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EIGHTH DAY.—WEDNESDAY, SEPTEMBER 23, 1903.

All the Members of the Tribunal were present.

Sir ROBERT FINLAY. I have here the map with the coast outline according to the view which we take and the general trend indicated upon it. We have here indicated the line.

The PRESIDENT. Thank you, Mr. Attorney.

Sir ROBERT FINLAY. And your Lordship will see that the principle upon which we have proceeded is following broadly the outline of the coast, but neglecting all such sharp points and peninsulas and deep inlets.

Mr. DICKINSON. We have here a map indicating the line of the coast with the 10 marine league line, and I have furnished the Attorney-General with a copy. This I will pass up to the Tribunal. The PRESIDENT. Your line, Mr. Attorney, is the general line of the

coast.

Sir ROBERT FINLAY. Yes. Mr. King has also, in consequence of what was intimated yesterday by the Tribunal, marked upon the American Survey Maps the various peaks which are indicated on the British Survey Maps by the red squares.

The PRESIDENT. Thank you.

Sir ROBERT FINLAY. I thought what your Lordship desired was that we should show it on the American Survey.

The PRESIDENT. Quite right, but I did want the corresponding. Sir ROBERT FINLAY. That will be done. Mr. King has not had time to do that.

The PRESIDENT. I quite follow that, Mr. Attorney. May I also mention

Sir ROBERT FINLAY. I have got here the sheets of the American Survey, corresponding to those of the English Survey, which are hanging up behind the Tribunal.

The PRESIDENT. Thank you; will you give them to Mr. Robertson? Sir ROBERT FINLAY. And your Lordship will see all the summits south of Mount Fairweather exist there exactly as in the British Survey with one exception, a little to the north of Bradfield Inlet.

Sir ROBERT FINLAY. A little to the north of Bradfield Inlet. When you get further north-north of Mount Fairweather-there is a considerable deficiency in the number of peaks shown on the American Survey. I think there are about 21.

The PRESIDENT. Do you mean that the American Survey is not so complete north of Mount Fairweather as the British?

Sir ROBERT FINLAY. Yes, they are not complete, and of course north of Fairweather there comes into question the heights of the

summits which you are to take. The highest summits are undoubtedly further back than those we have taken, but we have at that part of the line proceeded on the principle which we submit is the correct one, of taking the mountains nearest the sea.

Mr. TURNER. Have you computed the area left in the lisière by that line?

Sir ROBERT FINLAY. I beg your pardon.

Mr. TURNER. Have you computed the area left in the lisière by that line?

Sir ROBERT FINLAY. No, I have not.

The PRESIDENT. That is not their line; that is the line of the coast the general line of the coast.

Mr. TURNER. Oh, I see.

Sir ROBERT FINLAY. If that line indicated the boundary of the lisière, we should not have left the United States very much territory. Mr. TURNER. That is what struck me.

Sir ROBERT FINLAY. We should have shorn them very close indeed. That would have exactly carried out what one of the Russian negotiators feared would actually happen. The line would run along the edge of the water.

Mr. TURNER. Let me ask you, have you computed the area within that line?

Sir ROBERT FINLAY. No. I thought your information referred to the map.

Mr. TURNER. I wanted the information.

Sir ROBERT FINLAY. No, I have not done that.

The PRESIDENT. Mr. Attorney, Mr. Root would like another copy of these maps on which the two margins have been drawn. They are very convenient maps, like the one you have just handed in. Sir ROBERT FINLAY. Yes, certainly.

The PRESIDENT. And might I just mention we shall want a clean copy of the British and American surveys? I dare say I have got a spare copy, but if not we must have one, if you please, for the purpose of making any marks upon it that we want to

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make.

Sir ROBERT FINLAY. What your Lordship indicated was the British Contour Maps or both?

The PRESIDENT. Both, please.

Mr. Root. This sheet on which these lines were drawn seems a very convenient one for reference to follow argument.

Sir ROBERT FINLAY. Yes.

Mr. RooT. Avoiding the necessity of going into the big atlas. If we could have one of those without the lines laid down it would be very convenient.

Sir ROBERT FINLAY. Yes. We will have a copy prepared for each member of the Tribunal.

