sitting as a jury, to assume the privilege of jurors and give a verdict without disclosing his reasons. But as the President of the Tribunal has published his reasons, they are open to public review, but only in so far as that review is appropriate to what he has made public.

PORTLAND CHANNEL BOUNDARY

as

In considering the answer given by the majority of the Tribunal to the second question proposed by the Treaty of Reference: "What channel is the Portland Channel?" it is regrettable to notice that the majority of the Tribunal is charged by two of their fellow British jurists with being parties to "a grotesque travesty of justice by altering the unanimous vote of the tribunal," which had declared that " to Portland Channel the case of Great Britain had been demonstrated to be unanswerable;" and then by a compromise with the plain facts of the case, while awarding Pearse and Wales Islands to Great Britain, determined to make these islands valueless to Great Britain, or to Canada, by giving to the United States the islands called Sitklan and Kannagunut."

Before passing judgment, let the charge be tested by the findings which the learned President, on behalf of that majority, has published as to Portland Channel, and by his reasons therefor.

He finds: "That one entrance of Portland Channel was between the islands now known as Kannagunut and Tongas Islands." This admittedly was the north entrance into Portland Channel, directly south of Tongas Island. Then he adds:

"The narrative of Vancouver refers to the channel between Wales Island and Sitklan Island, known as Tongas Passage, as a passage leading south-south-east towards the ocean, which he passed in hope of finding a more northern and westerly communication to the sea; and describes his subsequently finding the passage between Tongas Island on the north, and Sitklan and Kannagunut on the south. The narrative and the maps leave some doubt on the question whether he intended to name Portland Channel to include Tongas

Passage as well as the passage between Tongas Island on the north and Kannagunut Island on the south. In view of this doubt, I think, having regard to the language, that Vancouver may have intended to include Tongas Passage in that name, and looking to the relative size of the two passages, I think that the negotiators may well have thought that the Portland Channel, after passing north of Pearse and Wales Island, issued into the sea by the two passages above described."

The two passages into Portland Channel here referred to are the curved or southern passage between Wales and Sitklan Islands (adopted by the Tribunal), and the straight or northern passage between Tongas and Kannagunut Islands, which was the channel claimed by the two British jurists.

After some further observations, the President finds that "the references to Tongas Island in 1835, as being on the frontier of the Russian straits; and in 1863, as being on the north side of the Portland Canal, and in 1869, as to Tongas Island being on the boundary between Alaska and British Columbia, are strongly confirmatory of the view at which I have arrived upon the consideration of the materials which were in existence at the date of the Treaty."

Bearing in mind that "Tongas Island," mentioned in these confirmatory findings, is situated immediately over the north entrance of Portland Channel; and then applying the above findings to the plain and imperative direction in the Treaty-contract of 1825, that the course of the international boundary line, after leaving the Prince of Wales Island, "shall ascend to the north along the channel called Portland Channel," i.e., shall go upward in an ascending line toward the north along Portland Channel, the question is, why was not the imperative direction and mandate of the Treaty obeyed, and the international boundary line traced through the north entrance of Portland Channel, instead of, as the Tribunal has deflected it, first south-east and then northeast through the southern entrance of Portland Channel? By so tracing the boundary line, the President appears to have reversed the verdict-result of his findings, and to have ignored the imperative mandate of the Treaty-contract. Had the findings of the learned President been applied to the

"north course of the line directed by the Treaty, the international boundary should have been traced through what was found on the evidence to be the north entrance into Portland Channel.

How the reversal of these findings was brought about has been unrevealed. But by the signed decision of a majority of the Tribunal, two islands, Sitklan and Kannagunut, which, on the confirmatory findings and the mandate of the Treaty of 1825, were legally within the territorial sovereignty of Great Britain, as part of the Dominion of Canada, have been ceded to the United States.

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The learned President clears away some of the difficulties as to the word "coast," suggested during the arguments. He says: The coast mentioned in Article III. is, in my opinion, the coast of the continent; and the coast referred to in the second paragraph of Article IV. is also the coast of the continent."

Inserting these terms into the Articles they read:

"III. The line of demarcation between the possessions of the High Contracting Parties, upon the coast of the continent, and the islands of North America to the north-west, shall be drawn in the manner following: Commencing from the southernmost part of the island called Prince of Wales Island, which point lies in the parallel of 54° 40', north latitude, and between the 131st and the 133rd degrees 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 the last mentioned point the line of demarcation shall follow the summit of the mountains situated parallel to the coast [of the continent] as far as the point of intersection of the 141st degree of west longitude (of the same meridian); and finally, from the same 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 north-west.

"IV. With reference to the line of demarcation laid down in the preceding article, it is understood: 1. That the

island called Prince of Wales Island shall belong wholly to Russia; 2. That wherever the summit of the mountains, which extend in a direction parallel to the coast [of the continent] from the 56th degree of north latitude to the point of intersection of the 141st degree of west longitude, shall prove to be of a distance of more than ten marine leagues from the Ocean, the limit between the British possessions and the strip of coast [of the continent], which is to belong to Russia as above mentioned, shall be formed by a line parallel to the windings of the coast [of the continent], and which shall never exceed the distance of ten marine leagues therefrom."

This construction is the only intelligible one the term is capable of; and its equivalent expression may be found in "coast on the mainland," in question five; and "mainland coast on the ocean," in question six.

LINE CROSSING LYNN CANAL AND INLETS.

Questions five and six formulated the main crux of the dispute; whether the international boundary line crossed the bays and inlets indenting this "coast of the continent.”

The fifth question asked: "Was it the intention and meaning of said Convention 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?"

The sixth question was only to become necessary in case the fifth was answered in the negative; and as to the bays and inlets it asked: "Was it the intention and meaning 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 lisiere was to be measured (a) from the line of the general direction 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?"

And here may be noted the loose and unscientific drafting of the Treaty of Reference of 1903, as instanced in the above

expression "territorial waters of Russia "; but more especially in clause" (b) from the line separating the waters of the Ocean from the territorial waters of Russia." The expression "territorial waters" includes not only the bays, inlets, and rivers indenting the coast, and designated “arms of the sea," but also the three marine mile belt of sea along the coast, which is subject to the territorial sovereign of the adjoining land. The question should have been limited to whether the inland territorial waters indenting the mainland coast were Russian, or part Russian and part British.

In considering these questions, it should be borne in mind-in addition to other points, hereinafter referred tothat a recognized uniform distance of three marine miles from the low-water mark of the tidal sea, determines where the Ocean begins. And as the majority of the Tribunal holds that tidal bays and inlets, being "sinuosities of the coast," are "ocean" within the Treaty expression "ten marine leagues from the Ocean;" then their low-water mark should also determine where the Tribunal's "ocean" begins.

But the mouths of tidal rivers are also "sinuosities of the coast;" and the influent sea in such tidal rivers has also its low-water mark, which should similarly determine where they become "ocean" according to the above decision. Yet International Law, because the channels of bays, inlets, and rivers are filled to the ocean's tidal level, classes them under the generic term of "arms of the sea," and considers them in regard to sovereignty as if they were land. But the action of the influent sea is perpetually, or occasionally (as in the case of shoals or strands), submerging their lands, precludes them, it is submitted, apart from authority, from being imported into the definition "Ocean;" as that term is understood in International Law.

Passing from these considerations, but keeping in mind. the President's appropriate interpretation of the Treatyterm, "coast," as meaning "coast of the continent," we find that, instead of reviewing the authorities cited by the distinguished counsel for Great Britain, the learned President, after a comment on the term "ocean" (hereinafter considered), said: