426 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 



sufficient for my purpose. Mr. President, you know Chancellor Kent 

 by name, the great American jurist. This is in the original edition. 

 When I say the original edition, I am not certain it is in the first, but it 

 is one of the editions which were edited by the great lawyer himself; 

 and I read from the 9th edition, published in lb58, from the original 

 page 31, the original text, volume I: 



The claim of Russia to sovereignty over the Pacific Ocean, north of the 51st degree 

 of latitude as a close sea, was considered by our Government in 1822 to be against 

 the rights of other nations. 



Mr. Chancellor Kent was notin the habit of using either vague language 

 or uncertain language. He describes it there as the claim of Kussia to 

 sovereignty; and 1 want to ask this Tribunal — I must not anticii)ate 

 what I have to say later on in attempted reply to Mr. Phelps' argument, 

 but I ask again, is there the vestige of an authority for the suggestion 

 that the right to exclude other ships from navigating a belt of water 

 along side,' in the borders of, a coast, is otherwise than an act of sover- 

 eignty"? Why, the very acts that we have got to discuss later on, the 

 acts which are properly justified as municipal statutes, Acts of Parlia- 

 ment, in order to protect certain interests there, are a very much less 

 exercise of the sovereign power of legislation, and are justified and 

 sujjported by special considerations. But this was a claim to exercise 

 exclusion, or to confiscate vessels if they came within 100 miles of the 

 coast; and yet, knowing the stress of the position, counsel suggest that 

 that was not the exercise of exclusive jurisdiction, but was what they 

 are pleased to call a defensive regulation. 



There is not, Mr. President, as far as I know, as far as my research 

 has enabled me to trace out this matter, a vestige of an authority, in 

 text-book, judgment or legal writer, to indicate that exclusion of vessels 

 from a margin of the sea — absolute exclusion — is otherwise than an act 

 of dominion and an act of sovereignty. Why, really, if you will look at 

 the citation at page 141 of the United States argument, from Sir Henry 

 Maine, you will find these words. I might refer to half a dozen author- 

 ities cited by Mr. Carter; but at the bottom paragraph of the citation 

 from Sir Henry Maine, you will find this: 



At all events, this is certain, that the earliest development of maritime law seems 

 to have consisted in a movement from mare liberum, whatever that may have meant, 

 to tnare claiistim—hom navigation in waters over which nobody claimed authority, 

 to waters under the control of a separate sovereign. The closing of seas meant 

 delivery from violent depredation at the cost or by the exertion of some power or 

 powers stronger than the rest. No doubt sovereignty over water began as a benefit 

 to all navigators, and it ended in taking the form of protection. 



And at page 146, quoting from the opinion of Sir Eobert Phillimore, 

 in Queen v. Keyn : 



According to modern international law it is certainly a right incident to each state 

 to refuse a passage to foreigners over its territory by land, whether in time of peace 

 or war. But it does not apqtear to have the same right with respect to preventing 

 the passage of foreign ships over this portion of the high seas. 



And the passage, Mr. President, which I referred to just now is at 

 page 40 of the same book, where in his argument upon this question, 

 Mr. Carter states it in this way: 



Russia never at any time prior to the cession of Alaska to the United States 

 claimed any exclusive jurisdiction in the sea now known as Behring Sea, beyond 

 what are commonly termed territorial waters. She did, at all times since the year 

 1822, assert and enforce an exclusive right in the "seal fisheries" in said sea, and 

 also asserted and enforced the right to protect her industries in said "fisheries" 

 and her exclusive interest in other industries established and mnintained by her 

 upon the islands and shores of said sea, as well as her exclusive enjoyment of her 



