176 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



involved the assertion of territorial dominion over Belirino- Sea is made 

 api)arent also b}- tlie statementof M.Poletica justifying tlieUkaseon tlie 

 jiTound tliat tbey were entitled to treat it as a mare duiisnm, vier fermt'e, 

 but they did not intend to push their rights to that length, losing sight 

 of the fact that pushing their rights of sovereignty to KJO miles from 

 the coast did, it was insisted on, eflectually close Eehring Sea up. And 

 that that was a claim of territorial sovereignty is clear from the opinion 

 of the King's Advocate, which I read, and also the more important 

 opinion of Lord Stowell, that a right to prevent people coming over 

 any land covered by water is necessarily an assertion of territorial 

 dominion over that water. 



Mr. Justice Harlan.— The language of Lord Stowell is, the territo- 

 ries claimed are of diflerent species, islands, portions of the Continent, 

 and large portions of the sea adjoining. 



Sir Charles Russell. — Quite right. Sir, and Behring Sea would 

 be a very large portion of the sea adjoining, and that would make the 

 point stronger. He was regarding it as 100 miles from the coast. He 

 says that is territorial jurisdiction over 100 miles from the coast. 



Mr. Justice Harlan. — Idonotsay you are not right; 1 only wanted 

 to see what your view was. 



Sir Charles Russell. — I do not think it could be contended by 

 the other side that, if a Power asserts an exclusive right to possession 

 of a certain area of land covered by water, and says, we have the right 

 to exclude anybody else from coming in that area, that that is anything 

 but an assertion of territorial jurisdiction over that area. 



Mr. Carter. — My argument was distinctly the other way. 



Sir Charles Russell. — I confess, it astonishes me to hear it. 



Mr. Carter. — 1 only seek to correct a misapprehension. 



The President. — And of course it is correct for Counsel to acknowl- 

 edge that they did not argue the point in that way. I think they stand 

 on the same ground as you do. They do not argue the point of juris- 

 diction as to the first question. [To Mr. Garter] I do not understand 

 in your argument you called upon us to decide that the rights claimed 

 or exercised by Russia were rights of territorial jurisdiction. 



Mr. Carter. — We do not. The interpretation that I put in my 

 argument on the Ukase was that it was not an assertion of territorial 

 dominion over the sea, but a mere assertion of a right to i)rotect a shore 

 industry by protective measures stretching over the sea. 



Sir Charles Russell. — Thenweagree as to the first question. 

 931 The President. — It is a relief to us to believe you do. You do 



not deny historically, that is as a point of history, that Russia 

 asserted these territorial rights of jurisdiction, which, upon my impres- 

 sion at first sight (though I do not express any definite opinion of my 

 own) according to the despatches of M. de Poleticaand Baron Mcolay 

 and Count Nesselrode, seem to be expressly reserved by Russia. 



Mr. Carter. — I do not quite understand the suggestion of the 

 learned President. 



The President. — In the diplomatic despatches of M. de Poletica 

 and Baron Nicolay and of Count Nesselrode, the Minister of Foreign 

 Affairs, the Russians declared that they might have the right of con- 

 sidering the sea between the two coasts of Asia and America, that is 

 to say, not only Behring Sea but a great portion of the JsTorth Pacific 

 Ocean, as being a mare clausum; that is to say, a sea on which they 

 have the rights of territorial sovereignty. I say you did not touch 

 that point in your argument. 



Mr. Carter. — I said in reference to that, that while they declared 

 that they might have asserted that right, they expressly declared, or 



