that such possession
should not derogate from the claims of the non-possessing
party, and that the military forces of the State of Maine should
be withdrawn. The British authorities carried out the
agreement, but the State of Maine sent, under the pretence
that it was a civil posse, an armed force of 300 men, who
erected a blockhouse on the St John River.
In March 1841 Daniel Webster succeeded John Forsyth
as United States secretary of state. He had from the first
viewed the chances of a settlement as hopeless unless there
was an entire change in the manner of proceeding. During
the summer of 1841 he informed Fox, British minister at
\Vashington, that the United States government was willing
to compromise the dispute by agreeing to a conventional line.
This offer was communicated to the British government, and
Lord Ashburton was sent with full powers to settle all disputes
between the two countries. Ashburton was a son of Sir
Francis Baring, the founder of the noted banking firm,
Baring Bros. and Co. He had always been friendly to the
United States and had married a daughter of Bingham of
Philadel phia.
Lord Ashburton arrived in Washington on April 4, 1842.
In the preceding month the legislature of Massachusetts had
adopted resolutions declaring that the boundary could be
easily defined in accordance with the treaty of 1783, and that

1 \Vebster wrote: C There was Fort Fairfield, Fort Kent, and I know not what
other fortresses, all memorable in history' (Webster's Works, v. 93).

816 BOUNDARY DISPUTES AND TREATIES

110 compromise could be made without the assent of Maine
and Massachusetts. The legislature of Maine also adopted
resolutions that did not form a hopeful basis for negotiations.
In response to an invitation from Webster both states sent
commissioners to represent them in the negotiations at
Washington. On June 21 Lord Ashburton offered to accept
as the boundary the St John River from the due north line
to one of its sources, except that the line should be so drawn
as to include the Madawaska settlements on the south bank
of the 5t John. He offered to concede the strip between the
, old line' and the true 45th parallel and also the unrestricted
privilege of floating timber down the St John River.! The
Maine commissioners replied that, to permit free communica-
tion between the British colonies, they were willing to con-
cede the St John River to three miles above the mouth of the
Madawaska; thence, about west-north-west to the southern
watershed of the St Lawrence. On July II Lord Ashburton
replied that this line was wholly inadmissible, and suggested
to Webster that the negotiations' would have a better chance
of success by conference than by correspondence.'
Three months had passed in fruitless negotiations, and it
was evident that, if a settlement was to be arrived at, Lord
Ashburton's suggestion must be adopted. Ashburton and
Webster, therefore, abandoned written communications and
adopted the plan of conferences. On July 29 Lord Ashburton
signified his assent to the agreement as set forth in Webster's
l
tter of the 27th-' being the final result of many conferences
we have had on this subject.' It provided that the boundary
should follow, from the source of the St Croix to the St John
River, the due north line as surveyed and marked in 1817-18 ;
thence up the deepest channel of the St John to the mouth of
the St Francis River; thence up the St Francis to the outlet
of Lake Pohengamook; thence south-westerly in a straight
line to a point on the north-west branch of the River St John,

1 On June 28 \Vebster wrote Edward Everett, United States minister at
London, that' our movement for the last ten days, if any has been made, has been
rather backwàrd. The boundary business is by no means in a highly promising
state-so many difficulties arise, not only between us and England, but between
us and the commissioners, and the commissioners of the two States themselves ·
(Curtis, Life of Daniel Webster', ii. p. 105).

FROM FUNDY TO JUAN DE FUCA 817
which point should be ten miles distant from the main branch
of the St John in a straight line and in the nearest direction ;
but, if the said point should be found to be less than seven
miles from the 5t Lawrence watershed, then the said point
should be made to recede downstream to a point seven miles
in a straight line from the watershed; thence in a straight
line in a course about s 8 0 w to the point where the parallel
of 460 25' intersects the south-west branch of the St John;
thence southerJy by this branch to the source thereof in the
highlands at the Metjermette portage; thence along these
highlands to the head of Hall Stream; thence down the
Iniddle of this stream till it intersected the C o
d line' surveyed
by V alen tine and Collins; thence west along this line to the
River St Lawrence.
On July IS Webster communicated these terms to the
commissioners for Maine and Massachusetts, as the best
terms that could be obtained. He stated that the displited
area contained 12,027 square miles. Of this Great Britain
would receive 5012 square miles and the United States
7015 square miles-893 square miles less than was awarded
by the King of the Netherlands-but he pointed out that
the seven-twelfths awarded to the United States was' equal
in value to four-fifths of the whole.' In addition, Great
Britain was willing to concede to the United States the right
to float timber down the St John River, free of all discriminat-
ing tolls, the same right being conceded to British subjects
on the upper St John, with reference to timber cut in the
portion of the upper St John basin awarded to Great
Britain.
This arrangement conceded to the United States the
territory at the head of the Connecticut, 145 square miles,
and the narrow strip between the 45th parallel and the 'old
line,' 62 square miles. These territorial concessions, how-
ever, enured only to the benefit of New Hampshire, Vermont
and New York. To compensate Maine and Massachusetts
\Vebster proposed that the United States should pay them
$250,000, to be equally divided between them, and should
reimburse them for expenditures for surveys of the boundary
and for the civil posse. To these terms, with the addition of

818 BOUNDARY DISPUTES AND TREATIES

$50,000 to the compensation, the commissioners of the two
states finally assented. The treaty was signed at Wash-
ington on August 9, 1842.
Article I defined the boundary in accordance with the
agreement between Lord Ashburton and Daniel Webster.
Article III provided for mutual right to float timber down
the St John River. ,
Other articles validated all grants of land made by either
government in the disputed areas; and provided for the
surveying and marking of the whole line; for the distribution
of the · disputed territory fund,' consisting of timber dues
received by New Brunswick on account of timber cut in the
disputed area, and for the payment to Maine and Massachu-
setts of $300,000 in equal moieties. With regard to the
inclusion of the · money clause,' Lord Ashburton replied
that he could not · with any propriety be a party' to an
agreement of this nature. Webster, however, satisfied Lord
Ashbllrton by agreeing that formal diplomatic notes should
be exchanged, explaining that this article contained nothing
that could be construed as placing responsibility upon
Great Britain.
In both countries the treaty was severely criticized. In
the United States Senate, Senator Benton accused Webster
of · victimizing that deserted and doomed State,' Maine.
Respecting Lord Ashburton.s claim for the boundary,
Senator Buchanan declared it was a · bold and barefaced
pretension. '
In Great Britain Lord Palmerston styled it · Lord Ash-
burton's capitulation'; he recommended that he receive
a new title, · Earl Surrender,' and stigmatized him as · a
most unfit person for the mission upon which he had been
sen t. ·
The treaty was ratified by the United States Senate,
August 20, and was duly carried into effect. In 1843
Colonel J. B. Bucknall Estcourt and Albert Smith were
appointed British and American commissioners respectively,
to survey and monument the boundary. On June 28, 1847,
they signed their final report at \Vashington.

FROM FUNDY TO JUAN DE FUCA 819

· BATTLE OF THE MAPS'
Before discussing the advantages or disadvantages that
accrued to Great Britain by this settlement, commonly
known as the · Ashburton Treaty,' it is necessary to review
the wordy warfare called the · Battle of the Maps.'
(I) \Vhat is commonly known as the · Red Line' map.
\Vhen the treaty was under discussion \Vebster submitted
a copy of this map to the Senate. Though no maps were
attached to the treaties of 1782 and 1783, the negotiators
of the treaty of peace had before them a copy of l\1itchell's
map of 1755, and it was assumed during all later negotia-
tions that, if found, it would be conclusive. In the winter
of 1840-41 Jared Sparks, an American, in making some
researches in the archives of the Affaires Étrangères at Paris,
found a letter of December 6, 1782, from Benjamin Franklin
to the Comte de Vergennes, the French minister of Foreign
Affairs. It was as follows :
· I have the honour of returning herewith the map your
excellency sent me yesterday. I have marked with a strong
red line, according to your desire, the limits of the United
States, as settled by the preliminaries between the British
and American plenipotentiaries.'
Sparks immediately made a search among the 60,000
maps in the archives, and found a map of North America
by d'Anville, 1746, with the boundary marked as indicated
by Franklin, drawn in red, apparently with a hair-pencil
or a very blunt pen. The map was about eighteen inches
square and the line was drawn completely round the United
States. Near the 45th parallel it was so drawn as to give
the United States more than the treaty gave, but in Maine
it passed south of the St John River and conceded to Great
Britain rather more than her claim. On February IS, 1842,
Sparks, who seems to have kept the discovery to himself,
· wrote to \Vebster sending him a copy of the map and
giving his ideas on the subject.' 1 In May Sparks, as the
result of a conference with \Vebster, showed the · Red Line'
1
1ills, · British Diplomacy and Canada,' United EmþÙ'e, ii. p. 703.

820 BOUNDARY DISPUTES AND TREATIES

and · Steuben' maps to the governor of Maine. Judge
Sprague, on Webster's behalf, endeavoured to influence
prominent members of the Maine legislature. As a result
the commissioners were appointed with full powers.
· The maps,' wrote Sparks to Everett on January 30,
1843, after the whole matter had become known, · had some
influence in procuring a favourable .action on this point;
and it is generally conceded that the treaty would not have
gained the assent of the Maine Commissioners if these maps
had not been laid before them.' On June 14, 1842, Webster
wrote Everett, requesting him to · forbear to press the search
after maps in England or elsewhere. Our strength is on
the letter of the treaty.'
On August 17 the United States Senate debated the
treaty in secret session. Senator William Cabell Rives,
who had charge of it, exhibited the 'Red Line' map. In
urging ratification he declared that · there was great danger
that our case would be weakened by new evidence. Here,
he introduced the subject of the Franklin map, and said
that, if the matter were to go to a reference again, this might
be insisted on as evidence to the damage of the American
alarms.' 1 Senator Benton objected to 'the solemn and
mysterious humbuggery by which Dr Franklin had been
made to play a part in ravishing this ratification from
our claims,' and to the · awful apparition of the dis-
interred map shown to alarm senators into ratification.'
Though several adverse propositions were put forward,
the treaty was ratified by thirty-nine to nine. Webster was
successful, and differences that had on several occasions
brought two great nations to the verge of war were laid
to rest.
\Vhen, through the publication of the Senate debates,
the use made of the map by Webster became known, he
was bitterly assailed for · over-reaching' Lord Ashburton.
Webster, in a speech before the New York Historical Society,
said that it was the duty of the United States government
to lay before the Maine and Massachusetts commissioners
all the information in its power.
1 Curtis, Life of Webster, ii. pp. 133-4.

FROM FUNDY TO JUAN DE FUCA 821
Every office in \Vashington was ransacked, every book
of authority consulted, the whole history of all the
negotiations, from the Treaty of Paris downward, was
produced, and, among the rest, this discovery in Paris
to go for what it was worth. . . . I must confess that I
did not think it a very urgent duty, on my part, to go to
Lord Ashburton and tell him that I had found a bit of
doubtful evidence in Paris, out of which he might, per-
haps, make something to the prejudice of our claims,
and from which he could set up higher claims for himself,
or throw further uncertainty over the whole matter.
That exhibiting the map to the Maine and l\1assachusetts
commissioners and to the Senate brought about the ratifi-
cation of the treaty is indubitable. That Webster accepted
the map as authentic, and that he was much alarmed lest
its existence should become known to the British govern-
ment, is also beyond doubt.
In these days, when the matter is of academic interest only,
calm judgment indicates the value of the map as evidence
as nil. There was no connection between the map and the
letter; no note on the latter to indicate that the accompany-
ing map was in the archives; a red line such as was indicated
on the map could have been drawn by anyone, at any time;
to assume that Franklin, one of the ablest men that the
American colonies had produced, would draw such a line
was to credit him with incredible stupidity and ignorance
respecting the acts of state, maps, etc., of the previous
twenty years. Finally, Sir Robert Peel, in the debate of
March 21, 1843, stated that the British government had,
prior to Lord Ashburton's negotiation, found at Paris the
famous map. He said: C There can be no doubt but that it
is the map referred to by Mr Jared Sparks; but we can trace
no indication of connexion between it and the dispatch of
Dr Franklin.'
The copy used by Webster has disappeared from the
United States department of State, and the original seems
to have disappeared from the French Archives.
(2) The' Steuben' map above referred to was a copy
of Mitchell's map found by Webster early in 1842. It had be-
longed to Baron von Steuben, who had assisted the Americans

822 BOUNDARY DISPUTES AND TREATIES
during the \Var of Independence. It showed the boundary
according to the British claim, but as Steuben had no con-
nection with the negotiations nor any official status in the
United States, it is of no importance.
(3) The · Jay' map was discovered early in 1843 and
\Vas communicated to Gallatin by William Jay, son of John
Jay, one of the United States negot,iators of the treaty of
peace. After the death of John Jay it had remained in
the possession of another son, Peter A. Jay. It showed the
boundary-line as following the St John River to the mouth
of the Madawaska; thence up the l\1adawaska to its
source; thence by the highlands and 45th parallel to the
St Lawrence. On it was a red line · designated through
its whole extent as being Mr Oswald's line.' Gallatin
claimed that it demonstrated the baselessness of the British
claim, and that it was forwarded by Jay in October or
November 1782 to Livingston, the United States secretary
of state. The only basis for such a statement is a letter
from Franklin, October 14, 1782, mentioning that the articles
of the treaty would be sent by Jay at the first opportunity,
but containing not a word about a map. Again, in 1797.
only fifteen years after the treaty was concluded, Jay made
an affidavit respecting his knowledge of the negotiations,
and particularly with reference to maps.l Gallatin's argu-
ment is reduced to an absurdity, and his assumption that
the map demonstrated the identity of Mitchell's · Medousa
Lake' and · Nipissigouche ' with the · source of the St John,'
claimed by the United States Congress, rests upon an exceed-
ingly slight foundation.
(4) The United States department of State map. Judge
Benson, in his report to the president, as one of the com-
missioners appointed under Article v of the Treaty of Ghent,
stated that the agent for the United States, James Sullivan,
had offered in evidence · a Map of Mitchell, as the Identical
Copy which the Commissioners had before them at Paris,
having been found deposited in the Office of the Secretary of
State for the United States, and having the Eastern Boundary
of the United States, traced on it with a pen or pencil.'
1 Supra, p. 7 61 .

FROM FUNDY TO JUAN DE FUCA 823
In November 1828 Gallatin, who was engaged in prepar-
ing the statement of the United States for submission to
the king of the Netherlands, examined at the State depart-
ment a Mitchell map stated to be the identical map in
question. There had been traced on it, 'originally with a
pencil and over it with a pen, the boundary of the United
States in conformity with their claim.' 1 There was nothing
to show that it was the map produced by Sullivan, and
Gallatin decided it would be doing injury to the United
States claim 'to attempt to support it by any equivocal
or disputable evidence.' Between 1828 and the eighties,
when John Jay addressed inquiries to the State department
respecting it, this map-like the American ' Red Line' map
--disappeared from the department of State.
(5) King George III'S map. The British Museum also
possesses a 'Red Line' map, but, unlike its famous proto-
type, it is of undoubted authenticity and of great interest.
It is a copy of the Mitchell map, 1755. It hung in the library
of King George III, and, with other books and maps, was
donated to the Museum by his successor. The writer has
in his possession another copy of the Mitchell map coloured
in facsimile of the king's, and has also had ample oppor-
tunity to study the original. The results of the study are:
(a) It is not, as stated by Moore and others, the veritable
copy of Mitchell's map used in the negotiations of 1782;
(b) it does not contain' Oswald's line' upon it; (c) it was a
map of reference used by King George III, doubtless in con-
nection with discussions with his ministers respecting North
American affairs; (d) the red line on it is designated' Boun-
dary as described by Mr Oswald,' practically demonstrating
that the line was drawn under Oswald's direct supervision.
Edward Everett, in a dispatch of March 13, 1843, states
that there is a line on it, ' drawn with care with an instru-
ment, from the lower end of Lake Nipissing to the source
of the Mississippi . . . and has since been partly erased.'
As a matter of fact, there is no ' partly erased' line from the
lower end of Lake Nipissing westward. There is a line south-
eastward to where the 45th parallel strikes the St Lawrence-
1 Gallatin, .711emoir on the North-eastern Boundary, p. 48.
VOL. VIII K

824 BOUNDARY DISPUTES AND TREATIES
part of the boundary of Quebec by the proclamation of
1763-and it was' partly erased' when the boundaries were
altered by the Quebec Act, 1774. The foregoing, and the fact
that boundaries by the Treaty of Utrecht and other informa-
tion are indicated, prove conclusively that it was not the map
used in 1782.
This map shows the line as claimeØ by the United States,
but it is only fair to Lord Ashburton to say that on April 28,
1843, he wrote Webster that
The map question now fortunately only interests
historians. . . . I should have some curiosity to know
how you unravel this, to me, inextricable puzzle; at
present I will only say, what I know you will believe,
that the discoveries here are quite recent, and were
wholly unknown to me when I was at Washington.
Not but that I agree entirely with you, that it would
have been no duty of mine to damage the cause of my
client, yet, at the same time, I perhaps went further in
protestations of ignorance than I otherwise should have
done.
(6) The Record Office map. This is a copy of Mitchell's
map, described in the catalogue as the map used by Mr Oswald.
'This map was found in 1841, by Mr Lemon, but there is
nothing on the map itself, nor does any documentary evidence
exist, to support the statement in the Catalogue, which rests
upon the ipse dixit of Mr Lemon. The" red line " is very
faint, and the geographers who were consulted on the age of
it were divided in their opinion.' 1
The foregoing are the principal map evidences produced in
this more or less noted' battle.' Summed up, they prove
that in 1782 and 1783 the government of Great Britain
understood that the boundary followed the southern water-
shed of the River St Lawrence from its intersection with the
due north line to the Connecticut River; that during the
negotiations little attention was paid to the division of the
inland territory forming the disputed area of a later time; and
that the British government in 1814, when proposing a rectifi-
cation of the frontier, believed that it was a simple matter of
1 Fitzmaurice, The Lfje of William, Earl of Shelburne, iii. p. 3
4.

FROM FUNDY TO JUAN DE FUCA 825
exchange. The title of Great Britain to any portion of the
disputed territory, therefore, rested largely upon occupation.
The one exception was the portion of the upper Restigouche
that would have been cut off by the due north line if the
latter were extended, as claimed by the United States, to the
sources of the Metis. This was always a weak point in the
American contention which would have been strengthened
by frankly abandoning the claim to any portion of the
Restigouche basin, and adopting a line following the watershed
of the latter to the point at which it intersected the southern
watershed of the River 5t Lawrence.

NATIONAL RIGHTS THROUGH OCCUPATION
Regarded as an academic question, the national rights
acquired by occupation are admirably set forth in a dispatch
of Lord 5alisbury's of May 18, 1896. In discussing the
proposed general treaty of arbitration he says:
There are essential differences between individual
and national rights to land, which make it almost im-
possible to apply the well-known laws of real property
to a territorial dispute.
\Vhatever the primary origin of his rights, the national
owner, like the individual owner, relies usually on
effective control by himself or through his predecessor
in title for a sufficient length of time. But in the case
of a nation, what is a sufficient length of time, and in
what does effective control consist? In the case of a
private individual, the interval adequate to make a valid
title is defined by positive law. There is no enactment
or usage or accepted doctrine which lays down the length
of time required for international prescription; and no
full definition of the degree of control which will confer
territorial property on a nation, has been attempted.
It certainly does not depend solely on occupation or
the exercise of any clearly defined acts. All the great
nations in both hemispheres claim, and are prepared to
defend, their right to vast tracts of territory which they
have in no sense occupied, and often have not fully
explored. The modern doctrine of 'Hinterland,' with
its inevitable contradictions, indicates the unformed and

826 BOUNDARY DISPUTES AND TREATIES

unstable condition of international law as applied to
territorial claims resting on constructive occupation or
control.
Since the above was written the Venezuela arbitration has
practically enunciated the principle that thirty years' adverse
possession constitutes a good title.
In the Madawaska fief Great Britain and her predecessor
in title, France, had a seigniory granted in 1683. In the
Madawaska and Aroostook settlements grants had been made
by the New Brunswick authorities, and Great Britain had
exercised jurisdiction in portions of the disputed area since
about 1785. The Madawaska settlement extended up both
banks of the St John to the mouth of the St Francis, and the
highway from the Maritime Provinces to Quebec followed
the St John and Madawaska Rivers. The authorities of
Maine endeavoured to strengthen their claim by possession
and jurisdiction, particularly in the area south of the St John.
So far as the intent of the negotiators was concerned, it
is unquestionable that they intended to define the boundary as
following, between the Bay of Fundy and the Connecticut
River, the western boundary of Nova Scotia and the southern
boundary of Quebec. In drafting the treaty they, un-
fortunately for Canada, followed the description of the
boundary of Nova Scotia as defined in the commissions to its
governors, instead of the grant to Sir William Alexander.

RESULTS OF THE ASHBURTON TREATY
Summing up the results of the Ashburton Treaty, it is
evident that, in the north-eastern portion of the territory,
Great Britain got all that she could claim by virtue of posses-
sion, and more; that she obtained much more than she could
claim under the letter of the Treaty of Paris; and that she
obtained nearly 900 square miles of territory in the basin of
the upper St John over and above that awarded by the king
of the Netherlands. She conceded an area of ISO square
miles in the basin of the upper Connecticut River. She also
conceded a strip between the 45th parallel and the' old line'

FROM FUNDY TO JUAN DE FUCA 827
with an area of 73 square miles, but, as the 'old line' is in
places south of the 45th parallel, she received, east of St
Regis, a strip containing 11;4 square miles. So far as these
, strips' were concerned, the United States and Great Britain
had valid titles by virtue of occupation, and the concessions
were simply validations. In addition to the foregoing the
Ashburton settlement ended a controversy that had disturbed
the relations of the two countries for nearly sixty years:
that had, on several occasions, brought two great nations to
the verge of war; and that had seriously interfered with
commercial intercourse. Finally, it is worthy of note that
the commission appointed to adjust the respective claims of
New Brunswick and Quebec to the area west of the I due
north line' awarded to Great Britain by the Ashburton
Treaty, reported in 1848, six years later, 'that a tract of
country lies between the north highlands westward of the
due north line, and the line of the United States, which,
according to the strict legal rights of the two provinces, belongs to
neither, . . . and which, in 1763, formed part of the ancient
territory of Sagadahock.' This' tract of country' was con-
firmed to Great Britain by the Ashburton Treaty.
Article III of the International Boundary Treaty of
April II, 1908, provided for repairing and renewing the
monuments erected under Article VI of the Ashburton Treaty,
and for marking the line through waterways by buoys,
monuments and ranges. The surveys and monumenting
under this article are now (March 1913) completed from the
St Lawrence to Hall Stream, and from the St Croix to the
5t John. The St John and St Francis Rivers have been
surveyed and reference monuments placed. Between the St
Francis and Hall Stream work is now in progress.

THROUGH THE ST LAWRENCE BASIN TO
LAKE OF THE WOODS
From the point where the 45th parallel of north latitude
· strikes the River Iroquois or Cataraquy' (5t Lawrence) the
boundary, as defined in the treaty of 1783, follows' along the

828 BOUNDARY DISPUTES AND TREATIES

middle of said river into Lake Ontario, through the middle of
said lake until it strikes the communication by water between
that lake and Lake Erie; thence along the middle of said
communication into Lake Erie, through the middle of said
lake until it arrives at the water-communication between
that lake and Lake Huron; thence along the middle of said
water-communication into the Lake Huron; thence through
the middle of said lake to the water-communication between
that lake and Lake Superior.'
Through the St Lawrence and Great Lakes.-Article VI of
the Treaty of Ghent recited the foregoing, and provided that
· whereas doubts have arisen what was the middle of the said
River, Lakes and Water communications and whether certain
Islands lying in the same were within the Dominions of His
Britannic Majesty, or of the United States: in order, there-
fore, finally to decide these doubts, they shall be referred to 2
Commissioners' to be appointed in the same manner as those
commissioned under Article v. It further provided that they
should 'designate the Boundary' through the said waters
and decide the title to each of the islands included therein,
such designation to be final; in case of disagreement, a refer-
ence to be made to a ' Friendly Sovereign or State.'
John Ogilvy, of Montreal, was appointed as commissioner
on the part of Great Britain, and Peter B. Porter of New
York State on the part of the United States. On September
28, 1819, Ogilvy died at Amherstburg, of fever, and was
succeeded by Anthony Barclay, a son of Thomas Barclay,
British commissioner under Article v. On May 26, 181 7,
Samuel Hawkins presented his credentials as agent for the
United States. On May 7, 1821, he was succeeded by
Joseph Delafield. On June I, 1818, John Hale presented his
commission as British agent.
The initial meeting was held at Albany, November 18,
1816. On November 12, 1821, at a meeting held in New
York city, the surveyors reported that the maps of the whole
line were ready for inspection. On June 18, 1822, the com-
missioners reached an agreement.
The basis of division of the islands is set forth in a letter
by David Thompson, the famous surveyor to the N orth- West

FROM FUNDY TO JUAN DE FUCA 829
Company, and astronomer and surveyor for Great Britain.
He says that
When the survey was undertaken to decide the place
of the above boundary line, several important questions
arose not contemplated in the Treaty; among which was
that, as the middle of the River is a line equidistant from
both banks of the River, this line would often intersect
islands, which would give a boundary line on land, under
circumstances very inconvenient to each Power, especi-
ally on civil and criminal processes, illicit trade, etc. etc.
It was therefore determined that to whatever Power the
greater part of an intersected island should belong, that
power should have the whole of the Island.
Thompson had made surveys of the greater portion of
\Vestern Canada and had found that the deepest channel
was usually much nearer the north side of rivers. \Vhen the
survey was completed the United States commissioner con-
tended for the deepest channel, but Barclay insisted on the
letter of the treaty. The British Admiralty desired that
\Volfe Island, opposite Kingston, be obtained. If it passed
to the United States, fortifications could be erected on it that
would threaten the British navy yard and forts. Barclay
was successful in obtaining Wolfe Island in exchange for
Grand Island, above Niagara Falls, and Barnhart and other
islands, near Cornwall. It was also' agreed that the boundary
line should be 100 yards from the shores of all islands, and if
the space between the opposite shores was less than 200 yards,
then the boundary line should be the middle between the
two shores.'
In addition to the questions that arose respecting the
assignment of the islands, there were difficulties respecting the
navigation of the boundary waters. In the autumn of 1821 it
was proposed to the commissioners that they make with their
final award a declaration that they had acted on the principle
that the navigation of all waters traversoo by the boundary
should continue free and open to the citizens of both powers,
irrespective of the course of the awarded line. The British
minister at Washington, however, declined to sanction it on
the ground that it would impugn what was a matter of right.

830 BOUNDARY DISPUTES AND TREATIES
The award described the line in detail, and was accom-
panied by a series of maps on which the boundary-line was
marked. After describing it through the River St Lawrence,
it defines it as passing' to the south of, and near, the islands
called the Ducks, to the middle of the said lake [Ontario] ;
thence westerly, along the middle of said lake, to a point
opposite the mouth of the Niagara River'; thence through the
Niagara River to Lake Erie; 'thence southerly and westerly,
along the middle of Lake Erie. in a direction to enter the
passage immediately south of Middle Island' ; thence through
Detroit River and Lake and River St Clair to Lake Huron;
, thence through the middle of Lake Huron, in a direction to
enter the strait or passage' between Drummond and Cockburn
Islands; thence sou th and west of St Joseph Island to the' foot
of the N eebish Rapids.'
In 1826 the same commissioners, Barclay and Porter,
acting under Article VII of the Treaty of Ghent, disagreed
respecting the division of the islands in the St Mary River
above St Joseph Island. The matter remained in abeyance
till 1842, when Lord Ashburton and Daniel Webster were
endeavouring to conclude a settlement of differences. On
July 16, 1842, Lord Ashburton wrote Webster that he desired
a clause inserted in the treaty providing that British vessels
should have equal rights of navigation with United States
vessels in certain channels of the St Lawrence and St Clair
Rivers. Webster accepted and stipulated for similar privi-
leges for United States vessels in the British channel east
of Bois Blanc Island in the Detroit River.
Article VII of the Ashburton Treaty provided that
the channels in the River St Lawrence on both sides
of the Long Sault Islands and of Barnhart Island, the
channels in the River Detroit on both sides of the island
Bois Blanc, and between that island and both the American
and Canadian shores, and all the several channels and
passages between the various islands lying near the
junction of the River St Clair with the lake of that name,
shall be equally free and open to the ships, vessels, and
boats of both parties.
In 1850 the government of the United States repre-

FROM FUNDY TO JUAN DE FUCA 831
sented to the British government that it was desirable that
a lighthouse should be erected in Lake Erie near the mouth
of the Niagara River, but that the most eligible site-a
small reef, known as Horseshoe Reef-was British territory.
Great Britain, therefore, ceded to the United States such
portion · as may be found requisite for the intended light-
house. '

BOUNDARY FRO
I LAKE HURON TO THE NORTH-\VEST
ANGLE OF LAKE OF THE WOODS
Article VII of the Treaty of Ghent provided that, as
soon as the commissioners appointed under Article VI had
executed the duties assigned to them, they should proceed
to determine the boundary' from the water-communica-
tion between Lake Huron and Lake Superior, to the most
North-western Point of the Lake of the Woods,' to decide
the ownership of several islands lying in the boundary
waters, and to survey and mark portions of the boundary.
I t further provided for reference to an arbitrator in case of
disagreement.
As soon as Barclay and Porter had concluded their award
under Article VI on June 18, 1822, they instructed the sur-
veyors to proceed with the surveys required under Article VII.
The surveyors were instructed to ascertain the position of
the' Long Lake' of the treaty of 1783, or, if no lake of that
name were found, to determine the chain of waters supposed
to be referred to under that name; if no stream discharging
the waters of Lake of the Woods into Lake Superior were
found, they were to determine the streams that approxi-
mated most nearly to the line defined in the treaty. Surveys
were made of the waters between Lake Huron and Lake of
the Woods. In October 1824 it seemed likely that Pigeon
and Rainy Rivers would be adopted as the boundary between
the estuary of the former-assumed to be Long Lake-and
Lake of the Woods, but the British commissioner ordered
surveys of the route by way of the St Louis River which
falls into Lake Superior at the site of the present city of

832 BOUNDARY DISPUTES AND TREATIES
Duluth, and the United States commissioner ordered an
exploration of the Kaministikwia, which empties into Lake
Superior at Fort \Villiam.
The commissioners were unable to reach an agreement
respecting two points of difference. In the St Mary River,
between Lakes Huron and Superior, they disagreed respect-
ing the assignment of St George (Sugar) Island. Barclay
claimed it on the ground that, when dividing the islands
under Article VI, they had agreed that when a middle line
between the two shores divided an island into two unequal
parts, it should be assigned to the nation to whose side the
larger portion lay. Porter claimed it mainly on the ground
that the navigable channel lay between it and the Canadian
mainland. As Porter seemed to attach great importance
to navigation Barclay offered, if St George Island were
assigned to Great Britain, to stipulate that the channel
east of it should remain free and open to both nations, pro-
vided Porter would make a similar stipulation respecting
the St Lawrence channel near Barnhart Island and the
American channel in the St Clair River. Porter rejected
the offer.
By Article VI of the Ashburton Treaty St George Island
was conceded to the United States. It is worthy of note
that, owing to improvements, the channel west of St George
(Sugar) Island-and, therefore, altogether in United States
territory-is now used by all vessels except an occasional
small craft.
The second point of difference was the line from Isle
Royale in Lake Superior to Lake of the Woods. Barclay
claimed that the boundary should run from Isle Royale
south-westerly to the head of the lake, thence by way of
the St Louis and Vermilion Rivers to the Grand Portage
canoe route, and thence by the latter to Lake of the \Voods.
Porter contended that the line should follow the Kaminis-
tikwia canoe route to its junction with the Grand Portage
route, and thence by the latter to Lake of the Woods.
The treaty of 1783 defined the boundary as passing
'through Lake Superior, northward of the Isles Royal and
Phelipeaux, to the Long Lake; thence through the middle

FROM FUNDY TO JUAN DE FUCA 833
of said Long Lake, and the water-communication between
it and the Lake of the Woods to the said Lake of the
Woods.' Barclay claimed the St Louis River on the follow-
ing grounds :
(I) That the treaty defined the boundary as running
'through Lake Superior. . . to the Long Lake' instead
of following the wording used with reference to the other
Great Lakes, viz., 'through said lake to and through the
water-communication into the lake,' etc. It was, therefore,
evident that the lake described in the treaty immediately
united with Lake Superior without any contracted separa-
tion. St Louis River answered this description since it
contained a lake-expansion at its mouth, whereas Pigeon
River emptied into a bay.
(2) That it was an ancient commercial route. While
Pigeon River also possessed this qualification, the only lake
of the Pigeon River route answering to the description of
, Long Lake' was Crooked Lake, an expansion in the upper
waters of Rainy River. The Kaministikwia route was a
comparatively new one, and Dog Lake, claimed by Porter
as 'Long Lake,' was eighty miles upstream; there were
numerous portages between it and Superior; it had been
known as Dog Lake since its discovery, and its form did not
entitle it to be called ' Long' Lake.
(3) That the St Louis was the more navigable, more
direct, and was interrupted by few portages; that even
the Pigeon River route, as compared with the Kaminis-
tikwia, was a more 'direct and continuous water-com-
munication. '
(4) That on many old maps it was designated 'The
Lake or 5t Louis River.'
(5) That as the treaty defined the boundary as passing
'through Lake Superior, northward of the Isles Royale
and Phelipeaux,' it was a fair deduction that, after passing
the said islands, it should run southwardly; and, if the
, Long Lake' of the treaty lay to the north of Isle Royale,
it was difficult to understand the specific direction' north-
ward' when that was its natural direction.
Commissioner Porter clainled the canoe route by way of

g34 BOUNDARY DISPUTES AND TREATIES
the Kaministikwia River as the boundary on the following
grounds :
(I) That the isle 'Phelipeaux' of the treaty included
Pie and other islands in a chain lying to the westward of
Isle Royale, and that the line from the latter to Long Lake
must pass to the northward of them. He identified Dog
Lake, an expansion of the upper Kaministikwia, with Long
Lake.
(2) The boundary claimed by the British commissioner,
after passing to the northward of Isle Royale, turned south-
westward to the head of the lake, describing a great arc
and passing comparatively close to the British shore, simply
to give an unimportant island-Royale-to the United
States. Inasmuch as a straight line from St Mary River
to the mouth of the Kaministikwia would intersect the
eastern portion of Isle Royale, the most direct route would
pass to the northward of Royale, whereas the direct route to
Pigeon River and to St Louis River passed to the south of it.
(3) The Kaministikwia canoe route had probably been
used by the French, and was still used by the English. It
was the best, and afforded more continuous water-com-
munication than any other.
Mitchell's map, used by the negotiators of the treaty of
1783, showed Long Lake at the mouth of Pigeon River, and,
partly for this reason, Porter was willing to accept a line
up Pigeon River, and thence by the most continuous water-
communication to Rainy Lake-a common point on the
Kaministikwia, Pigeon and St Louis routes to Lake of the
Woods. Barclay offered to accept the same line, provided
it commenced at the eastern end of Grand Portage, six miles
south-west of the mouth of the Pigeon River, and went thence
by way of the Pigeon River route through the navigable
waters and connecting portages. Although this only in-
volved the concession of an area of twenty-two square miles
Detween Pigeon River and the Grand Portage, Porter
declined to accept it, contending that the treaty required
a water-communication wherever one could be found. On
the ground that he would be exceeding his powers, he also
declined Barclay's offer to take the Pigeon River route,

FROM FUNDY TO JUAN DE FUCA 835
coupled with the stipulation that the Grand and other
portages should be free and open to the subjects of both
nations. Porter seems to have been under the impression
that partisanship and his duties as an arbitrator were
synonymous.
On October 23, 1826, to avoid any future misunder-
standings, the commissioners caused to be entered in the
journals a statement of the points on which they disagreed,
and described the portion of the line on which they were
agreed. As already stated, 1 both claimed St George (Sugar)
Island in St Mary River.
Respecting the boundary from the head of Sugar Island
to Isle Royale in Lake Superior they were in agreement. From
Isle Royale the United States commissioner claimed that the
boundary should pass north of Pie Island to the mouth of the
Kaministikwia River; thence by way of the Kaministikwia
canoe route to Lac la Croix, where it joined the Pigeon River
or Grand Portage route; thence by the N amakan River to
Namakan Lake, where it joined the St Louis River route;
thence through the middle of Namakan Lake and its water-
communication to Rainy Lake, where it joined the line
claimed by Barclay. The British commissioner claimed
that from Isle Royale the line should pass through the
middle of Lake Superior to the mouth of the St Louis;
thence up the St Louis to the head of its Embarras tributary ;
thence by the Vermilion River to N amakan Lake ; thence,
by the same route as claimed by Porter, to Rainy Lake.
From Rainy Lake to Lake of the '\Toods they were in
agreement respecting the boundary, and defined it as passing
through the middle of Rainy Lake to its sortie; thence down the
middle of Rainy River to Lake of the Woods; thence north-
westerly and westerly to the head of a bay, , being the most
north-western point of the Lake of the \Voods,' in latitude
49 0 23' 55" N and longitude 95 0 14' 38" 'tv.
On July 16, 1842, Lord Ashburton wrote Webster propos-
ing that 'the line be taken from a point about six miles
south of Pigeon River, where the Grand Portage commences
on the lake, and continued along the line of said portage,
1 Supra, p. 83 2 .

