may be best stated precisely in the terms of Article IV of the American Convention.

On p. 223 Mr. Stratford Canning says:

The line of demarcation along the strip of land on the North-West Coast of America assigned to Russia is laid down in the Convention agreeably to your directions, notwithstanding some difficulties raised on this point, as well as on that which regards the order of the Articles by the Russian Plenipotentiaries.

Now, this is Mr. Stratford Canning to Mr. George Canning. So after Mr. Canning prepared his draft, in which the reciprocal rights were limited outside of the lisière, and the Treaty with the United States became significant, he expressed it that he was willing to acquire exactly the same reciprocal rights in the Russian territory that the United States had acquired.

Now, it was very plain that under the Treaty as he drew it, and under the last draft as we see it in the negotiations, these reciprocal rights were not secured at all; and in order to place Great Britain exactly upon a parity with the United States that word "côte" was necessarily introduced into the first part of Article III. Otherwise what Mr. Canning said in regard to obtaining the same rights as the United States had obtained would have been entirely nugatory. That is a plain explanation why that word "côte " was introduced into the last draft of the Treaty.

Without introducing that word into the last draft of the Treaty, what would have been the result? Instead of Great Britain getting in these territorial waters of Russia, or the waters lying north of 54 degrees 40 minutes, the same rights that the United States thought it was getting, Great Britain would have absolutely acquired the ownership of the heads of the inlets, and the United States would have been excluded; and instead of standing upon an equal footing with the United States, unless that word had been introduced so as to conform to the purpose that they had expressed, Great Britain would have been excluding the United States, which certainly was not the intent and purpose, as had been plainly expressed by everything bearing upon this subject.

Now, take the Canning draft, British Case Appendix, p. 116, and take Article V as it stands. It reads:

It is nevertheless understood that, 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, the inland sea, the gulfs, havens, and creeks on the coast mentioned in Article III, for the purpose of fishery and of commerce with the natives of the country.

66

Now, turning to Article III, there is no mention there in the initial sentence of any coast upon the continent." The only coast mentioned in the Article is that of the lisière. If the Treaty had been signed in that way, it is very clear that Great Britain would not have got the same rights that the United States got, for these rights extended to the whole north-west coast. It would have gotten superior rights in the lisière if there was reciprocity-for reciprocity is predicated on Great Britain acquiring by the Treaty parts of the coasts. The language of Article VII of the Treaty was taken out almost verbatim from the Treaty of 1824 between Russia and the United States, and for the purpose solely of putting those two countries upon a parity in respect of Russia.

729

Let us now consider the difference between Article I of the Treaty as signed and Article VII. Article I of the Treaty as signed, I submit, was intended to withdraw the effect of the claim that had been made under the Ukase of 1821, and simply to put the rights of the parties where they would have been but for that declaration made by Russia.

It was the form and manner in which it was agreed that that withdrawal by Russia should be expressed. No reference whatever was made to the Ukase; but it was considered that that was the pivotal point upon which the Treaty first turned; and Mr. Canning thought so much of that feature of it that he insisted that it should be put in the front of the Treaty.

Article VII gives in respect of the entire coast a different right form that which was given in Article I. Article I withdraws the inhibition as to navigation. That is intended, of course, to withdraw the claim of Russia as to the 100 Italian miles. It allows the right of landing where there are no establishments; but when you come to consider Article VII, an additional right is given a cumulative right for ten years-and that was that the parties might land, even where there were establishments, during ten years. So there was an additional reason for the existence of Article VII. Now, this distinction is manifest, and that the rights that were granted by Article I and Article VII are distinct is quite apparent. There is another distinction that is pointed out between the Articles of this Treaty, which was called attention to by Lord Salisbury in his correspondence with Mr. Blaine, and it appears upon the 50th page of the British CounterCase. In a letter to Sir Julian Pauncefote, of the 2nd August, 1890, he says:

I must further dissent from his interpretation of Article VII of the latter Treaty. That Article gives to the vessels of the two Powers "liberty to frequent all the inland seas, gulfs, havens, and creeks on the coast mentioned in Article III, for the purpose of fishing and of trading with the natives." The expression "coast mentioned in Article III" can only refer to the first words of the Article.

Exactly the position and view that we take now.

The line of demarcation between the possessions of the High Contracting Parties upon the coast of the continent and islands of America to the northwest shall be drawn, and so forth.

