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gress early in 1896. The position was, therefore, that the High Contracting Parties had not had time to meet to consider the boundary-line, and the matter was still sub judice.
It is obvious that if the Canadian Government had instructed British vessels to disregard these Regulations, there would have been grave danger of a serious collision. Instead of pursuing a course thus at variance with sound and prudent international practice, the Canadian Government opened communication with the Government of the United States, and proceeded to make the best arrangement possible for the protection of her trade with the Yukon, while at the same time reserving her rights as to the ultimate determination of the boundary. On the 22nd July, 1897, the Canadian Commissioner of Customs inquired of the United States' Treasury Department if Canadian goods could pass from Juneau, Alaska, to the Yukon frontier without payment of customs duties if owners paid for United States' officers accompanying the goods. The Assistant Secretary of the Treasury, in reply, inquired if it would facilitate matters to make Dyea a sub-port of entry. On the following day the Canadian Commissioner of Customs replied that it would facilitate matters if Dyea were made a sub-port of entry "pending settlement of boundary question," and requested that, if this arrangement were agreed to, the Treasury should issue instructions to allow British steamers from Canadian ports to land and receive passengers and goods at Dyea. This arrangement was approved of on the same day, "merchandise to be accompanied by a Customs officer at expense of owners." On the 19th August following the Canadian Acting Minister of Customs sent the following despatch to the United States' Treasury Department:
"Freight and passengers for Yukon are going in by White Pass, and the landing is at Skagway Bay, three miles south of Dyea. American vessels deposit freight and passengers at the bay, but privilege refused to Canadian vessels. Customs officers can as conveniently pass entries at Skagway as at Dyea. Will you please instruct officials by wire to extend privilege of landing at Skagway Bay to Canadian vessels as conceded to American vessels."
On the day following the Canadian Acting Minister of Customs received the following reply from the Treasury Department:
"On the 6th instant, limits of Port of Dyca were extended to include Skagway, and deputy in charge instructed accordingly. This action gave Canadian vessels same rights as vessels of United States."
Four important facts are made evident by this correspondence:1. The objective point referred to in the first Canadian communican is the "Yukon frontier," no special locality being mentioned. 2. The reference to Dyea and the proposition to make it a subport of entry came from the United States' Government.
3. Canada, in accepting this proposition, expressly provided that her acceptance was "pending settlement of boundary question."
4. The necessity of the Case requiring immediate action rendered it quite impossible for the Canadian Government to adopt any other course than that which was followed.
A few months later the Canadian Government, in the early part of the year 1898, formally protested to the Imperial Government that the United States had established a sub-port of customs at Dyea, in territory which they claimed was rightfully British, and urged the desirability of establishing the boundary-line as contemplated by the Convention of 1892. An agreement was subsequently reached for establishing a provisional line as a boundary, but without prejudice to the claim of either Government, and matters have since remained in statu quo.
It is submitted, therefore, that the claims put forward by the United States' Government to hold Dyea and Skagway as Settle
ments made without notice of adverse rights, and without 'any mutual communication saving the rights of Great Britain, are not claims which are justified by the facts.
It is necessary to refer to one other alleged act of possession on the part of the United States-the construction of certain storehouses on Wales and Pearse Islands, territory claimed to be British. These storehouses were constructed by the United States' Government in the summer of 1896, but nothing was known with regard to them by the Canadian Government until the year 1901.
In October 1901, it was discovered that on Chart No. 3091, published by the United States' Coast and Geodetic Survey, of part of the Pacific coast, the following names appeared:
"St. House No. 1," on the eastern shore of Wales Island. "No. 2 Storehouse," on the eastern shore of Pearse Island. "United States' Storehouse No. 3," on the shore of Halibut Bay, which is a small indentation of the western shore of Portland Canal.
"United States' Storehouse No. 4," on the western shore of Portland Canal, to the north of the mouth of Salmon River, near the head of Portland Canal.