836 BOUNDARY DISPUTES AND TREATIES
alternately by land and water, to Lac la Pluie [Rainy Lake],
the existing route by land and by water remaining common
to both parties.'
On the 27th Webster replied that he was willing to agree
on a line following the Pigeon River or Grand Portage route
to Rainy Lake, it being understood that all the watcr-
communications and portages should ,'be free and open to
the use of the subjects and citizens of both countries.'
Lord Ashburton accepted these terms, and they were
incorporated in the treaty. Article II of the Ashburton
Treaty described the boundary from the point in the St Mary
River where the commissioners under Article VI of the
Treaty of Ghent concluded their labours. The boundary
was defined so as to leave St George (Sugar) Island to the
United States; thence through Lake Superior as agreed by
the commissioners under Article VII; from Isle Royale
, through the middle of the sound between Isle Royale and
the north-western main land, to the mouth of Pigeon River,
and up the said river. . . to the lakes of the height of land
between Lake Superior and the Lake of the Woods'; thence
through the water-communication' to that point in Lac la
Pluie, or Rainy Lake, at the Chaudière Falls, from which the
Commissioners traced the line to the most north-western point
of the Lake of the Woods. . . . It being understood that all
the water-communications and all the usual portages along
the line from Lake Superior to the Lake of the \Voods, and
also Grand Portage . . . as now actually used, shall be free
and open to the use of the citizens and subjects of both
countries.'

REVIEW OF THE AWARDED BOUNDARY UNDER ARTICLES VI
AND VII OF THE TREATY OF GHENT
Reviewing the division of the islands in the River St
Lawrence, there can be no doubt that Great Britain fared well.
She secured the largest and most valuable, Wolfe Island, with
an area of 49 square miles, and nearly half the others. In the
St Mary River, St Joseph Island, 142 square miles, was
awarded to her; and Sugar Island, 4034 square miles, and

FROM FUNDY TO JUAN DE FUCA 837
Encampment Island, IS.%' square miles, passed to the United
States. On the King George III map the boundary-line is
drawn indicating Cockburn and St Joseph Islands-both
awarded to Great Britain-as United States territory, and
Sugar Island-awarded to the United States-as British
territory.
In Lake Superior the inclusion of Philipeaux Island in
the boundary description caused much confusion. The error
is due to Mitchell's map, wherein Isle Royale is indicated
twice, first under its own name and again as a large island-
'I. Philipeaux '-lying south-east of it. There is a similar
duplication of our present Michipicoten Island, which appears
as ' 1. Maurepas,' and, again, as ' Pontchartrain I.'
Before considering the question of 'Long Lake' it is
necessary to revert to the negotiations of 1782. The basis of
division finally agreed upon was to follow the middle of the
St Lawrence River proper, and its upward continuation.
Unfortunately for Canada, Mitchell's map, upon which the
negotiators relied, showed a large unnamed river flowing
from Lake of the Woods to Lake Superior and, near its
mouth, passing through an expansion designated 'Long
Lake.' The Mississippi was only indicated to the southern
border of an 'inset' map in the north-west corner of the
map, but was shown as a large stream that probably had its
source far to the north. The boundary was therefore carried
up what appeared to be much the largest stream emptying
into Lake Superior, and thence due west to the Mississippi.
As a matter of fact, later explorations showed that the source
üf the Mississippi is due south of Lake of the Woods.
Respecting 'Long Lake' there can be no doubt of its
identity with the present Pigeon Bay. The stream from
Lake of the Woods represents Rainy River, which, as we now
know, flows into it. Near Lake Superior it represents Pigeon
River, a small stream that empties into Superior. But for
this geographical error the line would almost certainly have
been drawn to the. head of Lake Superior; thence up the
St Louis River to its source; and thence due west to the
Mississippi-a much more favourable line for Canada.
Here, as on the New Brunswick and Quebec frontier, British

838 BOUNDARY DISPUTES AND TREATIES
diplomacy at a later date strove, and partially succeeded, in
repairing the damage done by Oswald and Shelburne in 1782.

BRYCE-ROOT TREATY, 1908
By Article IV of the Boundary Treaty, signed at Washing-
ton, April I I, 1908, the existing International Waterways
Commission was C empowered to asc
rtain and re-establish
accurately the location of the international boundary line'
through the River St Lawrence, the Great Lakes and connect-
ing waterways. It further provided that wherever the
boundary is shown by a curved line along the water, they are
authorized to substitute for it a series of connecting straight
lines 'following generally the course of such curved line' ;
also that the line shall be marked by buoys and monuments
in the waterways where practicable; elsewhere by range
marks on adjacent shores.
The Rivers and Harbours Act, 1902, requested the presi-
dent 'to invite the Government of Great Britain to join in
the formation of an international commission. . . . to in-
vestigate and report upon the conditions and uses' of the
St Lawrence waters, adjacent to the boundary between
Canada and the United States. The invitation was duly
communicated. On the part of Great Britain, J. P. Mabee,
\Vm. F. King and Louis Coste were appointed. Colonel
O. H. Ernst, George Clinton and Gardner S. Williams
were appointed on the part of the United States. In 1905
Mabee resigned, and was succeeded by George C. Gibbons.
In 1907 Wm. F. King was succeeded by W. J. Stewart. Of
the United States commissioners, Gardner S. Williams was
succeeded by G. Y. Wisner; later, Wisner was succeeded by
E. E. Haskell.
To date, March 1913, the C connecting straight lines' have
been tentatively laid down on the charts, but differences have
arisen respecting the deviation from the curved lines.
Article V of the Bryce-Root Treaty provided for the
re-establishment of the boundary line between the mouth of
Pigeon River and the north-westernmost point of Lake
of the Woods. It further provided for the marking of the

FROM FUNDY TO JUAN DE FUCA 839
boundary similarly to Articles I, II and III. Under the
provisions of the article Wm. F. King was appointed com-
missioner on the part of Great Britain, and O. H. Tittmann
on the part of the United States. To March 19 1 3 some
triangulation had been completed and part of Pigeon River
and Lake of the Woods between North-west Angle and Big
Island had been surveyed.

FROM LAKE OF THE WOODS TO THE PACIFIC OCEAN
The international boundary between Canada and the
United States, as defined in the treaty of 1783, followed the
water-communications from Lake Superior to the 'north-
westernmost point' of Lake of the Woods, ' and from thence
on a due west course to the River Mississippi; thence
by a line to be drawn along the middle of the said River
Mississippi,' etc. As already stated 1 this description was
based upon the erroneous delineation in Mitchell's map, of
the topography of this area. Shortly after the treaty was
signed the accuracy of the map was impugned, and it was
stated that a line drawn due west from Lake of the Woods
would not intersect the Mississippi.
Article V of the Hawkesbury-King convention, concluded
May 12, 1803, provided that' Whereas it is uncertain whether
the River Mississippi extends so far to the Northward as to
be intercepted by a Line drawn due West from the Lake of
the Woods. . . it is agreed that. . . the Boundary of the
United States in this quarter shall. . . be the shortest line
which can be drawn between the North-west Point of the Lake
of the Woods and the nearest Source of the River Mississippi.'
On April 30, I803-two weeks earlier-France and the
United States had concluded a treaty whereby the former
ceded to the United States 'the Colony or Province of
Louisiana with the same extent that it now has in the hands
of Spain, & that it had when France possessed it.' Fearing
that the Hawkesbury-King convention might affect the rights
acquired under the Louisiana Treaty, the United States
Senate ratified it without the fifth article. The British

1 Supra, p. 753.

VOL. VIII

L

"'.... .r...... r-.n",..", "n....".. I

840 BOUNDARY DISPUTES AND TREATIES
government, however, refused to accept the amended
treaty.!
On September S, 1804, Monroe delivered to Lord Harrowby
a paper in which he reviewed the negotiations affecting the
boundary east and west of Lake of the Woods. He stated
that commissaries appointed under Article x of the Treaty
of Utrecht had
fixed 2 the northern boundary of Canada and Louisiana
by a line beginning on the Atlantic, at a cape or promon-
tory in 580 30' north latitude; thence, south-westwardly
to the Lake Mistassin; thence, further south-west, to the
latitude 49 0 north from the equator, and along that line
indefinitely. . . . It was not contemplated by either of
them [the negotiators of the treaty of 1803] that America
should convey to Great Britain any right to the territory
lying westward of that line, since not a foot of it belonged
to her; it was intended to leave it to Great Britain to
settle the point as to such territory, or such portion of
it as she might want, with Spain, or rather with France,
to whom it then belonged . . . the stipulation which is
contained in the fifth article of the convention has
become, by the cession made by the [Louisiana] treaty,
perfectly nugatory; for, as Great Britain holds no
territory southward of the forty-ninth degree of north
latitude, and the United States the whole of it, the line
proposed by that article would run through a country
which now belongs exclusively to the latter.
On December 3 I, 1806, Lords Holland and Auckland, on
the part of Great Britain, and James Monroe and William
Pinkney, on the part of the United States, signed a treaty of

1 James Monroe, United States minister at London, wrote that Lord Harrowby,
the foreign secretary, when informed that it had been ratified without the fifth
article, · censured in strong terms the practice into which we had fallen of ratifying
treaties, with exceptions to parts of them, a practice which he termed new, un-
authorized, and not to be sanctioned. . . . He observed with some degree of
severity. . . that, having discovered since this treaty was formed that you had
ceded territory which you do not wish to part with, you are not disposed to
ratify that article' (American State Papers, Foreign Relations, iii. p. 93).
2 The accuracy of the statement that the commissioners under the Treaty of
Utrecht had settled the boundary was first challenged by Greenhow in the
Washington Globe of January 15, 1840. See also Greenhow's History of Oregon and
California. The Arbitration Papers in the Ontario-Manitoba Boundary Case con-
tain conclusive evidence that no settlement was arrived at. See also pp. 886-91.

FROM FUNDY TO JUAN DE FUCA 84 1
amity and commerce. After the treaty was concluded the
British negotiators proposed a supplemental convention
defining the boundary from the north-west angle of Lake
of the Woods. They proposed that it be drawn due south to
the 49th parallel and thence due west' as far as the territories
of the United States extend in that quarter . . . provided
that nothing in the present article shall be construed to
extend to the north-west coast of America, or to the territories
belonging to or claimed by either party, on the continent of
America, to the westward of the Stony Mountains.' Eventu-
ally, to meet the objections of the American commissioners,
the words' as far as their said respective territories extend in
that quarter' were substituted for' as far as the territories of
the United States extend in that quarter.' However, as the
treaty itself did not contain a renunciation by Great Britain
of the right of impressment, President Jefferson refused to
submit it to the Senate.
This proposal was an official acknowledgment by Great
Britain that, by the Treaty of Utrecht, the 49th parallel formed
the boundary between the Hudson's Bay Company's territories
and Louisiana. The first suggestion of this line had appeared
in instructions from Madison, United States secretary of
state, to Monroe, bearing date February 14, 1804. Madison
said that' there was reason to believe' that the commissioners
had decided upon that parallel as the boundary. He con-
tinued: 'But you will perceive the necessity of recurring
to the proceedings of the commissioners, as the source of
authentic information.' The proposal by the British negoti-
ators was doubtless due to the fact, that during the negotia-
tions under the Treaty of Utrecht the British commissioners
contended for the 49th parallel as the southern boundary of
British territory, the French commissioners, claiming the
territory to within about fifty miles from Hudson Bay. The
commissioners, however, disagreed, and no settlement was
arrived at. Unfortunately for British interests, British geo-
graphers adopted the British contention, and on their maps
the 49th parallel was stated to be the sou them boundary of
the Hudson's Bay Company's territories. When, in 1763,
the whole of Canada passed to Great Britain, the question of

842 BOUNDARY DISPUTES AND TREATIES
title became of academic interest only, but the erroneous
impression respecting the 49th parallel fostered by the maps
had received general acceptation. In any event, it was the
British claim respecting the boundary between the Hudson's
Bay Company's territories and Canada, not between the
former and Louisiana, as stated by Madison. The true
northern boundary of Louisiana was tbe northern watershed
of the Mississippi and Missouri Rivers. As a result of this
misunderstanding, the southern boundary of Canada across
half the continent rests upon a mistaken idea.
In the negotiations for the Treaty of Ghent, 1814, the
British plenipotentiaries offered to accept the 49th parallel from
Lake of the Woods westward as the boundary, but coupled
their acceptance with a stipulation for the free navigation
of the Mississippi. As the latter proposition was unaccept-
able to the Americans, the article was omitted altogether.
In 1818 a convention respecting fisheries, boundaries,
etc., was concluded at London. The negotiators for the
United States, Albert Gallatin and Richard Rush, proposed
that the 49th parallel should be made the boundary between
Lake of the Woods and the Pacific. The British negotiators,
F. J. Robinson and Henry Goulburn, 'did not make any
formal proposition for a boundary, but intimated that the
river [Columbia] itself was the most convenient that could
be adopted, and that they would not agree to any that did
not give them the harbour at the mouth of the river, in com-
mon with the United States.' Later, the British negotiators
proposed the insertion of an article providing that the 49th
parallel should be the boundary westward to the Rocky
Mountains, and that, west of the Rockies, the country
between the 45th and' 49th parallels should be free and
open to the citizens of both countries. To this the Ameri-
cans demurred. Eventually, to meet the objections of the
American negotiators, Article III was modified to read that
any country that may be claimed by either party on
the north-west coast of America, westward of the Stony
Mountains, shall, together with its harbours, bays, and
creeks, and the navigation of all rivers within the same,
be free and open, for the term of ten years from the date

FROM FUNDY TO JUAN DE FUCA 843

of the signature of the present convention, to the vessels,
citizens, and subjects of the two Powers: it being well
understood, that this agreement is not to be construed to
the prejudice of any claim, which either of the two high
contracting parties may have to any part of the said
country etc.
In 182 I the emperor of Russia issued his famous ukase
which forbade 'aU foreign vessels not only to land on the
coasts and islands' between Bering Strait and the 51st
parallel, 'but also to a pproach them wi thin less than a
hundred Italian miles' under penalty of confiscation of
vessel and cargo. As this was also an assertion to terri-
torial rights to this area, Great Britain and the United
States promptly protested it. Four months after the con-
vention of 1818 with Great Britain the United States had
acquired by the Treaty of Florida Blanca, February 22,
1819, all the territorial rights of Spain on the Pacific coast
north of latitude 420 N. Basing the claims of the United
States on the discoveries of Captain Gray, and of Lewis
and Clark, and as the successor in title to Spain, John
Quincy Adams, United States secretary of state, instructed
Richard Rush, United States minister at London, to C stipulate
that no settlement shall hereafter be made on the North-
west Coast or on any of the islands thereto adjoining by
Russian subjects south of latitude 55 0 , by citizens of the
United States north of latitude 510, or by British subjects
either south of 510 or north of 55 0 ,' latitude 510 being fixed
as approximating to the latitude of the upper portion of the
Columbia.
George Canning, British secretary for Foreign Affairs,
was astounded at these pretensions,l and, as a result, Great

1 Rush, in his Residønce at the Court of London, p. 469, says that Canning
wrote him respecting a memorandum left by him (Rush):
· 01' north of fifty-five.'
, What can this intend? Our northern question is with Russia as our southern
with the United States. But do the United States mean to travel north to get
between us and Russia? and do they mean to stipulate against Great Britain,
in favour of Russia, or reserve to themselves whatever Russia may not want?'
Rush replied that Canning had read his note correctly. Canning wrote him
that he would take Rush's explanation . like the wise and wary Dutchman of
old times, ad referendum, and ad considerandum: See also p. 921.

844 BOUNDARY DISPUTES AND TREATIES
Britain declined to join the United States in the negotia-
tion with Russia. Rush then entered upon a separate
negotiation with Great Britain. William Huskisson and
Stratford Canning, the British negotiators, totally declined
the proposition respecting the limitation of British settle-
ment on the west coast, and totally denied the validity of
the claims of Spain and of the United States as based on
the discoveries of Gray, and Lewis and Clark. 'They said
that Great Britain considered the whole of the unoccupied
parts of America, as being open to her future settlements
in like manner as heretofore. They included within these
parts as well tha t portion of the N orth West Coast lying
between the 42nd and 51st degrees of latitude, as any other
parts.' 1 Finally, the British negotiators offered to accept
the 49th parallel to its intersection with the Columbia' and
thence, down, along the middle of the Columbia, to the Pacific
Ocean; the navigation of this river to be forever free to the
subjects and citizens of both nations.' 2 Rush declared his
'utter inability to accept such a boundary,' but offered to
shift the C southern line as low as 49 0 in place of 510.' This
proposal was rejected by the British plenipotentiaries.
On April 17, 1824, the United States and Russia con-
cluded a treaty whereby it was agreed that citizens of the
United States would not form settlements north of latitude
54 0 40', and that Russian citizens would not form settle-
ments south of it. On February 28, 1825, Great Britain
also concluded a treaty with Russia which limited Russian
America, on the south, by latitude 54 0 40', and, on the east,
by the first range of mountains and the I4Ist meridian.
These treaties eliminated Russia and left the territory to
the south of 54 0 40' to be divided between Great Britain
and the United States. 3

1 Rush, Residence at the Court of London, p. 598.
2 Ibid., p. 60 7.
a 'That this treaty virtually annulled the convention of the preceding year,
between Russia and the United States, is evident; for the convention rested
entirely upon the assumption that the United States possessed the same right
to the part of the American coast south of the parallel of 54 0 40' which Russia
possessed to the part north of that parallel' and the treaty distinctly acknow-
ledged the former or southern division of the coast to be the property of Great
Britain' (Greenhow, History of Oregon and California, p. 343).

FROM FUNDY TO JUAN DE FUCA 845
In 1826 negotiations were resumed at the instance of
Canning. The claim formulated by Rush was reaffirmed,
but Gallatin, United States minister at London, was in-
structed to offer as the · ultimatum' of the United States
· the extension of the line on the parallel of 49 0 ' from the
Rockies to the Pacific. He was also authorized to concede the
navigation of · the branches of the Columbia River which
are navigable from where it [the 49th parallel] intersects
them to the ocean.' The British plenipotentiaries, Huskisson
and Addington, replied that 'the United States had no
right to dispossess a single British subject, or in any way
to exercise jurisdiction in any part of the territory in ques-
tion.' They also objected to the 49th parallel line on the
ground that it would cut off the southern portion of Van-
couver Island. Later, Gallatin intimated that he was
willing to concede the southern portion of Vancouver Island
in return for compensation elsewhere. He had in view the
exchange for it of ' the whole or part of the upper branches
of the Columbia River' north of latitude 49 0 N. The
British negotiators replied that, as the United States claimed
that the British proposal only left them one seaport, and
that difficult of access, they were willing to concede the
peninsula bounded on the south by a line from Grays
Harbour to the head of Hood Canal, and, on the east, by
the peninsula east of Hood Canal and Admiralty Inlet-
an area of about 5400 square miles. With this exception
they adhered to the line of the Columbia River. To this
proposition Gallatin replied that he · rejected it at once.'
As the negotiators were unable to reach an agreement
they concluded, on August 6, 1827, a convention extend-
ing indefinitely Article III of the convention of 1818,
subject to termination by either party on twelve months'
notice.
I t is necessary here to consider the grounds upon which
Great Britain and the United States, respectively, based
their claims to the area in dispute, prefacing the survey by
a historical review.

84 6 BOUNDARY DISPUTES AND TREATIES

HISTORICAL REVIEW
On June 7, 1494, Spain and Portugal concluded at
Tordesillas a treaty of Partition of the Ocean whereby the
Portuguese were awarded exclusive territorial rights east
of the meridian line passing 370 leagues west of the Cape
Verde Islands, and the Spaniards were awarded similar
rights west of the same meridian. Bulls had previously
been secured from Pope Nicholas V and Pope Alexander VI,
granting these privileges. The English, however, disre-
garded the papal prohibitions and sent out expeditions of
discovery .
In 1542 Cabrillo (Sp.) examined the west coast of North
America to latitude 37 0 10' N. In the following year his
successor, Ferrelo, reached latitude 400 20' N, and possibly
farther north.
In 1579 Sir Francis Drake (Br.) explored the Pacific
coast of North America as far as 480 N latitude. He landed
at Bodega Bay, about forty miles north of the present city
of San Francisco, took possession of the country in the name
of Queen Elizabeth, and named it New Albion.
In 1582 Gali (or Gualle) reached latitude 37 U O N. It
was a private mercantile enterprise, and was not authorized
by the govern men t of New Spain.
One of Vizcaino's (Sp.) ships is supposed to have reached
43 0 N in 1603.
In 1741 Bering (Russ.) sighted a mountain in latitude
60 0 N and named it St Elias. His subordinate, Chirikof,
discovered land in 5S o 41' N latitude, and coasted to latitude
580 21' N.
Before 1779 the Spaniards had formed establishments
as far north as San Francisco. In 1774 Perez (Sp.) sighted
the present Queen Charlotte Islands, and, possibly, Nootka
Sound. He reached latitude 54 0 N. In 1775 Heceta (Sp.)
discovered the river now known as the Columbia, and named
it Rio de San Roque. One of his vessels, commanded by
Bodega, reached 580 N latitude, thus overlapping the dis-
coveries of the Russians. The accounts of Perez's and
Heceta's voyages were suppressed by the Spaniards, and

FROM FUNDY TO JUAN DE FUCA 847
nothing definite was known concerning them till after the
publication of the journals of Cook's voyage.
In 1776 Cook (Br.) was instructed to proceed to the coast
of New Albion in latitude 45 0 N, a circumstance which showed
that the British government had no intention of relinquishing
any rights acquired by Drake in 1579. He was to proceed
northward to latitude 65 0 N, where he was to begin his
search for a passage to Hudson Bay or Baffin Bay. As no
Spanish discoveries made subsequent to Vizcaino's in 1603
had been published, and as the accounts of the Russian
voyages were very imperfect, these instructions were in
accordance with international law. Cook surveyed the
coast from latitude 47 0 N to Icy Cape in the Arctic Ocean.
Al though the coast had been sighted a t various points by
Perez, Bodega, Heceta, Bering and Chirikof, Cook's obser-
vations were infinitely more minute and more important
than those of any, or all, of the other navigators who had
preceded him.
One result of the publication of Cook's journals was an
influx of fur traders. Among the first persons engaged in the
trade were British subjects, sailing under Portuguese colours
to evade the penalties for invading the chartered rights of the
South Sea Company or of the East India Company. One
of the principal places of resort of the fur traders was Nootka
Sound on the west coast of Vancouver Island. In 1788 an
expedition commanded by John Meares, a half-pay lieutenant
in the British navy, was fitted out at Macao, China, to trade
on the west coast of North America, and sailed under the
Portuguese flag. Meares entered the estuary of the Columbia
in search of the good harbour reported at Ensenada de
Heceta by the Spaniards. Not finding it, he named the
waters Deception Bay and a cape at the entrance Cape Dis-
appointment. Though he did not recognize it as the mouth of
a river, he thus rediscovered the Rio de San Roque of Heceta
-the Columbia River of the present day.
As the Spaniards claimed the whole of the west coast of
North America, considerable uneasiness was created at
Madrid by statements in Cook's works respecting the Russian
establishments in what is now Alaska, and by the influx of

848 BOUNDARY DISPUTES AND TREATIES
fur traders into the North Pacific. In 1789 Martinez, a
Spanish naval commander, seized at Nootka, under circum-
stances that were nearly equivalent to piracy, four vessels of
Meares's trading fleet. The British government demanded
immediate restoration of the vessels seized and reparation for
the losses and injuries sustained by the British traders.
On October 28, 1790, a treaty between Great Britain and
Spain, commonly called the Nootka Cónvention, was signed
at the EscuriaI. Articles 1 and II provided for the restoration
by Spain of the buildings and lands seized at Nootka in 1789
and reparation for all losses. Article V provided that, on the
north-western coasts of North America north of the parts
already occupied by Spain, wherever the subjects of either
power had made settlements since 1789 or C shall hereafter
make any, the subjects of the other shall have free access,
and shall carry on their trade, without any disturbance or
molesta tion.'
On January II, 1794, a supplementary treaty was signed
at Madrid. After reciting that subjects of both powers had
equal rights of frequenting Nootka Sound, it provided that
C neither the one nor the other of the two parties shall make
any permanent establishment in the said port, or claim there
any right of sovereignty or territorial dominion to the exclusion
of the other. And their said Majesties will assist each other
mutually to maintain to their subjects free access to the
said port of Nootka against any other nation which should
attempt to establish there any sovereignty or dominion.' It
is worthy of note that this secret treaty was probably not known
to the American diplomats during the Oregon controversy, and
was first published in I862.
In 1792 Captain Vancouver arrived on the north-west coast
as commissioner on the part of Great Britain to determine
what lands and buildings were to be restored by Spain, and
the amount of indemnity due British claimants. He was also
instructed to survey the coast from latitude 35 0 N to 60 0 N, to
ascertain the existing settlements, and to determine definitely
the existence, or non-existence, of any water-passage that might
serve as a channel for commercial intercourse between the
west coast and the British territories on the east coast.

FROM FUNDY TO JUAN DE FUCA 849
As already stated, Heceta had, in 177S, discovered the
Ensenada de Heceta, and concluded that it was the mouth of
a river. While his report was not made public, the river was
indicated on charts; Meares, in 1788, had confirmed Heceta's
discovery of the bay, but failed to discover that it was the
estuary of a river; in 1792 Vancouver observed that there was
river-coloured water in the bay, but concluded that, under the
instructions of the Admiralty, the opening was not of sufficient
importance to justify examination; a fortnight later Gray dis-
covered that it was a river, and explored the estuary for twenty
miles; later, Vancouver's lieutenant, Broughton, examined
the river for one hundred miles-eighty miles above Gray's
'farthest '-and formally took possession for Great Britain.
In 1793 Alexander Mackenzie (Br.) ascended Peace
River, and made his way across the intervening territory to
the Pacific in latitude 520 20'. This was the first expedition
of civilized men through the country west of the Rocky
Mountains. In 1800 Duncan McGillivray, a British fur
trader, ascended the North Saskatchewan River and dis-
covered the Howse Pass. He travelled four miles down the
Blaeberry River, and was thus the first white man to discover
the upper waters of the Columbia.
As already mentioned, Louisiana was ceded to the United
States in 1803. In the following year Captains Lewis and
Clark were commissioned by President Jefferson to explore
the Missouri River to its source, and also to seek some water-
communication thence to the Pacific. In 1805 these explorers
descended the Snake and Columbia Rivers to the Pacific.
In 1806 the North-West Company, a British company,
established Fort Fraser in latitude 54 0 N-the first settle-
ment made in the so-called Oregon territory by civilized man.
In 1807-11 they established other posts in the basin of the
Columbia, and explored the main stream and its principal
branches. In 1808 the Missouri Fur Company established
a trading post on Snake River-the first establishment made
by citizens of the U ni ted States, west of the Rockies. I twas
abandoned in 1810. In 1807 the North-West Company built
Kootanae House near Columbia Lake, the head-waters of
the Columbia River. Prior to the construction of Astoria

85 0 BOUNDARY DISPUTES AND TREATIES
they had built at least four posts south of latitude 49 0 N,
viz. Fort Kootenae Falls (1808), Kullyspell House (1809),
Saleesh House (1809) and Spokane House (1810 ?). In 181I
the Pacific Fur Company, an American company, founded
Fort Astoria at the mouth of the Columbia. In 1813 Great
Britain and the United States were at war, and Astoria was
sold to the North-West Company to prevent its capture by
a British man-of-war.
The Treaty of Ghent, 1814, provided that possessions taken
during the war should be restored. In virtue of this article
the United States announced that they intended to reoccupy
Astoria. Great Britain claimed that the title had passed to
British subjects by peaceful purchase, but, that 'not even
the shadow of a reflection might be cast upon the good faith of
the British government,' it was restored to the United States.
On May 20, 1818, Adams wrote Rush explaining that it
was through inadvertence that Great Britain had not been
notified that the United States was sending a sloop of war to
resume possession of Astoria. He wrote: 'As it was not antici-
pated that any disposition existed in the British Government
to start questions of title with us on the borders of the South
Sea, we could have no possible motive for reserve or conceal-
ment with regard to the expedition of the Ontario.' He
instructed Rush to give Castlereagh

to understand, though not unless in a manner to avoid
everything offensive in the suggestion, that, from the
nature of things, if in the course of future events it should
ever become an object of serious importance to the United
States, it can scarcely be supposed that Great Britain
would find it useful or advisable to resist their claim
to possession by systematic opposition. If the United
States leave her in undisturbed enjoyment of all her holds
upon Europe, Asia, and Africa, with all her actual pos-
sessions in this hemisphere, we may very fairly expect
that she will not think it consistent either with a wise or
a friendly policy to watch with eyes of jealousy and alarm
every possibility of extension to our natural dominion in
North America, which she can have no solid interest to
prevent, until all possibility of her preventing it shall
have vanished.

FROM FUNDY TO JUAN DE FUCA 851
That the United States should agree to leave Great Britain
· in undisturbed enjoyment' of her territorial possessions in
Europe, Asia and Africa is delicious. C It is doubtful if
Rush found an opportunity to communicate Adams' surpris-
ing suggestion to Castlereagh without avoiding everything
offensive.' 1
In 1826, when the ten-year period of joint occupation was
drawing to a close, negotiations for a settlement of boundaries
were carried on by Huskisson and Addington and by Gallatin.
The protocols attached to the sixth and seventh conferences
are admirable statements of the British and United States
cases respectively.

BRITISH STATEMENT
The British plenipotentiaries asserted that over a large
portion of the disputed territory, namely from latitude
420 N to 49 0 N, the United States claimed full and exclusive
sovereignty, whereas Great Britain claimed no exclusive
sovereignty over any portion of it. Her claim was limited to a
right of joint occupancy, in common with other states, leaving
the right of exclusive dominion in abeyance. In brief, the
pretensions of the United States tended to the ejectment of
all other nations from all right of settlement in the area south
of latitude 49 0 N, whereas the pretensions of Great Britain
only tended to the mere maintenance of her own rights in
resistance to the exclusive character of the pretensions of the
United States.
The statement continued: The claims of the United
States were urged upon three grounds :
(I) As resulting from their own proper right.
(2) As the successor in title to Spain by virtue of the
Treaty of Florida Blanca.
(3) As the successor in title to France by virtue of the
cession of Louisiana in 1803.
The right proper was based on the alleged discovery of the
Columbia by Robert Gray, on the explorations of Lewis and
Clark, and on the settlement of Astoria.

