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TWELFTH DAY.-TUESDAY, SEPTEMBER 29, 1903.

All the Members of the Tribunal were present.

Mr. ROBINSON. I wish to recur for a moment to these Articles VII and VII and I taken together, to which we attach a great deal of importance, and which it is possible-in fact, I think more than possible that I have not explained as fully as I desired to do in argument. Taking VII by itself first, I submit, on consideration, that it is very difficult indeed to sustain the only contention that I am aware of put forward by the United States. That contention I referred toI think it is at p. 94 of their Argument—and therefore you will see exactly what it is, and, as I understand their contention, it is that this Article VII applies below 54 degrees 40 minutes, and only below 54 degrees 40 minutes, so far as the reciprocal stipulation is concerned by which England gives to Russia certain privileges. I have not forgotten the suggestion of the learned President, but, owing to circumstances they are aware of, I have not had the opportunity of discussing that with the Solicitor-General, and if you will allow me I hope to do that and ask that he will present any view that we may jointly agree upon.

Now, take Article VII alone; it is not the contention, of course, of the United States that these two provisions-I mean the reciprocal provisions, giving the privileges by both-it is not their contention, of course, that both of these stipulations apply to the lisière. If it does, I do not care where else it applies. That is all we care for. Their contention is, and must be, that by extending it to the 54 degrees 40 minutes they get this advantage. They say, "Oh, that Article is explained in this way: the privilege which Russia gives to England applies to the lisière above 54 degrees 40 minutes, but the privilege which England gives to Russia applies below 54 degrees 40 minutes," where they say it has a proper application. She says England may very properly have given certain privileges to Russia.

Now, in the first place, I submit that the reciprocal privilege is a very natural privilege, and a very probable privilege, in our view at ties had the map before them, which showed that the lisière involved all events, to have been assented to with regard to the lisière. The parvarious inlets, which ran back many miles from the ocean. It is said to be 70 miles, and I suppose they knew it ran back very far. Now, if it was understood between them that the line was to be drawn as we have contended for from the ocean, 10 marine leagues from the ocean, it was the most natural thing in the world. They were negotiating over this privilege referred to in Article VII for a long time, you will see by the negotiations, and it was a very natural thing for Russia to have said, "Well, there are certain inlets and some of them may run through the lisière and beyond it into our territory. If you want us to give you the privilege of trading and fishing without

restriction in our part, give us the same privilege in your part; and there is no difficulty in accounting for it if that was the view.

Now, let us see if it is possible to apply that with any probability or reason below 54 degrees 40 minutes. In the first place below 54 degrees 40 minutes Russia had already got the right from the United States for ten years, and it seems almost incredible that she should have troubled also about getting it from Great Britain or thought of getting it from Great Britain; she had secured it down there by her Treaty with the United States for ten years. The only possible advantage she got by getting it from England-advantages I may say because you may suggest two, you may suggest it was intended to last a year longer with England, but I have said as to that I do not believe the United States would have tolerated it for a moment after the privilege under their Treaty ceased.

470 It was known that this territory below 54 degrees 40 minutes was in dispute between Great Britain and the United States, and it is just possible Russia may have thought, "Great Britain may get some territory there, and we had better secure this privilege in advance in case that should happen." Now, can anybody conceive that those are reasonable probabilities to have entered into the minds of those Contracting Parties? I venture to submit that they are not.

Then with regard to Article I, suggestions were made to me, and I have looked at that Article again for the purpose of meeting them as far as I can. You know what Article I says? It says:

It is agreed that the respective subjects of the High Contracting Parties shall not be troubled or molested in any part of the ocean, commonly called the Pacific Ocean, either in navigating the same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the following Articles.

In the first place, would it have occurred to anybody that a privilege given to be exercised in any part of the Pacific Ocean, that is to say, to navigate and fish in any part of the Pacific Ocean, and to land upon the coast at unoccupied places, was ever intended to apply to anything but the Pacific Ocean, that it ever could have been intended to give a privilege extending into the territorial waters of the Power which owned the coast? I do not think any lawyer, or any ordinary person, would think that for a moment. I do not believe it would have suggested itself. The trade in the Pacific Ocean means the Pacific Ocean, and to land at unoccupied places on the coast means to land at unoccupied places on the coast of the Pacific Ocean.

