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"In general the coast line follows the shore of the sea, but it crosses each inlet. The rest of the sea "-it says at the foot of the page"is the ocean; the highway or open sea; it is common to all nations and the people of all nations. Every vessel which traverses it is part of the country to which she belongs," and so forth. And then he speaks a good deal more as to the ship on the ocean being the territory of the country she belongs to, and so on, which I need not follow because it is what we all know. I think that expression "common highway of nations" has a good deal of significance in the definitions of the ocean. Nothing to my apprehension is really the ocean unless it partakes of that character, unless it is part of the ocean in that sense, or in something approaching to that sense. But here I do not wish to be understood as giving a definition which is exclusive or which might not be in some respects erroneous. It is not my own definition; it is merely an idea which I get from that writer as to what meaning, in his judgment, he would give to the term ocean." I do not understand myself how they can say here that the head of Lynn Canal is the ocean unless they assert that it is not part of their territorial waters. If it is the highway of nations, if the ocean is the highway of nations, it is perfectly plain that all nations have not got the right of going to the head of Lynn Canal for fishing and trading; they have the right of innocent passage, we all know that, but they certainly have not the right to use as they please for fishing and trading the territorial waters of other countries, and how any other nation can claim to use Lynn Inlet for that purpose, unless it is part of the ocean, is very difficult indeed to understand here.

66

Now, a great deal more could be said about that, but, having regard to the rule which I wish to lay down for myself, I do not see how I can usefully expatiate upon it. I could cite to the Court from a despatch of Mr. Blaine which is cited in our Counter-Case-in the despatch of 1900, which preceded the Behring Sea controversypossibly the President may recollect it-I would cite an expression from him in which he says that it is often found in long and protracted litigation that at the end it turns very much upon a single point, and the point that he referred to there was whether Behring Sea was part of the Pacific Ocean. That was, in point of fact, the contest over which the two nations argued and differed for a great many months. But that was the single point: was the Behring Sea part of the Pacific Ocean? Here a great deal depends upon the question, "Is the head of Lynn Canal the ocean?" Can anybody convince himself that in ordinary language--I am not speaking of the negotiations; I am not speaking for a moment of what the sense at different times may be in which the negotiators may be argued to have used it or not to have used it; I am speaking of the significance of the word as it will present itself to any ordinary Englishman of intelligence and of ordinary education. Can anyone say that he would think for a moment that the head of Lynn Inlet was the ocean? I quite agree again that the term "ocean" may be used in senses where it plainly is not intended to mean the actual ocean as it is universally understood. For example, we had Burrard's Inlet commonly spoken of as the ocean terminus of the Pacific. We all know it was the ocean terminus, but that does not mean the ocean in the sense of being ocean; it means the place where you tranship the traffic in order to

get to the ocean; in other words, you come down from the interior of the continent, and you get to some water which communicates with the ocean. I should not care if it was 5 miles up a river; still a man might speak of it in that sense as the ocean terminus of the railway that is to say, it is where you tranship into a ship, and you can get to the ocean from there.

I cannot think at this moment of any other popular and common sense in which the term "ocean" would be used. A great many things might occur to one and not occur to another, and that is the only one that occurs to me just at the moment. Therefore I say that a vast deal depends upon the single, simple question: Is the head of Lynn Canal the ocean? Now, the one thing that has pressed upon me in considering that, perhaps, more than anything else is: Supposing Lynn Canal had been 150 miles long and half the width, upon what principle, according to the arguments we have heard, would that not be the ocean still? I do not understand-I do not know where you draw the line. It might just as well have been 150 miles long, and it might have been 1 mile broad, and there may be other inlets in other countries of that character. Would it be possible for us to talk of them being the ocean? Is it more possible here? Have we any analogy of any other waters of the same character which go by the name of ocean? We all know, I believe, that the Norway fjords-I do not happen to have seen them myself are never spoken of as ocean, so I have always understood. I know that to talk of the inlets of British Columbia, which I do know, as ocean, would be simply absurd. I have been up one of them, I forgot the distance, but I think it was 60 or 70 miles, and to talk of being on the ocean there would be absurd on the face of it. As to "coast,' coast often has a local meaning. It is possible that some of my learned friends on the other side can either confirm me or set me right, but I have the strongest impression from recollection, that when I was in New Orleans a great many years ago, it was a common saying to speak of the planters who lived up the Mississippi as living up the coast. I think I heard that commonly. If it is true-I do not speak with much confidence there, for it is a great many years ago, and one is always liable to confuse or forget things, but I have the strongest impression that I heard that expression commonly used. If so, it merely shows a local application or a local use of the term 66 coast."