1 Reeves, DiPlomacy under Tyler and Polk, p. 217.

852 BOUNDARY DISPUTES AND TREATIES
The right derived from Spain was founded on the alleged
prior discoveries by Cabrillo, de Fuca, Gali, and Perez. The
right derived from the cession of Louisiana was founded on
the assumption that, as the boundaries of that province had
never been defined longitudinally, it might fairly be asserted
to extend westward to the Pacific.
The British statement claimed that only one of the three
claims could be valid. If, for exampie, the title of Spain by
first discovery, or the title of France as the original possessor
of Louisiana, were valid, then either France or SPain possessed
the country when the United States claimed to have discovered it.
If, on the other hand, the Americans were the first discoverers,
Spain had no claim; and if priority of discovery consti tu ted the
title, that of France fell equally to the ground. In addition,
the most approved writers on international law were agreed
that mere accidental discovery, unattended by exploration-
by formally taking possession--by effective occupation-by
purchase or cession from the natives-constituted the lowest
form of title, and that it was only in proportion as first
discovery was followed by any or all of these acts that such
title was strengthened.
Respecting the title derived by cession from Spain, the
British statement maintained that, even if the conflicting
claims of Great Britain and Spain had not been finally adjusted
by the Nootka Convention 1 in 1790, nothing would be easier
than to demonstrate that the claims of Great Britain estab-
lished more than a parity of title either as against Spain or any
other nation; whatever the title may have been prior to the
convention, it was agreed that all parts of the coast not already
occupied by Spain or Great Britain should be equally open to
the subjects of both; with the rights conveyed to the United
States by Spain by virtue of the Treaty of Florida Blanca,
the United States necessarily succeeded to the limitations by
which they were defined and the obligations under which
they were to be exercised.
1 · If the Nootka convention were, as asserted (}. Q. Adams to Richard Rush)
by the secretary of state, a definitive settlement of general principles of national
law respecting navigation and fishery in the seas, and trade and settlement on
the coasts, here mentioned, it would be difficult to resist the pretensions of the
British plenipotentiaries' (Greenhow, History of Oregon and California, p. 34 1 ).

FROM FUNDY TO JUAN DE FUCA 853
Respecting the third ground of claim, based upon the
cession of Louisiana, the British statement said that by the
cession of 1763 the territory of Louisiana belonged to Spain
in 1790, when the Nootka Convention was signed, and in
1792, when Gray discovered the Columbia. If Louisiana
included the disputed area south of latitude 49 0 N, it was
necessarily included in the stipulations of the Nootka Con-
vention. To expose the futility of this claim, however,
it was only necessary to refer to the original grant to de
Crozat by Louis XIV, wherein it is expressly described as
'the country drained by the waters entering, directly or
indirectly, into the Mississippi.' As no tributaries of the
Mississippi cross the Rockies, no portion of Louisiana could
be found west of them.
The British statement said that, if the discovery of the
mere entrance of the Columbia by a private American
citizen constituted a valid exclusive claim to all the country
between latitude 420 Nand 49 0 N, then must any pre-
ceding discovery of the same country by an individual of
any other nation invest such nation with a more valid,
because a prior, claim to that country. Putting aside
Drake, Cook and Vancouver, who either took possession
of or touched at various points of the coast in question,
in 1788 Lieutenant Meares of the royal navy, when on a
trading expedition, took formal possession of the Strait of
Juan de Fuca, purchased land and formed treaties with the
natives, and entered the bay at the mouth of the Columbia.
1VIeares's account of his voyage was published in 1790, two
years before Gray entered the Columbia. While Gray was
the first to ascertain that this bay formed the outlet of a
great river, could it be seriously urged that this single step
in the progress of discovery not only superseded the prior
discoveries, but that it also absorbed the subsequent explora-
tion of the river by Vancouver for near a hundred miles
above Gray's' farthest,' and also all the other discoveries,
and temporary possession and occupation of harbours on
the coast ?
To support the extraordinary pretension built upon the
limited discovery of Gray that Meares's 'bay' was the

854 BOUNDARY DISPUTES AND TREATIES

embouchure of a river, viz., that it conferred an exclusive
title to the whole basin of the river, the United States had
cited various grants by European sovereigns over several
parts of the American continent. Had the United States,
in 1790, granted to Gray the basin of the Columbia, it would
have been valid as against other citizens of the United
States, but would either Spain or Ç-reat Britain have ac-
quiesced? And, if the right of sovereignty accrued to the
United States by Gray's discovery, why did not the United
States protest the convention of I790? As against the
explorations of Lewis and Clark, the North-West Company
of Canada had already
stablished posts on the head-waters
of the northern branch of the Columbia, 1 and from one of
these parts their agent David Thompson, in 181 I, descended
to the mouth to ascertain the nature of the Astoria settlement.
Respecting the restitution of Fort George, the British
statement said that, when the demand for its restoration
was made, the British government demurred because it
entertained doubts how far it could be sustained by the
construction of the treaty. I t was not a national posses-
sion or a military post, and it was never captured from the
Americans by the British, but had been sold by the Ameri-
can company of its own free will. A British sloop of war
arrived subsequent to this transaction and found the British
company in legal possession of their self-acquired property.
Bu t, as in the case of Astoria, that' not even the shadow of
a reflection might be cast upon the good faith of the British
government,' the latter decided to make the restoration.
To prevent misapprehension as to the extent of the con-
cession, however, the British minister at Washington was
directed to inform Adams, United States secretary of state,
that 'whilst this government is not disposed to contest
with the American government the point of possession as
it stood in the Columbia River at the moment of the rupture,
they are not prepared to adnÛt the validity of the title of the
governnzent of the United States to this setÙement.
, In signifying, therefore, to Mr Adams the full acquies-
cence of your government in the reoccupation of the lÏ1nited
1 And on the branches south of latitude 49 0 N. See pp. 849-50.

FROM FUNDY TO JUAN DE FUCA 855
þosition which the United States held in that river at the
breaking out of the war, you will at the same time assert, in
suitable terms, the claim of Great Britain to that territory,
upon which the American settlement must be considered as
an encroachment! '
'This instruction was executed verbally by the person
to whom it was addressed.' 1
In fine, the British statement maintained:
(I) The nature and extent of the rights acquired by the
United States from Spain, as well as the rights of Great
Britain, were fixed and defined by the Convention of Nootka,
and tha t, in succeeding to the rights, the U ni ted States also
succeeded to the obligations which it imposed. (2) Admit-
ting the discovery of Gray, Great Britain had stronger
claims, on the ground of prior discovery attended with acts
of occupancy and settlement. Whether, therefore, the
United States rested their claims upon the title of Spain,
or upon that of prior discovery, or upon both, Great Britain
was entitled to place her claims at least upon a parity with
those of the United States.
In the interior of the disputed area British subjects had
had, for many years, settlements and trading posts--on the
Columbia and on its tributaries, some to the northward and
some to the southward of that river-and had navigated the
Columbia; whereas in the whole of the territory the citizens
of the United States had not a single settlement or trading
post. Great Britain offered to make the Columbia the
boundary; the United States declined to accede to the
proposal. Such being the result, it only remained for Great
Britain to maintain the qualified rights she possessed; these
rights were defined in the Nootka Convention and embraced
the right to navigate the waters of those countries, to settle in
them, and the right freely to trade with their inhabitants.
The statement concluded with a declaration that Great
Britain would give her subjects full protection, while ready
at any time to agree to a settlement that would not derogate
from her rights or prejudice the advantages that her subjects
then enjoyed.
1 American State Papers, Foreign Relations, vi. p. 665.
VOL. VIII M

856 BOUNDARY DISPUTES AND TREATIES

STATEMENT OF THE UNITED STATES
The American statement declared that the Nootka
Convention was merely of a commercial nature, and in
no way affected the question of distinct jurisdiction and
exclusive sovereignty. It was difficult to believe, on read-
ing the treaty and recollecting in' what cause the con-
vention originated, that any other settlements could have
been contemplated than such as were connected with trade
with the natives; it was only as being of a commercial
nature that the Nootka Convention could be positively
asserted as being in force, as only the commercial treaties
between Great Britain and Spain had been renewed by the
treaty of July 1814. Admitting that the word' settlement'
was used in its most unlimited sense, the stipulations per-
mitted promiscuous and intermixed settlements everywhere
to the subjects of both parties, and declared such settle-
ments made by either party in a degree common to the
other-a state of things incompatible with distinct juris-
diction and sovereignty. The convention, therefore, estab-
lished or changed nothing, but left the parties where it
found them; leaving the question of rights, however derived,
to be settled later. As Great Britain even then claimed only
a right of joint occupancy, leaving the right of exclusive
dominion in abeyance, it was not evident how, at the same
time, it could be asserted that the pretensions of both parties
were definitely set at rest, and that it was only in its text
and stipulations that the title on either side was now to be
traced. Commerce and settlemen ts migh t be made by
either party during the joint occupancy, but the right of
exclusive dominion over any part of the country had not
been extinguished, but only suspended, and must revive
whenever that joint occupancy ceased. Whenever, there-
fore, a final line of demarcation became the subject of dis-
cussion, the United States had a right to appeal, in support
of its claims, not only to its own discoveries, but to all rights
as successors in title to France and Spain, in the same
manner as if the Nootka Convention had never been made.

FROM FUNDY TO JUAN DE FUCA 857
There were, by the usage of nations, continued the
American statement, two rules regulating the right of occu-
pation: (I) Prior discovery gave a right to occupy, if
exercised within a reasonable time, and if followed by per-
manent settlements and by the cultivation of the soil. (2)
The right derived from prior discovery and settlement was
not confined to the spot so discovered or first settled. The
extent of territory which would attach to such first discovery
or settlement might not, in every case, be precisely deter-
mined, but it had been generally admitted that the first
discovery and subsequent settlement, within a reasonable
time, of the mouth of a river, particularly if none of its
branches had been explored prior to such discovery, gave
the right of occupancy, and, ultimately, of sovereignty, to
the whole area drained by such river.
The American statement contended that, in the past,
Great Britain had not considered her charters as valid only
as against her own subjects, and, by excepting from the
grants lands already occupied by the subjects of other
civilized nations, it was clearly implied that they were in-
tended to exclude all other persons and nations. Not only
had the whole country between Hudson Bay and Florida
draining into the Atlantic been occupied and held by these
charters, but the principle had been extended beyond the
sources of these Atlantic rivers. Thus, the rights of the
Atlantic colonies to extend beyond the Alleghanies, not-
withstanding the prior French settlements, had been effec-
tually and successfully enforced. While the two general
rules which had been mentioned might often conflict, it
was the peculiar character of the claim of the United States
that it was founded on both principles, which, in this case,
united both in its support and converted the claim into an
incontestable right. In different hands the several claims
would have conflicted one with another, but united in the
same power they supported each other. The possessors of
Louisiana might have contended for the territory on the
ground of contiguity. The several discoveries of the Spanish
and American navigators might separately have been con-
sidered as so many steps in the progress of discovery, and

85 8 BOUNDARY DISPUTES AND TREATIES
giving only imperfect claims to each party. All those various
claims were now brought united against the pretensions of
any other nation.
Respecting the title derived from the cession of Louisiana,
the American statement maintained that the actual posses-
sion and populous settlements of the valley of the Mississippi
constituted a strong claim to the westwardly extension of
that province over the con tiguous
acan t territory as far
as the Pacific. Crozat's grant was only for part of the
province of Louisiana. I t was bounded on the west by New
Mexico and on the north by the Illinois. The grant did
not include any branches north of the Missouri, the sources
of which were not supposed to extend north of latitude 420 N.
All the territory north of 420 N was included in the govern-
ment of New France, which on the most authentic French
maps extended over territory draining into the South Seas.
In 1717 the Illinois was annexed to Louisiana, and from that
time the latter extended as far as the most northern limit of
the French possessions in North America,1 and thereby west
of New France. The limits between British and French
territories in that quarter were settled by the Treaty of
Utrecht,2 the line of demarcation following the 49th parallel.
The American statement contended that the United States
had an undoubted right to claim, by virtue of the Spanish
discoveries and of their own. It stated that prior to Cook's
voyage Perez had, in 1774, discovered Nootka Sound 3 and
sailed to 55 0 N, discovering Dixon entrance; that Quadra had,
in 1775, explored the coast from 420 N to 54 0 N 4; and that,
in Spanish voyages of subsequent date, the coast was explored
as far as 60 0 N. Juan de Fuca Strait was discovered in 1787
by Barkley. Meares and Vancouver failed to discover the
Columbia. It was entered by Gray, who ascended it for

1 All the territory between the basin of the Mississippi and the Hudson's Bay
Company's territories formed part of New France.
S Limits were not settled. See pp. 887-9 I .
3 There is no evidence that Perez sighted Nootka Sound, and he reached
latitude 54 0 N, not 55 0 N. Later Spanish expeditions reached 580 N, not 60 0 N.
The effect on title was much diminished by the non-publication of these voyages
till after Cook's reports had been published.
, Quadra did not explore the coast between 4810 Nand 54 0 N.

FROM FUNDY TO JUAN DE FUCA 859
twenty miles. The discovery of Gray 1 was called by the
British negotiators only a steþ in the progress of discovery,
and they also attempted to divide its merit between him,
Meares, and Vancouver's officer: Meares had not suggested
nor suspected the existence of a river; Vancouver's lieutenant
had not the slightest share in the discovery. In 1805 Lewis
and Clark had explored the Columbia from its most eastern
source to the mouth. Thus was the discovery of the river
commenced and completed by the United States before any
settlement had been made on it or any of its branches explored
byanyothernation. 2 Even if Thompson had, in 1805, reached
one of the sources of the Columbia north of 500 N, it could not
be seriously contended that this, compared with the com-
plete American exploration, would give to Great Britain' a
title to parity, at least, if not priority of discovery, as opposed
to the United States.' In 181 I the American establishment
of Astoria 3 was commenced near the mouth of the river,
before any British settlement had been made south of the
49th paralle1. 4 As Astoria was seized during the war, it was
formally restored in conformity with the Treaty of Ghent. 5

1 'That the discoverer of the mouth of a river is entitled to the exclusive use
of the river' and that (the exclusive use of the river entitles him to the property
of its banks. . . is an inversion of the ordinary principles of natural law, which
regards rivers and lakes as appendages to a territory, the use of which is necessary
for the perfect enjoyment of the territory, and rights of territory in them only as
acquired through rights of property in the banks' (Twiss, The Oregon Question
Examined, p. 279).
z In 1800 Duncan McGillivray discovered the Blaeberry River, a branch of
the Columbia. Prior to the establishment of Astoria the North-\Vest Company
had built Fort Kootanae north of latitude 49 0 N, and four posts-Kootenae
Falls, Kullyspeel House, Saleesh House and Spokane House--south of it: all
within the basin of the Columbia.
3 Concerning the claim that Astoria-an insignificant trading house erected at
the mouth of a great river like the Columbia-carried with it the title of the whole
basin of that river, it can safely be said that its moderation was at least question-
able. To reduce the contention to an absurdity, it is only necessary to apply the
same theory to mighty rivers like the Mississippi and Amazon.
4 As already stated, the British North-West Company had, prior to the erection
of Astoria, at least four posts south of latitude 49 0 .
Ii . It is manifest that the restoration of Astoria under the treaty, according
to the view for which Bayard had so earnestly contended, was wholly incon-
clusive as to rights of sovereignty over the mouth of the Columbia. The question
of possession before the war was one of fact, and this the United States was not
slow to raise' (Reeves, Diplomacy under Tyler and Polk, p. 208).

860 BOUNDARY DISPUTES AND TREATIES

With the various dispatches to and from the officers of the
British government the United States had no concern; the
only written document known to be in the possession of the
United States was the act of restoration itself, which contains
no exception, reservation or protest whatever.
In fine, the American statement maintained: that the
United States claimed it had first discovered the Columbia;
that the discovery had been attended by simultaneous
occupation and possession and by subsequent settlements,
which had been interrupted only by war. This gave a
right to the whole country drained by that river, which
right, strengthened by other Spanish and American dis-
coveries along the coast, established a stronger title, at least
as far north as latitude 49 0 N, than had ever been before
asserted by any nation to vacant territory. As its exclu-
sive title originated in Gray's discovery in 1792, the United
States had no motive for protesting the Nootka Convention
in 1790. Respecting the formality called 'taking posses-
sion' of a country inhabited by Indians who have no notion
of 'sovereignty,' the American plenipotentiary abstained
from making any remarks. Respecting the trading posts
of the North-West Company of Canada, they were only
established after the United States title was completed,
and, as they were factories unaccompanied by cultivation
and permanent settlement, they could not give a good title. 1
Viewed as a matter of mutual convenience, and to avert,
by a definitive line of limitation, any possible cause of
collision, the American statement said that every considera-
tion connected with the subject should be allowed its due
weight. After paying due regard to the British discoveries,
the line of demarcation offered would sacrifice a portion of
the United States just claim. Under whatever sovereignty
the disputed area might be placed, it would be almost exclu-
sively peopled from the United States. But three nations,
Great Britain, the United States and Spain, had the right
to colonize the territory. The United States, having pur-
chased the rights of Spain, were fairly entitled to two shares.

1 Neither better nor worse than Astoria, except that their occupation was
continuous, whereas Astoria was very short-lived.

FROM FUNDY TO JUAN DE FUCA 861
No settlement, however, was arrived at, and the con-
vention of 1827 extended the joint occupation indefinitely.

OCCURRENCES, 1820 TO 1840
In 1821 the rivalry between the North-West and Hudson's
Bay Companies was ended by the merging of the former
in the latter. In the same year an imperial act was passed
extending the jurisdiction of the courts of Upper Canada
over British subjects in 'other parts of America, not within
the limits of either of the provinces of Upper or Lower
Canada, or of any civil government of the United States.'
In 1821 a committee of Congress recommended a bill
for the' occupation of the Columbia and the regulation of
the trade with the Indians in the territories of the United
States,' 1 but no action was taken on this report. In
President Monroe's message, December 2, 1823, he declared
that the occasion had been judged proper for asserting that
'the American continents, by the free and independent con-
dition which they have assumed and maintain, are hence-
forth not to be considered as subjects for future colonization
by any European powers.' 2
In 1824 General Jessup, in answer to a request from a
select committee of Congress, sent a letter recommending
the erection of forts at the mouth of the Columbia and at
intermediate points between Council Bluffs and the Pacific.:;
President Monroe in 1824 and President Adams in 1825
recommended the establishment of a military post at the
mouth of the Columbia. No action was taken, however.
On August 6, 1827, a convention was signed extending
1 . The tenus of the bill are directly at variance with the provisions of the
third article of the convention of October 1818, between the United States and
Great Britain; as the Columbia could not possibly be free and open to the vessels,
citizens, and subjects of both nations, if it were occuPied by either' (Greenhow,
History of Oreg01
and California, p. 332).
a Messages and Papers of the Presidents, ii. p. 2<>9. · Against this declaration,
which-however just and politic might have been the principle announced-
was unquestionably imprudent, or at least premature, the British and the Russian
governments severally protested' (Greenhow, History of Oregon and California,
p. 33 6 ).
3 ' Another publication,
qually impolitic on the part of the American govern-
ment' (Greenhow, History of Oregon and California, p. 336).

862 BOUNDARY DISPUTES AND TREATIES

the joint occupation indefinitely, but subject to termina-
tion on twelve months' notice by either party.
In 1828 a bill was introduced into Congress authorizing
the president to establish forts, make explorations and
extend the jurisdiction of the United States over the territory
west of the Rockies between the parallels of 420 Nand
54 0 4 0 ' N. The bill was finally rejected in January 182 9.
The merging of the North-West Company in the Hudson's
Bay Company in 1821 proved highly advantageous to the
latter. Great efforts were made to obtain a monopoly, and
so successful were they that the Americans were forced to
abandon the fur trade in the interior and to withdraw their
vessels from the coasts. Competitors were either driven
out of the market by goods being offered to the Indians at
much lower prices than the Americans could afford to take,
or were taken into the company's service.
In 1842 Lord Ashburton arrived at Washington. He
had specific instructions for the settlement of the Oregon
boundary as well as other differences between Great Britain
and the United States, but the Maine boundary was more
pressing, and Webster feared that if an attempt to settle
both boundaries were made, the whole of the negotiations
would fall through. In his message of December 6, 18 4 2 ,
President Tyler said that he would' not delay to urge on
Great Britain the importance' 1 of the early settlement of
the controversy.
Though no action had been taken, and though Lord
Aberdeen had, in the following August, again urged that
negotiations be initiated, President Tyler, in his messages
of December 23, 18 4 2 and of December 5, 1843, referred
to the negotiations in the same inexact language. 2
1 Lord Aberdeen wrote Fox that the British government had · observeJ
with surprise and regret a paragraph in the President's late message to Congress,
which, if not directly at variance with fact, is at least calculated to mislead. . . .
It would have been more candid had he also stated that he had already received
from the British government a pressing overture to negotiate an adjustment of
differences with respect to the Oregon Territory,' and that he had responded to
that overture in the same conciliatory spirit in which it had been made (Blue
Book, Correspondence relative to the Oregon Tef'ritory, p. 3).
2 ' The inference drawn from the President's expressions by all who are
unacquainted with the real state of the case. . . must still be, that the President

FROM FUNDY TO JUAN DE FUCA 86 3
In 1844 John C. Calhoun became United States secretary
of state. As he had, in the previous year, advocated a
policy of ',vise and masterly inactivity,' he opposed any
proposition for the occupation of Oregon on the ground that
it would precipitate war with Great Britain. He adopted
Gallatin's 1 idea that time was fighting on the side of the
United States. Though his views were not changed, he
was 'peremptorily ordered' to negotiate with Pakenham
and to endeavour to effect a settlement on the line of the
49 th parallel. Pakenhan1, however, refused to concede
the territory north of the Columbia. In November 1844
Lord Aberdeen instructed Pakenham to propose arbitration,
but before he could do so Tyler sent a message to Congress
recommending the establishment of military posts across
the continent, and the extension of the federal laws to protect
Americans in the Oregon. On January 21, 1845, Calhoun
declined the offer of arbitration on the ground that it ' might
rather retard than expedite its final adjustment.'
In May 1844 the Democratic convention met at Balti-
more. One plank in their platform was popularly trans-
lated 'Fifty-four-forty or fight '-latitude 54 0 40' being
the initial point of the boundary between Russian America
and the Oregon territory. Knowing the opposition of the
North to any extension of slave territory, and being deter-
mined to annex Texas, the Democrats saw in Oregon a
counterpoise to Texas and an area that, owing to difficulty
of access, would be peopled much more slowly. On this
platform Polk was elected.
In his inaugural message, March 4, 1845, President Polk
stated it would become his duty to 'assert and maintain
by all constitutional means the right of the United States

has been occupied in urging upon Her Majesty's Government an early settle-
ment of the Oregon Question; and that Her Majesty's Government, on their
part, have either been inattentive to the urgency of the question, or reluctant to
proceed to an adjustment of it' (Fox to Aberdeen, Cot't'espondence t'elative to
the Ot'egon T et'ritot'y, p. 6).
1 In 1826 Gallatin wrote Clay that, as Great Britain considered the territory
as open to the first occupant, all c that the United States might want was the
very object which Great Britain declared to be hers, viz., the preservation of
peace until . . . the whole country was occupied' (A merican State Papet's,
Foreign Relations, vi. p. 680).

864 BOUNDARY DISPUTES AND TREATIES
to that portion of our territory which lies beyond the Rocky
Mountains. Our title to the country of the Oregon is clear
and unquestionable.' Pakenham again urged arbitration,
hoping the new administration might reverse Tyler's deci-
sion. In July James Buchanan, United States secretary of
state, proposed the 49th parallel to the Pacific, any port
or ports on Vancouver Island south ,of that parallel to be
made free to Great Britain.
Pakenham flatly declined the proposal, and expressed
the hope that the United States would offer some further
proposal 'more consistent with fairness and equity, and
with the reasonable expectations of the British Govern-
ment.' Polk then withdrew his proposition, and proposed
to claim the whole territory.1 Buchanan was anxious to
continue the negotiation, but Polk opposed, believing that
there was no probability of adjusting the subject. Upon
learning Polk's attitude Pakenham withdrew a conciliatory
note that he had delivered. In his message, December 2,
1845, Polk stated that he had withdrawn his offer of a com-
promise and that the title of the United States' to the whole
Oregon Terri tory' had been 'asserted, and, as is believed,
maintained by irrefragable facts and arguments.' 2 Late
in December Buchanan told Polk that the next two weeks
would mean peace or war. In January 1846 Louis MCLane,
United States minister at London, reported that Great Britain

1 'The only way to treat John Bull; said Polk to a South Carolina member
of Congress, ' was to look him straight in the eye. 1 considered a bold and firm
course on our part the pacific one' (Polk's Diat'y, January 4, 18 4 6 ).
z · It was certainly an unusual thing-perhaps unprecedented in diplomacy-
that, while negotiations were depending . . . one of the parties should authori-
tatively declare its right to the whole matter in dispute, and show itself ready
to maintain it by arms. The declaration in the inaugural had its natural effect
in Great Britain. It roused the British spirit as high as that of the American.
. . . The new administration felt itself to be in a dilemma. To stand upon
54-4 0 was to have war in reality; to recede from it, might be to incur the penalty
laid down in the Baltimore platform. . . . The secretary [Buchanan] seemed to
expect some further proposition from the British government; but none came.
The rebuff in the inaugural address had been too public, and too violent, to
admit that government to take the initiative again. It said nothing; the war
cry continued to rage; and at the end of four months our government found
itself under the necessity to take the initiative, and recommence negotiations
as the means of avoiding war' (Benton, Thirty Years' View, ii. pp. 661-2).

FROM FUNDY TO JUAN DE FUCA 86 5
was making extensive preparations for war. Polk announced
that, while he stood for' fifty-four degrees forty minutes,'
he would refer any suitable proposition to the Senate-a
hint that an offer of forty-nine degrees would be accepted.
On April 28 Polk gave notice of the abrogation of the
joint occupation convention, and, when transmitting it,
Buchanan invited the British government to make a pro-
posal for a settlement. Knowing that Polk would accept,
Lord Aberdeen instructed Pakenham to offer the 49th
parallel, reserving to Great Britain the whole of Vancouver
Island and the navigation of the Columbia.

THE OREGON TREATY
On June IS, 1846, Richard Pakenham, on the part of Great
Britain, and James Buchanan, on the part of the United
States, signed at Washington the so-called Oregon Treaty.
Article I defined the boundary as following the 49th
parallel from the Rockies to 'the middle of the channel
which separates the continent from Vancouver's Island; and
thence southerly through the middle of the said channel,
and of Fuca's Straits, to the Pacific Ocean: Provided, how-
ever, that the navigation of the whole of the said channel
and straits, south of the forty-ninth parallel of north latitude,
remain free and open to both parties.'
Article II provided for the free navigation of the Columbia
River. Articles III and IV provided that the possessory
rights of the Hudson's Bay and Puget's Sound Agricultural
Com panies should be respected and tha t, if possession of
their lands were desired by the United States, they should
be transferred to the said government at a proper valuation.
Before the treaty was signed Polk referred it to the
Senate. In the message accompanying it he said, that, as
the Senate was not only 'a branch of the treaty-making
power,' but also' of the war-making power,' it was proper
to take the advice of that body in advance upon a question
which might involve the issue of peace or war.! In endea-
1 · Thus he evaded all responsibility for the compromise line. He made it
appear that the proposal for such a settlement came wholly from Great Britain.
It was true that the official þt'oposal did so come, but not until Polk had let it be

866 BOUNDARY DISPUTES AND TREATIES

vouring to effect a settlement he was much hampered by
his own utterances and by the Baltimore platform that
had carried him into power. While nominally insisting
on the extreme claim, he endeavoured to prepare the public
mind for a recession to 49 0 N. Haywood and Benton,!
senators friendly to the president, contended that the
president was not so far committed against the latter that
he could not form a treaty upon it. Eventually the Senate
ratified it, the vVhigs and moderate Democrats outvoting the
extremists of the latter party.

SETTLEMENT IN THE DISPUTED AREA
Before discussing the settlement it is necessary to glance
briefly at the development of the disputed area prior to the
signing of the treaty.
The first serious attempt to bring land under cultiva-
tion was made in 1828, in the \Villamette Valley, by time-
expired servants of the Hudson's Bay Company. In 18 34
Methodist missionaries established themselves in the same
region. Although assisted by Dr John MCLoughlin, the
governor of the Hudson's Bay Company in the territory
west of the Rockies, they opposed the company, and plotted
to deprive MCLoughlin of his prior claim to the water-power
at the falls of the Willamette. 2

understood by Aberdeen and Pakenham that he would not reject it. He cast
upon the Senate the responsibility for the compromise, warning them, however,
that its rejection might mean war' (Reeves, Diplomacy under Tyler and Polk,
p. 26 3).
1 Benton, in his speech, heaped ridicule upon the · Fifty-four-Forties: as he
dubbed the extremists. He said: . Russia is not there, bounding us on the north,
yet that makes no difference in the philosophy of our Fifty-four-Forties, who
believe it to be so; and, on that belief, are ready to fight. Their notion is, that
we go jam up to 54 0 -40', and the Russians come jam down to the same, leaving
no place for the British lion to put down a paw, although that paw should be no
bigger than the sole of the dove's foot which sought a resting-place from Noah's
ark. This must seem a little strange to British statesmen, who do not grow so fast
as to leave all knowledge behind them' (Benton, Thirty Years' View, ii. p. 669).
:II · Such were the methods by which the members of the Methodist Mission
exhibited their hostility to the man who had pursued one unvarying course of
kindness to them and their countrymen for eight years with no other cause than
their desire to deprive him of a piece of property which they coveted · (Bancroft's
TVorks, xxix. p. 210).

FROM FUNDY TO JUAN DE FUCA 86 7
Linn introduced into the Senate in 1842 a bill authorizing
the adoption of measures for the occupation and settlement
of Oregon and for the exercise of jurisdiction therein. The
discussions in Congress and the missionary efforts resulted
in a pronounced immigration. In 1843 one thousand im-
migrants arrived and were relieved by MCLoughlin. The
general condition of the new colonists was one of destitution.
They were' people of pronounced character, rudely arrogant
and aggressive.' In 1844 fourteen hundred people crossed the
plains. The condition of these immigrants on arrival at their
destination was worse than that of the immigrants of 1843.
In 1845 three thousand persons arrived, doubling the
white population. In 1841 an attempt was made to form
a provisional government. In 1843 a legislative committee
was appointed, and laws respecting the judiciary and land
were adopted. In 1845 a legislative committee approached
MCLoughlin and proposed that he should unite the Americans
in the government compact. It was urged that this action
would secure the property of the company and conduce to
the maintenance of peace and order. MCLoughlin yielded,
and on August 15, 1845, with his lieutenant, James Douglas,
consented to become a party to the articles of compact.
Bancroft says that he deemed it prudent to yield, as in
June he had received from the company in London' a com-
munication informing him that in the present state of affairs
the company could not obtain protection from the govern-
ment, but it must protect itself the best way it could.' He
must also have been influenced by the expectation that
his action would enable him to hold the land that he had
taken up.
A few days after MCLoughlin and Douglas had given
their adhesion to the provisional government, Captain Park,
R.N., and Lieutenant Peel, R.N., son of Sir Robert Peel,
arrived. The former brought a letter from Admiral Seymour,
commanding the British squadron in the Pacific, informing
MCLoughlin that he would afford protection to British sub-
jects in Oregon. This was undoubtedly the turning-point in
the dispute. Not only did Park and Peel report this fatally
compromising action by the chief representatives of the Hud-

868 BOUNDARY DISPUTES AND TREATIES

son's Bay Company, but MCLoughlin assured them and even
wrote to England that the country' was not worth a war.'
Largely through MCLoughlin's assistance there were, in
1846, about 7000 American settlers as compared with only
400 British, outnumbering the latter by eighteen to one.
The remarks of Warre and Vavasour, though not received
by the British government till after the treaty was signed,
indicate the state of affairs in Or
gon viewed from a
British standpoint. l Lieutenant Peel arrived in London
in February 1846, bearing the report of Captain Gordon,
brother of Lord Aberdeen. Gordon's 2 report also censures
the Hudson's Bay Company.

REVIEW OF THE SETTLEMENT
The settlement, under the existing conditions, was a
fair and reasonable one. It concluded differences that had,
on several occasions, brought the two countries to the verge
1 . \Vhatever may have been the orders, or the motives of the gentleman in
charge of the Hudson's Bay Company's posts on the west of the Rocky Moun-
tains, their policy has tended to the introduction of the American settlers into
the country.
'We are convinced that without their assistance not 30 American families
would now have been in the settlement.
'The first immigrations, in 1841 or 1842, arrived in so miserable a condition,
that, had it not been for the trading posts of the Hudson's Bay Company, they
must have starved, or been cut off by the Indians. . . . The agents of the Hudson's
Bay Company gave every encouragement to their settlement, and goods were
forwarded to the Willamette Falls, and retailed to these citizens of the United
States at even a more advantageous rate than to the British subjects.
'Thus encouraged, emigrations left the United States in 1843,1844 and 18 45,
and were received in the same cordial manner.
'Their numbers have increased so rapidly that the British party are now in
the minority, and the gentlemen of the Hudson's Bay Company have been obliged
to join the organization, without any reserve except the mere form of the oath of
office. Their lands are invaded-themselves insulted-and they now require
the protection of the British government against the very people to the introduc-
tion of whom they have been more than accessory' (Documents t'elative to Wat't'e
and Vavasour's Militat'y Reconnaissance in Oregon, 1845-6; Quat'tet'ly of the
Oregon Histot'ical Society, x. pp. 81-2).
I Gordon is reputed to have been so disgusted because the Columbia salmon
would not rise to a fly, that he reported that' the country was not worth a damn.'
Bancroft (xxix. p. 499) says · not worth a war: but the former is the commonly
accepted version. The story, however, rests upon no certain basis, and is,
almost certainly, one of the numerous crop of fables current respecting each and
every boundary dispute.

