EXTRACT FROM ARGUMENT OF HANNIS TAYLOR.
ALASKAN BOUNDARY TRIBUNAL, VOL. 7, 1904, p. 605.
What I desire to submit to the Tribunal is this, that there are but two possible coast lines known to international law. One is the physical coast line traced by the hand of nature, where the salt water touches the land, which exists for the purpose of boundary ; the second is the political coast line—that invisible thing superimposed upon the physical coast by the operation of law, which exists for the purpose of jurisdiction.
The proposition is so simple that nobody can misunderstand it : that there are two coast lines which international law knows or deals with ; one is the physical coast line made by the hand of nature through the contact of salt water with the land, and that exists for the purpose of boundary ; the second is the political coast line, which the law superimposes upon the outer physical coast for the purpose of jurisdiction. They exist separate and apart, and there is no chance of confusing one with the other.
The PRESIDENT : I follow that, Mr. Taylor, and it is a very useful argument indeed. I should like you just to tell us in which of those categories—how you would deal with an estuary like the Orinoco, for instance ? I quite follow your argument, but I should like to know how you apply it.
Mr. TAYLOR : That is the very purpose of my argument—to answer your query. I am just at the end of the predicate. Now, to make it clear, although it is one of those self-evident things that proves itself. There is always a certain sanctity about a thing that is read out of a book, especially if you read it out of a French book or a book written in French. But your Honours know that Rivier, the great Swiss publicist—although he writes in French he is not guilty of being a Frenchman, if there is any guilt in that condition. Rivier, in his treatise, which is so authoritative throughout the world, has given us a fine simple statement in his “Principles du Droit des Gens,” of this definition I am speaking. Speaking of “la mer littorale——”
The PRESIDENT : What page are you reading from ?
Mr. TAYLOR : I am reading from the brief of the United States.
The PRESIDENT : What page will it be ?
Mr. TAYLOR : The United States' brief, page 17. Speaking of “la mer littorale.” Now this explanation is especially important. “Le caractère d'un accessoire”—and it cannot be taken independently of the coast (“indépendamment de la côte”). Speaking of “les frontières,” he says, “I have spoken already of the frontier on the sea, and that of the land. There exists also special limits for the wants of administration, because the geographical and political frontier ('la frontière politique et géographique') do not always answer in a sufficient manner.”
The distinction between the physical and political coast line is drawn with a distinctness that cannot be mistaken, and the fact that the political coast line is a mere accessory to the physical coast line that it is something superimposed upon it cannot be mistaken. As a practical illustration I desire to call the attention of the Tribunal to the coast of Maine, which gives one of the best object lessons for illustration. If you take the coast of Maine from the south-west point up to the north-east, and take what would be called the trend of the cpoliticalhe political coast line runs it is about 400 kilometres long. If you take the physical coast line with all the sinuosities where the salt water touches the line it is about 4,000 kilometres long. Let me read the brief description of it from the “Nouveau Dictionaire”:—
On the Atlantic Coast Maine presents an uninterrupted succession of peninsulas, islands, and bays ; and all these bays are the mouths of rivers, outlets of valleys having their origin far in the interior. Nothing similar is seen on all the territory of the Union. One must come to Norway, or go to the extreme point of South America, to find so long a part of the coast—400 kilometres in a straight line from the south-west to the north-east—so deeply cut up that we measure on it more than 4,000 kilometres of contact with the deep sea. All these bays of Maine are also fjords.
And I will call the attention of the Court, as we were speaking of that definition—
All the bays of Maine are also fjords, but spacious, and which, in spite of their equally rocky banks, of comparatively little elevation, receive the morning and afternoon sun, as well as that of noon, and open to mariners more ports, more anchorages, and safe shelters than all the other coasts upon the three seas of the Union.
Here we have good basis for illustration. The coast of Maine, as this geographer expresses it, fixed by the contact of the deep sea with the land that is, the physical coast line of Maine, as made by the hand of Nature is about 4,000 kilometres long. You must have the physical coast line as the basis. It is on the physical coast line that the international law super-imposes as an accessory, as Rivier expresses it, the political coast line, which, cuts across the heads of all the bays and inlets. So when you take the political coast line there, the 3-mile zone, the barrier which the United States presents by international law to the world, the political coast line is about 400 kilometres, and the physical coast line is about 4,000. These two entities are too distinct to be mistaken.
When we take the authority of Rivier explaining those two coast lines, he says that it is the physical coast line that exists for the purpose of boundary,
and that it is the political coast line that exists for the purpose of jurisdiction. Nothing can be more illogical, nothing can be more indefensible, than a system of organised confusion which attempts to mix a political coast line with a physical coast line. Nothing is more indefensible than the attempt to put a political coast line outside of that archipelago, and at the same moment to assume that there is a political coast line inside of that archipelago. And the contention which I desire most to emphasize is that this attempt of Great Britain to establish a coast line or to run that line of mountains parallel with what is called “the general trend of the coast” is basing it upon an assumption which has no existence in international law, and cannot have any existence in international law. There is no such thing as a general trend of coast apart from the political coast.
It [the political coast line] 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, 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.
Then, if there is no reason for it, is there any authority for it ? I respectfully call upon the Representatives of Great Britain to go, if they can, and search the international jurisprudence of the world, and see if they can prove from the treatise of any publicist in any nation that anybody has ever put into any book anything in the way of authority for the proposition that a political coast line can exist back of a political coast line. I say that it is absolutely impossible upon the basis of reason or authority to establish or to give any colour to the idea that such a thing exists. It cannot exist under the existing principles of international law.