Mr. ROOT. Personally, I do not care about the lines being laid down at all, but merely the sheet.

Sir ROBERT FINLAY. Merely a copy of the map.

Mr. DICKINSON. We have some copies here we can hand up.

Mr. ROOT. Thank you.

Sir ROBERT FINLAY. I was dealing yesterday with the acts that took place there during the period of Russian occupation of the lisière, and had called attention briefly to what had happened down to

about the year 1834, when the affair of the "Dryad " occurred. Now, at that time the state of things was this: that Fort Dionysius, which is at Fort Wrangel, was just being built. The Taku River had just been discovered, and an expedition to Chilcat had been merely projected. That is the state of things which is revealed when the affair of the "Dryad" occurred. It is not in the least necessary for me to go into any details as to the affair of the "Dryad." The Tribunal is aware of its general nature that a British vessel proceeding up the Stikine for the purpose of founding a settlement within the British limits was stopped by the Russian authorities-stopped under an allegation that there had been some failure on the side of the British to observe Article II of the Treaty.

That contention was abandoned and we find that Count Nesselrode wrote the despatch-the despatch which has already been referred to some days ago-to Count Kankreen, which is the despatch of the 9th December, 1838, advising him to enter into negotiations. It is at p. 308 of the Appendix to the United States' Case. It advised him to enter into negotiations with the Hudson's Bay Company with regard to the amount of the indemnification claimed by the Company; and then on the 20th December the next year-1839-the Directors of the Russian-American Company report to Count Kankreen in the United States' Case, suggesting that there should be a lease for twenty years to the Hudson Bay Company of the exclusive right of trading on the coast of the continent between 54 degrees 40 minutes and the estuary of Cross Strait for a rent in furs. In the meantime, the project of the British to establish a settlement upon the Stikine, for the purpose of which the "Dryad" had been proceeding up the river, seems somewhat to have stimulated Russian activity, while the negotiations with regard to redress for what had been done were still pending.

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We find that in 1837 there was a Russian survey of the Stikine up to the proposed British Settlements. That is referred to in the United States' Case Appendix at p. 303, and also at p. 514, No. 28. There is a list of documents which shows what had been done. In 1838 an order had been given for the survey of Taku Bay by the Russians. The United States' Case alleges, at p. 80, that the bay had been surveyed; but all that appears in the passage which is referred to is that an order had been given for such a survey. The passage in question is in the Appendix of the United States' Case, at p. 302, and more particularly at the top of p. 303; and in the same year-1838-there had been a survey of the mouth of the Chilcat River by Lindenberg, a Russian official.

That appears from the United States' Case Appendix, p. 312, at the foot. And from Document No. 45, which is referred to on p. 515 of the same Appendix, I find in the case for the United States, at p. 75, an allegation that an annual expedition had been sent up Lynn Canal, but I have been unable to discover any proof of that assertion, and I am not aware on what documents the United States rely in support of that statement, which appears at p. 75 of their Case.

Well, these instances show that the activity of the Russians in this region had to a certain extent been stimulated by the incident of which the stoppage of the "Dryad" forms a part. And it is to be noted that in February of 1835 the ten years under Article VII of the

Treaty expired. Now, as I have said, the stoppage of the "Dryad ” formed the subject of active representations by the British Government, and the Russian Government, feeling that the stoppage could not be justified, recommended, through Count Nesselrode, that the Russian-American Company should endeavour to come to terms with the Hudson's Bay Company, who were the complainants, and at whose instance the British Government had taken the matter up. That resulted in the lease of 1839. Now, that lease makes it necessary that I should very shortly call the attention of the Tribunal to what the position of the Hudson's Bay Company was.

The Hudson's Bay Company had a Charter granted in the year 1670. The copy that I have got of it here is contained in a book by Mr. Martin, published in the year 1849, being an account of the Hudson's Bay territories and Vancouver Island, with an exposition of the chartered rights, conduct, and policy of the Honourable Hudson's Bay Corporation. The Charter of 1670 is set out in the Appendix immediately following on p. 150, and another copy of the Charter will be found in the Appendix to the report of the Select Committee of the House of Commons, which sat, I think, in 1857 upon the Hudson's Bay Company. The Charter set out at p. 408, and the following pages of the Appendix to that Report.