Then, if that was its natural meaning, is there anything in the other Articles to affect it? The second is:

In order to prevent the right of navigating and fishing, exercised upon the ocean by the subjects of the High Contracting Parties, from becoming the pretext for an illicit commerce, it is agreed that the subjects of His Britannic Majesty shall not land at any place where there may be a Russian establishment without the permission of the Governor or Commandant; and, on the other hand, that Russian subjects shall not land, without permission, at any British establishment on the North-West Coast.

Does that not clearly apply, and is it not clearly confined, to the coast where they have the privilege of navigating and fishing, and how does that affect the application of the first Article in any way

at all? The first one says you may land at unoccupied places; and they say in the second, in effect, we know that both sides have establishments here, we know that the practice has been to pursue this illicit traffic in spirits and firearms and so forth, and we do not want that to be carried on. Therefore, let is keep clear of each other's establishments. I am not able to say how that affects the thing. Then we have Articles III and IV, which are not of importance on this question. We have Article V, which I have spoken of, and which is perfectly superfluous in this Treaty. Then we have Article VI, and then we come to Article VII. Now, Article VII says that it is understood that for a space of ten years, and so on-I need not read that all again:—

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, under the restrictions and conditions specified in the following Articles.

Now, can anybody say that that is a restriction on Article I, because I shall revert to these words particularly in that Article-" under the restrictions and conditions specified in the following Articles." Can anybody contend that that is a restriction on the privilege given by

Article I? It could only be so if Article I went up through 471 all the territorial waters, through all the territorial waters,

which, I venture to think, in the absence of Article VII, Russia would most peremptorily have objected to; but the best proof that it was not intended as a restriction is Mr. Middleton's own statement in writing. In reporting all his negotiations and the result of them to Mr. Adams, he spoke of this as an extension of the general privilege embraced by the preceding Articles. I am bound to say that I do not think Mr. Middleton explains very clearly exactly what additional privileges he got, but he did get to my apprehension very clear additional privileges; he got these additional privileges, if we are right in our construction of the word "ocean,"-all the right he would have had in the inlets would have been first the right of innocent passage; and then as Mr. Middleton asserts, and as I rather think I speak subject to correction-is a tolerably well settled principle of international law, that on unoccupied coasts all nations have a right of going. They would have had the right of innocent passage, they would have had the right of trading in these inlets so long as they were absolutely unoccupied, but they would have been liable to have been put an end to by the formation of Russian establishments or the existence of Russians there; and as we know in the circumstances of this case, the Russian-American Company would have been very soon there, and they would have prevented it. Now, that is all I desire to repeat on those two Articles.

I have forgotten to speak-it has been spoken of often enough, but I have made a memorandum as to the evolution of the term "ocean," and it is so short that, though made for my own information, I thought I would call the attention of the Tribunal to it. Now, this line-I mean the alternative line-is to be adopted when the mountains are found at a distance of 10 marine leagues from the ocean. First, it First, it says, "from the sea towards the interior, at whatever distance the aforesaid mountains may be "; that is at p. 87 of the British Appendix to their Case. Next it says that

it is to be done when it is "10 marine leagues from the Pacifick "; that is at p. 116. The next is that it is to be adopted when it is that distance from the Pacifick Sea "; that is p. 122. The next is (p. 128) when the mountains are at that distance "from the sea," leaving out Pacific. Then it ends in the Treaty by saying it is to be adopted when they are that distance from the ocean.

There are two inferences you may draw from that, I think. Most writers that I have seen draw the conclusion that each one of those terms was changed deliberately and intentionally. Well, that may be. There is one thing perfectly certain, that when they were changed if either side had believed or if the Russians had believed that there was any material change they would have objected to it; but it may be suggested also that the Parties knew from the beginning that they meant the ocean, and did not care really whether they called it the Pacific, the Pacific Sea, or anything else not differing from what we call the ocean.

