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It will be my endeavour to compress what I may say into as small a compass as possible, to dispense with all discussion of collateral matters, and to confine myself to the subject-matter indicated by the Question itself.

The distinguished counsel who opened in behalf of Great Britain, Sir Robert Finlay, took occasion to express a fear which had, perhaps, been already sufficiently manifested in the Case filed on behalf of Great Britain, that the Award of this Tribunal would go beyond the scope of the construction of the treaty of 1818 between the United States and Great Britain. The United States well understands that the submission here involves solely the interpretation of the various clauses of this treaty of 1818, and entertains no doubt that the Tribunal will perform that task only. Nor do I, for my own part, believe that an Award by this Tribunal, finding, that antedating and during the negotiations, and that by the very terms of the treaty itself, it was understood between these two nations that "bays, creeks, or harbors of His Britannic Majesty's Dominions in America," for the purposes of this treaty, now submitted to this Tribunal, were confined to those bodies of water lying landward of the 3-mile line, agreed upon by the very terms of the treaty itself, would, as contended by Great Britain, result "in difficulties and disputes in every part of the world."

In 1824, six years after the signing of this treaty, the orders of the Government of Great Britain to His Majesty's sloop "Dotterel," then stationed in the North Atlantic, were, as shown on p. 377 of the Appendix to the Case of the United States, that any American vessel found within three marine miles of the shore, except for the four purposes specified in the treaty, should be seized.

In 1839 the orders issued by the Admiralty of Great Britain to Admiral Sir Thomas Harvey, in command in the North Atlantic, were only to prevent American fishing-vessels from fishing nearer than 3 miles to the land. This fact appears in the evidence on p. 451 of the Appendix to the Case of the United States.

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The construction of the treaty became a matter of controversy about the year 1841, and was discussed between the representatives of the two Governments for several years. It was during these years that the authorities of the province of Nova Scotia sought to have the Government of Great Britain change its orders to the Admiralty.

However, the Government of Great Britain, after long deliberation, expressed its own judgment, as will be seen in the Appendix to the British Case, on p. 146, in a note from Lord Stanley, Secretary of State for the Colonies, to the Right Honourable Viscount Falkland, to this effect:

"His Majesty's Government therefore henceforward propose to regard as bays, in the sense of the treaty, only those inlets of the sea which measure from headland to headland at their entrance the double of the distance of three miles, within which it will still be prohibited to the fishing vessels of the United States to approach the coast for the purpose of fishing."

I am not unmindful of the fact that this formal decision of the Government of Great Britain was objected to, in behalf of the province of Nova Scotia, and of the province of New Brunswick; but, nevertheless, this was in 1845 the judgment of the Government of Great Britain. The note containing this decision was transmitted to the Governor of Nova Scotia and to the Governor of New Brunswick, with the recommendation that the construction of this treaty be carried out along the lines laid down in the note.

Professor Westlake, until recently Whewell Professor of International Law at the University of Cambridge in England, at one time President of the Institute of International Law, for many years an eminent authority, and often an advisor of the British Government, states in his work on International Law, at p. 187 of vol. i.:—

"As to bays, if the entrance to one of them is not more than twice the width of the littoral sea enjoyed by the country in question,-that is, not more than six sea miles in the ordinary case, eight in that of Norway, and so forth, . . .”

and here I pause for a moment to remind the Tribunal that Norway has steadfastly insisted upon the four-mile limitation, as an exception among nations

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. . . there is no access from the open sea to the bay except through the territorial water of that country, and the inner part of the bay will belong to that country no matter how widely it may expand. The line drawn from shore to shore at the part where, in approaching from the open sea, the width first contracts to that mentioned, will take the place of the line of low water, and the littoral sea belonging to the state will be measured outwards from that line to the distance, three miles, or more proper to the state."

By "proper to the state" Professor Westlake means the maritime limit acknowledged by the state; and there is no doubt that the Governments of Great Britain and the United States acknowledge this limit to be three marine miles, as is plain from their own decisions, and the decisions of their own courts, and from their statutes, to which of course reference will later be specifically made.

The position of the Foreign Office of Great Britain to-day on this question has been defined in the House of Lords, by the UnderSecretary of State for Foreign Affairs, in reply to a direct question, in these words-I read from vol. clxix. of the authorised edition of the Parliamentary Debates of Great Britain, in column 989.

However, before I read this statement, without professing an excessive amount of information as to the internal government of Great Britain, I might say that I understand, that when these que tions are put in the British Parliament, they are put in writing and notice is given, a certain number of days, which, if I carry the number in my mind, I believe is five, before a reply is expected from the Government to any question so put by any member of the House of Lords or of the Commons; and that when the reply is made, the member of the Government best informed on the subject-matter indicated by the question makes that reply; and that it is therefore a formal, indeed, a very formal, proceeding in the Parliament of that great nation.

This statement, as I said, is found in the "Parliamentary Debates," vol. clxix, and is under date of the 21st February, 1907. The reply to a question so put was made by the Under-Secretary of State for Foreign Affairs, Lord Fitzmaurice, and was as follows:

"I pass to the position of the Foreign Office. The jurisdiction which is exercised by a state over its merchant or trading vessels upon the high seas is conceded to it in virtue of its ownership of them as property in a place where no local jurisdiction exists."

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That is a recognition of dominium, in behalf of the Foreign Office of Great Britain.