FROM FUNDY TO JUAN DE FUCA 869
of war, but, of course, was not satisfactory to the extremists
of either party in Oregon. I t was not satisfactory to the
pro-American party, inasmuch as they were not conceded
the right to seize without compensation the property of the
Hudson's Bay and Puget's Sound Companies; it was not
satisfactory to the Hudson's Bay Company, inasmuch as
they foresaw that, with an antagonistic territorial govern-
ment and populace, the monopoly of the trade would soon
pass from them. The attitude of Great Britain throughout
was a dignified one, ignoring the petulance and unreason-
able claims of the Americans,1 conceding that the United
States had certain rights and being prepared to offer a
boundary that was equitable and even generous; willing
to make concessions such as ports on Puget Sound and free
access thereto, but, until overwhelmed by the immigration
from the United States, standing by the Columbia River
as an irreducible minimum. It must be borne in mind,
also, that in this matter the government of Great Britain
was in great part merely supporting the Hudson's Bay
Company. The action of MCLoughlin, the virtual governor
of the great North-\Vest, in joining the provisional govern-
ment fatally compromised the company, and it is by no
means a matter for surprise that, after Gordon's report had
been received, Lord Aberdeen decided to abandon the
British claim to the mainland south of latitude 49 0 N. If
the Hudson's Bay Company was content to accept the
existing government-so strongly pro-United States that
annexation to, or absorption by, that country was only a
question of time-is it surprising that British diplomats
concluded a treaty that apparently conserved the interests
of the company so far as they themselves, apparently,
desired them conserved ? 2 Canadians are prone to accuse

1 'The company [Hudson's Bay Co.] in Oregon, held that... in the settle-
ment the United States had been treated by England, whose people could afford
it, much as a kind parent treats a wayward child. And in this they were right;
for had England been as unreasonable, overbearing, and insulting as the people of
the United States, there assuredly would have been war' (Banct'ojfs WOt'ks,
xxix. pp. 596-7).
:II Reeves, in his Diþlomacy under Tylet' and Polk, pp. 263-4, sums up as
follows: f Polk had looked John Bull firmly in the eye, and John Bull proposed

870 BOUNDARY DISPUTES AND TREATIES
Great Britain of sacrificing Canadian territory, forgetting
that in 1846 Canada did not exercise jurisdiction in the
western half of the continent, and that, had anyone pre-
dicted that in a quarter of a century Canada would extend
from ocean to ocean, he would have been regarded as an
irresponsible visionary.
The dispute was virtually settled on the principle that
'effective occupation' constitutes an unassailable title. It
is also interesting to note that the division of territory was
practically based on the 'Hinterland' 1 idea-nearly forty
years before that doctrine was put forward as a principle of
international law. That it was the part of wisdom to effect
a settlement was demonstrated ten years later, when the
Fraser River gold rush resulted in an influx into British
Columbia of thousands of American miners and of the
undesirable class of citizens who accompany such 'rushes.'
what he had so often refused. But was Polk's firmness the cause of the peaceful
and fair settlement? Had Palmerston been in Aberdeen's position at the time
of Polk's" firm" pronouncement, Polk might have lost Oregon, That the
Oregon question was settled in the manner it was is one of the glories of the
administration of Sir Robert Peel. Aberdeen's large-mindedness and consistent
belief that the friendship of the United States was worth much more to Great
Britain than a few degrees of latitude on the Pacific coast are responsible for the
settlement that Polk thought to gain by a firm policy. That Aberdeen was
" bluffed .. by Polk is absurd. Peel knew that he could not retain office after
the repeal of the Corn Laws, and it was the part of great statesmanship not to
leave to his successors in office an imþasse that had been brought about during
his administration, Peel could not go into opposition with a war of his own
creation upon his hands. He would not aggravate the warlike feelings of England
for the purpose of maintaining his hold upon office. McLane was cor.:ectly
advised of Peel's attitude when Aberdeen sent Pakenham his instructions to
propose the compromise line. He wrote to Buchanan that Peel's ministry would
resign before the end of June. and that in case the new proposals were not accepted
promptly. the new ministry might not agree to as favourable terms. Upon the
day that the Peel administration resigned. news came that the United States
had agreed to Aberdeen's offer of settlement. and the second great boundary
controversy with the mother-country was at an end.'
1 Richard Olney. United States secretary of state. in a communication to Sir
Julian Pauncefote. June 22. 1896. stated that 'It can not be irrelevant to remark
that" spheres of influence" and the theory or practice of the" Hinterland" idea
are things unknown to international law and do not as yet rest upon any recog-
nized principles of either international or municipal law. They are new depar-
tures which certain great European powers have found necessary and convenient
in the course of their division among themselves of great tracts of the continent
of Africa. and which find their sanction solely in their reciprocal stipulations'
(Moore, A Digest of International Law, i. pp. 268-9).

=-
,--

SAN JUAN WATER BOUNDARY

b

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J.O :u; zo

J b

LEGEND
- Boundary contended for by Great Britain.
...'.......---- Boundary contended for by United states.
++++++ Boundary awarded by Arbitrator, Oct. 21st, 1872.
- - - - - - Compromise offered by British Commissioner.

4-9

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rh.. 1:ihclnægh G.ogropiucol. In.utute

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v .Icll1/e,\' '''''iff', FR. (;.S., e.qn"''''.\'lv (VI' ''( lJ1IOJu t1lld 1t... 1'N:wulc"8,"

FROM FUNDY TO JUAN DE FUCA 871
It is not too much to say that, had it occurred before the
treaty of partition was signed, the province would probably
have been lost to the British crown.

SAN JUAN CONTROVERSY
Hardly was the ink on the Oregon Treaty dry before
differences arose respecting the identity of the 'channel
which separates the continent from Vancouver's Island.'
The British government claimed the eastern channel,
Rosario Strait, and the United States contended for the
western channel, Haro Strait.
Attempts were made to settle the question by negotia-
tion, but were unsuccessful. Meanwhile settlers were occupy-
ing the territory, and the consequent danger of collisions was
steadily increasing. In 1848 Crampton, British minister
at Washington, proposed · to the Government of the United
States to name a Joint Commission for the purpose of mark-
ing out the north-west boundary; and more particularly
that part of it in the neighbourhood of Vancouver's Island.'
In 1856 Crampton repeated his proposal. To this the
United States government assented. Captain James C.
Prevost, R.N., and Captain George H. Richards, R.N., were
appointed commissioner and second commissioner respec-
tively on the part of Great Britain, and Archibald Campbell
was appointed commissioner on the part of the United
States. At their first meeting, June 27, 1857, they exhibited
their respective commissions. Campbell's instructions em-
powered him to determine the boundary-line from the
summit of the Rockies to the Pacific, whereas Captain
Prevost's powers were limited to the determination of the
wa ter boundary.l
They held six meetings, but failed to arrive at an agree-
ment. The British commissioner contended that the channel
men tioned should possess three characteristics :
c 1. It should separate the continent from Vancouver's
Island; 2. It should admit of the boundary line being

1 For details of the conferences between Prevost and Campbell see British
and FOf'eign State Papers, Iv. pp. 12II-88.
VOL. VIII N

872 BOUNDARY DISPUTES AND TREATIES
carried through the middle of it in a southerly direction.
3. It should be a navigable channel.' He admitted that
the Haro Strait was navigable, but contended that, from
the rapidity and variableness of its current and lack of
anchorages, it would generally be avoided by sailing vessels,
which would prefer Rosario Strait, a waterway used by the
Hudson's Bay Company since 1825. He argued that the
Haro Strait did not separate the r continent from Van-
couver's Island,' the continent already having been separated
from that island by another navigable channel-Rosario
Strait; that a line drawn through Haro Strait must proceed
for some distance in a westerly direction, whereas the treaty
required that it should proceed in a southerly direction; and
that, although there were islands east of Rosario Strait, there
was no navigable channel between them and the continent.
The American commissioner claimed that Haro Strait
was the deepest and widest of the channels connecting Juan
de Fuca Strait and the Gulf of Georgia, and was the one
usually designated on the maps in use at the date of the
trea ty. Other channels merely separated islands from each
other; Haro Strait, since it washed the shores of Vancouver
Island, was the only one that separated the island from the
continent. The word' southerly' was only used in the treaty
as opposed to 'northerly,' and was used with reference to the
line through Juan de Fuc:l Strait, where it runs about west-
north-west. He argued that contemporary evidence demon-
strated that Haro Strait was proposed by Great Britain and
accepted by the United States, and quoted the correspondence
of American authorities as to their understanding of the article.
He said that the only claim by Great Britain that Rosario
Strait was intended was contained in the note of Crampton
to James Buchanan, of January 13, 1848, and that the claim
that Rosario Strait was the only one that had been surveyed
and used was obviously erroneous, as Haro Strait had been
surveyed and used by Spain and the United States.
In reply the British commissioner stated that McLane
and Benton, quoted by Campbell, were not the actual nego-
tiators of the treaty; that MCLane merely said that the
proposition would' most probably' be made; that it was

FROM FUNDY TO JUAN DE FUCA 873
not made, and that the failure to name it was evidence that
Haro Strait was not intended. He quoted Preuss's map
of Oregon and Upper California, published in 1848, and' a
diagram of a portion of Oregon Territory,' by the surveyor-
general of Oregon, dated October 21, 1852. In both maps
the boundary was drawn through Rosario Strait. He
further said that he had been officially informed 'by high
and competent authority' 1 that Rosario Strait was the
channel contemplated by the British government in the
treaty.
The American commissioner, in reply, stated that Preuss's
map was inaccurate, and that neither it nor the surveyor-
general's map had any official relation to the boundary
question. He quoted Arrowsmith's map of 1849, in which
Haro Strait was indicated as the boundary. He also adverted
to the fact that the Earl of Clarendon did not disclose the
authority upon which his statement was based.
The British commissioner then offered, without preju-
dice, a compromise line which would give San Juan Island
to Great Britain, and the other islands, Orcas, Lopez, etc.,
to the United States. Though this offer would have con-
ceded two-thirds of the area, the United States commis-
sioner refused to entertain it. This offer was made in
accordance with special instructions to Captain Prevost,
instructions which were not exhibited in the first instance
to Campbell. It was therein stated that a 'middle' line
would pass just eastward of the Matia group, and being
prolonged from thence nearly due south would pass through
Rosario Strait into Juan de Fuca Strait. It appeared, it
was said, that this line was so clearly and exactly in accord-
ance with the terms of the treaty that it might be hoped
the American commissioner would accept it, but, if he
refused it, the British commissioner was at liberty to adopt
any other intermediate channel that was 'substantially
in accordance with the description of the Treaty.' 2
In 1859 a pig belonging to the Hudson's Bay Company

1 Earl of Clarendon, secretary for Foreign Affairs.
I Blue Book, No"th-West Ame"ican Wate" Bounda"y, Reply of the United
States. . . presented to His Majesty the Emperor of Germany, p. .p.

874 BOUNDARY DISPUTES AND TREATIES
was shot by an American citizen on San J uan--one of the
islands in dispute. On the strength of a statement by the
American that an officer of the company had threatened
to arrest him and take him to Victoria for trial-which was
denied by the officer-General Harney, commanding Oregon
district, landed United States troops on the island; a redoubt
was constructed, and, but for the forbearance of Admiral
Baynes, war would have been precipitated by General
Harney and some of his' fire-eating' officers. This action
was promptly protested by Great Britain, and General
Scott was instructed to proceed to Washington Territory
and arrange a modus vivendi. An arrangement for a joint
occupation by one hundred British and one hundred United
States troops was concluded.
During 1859 and 1860 several fruitless attempts were
made by the British government to induce the United States
to refer the question to arbitration. On January 14, 1869,
Lord Clarèndon and Reverdy Johnson concluded a convention
for arbitration by the president of the Swiss Confederation,
but the United States Senate failed to ratify it. In 1871 an
attempt was made to settle the question by the Joint High
Commission, but without success, the American commis-
sioners declining the British offer of the compromise line.
By Articles XXXIV to XLII of the Treaty of \Vashington,
May 8, 1871, it was provided that the respective claims
of Great Britain and the United States to Rosario Strait
and Haro Strait should be submitted to the arbitration
and award of the German Emperor, who should 'decide
thereupon finally and without appeal which of those claims
is most in accordance with the true interpretation of the
treaty of June 15, 1846.' Owing to the contentious attitude
assumed by the United States, this question was one of the
most troublesome that the Joint High Commission had to
deal with, and 'came near precipitating an unsuccessful
termination of its labours.'
The case for Great Britain was prepared by Admiral
James C. Prevost, and the case for the United States by
George Bancroft, United States minister at Berlin. The
United States case was delivered at the Foreign Office,

FROM FUNDY TO JUAN DE FUCA 875
Berlin, on December 12, 1871, and the British case on the
15th. The second statement of Great Britain was presented
on June 10, 1872, and that of the United States on the 11th.

A"\VARD OF THE GERMAN EMPEROR
On October 21, 1872, the emperor rendered his award
that the claim of the United States for Haro Strait was
· most in accordance with the true interpretations of the
trea ty , of 1846.
The British government was severely criticized for agree-
ing to limit the arbitration to the Rosario and Haro channels
instead of asking the arbitrator to determine which channel
was meant in the treaty.! As insisting upon it might have
wrecked the whole treaty, the criticism was not justified,
though such a reference would probably have given Great
Britain San Juan and \Valdron, leaving Orcas and Lopez to
the United States.
The arguments and the evidence adduced by the con-
tending parties show that the evidence by both sides was
of an inconclusive nature, and, in general, consisted of ex
parte interpretations of discussions and correspondence.
The Oregon Treaty was concluded hastily, both nations
fearing that actions of its subjects would precipitate a con-
flict; and there is no reason to believe that the negotiators
intended the boundary to be drawn elsewhere than is stated
in the treaty, viz., C the middle of the channel which separates
the continent from Vancouver's Island.' An examination
of the chart shows that the · mid-channel' line follows
approximately the compromise line offered by the British

1 Earl de Grey, in the House of Lords, June 12, 1872, in defending the Treaty
of Washington, said that the Earl of Derby adopted an easy mode of criticizing the
treaty in respect of questions which he did not desire to discuss by merely declaring
that they were of no importance and that they could be settled with the utmost
facility. ' My noble friend,' said Earl de Grey, ' took as an instance the case of
the island of San Juan; but so far from that question being settled with the
ntmost facility, it was one of those which caused us the greatest trouble. The
United States commissioners raised great difficulties on the subject, and we were
obliged to insist strongly upon the views of Her Majesty's Government with
respect to it' (Hansard, ccvi. 1865: quoted in Moore's InternaHonal Arbitrations,
i. p. 227).

876 BOUNDARY DISPUTES AND TREATIES

commissioners, except that it would have been more favour-
able to Great Britain as regards some of the small islands.
On March 10, 1873, a protocol was signed at \Vashington,
by Sir Edward Thornton and Admiral Prevost on the part
of Great Britain, and by Hamilton Fish on the part of the
United States. The boundary-line was drawn on four
identical charts and was defined by a series of courses from
the mainland to the Pacific. '

HUDSON' S BAY COMPANY CLAIMS
In the portion of the territory that fell to the United
States in 1846 the Hudson's Bay Company had thirteen
establishments, and the Puget's Sound Agricultural Company
-an accessory organization-two. After the passage of the
act establishing the territory of Oregon the companies found
their position increasingly precarious. They were harassed
by peculiar constructions of the revenue laws; their cattle
were shot by travellers, as game; the lands surrounding the
Hudson's Bay Company's forts and the Puget's Sound Com-
pany's farms were covered by American squatters, on the
ground that the possessory rights of the company would
expire with their charter; they were refused- reparation when
they appealed to the courts; the right to navigate the
Columbia was rendered valueless by the interpretation that
the words' on the same footing as citizens of the United
States' permitted the levying of customs dues on merchan-
dise imported for trade. The companies finally offered to
dispose of their interests to the United States.
On July I, 1863, a treaty' for the final settlement of the
claims of the Hudson's Bay and Puget's Sound Agricul-
tural Companies' was signed at \Vashington by Lord Lyons
and William H. Seward. It provided for the appointment
by each government of a commissioner 'for the purpose
of examining and deciding upon all claims' arising out of
the provisions of the treaty of 1846. It further provided
for the appointment of an umpire-to be chosen by the
commissioners. Sir John Rose was appointed commissioner
on the part of Great Britain, and Alexander S. Johnson on

FROM FUNDY TO JUAN DE FUCA 877
the part of the United States. Benjamin R. Curtis was selected
as umpire.
The Hudson's Bay Company claimed .f879,850 or
$4,321,937, and the Puget's Sound Agricultural Company
t;240,ooo or $1,168,000. On September 10, 1869, the com-
missioners rendered their award. They awarded the Hudson's
Bay Company $450,000 and the Puget's Sound Agricultural
Company $200,000 'as the adequate money consideration
for the transfer to the United States of America' of all their
possessory rights and claims.

SURVEYS OF THE BOUNDARY
Article 1 of the Oregon Treaty, 1846, provided for the
appointment of a commissioner and a chief astronomer by
each of the subscribing governments, to mark and determine
the boundary-line between the summit of the Rockies and
the Strait of Georgia. In 1857 Archibald Campbell was
appointed commissioner, and Lieutenant John G. Parke
chief astronomer, on the part of the United States. In
1858 Colonel J. S. Hawkins, R.E., was appointed first com-
missioner, and Captain George H. Richards, R.N., as second
commissioner and chief astronomer, on the part of Great
Britain. In view of the great expense involved in marking
the whole boundary, the commissioners decided to determine
it only at stream crossings, settlements, etc., by astronomical
observations, and to mark the line in the vicinity of the
observation stations. Of the 410 miles 190 miles were
cleared and marked. The field work closed la te in 1860
or early in 1861.
In 1870 it was discovered that' the commonly-received
boundary line between the United States and the British
possessions' at Pembina was 4700 feet south of the 49th
parallel. In 1872 Major D. R. Cameron, R.A., was
appointed commissioner on the part of Great Britain, and
Captain S. Anderson, R.E., chief astronomer. On the part
of the United States, Archibald Campbell and Colonel
Farquhar were appointed commissioner and chief astronomer
respectively. In 1873 Colonel Farquhar was succeeded by

878 BOUNDARY DISPUTES AND TREATIES
Captain W. J. Twining. The field work was completed in
18 74 and the final proceedings were signed on May 29, 1876.
The treaty between Great Britain and the United States
signed at Washington, April I I, 1908, provided for the
demarca tion of the boundary between Canada and the
United States. "Vm. F. King was appointed commissioner
on the part of Great Britain, and O. H. Tittmann on the
part of the United States. Articles vl and VII provided for
the surveying and marking of the line between Lake of the
Woods and the summit of the Rocky Mountains, and from
the latter point to the Gulf of Georgia. The work is com-
pleted (1913) with the exception of a few miles west of Lake
of the Woods. Article VIII provided for the delineation
upon accurate charts of the boundary from the 49th parallel
to the Pacific Ocean. The field work is (1913) completed,
with the exception of the point at which the line leaves the
49th parallel.

II
ONTARIO-lVIANITOBA BOUNDARY

R
sUM
OF DIFFERENCES
T HE Quebec Act, 177 4f defined the western boundary
of the Province of Quebec as extending from the
confluence of the Mississippi and the Ohio, & north-
ward to the southern boundary of the territory granted to the
Merchants Adventurers of England trading to Hudson's Bay.'
In 1791 Quebec was divided into Upper Canada and
Lower Canada. The division line commenced at Pointe au
Beaudet on Lake 5t Francis; thence northward to the
Ottawa River; thence up the Ottawa to the head of Lake
Timiskaming, & and from the head of the said Lake by a line
drawn due north until it strikes the boundary line of Hudson's
Bay, including all the territory to the westward and south-
ward of the said line to the utmost extent of the country com-
monly called or known by the nal1le of Canada.'
In 1870 an imperial order-in-council was passed pro-
viding for the surrender to Canada of all the territorial rights

ONTARIO-MANITOBA BOUNDARY 879
and claims of the Hudson's Bay Company. Prior to the
surrender Ontario's claims to a large area north and west
of Lake Superior had been preferred by authorities. After
the transfer, settlement commenced in the disputed area,
and a decision respecting the conflicting claims of j urisdic-
tion became necessary. The matter was referred to arbitra-
tion, and in 1878 the award was delivered fixing the northern
boundary at the Albany and English rivers, and the western
at a due north and south line from the north-west angle
of Lake of the Woods.
Before the award could be confirmed the Mackenzie
administration was defeated at the polls. The new adminis-
tration claimed that the award was recommendatory only,
and refused to accept it. In 1881 the Dominion passed an
act extending the boundaries of Manitoba. The eastern
boundary was a contingent line, and was defined as a due
north line from the intersection of the western boundary of
Ontario and the international boundary between Canada
and the United States. The Dominion government con-
tended that the western boundary of Ontario was the pro-
longation of a due north line from the confluence of the
Ohio and Mississippi, and that the height-of-Iand between
the waters of the St Lawrence and Hudson Bay formed the
northern boundary. The dispute was referred to the im-
perial Privy Council, which in 1884 confirmed the award of
the arbitration of 1878.
Having briefly sketched the differences, it is necessary to
retrace our steps and examine the various acts of state,
etc., affecting this dispute.

HUDSON'S BAY COMPANY'S CHARTER, 16701
On May 2, 1670, Charles II, 'being desirous to promote
all endeavours tending to the public good of our people, and
to encourage' the undertaking, granted to his' dear entirely
beloved cousin, Prince Rupert' and his associates 'and
their successors, the sole trade and commerce of all these
seas, straits, bays, rivers, lakes, creeks and sounds, in what-
1 See · The" Adventurers" of Hudson's Bay' in section I.

880 BOUNDARY DISPUTES AND TREATIES

soever latitude they shall be, that lie within the entrance
of the straits, commonly called Hudson's Straits, together
with all the lands, and territories upon the countries, coasts,
and confines of the seas, bays, lakes, rivers, creeks and
sounds aforesaid, that are not already actually possessed by
or granted to any of our subjects, or possessed by the
subjects of any other Christian Prince or State. . . and
that the said land be from henceforth reckoned and reputed
as one of our plantations or colonies in America, called
" Rupert's Land." ,
This charter to the 'Governor and Company of Adven-
turers of England trading into Hudson's Bay' or, to use
the common form, the' Hudson's Bay Company,' in so far
as it was implemented by effective occupation, formed the
basis of the company's territorial claims to the territory
draining into Hudson Bay. To determine the limits of the
area to which they had perfected their title, it is necessary
to review the vicissitudes of the company from the date of
the charter to the Treaty of Paris, when the whole of New
France passed to the British crown.
DISCOVERIES AND SETTLEMENTS IN THE BAY
Hudson in 1610-1 I, Button in 1612-13, Bylot and Baffin
in 1616, Foxe in 1631, and James in 1631-32, made voyages of
discovery to Hudson Bay, giving England a title by virtue
of discovery. In 1668 Gillam erected Fort Charles (Rupert)
for Prince Rupert and his associates. Fort Nelson was
founded by the Hudson's Bay Company in 1682, and at
the same time Radisson, representing the French Compagnie
du Nord, established Fort Bourbon in the vicinity. In the
spring following Radisson seized Fort Nelson, but in 1684,
having re-entered the service of the Hudson's Bay Company,
he retook it for the English. The relative status of the
claims of England and France as a result of these occurrences
is not very clear, but, from the summer of 1668 till the
surrender to d'lberville in 1697, the English could at least
claim that they had effectively occupied the territory in dispute.
The French company resolved to expel the English
subjects who had intruded in what it considered its pre-

ONTARIO-MANITOBA BOUNDARY 881

serves. Though it was a time of profound peace, a French
force, under the Chevalier de Troyes, set out from Canada
in the spring of 1686, and captured Fort Hayes (Moose),
Rupert and Albany, the Hudson's Bay Company's posts
on the southern portion of Hudson Bay.

TREATY OF NEUTRALITY, 1686
The state of affairs was intolerable, and James II and
Louis XIV sought to make America neu tral. On November
16, 1686, the Treaty of Neutrality was signed at London. It
provided for a ' firm Peace . . . as well by Land as by sea,
between the British and French Nations in America, as well
Northern as Southern,' etc.
Articles IV and V provided that:
IV. Both Kings shall have and retain to themselves
all the Dominions, Rights and Preeminences, in the
American Seas, Roads, and other Waters whatsoever,
in as full and ample manner as of right belongs to them,
and in such manner as they now possess the same.
V. And therefore the Subjects, Inhabitants, lVIer-
chants, Commanders of Ships, Masters and Mariners, of
the Kingdoms, Provinces and Dominions of each King
respectively, shall abstain and forbear to trade and fish
in all the Places possessed, or which shall be possessed
by one or the other Party in A 11zerica, viz., the King of
Great Britain's Subjects shall not drive their Commerce
and Trade, nor fish in the Havens, Bays, Creeks, Roads,
Shoals or Places, which the most Christian King holds,
or shall hereafter hold in America: And in like manner,
the most Christian King's Subjects shall not drive their
Commerce and Trade, nor fish in the Havens, Bays,
Creeks, Roads, Shoals or Places, which the King of Great
Britain possesses, or shall hereafter possess in America.
Article XVIII provided that ' if any Breach should happen
. . . between the said Crowns in Europe, . . . no act of Hostility
either by Sea or Land' should be committed in America by
the subjects of either.
When the treaty was signed, while the English held Fort
Nelson a French force occupied Fort Albany, and, under
the provisions of Article v, the French were virtually con-

882 BOUNDARY DISPUTES AND TREATIES

firmed in their possession of the southern portion of the bay.
In addition, they were conceded the right to fish and trade,
in common with the British subjects, in Hudson Bay, except
in the vicinity of the single post held by the Hudson's Bay
Company, viz. Fort Nelson.
Commissioners were appointed to execute the treaty.
The Hudson's Bay Company petitioIl;ed them for compensa-
tion and for the surrender by the French of their posts,
ships, etc. The British commissioners filed a statement
setting forth the claim of Great Britain, by viltue of dis-
covery and occupation, 'to Hudson's Bay and Territories
thereunto belonging.' The French commissioners in reply
c1airr..ed: that Champlain had taken possession of the
territory; that French subjects had erected forts and traded
with the Indians prior to the advent of British traders;
that the latter were obliged to enlist the services of Radisson
and Groseilliers, two deserters from the French company;
and that, inasmuch as the French had a prior title, the treaty
was inoperative against France. Commissions, letters patent,
acts of possession, etc., were cited, but only by an extra-
ordinary effort of the imagination could they be considered
as applying to the Hudson's Bay territory. Respecting the
statement that Jean Bourdon had, in 1656, entered Hudson
Bay and taken possession, it has been demonstrated that
he only reached a point on the Labrador coast in latitude
55 0 N. Similarly, with reference to the statement that Sieur
Couture, a missionary, had in 1663 reached the bay and
taken possession, the Jesuit Relations prove that the first
Frenchman to reach the bay from Canada was Father
Albanel, in 1672. The statement of Radisson that he
reached the sea from Lake Superior is not, in the opinion
of the writer, worthy of credence.
In August 1687 the French commissioners offered to
surrender the three forts-Albany, Moose and Rupert-
that they had taken from the Hudson's Bay Company in
exchange for Fort Nelson, held by the latter. This arrange-
ment was suggested as the most convenient for the two
companies, as each 1,,:ing had resolved not to cede to the
other the ownership of the whole bay. This proposition

ONTARIO-MANITOBA BOUNDARY 883
was rejected by the Hudson's Bay Company. It replied that
'it cannot but seem strange and dissonant from all reason that
the French Commissioners should now come to offer the said
Company their own, which they took by violence in exchange
for another part of their own, which the French had never
had any colour of right to.'
This attitude was endorsed by the British commissioners,
who, on November 16, 1687, informed the French com-
missioners that the king, James II, had maturely considered
the matter and that he
doth, upon the whole matter, conceive the said Company
well founded in their demands, and hath therefore
ordered us to insist upon his own right and the right of
his subjects, to the whole Bay and Streights of Hudson,
and the sole trade thereof, as also upon the demand of
full satisfaction, for the damages they have received,
and restitution of the three Forts surprised by the French.
We are also ordered to declare to the French Com-
missioners that His Majesty hath given us powers and
directions to enter into a Treaty with the said Com-
missioners, for the adjusting of limits between the
Dominions of both Crowns in America, and doing
everything else that may conduce to the removing all
occasion of differences between the two nations.
On December II, 1687, the commissioners executed an
agreement stipulating that
until their said most serene Majesties shall send any new
and express orders in writing concerning this matter:
it shall not be lawful for any Governor or Commander
in Chief of the colonies, islands, lands and territories,
belonging to either King's dominions being in America,
to commit any act of hostility against or to invade the
subjects of the other King, nor shall the said Governors
or Commanders in Chief upon any pretence whatever
suffer that any violence be done to them under corporal
punishment and penalty of making satisfaction with
their goods for the damages arising by such contravention
nor shall any others do the same under the like penalty.
As the Duke of York had been governor of the Hudson's
Bay Company from 1682 till his accession as James II, and

884 BOUNDARY DISPUTES AND TREATIES
as the company had made him a present of shares, his sur-
prisingly independent and determined tone is understandable.
To remove all suspicion to its loyalty and to more firmly
establish its claim to reparation for damages, it was deemed
advisable, at the beginning of \Villiam III'S reign, to procure
an act of parliamen t confirming the charter of Charles II
for seven years.
Less than eleven months after the execution of the agree-
ment of December II, 1687, William of Orange landed at
Torbay, and James II was a fugitive.
Upon the accession to the throne of William III and
Mary the Hudson's Bay Company renewed its claims for
compensation and for the surrender of its forts. One of
the articles of the declaration of war against France, May 7,
1689, declared that the French king did 'possess himself
of our Territories . . . of Hudson's Bay, in a hostile manner,
seizing our Forts, burning our Subjects' Houses,' etc.
In 1693 the company recaptured Fort Albany. In 1694
the French took Fort Nelson. In 1696 the English retook
it, but lost it in the following year. It was held by the
French till surrendered in 1714, in accordance with the
terms of the Treaty of Utrecht.

TREATY OF RYSWICK, 1697
On September 20, 1697, peace was condudèd at Ryswick.
Articles VII and VIII provided that
The Most Christian King shall restore to the said
King of Great Britain, all Countries, Islands, Forts and
Colonies wheresoever situated, which the English did
possess before the Declaration of this present War; and
in like manner the King of Great Britain shall restore to
the Most Christian King all Countrys, Islands, Forts
and Colonies, wheresoever situated, which the French did
possess before the said Declaration of War. And this
Restitution shall be made on both sides, within the space
of six months, or sooner if it can be done. And to that
end immediately after the Ratification of this Treaty,
each of the said Kings shall deliver, or cause to be
deliver'd to the other, or to Commissioners authorized

ONTARIO-MANITOBA BOUNDARY 885
in his Name for that purpose, all Acts of Concession,
Instruments, and necessary Orders, duly made and in
proper Form, so that they may have their Effect.
VIII. Commissioners shall be appointed on both
sides, to examine and determine the Rights and Pre-
tensions which either of the said Kings hath to the
Places situated in Hudson's Bay
But the Possession
of those Places which were taken by the French during the
Peace that preceded this present War, and were retaken
by the English during this War, shall be left to the
French by virtue of the foregoing Article.
Article VIII also provided for the appointment of com-
missioners to determine the boundary between English and
French territory.
The terms of the treaty, if carried out, would have been
disastrous to the Hudson's Bay Company. Not only was
it silent respecting any compensation, but, as Albany was
one of the places taken by the French during the peace and
retaken by the English during the war, the fort should have
been surrendered to the French. Under it the company
could claim Fort Nelson only.
Commissioners were appointed under the provisions of
Article VIII. The Hudson's Bay Company and the Com-
pagnie du Nord filed statements of claim. On April 29,
1700, the French ambassador proposed that France should
keep Fort Nelson, and England Fort Albany, the boundary
to be half-way between the two forts and the limits of Acadie
to extend to the River 5t George. Or, he would have agreed
that Fort Albany should remain with France, and Fort
Nelson with England, the boundary to be midway, but in
that case he demanded that' the limits of France, on the
side of Acadie, should extend to the River Kenebec.'
On July 10, 1700, the Hudson's Bay Company submitted
a statement to the Lords of Trade and Plantations. After
stating that they were willing to accept the following limits,
in case of an exchange of places, and that the Company
cannot obtain the whole 5treights and Bay, which of
righ t belongs to them, viz. :
I. That the French be limited not to trade by wood-

886 BOUNDARY DISPUTES AND TREATIES

runners, or otherwise, nor build any House, Factory or
Fort, beyond the bounds of S3 degrees, or Albany River,
vulgarly called Chechewan, to the north ward, on the
west or main coast.
2. That the French be likewise limited not to trade
by wood-runners, or otherwise, nor build any House,
Factory, or Fort, beyond Rupert's River, to the north-
ward, on the east or main coast.
3. On the contrary, the English shall be obliged not
to trade by wood-runners, or otherwise, nor build any
House, Factory, or Fort, beyond the aforesaid latitude
of 53 degrees, or Albany River, vulgarly called Chechewan,
south-east towards Canada, on any land which belongs
to the Hudson's Bay Company.
4. As also the English be likewise obliged not to trade
by wood-runners, or otherwise, nor build any House,
Factory, or Fort, beyond Rupert's River, to the south-
east, towards Canada, on any land which belongs to the
Hudson's Bay Company.
As this communication, modified by the later one of
January 29, 1701, formed the basis of the settlement of the
northern boundaries of Ontario and Quebec, it has been
quoted in full.
The Lords of Trade replied requesting the company to
state whether (if the French refused to accept these limits)
it would consent to an extension to latitude 52;40 N. The
company, on January 29, 1701, agreed to accept the Canuse
(Eastmain) River-latitude 520 14' N-as the boundary on
the east coast.

