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MINUTES OF THE PROCEEDINGS OF THE ALASKAN BOUNDARY TRIBUNAL
Mr. ROBINSON. I do not suppose the Tribunal will require any avowal from me to understand and appreciate the fact that I find myself in a great deal of difficulty and embarrassment in endeavouring to discharge the duty which has been assigned to me in this discussion. I have heard a good deal and read a good deal in 442 the course of this Case about appropriated and unappropriated territory, but what I have been looking for much more anxiously is something in the shape of unappropriated argument, and I regret very much to say that my search has been very eminently unsuccessful. This Case has been presented most fully and most exhaustively, without the omission, I believe, of a single detail which can become of importance, on the part of Great Britain, by the learned Attorney-General. I am asked by one who is entitled to speak for Canada to say, what I could not say without presumption as the expression of my own opinion, that it has also been presented most satisfactorily in every aspect from the Canadian point of view. Now, under these circumstances it seems to me that at least there are two things which I ought to bear in mind. In the first place I ought to be careful not to be unduly long, and in the next place it appears to me clear that it could serve no good purpose, and, therefore, that it would be without any sufficient justification, if I were to attempt again to go over the argument so far as it depends to any extent upon the examination and inspection of maps, or upon the reading in detail of the various negotiations which have preceded this Treaty. I think I have heard almost every letter in those negotiations read twice, and if I content myself by alluding where I find it necessary to two or three of them, I shall do all that could be of any use to the Tribunal.
Now, it is perfectly true that this Case, having assumed an international character, has attracted to it, as such cases always do, a vast deal of material, and has been treated with a vast deal more elaboration than it ever could have been under other circumstances. Nevertheless, it is a kind of Case which might have arisen between two individuals or between two corporations, and might have come up before an ordinary Court in a much more simple manner. It appears to me, if I can be of use at all in any way, that the best way in which I can hope to effect that object is by treating it as if it were a matter of that character, because if it had so come up, and if it had been so considered and so determined, there would still have been presented, whatever the tribunal might have been, all the important
and salient points, or at all events those which are of the greatest importance, on either side of the Case; and they would have had the advantage of being to a certain extent severed from the mass of matter which has grown up about them, and which does not by any means always clear the atmosphere.
What I propose to do, therefore, is to treat the Case in that way; and treating it in that way, though it is impossible for me to avoid repeating the learned Attorney-General, at least I ought to try and avoid repeating myself. I should like, therefore, to take this Case up in the present instance by asking, what does this Treaty mean?taking this Treaty on its words only and for the present without reference to the negotiations, which I shall come to afterwards. Let us then take this Treaty by itself, and let us suppose that we are within a year or two after it has been made, and that it had been the result of no protocols or of nothing in writing, but had been the result of very much the same procedure as the Treaty of 1867 was with the United States, in which you will recollect there were no protocols at all. Nothing was known of it until it was declared, and it was said that there were only two or three documents which had passed in the meantime. Let us try, then, and look at this Treaty in that aspect. If we do, the first thing we shall have to consider is, what is the meaning of Articles III and IV which define the boundary-which directly define the boundary, I mean? The next question I should think would reasonably be, are there any other Articles in the Treaty which assist in the construction of those Articles? When we have finished with this I shall then endeavour to say a few words about the negotiations and about Question 7 and about one or two other matters, which I need not specify just at this moment; but the next consideration will be, supposing the decision of the Tribunal to be in our favour on the meaning of the Treaty, have we done anything or omitted to do anything which prevents us from claiming that it should be carried out? Taking the matter up in that way, I shall cover all the ground, and I do not propose to go into it at all minutely.
Now, I am not able to prove everything, as my learned friend, Mr. Watson, has proved to us so many things, to demonstration. All I can do is to present the Treaty to the Tribunal, and endeavour to ascertain what it means looked at in the light I have pointed out. Now, there is no doubt there are a good many things which are obscure in this Treaty, and I do not pretend to say otherwise. When you make a Treaty relating to a country about which the negotiators know nothing, and which refers to natural features which do not exist, you must have in one place or another a good deal of difficulty and doubt. We have had that in various other Treaties. I need not allude to the Main Treaty, which referred to headlands that did not exist and to the sources of rivers that could not be found, nor need I refer to the Lake of the Woods Treaty, which the Tribunal will remember makes the line from the Lake of the Woods run due west to meet the Mississippi, when the Mississippi did not come within 100 miles of the point where that line would cross. Of course, all those things in any Agreement on Treaty must produce difficulty. It is only because of that that we are here.
But while that is the case, and while there are some things beyond
question not so easy to construe in this Treaty, it does seem to me that, looking at Articles III and IV, there are certain things perfectly plain and that cannot be disputed.