Now then, with regard to the definition " ocean,' my learned friends have insisted at different times that if we are going to define the term "ocean" that generally includes the outside edge of the islands. I admit that, I think in common language if there is nothing to qualify it that that would be so, but in this case there was an archipelago of islands, and it would be unfair on our part to attempt to include it here, as my learned friend Mr. Watson has expressly stated at p. 350, and as is an unquestionable fact. He

says:

Owing, then, to the contiguity of the islands to the mainland, Russia not only had, by reason of her ownership of these islands-and the Tribunal will remember that while Sir Charles Bagot at one time desired to possess part of these islands

I recollect the sentence very well. That is a long time back

As well as Mr. George Canning did, it never was a serious question by Great Britain that they were entitled to have them. That claim was given up; and, therefore, as Russia was admitted to be the owner of this Alaskan group, it was absolutely necessary for Russia, in order to maintain her ownership there with credit and with profit to herself, that she should not only own the islands, but that she should own the adjacent shore, and that she should control whoever it was that was located on the adjacent shore in any way near to these islands.

472

We all know that that is no admission-I mean it is an unquestionable fact. The whole basis of this Treaty, upon which it proceeded, was that Russia owned these islands, and she was intended to own them, and therefore I think we have to adapt our definition of terms to that acknowledged and admitted fact on both sides.

The only other thing I wanted to note was that with regard to 54 degrees 40 minutes. I omitted to say that perhaps the strongest proof that it was not intended to adopt that as the line is the fact that that line is a purely imaginary one; it is a line across the high seas. I have looked at the map; there is no land 25 miles to the westward, and there is no land within 60 miles in the other direction from the starting point. It is of no earthly importance. No nation could protect or preserve that line.

Then I find that Russia-when she explains what she owns in the Hudson's Bay lease, says her boundary is 54 degrees 40 minutes, or thereabouts. That shows that she never thought it was intended to

be 54 degrees 40 minutes accurately. I think, further, that my learned friend, Mr. Watson, was compelled practically to give up that point when he said it really does not make any difference; you have to get to 54 degrees 40 minutes when you start, and yet on the other side you are not a bit better off with regard to the claim as to the Portland Channel, it still must go to the right Portland Channel. If it does, it makes no difference to either party; so much, then, for that.

I return to what I was speaking of with regard to the question of barrier. The Tribunal knows exactly the construction we have always put upon it. The only thing they sought, the only thing they required, the only thing they intended to stipulate for, was simply that our establishments should not come too close to theirs.

Anyone can understand that it would never do for them, if they had an establishment for trading on the island, to let us have an establishment on the mainland opposite, because the Indians coming down might stop to trade with us instead of going on to trade with them, and we might intercept them all, and I think the passage I have called attention to-where the term "vicinity" is used-shows this. Sir Charles Bagot in another place said that he had offered them the possession of all the islands and the waters in their vicinity, and that I understand to be waters in the vicinity of the chain of islands. Then they say, in the letter to Admiral Mordvinof (United States' Case, Appendix, p. 166) :–

Only one expedient presents itself, to establish, at some distance from the coast, a frontier line, which shall not be infringed by our establishments and trappers, as also by the hunters of the Hudson's Bay Company.

Both sides, he adds, equally recognize the necessity of this measure. Now what was that measure, if it was not just what I say? And he says:

The width of the coast line necessary for the safe existence and consolidation of our Colonies still form subjects of negotiation.

And

*

The extent of the country between the coast and this frontier must correspond with the condition to what these establishments will, in all probability, in time attain, and by their means of own defence.

Now, the United States say that this plainly shows the purpose of the Russians to have been to create for their own protection a land barrier along the entire front of the continent. I submit that it is susceptible of no such interpretation at all, and for two simple reasons. What is the object of saying this lisière should not be broken by inlets when it is broken by rivers. They did not profess to keep the lisière unbroken, so that we could not get to the sea through it. On the contrary, Russia has expressly given us the right to get to the sea by the rivers, and in three or four sentences your Lordships know she almost thrust it upon us. Remember, they said, we are always offering you this. We do not want to keep you away from the sea. You shall have the free navigation of all these rivers. Then you must remember also—and I shall be glad to give the Tribunal that case that a river is an arm of the sea. We have the authority of Mr. Justice Story for

that in a Massachusetts case which I have somewhere, and I 473 will give it before I stop. It is naturally an arm of the sea

why should not it be? It is water up which the sea flows possibly for 100 miles, and in that sense, as Mr. Justice Story says, a