Now, I do not know that anything would be gained by my going in any detail through this Charter. It is a Charter which granted the Company the exclusive right of trading in Rupert's Land. Well, Rupert's Land was a term which was used then, and has been used since, to designate a territory which, I suppose, roughly speaking, may be said to coincide with the basin of drainage into Hudson's Bay. I do not know whether I am geographically accurate, but it is the territory in the vicinity of Hudson's Bay, and to a considerable extent coincides with the watershed which discharges into Hudson's Bay. Rights were given to the Company in the soil. There are words in the Charter which were relied upon by the Company as vesting the property of the soil of Rupert's Land only.

I believe a considerable discussion afterwards took place as to the effect of these words, and something in the nature of a compromise was arrived at upon the subject, and there is conferred upon the Hudson's Bay Company, in the territory to which that Charter applies, power of government and of administering justice, both civil and criminal. The Charter shows that the Company is a commercial company for the purpose of trading in furs and so on, but, as was not uncommon with commercial companies, some extensive powers, to which I have just referred, were conferred upon the Corporation within the limits to which that Charter applied.

In the year 1818 the Convention of Washington made arrangements for entire equality of trade as between the United States of America and Great Britain west of the Rocky Mountains, and three years after that there took place the amalgamation of the North Western Company, also a British Company, with the Hudson's Bay Company. They had been prosecuting their trade in the northwest-further to the west than the territory to which the Charter of 1670 applied in the sense of conferring rights of proprietorship and jurisdiction upon the Hudson's Bay Company. Both of these companies had been trading in the region away to the west of Rupert's Land. They had been in keen competition, and they

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thought they consulted the interests of both by amalgamating, and that amalgamation took place in the year 1821. The Hudson's Bay Company obtained from the Crown two licences of exclusive trading. Both of them were granted under the powers of the Act, the first of the second of Geo. IV, cap. 66, private Act, Roman numeral.

The first of these licences will be found on p. 425 of the Appendix to the Report of the Select Committee, and it purports to confer upon the Hudson's Bay Company the exclusive right of trading with the Indians. In terms it is conferred upon the Hudson's Bay Company and the nominees of the North-Western Company, with whom the Hudson's Bay Company for business purposes had effected practically an amalgamation, and the country to which it applies is to the north and west of the territory situated to the north and west of the United States, not forming part of His Majesty's provinces in America. Some years later a good many years later in 1838, the Hudson's Bay Company had entirely bought out the North-Western Company, and when that operation had been effected a new licence was granted under the same powers which will be found-the material parts of the licence are set out in the British Case Appendix at p. 60.

This licence was granted under the first and second George IV, and it will be found also in the Appendix to the Report of the Committee at p. 414. I think it will be found that the passage at p. 160 of the British Case Appendix contains what is material in this Charter. It contains, I think, all the really operating parts, and it contains this provision, that the Company were to undertake to insure that as far as their authority over their servants went the execution of process and the arrest of criminals should be properly carried out. That was the extent of their undertakings. These offences were to be triable in Canada by virtue of the Statute to which I have just referred, and there was a provision in this licence which saved all rights of any foreigners to trade in that district. It was the grant of an exclusive right to trade, but it contained a provision, a very natural one to insert, that it did not purport to affect the rights of any foreign Power to trade in that region.

Now, I think that those are all the provisions which are really material to refer to, and I submit that it results from examination of the position of the Hudson's Bay Company, that it was not a company which in this territory-I am not speaking now of Rupert's Land, where they had the special powers-it was not a company which in this territory in any sense represented the British Government. It represented this Government so far as any individual merchant, who was establishing a post for trading in a foreign and savage country, would.

The PRESIDENT. That is perfectly true, Mr. Attorney. I follow you quite from the legal point of view, but is there any evidence of any other occupation by anybody on the part of Great Britain except by the Hudson's Bay Company?

Sir ROBERT FINLAY. No, as far as I know none, and, in fact, the terms of the licences to which I have been refering seem rather to negative the probability of anything of the kind, because it is not a region to which at that period people would go merely for pleasure; they would go only for business, and the exclusive right of trade was conferred upon the Hudson's Bay Company.

Now, so far as the taking of this lease is concerned, I submit that