ARGUMENT OP CHARLES B. WARREN. 1077 



" It was an averment that these rights, theretofore existing in all 

 British subjects, should have belonged as of right to those British 

 subjects who by the rebellion had become the citizens of an inde- 

 pendent nation." 



And on p. 320, this statement is made by the President of that 

 Tribunal, Baron de Courcel : 



" The President: Might not there be a difference in respect of time? 

 The historical expose of Mr. Dwight Foster " 



Referring to Mr. Foster who was in the Halifax proceedings as 

 the agent and also counsel for the United States 



" which you have just read seems to me to be practically correct; that 

 Great Britain may have asserted in previous times the doctrine of 

 mare apertum in opposition to mare clausum which was not quite 

 acknowledged, they asserted an exclusive right over part of those 

 seas and fisheries which by progress of time and progress of ideas 

 were considered abandoned, though they did not want to abandon 

 it in fact. Towards the end of the 18th century it was not abandoned ; 

 but, perhaps, at the time of the Treaty of Utrecht it was not quite 

 clear." 



And Sir Charles Russell replied : 



" I began by telling you, Sir, there were such claims made by Great 

 Britain, and she professed to base those claims on Treaty rights 

 conceded by France and by Spain. That is so. I did not stop to con- 

 sider whether she would be justified under those treaties in making 

 that pretension at all. I have stated what was asserted, what was 

 put forward. There were certain Treaty rights, but that is ancient 

 history." 



The President then intervened with a question : 

 " The Treaty rights were limited to about one hundred miles. 

 Referring to the rights under these treaties of 1713 and 1763. Sir 

 Charles Russell proceeded : 



"As I have already pointed out, and you were good enough to as- 

 sent to my statement I think, even if such powerful nations as France 

 and Spain had conceded to Great Britain rights over an area of the 

 sea, they would not have the power of giving to Great Britain that 

 right as against the people of any other nation in the world on the 

 high seas." 



Now, if the Tribunal please, Sir Charles Russell was afterwards 

 the Lord Chief Justice of England, and his statements regarding 

 law and he was speaking of law at this time are worthy of the 

 greatest consideration in view of the source from which they come. 



Sir Charles Russell continued as reported on p. 320 of the same 

 volume : 



" Of course, when the United States became an independent power, 

 one of the family of nations, it would have, in virtue of its sover- 

 eignty, the right to claim the free use of the high seas ; but the point 

 is this : that, from 1783 down through the whole of this negotiation, 



