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mountains by which it is bounded, * as far as the 139th degree of longitude west of the said meridian.'
This projet having been communicated to Count Lieven, the Russian Ambassador took exception to the line following the base of the mountains instead of the summit, pointing out that, in view of the limited knowledge of the geographical features of the north-west coast available, it might turn out that the mountains forming the boundary reached by an imperceptible slope to the water's edge. So well did Count Lieven understand the British proposal that he was apprehensive lest the boundary line might actually coincide with the coast. To obviate that possibility he suggested that the crest of the mountains—the same mountains, be it observed -be taken instead of the base.
Canning ultimately agreed to this, but, commenting upon a new move of the Russians, qualified his assent by insisting that the mountains should be the boundary only where they did not extend more than ten leagues from the coast, otherwise, said he, foreseeing the inaccuracy of the maps before them, 'we might be assigning to Russia immense tracts of ‘inland territory where we only intended to give, and they * only intended to ask, a strip of sea-coast." *
This is his final instruction to Stratford Canning. At the conclusion of the negotiations Stratford Canning writes :-
• The line of demarcation along the strip of land on the north-west coast of America assigned to Russia is laid down in the Convention agreeably to your directions,* notwithstanding some difficulties raised on this point, as well as on that which regards the order of the articles by the Russian plenipotentiaries.'
In acknowledging the receipt of this communication, Mr. Canning says:
* Having laid them' (the despatches transmitting the Convention) "before the King, I have received his Majesty's commands to express his Majesty's particular satisfaction at the conclusion of the treaty respecting the Pacific Ocean and north-west coast of America in a manner 80 exactly con formable to your instructions,* and to direct you to express to the Russian Government the pleasure which his Majesty derives from the amicable and conciliatory spirit manifested by that Government in the completion of this transaction.'
While it is true that the limiting words by which it is bounded,' which appear in the earlier draft furnished by Canning to Bagot, are not found in the final projet sent to Stratford Canning, their equivalent, 'seaward base,' nevertheless, was contained in the latter's instructions, to which the treaty, Canning himself testifies, ‘so exactly 'conformed.
* In the original these words are not italicised.
All this, while militating against the American claim to an extensive lisière, leaves unresolved the cardinal inquiry, what did the negotiators mean by the coast? Did they intend that the strip of land to be given to Russia should in. clude and pass round all the inlets from the ocean, or, when they employed the term • côte,' did they mean thereby the broad outlines of the continental shore?
The Fourth Article speaks of the line of coast which is to belong to Russia, and provides that whenever the mountains which by the Third Article are made the boundary ‘prove to • be at a distance of more than ten marine leagues from the
ocean,' an artificial line should be drawn as the boundary, parallel to the windings of the coast, but never exceeding the distance of ten marine leagues therefrom. The minimum distance at which such line should be drawn from the coast or ocean is not stated. That probably would be determined by the distance from the coast where the mountain range which formed the boundary ceased. But the maximum distance is clearly indicated, and by using the words coast' and ocean’ indifferently to express the shore, or waters, from which the ten marine leagues were to be measured, it may fairly be argued that the negotiators of the treaty understood the word 'coast' to refer to the coast of the ocean as distinguished from the coast or shore of inlets running up into the interior, such as Taku Inlet or Lynn Canal.
The evolution of this word ocean' is worth examination.
In the early stages of the negotiations, Sir C. Bagot speaks of a line toujours à la distance de dix lieues du rivage.'* A draft projet was subsequently furnished Bagot by Canning, Article II. of which reads :
De ce point elle suivra cette côte parallèlement à ses sinuosités, et sous ou dans la base vers la mer* des montagnes qui la bordent, jusqu'au 139e degré de longitude ouest dudit méridien.' Sir C. Bagot failed to reach an agreement, and quitted St. Petersburg.
He was succeeded by Stratford Canning, who bore with him a new draft convention, Article III. of which provides :
*If the summit of the aforesaid mountains shall turn out to be in any part of their range at more than the distance of 10 marine leagues from the Pacifick," then that for that space,
Thus we find the original word rivage,' which is applicable to any body of water, exchanged for mer.' • Mer,' which might be held to apply to salt water generally, becomes in turn Pacifick' in the projet of December, while, as if to make the matter quite sure, the ‘Pacifick' of the draft is changed into the Ocean' of the treaty.
That the heads of inlets many miles inland could correctly be designated as the Pacifick' or the Ocean’ was evidently foreign to the mind of Count Nesselrode when, writing to Lieven, he referred to the Portland Canal, dont l'embouchure dans l'Océan est à la hauteur de l'Ile du Prince de Galles et l'origine dans les terres entre le 55° et 56° de latitude.' The entrance to the canal is on the coast--the head is within the continent. Again :--
On ne peut effectivement assez le répéter, d'après le témoignage des cartes les plus récentes, l'Angleterre ne possède aucun Etablissement ni à la hauteur du Portland Canal ni au bord même de l'Océan.' And this point is still more clearly brought out in the counter draft of the Russian plenipotentiaries, wherein, alluding to Portland Canal, they say: où ce passe se termine dans l'intérieur de la terre ferme au 56° de latitude nord.'