TREATY OF UTRECHT, 1713
On May 4, 1702, war was declared against France, and
was only ended by the Treaty of Utrecht, March 3, 1713.
Article x of the treaty provided that:
X. The said most Christian King shall restore to the
kingdom and Queen of Great Britain, to be possessed in
full right for ever, the bay and streights of Hudson,
together with all lands, seas, seacoasts, rivers, and places
situate in the said bay and streights, and which belong

ONTARIO-MANITOBA BOUNDARY 887
thereunto,! no tracts of land or of sea being excepted
which are at present possessed by the subjects of France.
All which, as well as any buildings there made, in the
condition they now are, and likewise all fortresses there
erected, either before or since the French seized the same,
shall, within six months from the ratification of the
present treaty, or sooner, if possible, be well and truly
delivered to the British subjects, having commission
from the Queen of Great Britain to demand and receive
the same. . . . But it is agreed on both sides, to determine
within a year, by commissaries to be forthwith named
by each party, the limits which are to be fixed between
the said Bay of Hudson and the places appertaining to
the French; which limits both the British and French
subjects shall be wholly forbid to pass over, or thereby
to go to each other by sea or by land. The same com-
missaries shall also have orders to describe and settle,
in like manner, the boundaries between the other British
and French colonies in those parts.
Article XI stipulated for compensation to the Hudson's
Bay Company for its losses.
During the discussion of the tenns of peace, difficulties
arose respecting the use of the terms' cession' and' resti-
tution,' but the British plenipotentiaries insisted on the use
of the latter. The French negotiators contended that the
clause proposed by the British' that France shall restore not
only what has been taken front the English, but also all that
England has ever possessed in that quarter' would be a source
of perpetual difficulties. They therefore presented a map
upon which they had indicated the boundary proposed by
them. Upon this map the British negotiators had also indi-
cated their claim. Prior, in a dispatch to Lord Bolingbroke,
January 8, 1713, says there was no very great difference. 2
During the proceedings before the commissioners appointed

1 · There were two originals of this Treaty, one in Latin and the other in
French. This translation is that published by authority of the Englbh Govern-
ment at the time. The expression here rendered II and which belong thereunto"
is in the Latin copy, " spectantibus ad eadem," and, in the French, " ct lieux qui
en dépendent " · (Ontario-Manitoba Boundary Case, Joint ApþendÙf, p. 504 n.).
2 · As to the limits of Hudson's Bay, and what the ministry here seem to
apprehend, at least in virtue of the general expression tout ce que l'Angleterre a
jamais possédé de ce côlé là (which they assert to be wholly new, and which I think
VOL. VIII 0

888 BOUNDARY DISPUTES AND TREATIES

under the Treaty of Utrecht, no mention of this map was
made, although Prior's dispatch indicates that in January
1713 it was in the hands of the British.
On February 7, 1712, the Hudson's Bay Company, in a
memorandum to the Lords of Trade, claimed as the boundary
a line from Grimington Island, on the Atlantic coast in lati-
tude 58,%'0 N, to the south end of Lake Mistassini. The
memorandum is silent, however, respecting the line from
Lake Mistassini westward, and it is a fair inference that the
non-appearance of the map later may have been due to
the fact that the British claim before the treaty was not as
extensive as it was after it. Search was made for the map
during the preparation of the Ontario-Manitoba Boundary
Case, but without success.
On August 6, 1713, Louis XIV ordered the surrender to
, the bearer of the Queen of Great Britain's order, the Bay
and Streights of Hudson, together with all buildings and
forts there erected, in the condition they now are, with all
the cannon and cannon-ball, as also a quantity of powder.'
On August 4, 1714, the Hudson's Bay Company made repre-
sentations to the Lords of Trade respecting limits, urging
the boundary to be fixed at a line from 'the said island of
Grimington, or Cape Perdrix, to the great lake, Miscosinke,
alias Mistoveny (Mistassini), dividing the same into two
parts, . . . and from the said lake, a line to run southwestward
into 49 degrees north latitude. . . and that that latitude be
the limit; that the French do not come to the north of it nor
the English to the south of it.'
On September 3, 1719, George I signed the commis-
is really so, since our Plenipotentiaries make no mention of it), may give us
occasion to encroach at any time upon their dominions in Canada, I have answered,
that since, according to the carte which came from our Plenipotentiaries, marked
with the extent of what was thought our Dominion, and returned by the French
with what they judged the extent of theirs, there was no very great difference,
and that the parties who determined that difference, must be guided by the
same carte, I thought the article would admit no dispute. In case it be either
determined immediately by the Plenipotentiaries or referred to Commissioners,
I take leave to add to your Lordship that these limitations are no otherwise
advantageous or prejudicial to Great Britain than as we are better or worse with
the native Indians, and that the whole is a matter rather of industry than
dominion. If there be any real difference between restitution and cession, queritur;'
(Ontario-Manitoba Boundary Case, Joint Appendix, p. 501).

ONTARIO-MANITOBA BOUNDARY 889
sions of Daniel Pulteney and Martin Bladen as British com-
missaries under the Treaty of Utrecht. Bladen was instructed
to endeavour to get the limits claimed by the Hudson's Bay
Company, and to take especial care in wording the articles
upon limits, that 'the said boundaries be understood to
regard the trade of the Hudson's Bay Company only ; that His
Majesty does not thereby recede from the right to any lands
in America, not comprized within the said boundaries; and
that no pretention be thereby given to the French to claim
any tracts of land in America, southward or south-west of
the said boundaries.'
He was also instructed to insist that a settlement made
by the French since the Treaty of Utrecht, 'at the head of
Albany River,' 1 should be demolished.
On November 8, 1719, the British commissaries filed with
their French colleagues a memoir on the subject of boun-
daries. It was practically in accordance with the limits
defined in their instructions except that the initial point was
the North Cape of Davis Bay in latitude S6;40 instead of
Grimington Island in latitude S8U o , and that they demanded
that the French' shall not build forts, or found settlements
upon any of the rivers which empty into Hudson's Bay,
under any pretext whatsoever, and that the stream, and
the entire navigation of all the said rivers, shall be left free
to the Company of English merchants trading into Hudson's
Bay, and to such Indians as shall wish to traffic with them.' 2
Colonel Bladen is quoted by Chief-Justice Draper as
writing from Paris, in 1719, that there was a 'difference of
two degrees between the last French maps and that which
the [Hudson's Bay] company delivered us,' which indicates
that, south of James Bay, the French claimed to approximate
latitude 510.

1 This demand was inserted at the instance of the Hudson's Bay Company.
No such post had been constructed, and the reference was probably to the Kami-
nistigoya post (on the site of the present city of Fort William, Ontario), estab-
lished by Sieur de la Nouë in 1717.
I These changes were probably what Bladen had in mind when he wrote
Delafaye that' we design to give in the claim of the Hudson's Bay Company,
in writing, with some few additions pretty material/or their service (Arbitration
Documents, pp. 416-17). (Italics not in original.)

890 BOUNDARY DISPUTES AND TREATIES
The commissaries on both sides accuse each other of endea-
vouring to avoid a meeting for the settlement of the boundary
question. The British demands had increased since the
Treaty of Utrecht, and were unreasonable. It was certain
that the French would not accede to them, and, in all pro-
bability, Pulteney judged the situation correctly when he
wrote :
I must own that I never could expect much success
from this Commission, since the French interests and
ours are so directly opposite, and our respective pre-
tentions interfere so much with each other . . . That
the French have not been willing to entertain us now and
then with a Conference . . . cannot, I should think, be
accounted for, but by supposing they knew we came
prepared to reject all their demands, and to make very
considerable ones for ourselves.
Two memoirs by M. d' Auteuil, procureur-general of
Canada, indicate the French claim. They were probably in-
tended to form the basis of a reply to the British demands,
but were never delivered. D' Auteuil contended that, as
the Treaty of Utrecht only restored Hudson Strait and Bay,
the line of separation should commence at Cape Bouton
(Chid ley) at the entrance to Hudson Strait; thence to
pass half-way between the French fort Nemiskau and the
English fort Rupert; thence to a point half-way between
Abitibi fort and Moose fort; thence, 'continuing, at a similar
distance from the shores of the Bay, at the western side,
until beyond the rivers of Ste Thérèse (Hayes) and Bourbon
(Nelson).'
Comte de la Galissonière, in a memoir on the French
colonies in North America, December 1750, says: 'The
Treaty of Utrecht had provided for the appointment of
Commissioners to regulate the boundaries of Hudson's Bay;
but nothing has been done in that matter.' He also claimed
that, as the English ' never had but a few establishments
on the sea coast, it is evident that the interior of the
country is considered as belonging to France.'
In the private instructions to Marquis de VaudreuiI,
April I, 1755, it is stated that 'Although there had been

ONTARIO-MANITOBA BOUNDARY 891
question on different occasions. . . of naming other Com-
missioners in execution of the Treaty [of Utrecht] the English
had always eluded it: The Duc de Choiseul in 1761, refer-
ring to the boundaries of the Hudson's Bay territories, said:
C Nothing was done.' This is conclusive evidence that no
agreement was arrived at, and the question was still in dispute
when Canada was ceded to Great Britain.
From 1744 till the Treaty of Aix-Ia-Chapelle, October 18,
1748, the two countries were at war. Article V of the Treaty
of Aix-Ia-Chapelle provided that <<All the conquests, that
have been made since the commencement of the war. . .
either in Europe, or the East or West Indies, or in any
other part of the world whatsoever, being to be restored
without exception.'

TREATY OF PARIS, 1763
After a year of open hostility war was declared in 1756;
Canada was surrendered by Vaudreuil, 1760, and formally
ceded to Great Britain, by the Treaty of Paris, February 10,
1763. By Article IV Louis xv ceded
Canada, with all its dependencies, as well as the Island
of Cape Breton, and all the other islands and coasts in
the Gulph and River 5t Laurence, and, in general, every-
thing that depends on the said countries, lands, islands,
and coasts, with the sovereignty, property, possession,
and all rights, acquired by treaty or otherwise, which the
most Christian King and the crown of France, have
had till now over the said countries, islands, lands, places,
coasts, and their inhabitants.
Article VII defined the western boundary as << a line drawn
along the middle of the river Mississippi, from its source to
the river Iberville, and from thence, by a line drawn along
the middle of this river and the lakes Maurepas and Pont-
chartrain, to the sea.'
Great Britain thus became possessed of practically the
eastern half of North America, and it was therefore in-
cumbent upon her to provide for the government of this
immense area.

892 BOUNDARY DISPUTES AND TREATIES

THE PROCLAMATION OF 1763
On October 7, 1763, George III issued a royal proclama-
tion erecting four governments-Quebec, East Florida, West
Florida and Grenada. The boundaries of the government of
Quebec were defined as follows:
Bounded on the Labrador coast by the River St John, 1
and from thence by a line drawn from the head of that
river, through the Lake St John, to the south end of the
Lake Nipissim; from whence the said line, crossing the
River St Lawrence, and the Lake Champlain in forty-five
degrees of north latitude, passes along the High Lands
which divide the Rivers that empty themselves into the
said River St Lawrence from those which fall into the Sea;
and also along the north coast of the Baye des Chaleurs,
and the coast of the Gulph of St Lawrence to Cape
Rosiers, and from thence crossing the mouth of the
River St Lawrence by the west end of the Island of
Anticosti, terminates at the aforesaid River of St John.
To avoid friction between the colonists and Indians, the
governors of Quebec, East Florida and West Florida were
forbidden to make grants of lands or surveys beyond the
bounds of their respective governments. The proclama-
tion also placed under the king's' Sovereignty, Protection
and Dominion' for the use of the Indians all territories not
included in Quebec, East Florida, or West Florida, 'or
within the limits of the territory granted to the Hudson's
Bay Company, as also all the lands and territories lying to
the westward of the sources of the rivers which fall into the
Sea from the west and northwest as aforesaid.'

THE QUEBEC ACT, 1774
In 1774 an imperial act (14 Geo. III, cap. 83), commonly
known as the Quebec Act, was passed. The preamble recited
that whereas, by the proclamation of 1763, 'a very large
extent of country, within which there were several colonies
and settlements of the subjects of France. . . was left,
1 It falls into the StLawrence opposite the western extremity of Anticosti Island.

ONTARIO-MANITOBA BOUNDARY 893
without any provision being made for the administration
of Civil Government therein,' etc., it was enacted that call
the Territories, Islands, and Countries in North America,
belonging to the Crown of Great Britain, bounded on the
south by a line from the Bay of Chaleurs . . . and along
the bank of the said [Ohio] river, westward, to the banks of
the Mississippi, and northward to the southern boundary
of the territory granted to the Merchants Adventurers of
England, trading to Hudson's Bay.' It also provided for the
annexation to Quebec of the so-called Labrador coast-strip.
In the same year, 1774, a commission was issued to Sir
Guy Carleton as governor of Quebec. In it his govern-
ment is described as extending from the confluence of the
Ohio and Mississippi, C northward along the eastern bank
of the said river [Mississippi] to the southern boundary' of
the Hudson's Bay Company's territories. The order-in-
council, approving the draft of Carleton's commission, states
that it reappoints him with C such powers and authorities as
correspond ' with the Quebec Act.

THE CONSTITUTIONAL ACT, 1791
In 1791 the Constitutional Act authorized the division
of the Province of Quebec. On August 24 in the same year
an imperial order-in-council established the Provinces of
Upper Canada and Lower Canada. The division line was
defined as a line from Lake 5t Francis to the Ottawa River;
thence up the Ottawa to the head of Lake Timiskaming;
thence by a line drawn due north until it strikes the ' boun-
dary line of Hudson's Bay, including all the territory to the
westward and southward of the said line, to the utmost
extent of the country commonly called or known by the
name of Canada.'
The same phraseology is followed in the commission of
Lord Dorchester, 179 I, and of others; but, in the commis-
sion of Baron Sydenham, 1840, the line is drawn due north
until it reaches the 'shore' of Hudson Bay. The change
of wording is evidently due to a misconception, a half-
century later, by a draughtsman who proposed to ' improve'

894 BOUNDARY DISPUTES AND TREATIES
the phraseology. The order-in-council of 1791 was in-
tended-like the Quebec Act-to carry the division line to
the southern boundary of the Hudson's Bay territories. The
Privy Council in 1884 was in doubt, but finally adopted
the contention of counsel for Ontario that C boundary line'
signified C shore '-unquestionably an error. Apparently no
one pointed out to it that, in the eighteenth century and
later, the term C Hudson's Bay' was a convenient terri-
torial designation of the area assumed to be granted to
the Hudson's Bay Company, and that it was actually so
designated on the Mitchell map before the council.
If further proof were needed, it is supplied by the descrip-
tion of the proposed partition line, prepared at the request
of Lord Dorchester. The line is therein described to the
head of Lake Timiskaming:
thence running due north to the Boundary of the Terri-
tory granted to the Merchants Adventurers of England
trading to Hudson's Bay. The Province of Upper
Canada to comprehend all the Territories, Land. and
Countries which are now subject to. or possessed by His
Majesty, to the westward and southward of the said
partition line; and the Province of Lower Canada to com-
prehend all the Territories, Lands, and Countries which
are now subject to or possessed by His Majesty, to the
eastward of said partition line. and to the southward
of the Southern Boundary of the said Territories granted
to the Merchants Adventurers of England trading to
Hudson's Bay, being no part of the Government of
Newfoundland or any other of His Majesty's Provinces
in North America at the time of passing of this Act.
This description of the boundaries had been prepared at
the express request of the Right Hon. W. W. Grenville, and
would, almost certainly, have been adopted for the com-
mission, but for an extrinsic reason, viz.. that the infraction
on the part of the United States of the treaty of 1783 had
induced Great Britain to retain certain posts in the United
States pending a satisfactory settlement. It was important,
therefore, that the wording should neither exclude these
posts, and thus cast doubt upon the right to retain them,
nor explicitly claim them, and thus give offence to the United

')2

80

78

52 I

I,.

50

II
I
I

+8

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! ,\
r

ü

Northern at
_ _ - _ - Alternative
Boundary c l
............. Boundary 0
- + - Boundary 0
Boundary 01
+ + + + + Boundary 01
-x><-o- Boundary 01
NOTE.-Prlor
exten t
RoC"1I1

H

1'hn :E.JmJnn.p
op1ncal lnautnt.

Lake
.Erie

l- -

86

64:

82

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--
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./
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DARY

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100

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IH

LEGEND
Northern and Western Boundaries of Ontario according to contention of Dominion.
Alternative Line claimed by Dominion in default ot .. due north" line.
Boundary contended for by Ontario.
Boundary of Quebec according to Quebec Act, 1774.
Boundary of Grant to Lord Selkirk, 1811.
Boundary of Manitoba according to Dominion Act of 1870.
+ + + + + Boundary of Manitoba according to Dominion Act of 1877.
-Xx_u_ Boundary of Manitoba according to Dominion Act of 1881 (olalm of Dominion of Canada).

I
II
I
I

NOTE.-Prlor to the Award of the Arbitrators, Aug. Srd, 7878, Ontario--aa including" to the utmost
extent of the countrl/ commonly called or known by the name of Canada "--claimed to the
Rockl/ Mountains on the west and to the Arctic slope on the north and north-west.

u:

100

98

S-i

92 I.ongitudr U

1'hn
I-:- -

P"","I""" /,,' .Ttlmes IV/iii", FR. {;.S.,

90

B8

86

81:

78

7

-x'C 'Cx
I

xx

xx
I
)(
)(
I
Ie
i
)(
)C

I
I
" II

50

48 ,

44

LlÚre
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HI'

8..

R9

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"";:10."--

"'.!\' ,,)I' h( <lllllila

LInd If,y PN'\ il/n',y:'

ONTARIO-MANITOBA BOUNDAR'\:- 895

States. Dorchester's commission, as adopted, was intended
to describe in a short form the same boundaries as set forth
in Lord Dorchester's draft.

JUDICATURE ACTS, 1803 AND 1818
In 1803 an imperial act was passed providing that all
offences committed in any portion of British North America,
not included within Upper or Lower Canada, should be tried
as if they had been committed within these provinces. In
1818 the legislature of Upper Canada passed an act authoriz-
ing the trial, in any district, of offences committed within
the province but without the limits of any described town-
ship or county.
The proclamation of Governor Simcoe, of 1792, dividing
Upper Canada into electoral districts, defines Kent as includ-
ing all the territory not included in any other county, and
as including' to the utmost extent of the country commonly
called or known by the name of Canada.' This, as an exercise
of jurisdiction, strengthened the case for Ontario.
In 1840 the provinces of Upper Canada and Lower Canada
were united to 'form and be one Province under the name of
the Province of Canada.'
Sec
ion 6 of the British North America Act, 1867, pro-
vided that the former provinces of Upper Canada and Lower
Canada should be severed and constitute the provinces of
Ontario and Quebec respectively. Section 146 of the same
act authorized the queen to admit other colonies, Rupert's
Land and the North-western Territory, into the union.

RUPERT'S LAND Acr, 1870
In 1868 the Rupert's Land Act was passed. I t defined
Rupert's Land as including the whole of the lands and
territories held, or claimed to be held, by the Hudson's Bay
Company. In 1869 the company executed a deed of sur-
render to Her Majesty, which included all its land except
blocks of land adjoining its posts and one-twentieth of the
land in the 'Fertile Belt.' In 1870 an imperial order-in-

896 BOUNDARY DISPUTES AND TREATIES
council ordered that the North-western Territory and
Rupert's Land should become part of the Dominion of
Canada on payment of J;300,OOO to the Hudson's Bay
Company.
In 1871 the Dominion and the Province of Ontario
agreed to appoint commissioners to determine the western
and northern boundaries of the latter. As the instructions
to the commissioner for the Dominion defined the meridian
of the mouth of the Ohio as the western boundary, and the
height-of-Iand between the St Lawrence and Hudson Bay
as the northern boundary, the government of Ontario
declined to take any action, claiming' that the boundary
line is very different from the one defined.'

ARBITRA TION OF BOUNDARY, 1878
In 1873 the Macdonald administration was defeated at
the polls, and, in the following year, the Dominion and the
Province of Ontario agreed to arbitrate their difference respect-
ing the boundary. In this instance, the fact that governments
of the same political complexion were in power at Toronto
and Ottawa apparently facilitated an agreement. Ontario
nominated the Hon. W. B. Richards, and the Dominion
the Hon. Lemuel Allan Wilmot. Owing to the resignation
of Richards and the death of Wilmot, they were succeeded
by the Hon. Robert A. Harrison, chief justice of Ontario,
and Sir Francis Hincks respectively. The Right Hon. Sir
Edward Thornton, British ambassador at Washington, was
selected as the third arbitrator.
On August 3. 1878, the arbitrators rendered their award.
They prolonged the due north line from Lake Timiskaming
to Hudson Bay; thence to the mouth of the Albany River;
thence, following the Albany, English and Winnipeg Rivers.
to the longitude of the north-west angle of Lake of the
Woods; thence due south to the north-west angle.
By an act of the imperial parliament, passed on June 29,
1871, the' Parliament of Canada may, from time to time.
with the consent of the Legislature of any Province of the
said Dominion. increase. alter, diminish, or otherwise alter the

ONTARIO-MANITOBA BOUNDARY 897
limits of such province.' Before an act confirming the arbi-
trators' decision could be passed by the Dominion, the
Mackenzie administration was defeated, and the incoming
government refused to ratify it.

REFERENCE TO THE IMPERIAL PRIVY COUNCIL, 1884
In December 1883 it was agreed to refer the matter to
the imperial Privy Council. In July following the case was
argued by D'Alton MCCarthyfor the Province of Manitoba,
Christopher Robinson for the Dominion, and the Hon.
Oliver Mowat and A. ScobIe for Ontario. On July 22 the
Privy Council reported: (I) that in default of legislation
by the Dominion, the award of the arbitrators was not bind-
ing; (2) that, nevertheless, the boundary-lines laid down by
the award were 'substantially correct and in accordance
with the conclusions which their Lordships have drawn from
the evidence laid before them' i (3) that the boundary-which
they defined in detail-should be in accordance with the
award of the arbitrators; (4) that the imperial parliament
should pass an act making the decision bindjng and effectual.
In accordance with the recommendation of the Privy
Council, the imperial parliament passed, in 1889, an act
defining the northerly and westerly boundaries of Ontario
as set forth in the decision of the Privy Council.

REVIE\V OF THE DIFFERENCES
In reviewing the case it can best be considered under
heads: (I) There was the boundary 'northward ' from the
confluence of the Ohio and Mississippi. The commission
to Sir Guy Carleton, drafted only a few months after
the Quebec Act, and the terms of the order-in-council
indicate conclusively that the western boundary of the Pro-
vince of Quebec followed the bank of the Mississippi from
the mouth of the Ohio northward to the Hudson's Bay
Company's territories. The contention that 'northward'
necessarily meant 'due north' was, from a geographical
point of view, absolutely untenable. In addition, the Quebec

89 8 BOUNDARY DISPUTES AND TREATIES
Act was expressly enacted to provide civil government for
'a very large extent of country, within which there were
several colonies and settlements of the subjects of Prance,'
which country was not included in the government of Quebec
as established by the royal proclamation of 1763. As there
were French settlements in the territory between the Missis.
sippi and the due north line from the mouth of the Ohio, the
adoption of the latter would have nullified the express purpose
of the act so far as this portion of the country occupied by
'settlements of the [former] subjects of France' was con-
cerned. It is not an unreasonable theory that the verbal
change in Carleton's commission was due to the discovery
tha t in this respect the wording of the Quebec Act lacked
clearness.
The case for the Dominion would have been much stronger
had counsel admitted that the western boundary, as defined
in the Quebec Act, followed the Mississippi to its source in
the height-of-land, and contended that from this point the
boundary followed the height-of-Iand eastward-basing his
contention on the fact that the water-parting formed the
southern boundary of the territory granted to the Hudson's
Bay Company by its charter. Thus, during the second
day's proceedings before the Privy Council, counsel for
Manitoba was forced to concede that Ontario had exercised
jurisdiction in a considerable area west of the due north
line. That the' height-of-land ' contention placed the eastern
boundary of Manitoba about sixty miles west of Port Arthur,
and that the' due north' line passed east of Port Arthur
and Fort William-the most important Canadian ports on
Lake Superior-probably had a determining influence in
leading Manitoba to contend for the wider boundary.
(2) The western boundary of Quebec (1774) was defined
as running northward to the southern boundary of the
Hudson's Bay Company's territories. The Dominion and
Manitoba contended: that the company had a good title
to all the territory covered by its charter, viz. the area
draining into Hudson Bay and Hudson Strait; that this
territory was transferred to the Dominion by the Rupert's Land
Act; and that, with the exception of the portion included

ONTARIO-MANITOBA BOUNDARY 899
within the bounds of Manitoba, the title to this vast area
was vested in the Dominion.
Ontario contended that the Hudson's Bay Company had
perfected a title to a limited area only, and that, when in
1700 and 1701 it offered to accept the Albany River as its
southern limit in that quarter, it defined the bounds of the
territory in which they had perfected their title. In addi-
tion, as already stated, under the terms of the Treaty of
Ryswick, even Fort Albany should have been surrendered
to the French, as it was one üf the places taken by the French
during the peace and retaken by the English during the war.
All later territorial cessions, whether under the Treaty of
Utrecht or Treaty of Paris, enured to the British crown.
Even in 1763, when Canada with all its dependencies was
ceded to Great Britain, the Hudson's Bay Company had
only one inland post, viz. Henley House, on the Albany River,
founded in 1741.
Counsel for Manitoba contended that, even if the limits
of the British territory in the Hudson Bay basin were
curtailed, yet, under the rule of postlimini-' in virtue of
which, persons and things taken by the enemy are restored
to their former state on coming again into the power of
the nation to which they belonged' (Vattel)-territory of
which the Hudson's Bay Company was temporarily deprived
reverted to it after the peace of 1713 and of 1763. Counsel
for Ontario ..contended successfully that the argument was
fallacious, the validity of the grant to the company being
denied in toto as respected territories in the possession of
France, which territories, moreover, were excluded by its quali-
fying clause, 'not already actually possessed by . . . sub-
jects of any other Christian Prince or State'; and that even
granting the validity of the territorial grant, its subsequent
curtailment by the operations and acquisitions of the French,
conserved to them by the treaties of Neutrality, 1687, and
of Ryswick, 1697, put an end to any right of postliminium.
Ontario claimed that the 'company had, as a result of the
wars and treaties between the two powers, become divested
of the territorial title which the charter purported to confer,
except in so far as the Crown might thereafter see fit to recog-

.

900 BOUNDARY DISPUTES AND TREATIES
nize it, in whole or in part, cum gratia, and that the Crown
having also become possessed of the rival title of France, it
united in itself every interest.' 1
On the other hand, the French had founded Fort Mis-
tassini before 1703; Abitibi, on Lake Abitibi, in 1686;
Fort Piscoutagany, on a branch of the Abitibi River, about
1673; Fort St Pierre, 1731, and Maurepas, 1734, on the
Rainy River and \Vinnipeg River respectively. On the
Saskatchewan River, Fort Bourbon was founded about 1749;
Paskoyac, about 1755; Fort à la Corne, 1753; a fort was
constructed at the site of the present city of Winnipeg about
1734; and the French had ascended the waters of the
Saskatchewan to a point 'three hundred leagues' above
Fort Paskoyac (modern, The Pas).
It is obvious from the foregoing that the French had
effectively occupied the upper portions of the country
claimed by the Hudson's Bay Company.
(3) The next point to be considered is: where was the
western boundary of Ontario ?
From the Quebec Act, 1774, till the preliminary treaty
of peace, 1782, it was a line 'northward' from the mouth
of the Ohio to the southern boundary of the Hudson's
Bay Company's territories, which were assumed to be inter-
sected at, or near, the source of the Mississippi. From 1782
till the Constitutional Act, 1791, it was assumed to follow
the Mississippi northward, from its intersection by a due
west line from the north-west angle of Lake of the Woods,
though, as a matter of fact, the source of the Mississippi is
ISO miles almost exactly due south of the north-west angle.
The Constitutional Act provided for the division of
Quebec into Upper Canada and Lower Canada. The
order-in-council dividing Quebec defined the former as
including all the territory to the westward and southward
of the division line' to the utmost extent of the country
commonly called or known by the name of Canada.' Lord
Dorchester's commission, issued only three weeks later,
defined Upper Canada as including all such territories west
of the division line 'as were part of (,Jr said Province of
1 Proceedings before the Imperial Privy Council, p. 235.

ONTARIO-MANITOBA BOUNDARY 901
Quebec.' When the attention of Henry Dundas, secretary
of state, was drawn to the variation in these documents, he
replied that the difference' does not, I conceive, amount at all
to a variance between them, and is therefore perfectly
immateriaL' This demonstrates that 'Canada' and the
, Province of Quebec' were treated as interchangeable terms.
Much evidence was introduced by Ontario to proye that
the territory forming the present province of Manitoba and
southern portions of Saskatchewan and Alberta was occupied
by the French. That they established posts and explored
the country, possibly to within sight of the Rockies, is un-
deniable, but there is no evidence to warrant the inference
that they had a considerable number of soldiers in the
territory,! or that their forts were anything more than
stockaded trading posts. They had, undoubtedly, ' occupied'
the country prior to the cession of Canada. Following the
cession, British fur traders from Montreal entered the
country and intercepted the Indians on their way to Hudson
Bay. At the datc of the cession the Hudson's Bay Company
had only one inland post, viz. Henley House, on the Albany
River, about 150 miles from its mouth. Until 1774, eleven
years later-when they constructed their first inland fort,
Cumberland House-they had not a single post in the prairie
country .
Counsel for Ontario was undoubtedly justified in con-
tending that the region drained by the Saskatchewan and
Red Rivers-known officially as ' Poste de la Mer de I'Ouest '
-was included within the limits of the' country commonly
called or known by the name of Canada.' \Vhether this
view would have been accepted by the Privy Council but
for the able manner in which ex parte arguments and deduc-
tions were put forward by counsel for Ontario, is not so
certain. In any event, Oliver Mowat, while arguing for the
larger claim-to strengthen his case for the smaller-acknow-
ledged that, as Ontario had not protested the erection of
Manitoba, he was estopped from claiming any portion of the
1 Bougainville was quoted as reporting, respecting the post at Lake Abitibi,
that it' may contain one hundred men.' Even without the proof afforded by the
context, it is certain that this statement referred to the number of Indl:ans trad-
ing at the post-not to soldiers or engag
s.

902 BOUNDARY DISPUTES AND TREATIES
area included within that province, and declared that he
would be satisfied if Ontario were awarded the limits defined
by the arbi tra tors.
(4) Where was the southern boundary of the Hudson's
Bay Company's territories? The references to the Treaty
of Ryswick and subsequent negotiations demonstrate that
the Hudson's Bay Company, in 1700 and 1701, offered to
accept the Albany River as the boundary between its territory
and that of the French and, in addition, under the terms
of the treaty, it should have surrendered Albany and all the
other posts on the bay except Nelson. This therefore
determined its territorial rights. The cessions by the Treaty
of Utrecht and the Treaty of Paris enured to the British
crown, and not to the Hudson's Bay Company. The com-
pany's servants were thenceforth, in the territory south and
west of Hudson Bay, as British subjects, with the same rights
and privileges as other traders.
\Vhile the negotiations subsequent to the Treaty of
Ryswick fixed the limit of the Hudson's Bay Company's
claims at the Albany River, there was no defined boundary
above Lake St Joseph-the point at which the Albany loses
its identity. The arbitrators followed the English and
\Vinnipeg Rivers, doubtless because they occupy the western
prolongation of the Albany Valley. Inasmuch as the descrip-
tion in Carleton's commission was intelligible to the north-
west angle of Lake of the \Voods-and no farther-and
inasmuch as the north-west angle is almost exactly due
north of the source of the Mississippi, they prolonged the
international boundary from this point, northward, to its
intersection with the Winnipeg River.

1vfAP EVIDENCE BEFORE THE PRIVY COUNCIL
An account of the proceedings before the Privy Council
would be incomplete without a reference to the map evidence
produced and the errors contained therein. The evidence
submitted on behalf of the Dominion and Manitoba respect-
ing maps and the information disclosed by them was dis-
tinctly defective.

