ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 481 



Sir Richard Webster. — May I remind you, Sir, that what you have 

 indicated is exactly in accordance with the view I ventured to present 

 yesterday, and which the Attorney General presented, that the arrange- 

 ment made by treaty between these two nations, the United States and 

 Great Britain, in this case, would not in any way preclude other 

 nations from contending tliat the terms of the agreement were not 

 binding on other nations; but that other nations could contend they 

 were waters of the high sea, and it would be a question, as far as other 

 nations being bound, either of acquiescence and assent, or of the con- 

 figuration of the land round the waters being such as, applying to the 

 argument the principles of international law, they are to be regarded 

 as being inland sea. 



Senator Morgan. — In order that another authority or citation of an 

 instance may be examined by counsel on both sides, I desire to call 

 attention to the action of Great Britain, the United States, the Nether- 

 lands, and France, in 1862 or 1863, in going to war with Japan and 

 compelling her to admit merchant-ships to pass through the Straits of 

 Shimonoseki. There, one of the feudal Princes, Prince of Negato, had 

 fortified a pass through the Straits of Shimonoseki, which was not more 

 than a mile and a half wide, and stationed three ships-of-war there, 

 and the United States Government, leading off in one year, the British 

 Government followed it the next, they succeeded in bringing Japan to 

 terms, and compelling her to admit that that was part of the open sea. 

 Four great nations were concerned in forcing her to admit that that 

 strait, a mile and a half wide, was open sea. 



Sir Richard Webster. — I will gladly examine into that matter; but 

 I would answer at once that the reply seems obvious. It is clear, what- 

 ever may have been the question of legal rights, the nations thought fit 

 to enforce their claims by power, and not by the exercise of any legal 

 rights. And I rather think it will be found the cause of the war, so 

 far as Great Britain was concerned, was an actual attack on some of 

 her vessels. 



Senator Morgan. — Yes. She claimed the ancient right to pass 

 through as part of the high seas. That is all. 



Sir Richard Webster. — Now, I should like to pass from the sub- 

 ject if I may by reminding you that in a very celebrated case of Con- 

 ception Bay, which formed tlie subject of discussion in the Privy Council, 

 and is reported in our Law Reports, (in the 2nd volume of Appeal Cases, 

 at page 420), the ground of the judgment as to the right to regard 

 these waters and this bay as interior waters was put upon the acquies- 

 cence by other nations, and, therefore, that has been, as you mostprop- 

 perly pointed out, one of the principal things to be considered in con- 

 nection with any extension of territorial rights either in a particular 

 locality or in the question of the general marginal belt which is to be 

 regarded as being territorial waters, near to the shores of a country. 



The President. — I am very happy to think that this question of 

 the definition of " territorial waters " does not altogether lie before us. 

 I know that it has given a great deal of trouble some 60 years ago in 

 the case of the Plate River which was also a difficult instance to know 

 where the open sea ends and the interior water begins. There are many 

 difficult instances of that sort; but I believe the general principle is 

 the general assent of seafaring nations. 



Sir Richard Webster. — Mr. President, as I said yesterday, in sub- 

 stance I had concluded all I desired to say on the four questions first 

 enumerated in Article VI because you will remember my criticism or 

 my argument upon them in connection with the J^ian de Fuca Treaty, 

 b s, pt XIII 31 