These passages indicate that the Russians distinguished between the shores and heads of inlets and the ocean. The Canadian Government takes the same view. It holds that the shores of inlets were not included in the meaning to be conveyed by 'la côte.' It affirms that, however relevant the word Ocean' might be to those parts of bays which from their breadth and conformation are common international waters, it cannot with any accuracy be applied to inlets, which by international law and common consent are parts of the territory of the country owning the shores thereof, and consequently that the line, whether marked by mountains or by a survey line, should be drawn without reference to such inlets.
The United States, in support of the opposite contention, point to the fact that on the maps used in these negotiations the mountains are represented as passing round the heads of all the inlets, including the Lynn Canal, and that no objection was raised on that score by Mr. Canning or Sir C. Bagot, though the extent of the Lynn Canal must
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have been known to both of them, for the latter suggested to the former 'a meridian line drawn from the head of the Lynn Canal, as it is laid down in Arrow'smith's last map, or about the 135th degree of west . longitude,' as the boundary in the interior of the continent. They also argue that the lisière was to be a continuous strip of territory, whereas, if it were broken at intervals by inlets extending into British territory, its continuity would be destroyed and its usefulness as a barrier against British aggression greatly impaired. There does not seem to be much in this point however, for Article VI. of the treaty of 1825 secures to British subjects the right in perpetuity of 'navigating freely and without any hindrance whatever all
the rivers and streams which in their course towards the • Pacific Ocean may cross the line of demarcation upon the line of coast described in Article III. of the present Convention. There is no apparent reason why a narrow fiord should be more destructive to continuity than a wide river. Thirty miles up the Stikine would have been just as accessible and convenient a trading base from which to reach the coast Indians as thirty miles up the Lynn Canal, provided the river were as navigable as the canal, which it happens not to be, though of this the negotiators had no knowledge, their impression rather being that there existed several large rivers leading inland which were not marked on the maps. Indeed, Great Britain's insistence in 1825 on complete freedom of intercourse with the interior by all rivers and streams strengthens Canada's claim to the heads of these narrow tidal inlets which are not clearly separable on the map from the lower portions of the rivers by which upper parts of the same valleys are occupied. Neither the limit of influence of the tides, nor the change from salt to fresh water, can be strictly defined in the upper parts of these inlets, which vary in size with circumstances, such as the height of the barometer, the direction and force of the winds, and the season of the year. The heads of inlets, therefore, do not afford good fixed points from which to measure the width of a coast strip.
It is, however, rather upon its alleged prescriptive rights than on arguments drawn from the letter of the treaty and the negotiations which preceded it, that the United States bases its claims to the heads of inlets. The fact that during the later years of Russian dominion the Hudson's Bay Company held the whole coast from Cross Sound to Portland Canal, under lease from the Russian American Company, is cited as strong evidence of Great Britain's acknowledgement of Russia's jurisdiction over the disputed territory. But, apart from the question whether this lease included the heads of the Lynn Canal—a somewhat doubtful point-it is by no means admitted on the part of Canada that
action of the Hudson's Bay Company could be held to bind the British Government in a matter of territorial right, unless taken with its authority or with its subsequent sanction and approval. The function of the Hudson's Bay Company was not to define boundaries, but to collect furs. They already enjoyed a monopoly of trade in British territory. But to know just where British territory ended and Russian territory began was no easy matter, and the uncertainty caused by the absence of any line of demarcation between the possessions of the two Powers greatly prejudiced the Company's interests, involving them, as it did, in constant disputes with their Russian-American rivals. By leasing from Russia all the territory that was Russian (whatever that might ultimately turn out to include), they secured to themselves the entire trade of the mainland. That was all they sought. So long as they were free to range the country without molestation, erect their posts, and traffic with the natives, it mattered little to them whether they held any particular locality under their British charter or their Russian lease. Nor, supposing that the Hudson's Bay Company had undertaken to settle the international boundary, could such action on their part be held to impart to their negotiations with the Russian Company an official character. Those who assert a contrary view overlook the fact that the Hudson's Bay Company did not hold the whole of the Great North-west by the same tenure. With reference to that portion of the country which is watered by streams falling into Hudson's Bay (formerly styled Rupert's Land), it is true that they asserted and exercised, under the charter of Charles II., rights of proprietorship, exclusive trade, taxation, and government. These rights were acquired by Canada for the sum of 300,0001., paid to the Company in 1869. Towards that vast region stretching north and west of Rupert's Land, however, the Hudson's Bay Company occupied a different relation. Under the provisions of an Imperial Act the Company were granted a monopoly of trade with the Indians of that territory for twenty-one years. This grant was subsequently renewed for a like period. Apart therefrom the Hudson's Bay Company possessed no exclusive privileges in the North-west Territory, nor did they assert any.