leagues of the coast, beginning at Cape Spencer and running down to 54° 40′, that the line as laid down in the treaty would be 10 marine leagues from the windings or sinuosities of the coast, and they marked out a line which was 10 marine leagues back from the head waters of the Lynn Canal, and of each of those deep indentations which you see on the map. The contention of the United States was substantially sustained by the Tribunal. The line is not, geographically or arithmetically, 10 marine leagues away all the time, for when the Tribunal came practically to lay it down on the map, they took tops of mountains and available geographical points, to sight across from; but in substance they laid the line at 10 marine leagues from the head waters of the bays, that is to say, from the sinuosities or windings of the coast. That was the contention of the United States before the Alaska Tribunal. Great Britain, on the other hand, said that "coast" was to be understood as the frontier coast, not the physical coast that the United States contended for, but a political coast-line, and so it proposed a line which should be inside of those islands that you see on the map, but should be outside of nearly all of these deep inlets. They suggested that bays 10 miles in width should be the ones which were cut off, and left inland, landward, and the line should run along crossing bays at the point at which they were 10 miles wide, and so Great Britain worked out a coast-line of that kind. 908 The United States never agreed that 10 miles was to be the width of a bay for a political coast-line much less than 31-mile bays, or any such bays were the ones that were to be left inland, and the line carried across them. Mr. Hannis Taylor, in his argument which appears in volume vii of the minutes of the proceedings of the Alaska Boundary Tribunal on p. 611, says this, in the next to the last paragraph:— "The authority, Rivier, if authority is needed, is a demonstration that the political coast line is simply a legal creation; it is a fiction of law. "It is an imaginary line which the law superimposes upon the physical coast line as a basis. But for the purposes of international law, instead of following all the convolutions and sinuosities of the coast, it is permitted to go across the heads of bays and inlets, and it is in that particular that the rule of international law comes in as to the width of bays and inlets, either 6 or 10 miles. We are not encumbered with that question, because the British Case contends that they must be 10 miles, and we do not dispute it, and these outside inlets are 10 miles. So we are not encumbered with that question. It is a legal fiction imposed by the operation of law as an accessory, as Rivier puts it, to the political coast line. The minute you establish it, the minute you fix it, all waters back of it, whether they are waters in the Archipelago there of Alexander or the Archipelago de Los Canarios, of Cuba, they all become, as Hall says, salt-water lakes: they are just as much interior waters as the interior waters of Loch Lomond, and there is no earthly principle, so far as reason is concerned, by which any human being could claim that there could be a political coast line back of a political coast line." So that what the United States did was adopting the British claim or suggestion of cutting off bays at the point at which they were 10 miles wide, and arguing the British Case as a hypothetical case, that the true political coast-line would follow those islands, that those islands were not widely separated, that there were always points where the islands were 10 miles or less apart between which points. the line could go and ought to go, according to the very rule that Great Britain itself was laying down. So, as a hypothetical argument, or as an argument to meet the British Case, they made the suggestion which is contained in the United States Counter-Case before that Tribunal, and which Mr. Warren read to this Tribunal. I wish to present a chart showing just exactly how that works out. My attention is called to the passage that Mr. Warren read, in the fourth volume of the same report, at p. 32. This chart that I now hand up to the Tribunal is the same one that Mr. Warren presented, with the exception of the fact that red lines have been drawn upon it to show exactly how the contention of the United States worked out. With the permission of the Tribunal, I shall be glad if Mr. Lansing will point out these details to the Tribunal as I am speaking. Mr. Lansing, I may say, was associate counsel of the United States before that Tribunal, as he is here. SIR CHARLES FITZPATRICK: Do not one of the counsel on the other side also wish to look at this chart? (Thereupon the chart mentioned was laid before the Tribunal and explained by Mr. Lansing, in the presence of the Attorney-General.) MR. ELDER: I think I have already mentioned that this is the chart that Mr. Warren produced, with the addition of the red lines which show exactly how the Argument of the United States worked out. I will begin reading, and it is the same passage that Mr. Warren read before this Tribunal, beginning on p. 31 of the fourth volume of the minutes of the Alaska Boundary Tribunal. I am going back to the bottom of the preceding page: "The political coast line (since all arms of the sea not exceeding six miles, and in some cases more, in width, and all islands are practically treated as portions of the mainland) extends outside the islands and waters between them. In the present instance the political or legal coast line drawn southward from Cape Spencer would cross to the northwestern shore of Chicagof Island and follow down the western side of that island and of Baranof Island to Cape Ommaney; at this point it would turn northward for a short distance and then cross Chatham Strait to the western shore of Kuiu Island; 92909°-S. Doc. 870, 61-3, vol 10-39 You will notice that the line that was shown on the other chart does not turn north at all, but jumps, I think, 31 miles straight across from point to point. "thence again turning southward along that shore and along the outlying islets west of Prince of Wales Island, the line would round Cape Muzon and proceed eastward to Cape Chacon; thence following northward along the eastern shore of Prince of Wales Island to Clarence Strait it would cross the latter at its entrance and proceed southeastward to the parallel of 54° 40′ at the point where it enters Portland Canal. Thus the political coast line of Southeastern Alaska does not touch the mainland between Cape Spencer and 55° of north latitude." 