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Then passing from Articles III and IV for this purpose, because I may have to come back to or speak of them in connection with another matter-in connection with the character of the mountains and so on--but passing from them for a moment, at all events, for the present, do any of the other Articles in this Treaty assist us in their construction? Now, we find, as we submit, a very strong argument first on Article VII, taken by itself, and next on Article VII, taken in connection with Article I. There is no question that Article VII-I take it first by itself, and I will afterwards take it in connection with Article I-I do not know that I need read the Article to the Tribunal, for I believe we have all these things by heart, but it

says:

For the space of ten years from the signature of the present Convention, the vessels of the two Powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, all

the inland seas, the gulfs, havens, and creeks on the coast mentioned in Article III for the purpose of fishing and of trading with the natives.

Now, that is clearly on its face a reciprocal privilege; that is to say, by that Russia gives something to England, and England gives something to Russia. Now, if Russia was to own all these inlets, however deep they were, or however far they were from the ocean, in the significance which I have attached to it, it is perfectly plain that England could give her nothing, for she would have nothing to give. There has been no escape from that, and there can be no escape from it, except by saying that that mutual and reciprocal privilege applies to some other part of the coast-that it does not apply to the lisière. I am not concerned to found anything upon the fact that the United States argued in the strongest language in the Behring Sea matter that it applied to the lisière and to nothing else, while Great Britain argued that it went higher up. Great Britain was not concerned about how low it went, and Great Britain said it included the whole Behring Sea to the Arctic Ocean. I do not think you gain anything in controversy, either international or private, and least of all do think professional men gain anything, by talking of the inconsistency that their clients may have been guilty of.

The PRESIDENT. Quite right.

Mr. ROBINSON. I am not concerned about that. I think that it might have just this effect, that where the argument is spoken of by the other side as being absurd and impossible, and, if I may use the word, astounding, which I find two or three times in our learned friends' Case as descriptive of our argument. If we can find at another time that they have used any argument like it, why it deprives the Argument of the application of that epithet. I do not see much use in these epithets, for this simple reason, that if an argument requires an answer, an epithet certainly will not supply it, and if it does not require an answer, but answers itself, I do not see the use of calling it by names of that sort; it does not help or hurt the Argument one way or another; and if I was asked whether there was any difference between the Argument on the United States' side on this question and that on ours, I would only say that if they would look at that we have quoted it in our Counter-Case, in our discussion of Article VII, I think at pp. 48 to 54, we have quoted the despatchesyou will see there that Mr. Blaine almost laughed to scorn the idea that this could apply to anything but the lisière. I do not know that I ever saw stronger language used than is used there by Mr. Blaine

as applying to the despatch in which that view was advanced 447 on our part, and he says that "In the judgment of the Presi

dent the meaning of this Article is altogether plain and clear," and then he discusses certain other matters. He says that these five Articles in the British Treaty-Articles III, IV, V, VI, and VII" are expressed with an exactness of meaning which no argument can change or pervert." I do not know how you can use stronger expressions. An argument is no more sound by reason of the strength of the words in which it is expressed, but they were evidently as confident as people could be.

It is sufficient for me to accept their Argument for the present. I shall do no good by repeating it. All I can say is, there is what they argued and there is the view that they advanced, and I could not put

it in any stronger words; therefore I simply refer the Tribunal to what is said there on their part. One thing, however, is perfectly plain; it includes the lisière. I do not see how you are to get over that. I admit that if besides including the lisière it includes something else, the strength of my argument is weakened, because then you have the argument that you may apply the privileges on the one side given by Russia to England to one part of the coast, and you may apply the privilege on the other side given by England to Russia to another part of the coast, and that weakens the argument; I do not deny that; I think that does weaken the argument. If that does apply only to the lisière I submit that there is no possible answer to the argument. But if, because the Parties knew what they were talking about, they were eminently intelligent men, they thought of and discussed and negotiated over every word that they used, and every change that was made, and it is no use saying that words were used incautiously, or that stipulations were put in without being thought over. They each thought over everything that could be said about each Article before it was agreed to. The only answer the United States can make is that it applies to the territory below 54 degrees 40 minutes. It cannot apply to the territory above 60 degrees, because Great Britain leaves the coast at 60 degrees, and it is absurd to think that a mutual privilege could apply up there, where England had not anything to give on the coast; therefore it could not apply there.

