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ACTS SUBSEQUENT TO THE TREATY.
The tribunal is to consider in the settlement of the questions submitted to its decision, not only the original text of the BritishRussian Treaty of 1825, and of the Treaty of cession of Russian America to the United States in 1867, but also
"Any action of the several Governments, or of their respective Representatives, preliminary 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 several territorial jurisdictions under and by virtue of the provisions of said Treaties."
The actions of the parties previous to the Treaty of 1825 have already been discussed. The remaining period naturally divides itself into two, the actions of the parties from 1825 to 1867, and subsequently from 1867 to the date of the present Convention, the 24th January, 1903.
It does not appear that even up to the time of the cession in 1867 either Great Britain or the United States had acquired any but a very dim idea of that remote part of the New World. The United States, being nearer to Russian-America than any European country, and closely connected with it by trade, had been considering the purchase of the territory during the Administration of Mr. Polk and Mr. Buchanan, and had made a definite suggestion to purchase in December, 1859. If any exact information of the district from 1859 to 1867 were available, it would certainly be in the possession of the United States' public men, and could not have escaped the Hon. Charles Sumner, Senator for Massachusetts, whose speech advocating the purchase of Alaska is put forward as the embodiment of expert
knowledge regarding Alaska at that time. Yet Sumner declared in 1867 that "perhaps no region of equal extent on the globe, unless we except the interior of Africa or possibly Greenland, is as little known," and cites the description of it given by the poet Campbell in the "Pleasures of Hope," "While exploring earth's loneliest bounds and Ocean's wildest shore."
It seems impossible to conceive of any local act performed in those remote regions by Russia during that early period of which Great Britain could be said to have been made aware by any means except direct communication or correspondence with Russia. It has been shown that no such posts had been established by the Russians on the disputed territory previous to the Treaty of 1825. By the negotiations leading to that Treaty it appears that the lisière was sought simply as a "point d'appui," so that it might not be adversely occupied. The lease to the Hudson's Bay Company, 6th February, 1839, provided for the return of only one Russian post at the expiry of the lease, that of Highfield, situated, not on the lisière, but on Wrangel Island, a part of the Russian possessions, and in no way in dispute. This seems sufficiently conclusive that there were no other posts. Bancroft, speaking of the cession of 1867, states that Russia herself had never occupied and never wished to occupy this territory-meaning, it seems, the whole territory of Russian America.
The lease by the Hudson's Bay Company of the 6th February, 1839, from the Russian-American Company, cannot be put forward as affecting the boundary question. The lease sets up no boundary. It is impossible to detect the recognition of any sovereignity on the part of Russia, except over that portion of the territory given her by the Treaty. That Russia possessed some portion of the mainland could not then be denied. If the Hudson's Bay Company, for the purpose of disposing of a disagreeable competitor in the fur trade, and to avoid a recurrence of the Stikine incident of 1834, chose to lease "say the whole mainland, coast, and interior country belonging to Russia," it cannot be argued that it thereby leased something that did not belong to Russia, or that Great Britain thereby gave Russia something more than she had previously possessed. The Company already enjoyed a monopoly of the territory on the British side of the line. By the lease it secured a similar monopoly on the Russian It was a matter of indifference to it whether its rights were
derived from its British charter or its Russian lease, and no question as to the true location could possibly arise.
The history of the lisière from the Treaty of 1825 until 1867 is simple enough. As has been said in the course of the diplomatic correspondence, the only value of the region during the first ten years after 1825 lay in the fur trade, and that trade was thrown open on equal terms to the subjects and citizens of Great Britain and Russia, by Article VII of the Treaty between Great Britain and Russia of 1825, and, before the expiry of the ten years, events, which resulted finally in the lease to the Hudson's Bay Company, of the trade of the whole of a lisière southward and eastward of a line joining Cape Spencer and Mount Fairweather, had occurred.
The circumstances leading to the lease are well known as "the Stikine incident." The clause of the Treaty throwing open the trade in furs would terminate by effluxion of time in 1835. In 1833–34 a Hudson's Bay expedition proceeded to Stikine River for the purpose of exploring it and establishing a post on the upper portion of the river. In June 1834 the expedition was prevented by the Russians from ascending the river. This was in manifest violation of the Treaty inasmuch as British subjects had the right to the free navigation of the river, and the upper portion was, under any interpretation, in British territory.