In the first place, it is clear that the mountain boundary, which the negotiators no doubt thought would be found-though that belongs to a subsequent question--can never be followed when it goes more than 10 marine leagues from the sea. That is perfectly plain. Another thing which I think is equally plain is that this provision was made in order to prevent Russia having a broader lisière than Great Britain was willing to give, or than she was ready to accept. I do not think that there can be any doubt about those two things. Then it seems to follow, beyond all question, that when you drop that mountain line because it would make the lisière too broad, you cannot take another line which would make it much broader, on the ground that that line, though it may not be within 10 marine leagues of the ocean, is within 10 marine leagues of the coast. The mountain boundary is to be dropped plainly and distinctly when it is more than 10 leagues from the ocean; the other line speaks of the coast. But this absurdity would immediately result if you should construe the coast as meaning anything other than the ocean, and as going up to the head of Lynn Inlet, although the ocean might not go there; you would drop one line because it would give too broad a lisière, and you would accept another which would make it much broader. What is the result of that? Those are two things, and they may be the only two things which, I think, are absolutely plain and beyond doubt. I think I can at least prove those to demonstration. Now, what is the result of this? Notif we are going to be accurate in language-that "coast precisely the same thing as "ocean," because, of course, coast" is land, whether a mountain boundary or a line to be run by a surveyor, and " ocean" is water; but it does mean that you must measure the line from the same point, and the coast and the ocean must mean the same point from which you are to measure.
In other words, the coast means the coast of the ocean, or the ocean coast. I think that, so far, there can be no possible dispute. Then the remaining question is-and it brings us to that which involves a large portion of this Case--Is the head of Lynn Canal the ocean? Well, I have read a great deal about this Case, and thought a great deal about it. I have read a great deal that I think it is useful and wise to read in a Case of this kind, not consisting of law, but consisting of comments of intelligent writers on a matter of great public interest, and a matter which one man without any special professional education is as competent to understand as another, supposing their natural intelligence to be equal. I think a great many people, if you asked them" Is the head of Lynn Canal the ocean? and they were to ask you, "What is it?" and you said, "It is an inlet that runs up into the interior from the open water from the water of the ocean-the mainland coast of the ocean-about 70 miles, and its average width, I think, is about 41 miles, or something of that sort." I forget the average width, but it is something like that. Now, I think a great many people would say in answer to that question, "Are you serious?" Do you think that anybody could call the head of Lynn Canal the ocean? Now, one test might be not an unreasonable test. Supposing a man was
born in the interior and came down to the head of Lynn Canal, or supposing he was born at the head of Lynn Canal, at Dyea, or Skagway-no one has been born there in the time we know anything about-but supposing he was asked," Have you ever been to the ocean?" I should think he would say, "Certainly not, I never saw the ocean." He would ask you with a good deal of natural and intelligible curiosity, "What is the ocean like?"
Now, I do not wish to deny for a moment that the word “coast " is capable of a great many different significations. My learned friends seemed to point with a sort of triumph to the assertion that Dr. Dawson, in a work which he published on the Yukon Territory, had certainly changed his mind as to the meaning of the word "coast," because he says that, having crossed the Chilkoot Pass, he reached the coast at the head of Lynn Canal, and speaks of the coast at the mouth of the Skagway River. I see no impropriety in that. I should have thought that if a person had been travelling in the interior for a month and came down to the water which communicated with the sea, he would say, "I have got to the coast." But it would not be the coast of the ocean; it would be the coast of the Lynn Canal-the coast of an inlet, and there may be the coast of an inlet and the coast of the ocean; but the coast, because it is the coast of Lynn Inlet, is by no means the coast of the ocean. Now, it is very difficult to enlarge or expatiate upon a point of this sort, which really depends upon each person's intelligence and apprehension; and, having looked at a great many definitions, I do not know that I can assist the Tribunal much by them. I find in a book which I had not heard of before, but which has been quoted to me by a friend, and I have got it here-it is "Willcock on the Ocean, the River, and the Shore." I find on p. 11, I think
Mr. TURNER. What is that, Mr. Robinson?
Mr. ROBINSON. 66 Willcock on the Coast ".
The PRESIDENT. On "The Ocean, the River, and the Shore."
Mr. ROBINSON. On "The Ocean, the River, and the Shore." It is a book published in London by Routledge, in 1863, by J. W. Willcock, Q. C., and A. Willcock, M. A., barrister. It was mentioned to me by a gentleman who has taken a great deal of interest in reference to this Case, and has written a good deal about it, and that was the first I heard of it. If you read at Section 11, there it says:
The coast line is with reference to the presidial line, imaginary, as the presidial line always is. In general, the coast-line follows the shore of the sea, but it crosses each inlet. In the Convention between France and England of the 2nd August, 1839, as to fishing, which was ratified and enforced by the 6 and 7 Vict., cap. 79, the coast-line is fixed at low-water mark, except that in the bays, the mouth of which do not extend 10 miles in width, it assumes a straight line from headland to headland and the presidial line is measured and drawn at the distance of 3 geographical miles from the coast. In America (Angel, 2, 7; Wheaton, 234-235) a nearly similar rule is observed, and, indeed, it may be regarded as generally accepted that bays or channels within the horns of promontories and headlands, however large, are subject to the sovereign of the neighbouring land.
52. Open Sea. The rest of the sea is the ocean, the high or open sea; it is common to all nations and the people of all nations; every vessel which travsrses it is part of the country to which she belongs; all aboard her are subject to its laws, with some few conceded exceptions.
The presidial line, I may mention, is the 3-mile limit; that is the line over which you have power. I need not wait to discuss that.