The exact point designated by the name was indicated on the chart in each case by a small dot.
An inquiry was at once directed to the United States' Government "as to the nature of the storehouses and the reason for their erection in this territory, the title to which was and still is the subject of diplomatic negotiation." In February 1902, Secretary Hay replied:
"That the storehouses are upon territory which has been in the possession of the United States since its acquisition from Russia, and that the designation of Portland Canal is such as has been noted on all the charts issued by the United States since that acquisition,"
"I am not aware that the Government of His Britannic Majesty ever advanced any claim to this territory before the signature of the Protocol of the 30th May, 1898, preliminary to the appointment of the Joint High Commission."
In his letter, Mr. Hay directed attention to a certain report of the Bureau of Engineers of the United States' army. From this report, it appears that the storehouses in question had been built in 1896 by parties landed by a United States' revenue-cutter, which had been sent out for the purpose. This report further states that after the completion of each of the buildings referred to, the "flag was hoisted," "three cheers given," &c. In short, the usual formalities ordinarily observed in taking possession of newly-acquired territory were gone through with, and this, although all these regions so formally taken possession of by the United States are claimed by them to be part of that territory which they have held for seventy years of undisputed occupation by the Russians and themselves. Wales Island in particular, upon which one of these storehouses was erected, with these solemn · formalities, is within a few miles, across a narrow channel (the Portland Canal of Vancouver) from Port Tongass, which was occupied by the United States as a military post for several vears after 1867.
In reply to the above letter of Secretary Hay of February 1902, the attention of the Secretary of State of the United States was directed by Mr. Raikes, the British Chargé d'Affaires at Washington,
to the note, addressed by Her Majesty's Minister at Washington to the United States' Secretary of State on the 5th June, 1891. Mr. Raikes, in his letter, said:
"In view of a certain passage in the Report of the United States Coast and Geodetic Survey, your Government was reminded in this note, at the desire of the Government of Canada, that the question of the boundary in the neighbourhood referred to was the subject of some difference of opinion, and that the actual line could only be properly determined by an International Commission.
"The Canadian Government point out that shortly after that date provision was made in the Convention of the 22nd July, 1892, for the delimitation of the boundary-line in accordance with the 'spirit and intent of the Treaties,' and an agreement was entered into that the boundary was to be considered and established as soon as practicable after the receipt of the Report of the Commissioners.
"That Report was signed on the 31st December, 1895, and laid before the Parliament of Canada and the United States' Congress early in 1896; but in the same year, before the High Contracting Parties had met to consider the boundaryline, and while the matter was still sub judice, the United States erected the storehouses on part of the 'territory adjacent,' which was the subject of the operations of the joint survey and of the diplomatic negotiations.
"The Canadian Government conceive that occupation effected under such circumstances would not, in international law, have any validity, but they are of the opinion that, nevertheless, the matter should not be allowed to pass without protest, and they have, therefore, expressed the desire that your Government should be informed of their views on the subject."
On the 16th September, 1902, the Acting Secretary of State of the United States formally acknowledged receipt of the above communication.
Summarised, the matter of these storehouses stands as follows:Wales Island is close to Tongass Island, where for some years the United States had a military post, being separated therefrom by a narrow channel.
While the whole question of the boundary was sub judice under the Treaty of 1892, the United States formally sent a revenuecutter to take possession of Wales and Pearse Islands, and did so take possession in the year 1896.
Of this action Canada knew nothing until 1901, when it was observed by an examination of the United States' chart; Canada then at once protested, and was informed:
1. That the storehouses were not shown on the United States' maps.
S. Doc. 162, 58–2, vol 3- -7
2. That the islands had been in the possession of the United States since 1867.
It thereupon transpired that although possession had been taken and reported, and the storehouses marked on one chart, the charts which followed did not show the storehouses. The accident of a Canadian official happening to see the one particular chart upon which the storehouses were marked, alone brought the incident to the attention of the Canadian Government five years after it had occurred.