909 JUDGE GRAY: What are you reading from, Mr. Elder? MR. ELDER: I am reading from the Counter-Case of the United States in the Alaska Boundary matter. You will see that if Great Britain could be allowed to bring its line down to the coast of the mainland, irrespective of islands, and jump bodies of water where they were 10 miles wide, calling them bays-and, by the way, they referred to the North Sea arrangement with various countries as fixing 10 miles as proper-then their 10 marine leagues inward would leave them the control of the upper end of Lynn Canal, and would give them access to the open ocean. Of course it was recognised, and it was not in dispute, that the object of this treaty between Great Britain and Russia was to leave a belt which was immune from British traffic and British access to the sea along that shore, whereby the Hudson Bay Company in particular and British subjects in general could not get down to trade with the Alaska Indians in furs, and interfere with the rights of the Russian Fur Company; and so this belt was provided for in this treaty. The crest of the mountain ranges was the best thing that could be placed in the way, but where there was no such mountain range, a belt 30 miles wide of mainland was put in the way by the treaty10 marine leagues, and at this point 10 marine leagues was the only definition of the belt. All that Great Britain required was to get control of the upper waters of any one of those basins. In this case it happened to be the Lynn Canal. And if the Tribunal could be gotten to adopt the interior political coast-line, so to speak, it could accomplish that object. Well, why did not Great Britain take the other one? Why did it not take the outside coast-line, the real coast-line, the political coast-line along the islands? Because that resulted in an absurdity. That did not leave any mainland at all. And so the United States CounterCase pointed out that the political coast-line of southeastern Alaska, on that basis, does not touch the mainland between Cape Spencer and 55° of north latitude. It would have been so manifestly absurd, with the known intent of the treaty, for them to have had control of the entire coast of the continent, that they did not make that claim, and the United States in its Counter-Case, after the British Case had been received, pointed out the very absurdity that Great Britain had avoided by claiming an interior coast-line. It pointed out a further absurdity, viz., that there could not be two political coastlines, an interior coast-line and an exterior coast-line. But the main point of my argument is that any claim on the part of counsel here, that the United States was playing hop, skip, and jump with that coast, jumping 14 miles and 20 miles and 31 miles, is entirely outside of the question. The argument that the United States was making was that, taking Great Britain's own claim of 10-mile bays, it was entirely possible to draw an outside line, using the islands as the outside coast-line. And that argument seems to have prevailed, and was successful. Question 2 reads as follows: "Have the inhabitants of the United States, while exercising the liberties referred to in said article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States?" Though the treaty may be entirely familiar to the Tribunal, I revert to it, on the previous page, for a moment: "It is agreed between the High contracting parties that the inhabitants of the said United States shall have forever, in common," &c. The right of fishery. Sir Edward Grey, in his letter which appears at pp. 972 and 973 of the United States Case Appendix, said, as he had said in many other places, that this right was confined to the inhabitants of the United States. At the bottom of p. 972, referring to Mr. Root's six propositions, and taking the first of them— "Proposition 1 states: Any American vessel is entitled to go into the waters of the Treaty Coast and take fish of any kind. She derives this right from the Treaty (or from the conditions existing prior to the Treaty and recognized by it) and not from any permission or authority proceeding from the Government of Newfoundland.' "The privilege of fishing conceded by Article I of the Convention of 1818 is conceded, not to American vessels, but to inhabitants of the United States and to American fishermen. "His Majesty's Government are unable to agree to this or any of the subsequent propositions if they are meant to assert any 910 right of American vessels to prosecute the fishery under the Convention of 1818 except when the fishery is carried on by inhabitants of the United States. The Convention confers no rights on American vessels as such." And Sir Robert Finlay puts it in the same way at p. 216 of his argument: "The United States, throughout this argument, put the case in this way, as they did in their despatches, that this is a right conferred upon United States vessels to fish. There is no such right conferred by the treaty. The only right conferred by the treaty is upon United States inhabitants. There is no right given to United States vessels to prosecute the fishery upon the coasts of Newfoundland. May I read the words of the Treaty?" Then he proceeds to read them. And, on the same page:— "All these rights are conferred on persons, the inhabitants of the United States, who are also spoken of, in the concluding portion of the renunciatory clause, as American fishermen.' The treaty does not confer any right upon United States vessels. It confers a right upon persons who are inhabitants of the United States." Those statements are only partially correct. Nobody contends that vessels, as such, have rights conferred upon them. As I pointed out in the reading from Mr. Root's despatches, he distinctly states that vessels can have no rights and no duties; and he protests, as the Tribunal will remember, against the Newfoundland Government treating vessels by characterising them, or putting them in classes as trading-vessels on the one hand, or fishing-vessels on the other hand; and says that the phrase "vessel rights" is but a convenient and customary" expression, intended to represent the rights of the owners in respect of the ships. But that does not go to the meat of this question. It does not make the final analysis necessary in every case of this kind, because when you go back to inhabitants, no rights were conferred by the treaty upon inhabitants. The right was conferred upon the United States. 66 Turning to the British Case, Appendix, at p. 30, to prove what is entirely obvious, the treaty of the 20th October, 1818, says:— "The United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland, desirous," &c. They were the contracting parties in this convention, and not the King of Great Britain on the one hand and the inhabitants of the United States upon the other. It is the Ministers Plenipotentiary of the two countries who are named in the first paragraph of the treaty, the Plenipotentiaries of the United States only, and not the representatives of any inhabitants, or any fishing interests, or anything of that sort. Article 1 further says that the differences which had arisen were differences between the United States and Great Britain respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry and cure fish. When it comes to the renunciatory clause, the fishermen of the United States do not renounce. It is the United States which renounces. "The United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry or cure fish within three marine miles," &c. |