ONTARIO-MANITOBA BOUNDARY 903
A map was prepared specially for the hearing, and was
put in by counsel for Ontario. It was only on the after-
noon of the last day but one that the accuracy of the informa-
tion it contained was challenged by counsel for Manitoba,
who stated that he and his colleagues had not seen it 'even,
until the first day of the hearing,' but no reason was given
for not challenging it immediately on introduction, as ex
parte evidence. The map was in the hands of the Law
Lords and was referred to by them repeatedly, and even by
counsel opposing Ontario. The former were much impressed
by the French forts indicated on it, notably one on the
portage between the waters of Albany and English Rivers
marked 'French Post, 1673 (approx. site),' by Fort La
Maune and by Fort Piscoutagany or St Germain. As
regards the first mentioned, no evidence of importance has
ever been adduced to indicate that the French ever had a
post in, or near, this point.
Fort La Maune was constructed by Dulhut 'near the
River La Maune, at the bottom of Lake Alemepigon.'
'Bottom of Lake Nipigon' means, unquestionably, the
portion of Lake Nipigon opposite the outlet, and, on Jaillot's
map, 1695, it is shown at the mouth of the present Ombabika
River, with a note-' Poste du Sr Duluth pour empêcher les
Assiniboels et autres sauvages de descendre à la Baye de
Hudson.' There is no reason to suppose that it was any-
where but on Lake Nipigon.
Respecting the impression created by La Maune, as
shown on the Ontario map, the Lord Chancellor said: 'It
is extremely important in connection with this present con-
troversy, if it is the fact that there was at that time a fort
on the eastern angle of Lake St Joseph constructed by the
French.' Later, counsel for Manitoba actually admitted that
this fort had been constructed on the' Albany River.'
Fort Piscoutagany or St Germain is also shown on
Jaillot's map at the outlet of Lac Piscoutagany, and is
marked 'Poste du Sr de St Germain pour couper presque
toutes les voies des Sauvages du Nord et les empêcher
de descendre à la Baye de Hudson.' Piscoutagany, or
Peischagami (Nighthawk), is unquestionably the modern
VOL. VIII P

904 BOUNDARY DISPUTES AND TREATIES
Nighthawk Lake, situated aboutforty miles south-west of Lake
Abitibi, and on the Frederick House branch of the Abitibi.
On the Ontario map both La Maune and St Germain are
shown on the Albany. No evidence has been adduced to
justify placing the former there, though some maps of later
date than JaiIIot's indicate St Germain on the Perrai River,
which on some maps corresponds to the Ombabika, a tribu-
tary of Lake Nipigon; and on others to the Missinaibi
branch of Moose River-not the Albany-though the topo-
graphy is so grossly inaccurate that it is probably based on
Indian report only. The apparent inconsistency was probably
due to an attempt to offset the demands of the English,
subsequent to the Treaty of Utrecht, for a boundary that
included territory claimed by the French on the ground
of prior occupation and discovery.
The French refused to concede the boundaries demanded,
and made a counter-claim that the boundary should pass
half-way between their posts and those established by the
Hudson's Bay Company. From about this date the French
geographers 'decapitated' the rivers flowing into James
Bay from the south, and extended the streams draining into
the St Lawrence. Hence the difficulty experienced in cor-
relating the topography of the region affected, as shown on
these maps, and as shown on modem maps.l
A copy of Mitchell's map of North America, 1755, which
had been procured from the Hudson's Bay Company by
the Dominion, was submitted to the arbitrators as the map
'before the commissioners when the Treaty of 1783 was
made.' 2 As already stated, there is no evidence extant to
identify any map as the one used by the negotiators of 17 82 .
On the l\1itchell map the height-of-land between the waters
of Hudson Bay and of the St Lawrence is designated ' Bounds

1 On d'Anville's map, 1746, · R. d'Abitibi:' L. d'Abitibi," Lac Pisgotagami '
and · St Germain' post are transferred bodily to form the upper portion of the
Albany River, probably to form the foundation of a claim to this portion of the
area drained by it. As there is an Abitibi lake and an Abitibi river correctly
shown, this map contains two lakes and two rivers bearing the same names.

So stated by counsel for Ontario, but in error; he probably referred to
the British Rccords Office map, which has no historical connection with the
negotiations of 1782 (not · 1783 '). See p. 822.

ONTARIO-MANITOBA BOUNDARY 90S
of Hudson Bay by the Treaty of Utrecht.' As Lake of
the Woods is indicated as discharging into Lake Superior,
the height-of-land line passes to the north of it. It is obvious
that, if the geographical information contained in the map
had been correct, the line would have been drawn to pass
between Lake of the Woods and Lake Superior, and that,
so far as it evidenced anything, it demonstrated that the
boundary followed the height-of-land irrespective of its actual
position as determined by actual surveys. The Privy Coun-
cil accepted this evidence, which really militated against the
contention of Ontario, as evidence in favour of it, and counsel
for the Dominion and Manitoba did not point out that
this line, being drawn north of the Lake of the Woods, really
demonstra ted that the actual line passed east of it.
In addition, there was actually in the British Museum
the famous King George III map-which has been referred
to at length in connection with the Ashburton Treaty. On
it are drawn heavy coloured lines, commencing at Griming-
ton Island on the Labrador coast; thence south-westward
through Lake Mistassini to the 49th parallel; and thence
following the parallel to the limits of the map, and desig-
nated, C Boundary between the lands granted to the Hudson's
Bay Company and the Province of Quebec.' This map would
have been absolutely conclusive proof that the British
government in 1774 considered that the 49th parallel formed
the north-western boundary of Quebec. If this map had
been produced, it is at least doubtful whether the award
would have been confirmed.
Another point overlooked by counsel opposing Ontario
was, that the grant to Lord Selkirk by the Hudson's Bay
Company actually included, north of the international
boundary, Hunters Island and a strip of adjoining territory
extending to the height-of-land.

REVIEW OF THE CASE BEFORE THE PRIVY COUNCIL
A critical study of the proceedings emphasizes the masterly
manner in which Sir Oliver Mowat conducted the case for
Ontario. He and his colleagues had been studying the case

906 BOUNDARY DISPUTES AND TREATIES
for years, and he has been quoted as stating that they were
saturated with it.! Mowat's skill in presenting his case is
demonstrated by the fact that, at the outset, the Law Lords
considered his position untenable. 2
Though it has been necessary to indicate points that
might have been made by counsel opposing the claims of
Ontario, it is obvious that, with only seven months' prepara-
tion-as compared with about twelve years by counsel for
Ontario-they were labouring under great disadvantages. It
is a fair inference that the astute premier of Ontario, when
proposing that the case should be heard at an early date, fully
appreciated the handicap thus imposed upon his opponents.
In addition, it is much easier for the student, with ample
time for investigation, to criticize than for counsel to meet the
various points as made by his opponen ts. This, however, does
not apply to the map evidence. The map filed by Ontario
should have been repudiated as soon as presented, and, had
the Dominion and Manitoba had the assistance of an expert
geographer-one who could read the evidence disclosed by
the maps in the light of the printed documents and vice versa,
thus supplementing and verifying other evidence-the errors
respecting the French forts, etc., would have been exposed.
From and including the preliminary treaty of peace, 1782, down
to modern times, Canada has suffered territorial losses due to
the use of inaccurate maps. Only on one occasion has an
adequate attempt been made to present map evidence, namely,
in connection with the Alaska boundary, and then practically
all the map evidence was in favour of the United States.
I t has been stated that, after the cession of Canada, 1763,

1 C. R. ,V. Biggar, Sir Oliver Mowat's biographer, says that · his colleague,
Mr ScobIe, now Sir Andrew ScobIe, and himself a member of the Judicial Com-
mittee of the Privy Council, told me not long afterwards that both he and the
members of the Judicial Committee were profoundly impressed, first, by l\Ir
Mowat's extensive and accurate information, and secondly, by the ability with
which he handled the case from beginning to end, and answered without losing the
thread of his argument, the innumerable questions propounded by the Law Lords'
(Si1' Olive1' Mowat, i. p. 420).
I Although, on the first day of the hearing, the Lord Chancellor stigmatized
Mowat's contention respecting the limitation of Rupert's Land as · most extra-
ordinary' (Proceedings before the Imperial Privy Council, etc., p. 58), he and his
colIeagues later accepted it in toto.

ONTARIO-MANITOBA BOUNDARY 9 0 7
the Hudson's Bay Company's employees were in the inland
territory south and west of Hudson Bay as British subjects
with the same rights and privileges as other traders. From
the time the company entered the Saskatchewan country in
1774, till it absorbed the North-West Company in 1821, it
was in active competition with the Montreal traders, and all
attempts to enforce its exclusive claims were successfully
resisted. From the union in 1821 till the surrender in 1 86 9
it was all-powerful in, and had a monopoly of, the trade of a
vast region, including the whole of the present Canada, except
the southern portions of Ontario and Quebec and the Maritime
Provinces. On the other hand, although for a half-century
it claimed and maintained territorial rights it was not, in
a strictly legal sense, entitled to, there can be no doubt that
it was its presence, its aggressiveness, its great influence with
the British government and its intimate knowledge of the
country that saved to the British crown all the territory west
of Lake Superior, and it was entitled to the most liberal
treatment when Canada negotiated for the extinguishment
of the title to 'the whole of the lands and territories held,
or claimed to be held' by the ancient and honourable' Com-
pany of Adventurers of England trading into Hudson's Bay.'
Respecting the decision of the imperial Privy Council,
if the map evidence had been adequately presented, it is
doubtful whether Ontario would have obtained so sweeping
a decision. On the other hand, it would have been exceed-
ingly unfortunate if the province had been confined to the
narrow triangular strip shown on the George III map-
particularly west of Lake Superior.
The account of the case would be incomplete without
a reference to the story that attributes the decision against
Manitoba's claims to the anxiety of the Law Lords to get
away for the opening of the grouse season. In the first
place, no one has ever offered an adequate explanation why
this anxiety should be detrimental to Manitoba rather than to
Ontario. In the second place, the decision was rendered on
July 22, nearly three weeks before the grouse season opened.

g08 BOUNDARY DISPUTES AND TREATIES

III
LABRADOR-CANADA BOUNDARY 1
THE ROYAL PROCLAMATION OF 1763
T HE royal proclamation issued in 1763 transferred
the north a coast' of the Gulf of St Lawrence, the
Atlantic a coast' of the mainland, Anticosti, and the
Magdalen Islands to Newfoundland. I t also erected the
government of Quebec, and included within the new province
a roughly triangular area, bounded on the east by the St
John River. This stream falls into the St Lawrence opposite
the western extremity of Anticosti, and was almost certainly
chosen because of its geographical position, irrespective of
its importance as a topographic feature--or the reverse.
The territories not otherwise provided for, including, of
course, the portion of the present Ungava Peninsula not
within the bounds of the Hudson's Bay Company's terri-
tories, were provided for by the following clause :
And we do further declare it to be our Royal will
and pleasure for the present, as aforesaid, to receive
under our Sovereignty, protection, and Dominion, for
the use of the said Indians, all the lands and territories
not included within the limits of our said three new
Governments, or within the limits of the territory granted
to the Hudson's Bay Company, as also all the lands and
territories lying to the westward of the sources of the
rivers which fall into the sea from the west and north-
west as aforesaid.
The proclamation, therefore, assigned :
(a) To Newfoundland: the coast-strip from a point on
the north shore of the St Lawrence opposite the west end of
Anticosti, to the entrance to Hudson Strait, and also Anti-
costi and the Magdalen Islands.
(b) To Quebec: a triangular area including, in large part,
the settled portion of New France.
(c) To the crown: all other portions of the mainland north

1 The history of the Ontario-Manitoba boundary is, down to 1763, also the
history of the Labrador boundary, and need not be here repeated.

LABRADOR-CANADA BOUNDARY 909
of the St Lawrence, not included in Newfoundland or Quebec.
This, therefore, included the northern portion of the present
province of Quebec, and the' hinterland' of the Labrador
coast-strip.
The commission to General Murray, November 21, 17 6 3,
appointing him' Captain General and Governor-in-Chief in
and over Our Province of Quebec,' and the commission to
Sir Guy Carleton, April 12, 1768, describe the boundaries of
Quebec in practically the same language as the proclamation.

THE QUEBEC ACT, 1774
A petition for the extension of the limits of Quebec was
presented to parliament, and in 1774 the Quebec Act (14
Geo. III, cap. 83) was passed by the imperial parliament.
The preamble recites that
Whereas His Majesty, by His Royal Proclamation, bear-
ing date this seventh day of October, in the third year of
His Reign, thought fit to declare the provisions which
had been made in respect to certain countries, territorie.s,
and islands in America, ceded to His Majesty by the
definitive Treaty of Peace, concluded at Paris on the Tenth
Day of February, one thousand seven hundred and sixty-
three: and whereas, by the arrangements made by the
said Royal Proclamation, a very large extent of country,
within which there were several colonies and settlements
of the subjects of France, who claimed to remain therein
under the faith of the said Treaty, was left, without any
provision being made for the administration of Civil
Government therein; and certain parts of the Territory
of Canada, 7.vhere sedentary fisheries had been established
and carried on by the subjects of France, inhabitants of the
said Province of Canada, under grants and concessions fr01n
the Government thereof, were annexed to the Government of
Newfoundland, and thereby subjected to regulations in-
consistent with the nature of such fisheries. 1
Clause 1 provided for the extension of the boundaries of
the province so as to include' all the territories, islands, and
countries in North America, belonging to the Crown of Great
Britain, bounded on the south by a line from the Bay of
1 I talks not in original.

9 1 0 BOUNDARY DISPUTES AND TREATIES
Chaleurs, along the High Lands which divide the rivers that
empty themselves into the River St Lawrence from those
which fall into the Sea, to a point in forty-five degrees of
northern latitude. . . and northward to the southern boun-
dary of the territory granted to the Merchants Adventurers
of England, trading to Hudson's Bay.' It thus transferred
to Quebec all the territory lying between the described
southern boundary of the province ánd the Hudson's Bay
Company's territories.
It also annexed the Labrador' coast-strip' to Quebec,
as follows :
And also all such te:.' itories, islands, and countries,
which have, since the Tenth of February, one thousand
seven hundred and sixty-three, been made part of the
Government of Newfoundland, be, and they are hereby,
during His Majesty's Pleasure, annexed to, and made
part and parcel of the Province of Quebec as created and
established by the said Royal Proclamation of the Seventh
of October, one thousand seven hundred and sixty-three.
The declared intent of the Quebec Act was to annex to
Quebec 'all the territories, islands and countries in North
America, belonging to the Crown of Great Britain, bounded
on the south, by a line from the Bay of Chaleurs ' to the mouth
of the Ohio, and on the north by the a southern boundary
of the territory granted to the Merchants Adventurers of
England trading to Hudson's Bay.' Coupled with this is
the clauEe annexing to Quebec the coast-strip placed under
the jurisdiction of Newfoundland by the proclamation of
1763. Obviously, therefore, the Quebec Act included within
the bounds of that province all British territory bounded
on the south by the defined line between Chaleur Bay and
the mouth of the Ohio; on the west, by the Mississippi;
and, on the north, by the Hudson's Bay territories.
This is further confirmed by the imperial order-in-council
of August 24, 179 I, establishing the Provinces of Upper
Canada and Lower Canada, wherein the dividing line, in
part, follows from the head of Lake Timiskaming , by a line
drawn due north until it strikes the boundary line of Hudson's
Bay.'

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LABRADOR-CANADA BOUNDARY 911
In the chapter respecting the Ontario-Manitoba b01}.ndary
it was shown that investigation has practically demonstrated
that 'Hudson's Bay' in this order-in-council means the
Hudson's Bay Company's territories.
Chief Justice Smith, in his letter of February 6, 1790,
enclosing a proposed addition to the description of boundaries
in Lord Dorchester's commission, says: 'I suppose it is
intended, that Upper and Lower Canada shall divide between
them, what remains of His Majesty's Dominions in this
quarter of North America, and is not part of Newfoundland,
nor of other British Provinces.' He also enclosed a pro-
posed addition importing that by Canada is meant' all the
Dominions of New France, as claimed by the French Crown
before the conquest.'
Having demonstrated that Lower Canada, by the order-
in-council of 1791, included the whole of the mainland east
of Upper Canada and lying north of the River and Gulf
of 5t Lawrence, and east and south of the Hudson's Bay
Company's territories, the only indeterminate factors are the
limits of the latter. The decision of the imperial Privy
Council in the Ontario-Manitoba Boundary case fixes the
southern boundary on the west side of James Bay at the
Albany River, presumably on the ground that the company's
offer in 1700 and 1701 to accept it definitely determined
their territorial limits in that quarter. I t is a fair inference
that their offer in 1701 to accept the Eastmain River as
their boundary on the east shore had a similar effect. As
their offer explicitly states that the French should be forbidden
to pass the river, it indicates this stream as the boundary
from mouth to source. On the Labrador coast they offered
to accept Grimington Island as the boundary. If the English
contention be adopted, all the territory to the east and south
of a line from Grimington to the source of the Eastmain was
part of New France; if the French contention be adopted,
New France included the territory to the south-east of a
line from Cape Chidley to a point half-way between the
French post at Lake Nemiskau and Fort Rupert. .
That the line Commissary Bladen was in 1719 instructed
to claim is practically identical with the Hudson's Bay

912 BOUNDARY DISPUTES AND TREATIES
Company's line from Grimington to the Eastmain IS a
curious coincidence.
Whether the boundary-line be drawn from Chidley toward
the Nemiskau-Rupert line, or from Grimington to Mis-
tassini is of little importance, as the intervening territory
falls to Quebec either as having been part of New France or
as part of the Hudson's Bay Company's territories.
Having shown that the Quebec of the Quebec Act extended
to, at least, the Grimington-Mistassini line, it only remains to
consider the effect of subsequent legislation by the imperial
governmen t.

IMPERIAL LEGISLATION SUBSEQUENT TO 1774
It is to be noted that the proclamation of 1763 provides
as follows :
And to the end that the open and free fishery of our
subjects may be extended to and carried on upon the
Coast of Labrador and the adjacent Islands, \Ve have
thought fit, with the advice of our said Privy Council,
to put all that coast, from the River 5t John's to Hudson's
5treights, together with the Islands of Anticosti and
Madelaine, and all other smaller Islands lying upon the
said coast, under the care and Inspection of our Governor
of Newfoundland.
When, by the proclamation of 1763, the north shore of
the Gulf of 5t Lawrence was subjected to the operation of
English law and custom, the French-Canadian fishermen
complained; and, similarly, the Newfoundland fishermen
also complained when the Gulf and Atlantic coasts were, in
1774, placed under the jurisdiction of Quebec.
The act of 1774 transferred to Quebec 'all such terri-
tories' which had, since February 10, 1763, 'been made
part of the Government of Newfoundland.' The preamble
recites that whereas' certain parts of the territory of Canada,
where sedentary fisheries had been established and carried
on by the subjects of France, inhabitants of the said Pro-
vince of Canada,' etc.
In a memorial relative to the proposed extension of the
limits of Quebec, ante 1774, it is stated that the eastern

LABRADOR-CANADA BOUNDARY 913
boundary of Quebec had been fixed at the St John River
, from an apprehension' that the French Canadians had no
settlements or ' lawful possessions beyond those Limits,' and
that a ' valuable Cod Fishery might be carried on upon that
Coast. ' I twas later discovered that there were a 'variety
of claims to possessions upon the Coast of Labrador between
the River 5t John and the Straits of Belle Isle, and that by
far the greatest part of that Coast is impracticable for a Cod
Fishery. '
Judicature Act, I803.-An imperial act (43 Geo. III, cap.
138), 1803, provided for the extension of the jurisdiction of
the courts of justice in Lower Canada and Upper Canada
to the trial and punishment of persons guilty of offences
, in the Indian Territories, and other parts of [British North]
America, not within the limits of the provinces of Lower or
Upper Canada, or either of them, or of the jurisdiction of
any of the Courts established in those Provinces.'
Judicature Act, I82I.-Act 1-2 Geo. IV, cap. 66, 1821,
extended and confirmed the act of 1803. It specifically
extended the jurisdiction to the Hudson's Bay Company's
territories also.
Labrador Act, I809.-An imperial act (49 Geo. III, cap.
27), 1809, provided for the re-annexation to Newfoundland
of 'such parts of the coast of Labrador from the River St
John to Hudson's Streights, and the said Island of Anti-
costi, and all other smaller islands so annexed to the Govern-
ment of Newfoundland by the said Proclamation of the
seventh day of October one thousand seven hundred and
sixty-three (except the said Islands of Madelaine) shall be
separated from the said Government of Lower Canada, and
be again re-annexed to the Government of N ewfoundland_'
Judicature Act, I824.-Act 5 Geo. IV, cap. 67, 1824,
empowered the Governor of Newfoundland to institute a
court of civil jurisdiction at any such parts or places on the
coast of Labrador as have been re-annexed to Newfoundland.
Labrador Act, I825. - Act 6 Geo. IV, cap. 59, 1825,
recites that, as it is expedient that certain parts of the coast
of Labrador should be re-annexed to Lower Canada: 'Be
it therefore enacted that so much of tile said Coast as lies

914 BOUNDARY DISPUTES AND TREATIES
to the \Vestward of a line to be drawn due North and South
from the Bay or Harbour of Ance Sablon, inclusive as far as the
52nd degree of North latitude, with the Island of Anticosti and
all other Islands adjacent to such part as last aforesaid of the
Coast of Labrador, shall be and the same are hereby re-annexed
to and made a part of the said Province of Lower Canada.'
An imperial act (3-4 Viet. cap. 35), 1840, reunited the
provinces of Upper Canada and Lower Canada.
The British North America Act, 1867, enacts that' the
part which formerly constituted the Province of Lower
Canada shall constitute the Province of Quebec.'
The Rupert's Land Act (31-32 Viet. cap. 106), 1868, em-
powered the surrender of the lands, privileges and rights of
the Hudson's Bay Company, and an imperial order-in-council,
June 23, 1870, provided for the admission into the Dominion of
Canada of Rupert's Land and the North-western Territory.
I1nperial Order-in-Council, I88o.- The imperial order-in-
council of July 31, 1880, provides that
whereas it is expedient that all British territories and
possessions in North America, and the islands adjacent
to such territories and possessions, which are not already
included in the Dominion of Canada, should (with the
exception of the colony of Newfoundland and its de-
pendencies) be annexed to and form part of the said
Dominion.
Differences having arisen between the Dominion and
the Province of Quebec respecting the northern boundary
of the latter, a Dominion Act (61 Viet. cap. 3) was passed
in 1898, defining the boundary as the Eastmain River from
the mouth to its source; thence due east to the Ashuanipi
River; thence downstream through said river and the
Hamilton River to the western boundary of Labrador.

HISTORICAL
Summing up, it is evident that, for a proper understanding
of the rival claims of the English and French, it is necessary
to review the history of settlement and occupation in the
Ungava Peninsula. No British settlements had been made
on the Atlantic or Gulf coasts prior to the cession of Canada,

LABRADOR-CANADA BOUNDARY 915
nor had British fishermen fished on either. On the other
hand, the French had carried on the fisheries for many years
and had established small settlements, particularly on the
north shore of the Gulf. Cartier, in 1534, found the name
Brest attached to a harbour about eleven leagues west of
Ance Sablon, which proves that Breton sailors had preceded
him. Mingan seigniory was granted in 1661, and other
grants of fishing rights, etc., were also made by the French.
On de I'Isle's map, 1703, Fort Pontchartrain is indicated near
the mouth of Eskimo River, and other posts are indicated
on later maps. The ordinance of Raudot, September 7, 1709,
defines the boundaries of Tadoussac-granted to Demaure
in 1658-in part as follows:
Mistassins, and behind the Mistassins as far as the
Hudson's Bay; and on the lower part of the river the
domain will be bounded . . . by Cape Cormorans as far
as the height-of-Iand, in which extent will be comprised
the river Moisey, the Lake of the Kichestigaux, the
Lake of the N askapis, and other rivers and lakes which
discharge therein.
In 1733 Hocquart granted to Pierre Carlier the exclusive
trade, hunting and fishing from Isle aux Coudres to a point
two leagues below Seven Islands and 'in the posts of Mis-
tasinnoc, Naskapis,' etc., and the places dependent on them.
In 1702 Vaudreuil conceded to Legardeur de Courte-
manche the privilege of trading and fishing on the coast
between Kegashka and Hamilton Rivers. Courtemanche
constructed, at the present Bradore Bay, a post called Fort
Phelypeaux. These privileges were exercised by him and
by his son-in-law Brouague till after 1759.
In 1770 the Moravians established their first mission on
the Atlantic coast of Labrador. When, in 1777, the first
English settlers arrived at Hamilton Inlet, they found traces
of abandoned French settlements. The Hudson's Bay
Company established Fort Chimo in Northern Ungava in
1827, and the Erlandson Lake post in 1838. Their first
post on Hamilton Inlet was established in 1837, and Fort
Nascopee on Lake Petitsikapau-an expansion of Hamilton
River-in 1840.

916 BOUNDARY DISPUTES AND TREATIES

CONCLUSIONS
From the foregoing it is evident that:
(I) From 1763 to 1774 Quebec included the whole of
Ungava Peninsula except the Hudson's Bay Company's
territories, and a strip of coast from St John River to Cape
Chidley.
(2) From 1774 to 1809 Quebec included the whole of the
peninsula except the Hudson's Bay Company's territories,
and in 1803 and in 1821 the jurisdiction of the courts of
Lower Canada was extended to these territories also.
(3) From 1809 to 1825 the coast-strip from St John River
to Cape Chidley was again under the jurisdiction of New-
foundland.
(4) Since 182 5 the coast-strip between St John River
and Ance Sablon has been under Lower Canada (Quebec).
(5) The proclamation of 1763 explicitly states that the
, coast' was placed under the governor of Newfoundland
'to the end that the open and free fishery may be extended
and carried on upon the coast of Labrador and the adjacent
islands.' The act of 1774 transferred to Quebec, specifically,
the territory that had been placed under Newfoundland in
1763, and stated that it formed part 'of the territory of
Canada where sedentary fisheries' had been carried on by
the French prior to the Conquest. The act of 1809 re-
transfers the same coast-strip to Newfoundland, and the
act of 1825 re-annexes a portion of it to Lower Canada.
There is the same continuity throughout, demonstrating
that the strip annexed to Quebec in 1825 had the same depth
-whatever it may be-as the original strip of 1763.
(6) It is obvious that this strip must have been suffi-
ciently wide for the administration of justice, so far as it
affected the fishermen-and no wider.
(7) As the government of Newfoundland did not protest
the boundaries of Quebec, as defined in the Dominion act
of 18g8, they are estopped from claiming the territory
included therein.
(8) Newfoundland has laid claim to the portion of Un-
gava Peninsula that drains into the Atlantic and Strait of

ALASKA BOUNDARY

9 1 7

Belleisle through her Labrador coast-strip, though it is diffi-
cult to conceive that such an extensive claim rests upon a
su bstan tial basis.
An imperial act (3-4 \Vill. IV, cap. 41) enacted that' it shall
be lawful for His Majesty to refer to the said Judicial Com-
mittee for Hearing or Consideration any such other Matters
whatsoever as His Majesty shall think fit, and such Committee
shall thereupon hear or consider the same. and shall advise
His Majesty thereon in manner aforesaid.'
By virtue of this act the dispute can be referred to the
imperial Privy Council for decision. It should be so referred,
and the differences then adjusted, at an early date.

IV
ALASKA BOUNDARY

UKASE OF 1821
O N September 4, 1821,' Alexander I, Emperor of all
the Russias, signed a ukase granting 'the pursuits
of commerce, whaling, and fishery, and of all other
industry' on the north-west coast of America between
Bering Strait and latitude 510 N, to Russian subjects exclu-
sively. It also prohibited foreigners. under heavy penalties,
from approaching these coasts within less than one hundred
I talian (geographical) miles.
On November 12, 1821, this decree was officially communi-
cated to the government of Great Britain by Baron de Nicolai.
Sir Charles Bagot, British ambassador at St Petersburg, was
informed by Count N esselrode that' the object of the measure
was to prevent the U commerce interlope" of the citizens of
the United States,' who not only carried on an illicit trade
in sea-otter skins, but traded prohibited articles, especially
gunpowder, with the natives of Russian America. Sir
Charles reported to the British government that' this extra-
ordinary pretension has been adopted from, and is supposed
to be justified by, the XII Article of the Treaty of Utrecht.' 1

1 By Article XII French subjects were excluded' from all kinds of fishing
. . . within 30 leagues · of the coasts of Nova Scotia.

II"\!!I' I J.I("
r Q r:nl r FGE l\

918 BOUNDARY DISPUTES AND TREATIES
The Hudson's Bay Company and British firms engaged
in whaling sent protests respecting the ukase to the Board
of Trade. On January 18, 1822, the Marquess of London-
derry wrote Count Lieven, Russian ambassador at London,
that he was directed to make such provisional protest against
the ukase as would fully serve to save the rights of Great
Britain and protect British subjects from molestation in the
exercise of their lawful callings in the North Pacific. He also
denied the right of Russia to forbid navigation within one
hundred miles of the coast.
In September 1822 Count Lieven stated to the Duke of
Wellington that the' Emperor did not propose to carry into
execution the Ukase in its extended sense,' but had instructed
the Russian ships to cruise close inshore; 1 also that the
Russian minister in the United States had been authorized
to treat upon limits in North America with the United States.
He stated confidentially that, if Great Britain 'had any
claim to territory on the north-west coast of America,' it
might be brought forward, , so as not to be shut out by any
agreement made between Russia and the United States.'
In October and November 1822 the Duke of Wellington
exchanged notes with Count Nesselrode respecting the claims
of Russia. Wellington objected to the claim of sovereignty
on the ground that, while Great Britain might, with good
grounds, dispute with Russia the priority of discovery,
the forts established by the Hudson's Bay and North-West
Companies gave her the 'more easily proved, more con-
clusive, and more certain title of occupation and use.'
He further stated that Great Britain could not admit the
right of any power to claim jurisdiction seaward for one
hundred miles, or to convey to private merchant ships the
righ t to search in time of peace.
The Russian government, in reply, claimed that the
Hudson's Bay and North-West Companies had no posts on
the Pacific between the 51st and 60th parallels; that, since
the discoveries of Bering and Chirikof in 174 I, Russian
settlements had been growing; that in 1799 the charter of

1 Respecting these assurances, Wellington observed that' this explanation
when given will be very little satisfactory.'

uo

138

1;.
6

134

J.3
.

y

K

o

ALASKA BOUNDARY

LEGEND.

- Boundary claimed by Great Britain
-........ Boundary claimed by United States.
+ + + + Boundary according to Award of Convention. Oct. 20. 1903.
I xoux", Line according to Treaty of 1825 (approximate only).
00000000 Provisional Boundary
J . - . -. Sir Charles Bagot.s Fint Line. Oct. 28, 1823.
- + - Sir Charles Bagot's Second Line, Feb 28 111 1824.
o _ 0 Sir Charles Bagot.s Third Line. between Feb. 28 and
March 19. 1824.
1<0 - 1<0 Sir Charles Bagot's Fourth Line, March 19, 1824.
Note I FromA eastward and northwa.rd. the Third, and Fourth
Lines coincide.
The awarded line coincides with the line claimed by
Great Britain between west end of Wales bland and ßO
head of Portland Canal. and abo with the line claimed
by the United States between east end of Pearse Island
and head of Portland C&D&l.

Engfuh Miles
J, .10 20 30 40 :w 60 70

<t:

H

þ

H

ÞOo..o

Ç",)

I
! I l

- - -- --- -
J. ,. f dmb
'f'ogr'Rp1uCal In..b:tu:!:.e

I::fl

,.1

.......lmRfU't1.o10lm"'f'&'"

P""fJtll'ed b..v .Tallles lOtit". .r: R. C.S., ..,I'/J1.'.,v....{
. fó,' "rallwlll <lilt! 1/." P,.....-iru.es:.

ALASKA BOUNDARY

9 1 9

the Russian American Company granted them the trade of
the coast to latitude 55 0 , and that this charter had not been
protested by Great Britain. They offered, however, to enter
into friendly negotiations for a settlement of boundaries
between the two powers.
On January 31, 1823, Count Lieven informed George
Canning that he was instructed to propose that' the question
of strict right be temporarily set aside on the part of both,
and that all the differences' be adjusted by a negotiation at
St Petersburg. In accordance with the Russian proposition,
Sir Charles Bagot, British ambassador at St Petersburg, was
instructed to commence negotiations.

NEGOTIATIONS BETWEEN THE UNITED STATES AND RUSSIA
I t is necessary here to notice the negotiations between
the United States and Russia. When informed officially of the
ukase of 1821, the United States government denied in toto
the claims of Russia to any territory south of latitude 55 0 N,
basing this contention on the charter granted by Emperor
Paul to the Russian American Company, December 27, 1799.
On April 14, 1823, the Russian envoy, Baron TuylI,
proposed that negotiations be initiated between the United
States and Russia. John Quincy Adams, United States
secretary of state, suggested to Stratford Canning' whether
it might not be advantageous for the British and American
Governments. . . to empower their ministers at St Peters-
burg to act in the proposed negotiation on a common under-
standing.' He added that the United States had no terri-
torial claims of their own as high as the 51st degree of latitude.

J OINT NEGOTIATION OF GREAT BRITAIN AND THE
UNITED STATES WITH RUSSIA
George Canning wrote Sir Charles Bagot, British am-
bassador at 5t Petersburg, that' such a concert as the United
States are understood to desire will be peculiarly advan-
tageous . . . and it would certainly be more easy for His
Majesty to insist lightly on what may be considered as a
point of national dignity, if he acted in this respect in concert
VOL. VIII Q

9 20 BOUNDARY DISPUTES AND TREATIES
with another Maritime Power. . . Great Britain and the
United States may be satisfied jointly with smaller conces-
sions than either Power could accept singly, if the demands
of the other were likely to be higher than its own.' Respect-
ing the settlement of the boundary between the two powers,
he said that it might be settled upon the principle of joint
occupancy or of territorial demarcation, the latter being
clearly preferable, and that a line of demarcation drawn at
latitude 57 0 N would be satisfactory to Great Britain and
fair to Russia.
Sir Charles Bagot proposed Cross Sound, in approximate
latitude 58tO N, and Lynn Canal as the boundary on the
coast, and a due north line from the head of Lynn Canal in
about 135 0 \v longitude as the boundary on the mainland.
Chevalier de Poletica proposed latitude 54 0 N, and' for the
longitude such a line as in its prolongation in a straight line
toward the pole would leave the Mackenzie River outside
of the Russian frontier.' To Poletica's objection that the
Cross Sound line would deprive Russia of Sitka Island, Bagot
suggested a pecuniary indemnity.
THE MONROE DOCTRINE
In October 1823 Bagot ascertained from Henry Middleton,
United States minister at St Petersburg, what' he had long
had reason to suspect,' that the United States were prepared
to claim that they had at least an equal right with Great
Britain and Russia to the whole coast as high as latitude
61 0 N, basing their claim upon the treaty of Florida Blanca,
1819, whereby Spain ceded to the United States all her rights
and claims north of latitude 420 N. On December 2, 1823,
President Monroe, in his message to Congress, declared
that, in connection with the negotiations with Russia, the
occasion had been' judged proper for asserting as a principle
. . . that the American continents, by the free and independ-
ent conditions which they have assumed and maintain, are
henceforth not to be considered as subjects for future coloniza-
tion by any European powers.' In the same month Richard
Rush, United States minister at London, informed George
Canning that he was instructed to propose that no settlements

ALASKA BOUNDARY 9 2 1
be made' by Russian subjects south of latitude 55 degrees,
by citizens of the United States north of latitude 51 degrees,
or by British subjects either south of 51 degrees or north of
55 degrees.' As Great Britain and the United States were at
that time in joint occupation of the territory north of lati-
tude 420, and as Great Britain had repeatedly refused to
accept latitude 49 0 N as her southern boundary, it can hardly
be claimed that the American proposition erred on the side
of modesty.1
Canning asked Rush for an explanation of the president's
declaration respecting colonization. As Rush said he ' could
explain it no otherwise than as pointed at Russia,' 2 Canning
declined to join the British negotiations to the American. 3
The negotiations with Russia thenceforth proceeded separ-
ately, and, on April 17, 1824, the United States concluded
a treaty with Russia whereby it was agreed that the citizens
of the United States would not form settlements north of
latitude 54 0 40', and that Russian citizens would not form
settlements south of it. As the convention of 1818, providing

1 George Canning, in his dispatch to Bagot, January 15, 1824, refers to the
coincidence that both Russia and the United States suggested 55 0 N as the line
of demarcation. As the United Stat
s proposed that the line between them-
selves and Great Britain be drawn at latitude 510 N-the point at which the Russian
þretension as set forth in the ukase of 1821 terminated-he observed that · it does
not seem very uncharitable to suppose that the object of the United States in
making a selection, otherwise wholly arbitrary, of these two points of limitation
for British Dominion was to avoid collision with Russia themselves, and to
gratify Russia at the expense of Great Britain. There is obviously no great
temptation to call in such an Arbiter, if the partition between Russia and our-
selves can be settled, as no doubt it can, without arbitration · (Appendix to the
Case of his Majesty's Government before the Alaska Boundary Tribunal, i. p. 6).
I George Canning and his Friends, ii. p. 217.
3 On January 23, 1824, Stratford Canning wrote Sir Charles Bagot: · There
are so many points of rivalship between the two countries, with so much pre-
judice on one side, and so much forwardness, not to say impudence, on the other,
that I almost despair of ever seeing my wishes on that subject realized. I see
that you are about to plunge into your North-western negotiations, and I con-
gratulate you most heartily on having at least to swim in that element without
an attendant Yankee offering a cork-jacket, and watching his opportunity to
put your head under water · (George Canning and his Friends, ii. pp. 220-1).
On February 17, 1824, Bagot wrote Canning that the original instructions to
Middleton were: 'Nothing less than to propose to Russia to proceed to divide
the whole coast in question between Her and the United Stat
s to our entire
exclusion' (Bagot Papers, I82,j-21-; in Canadian Archives).

