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qualifications. His Majesty and the British nation have lost a devoted public servant. Many of us have lost a cherished personal friend.

Mr. DICKINSON. Mr. President, the Counsel for the United States have heard with very great regret of the death of Sir Michael Herbert, and sympathize most cordially with all the remarks which your Lordship has made; and if it will not interfere with the course of the Argument of the Solicitor-General, I respect fully move, if I may be permitted to do so, that the Session of this Tribunal for to-day be now adjourned in honour of his memory.

Sir EDWARD CARSON. My Lord, on behalf of the British and Canadian Counsel in this Case, I need hardly say I adopt every word that your Lordship has said. It comes as a shock to myself personally to learn this news, and I can only say that I believe the country has lost one of its greatest public servants, and I believe that that is a loss which is felt peculiarly under the circumstances in which we meet, when your Lordship refers to the fact that he was the Ambassador who brought about this Treaty from which we hope such good results in leading to the most amicable conclusions in the relations between the two neighbouring countries-Canada and the United States. (Adjourned till to-morrow 11 a. m.)

568

FOURTEENTH DAY.-THURSDAY, OCTOBER 1, 1903.

All the Members of the Tribunal were present.

The PRESIDENT. Before the Tribunal commences, I think they will be interested to know that I telegraphed to Lord Pembroke in the name of the members of the Tribunal yesterday, and that I received this telegram from him late last night:

We are deeply touched by the kind sympathy of the Members of the Alaska Boundary Tribunal with us in the loss of my brother, who was so much interested in your work.

Mr. LODGE. Mr. Solicitor, before you begin-we were speaking about these books yesterday. It appears that there was a French edition which you have here-a quarto published in the eighth year of the Republic, which is 1800. Two years later, in the year ten of the Republic, there was published this small French octavo which I hold in my hand, the one to which I referred yesterday, and I find on looking at the third volume, on p. 370-it is rendered in this waythe passage which has been quoted so often:

Je l'ai nommé " Canal de Portland' en respect et à l'honneur de la famille de Bentinck.

Sir EDWARD CARSON. They adhered in that edition-————

Mr. LODGE. They adhered to the first edition apparently, and I suppose the first French edition is the same.

Sir EDWARD CARSON. The first French edition is, I think so. Now, I only want to make one or two observations about this question of Portland Canal. I do not know really why both Mr. Watson_and Mr. Taylor brought back into this question of the Portland Canal the 54 degrees 40 minutes. I cannot understand the adherence to this 54 degrees 40 minutes idea at all, after it is demonstrated that 54 degrees 40 minutes, taking the latitudes as fixed on Vancouver's charts, does not bring you into the centre of the Canal. As long as it was possible to make an argument that 54 degrees 40 minutes would support the theory that you were to go to the centre of the Observatory Inlet, as I call it, then I think there is something to be said in favour of 54 degrees 40 minutes, but the moment that is disposed of I fail to see why 54 degrees 40 minutes is brought in at all. It is said you create a kind of wedge. Mr. Watson demonstrated that on the map, if you take a different figure for the American Treaty and for the English Treaty. I do not think the wedge is of the least importance, for I would point out this, that even if you take the same parallel on each Treaty you will still have a wedge, and it would be a wedge on the mainland, which would be very much more important. The PRESIDENT. A wedge on the sea does not matter. Sir EDWARD CARSON. It does not matter.

The PRESIDENT. A wedge on the mainland might be of more impor

tance.

Sir EDWARD CARSON. Might be of some use. Now, so far for the arguments which have been used on the other side. There is 569 one point Mr. Taylor made. He again argued the doctrine of the thalweg. Now, I submit to the Tribunal that the doctrine of the thalweg does not come into the case all. Whether we are right or whether we are wrong about what is Portland Channel, it is not a case of fixing it by any general rule or general theory; it is a specific fact which we ask the Tribunal to find, and it is not to be found by any general rule of international law at all. At the same time I think it is right to say this-and if I had to discuss, which I do not intend to do, this doctrine of the thalweg, I would not agree with the view which has been expressed here-that you do apply that doctrine to the open sea where it is 25 or 26 miles wide, but the raison d'être of the doctrine would, in my view, at all events, have no application to such a state of circumstances as exists at the entrance of this Portland Inlet, as it is now called.

It is further to be observed that if you were to attempt to apply that doctrine at all you would have to enter into a further consideration, namely, what we are to do with the Wales Island and the Pearse Island. It is quite plain, however, that the real question in the case is not one of a general nature of that kind, but it is the specific finding, the finding of a specific fact of what the negotiators meant when they used the word "Portland Channel."

Now, there are, I think, two other matters to which I should like to refer and then I shall leave that question. One is that I shall ask the Tribunal to note, and I am not sure, looking through the Attorney-General's Argument, that he called attention to this fact, I should like the Tribunal to note that while there was considerable negotiation and considerable attention paid as to the small portion of the Prince of Wales Island, which by running the parallel at 55 degrees would be taken off the Island in dividing it, I should like to point out this, that while that concession was made for the purpose of preserving Prince of Wales Island intact to Russia as part of her dominions, we never find during the whole negotiation any mention whatever made of Wales Island and Pearse Island, and so it is impossible to imagine for a moment that where they were paying so much attention to the bringing the latitude below 55 degrees, for the purpose of introducing that small portion of Prince of Wales Island, it is impossible to suppose, without one word of comment or one word of suggestion from Russia, that the negotiators were willing to go further and include the two islands, which are important islands, as standing at the entrance of this channel, such as Wales Island and Pearse Island are.