If that is true, the only coast line that can take the general trend of the coast is the political coast line. The interior coast line is a physical coast line, and has the character and attributes of a physical coast line which exists for the purpose of a boundary merely. There can be no conflict there of precedent or authority. The physical coast line is made by the hand of Nature where the salt water touches the land, and that is the explanation of
the word “sinuosities.” These people were dealing with a question of boundary ; they were not dealing with a political coast line for the purpose of jurisdiction ; they were dealing with a physical coast line, as Rivier says, for the purpose of boundary. Therefore, as the physical coast line must bear the marks put upon it by the hand of Nature, the physical coast line follows the sinuosities as Nature made them. And when you put the political coast line out here [indicating on map] it is impossible to have it there. The whole confused and fundamental misconception upon which this whole British line is based is that you can run a political coast line in here. And there you have a positive demonstration. To talk about a line going across Lynn Canal, whether it is 6 miles or 10 miles, becomes empty jargon unless it is a political coast line, for no other coast line can cross the head of a bay or inlet, and all this is unintelligible jargon in conflict with the very fundamentals of international law. It rests upon that fundamental confusion, the idea that there is a trend of the coast of which international law knows nothing. There can be no trend of a coast, except the trend where the political coast line is. If that be true, then the conclusion is irresistible that such is the coast,—and there is no use in our confusing ourselves by the word “ocean.” The primary inquiry is : What is the physical coast ? That is the technical question to be defined, and physical “coast” is where the salt water touches the land.
The only difficult question that can arise is when a river flows into an arm of the sea. There is a point at which you can go up an arm of the sea into a river and reach a certain point where the sea ends. I must refer here to something in the British case which would be very serious to us if it had any real foundation. We have the case of Peroux v. Howard (1833), in the 7th of Peters, page 343, the decision of the Supreme Court of the United States, cited against us in reference to the point at which an arm of the sea into which a river opens ceases to be sea. When I came to read the case I confess I was somewhat amused because there were so many reasons which could be urged against its application. There is an old story about a young advocate who was called upon to defend a sheriff who was threatened by a rule nisi for not bringing a prisoner into court. In the zeal of his advocacy he gave twenty-three reasons to the presiding judge why he should not produce the body of the prisoner in court, and when he came to argue his case, with a great brief almost as big as one of ours, it was found that his first proposition was that the prisoner had been long dead, whereupon the presiding judge said that he would excuse him arguing the remaining twenty-two reasons.
I shall not argue all of the twenty-three reasons I have against this Case, because the first one is that the Case in question has been long dead. Fifty-two years ago it was solemnly overruled by the Supreme Court of the United States, and the principles upon which it was founded were eliminated from our national jurisprudence. The reason of that was this : In the early days of our history, when it became necessary to define the Admiralty jurisdiction of the United States, in that Case, and in almost every other, we wisely adhered to the rule of the mother country, and we took the rule as to our Admiralty jurisdiction as to the rise and fall of the tide. The men who lived at the mouths
of the Hudson and the Mississippi assumed that the same rule should govern us which prevailed at the mouth of the Thames and the Mersey. The leading case under that rule was the case of Thomas Jefferson, in the 10th of Wheaton, page 428, in which the English Admiralty rule was adopted, and we lived under that rule for forty years. Then when our commerce extended to the mighty rivers, and the great interior lakes, where there was no rise and fall of the tide, lakes upon which great armadas could float if necessary, some Western lawyer said, “This old English rule of Admiralty is utterly irrational as applied to this country”—that we should have a new test, that we should substitute the navigable character of the water for the rise and fall of the tide, and a great discussion took place in the Supreme Court of the United States, which is an epoch in our judicial history. The Court, speaking through Chief-Justice Taney, said they would disregard the rule of the Thomas Jefferson Case, as no rule of property was fixed by the decision, and they rooted up and overturned the case of Thomas Jefferson, and this case, which was a mere satellite to it, and eliminated it from our jurisprudence, and established, instead of the principle of the rise and fall of the tide, the principle of the navigable character of the water as the test of Admiralty jurisdiction.
But our friends on the other side have not lost anything in the world by the annihilation of the case in question, because if it was in full force it would not have the slightest application. It was a case testing the question whether Admiralty jurisdiction existed at New Orleans 110 miles, by the winding of the river, from the estuary. To avoid any possible question, instead of going 110 miles up some river beyond these inlets, we have stopped at a point at which there can be no claim or controversy. It would be just as easy to prove that the Admiralty Courts had no jurisdiction at the mouth of the Thames as it would be to prove that the water in question is not sea up to the point at which we claim. My distinguished friend, Mr. Robinson, likes to set up popular criteria as to the test of these questions. If, therefore, there is any doubt on that point I would like to call as a witness the Prime Minister of Canada, Sir Wilfred Laurier, who, in the Canadian Parliament, discussing this question and he used a word of which he seemed to be enamoured, about the “ocean terminous,” which he repeats, I think, four or five times in one document—has told us what the terminous of the sea is at that particular place.
Mr. LODGE : What page?
Mr. TAYLOR : I will just read it from the Appendix to our Counter-Case, page 171. He says :—
We had either to take the route by the Lynn Canal and Dyea, or the route by the Stikine River. The advantages of the one had to be set against the disadvantages of the other, and vice versâ. The
advantages of the route by the Lynn Canal were that it was shorter and more direct than the route by the Stikine River. But if we had adopted the route by the Stikine Canal, that is to say, had chosen to build a railway from Dyea, by the Chilkat Pass up to the waters of the Yukon, we would have to place the “ocean terminous” of the railway upon what is now American territory. I agree that the statement that has been made on the floor of this house, on more than one occasion, that Dyea, if the Treaty is correctly interpreted, is in Canadian territory. It ought to be ; but the fact