On the 24th October, 1835, the Governor of the Hudson's Bay Company wrote Lord Palmerston complaining of the infraction of the VIth and VIIth Articles of the Treaty of 1825, and claiming 22,1507. damages. On the 28th January, 1836, the Hudson's Bay Company was informed that the Russian Government disavowed the action of its servants, and promised to convey His Imperial Majesty's displeasure over what had been done. The damages were not paid, however, but a negotiation followed, which led to the leasing by the Hudson's Bay Company of the territory of its rival. Part of the consideration of the lease was the damage which had been suffered by the Hudson's Bay Company through the stoppage of its expedition up the Stikine. The lease was not brought about by any dispute as to the boundary line but by the desire of the Hudson's Bay Company to avoid unnecessary friction by illegal acts of the Russians, of which the above is an example, and by the further desire to enjoy a monopoly of the trade.
The original Agreement was made the 6th February, 1839, the lease to commence the 1st June, 1840, and to last ten years. A supplementary Agreement was entered into the 17th May, 1842. The lease was renewed in 1849, and on the 28th December, 1858, the lease between the two Companies was extended to the 1st January, 1862. It was further extended till June, 1865, and in May, 1866, again for one year, terminating on the 31st May, 1867 (see Declaration on 306 of Appendix I). As the Treaty of 1867 was concluded on the 30th March, 1867, it will be seen that, until after the cession of 1867, the lisière was under lease to the Hudson's Bay Company.
There is no evidence that Great Britain either approved or disapproved of the lease, nor was the Hudson's Bay Company, during the period in question, in any sense a representative of the British Government, and no action of the Company could possibly affect the question at issue.
The proceedings of the Select Committee of the British House of Commons in 1857, "to consider the state of those possessions in North America which are under the administration of the Hudson's Bay Company, or over which they possess a licence to trade," lend no countenance to United States' contention.
In 1838 the Hudson's Bay Company had been granted the licence of exclusive trade over that north-western portion of British America known as the Indian Territory. In 1857 this licence was about to expire, and the Committee met to consider the conditions of the territory which the Hudson's Bay Company had administered under its licence. The people of Canada east of Lake Superior felt that the means of extension and regular settle88 ment should be afforded to them over a portion of this great territory, particularly the Red River Valley and the Valley of the Saskatchewan. The Canadian western boundary in 1857 did not extend much beyond Lake Superior in the centre of the continent. As a matter of fact, the territory in question was not then a part of Canada, and Canada was at that time in no way concerned in that remote part of British North America. The question of the boundary-line between the lisière and British territory was in no way the subject of the inquiry.
In passing from the period extending from 1825 to 1867 to that extending from 1867 to the date of the present Convention, the
24th January, 1903, the relations of Great Britain and the United States, become the subject of consideration.
It is, perhaps, not strictly necessary that the facts bearing on these relations should be taken up in the original presentation of the British Case. They might be more properly dealt with in reply. It is only because it may be more convenient that the Tribunal should be made conversant, in the first instance, to some slight extent, at least, with the contentions of both sides in this connection, that any effort is made to deal with them now. Anything that is advanced at this stage of the Case, dealing with these subjects, is therefore given with a full reservation of the right to deal with the same subjects more fully in reply.
The facts as to the occupation of the territory after the acquisition by the United States are as follows:
The formal occupation of the newly-ceded territory is described in Bancroft's "History of Alaska," at pp. 594-600 et seq. It appears that with some ceremony the United States' flag was unfurled at Sitka on the 18th October, 1867. Fort Tongass appears to have been established in 1867, and was visited by transports with garrison supplies. A United States' military force was sent to Cook's Inlet in 1868. There were also some troops at Wrangell.
Sitka, Tongass, and Wrangell were all situated on islands, and Cook's Inlet lies far to the west of the territory in dispute, and on the Russian side the 141st meridian.
In his letter of the 23rd May, 1877, ordering the return of the troops from Alaska, the Assistant Adjutant-General concludes with these words:
"Upon the departure of the troops, Sitka and Fort Wrangell will be discontinued as military posts," and "all control of the military department over affairs in Alaska will cease."
There is nothing to show that upon the transfer a detachment was stationed at any time on the strip of mainland.
As to the extent to which legislation and the enforcement of law and order had been developed in Alaska generally up to a recent day, the following quotations from Bancroft may be made:
"The Company and the Imperial Government gave them at least protection, sufficient means of livelihood, schools, a church; but in this vast territory, there never existed, since 1867, other than a semblance even of military law. There was not in 1883 legal protection for person or property, nor, apart from a few regulations as to commerce and navigation, had any important Act been passed