The Boundary Tribunal Appointed

It was made up of three members appointed by each Government.

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 Tribunal decided that, under the treaty, the United States was entitled to a continuous strip of territory which extended around the heads of all the inlets, thus excluding all contact of British territory with the sea from Portland Canal north to Mt. St. Elias. It also fixed the eastern or interior boundary line at designated mountain peaks to conform to this decision. While this interior line did not extend ten leagues from the ocean (the distance put forward in the case of the United States), it was a substantial acceptance of the most material claim of this country, and the result has been so regarded on both sides.

Much time was consumed and learned argument applied to the meaning of the terms of the treaty, “the crest of the mountains,” the “ocean,” “the coast,” “sinuosities of the coast,” etc., which cannot be followed in the time at my command, but the foregoing is, I trust, a sufficient exposition to enable those not already informed to understand the two principal points at issue and how they were settled.

I turn now to a consideration of the composition, the preliminary work, and the proceedings of the Tribunal. It has already been stated that it was made up of three members appointed by each Government. The treaty creating the Tribunal required that its members should be “impartial jurists of repute, who shall consider judicially the questions sub mitted to them, each of whom shall first subscribe an oath that he will impartially consider the arguments and evidence presented to the Tribunal and will decide thereupon according to his true judgment.”

The President nominated on his part Elihu Root, of New York, Secretary of War; Henry Cabot Lodge, Senator of the United States from Massachusetts, and George Turner, late Senator of the United States from the State of Washington. Since the dissolution of the Tribunal it has been disclosed that the Canadian Government complained to the British Colonial Office that the members nominated by the President of the United States were not such persons as were contemplated by the treaty, to wit, “impartial jurists of repute”; but it does not appear that the British Government regarded this complaint of such a serious character as to bring it to the attention of the President. It was alleged that one of the American members had expressed himself publicly, sometime previous to his appointment, as strongly convinced of the justice of the claim of his Government. It was also objected that no one of the three was taken from judicial life, and that they all might be considered as political, rather than legal, representatives of their country.

Whatever appropriateness there may have been in the objections urged by Canada, the sequel showed that the selection of the President was entirely fitting. It would be difficult to name three men in the United States with greater experience in and knowledge of public affairs, with better trained minds for the work they had to do, and who possessed in a greater degree the confidence of their countrymen. It will doubtless be gratifying to you to state that they acquitted themselves in their delicate positions with entire credit to their country, without a word of criticism of their conduct, so far as I am aware, in either official or social circles of the British capital, and, without indulging in invidious comparisons, it may be said that they displayed a judicial temperament at least equal to their Canadian colleagues, and were as susceptible to the arguments of opposing counsel. On one of the points strongly contended for by the United States, that of Portland Channel, they decided against their own Government, an example which seems to have had no effect on their Canadian associates.

Even in the United States some press criticism has been passed upon the action of the President in this matter, and it has been asserted that he should have named judges of the United States Supreme Court or other high judicatory for the positions. It is due to the President to state that he offered the appointment to one of the justices of the Supreme Court, and that the latter declined, as it is understood, on the ground that he did not regard the post as in the proper line of his duties, and that it was not just to his associates to accept a position which would impose additional labor upon them. A second justice was then approached with a like result. There seems to be a growing sentiment in this country that the members of our highest court should not be called upon to discharge functions of a semi-political character, such as those relating to boundary disputes, nor that they should be burdened with additional duties when their labors are already sufficiently onerous. A similar view has been expressed by some of the British press, since the decision of the Tribunal, to the effect that the Lord Chief Justice of England should not have been placed in the embarrassing position of having to pass judgment against his country upon a question so greatly political, and which has consequently exposed him to bitter criticism.

The British Government named as members of the Tribunal Baron Alverstone, Lord Chief Justice of England; Sir Louis A. Jette, Lieutenant-Governor of Quebec, and John D. Armour, Judge of the Supreme Court of Canada. Judge Armour died soon after his appointment, and the vacancy was filled by A. B. Aylesworth, Esq., a prominent member of the bar of Toronto.

The duty of the Tribunal was prescribed to be to render a decision which was to be made up of answers to seven questions specifically set forth in the treaty. Experience has shown that the work of courts of arbitration and international com missions is not infrequently nullified or impaired by their members exceeding their powers in rendering their decision, or by departure from the terms of reference. All error in that direction was avoided in this instance by the careful manner in which the points at issue were set forth in the treaty.

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

More information here and here, and below.

We want to take this site to the next level but we need money to do that. Please contribute directly by signing up at https://www.patreon.com/history