Alaska Boundary Commission’s Preliminary Proceedings

During the entire sessions of the Tribunal the utmost good feeling and courtesy prevailed.

Continuing The Alaskan Boundary Settlement,
with a selection from Lecture by John W. Foster. This selection is presented in 5.5 easy 5 minute installments. For works benefiting from the latest research see the “More information” section at the bottom of these pages.

Previously in The Alaskan Boundary Settlement.

Time: 1903
Place: Border Between Alaska and Canada

The Case of each of the two parties was required to be prepared and delivered to the opposite party within two months from the date of the exchange of ratifications of the treaty, which occurred March 3, 1903. This was a short time in which to do such an important work; but, as the matter had already been the subject of much discussion and research, it was practicable to accomplish it in the period fixed. The Case for each Government consisted of a statement of its views and contentions on the seven questions submitted to the Tribunal, accompanied by the documents, the official correspondence, and all other evidence in writing or in print upon which it relied. The Case of the United States, with the appendices, constituted a quarto volume of about 650 pages and an atlas of maps, and the British Case was of approximately the same length and character.

After receipt by each Government of the Case of the other, a Counter-case in reply thereto was to be prepared and delivered within a like period of two months. Upon receipt of the American Case the British agent asked for an extension of two months, stating that it would be impossible to prepare a Counter-case for Great Britain within the period fixed by the treaty. Our Government declined to agree to this extension of time on the ground that the reasons contemplated by the treaty had not been alleged and did not exist. The Counter-cases were accordingly exchanged within the period fixed therefor.

The third step in the preliminary proceedings was the preparation by counsel of a printed Argument, based upon the Case and Counter-case, and this also was to be prepared and delivered within two months after receipt of the Counter- case. This delivery was effected on September 2, and on the 3rd of that month the Tribunal held its first meeting in London.

A noticeable feature of the London Tribunal was the marked contrast in the manner of argument or delivery between the British and American lawyers. The former were very deliberate in speech, rarely raising the voice, accentuating words, or using gestures; they sought to impress the court by their careful presentation of the facts and the cogency of their reasoning. This method was doubtless very effective, but when it extended in the person of one advocate through six or seven days it became somewhat tedious. On the other hand, the American counsel were vigorous in speech, frequent in emphasis, and somewhat active in gesture. They did not hesitate to indulge in a witticism to impress a point, and sometimes even ventured upon an amusing anecdote to illustrate their argument, which seemed to be welcomed by the court and enjoyed by the opposing counsel.

It is gratifying to note that during the entire sessions of the Tribunal the utmost good feeling and courtesy prevailed, not a single untoward incident occurring to mar the harmony of the proceedings.

The oral argument was closed on October 8, after which the Tribunal went into secret session. On October 20 its decision was delivered to the two agents representing their respective Governments. As the treaty which provided for the adjudication and created the Tribunal did not go into effect till March 3, 1903, the entire proceedings occupied less than eight months, which constitutes an instance of promptness in international adjudication of magnitude and gravity almost without parallel.

As I have already given the substantial results of the decision, it is hardly necessary to repeat or elaborate them. The engrossed decision or award in duplicate was signed by Lord Alverstone and the three American members. The decision was accompanied by a series of five maps indicating thereon the boundary as set forth in the decision. These maps were attested by the signature of all the six members of the Tribunal.

The two Canadian members have been criticized, too severely, I think, for their action in refusing to sign the decision. They might find their defense in the language of the treaty itself, which says:

The decision shall be signed by the members of the Tribunal assenting to the same.”

They also might cite distinguished precedents for their conduct. The Lord Chief Justice of England, Sir Alexander Cockburn, who represented Great Britain on the arbitration tribunal at Geneva which adjusted the Alabama claims, not only refused to sign the award, but accompanied it with a vigorous protest and rather unseemly conduct. A similar precedent is to be found in the Halifax fisheries arbitration of 1877, when the American member not only refused to sign the award, but questioned its validity. A better practice was observed in the Fur Seal arbitration at Paris in 1893. The two American members, Justice Harlan and Senator Morgan, were outvoted on almost every one of the six points submitted to the Tribunal; but, without withdrawing their votes, they cheerfully united with their colleagues in signing the award.

The two Canadian members of the London Tribunal did, however, incur more deserved criticism in their action in giving to the press, on the same day the decision was announced, a carefully prepared interview, in which they declared that the decision was not judicial in its character, the plain inference from which was that the majority members of the court had been influenced by improper motives, as the treaty required that they should determine ” judicially ” the questions sub mitted to them. They further gave it to be understood that their British colleague, after agreeing with them in their position as to Portland Channel, changed his attitude and voted with the American members; and they added that there is “no process of reasoning whereby the line thus decided upon by the Tribunal can be justified.” It is hardly necessary for me to accentuate the impropriety of judges arraigning in the public press their colleagues on the bench for improper motives and inconsistent conduct. Lord Alverstone has said, referring to this matter, that he declined to justify or explain his conduct, because such a course would be a death-blow to the confidence reposed in the British bench. He needs no vindication. No living man has had greater experience in international adjudications, and no one has done more to preserve peace and good will between the two English-speaking nations.

John W. Foster begins here. F. C. Wade begins here. Goldwin Smith begins here.

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