That is to say, it included:

* * * all the possessions of the two powers on the North-West Coast of America. For there would have been no sense whatever in stipulating that Russian vessels should have freedom of access to the small portion of coast which, by a later part of the Article, is to belong to Russia.

This shows distinctly that his interpretation of the Treaty was at that time that all of the coast along the lisière was to go to Russia; and that inasmuch as it went to Russia there would be no point in confining the reciprocal rights to the small portion of coast along the lisière.

He continues:—

And as bearing on this point it will be noticed that Article VI, which has a more restricted bearing, speaks only of "the subjects of His Britannic Majesty," and of "the line of coast described in Article III."

730

Now, if you turn to Article VI:

It is understood that the subjects of His Britannic Majesty, from whatever quarter they may arrive, whether from the ocean or from the interior of the continent, shall for ever enjoy the right of navigating freely, and without any hindrance whatever, all the rivers and streams which in their course towards the Pacific Ocean may cross the line of demarcation upon the line of coast described in Article III of the present Convention.

That refers to the lisière; and when you come to Article VII, it does not speak of the coast described in Article III; but it uses the more general term which is applicable to the first sentence of Article III, and says "on the coast mentioned in Article III"-drawing a distinction between the terms "described " and " mentioned."

The initial sentence of Article III mentions the North-West Coast of America, but the next paragraph specifically describes the coast of the lisière.

Now, reference has been made, in the discussion of this Article, to the controversy in the Fur-seal Case.

As I understand, the position assumed by the United States in that Case was that the Pacific Ocean did not include Behring Sea, and the contrary position was assumed by Great Britain.

Of course, none of the lawyers who discussed that case had in mind the particular questions that we have under discussion here. Nevertheless, in enforcing their arguments as to whether or not Behring Sea was included in the Pacific Ocean, they did deal with and analyse and give application to Article VII. There is this much to be said about that argument. Of course, I do not claim that any one is estopped by any views that may have been advanced at that time, or that persons who may have acquired maturer age would not differ from the notions that had prevailed at an earlier time.

Indeed, I know that that quite often occurs. I recall a case that was being tried in the Supreme Court of Tennessee. Judge Hayward, who was the Chief Justice of Tennessee, had been in earlier days the Chief Justice of North Carolina, Tennessee having been a part of the territorial possessions of North Carolina. In the course of the argument a lawyer stated a principle, and the Judge asked him if he had any authority to sustain it. He said he had the authority of a very eminent judge--Judge Hayward, of North Carolina. "Yes," he said, "I knew Judge Hayward, of North Carolina very well. He went upon the Bench when he was a very young man, and made a great many mistakes, and Judge Hayward, of Tennessee, overrules Judge Hayward, of North Carolina."

But these arguments-I am not going to read or cite in full, but I desire to make some references to the arguments made by Sir Charles Russell are in themselves of so much force and so much intrinsic worth that I feel, inasmuch as the question has been discussed by the Counsel on the other side, that I am justified at least in calling the attention of the Tribunal to the views advanced by Sir Charles Russell. He says (p. 128, Vol. XIII) :—

It will save me a good deal of repetition and argument if the Tribunal will bear in mind that the whole of the discussion in which I am now embarking will be addressed not merely to showing that the right of fishing was recognized in the Behring Sea, but also to showing that the phrase "North-West Coast of America" had not the limited meaning in the Treaties and in the correspondence which my learned friend Mr. Carter assigned to it, but extended to the

whole of the coast line of the possessions claimed by Russia, from Behring Strait down to its most southern boundary.

And, again, he said (p. 129) :—

I now point out what these four constructions were. In the despatch to Sir Julian Pauncefote of the 30th June, 1890, Mr. Blaine examined the Treaties of 1824 and 1825, and says it is plain that they both limited the "North-West Coast" to the coast between the 50th and 60th degrees of north latitude.

On the 17th December, 1890, he again writes, and discusses the meaning of "Pacific Ocean" and "the North-West Coast"; and he observes in that letter that the dispute as to the meaning of "Pacific Ocean" prominently involves the meaning of "the North-West Coast"; and, in that letter, he contends that "the North-West Coast" means the coast from the 42nd to the 60th degrees of north latitude.

731

I observe, in passing, that neither of those contentions has been thought worth inserting in the United States' Case or Counter-Case. A third construction suggested is that it is identical with the lisière. The fourth construction is put forward in the United States' Case at p. 26, where they say that the term 'North-West Coast" is intended to designate the coast between Prince William's Sound and the mouth of the Columbia River.