"Therefore, the first thing that, in these cases, the Foreign Office has to ask is, Was there or was there not, territorial jurisdiction in the place where the alleged events occurred? In regard to that I can certainly say that according to the views hitherto accepted by all the Departments of the Government chiefly concernedthe Foreign Office, the Admiralty, the Colonial Office, the Board of Trade, and the Board of Agriculture and Fisheries and apart from the provisions of special treaties, such as, for instance, the North Sea Convention, within the limits to which that instrument applies, territorial waters are:-First, the waters which extend from the coastline of any part of the territory of a State to three miles from the low-water mark of such coastline; secondly, the waters of bays the entrance to which is not more than six miles in width, and of which the entire land boundary forms part of the territory of a State. By custom however and by Treaty and in special convention the six-mile limit has frequently been extended to more than six miles."

There is no question but that by convention, and by assertion of jurisdiction and acquiescence, the extent of jurisdiction may be enlarged, and that it has frequently been so enlarged; and that is what the Under-Secretary of State for Foreign Affairs intended by that

statement.

When this has been and is the position of that great Government, I conceive that it might be more disturbing to the peace of the world should this Tribunal determine by its award that the contention here

put forward by the counsel for Great Britain that every body of water which some geographer, of whatever standing, might designate on a map as a bay, was in fact a territorial bay in international law, and for the purposes of fishing was the exclusive territorial water of the nation possessing the adjacent territory.

The particular Question to which I shall address myself reads:"From where must be measured the three marine miles of any of the coasts, bays, creeks, or harbors' referred to in the said Article?" The renunciatory clause in the treaty of 1818, from which arises this Question, reads:

"And the United States hereby renounce forever, any Liberty heretofore enjoyed or claimed by the Inhabitants thereof, to take, dry, or cure Fish on, or within three marine Miles of any of the Coasts, Bays, Creeks, or Harbors of His Britannic Majesty's Dominions in America not included within the above-mentioned limits; '

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That phrase "above-mentioned limits" of course refers to the designated coasts within which rights had been granted under the preceding terms of the treaty.

The clause continues:

"provided, however, that the American Fishermen shall be admitted to enter such Bays or Harbours for the purpose of Shelter and of repairing Damages therein, of purchasing Wood, and of obtaining Water, and for no other purpose whatever. But they shall be under such Restrictions as may be necessary to prevent their taking, drying or curing Fish therein, or in any other manner whatever abusing the Privileges hereby reserved to them."

The true interpretation of the provision: "Within 3 marine miles of any of the bays, creeks, or harbours of His Britannic Majesty's Dominions in America," when used in connection with the clause. "Or within three marine miles of any of the coasts," is to be determined by the Tribunal when answering this Question.

JUDGE GRAY: May I interrupt you a moment, Mr. Warren?

MR. WARREN: Certainly, your honour.

JUDGE GRAY: I wish to ask you whether you have, or whether we can obtain, the Moray Firth Case, referred to in the extract you have just read from the "Parliamentary Debates"?

MR. WARREN: We can furnish the Tribunal with the Moray Firth Case in the lower court.

JUDGE GRAY: We should like to have it.

MR. WARREN: That is the judgment of the lower court. The case is still on appeal, and has not been determined, as I understand, in the higher courts in England. If I am wrong, counsel for Great Britain can correct me.

JUDGE GRAY: That is all I wished to ask. If we can get it, we can; and if we cannot, we can get along without it.

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MR. WARREN: We have the decision of the lower court. THE ATTORNEY-GENERAL: I think the decision in question was one by the highest court of criminal appeal in Scotland, and I do not think there is any appeal to the House of Lords. In fact, I do not think, as the matter was a criminal case, that any appeal would lie. Still, we will make enquiry, and if there is any further report than that which is submitted to the Tribunal by Mr. Warren, the Tribunal shall have it.

MR. WARREN: It seems desirable now to state the contentions of the two Governments on this question. I shall read from the British Case and Argument, for while this question was discussed at great length in the oral argument, the position of that Government has only been amplified and illustrated, and in no wise altered.

On p. 83 of the British Case, just above the sub-division entitled "History of the Question," the position of Great Britain is stated:

"His Majesty's Government contend that the negotiators of the treaty meant by bays,' all those waters which, at the time, everyone knew as bays."

On p. 103, the position is again stated, under the heading " British Contention":—

"His Majesty's Government contends that the term 'bays,' as used in the renunciation clause of article one, includes all tracts of water on the non-treaty coasts which were known under the name of bays in 1818, and that the 3 marine miles must be measured from a line drawn between the headlands of those waters."

On p. 104, in the last paragraph on that page, the position is thus stated:-

"The negotiators of the convention were dealing, therefore, with tracts of water on the shores of His Majesty's dominions which were known to everyone under the name of 'bays'-tracts of varying size and of varying conformation, some with greater and some with less width between their headlands, ranging from inclosures of considerable extent to inlets of small size. They use the term 'bays' without any qualification whatever, and the inference is irresistible, as His Majesty's Government submits, that the term was intended to apply to all the waters on those shores which were known to the negotiators and to the public, and were marked on the maps at the time, as 'bays. If it had been intended that the term should apply only to a limited class of the waters which were then called 'bays,' an express limitation would have been inserted to give effect to that intention."

I call attention to the expression: "which were known to the negotiators and to the public "-maps not being sufficient, but the public being included, as a witness to be produced.

On p. 122 of the British Case, the position of the British Government is stated as follows-reading the "Conclusion" on that page:"Great Britain, therefore, contends that the treaty applies to all bays on the coasts of British North America, and that the three

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