But they say that it applies to the coast below 54 degrees 40 minutes. Now, our answer to that is that it is impossible to suppose that it applies to that coast for this simple reason, that the year before our Treaty was made Russia had abandoned to the United States all the coast below 54 degrees 40 minutes. She was to form no establishments below 54 degrees 40 minutes, and the United States were to form no establishments above. I have seen this Article discussed in various places. It has been said in several places that the stipulation that neither side should form establishments is not a demarcation of territory, that it is only an arrangement made for the purpose of trade. In other words, that it establishes what, in another connection, might be called a sphere of influence on either side. All I can say is that the Parties themselves did not so treat it. If you look at p. 105 of the Appendix to our Case you will see how Count Nesselrode describes it.

It never could have been intended by Russia, at all events, to apply above 59 degrees, because of her explicit declaration on this page that she never would give anything there. And while I have that before me, I would refer your Lordship to what I have not heard adverted to, but which strengthens that a great deal. That letter or despatch, as you choose to call it, of Count Nesselrode, was about the end of August, about three weeks after the passage I am now about to refer to, and which is in a letter from Sir Charles Bagot to Mr. George Canning, where he says that there were three points about which the differences were irreconcilable. The third point is as to the liberty to be given reciprocally to each Power to visit, for a term of years, the other part of the North-West Coast of America. Now, Sir Charles Bagot's remark upon that is:

As regards the third point, the Russian Plenipotentiaries declared that the coasts of North America extending from the 60th degree of north latitude to

Behring's Straits, the liberty to visit which, under certain conditions, is stipulated in the “Projet" by Great Britain, in return for a similar liberty to be given under the same conditions, to Russian subjects to visit the North American Coasts belonging to His Majesty, are, and have always been, the absolute and undisputed territory of his Imperial Majesty, and that it is not the intention of his Imperial Majesty to grant to any Power whatever for any period of time the liberty which is required.

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They could not have expressed more strongly in two letters their absolute determination to give no rights above 60 degrees. In that letter at p. 105, with regard to the Treaty of 1824, Count Nesselrode uses this language:—

We granted to the Americans

The PRESIDENT. What page, Mr. Robinson?

Mr. ROBINSON. P. 105, my Lord, of the Appendix to the British Case.

We granted to the Americans for ten years the right to fish, to hunt, and to trade with the natives of the country, and we will make the same concession in favour of the subjects of His Britannic Majesty; but it must be well understood that this concession will only comprise the space inclosed between latitude 59 degrees and the southern boundary of our territory-to wit, latitude 54 degrees 40 minutes.

This shows that Russia regarded herself as having fixed the boundary of her territory at 54 degrees 40 minutes, and therefore they had given up and abandoned all the territory below it. That is the way in which they treat it. You will also find in our Counter-Case on, I think, pp. 52 and 53, that the United States, in their Case, in the Behring Sea controversy, on p. 58, from which we quote, say :

With regard to what may be termed the territorial dispute, it appears, from an examination of the correspondence and Treaties, that the southern boundary of the Russian territories was fixed at latitude 54 degrees 40 minutes north, whereby she relinquished a large portion of the North-West Coast which she had claimed by the Ukase of 1821.

And then they cite that letter, which I have already read to your Lordship, from Count Nesselrode, of 4th September, 1824. Therefore, it would seem, at all events, that both Russia and the United States speak of this provision, that neither Party should form establishments on either side of a definite line, as a relinquishment of territory, and it was practically a relinquishment of territory beyond all doubt. Russia has never claimed below that since, nor the United States above, and I suppose that that term was used for this simple reason, that the only object or purpose for which that territory could be used was for the purpose of forming trading establishments, and when either Party abandoned a right to form trading establishments she practicaly, in that part of the world, abandoned the country. That is the explanation I give to it; at least, the explanation in my own mind why that term was used. They gave up the country, I should suppose, in the same way as people interested in a very large grazing country not fit for anything else, and not likely to be, might say that one Party will not pasture north of a certain line, while the other Party will not pasture south of it, which would mean practically that the one Party gives up the territory north of the line and says to the other Party, You give it up south of the line. There is no other purpose for which the territory could be of use to either of them.