66

And on p. 130:—

Again, the Tribunal will see that the whole line of that coast is indicated by the general description of Russian assertion of dominion. On the western side of the Behring Sea, and on the coast of Siberia, from Behring Straits along the coast down to 45 degrees 50 minutes of latitude; on the American side, from Behring Straits to 51 degrees of northern latitude, described as the "North-West Coast of America."

And on p. 142 he says:—

There it is stated, without any qualification whatever; and this is written, as I say, six days after the Treaty; it extends, without any qualification, the whole way up; and the importance of Article IV is that it gives a temporary advantage to the United States, that is to say, it gives to United States' subjects rights of access to interior seas, to gulfs, to harbours, and to creeks, all of which, or the greater part of which, would be in strictly territorial waters; and, therefore, to which, upon the general rule of international law, the United States would not have any right to access at all.

And there is one more reference, p. 167:

Therefore, under that Article, there is for a limited period of time a right given (even as to waters which would be, according to law, territorial waters) of user of such waters, and that extends along the whole of the coast mentioned in Article III.

I merely submit these views to the consideration of the Tribunal. There is this to be said about that decision: the contest as to whether or not Behring Sea was part of the Pacific Ocean was the issue that was passed upon. In presenting that issue these conflicting views were regarded as of vital importance by the respective contestants, and whatever the decision may be worth, at any rate the issue was found against the United States, and it does seem that if they lost their contention they ought to have some benefit of the opposing argument which defeated them in their contention; and so if there was anything whatever in this question which has been referred to by the other side in oral argument, the weight of it, whatever it was worth, would be in favour of the contention of the United States.

I come now to the consideration of the fifth question, which involves probably more difficult points of discussion than any other phase of the Treaty. This question as I understand is in substance whether or not, looking to the Treaty alone, or looking to the Treaty read in the light of the negotiations, and in the light of the interpretation

if there was any interpretation put upon it by the Parties-it indicates that it was the understanding of the Parties, and the meaning of the Treaty of 1825, that there should remain in the exclusive possession of Russia a continuous fringe or strip of coast on the mainland separating the British possessions from the possessions of Russia.

Upon the question of interpretation, who are the Parties? That is manifest from the language of the Treaty under which you are acting. The Parties meant are Russia, Great Britain, and the United States, because it is required that both Treaties shall be taken into consideration-the Treaty of 1825 and the Treaty of 1867-and the Parties to those Treaties are Russia and Great Britain in respect of the first,

and Russia and the United States in respect of the second. So 732 it is important, in looking to the question of interpretation

and intent, to find out what all three of the Parties understood. If I shall be able to show that they had a concurrent view upon this subject, of course it makes the case that much stronger; but if I shall be able to show that at least there was a concurrent view between Russia and Great Britain which gave an interpretation which was in effect at the time the United States bought, then the United States would succeed to the rights of Russia under that interpretation. I do not mean by way of estoppel, and I do not mean to predicate anything upon that or upon the doctrine of prescription, or upon the doctrine of acquiescence, so far as acquiescence may set up an adverse claim. I do not consider that any of these questions are presented to the Tribunal; and the only point upon which I shall insist upon acquiescence is that acquiescence may be looked to as indicating an understanding and an interpretation. If something has been done by one party, and the probabilities are that it is known to the other party, who stands by and makes no objection, the Tribunal may look to such acts to see whether or not any indication was given of the understanding of the party who remained silent, and to that extent-and to that extent only-I insist upon the doctrine of acquiescence.

The determination of the fifth question has nothing to do with the 10-marine-league limit. The fifth question may be answered without any reference to and entirely disassociated from the question of how long the radius shall be.

The PRESIDENT. I think it is independent of it. It really is the construction of Article III of the Treaty without reference to Article IV. Mr. DICKINSON. Yes; I was merely saying that in discussing this question I proposed to disassociate it altogether from any discussion of

The PRESIDENT. I quite agree with you, Mr. Dickinson; it was only to show that I followed upon that that I ventured to make that observation.

Mr. DICKINSON. It is also entirely disassociated from the location. of the line. The fifth question may be answered and may be answered independently of any of the considerations that may be given by the Tribunal to the question of the location of that line because that may be dependent upon the question of mountains or no mountains, which is entirely separate and apart from the consideration of the fifth question.

Now, as I understand the fifth question it is purely one of relevancy to "coast." And it must be answered from that standpoint alone.