Now, I say, in that state of facts, and in those circumstances, and in the state of the evidence at the present moment, you have not a particle of evidence before you as to anything else being Portland Channel except the channel that passes between Pearse Island and the mainland-not a particle of evidence. It is not suggested that anybody ever knew anything else as Portland Channel except the channel that passes between Pearse Island and the mainland, and I say, in that state of facts, that the argument of the Attorney-General is unanswered in this, and to give any other answer than that which

you asked me to give here would be a matter of speculation, without one particle or scintilla of evidence to support the view that this entrance of the larger channel was ever known as Portland Channel to the negotiators who made this Treaty.

Now, the third question to which I pass on will take me very little time:

What course should the line take from the point of commencement to the entrance of Portland Channel?

I should have thought it unnecessary to comment upon that at all, were it not for an observation of Mr. Watson's, because he propounded the most extraordinary theory, and I think the most useless one that could be propounded for solving this Treaty. Now, what did he say? He admitted you have not to start at 54 degrees 40 minutes, because the point at which he started was below that latitude, and he admitted that when you got to Portland Channel, you had to leave 54 degrees 40 minutes, so that you have to start off that latitude, and you have to leave that latitude at the end, but he said, for some reason or another, you must get on to that latitude between the two points; in other words, you get on to it for the purpose of going off it, and he put forward a very peculiar doctrine, that depended upon the word 66 remontera."

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He said remontera" made it necessary that you should swap horses in the middle of the ocean. I think, if he will pardon me, he is wrong in his view of the French. It does not mean to get up again on your horse," it simply means "you get up on your horse." But I really think it is going a little too far to ask the Tribunal to hold that, and I labour this point to the extent to which I do for this purpose, that what is 54 degrees 40 minutes now is different from what it was when these charts were before the negotiators. I do not want to have any finding upon the face of answers to this question, and I say that 54 degrees 40 minutes is not a thing to be got on to at all, because it would create probably as much confusion afterwards as does the present Treaty which we are trying to solve here.

Now, note, Mr. Watson says what are the words put in for? On p. 390 of his Argument he asks this question: "Why are the words put in?" He says he has never got an answer to that question, and he says he does not believe any answer is possible.

May I suggest a simple answer, which I think the Attorney-General has already given, that the reason they were put in was simply that this 55 degrees of latitude was the agreement between Russia and England? It was found that a small portion of the Prince of Wales Island was below that latitude 54 degrees 40 minutes, or thought to be the latitude that would just bring you below Prince of Wales Island-and for that reason, and for that simple reason alone-54 degrees 40 minutes was put in. If you look at the British Case Appendix, p. 76, I think it is as clear as anything can be made in that letter of Count Nesselrode to Count Lieven, because he says here:

The Emperor, however, having been convinced that about the same time the English Company of Hudson's Bay had formed settlements in the 53rd and 54th degree of north latitude, and that these settlements were not even very far from the coasts. authorized us to give, at the very opening of the negotiations, a proof of his conciliatory intentions by declaring to Sir Charles Bagot

that we would hold to the limits assigned to our American possessions by the charter of the Emperor Paul; that therefore the line of the 55th degree of north latitude would constitute the southern frontier of His Imperial Majesty's possessions; that on the continent and towards the east this frontier could run along the mountains which follow the windings of the coast as far as Mount Elias, and that from this point up to the Arctic Ocean we would fix the boundaries of the respective possessions.

There you see the specific statement that all Russia was asking, and Russia wanted, was that the 55th degree of north latitude should constitute the southern boundary of His Imperial Majesty's possessions. And then it gives the reason which my friend Mr. Watson referred to:

In order to avoid intersecting the Prince of Wales Island, which, according to this arrangement, should belong to Russia, we proposed to carry the southern frontier of our domains to the 54th degree 40 minutes of latitude, and to make it strike on the continent the Portland Canal, the mouth of which on the ocean lies at the height of Prince of Wales Island and the head inland bewteen the 55th and 56th degree of latitude.

That is the sole reason given. Then Mr. Watson goes on and says that Mr. Canning accepted the 54 degrees 40 minutes not in the sense we put it at all, but as a general line put to regulate the whole of this frontier, and he says that he put it into the draft which was forwarded for the acceptance of Russia; but I think if Mr. Watson had looked at the letter which sent that draft, it exactly bears out the construction we put, because if you will look at p. 85 of the British Case Appendix, you will find the 54 degrees 40 minutes is merely an element in the description of the southernmost part of Prince of Wales Island; in fact, he gives the go-by to it altogether, and what he says is this. He does not even mention it as such. This is what he says:

After full consideration of the motives which are alleged by the Russian Government for adhering to their last propositions respecting the line of demarcation to be drawn between British and Russian occupancy on the North-West Coast of America, and of the comparative inconvenience 571 of admitting some relaxation in the terms of your Excellency's last

instructions, or of having the question between the two Governments unsettled for an indefinite time, His Majesty's Government have resolved to authorize your Excellency to consent to include the south points of Prince of Wales Island with the Russian frontiers, and to take as the line of demarcation a line drawn from the southernmost point of Prince of Wales Island from south to north through Portland Channel, till it strikes the mainland in latitude 56 degrees.

Now, you see, in accepting that he never mentions 54 degrees 40 minutes at all, but he takes it in the way in which it was given; I think it was only given as a latitude so as to include the southernmost part of Prince of Wales Island.

The PRESIDENT. What page?

Sir EDWARD CARSON. Page 85, my Lord. Now, that being so, just look for a moment at the way the matter is expressed in the Treaty:Commencing from the southernmost point of the island called Prince of Wales Island, which point lies in the parallel of 54 degrees 40 minutes.

The French is:

Lequel point se trouve sous le parallèle de 54 degrés 40 minutes.

That is, if it happens to be in that. But would they have put in such a description as that if 54 degrees 40 minutes was to be the limit? Why should they have referred to the Prince of Wales Island

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