922 BOUNDARY DISPUTES AND TREATIES
for joint occupancy of the Oregon territory by Great Britain
and the United States, had still four years to run, there was
ample time for negotiations between these nations respecting
the territory between latitude 420 and 54 0 40'.
INSTRUCTIONS TO BAGOT
On January 15, 1824, George CaQning instructed Bagot
to suggest a boundary through Chatham Strait, or, failing
that, the channel 'which separates the whole archipelago
from the mainland.' If neither channel could be obtained,
the line was to be drawn 'on the mainland to the north of
the northernmost post of the North-West Company from
east to west till it strikes the coast, and thence may descend
to whatever latitude may be necessary for taking in the island
on which Sitka stands.' On the mainland Bagot was in-
structed to claim the meridian of M t St Elias as the boundary,
or, failing that, the 135th meridian. Southward of Lynn
Canal he was to limit the Russian coast-strip to a width of
fifty or one hundred miles, but not on any account to allow
it to extend to the Rocky Mountains.
BAGOT'S PROPOSALS
On February 16, 1824, Bagot opened negotiations at St
Petersburg with N esselrode and Poletica. He first proposed
that the boundary should run through Chatham Strait and
Lynn Canal; thence north-westward to Mt 5t Elias or to
the 140th degree of longitude, and thence, along that meridian,
to the Arctic Sea. N esselrode and Poletica offered to accept
a line from the southern extremity of Prince of Wales Island
eastward to Portland Canal; thence up Portland Canal to
the head ; thence following the mountains which run along
the coast (montagnes qui bordent la côte) to longitude 139 0 w;
thence along the meridian to the Arctic. Except that it
follows the 139th meridian instead of the 141st, this is
practically the boundary as fixed by the treaty of 1825.
Bagot then proposed a line through the strait north of
Prince of Wales and Duke of York (Zarembo and WrangelI)
Islands to the mainland; thence northward 'parallel to
the sinuosities of the coast and always at a distance of ten

ALASKA BOUNDARY

9 2 3

marine leagues from the shore,' to 1400 w longitude; thence
due north following the I40th meridian.
The Russian plenipotentiaries adhered to their first line,
but offered the free navigation of rivers crossing the coast-
strip and to open the port of Sitka to trade for British
subjects. They reminded Bagot that, C without a strip of
land on the coast of the continent from Portland Channel, the
Russian Establishments on the adjoining islands would be
left unsupported, that they would be left at the mercy of
those Establishments which foreigners might form on the
mainland, and that all settlement of this nature, from being
grounded upon the principle of mutual conveniences, would
offer only dangers to one of the parties and exclusive gains
to the other.'
On March 19 Bagot proposed a line passing up Clarence
Strait to the middle of Sumner Strait and thence following his
second line. This would have conceded Prince of "Vales and
the smaller islands to the west of it to Russia. This also was
rejected. As Bagot had made practically all the concessions
he was authorized to make, he suspended negotiations. 1
In Nesselrode's dispatch to Count de Lieven, April 17,
1824, notifying him of the failure of the negotiations, he
claimed that the Hudson's Bay and North-West Companies
C have hardly, within the last three years, reached the neigh-
bourhood of these latitudes, whilst they do not yet occupy
any point contiguous to the Ocean, and that it is a known
fact that it is only for the future that they are endeavouring
to secure the benefits of the fur trade and of fishing. In
short, we desire to keep and the English companies want to
acquire.' He also stated that, if Prince of Wales Island
were isolated, as proposed by Bagot, it would be rendered
valueless to Russia. Respecting the coast he said: C As for
us we restrict our demands to a small strip (lisière) of coast
on the continent. . . when Russia persists in claiming the
reservation of an unimportant strip on the mainland, it is

1 On March 29, 1824, Bagot, in a private dispatch to Canning, said that the
Russian government · must be dealt with as you would deal with a horsedealer.
Their whole conduct in the late negociation has been of the most huckstering
and pedlarlike character' (Bagot Papers, J82.1-24; in Canadian Archives).

9 2 4 BOUNDARY DISPUTES AND TREATIES

only as a means to enhance the value, nay more, fiot to lose,
the adjacent islands.'
MODIFIED INSTRUCTIONS TO BAGOT
On July 12, 182 4, George Canning instructed Bagot to
accept Nesselrode's offer except that, in 'fixing the course
of the eastern boundary of the strip of land to be occupied
by Russia on the coast, the seaward base of the mountains
is assumed as that limit.'
As an additional security that this line would not be
carried too far inland, he stipulated that it should 'in no
case (i.e. not in that of the mountains, which appear by the 1nap
almost to border the coast,1 turning out to be far removed from
it) be carried further to the east' 2 than ten leagues from
the sea, but that it would be desirable, if he were' enabled
to obtain a still more narrow limitation.' He stipulated,
moreover, that the use of Sitka Harbour, and the right of
navigation of the rivers on the continent, should be in per-
petuity.
Lieven represented to Canning that when a 'chain of
mountains is made to serve for the establishment of any
boundary whatever, it is always the crest of those mountains
that forms the line of demarcation,' and that the word' base,'
instead of preventing controversy, would probably be fruitful
of it. Canning had only used the word 'base' because
1 I talics not in original.
S This stipulation was inserted at the instance of J. H. Pelly, governor of the
Hudson's Bay Company, who had written Canning on May 26 preceding, that
the mountains described by the Russians as at a I très petite distance' might
really be at a very considerable distance from the coast, and that therefore
the distance ought to be limited, as suggested by Bagot, I to a few leagues, say,
not exceeding ten, from the shores.'
On April 20 Canning wrote Bagot: I By the enclosed copy of a letter from
Mr Pelly (from pellis, a skin) you will gather that I have the consent of the Fur
Companies to close with the Russian Proposal · (George Canning and his Friends,
Ü. pp. 232-3).
. That Canning was in close touch with the British interests affected adversely
by the Russian ukase, is indicated by his private letter of July 29, 1824, to Bagot.
He humorously wrote that the proposed convention I had been submitted to
both the furry and the finny tribes-the Enderbys, the Pellys and the Barrows.
. . . In addition to the claims of science, there is very nice" bobbing for whale,"
they tell me, ipsis Behringi in jaucibus, which must be guarded' (George Canm:ng
and his Friends, ii. p. 266).

ALASKA BOUNDARY

9 2 5

Great Britain was then, and had been for many years, engaged
in a controversy with the United States respecting the' high-
lands' boundary between Quebec and Maine-the boundary
by the treaty of 1783. He therefore instructed Bagot, if
pressed, to accept the ' crest.'
When Bagot submitted his proposal to the Russian pleni-
poten tiaries on August 2 I, they refused to concede, for a
longer term than ten years, the opening of the port of Sitka
or liberty of navigation along the coast of the lisière, or to
concede any rights to visit the coasts north of latitude 60 0 N.
To Bagot's protest that they had, on April 5 preceding,
offered to open the port of Sitka and the lisière, they replied
that it was never their intention that the freedom should be
perpetual. 1
INSTRUCTIONS TO STRATFORD CANNING
Negotiations were suspended, and shortly afterwards,
as he desired a post nearer England, Bagot was transferred
to The Hague. George Canning decided to send a special
mission to negotiate the treaty, and, in December 1824,
Stratford Canning was appointed plenipotentiary on the
part of Great Britain. He was instructed: that it was
comparatively indifferent to Great Britain whether the
question of boundaries was hastened or postponed, but that
Russian pretensions to exclusive dominion over the Pacific
must be repealed; that the only point to which the British
government attached any great importance was' the doing
away (in a manner as little disagreeable to Russia as possible)
of the effect of the Ukase of 1821'; that the substitution, as
the boundary of the lisière, of a line ten leagues from and
parallel to the coast, for the crest of the mountains, was
inadmissible, particularly as the latter was the boundary
1 Probably the change of front was due to the fact that on April 17, twelve
days later, they had signed the treaty with the United States granting these privi-
)eges to the latter for ten years only. In addition Bagot had, in July following
-though without instructions-attended a preliminary conference with Russian
and Austrian plenipotentiaries respecting the attempt of the Greeks to achieve
independence. Canning repudiatQd Bagot's action, and eventually all negotia-
tions ceased between England and the Holy Alliance. This undoubtedly gave
great offence to Russia, whose double-dealing had determined Canning to act
independently.

926 BOUNDARY DISPUTES AND TREATIES
suggested by the Russians; that Great Britain would accept
the summit instead of the seaward base as the line of demarca-
tion; that from the vicinity of M t St Elias to the Arctic,
the line should follow the I4Ist meridian, and that the
limitation of the opening of the port of Sitka to ten years
was acceptable provided no other nation received more
favourable terms. .
In concluding George Canning stated that
It is not, on our part, essentially a negotiation about
limits. It is a demand of the repeal of an offensive and
unjustifiable arrogation of exclusive jurisdiction over an
ocean of unmeasured extent; but a demand qualified
and mitigated in its manner, in order that its justice
may be acknowledged and satisfied without soreness or
humiliation on the part of Russia. We negotiate about
territory to cover the remonstrance upon principle.
Difficulties arose between the negotiators with reference
to the definition of the lisière as following the crest of the
mountains except where it was more than ten leagues from
the coast. Eventually this point was conceded by the
Russians, but that the concession rankled is evident from
the correspondence. On March 3, 1825, Nesselrode wrote
Count Lieven that this was the only point that had given
rise to any difficulties, and that the
Emperor would have found it more mutually just, more
equally advantageous, if the natural frontier formed by
the mountains bordering on the coast were adopted
by both parties as the invariable line of demarcation.
England would have gained thereby wherever those
mountains were less than ten marine leagues from the
sea; Russia, wherever that distance was greater; and
in view of the want of accuracy of the geographical notions
which we possess as to these countries, such an arrange-
ment would have offered an entire equality of favourable
chances to the two contracting parties.
George Canning assured Lieven that the British demand
arose solely from a sincere desire to prevent the recurrence
of any disagreeable discussion in future, and not from any
intention of acquiring an increase of territory; and that the

ALASKA BOUNDARY 9 2 7
disputes in which they were engaged with the United States,
on account of a similar' stipulation in the Treaty of Ghent,' 1
had shown the inexpediency of a delimitation established
on this principle.
The two governments were in close touch with their
respective trading companies, and it is a fair inference that
the Russian American Company feared the limitation would
be detrimental to their interests. 2

TREATY OF FEBRUARY 28, 1825
On February 28, 1825, the treaty-practically the same
as that proposed by Stratford Canning-was signed at St
Petersburg.
Articles I and II were identical with the similarly numbered
articles of the treaty between Russia and the United States,
signed the previous year. By them Russia renounced her
extravagant claims to maritime jurisdiction, and it was
mutually agreed that vessels of either party should not land,
without permission, at establishments of the other.
Articles III and IV defined the line of demarcation as
follows :
Commencing from the southernmost point of the
island called Prince of Wales Island, which point lies
in the parallel of S4 degrees, 40 minutes, north latitude,
and between the I31st and 133rd degree of west longitude
(meridian of Greenwich), the said line shall ascend to
the north along the channel called Portland Channel,
as far as the point of the continent where it strikes the
56th degree of north latitude; from this last-mentioned
point the line of demarcation shall follow the summit of
the mountains situated parallel to the coast as far as the
point of intersection of the 141st degree of west longitude
(of the same meridian) ; and, finally, from the said point
of intersection, the said meridian line of the 141st degree,
in its prolongation as far as the frozen Ocean, shall form
the limit between the Russian and British possessions on
the continent of America to the northwest.
1. An error: should read · Treaty of Paris, 1783'-
2 On March 29, 1824, Bagot wrote Canning that Nesselrode and Poletica 'are
both under the dominion of the Russian American Company' (Bagot Papers,
J82.1-21-; in Canadian Archives).

9 28 BOUNDARY DISPUTES AND TREATIES
IV. With reference to the line of demarcation laid
down in the preceding Article it is understood:
1st. That the island called Prince of Wales Island shall
belong wholly to Russia.
2nd. That whenever the summit of the mountains
which extend in a direction parallel to the coast, from the
5 6th degree of north latitude to the point of intersection
of the 141st degree of west longitude, shall prove to be
at the distance of more than 10 marine leagues from the
Ocean, the limit between the British possessions and the
line of coast which is to belong to Russia, as above
mentioned, shall be formed by a line parallel to the
windings of the coast, and which shall never exceed the
distance of 10 marine leagues therefrom.
Article V provided that no establishments should be
formed by either party in the area assigned to the other.
Article VI acknowledged the right, in perpetuity, of British
subjects to navigate all rivers and streams draining into the
Pacific that crossed the lisière. Other articles conceded
rights of navigation for ten years.

THE 'DRYAD' CASE

In May 1834 the Hudson's Bay Company dispatched an
expedition in the Dryad to establish a trading post on the
Stikine River at a distance exceeding ten marine leagues from
the Pacific. Near the mouth of the Stikine the vessel was
boarded by a Russian officer, who refused to allow it to enter
the river. The Hudson's Bay Company appealed to the British
government andclaimedf22,ooodamages. In December 1835
the British government protested the action of the Russian
officials, and presented the company's claim. Several com-
munications were exchanged, in which Count Nesselrode,
in a very disingenuous way, endeavoured to justify the
Russian action. In October 1838 Milbanke, British minister
at St Petersburg, presented a stiff note practically demand-
ing satisfaction. He observed that, under Article VI of
the treaty of 1825, the British were guaranteed the free
navigation of the rivers that crossed the lisière, and that the

ALASKA BOUNDARY

9 2 9

term of ten years granted in Article VII to the British to
navigate and trade along the lisière, had not expired when
the Dryad was turned back. In December N esselrode, in
a memorandum to Count Kankreen, conceded that they
would' be obliged ultimately to give into because the clear
provisions of the treaty are not calculated to strengthen the
side we have defended until now. . . . As the matter now
stands, we are not likely to have any more plausible pretexts
for further evading the claim for indemnity.' Nesselrode
recommended that the Russian American Company should
negotiate a settlement with the Hudson's Bay Company.l
As a result of the negotiations, the latter leased from the
Russian company the exclusive right of trading on the main-
land between latitude 54 0 40' and the entrance to Cross
Sound for a yearly payment of two thousand land-otter
skins. This agreement was renewed from time to time, and
finally expired in 1867.

NEUTRALIZATION DURING THE CRIMEAN \VAR
When the Crimean War broke out, the Russian American
and Hudson's Bay Companies proposed to their respective
governments that the Russian and British territories on the
west coast of North America should be recognized as neutral
territory. This arrangement was loyally carried out by
Great Britain, but was violated by Russia. 2 Had Great
Britain bt;en informed of this violation, her Pacific fleet would
have seized Russian America, and what is now Alaska would
in all probability have passed to the British crown.

1 · This agreement would be especially desirable because it would enable us
to avoid all further explanations with the Government of the United States as
to its ceaseless demands, disadvantageous to our interests, for the renewal of
Article IV of the Treaty of 1824, which granted to American ships the right of
free navigation for ten years' (Nesselrode to Kankreen, January "I, 1839, in
Appenàix to the Case of the United States, p. 312).
Z · A few English cruisers appeared at the entrance of Sitka Bay at various
times, but finding no vessels of war, nor any evidence of a violation of the agree-
ment, inflicted no damage. . . . This was either a fortunate accident or was due
to the vigilance of the Russians' {Bancroft's Works, H1"story of Alaska, xxxiii.
p. 57 1 }.

930 BOUNDARY DISPUTES AND TREATIES

SALE OF RUSSIAN AMERICA TO THE UNITED STATES
In 1867 Russia sold her American possessions to the United
States for $7,200,000. Many American writers have pub-
lished sensational accounts of the occurrences that led up
to the transaction, but investigation indicates that it is sus-
ceptible of a very commonplace explanation. 1
An American company desired to obtain a licence to trade
for furs in part of Russian America. Sir George Simpson,
the able autocrat of the Hudson's Bay Company, had passed
away in 1860; in 1863 the Hudson's Bay Company had
been taken over by the International Financial Association;
since 1864 the new company had had under consideration
the sale to Canada of its territorial rights and claims, and the
only point at issue was the question of price; the lease had
only been renewed for three-year periods since 1859. As it
was therefore obvious to Russia that the Hudson's Bay
Company would allow the lease to expire at a very early date,
she decided to sell the whole territory to the United States,
instead of leasing the coast-strip to an American fur-trading
company, as at first suggested.

BRITISH REQUEST FOR JOINT SURVEY, 1872
In 1872 Sir Edward Thornton, British minister at Wash-
ington, inquired of Hamilton Fish, secretary of state, whether
the United States would be willing to appoint a commission
to define the boundary between Alaska and British Columbia.
As a result, President Grant, in his message to Congress,
December 2, 1872, recommended the appointment of the

lOne commonly accepted tale is, that in 1863 Russian fleets were dispatched
to New York and San Francisco, and that their sealed orders, to be opened in case
of intervention by a. European power, directed them to range themselves on the
side of the federals. Like most tales of the kind, the revelations are · corroborated
by a well-known New York gentleman: who was shown by Chancellor Gortschak-
off · an order in the Czar's own hand directing his Admiral to report to President
Lincoln for orders in case England or France sided with the Confederates,' etc.,
etc., all, of course, in · strict confidence.' That Gortschakoff would show an im-
portant official dispatch is unbelievable. For this and similar tales, see Balch's
The Alaska Frontier.

ALASKA BOUNDARY

93 1

commISSIon, but Congress failed to take action on account
of the expense. Fish then suggested that the boundary
should be determined only where it crossed the Stikine River
and a few other important points.

BOUNDARY ON STIKINE RIVER
In 1875 Hamilton Fish communicated to Sir Edward
Thornton letters in which it was alleged that the Canadian
custom-house on the Stikine was in United States territory.
The Canadian Privy Council recommended that the point
where the boundary intersected the Stikine River should be
determined. In 1876 representations were made by the United
States government respecting a convict named Peter Martin,
who was tried and convicted in a British Columbian court
for an assault alleged to have been committed near the
mouth of the Stikine. In 1877 the Canadian government
instructed Joseph Hunter to ascertain the position of the
boundary-line on the Stikine. Though Hunter reported that
the assault was committed in the United States territory,
Martin was 'surrendered on the ground that he was a
prisoner conveyed through United States territory.' Hunter
stated that the line' following the summit of the mountains
parallel to the coast' crossed the Stikine 19013 miles from the
coast in a direction at right angles thereto.
Representations respecting the importance of a settle-
ment of the boundary were repeatedly made by Great
Britain, but without any action by the United States govern-
ment, except that, in 1878, they accepted Hunter's line, pro-
vided it was understood to be a provisional arrangement
only.

DALL-DA WSON CORRESPONDENCE
In 1884 William H. Dall, an officer of the United States
Geological Survey, in a semi-official letter to Dr George
M. Dawson, suggested a settlement of the boundary. He
said that' the continuous range of mountains parallel to the
coast. . . having no existence,' the United States would

93 2 BOUNDARY DISPUTES AND TREATIES
wish to fall back on the ten-leagues line parallel to the coast,
and that it would' be impracticable to trace any such wind-
ing line over that U sea of mountains." ,
The United States government adopted Dall's argument,
and in 1886 Edward John Phelps, United States minister at
London, in a communication to the Marquess of Salisbury,
suggested that an international commission should be ap-
pointed to fix a conventional boundary, as it was obvious
that drawing a line' parallel to the windings of the coast'
was a geographical impossibility. He said: 'The result
of the whole matter is that these Treaties. . . really give no
boundary at all, so far as this portion of the territory is
concerned.'
In 1887 Sir Lionel Sackville-West, British minister at
Washington, called the attention of Thomas Francis Bayard,
United States secretary of state, to statements in a report
by Lieutenant Schwatka, United States army, in which he
indicated two points, Perrier (Chilkoot) Pass and 1410 W
longitude, which he determined as defining the international
boundary. Sir Lionel observed that Schwatka had made a
military reconnaissance in British territory without permission
from the British government, and that although it had agreed,
in principle, to take part in a preliminary investigation of
the boundary question, it was not prepared to admit that the
points fixed by him determined where the line should be drawn.
In 1888, as a result of informal conferences, Dawson and
Dall formulated the British and United States contentions
respectively. Several conventional lines were proposed, but
the differences were irreconcilable.

BRITISH PROTESTS
In June 1888 the Canadian government was informed
that certain persons were about to receive a charter from the
Alaskan authorities to construct a trail from Lynn Canal by
way of White Pass to the interior of Alaska. At the instance
of the Canadian government, Sir Lionel Sackville- West was
instructed to inform the United States government that' the
territory in question is part of Her Majesty's dominions.'

ALASKA BOUNDARY

933

Sir Lionel omitted to specify the locality referred to, and
Bayard replied that he had no information indicating that
such action was contemplated.
In 1891 Sir Julian Pauncefote addressed a note to James
G. Blaine, United States secretary of state. He quoted
a report of the United States Coast Survey, wherein it was
stated that this bureau proposed to undertake a survey of
the boundary' through the Portland Canal' to 560 N latitude,
and thence north-westerly, following, as near as practicable,
the' general trend of the coast, at a distance of about 35 miles
from it,' etc. He con tended that' the actual boundary line
can only be properly determined by an International Com-
.. ,
mISSIon.

BOUNDARY SURVEY CONVENTIONS, 1892 AND 1895
On July 22, 1892, a convention was signed by Michael H.
Herbert and John W. Foster, on the part of Great Britain
and the United States respectively. It provided for a joint
survey of the territory adjacent to the line from latitude
54 0 40' to its intersection with the 141st meridian, the sur-
veys to be completed within two years. As the time allotted
was found insufficient, another convention was concluded
February 3, 18 94, extending the time to December 3 1 , 1895.
William F. King and Thomas C. Mendenhall were ap-
pointed commissioners on behalf of Great Britain and the
United States respectively, under the Alaska Convention
of 1892. In 1895 General W. W. Duffield succeeded Menden-
hall. On December 31, 1895, Duffield and King signed their
report and transmitted it, with accompanying maps, to their
respective governments.

FRICTION AT CHILKOOT AND WHITE PASSES, 1896
The discovery of gold in 1896 in the valley of the Klon-
dike River resulted in an influx of tens of thousands of miners
and others. The ports of Dyea and, later, Skagway sprang
into existence at the head of Lynn Canal, the gateway to the
Upper Yukon via the Chilkoot and White Passes. Though

934 BOUNDARY DISPUTES AND TREATIES
Canada's claim to the territories at the head of Lynn Canal
was well known, the United States revenue officers ruled that
the regulations forbade landing from British vessels any-
where on the shores of that inlet. As a result of correspond-
ence between the Canadian and United States governments,
Dyea and Skagway were made sub-ports of entry, this arrange-
men t being accepted by Canada. .
On January 30, 1897, Sir Julian Pauncefote and Richard
Olney signed, on behalf of Great Britain and the United
States respectively, a convention providing' for the demar-
cation of so much of the 141st meridian of west longitude as
may be necessary for the determination of the boundary'
between Yukon and British Columbia and Alaska.
As the great traffic attracted to the valley of the Yukon
by the gold discoveries traversed the passes at the head of
Lynn Canal, it became important that the boundary, especi-
ally in that particular locality, should be defined. In February
1 8 9 8 the British government proposed to the United States
that the determination of 'the boundary south of Mount
St Elias should at once be referred to three Commissioners
(who should be jurists of high standing), one to be appointed
by each Government, and a third by an independent Power';
that the commission should proceed at once to fix the frontier
at the heads of inlets traversed by this traffic; and that,
pending the settlement of the boundary, a modus vivendi
be arranged.
On May 9, 1898, the United States government consented
to the temporary demarcation of the boundary in the region
at the head of Lynn Canal. They proposed that monuments
should be erected, but stipulated that this arrangement was
not to be considered as in any manner prejudicing their
rights under existing treaties. The Canadian government
recommended that posts should be erected at the summits
of the Chilkoot and White Passes, and at the confluence of
the Chilkat and Klehini Rivers.
In 1896 four storehouses were constructed near the mouth
of Portland Canal, but their existence was not known to the
British government till 1901. In that year it was discovered
that a United States Coast Survey chart indicated one each

ALASKA BOUNDARY

935

on Wales and Pearse Islands, and two on the western shore
of Portland Canal. As they had obviously been erected
solely to form the basis of a claim of 'effective occupation,'
Lord Pauncefote, British ambassador at Washington, was
instructed to make inquiry as to their nature, and the reason
for their erection in the disputed territory. John Hay,
United States secretary of state, claimed that they were on
territory that had been in the possession of the United States
since its acquisition from Russia, and that he was not aware
that the British government had ever advanced any claim
to it prior to May 30, 1898.

J OINT HIGH COMMISSION, 1898-99
At a meeting in Washington in May 1898, preliminary
to the appointment of a joint high commission for the adjust-
ment of a number of differences between Great Britain and
the United States, it was deemed expedient to come to an
agreement upon' provisions for the delimitation and estab-
lishment of the Alaska-Canadian boundary,' and that each
government should communicate to the other a memorandum
of its views on this and other stated subjects.
In July Sir Julian Pauncefote delivered to the United
States secretary of state a dispatch setting forth the views
of the British government. The dispatch pointed out that,
as the provisional line was 'more than 100 miles from the
ocean, Her Majesty's Government cannot reasonably be
expected to continue to accord it provisional recognition for
an indefinite period, and, pending a definite settlement of
the question, a provisional line more in accordance with the
treaty stipulations should be adopted, which will allow the
occupation by Canada of one at least of the ports on this
inlet. '
It further urged two special reasons for an early delimi-
tation of the boundary near Lynn Canal; first, that as there
had been a large influx of miners and others into the Klondike
-to which access lay mainly through the coast-strip-the
necessity of a customs frontier on the inlets was obvious;
secondly, that the whole coast-strip was believed to be
VOL. VIII R

936 BOUNDARY DISPUTES AND TREATIES

auriferous; in any event the Joint Commission should,
pending a final settlement, establish a temporary line on the
various inlets and rivers crossing the coast-strip.
The memorandum of the United States government
pointed out that the boundary had already been the subject
of conventional arrangements, and, as the report of the Joint
Commission was available, the two governments could
proceed to establish the boundary, and that they would expect
the Joint High Commission to determine the boundary in
accordance with the treaties of 1825 and 1867, to delineate
it upon proper maps and to establish boundary monuments.
The Joint High Commission, however, separated without
any settlement of the points at issue.
On October 20, 1899, a modus vivendi between Great
Britain and the United States was agreed upon. The pro-
visional boundary was fixed at the summits of the White
and Chilkoot Passes, and, on the Chilkat River, at the
mouth of Klehini River.

ALASKA BOUNDARY CONVENTION, 1903
After much negotiation a convention was concluded at
Washington January 24, 1903, by Michael H. Herbert and
John Hay, on behalf of Great Britain and the United States
respectively. Article I of the convention provided for a
reference of the Canada-Alaska boundary differences to a
tribunal to 'consist of six impartial jurists of repute,' three
to be appointed by His Britannic Majesty and three by the
President of the United States; all questions to be decided
by a majority of all the members.
By Article III it was agreed that the tribunal should
consider, in the settlement of the questions submitted to its
decision, the treaties of 1825 and 1867, particularly Articles
III, IV and V of the first-mentioned treaty: the tribunal
was also to ' take into consideration any action of the several
Governments or of their respective Representatives, pre-
liminary or subsequent to the conclusion of said Treaties,
so far as the same tends to show the original and effective
understanding of the Parties in respect to the limits of their

ALASKA BOUNDARY

937

several territorial jurisdictions under and by virtue of the
provisions of said Treaties.'
Article IV provided that the tribunal should answer and
decide the following questions:
I. 'What is intended as the point of commencement of
the line ?
2. 'What channel is the Portland Channel?
3. 'What course should the line take from the point of
commencement to the entrance to Portland Channel?
4. To what point on the 56th parallel is the line to be
drawn from the head of the Portland Channel, and what
course should it follow between these points?
5. In extending the line of demarcation northward
from said point on the parallel of the 56th degree of north
latitude, following the crest of the mountains situated
parallel to the coast until its intersection with the 14Ist
degree of longitude west of Greenwich, subject to the
condition that if such line should anywhere exceed the
distance of 10 marine leagues from the Ocean, then the
boundary between the British and the Russian territory
should be formed by a line parallel to the sinuosities of
the coast and distant therefrom not more than 10 marine
leagues, was it the intention and meaning of said Con-
vention of 1825 that there should remain in the exclusive
possession of Russia a continuous fringe, or strip, of
coast on the mainland, not exceeding 10 marine leagues
in width, separating the British possessions from the
bays, ports, inlets, havens, and waters of the Ocean, and
extending from the said point on the 56th degree of
latitude north to a point where such line of demarcation
should intersect the 141st degree of longitude west of the
meridian of Greenwich?
6. If the foregoing question should be answered in the
negative, and in the event of the summit of such moun-
tains proving to be in places more than 10 marine leagues
from the coast, should the width of the lisière which was
to belong to Russia be measured (I) from the mainland
coast of the Ocean, strictly so-called, along a line per-
pendicular thereto, or (2) was it the intention and mean-
ing of the said Convention that where the mainland
coast is indented by deep inlets forming part of the
territorial waters of Russia, the width of the lisière was
to be measured (a) from the line of the general direction

93 8 BOUNDARY DISPUTES AND TREATIES

of the mainland coast, or (b) from the line separating
the waters of the Ocean from the territorial waters of
Russia, or (c) from the heads of the aforesaid inlets?
7. \Vhat, if any exist, are the mountains referred to
as situated parallel to the coast, which mountains, when
within 10 marine leagues from the coast, are declared to
form the eastern boundary ?
Articles V and VI provided: that the tribunal should
meet at London; that, on receipt of the decision, it should
at once appoint experts to lay down the awarded line; and
that, if a majority failed to agree, the tribunal should so
report to the respective governments.

ALASKA BOUNDARY TRIBUNAL
Lord Alverstone, Sir Louis Jetté and the Hon. J. D.
Armour were appointed commissioners on the part of Great
Britain. On the death of Justice Armour, A. B. Ayles-
worth, K.C., was appointed in his stead. The Hon. Clifford
Sifton was appointed agent for Great Britain.
The Hon. Elihu Root, the Hon. Henry Cabot Lodge and
the Hon. George Turner were appointed commissioners on
the part of the United States. The Hon. John W. Foster was
appointed agent for the United States.
The cases were exchanged May I, 1903. The agent for
Great Britain requested an extension of the time allowed for
filing the counter case, but the United States government
refused it. The coun ter cases were exchanged July 3
following.
The first meeting of the tribunal took place at the Foreign
Office, London, September 3. The arguments of counsel
were concluded on October 8, and on the 20th the president,
Lord Alverstone, handed to the respective agents the decision
of the tribunal.
The points at issue can be conveniently dealt with under
three heads: (I) The' point of commencement. ' -Tribunal
was unanimously of the opinion that Cape M uzon was the
initial point of the boundary. (2) Whether the boundary
should pass north or south of Wales, Pearse, Sitklan and

ALASKA BOUNDARY

939

Kannaghunut Islands.- The answer consisted in identifying
the' Portland Channel' (canal) of the treaty. It involved
the identity only of this body of water, and not the width or
the navigability.
Great Britain claimed: that it was surveyed and named
by Vancouver, 1793; that his narrative made it quite clear
that the passage that he named' Portland's Canal' lay to
the north of \Vales, Pearse, Sitklan, and Kannaghunut
Islands; that the channel south of these islands formed the
lower portion of Observatory Inlet; and that he noted the
passage between Wales and Sitklan Islands, but did not name
this channel, since known as Tongass Passage.
The U ni ted States case claimed that Portland Canal passed
between Pearse Island and Ramsden Point on the mainland,
and south of Pearse, Wales, Sitklan and Kannaghunut, the
difference thus involving the title to the four islands above
named. It contended: that, by common usage, the channel
sou th of these islands was considered to be the southern
portion of Portland Canal, and that it was commonly known
as Portland Inlet; that the channel north of the islands was
known as Pearse Canal; and tha t therefore the islands
were United States territory. It distinguished between
Vancouver's Portland Canal and the negotiators' Portland
Canal, and contended that, relying upon the maps known to
have been used by the negotiators, the Portland Canal of
the negotiators was either the whole inlet from mainland to
mainland, or that branch entering between Pearse Island
and Ramsden Point into the unnamed estuary.

DECISION OF TRIBUNAL re PORTLAND CANAL
Lord Alverstone, Root, Lodge and Turner, forming
a majority of the tribunal, decided that Portland Canal
passed south of Sitklan and Kannaghunut Islands, thus
awarding these islands to the United States, and that it
passed north of Wales and Pearse Islands, thus awarding
these islands to Great Britain. Sir Louis J etté and Ayles-
worth dissented from this finding.
Aylesworth, in his dissenting opinion, very ably reviewed

94 0 BOUNDARY DISPUTES AND TREATIES
the decision, and practically demonstrated that it was a
compromise based on a concession by Lord Alverstone.
He stated: that it was a boundary that had never before
even been suggested by anyone; that, from Vancouver's
statement, it was incontestable that he had named the
channel north of all four islands' Portland Canal'; and that
the tribunal was sworn to determine judicially only all
questions referred to it. He concluded:
Upon such findings of fact as those above described,
and after a solemn adjudication that the Portland
Channel of the Treaty lies to the north of Pearse and
Wales islands, the taking of the two important islands
Sitklan and Kannaghunut, from Canada, and giving
them to the United States by a proceeding said to be
judicial, is, 'according to my true judgment,' nothing
less than a grotesque travesty of justice.
While the islands in question are of little value either to
Great Britain or to the United States, there was no evidence
presented by either nation, nor can any be found, that would
indica te that Portland Channel was ever considered as pass-
ing between Sitklan and Wales Islands, as decided by the
tribunal. F. C. "Vade,l one of the British counsel, intimates
plainly that, after Lord Alverstone had come to an agree-
ment with the United States commissioners respecting the
, moun tain ' boundary, he was confronted by the Americans
with a demand that he should either surrender the two small
islands-thus enabling them to win a diplomatic' victory ,-
or see the whole negotiation fail. That securing the success
of the negotiation was more important than the title to two
insignificant islands is undeniable, but whether the action
of the U ni ted States commissioners was the action of three

1 'Vade states that Lord Alverstone drew up a memorandum in which he
declared the joint views of the British commissioners · to be that the channel
ran north of the four islands.' Referring to Lord Alverstone's volte-face respecting
Sitklan and Kannaghunut, he comments sarcastically: 'If this was a judicial
decision, if this was not a compromise, is it not singular that at the moment when
the United States commissioners decided to change their minds as to two of the
islands, and Lord Alverstone decided to change his judgment as to the other two,
His Lordship was the one to come forward with a subdivided question which just
met the new conditions? ' (Canadian Jo.lagazine, xxii. p. 339).

ALASKA BOUNDARY 941
C impartial jurists' can safely be left to the judgment of
posterity.
(3) The mountain or lisière boundary.-It formed the most
important branch of the case and involved the determination
of the line between the head of Portland Canal and the
14Ist meridian near l\lount St Elias.

BRITISH CASE
The British case contended: that the question whether
Russia acquired a continuous strip of coast depended upon
the meaning of the words 'côte' and 'Océan ' in Articles III
and IV of the treaty of 1825; that these words referred to
coast and water outside the narrow inlets; that, in the
Russian reply to Bagot's amended proposal, the coast left to
Great Britain is described as starting from the' embouchure'
.. of Portland Canal, demonstrating that the canal was not
, coast'; that the treaty contemplated a shore-line such
as admitted drawing another line parallel and at a distance
of ten leagues; that the negotiators had Vancouver's map
before them, and were aware that only a line parallel to the
general trend of the coast was practicable; that the possible,
and not the impossible, was contemplated; that the ten-
league line drawn by the United States did not, and could
not, follow the sinuosities of the' côte,' as they themselves
interpreted that word; that it was drawn parallel to an
imaginary line joining the heads of the inlets; that, in 1893,
T. C. Mendenhall, in issuing instructions to the United States
surveyors respecting the surveys under the convention of
1892, directed that they be continued to points not less than
thirty miles from the ' general trend ' of the mainland coast ;
that the only difficulty was due to the United States reading
into the treaty a principle that British territory should
nowhere reach salt water; that the Russian anticipations
of danger to their establishments on the islands if they did
not obtain a lisière of coast, did not warrant the assumption
that their safety could only be secured by this exclusion;
tha t N esselrode in 1824 said: ' We restrict our demands to
a small strip [lisière] of coast on the continent.'

94 2 BOUNDARY DISPUTES AND TREATIES
Respecting the width of the lisière, the British case
claimed: that it should be measured along a line at right
angles to the general local trend of the coast; that, if an
inlet extended further than the line of mountains parallel
to the coast, or, in the absence of mountains, further than
ten leagues from such coast, the upper portion of it was
British territorial water; that the coptinuity of the fringe
was liable to be broken by both the mountain boundary and
the ten-league line.
Respecting the identity of the mountains parallel to the
coast, the British case contended. that the treaty contem-
plated ranges with a general parallelism only; that orographic
features such as mountains could not be expected to run
uniformly parallel to the coast, whether straight or winding;
that the treaty explicitly contemplated such variations from
parallelism that they might, in places, be more than ten
leagues from the coast; that the treaty recognized specifi-
cally that the line was crossed by rivers, and therefore was
not unbroken; that the phrase' crête des montagnes ' signified
the summits of mountains adjacent to the sea, and was only
introduced as a concession from the line along the seaward
base; that it was immaterial whether there were higher
peaks or a plain behind them; that the Russians described
them as 'montagnes qui bordent la côte,' and as being at a
'très petite distance' from the coast; that the Russians
explicitly stated that they only demanded a 'narrow strip
on the coast,' an 'unimportant strip on the mainland,' only
a 'pointe d' appui,' etc.; that the crest of the mountains on
the 56th parallel in longitude 1310 42' was the point of
departure; that the line following the mountains and ridges
indicated on an accompanying map fulfilled the requirements
of the treaty, though it was susceptible of variations in detaiI.
Respecting acts of either government subsequent to 1825
that would tend to show the understanding of the parties
in respect to their several territorial jurisdictions, the British
case claimed that, as late as 1867, the Hon. Charles Sumner
declared: that' perhaps no region of equal extent on the
globe, unless we except the interior of Africa or possibly
Greenland, is as little known'; that the lease to the Hudson's

ALASKA BOUNDARY

943

Bay Company provided for the return of but one post, and
that was on an island, not on the lisière; that, even if that
lease was drawn in sweeping terms, the Russian company
could not convey what did not belong to Russia; that the
lease was due simply to the desire of the Hudson's Bay
Company to avoid friction with the Russians, and to enjoy
a monopoly of the trade; that from 1867 to 1877 there were
United States troops in Alaska, but none upon the mainland;
that there had been a general absence of United States control
throughout the lisière, though there had been isolated acts
of possession by citizens of the United States; that possession
of Dyea and Skagway did not arise or continue under circum-
stances which should influence the tribunal so to delimit the
boundary as to leave these places within United States
territory; that the proposition to make Dyea a sub-port of
entry came from the United States government; that, as
the necessities of the case required immediate action, Canada,
in accepting it, provided that her acceptance was' pending
settlement of the boundary question .; that the erection of
storehouses on Wales and Pearse Islands had been promptly
protested.

UNITED STATES CASE
The United States case contended: that Russia from the
first sought to erect a territorial 'barrier' between her
coasts and the inland possessions of Great Britain, and that
she secured this barrier by the treaty of 1825; that the
negotiators of the treaty had before them maps showing a
range of mountains distant about ten leagues from the coast
and following its curvature; that the monopoly of the
Russian American Company was only of value so long as
there was not a single trading post on the continental shore;
that Russia refused Bagot's demand for territory lying upon
the coast to 560 30', and demanded a territorial barrier
against the nearer approach of British settlements; that
Nesselrode's statement in 1824 that Russia required 'at
some distance from the coast, a frontier-line' that should not
be invaded by the British, demonstrated that the purpose

944 BOUNDARY DISPUTES AND TREATIES
of the lisière was to create an unbroken barrier along the
entire water-front of the continent; that the line at an
unvarying distance of ten leagues was probably refused by
Great Britain because it might give Russia the eastern slopes
of the coast range; that Middleton, in reporting a conversa-
tion with Stratford Canning, said that by the treaty of 1825
the line of demarcation followed Port
and Canal up to the
fifty-sixth degree, 'then turns eastward 1 upon that latitude
until it touches the highest ridge of the chain of mountains
lying contiguous to and nearly parallel with the coast,' etc. ;
that the perpetual privilege secured to British subjects of
navigation was confined to I rivers' and I streams' crossing
the eastern boundary of the lisière, because, according to the
mutual understanding of the contracting parties, no other
waterways crossed the line of demarcation.
Reviewing the period 1825 to 1867, the United States
case stated: that, after fruitless negotiations extending over
eleven years, the United States in 1845 submitted to the
measures of exclusion enforced by Russia; that during this
period Russia exercised sovereignty and occupation in the
lisière by control over the Indian tribes, by the conduct of
trade, by the establishment of posts and forts, by the main-
tenance of its territorial rights against foreign encroachment,
and by the surveys of its waters; that the correspondence in
the Dryad affair proved that the Russian and British authorities
concurred in the view that the boundary of the lisière was at
a point ten marine leagues from its mouth.
Respecting the period since the cession to the United
States in 1867, the United States case emphasized the various
acts of sovereignty and occupation. After reciting the
formalities of the cession and the acts of the various officials
who were sent to the territory, it stated: that the map
delimiting the boundary published by the government of
the United States in 1867 was not protested; that their
officials took possession of the territory so described without

1 There is every reason to believe that this was a clerical error for' westward.'
It is incredible that Stratford Canning would make such a ridiculous statement
unless it was a lapsus linguae. It is more probable that it was a slip of the pen
on the part of Middleton.

ALASKA BOUNDARY

945

any opposition; that till 1877 the administration of Alaskan
affairs was confided to the War department, except as to
the control of trade and the protection of the revenue by
officials of the department of the Treasury; that after 1877
the government was divided between the Navy and the
Treasury departments; that the Indian inhabitants of the
lisière rendered unquestioned submission to the naval officials;
that civil government was organized subsequent to the passage
of the act of Congress of 1884, and that from 1867 there had
been an ' unquestioned exercise of American sovereignty, by
almost every form of administration.'
In conclusion, the United States case asserted that the
evidence established the following facts :
(I) That it was the intention of Great Britain and
Russia, by the treaty of 1825, to confirm in full sovereignty
to Russia a continuous strip or lisière of territory along the
continental shores of the north-west coast of America, extend-
ing from Portland Canal to the 141st meridian.
(2) That it was their intention that the width of such
lisière was to be ten marine leagues, measured from the heads
of all inlets-that is, from tide-water-unless within that
distance there was, wholly or in part, a continuous range of
mountains lying parallel to the sinuosities of the coast and
extending from Portland Canal to the 141st meridian, in
which latter case the summit of such range was to form
the boundary; that, as there is not in this area such a con-
tinuous range of mountains parallel with the sinuosities
of the coast, therefore the width of the lisière above described
is not limited by a boundary-line along the summit of such
range, but solely by the agreed distance of ten marine leagues
from tide-water.
(3) That the acts of Great Britain and Russia subsequent
to the signature of the treaty. and the universal interpreta-
tion given to its delimiting articles by governments, geo-
graphers, cartographers and historians of those and other
civilized nations, agreed with and confirmed the intention
and meaning as above stated.
'(4) That the United States purchased the territory from
Russia, relying upon such interpretation of the treaty; that

94 6 BOUNDARY DISPUTES AND TREATIES
the purchase was open and notorious to the world, and that
neither during the twelve months before the purchase price
was paid, nor within thirty years thereafter, did Great Britain
give notice to the United States that she claimed any portion
of the territory.
(5) That the United States entered into possession of
and occupied the lisière as above desçribed, exercised sove-
reign rights therein, and treated the same at all times as a
part of its p..ational domain; and to such occupation and
exercise of governmental authority Great Britain entered
no protest or objection.
(6) That from the head of Portland Canal the boundary-
line ran in a northerly direction to the 56th parallel; I thence
north-westerly, always ten marine leagues from tide water,
around the head of Lynn Canal; thence westerly, stiU
following the sinuosities of the coast at a distance therefrom
of ten marine leagues, until the line intersected the 14Ist
meridian. '

BRITISH COUNTER CASE
The British counter case opened with a protest against
the refus?.! of the United States to agree to an extension of
time, and a statement that His Majesty's government
reserved the right to put in some supplementary evidence
which qualified the evidence presented in the Unites States
case. It observed: that the United States case rather
avoided the question of the construction of the words of
the treaty of 1825; that it was mainly devoted to a search
for some general and controlling principle which the nego-
tiators might be assumed to have had in view, or to show
from extrinsic evidence what was the arrangement in fact
arrived at. It argued: that the sole function of the tribunal
was to interpret the treaty by ascertaining its intention and
meaning and not to recast it; that the character of the
lisière depended entirely upon the meaning of the words
, côle' and 'Océan'; that, while the British government
endeavoured to ascertain the sense in which these words
were used, the United States case attempted to establish

ALASKA BOUNDARY

947

an assumed controlling principle, and in support of it
quoted isolated expressions and irrelevant statements of
no authority; that, if such evidence as Middleton's report,
baspd upon his remembrance of verbal statements by Stratford
Canning, were admitted, all certainty would disappear.
The British counter case contended: that the only basis
for the 'barrier' theory was an expression reported to have
been used by Count de Lambert to Poletica; that such an
expression could have no importance as a clue to a convention
arrived at after long negotiations, not even commenced at
the date when it was emp
oyed; that, assuming the Russian
purpose was a 'barrier,' it would be provided by a strip of
territory even if some of the inlets penetrated the strip and
te
minated in British territory; that, whi
e British ships
would have the right of ' innocent' passage through Russian
territorial waters, they would have no right to trade or fish
in them; that by international law the line of coast to be
measured from is taken across the entrances of narrow inlets
which are treated as not breaking that line; that it was
intended to interpose only a strip of 'territory' free from
British trade or settlement, and, if the waters between the
headlands of inlets were territory, the strip would not be
broken if carried across such inlets; that the United States
did not understand that Russia had, by the treaty of 1824,
secured anything more than freedom from the encroachment
of American settlements, and from the access of Americans
to Russian settlements; that the Russian contre-projet in
which the lisière was first suggested offered the free naviga-
tion of the rivers crossing it, and that, for all the negotiators
knew, anyone of the inlets on Vancouver's charts might be
the estuary of a navigable river; that the reply to the United
States contention that Bagot's offer of a line further south
than his Lynn Canal line had been a concession of both
shores of the inlet, was that the idea of a lisière had not yet
taken shape; that it was not access to the sea, but settle-
ment and trade near her own settlements on the islands, that
Russia desired to prevent Great Britain from obtaining;
that as by Article VII of the treaty of 1825 Great Britain
and Russia granted for ten years reciprocal privileges of

948 BOUNDARY DISPUTES AND TREATIES
fishing and trading, this provision applied to the lisière
assumes that part of the inland waters might belong to
Great Britain-otherwise it would be meaningless; that
the United States contention that the Russian nego-
tiator-following 'Vancouver's chart-believed the mountain
boundary and the ten-league line to be substantially the
same was erroneous; that different cþarts show the moun-
tains in different positions; that in any event the tribunal
could not alter the treaty to make it agree with the Russian
anticipation.
The British counter case clz.imed: that there were
mountains parallel to the general trend of the coast that
fulfilled the intent of the treaty; that the exercise of juris-
diction by Russia was practically confined to the islands
and to the mainland north of the lisière; that the evidence
indicated that the United States occupation of the lisière
was not of such a nature as to materially strengthen their
title; that the acts of jurisdiction in Lynn Canal were un-
known to Great Britain, and her ignorance and absence of
action could not be relied upon as showing acquiescence in
the actions of the United States.

UNITED STATES COUNTER CASE
The United States counter case contended: that the peaks
of the mountains adopted in the British case as forming the
land boundary of the lisière are not C la côte des montagnes
situées parallèlement à la côte' referred to in Article III of the
treaty of 1825; that the British case rested upon the assump-
tion that C côte' meant C summits' instead of the C crest' of
the mountains, upon the assumption that distinct peaks
can be said to parallel a coast-line, upon ignoring the value
of the word C sinuosities' in the negotiations and treaty,
upon a failure to construe the intent of the negotiators as
evidenced in the correspondence, and upon the assumption
of a datum line based upon an erroneous meaning given to
the words C côte' and C Océan '; that these words used in
describing the lisière were so used in their physical and not
in their political sense; that the Hudson's Bay Company

ALASKA BOUNDARY

949

was from the first the party in interest in the fixation of
the boundary, and the best-informed as to the region; that
the admissions by that company in the lease and in its inter-
pretation were made by the only representative of the British
government on that coast; that Great Britain, having failed
to reject its interpretation, must be deemed to have con-
ceded its correctness.
I t stated that the law-officers of the crown had held: that
by the Treaty of \Vashington, 1871, Great Britain had lost
the free navigation of rivers flowing through Alaska, thus
conceding that they flowed through United States territory ;
that the correspondence between the two governments,
between 1872 and 1878, established that it was conceded the
line should cross the Stikine, Chilkoot, Chilkat and other rivers,
and that the only reason the line was not settled then was the
excessive cost; that in 1885 the executive council of British
Columbia stated that Hunter's survey conclusively estab-
lished the I mountains at the crossing of the Stikine to be
about twenty miles from the sea'; that the Dall-Dawson
conferences were entirely informal and unofficial; that
at the Reciprocity Conference of 1892 no assertion was
hinted at of a British claim to the heads of inlets or any
rights on Lynn Canal; that Lieutenant Schwatka had no
instructions to survey the boundary, nor did he dttempt to
do so; that the note in 1888 respecting the granting of a
charter by Alaskan authorities was so vague and indefinite
that no reply was made to it; that out of the note of 1898
grew the modus vivendi of 1898-9 respecting White and
Chilkoot Passes and the Klehini River, but that it contained
no protest against the occupancy of Dyea; that the so-
called protests fell far short of the requirements of inter-
national law ; that up to August I, 1898, the United States
government had no distinct and official announcement that
the British government entertained views materially at
variance with those maintained by it.
I t was contended on the part of the United States: that
the United States case contained an overwhelming array
of evidence establishing its complete, continuous and un-
contested occupation and control over the territory; that

950 BOUNDARY DISPUTES AND TREATIES
the evidence adduced established beyond controversy that
the United States had been in occupation and control of the
Lynn Canal territory since 1867; that, though known to
the Canadian government, no protest was made by it previous
to 1898; that the British case was the first distinct, com-
plete and formal announcement of the British claim respect-
ing the boundary of the lisière.
Respecting the boundary of the lisière, as defined on the
maps accompanying the British case, it was further con-
tended: that, as the claim placed practically all the lisière
rivers in British territory, it rendered meaningless Article VII
of the treaty; that such an interpretation was at variance
with the former attitude of the British and Canadian govern-
ments; that it ignored the acts of their own officials respecting
the Stikine; that the line was impracticable inasmuch as it
extended British dominion over territory admittedly belong-
ing to the United States; that it deprived the United States
of all the inlets and almost all the harbours along the lisière ;
that many mines operated by citizens of the United States
were claimed as in British territory, and that the United
States was allotted a lisière broken up into disconnected and
worthless fragments, the burden of whose possession and
control no government would be willing to assume.

DECISION OF THE TRIBUNAL
Lord Alverstone, Root, Lodge and Turner, forming a
majority of the tribunal, agreed upon a mountain bound-
ary that was practically in accordance with the United
States contention. Sir Louis Jetté and Aylesworth strongly
dissented, and refused to sign this or the Portland Canal
branch of the award. The majority agreed upon a line
joining certain peaks marked'S' on an accompanying map.
This formed a sinuous boundary distant about thirty miles
from the general trend of the shore. It followed Hunter's
line at the crossing of the Stikine, and the modus vivendi
boundary at the summits of the White and Chilkoot Passes.
On the Chilkat River, however, the provisional modus vivendi
line was discarded, and the boundary was moved upstream

ALASKA BOUNDARY

95 1

about twenty miles. From a point near the Stikine River
to another near the Taku River, a distance of 125 miles,
it was left undefined, pending further surveys in this region.
Later, this area was surveyed and a series of peaks forming
practically a straight line between the two terminal points
was adopted.

REVIE\V
In endeavouring to arrive at a fair, unbiased interpre-
tation of the differences that were terminated by the Alaska
Boundary Tribunal, it is necessary to examine the provisions
of the treaty of 1825, the negotiations that preceded it, and
aU collateral evidence, particularly the knowledge of the
contracting parties respecting the disputed territory.
The differences that resulted in the treaty of 1825 were
twofold: first, the protest of Great Britain against the
extravagant assumption by Russia of territorial claims
extending one hundred miles seaward, and, secondly, her
claim to the Pacific coast from latitude 510 N northward.
The latter was considered by Great Britain as of much less
importance, but was made prominent to allow the Russian
emperor to withdraw from an untenable position. This
was succinctly stated by George Canning. He wrote that
the origin and principle of the whole negotiation 'is not, on
our part, essentially a negotiation about limits. It is a de-
mand of the repeal of an offensive and unjustifiable arroga-
tion of exclusive jurisdiction over an ocean of unmeasured
extent. . . . \Ve negotiate about territory to cover the remon-
strance upon principle.' It is evident, therefore, that, in
endeavouring to obtain a maximum extension of their bound-
aries, the governments of Great Britain and Russia were
simply endeavouring to forward and protect the interests of
their respective fur-trading companies, and were not ani-
mated by a desire to secure additional territory per se. That
Canning, having conceded the principle of the lisière, en-
deavoured to contract its width to a minimum, was probably
due to the influence of the Hudson's Bay Company.
As the awarded line through Portland Canal has been

VOL. VIII

s

952 BOUNDARY DISPUTES AND TREATIES
discussed, it only remains to consider the I mountain' or
, lisière ' boundary.
A study of the correspondence leads irresistibly to the
conclusion: that Great Britain intended to concede an
unbroken coast-strip or lisière 1 from Portland Canal north-
ward; that Russia believed she was confirmed in an unbroken
strip that did not contain a point d' appui for the Hudson's
Bay Company; that the lisière or coast-strip was of unknown
width, but was not more than ten leagues wide; that the
boundary followed the summits of the first range of moun-
tains, and was parallel to the windings of the shore.
As proof that Russia was insisting on an unbroken lisièr
,
an incident in the negotiations and a clause of the treaty may
be cited. Great Britain's suggestion that the seaward base
of the mountains be adopted was rejected by Russia, on
the ground that, if the mountain sloped down into the sea,
it would interrupt the continuity of their lisière. That they
also probably feared that the Hudson's Bay Company
might establish themselves on the mountain slopes, does not
diminish the strength of this argument. If the lisière was
not unbroken, why did the treaty specifically concede the
navigation of the rivers crossing it ?
Having determined the continuity of the lisière, it now
remains to exan1ine the respective contentions of Great
Britain and the United States to ascertain to what extent
they differed from the correct interpretation.
The treaty defines the line of demarcation as following
I la crête des montagnes situées parallèlement à la côte.' Both
nations contended that there was no range of mountains
parallel to the coast. The question of parallelism involves two
points: (I) \Vhat constitutes a I range of mountains parallel
to the coast'? (2) \Vhat is meant by the' crête ' ?
Both parties assumed that this provision specified a con-
tinuous mountain ridge absolutely parallel to the coast for
upward of five hundred miles-a thing that every geographer
knows to-day, and that every geographer knew in 1825, is

1 On February 28, 1824, Bagot wrote: · It is evident to me that I cannot
avoid giving some lisière, however narrow, upon tbe mainland' (Bagot Papers,
182,3-24; in Canadian Archives).

ALASKA BOUNDARY

953

not to be found anywhere on earth. The answer, therefore,
must be sought in the intent of the treaty. The Russian
negotiators were endeavouring to establish a barrier. While
the charts showed a conventional range of mountains approxi-
mately parallel to the general trend of the coast, both parties
recognized that it was only a conventional indication added
by the draughtsman, possibly from verbal information.
Hence the modifying clause respecting the ten-league maxi-
mum, which was pressed by the British and conceded by the
Russians. It is evident, therefore, that the first tier of peaks
-irrespective of the altitude of the peaks behind them and
broken by streams only-filled all the requirements; that
the word 'parallel ' was not used in the ordinarily accepted
sense, and that the line was only locally approximately
parallel to the nearest portion of the shore. The United
States contention that the treaty required a continuous
mountain ridge parallel to the sinuosities of the shore, is not
deserving of consideration. It assumed an intent on the
part of the negotiators that is absolutely contradicted by the
clause in the treaty conceding the navigation of the rivers
that cross the lisière. This alone is sufficient to demonstrate
that what was contemplated was simply a mountain boundary
that would exclude British traders from the vicinity of tide-
water.
The character of a mountain range is largely a geological
question. When, as in the case of the Coast Range between
Portland Canal and Lynn Canal, it is composed largely of
granite and other intrusive rocks, regularity and continuity
are invariably absent. The theoretical conditions assumed
by the United States as indispensable could not be found,
and, in any event, were not necessary. Its attitude was
similar to that of Great Britain respecting the' highlands'
in the treaty of 1783. It assumed that the orographic
features in question must have certain characteristics not
properly attributable to them, and then deduced from the
absence of these characteristics an incorrect conclusion.
The claim of the United States that' crête' necessarily
meant the watershed summits was pure assumption, and was
not justified by the facts. The true line lay between the

954 BOUNDARY DISPUTES AND TREATIES
boundary contended for by Great Britain and the awarded
line.
The basic principles having been thus detennined, the
mountain boundary, as defined in the treaty of 1825, could
have been laid down on the detailed maps prepared by the
Joint Commission. From the head of Portland Canal the
line would naturally run northward to .latitude 560 N, thence
by a right line nearly due west to the peak nearest the
shore of Behm Canal, and nearest latitude 560, but north
of it. From that point the arbitrators should have taken the
peaks nearest the coast and joined them by a line so drawn
as to give a continuous lisière except at river crossings.
At river crossings the spirit and letter of the treaty would
probably have required that the line should be carried
upstream to a point where the mountain slopes approached
the stream, or, failing that, to a point where the valley had
a minimum width. This would have given a strip only a few
miles wide, except up the river valleys where its depth would
depend upon local conditions. \Vhile such a line would
necessarily have been an arbitrary one, it would not have
presented great difficulties to 'impartial jurists of repute'
except in so far as the claims of either nation had been affected
by occupation, acts of jurisdiction, etc.
This would have defined the line so far as the treaty was
concerned, but the acceptance by Great Britain of Hunter's
line at the crossing of the Stikine River, and of the modus
vivendi lines at the summits of the White and Chilkoot Passes,
and at the Klehini River, very materially strengthened the
claim of the United States to the territory between these lines
and the sea.
Except at the Stikine and the White and Chilkoot Passes,
this line would have given the United States much less than
it actually received, and would have given Great Britain
considerably less than she contended for. Except at the
points mentioned, and in some river valleys, the lisière would
have been only two or three miles wide. The obvious solu-
tion of the situation created by such a line would have been
a compromise whereby Canada would have been conceded-
in return for a cession of territory elsewhere-a port on Lynn

ALASKA BOUNDARY

955

Canal, with either a neutralized strip or the full ownership
of a connecting strip.
This boundary was not claimed by Great Britain, as it
would have conc
ded an unbroken lisière to the United States.
This would have excluded Canada from tide-water and would
have been an acknowledgment that Canada did not extend
to it at Lynn Canal and elsewhere. As the United States
was claiming that the boundary followed a line distant ten
leagues from the heads of inlets it did not prefer it, though
the line it contended for was not based upon a correct con-
struction of either the letter or the spirit of the treaty.
Much stress has been laid upon the map evidence, which
was almost uniformly opposed to the British contention.
I t is sufficient to say that, till detailed surveys were com-
pleted by the Boundary Commission in 1895, no geographer
could draw the line of demarcation defined in the treaty, and,
in the absence of any definite information, it was generally
assumed by cartographers that the boundary was approxi-
mately ten leagues distant from the shore. It can hardly
be seriously argued that indications of a boundary, based
upon mere assumption and regarding which there was no
definite information, could add material strength to the
United States contention.
A review of the case would not be complete without some
notice of the personnel of the Boundary Tribunal of 19 0 3.
The convention of 1903 provided that each nation should
appoint as its representatives 'three impartial jurists of
repute.' The British government assented to this proposi-
tion only after the United States had repeatedly refused to
agree to an arbitration by three representatives of each
nation, and a seventh member appointed by a neutral
government.
Great Britain appointed: (1) Lord Alverstone, chief
justice of England; (2) Sir Louis Jetté, lieutenant-governor
of Quebec, ex-judge of the Superior Court of Quebec, and
now chief justice of that court; (3) the Hon. J. D. Armour,
judge of the Supreme Court of Canada. On Judge Armour's
death, A. B. (now Sir Allen) Aylesworth, K.C., was appointed
in his stead. Aylesworth was an eminent lawyer and

95 6 BOUNDARY DISPUTES AND TREATIES
prospective justice of the Supreme Court, though he later
declined the honour. Subsequently he was minister of
Justice.
The United States appointed: (I) the Hon. Elihu Root,
United States secretary of War, a member of the government
that had, in diplomatic correspondence, contested Canada's
case; (2) the Hon. Henry Cabot Lodge, a member of the
United States Senate, who is reported to have declared that
Canada's contentions respecting the Alaska boundary were
<<baseless claims'; (3) the Hon. George Turner, Spokane,
United States senator for the State of \Vashington: con-
cerning him it has been said that << decision in favour of Canada
would have been easier for any other man in the United States
(except members of the government) than for a politician
of the state of \Vashington and a resident of Spokane.' 1
The Canadian government was naturally much dissatis-
fied with the United States appointments, and the imperial
government had the alternative of either breaking off the
negotiations altogether-which they deprecated as a grave
misfortune to Canadian interests-or of appointing represen-
tatives 'appropriate to the altered circumstances of the case.'
Neither course was adopted.
It was stated later that President Roosevelt had offered
the appointments to members of the United States Supreme
Court. This is doubtful. If offered, it is more than a fair
assumption that it was done in such terms as to indicate
clearly that a refusal was desired and was expected. The
appointments made by the President of the United States
were a breach of faith.
Returning to the consideration of the mountain boundary :
As already stated, the obvious solution would have been a
treaty whereby Canada would have obtained a port on Lynn
Canal. A concession of this nature would have demonstrated
that the United States did not desire to pursue a purely selfish
policy, regardless of the rights and welfare of her northern
neighbour; it would have enured to the benefit of United
States trade; it would have avoided the bitter feeling that
was created in Canada by her intransigent attitude, which
1 Ewart's The ](ingdom of Canada. . . Alaska Bou1Zdat'y. etc., p. 3 06 .

ALASKA BOUNDARY

957

will not be allayed until she demonstrates by her actions
that a statesmanlike policy prevails at Washington, instead
of one dictated by purely political considerations.
The action of Lord Alverstone with reference to the Port-
land Canal islands has already been discussed. His vote
wi th the Americans respecting the mountain boundary has
been very severely criticized in Canada and, to a lesser
degree, in England. These criticisms are undoubtedly
justified if the Alaska boundary question only is considered;
but, as an integral portion of the British Empire, Canada
must expect that these questions will be dealt with imperially,
and that the interests of the Empire as a whole cannot be
sacrificed for a strip of territory which, while not unimpor-
tant, was not of vital importance. It was predicted in 1903
that the United States would establish fortifications on
Sitklan and Kannaghunut that would dominate Port Simp-
son, then the prospective terminus of the Grand Trunk
Pacific Railway. Ten years have rolled by; the fortifica-
tions have not been erected, and even the storehouses, erected
to form a United States claim to Wales and .Pearse Islands,
are in ruins. Dyea is non-existent and Skagway is dying.
When, in 1872, the German emperor awarded San Juan
Island to the United States, similar fearsome tales were told
respecting the forts that would be erected there to threaten
Victoria. Now, forty years later, the forts are still non-
existent; the barracks that sheltered the British and Ameri-
can troops during the joint occupation are sunk in decay,
and a few hundred people make a bare living on the island
over which two great nations nearly went to war.
So long as it remained unsettled the Alaska boundary
was a problem that might at any moment have involved
the two countries in war. While the territory lying be-
tween the true line and the awarded line has a certain
value, it has not, thus far, yielded any considerable wealth,
and, constituted as the American portion of the tribunal
was, the awarded line-with one exception-probably repre-
sents the maximum that Lord Alverstone could obtain. The
exception is the line in the valley of the Chilkat River.
Here the 111,odus vivendi line was abandoned, and the awarded

958 BOUNDARY DISPUTES AND TREATIES
line was drawn nearly twenty miles north of it, although
Canada had had a North-West Mounted Police post ther

since 1899. No reason has been assigned for this abandon-
ment, but it has been suggested that Lord Alverstone, when
marking the peaks in the boundary, forgot that there was
a modus vivendi line at this point, and that his American
colleagues did not consider it necessary to draw his atten-
tion to it.
Taking the question as a whole, it was absolutely neces-
sary that it should be settled; with the exception mentioned,
it could not have been settled without practically all the con-
cessions that were made, and Lord Alverstone is therefore
entitled to much more lenient judgment than he has generally
received. So much cannot be said for the United States
members of the tribunal.

Printed by T. and A. CONSTABI.K, Printers to His Majesty
at the Edinbur&h University Pre>>

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