marine miles specified in article one must be measured, in the case of unindented coasts, from the shore line at low tide; and, in the case of all bays, creeks, or harbours, from a line drawn across the mouths of such bays, creeks, or harbours."

In the Argument presented in behalf of Great Britain, at p. 85, the contention is stated in this wise:—

"The contention of His Majesty's Government is that the word 'bays' includes all those tracts of water which were known under the name of bays in 1818, and were so marked in the maps of that time; and that the three marine miles must be measured from the outer limits of those waters-that is, in accordance with the general practice in such cases, from a line drawn between the headlands."

And at p. 92 of the same volume, the position is stated with distinctness and precision. I read from the first paragraph on p. 92 of the British Argument:

6

"It has been suggested that the natural meaning of the term 'bays' may be limited by the words which follow, namely, 'Of His Britannic Majesty's dominions in America.' Great Britain contends that these words are merely descriptive of the locality of the bays, and that they have no other significance. In the Counter-Case of the United States the attitude of Great Britain on this point has been misunderstood. It is there stated that the British Case is based on the assumption that the words "bays, creeks, or harbours of His Britannic Majesty's Dominions in America," as used in the renunciatory clause of the treaty, were intended to be descriptive of territorial waters of Great Britain,' and an argument is thereupon formulated on that issue. This is a misapprehension. The contention of His Majesty's Government is stated quite clearly in the British Case, and

has been stated in the same way on many occasions during the 603 last seventy years. It is that the treaty relates to all bays on the British coasts. In that view no question can arise as to territorial jurisdiction."

Now, if that language means anything, it means that it is not for this Tribunal to make any inquiry into the extent of the exclusive territorial jurisdiction of Great Britain in respect of the fisheries in the North Atlantic Ocean in 1818, admitted by the United States of America; but that that question is outside and quite apart from the issue before this Tribunal.

Proceeding with the reading from p. 92 of the British Argument :— "the words of the article are read in their natural sense as referring to all the tracts of water known as bays on the coasts of the British dominions in North America. It is abundantly clear that all the bays on these coasts were within British jurisdiction, but, in the view that His Majesty's Government presents, the question is not material.

"That the words of His Britannic Majesty's dominions in America' were merely descriptive from a geographical point of view is clear from an examination of the treaty. It will be observed that the language of the renunciation of 1818 follows closely the language of the grant of 1783."

Then follows a short extract from the treaty of 1783, and the Argument continues:

"The word 'bays' was therefore undoubtedly intended to be used with the same signification in both treaties. And consideration of the language of both documents shows clearly that the words of all other of His Britannic Majesty's Dominions in America' were employed as words of locality, and not of ownership. The words were used as a geographical limitation; that they were merely a convenient form of denoting the bays on those parts of the British coasts which were not referred to by name. It would be difficult to suggest any other form of words which would so completely give effect to the construction for which his Majesty's Government contends. On the other hand, if it had been intended to limit the waters in the manner suggested by the United States, it would certainly have been necessary, in view of the great uncertainty of the law on the point, and the large claims which both Great Britain and the United States were maintaining at that time, to come to some express agreement on the extent of territorial jurisdiction over enclosed waters, and to give effect to that agreement in the treaty.

"The suggestion that the treaty is limited to territorial bays originated not with Great Britain but with the United States. The argument of the United States on former occasions has been that the article refers only to bays over which Great Britain had jurisdiction in 1818."

If the Tribunal please, counsel for Great Britain have carefully refrained from presenting to this Tribunal in the printed Argument or from discussing in oral argument, the question of the extent of the exclusive territorial jurisdiction of Great Britain over bodies. of water adjacent to the shores of its possessions in North America in 1818; and have taken the position that it is immaterial, and something quite apart from the issue here, as to whether or not any body of water from which the fishermen of the United States were to be excluded thereafter, was within or without the exclusive jurisdiction of Great Britain.

Taking up, Mr. President, the contention of the United States on this question, I read from p. 144 of the printed Argument filed in behalf of the United States:

"If this renunciatory clause, drafted by the American plenipotentiaries, had been made to read on or within three marine miles of any of the coasts, bays, creeks, or harbors within the British jurisdiction or within the British limits,' or within the exclusive jurisdiction of Great Britain,' or within the maritime limits of Great Britain,' or within the limits of the British sovereignty"

all these limiting phrases are quotations from the correspondence and negotiations leading up to the treaty of 1818

"the meaning definitely attached to any one of these terms in the notes and discussions between the two powers antedating the meeting

of the Commissioners would have now attached when one of the phrases was again used.

"It is not open to discussion that the words, 'of His Britannic Majesty's Dominions in America,' transferred from the treaty of 1783, were the equivalent in all material respects of these other limiting phrases.

The notes in the possession of the respective plenipotentiaries disclosed no demand for the surrender of the historic rights of the American fishermen in these great outer bays. There never had been any discussion, between the two powers, of such extended jurisdiction. The protocols of the conferences, in which the proceedings were to be recorded in detail."

604 And the words "in detail" are taken from the protocol of the first conference of the commissioners in 1818

"contain no reference to the discussion of this question, and the American plenipotentiaries stated that their instructions did not anticipate that any new terms or restrictions would be annexed' to the proposals made to the American Government prior to the meeting of the negotiators."

THE PRESIDENT: If you please, Sir: If the words had a legal sense, and not a merely geographical sense, if the words " of His Britannic Majesty's Dominions" would be equivalent to British jurisdiction, or limits of exclusive jurisdiction of Great Britain, or one of these other expressions referred to in the printed Argument, would it then not have been more appropriate to speak of His Britannic Majesty's "dominion," instead of His Britannic Majesty's "Dominions"? Would not the conception of sovereignty be more adequately expressed by using the singular "dominion" instead of the word. "dominions" which is used more to the territorial extent?

MR. WARREN: Mr. President, in answering that question, I first wish to say this: That it seems to me, that it must always be understood that these negotiators were not recording the results of philosophical studies on this subject, but were using phrases as they were commonly used amongst men. I have no doubt that the negotiators well knew that the term "dominions" signified the territory over which any particular State had the exclusive right to exercise sovereignty, and that the term "dominion" signified the sovereignty so exercised; and that in the minds of the negotiators of the treaty the words would have been understood as synonymous.

I will, Mr. President, continue reading from p. 145 of the United States Argument:—

"The extent of the bays, creeks, or harbours of His Britannic Majesty's Dominions in America' could not be determined except by the agreement of the two powers, provided there was to be any extension beyond the admitted jurisdiction within the three mile limit."

Now, if the Tribunal please, that statement would seem to be a fact; that the exclusive maritime jurisdiction of Great Britain could

not be extended except by agreement with the United States, in regard to the subject-matter under discussion and negotiation. There had been no claim of exclusive jurisdiction over the large outer bays on the part of Great Britain; and I now ask this Tribunal, or the counsel for Great Britain, to point out in the documents and evidence before this Tribunal where any claim of extended jurisdiction over bays as such was made during the negotiations for the treaty of 1818 as against the fishermen of the United States of America by Great Britain, and of which the United States was notified.

On the contrary, it was beyond dispute understood by both Powers that the bays, creeks and harbours of His Britannic Majesty's Dominions in America were those within the British limits, and therefore necessarily 6 marine miles or less in width, thus comprehending the waters close upon the shores sought to be closed against the vessels of the United States.

The distinguished counsel for Great Britain, Sir Robert Finlay, found some trouble, and I assume with good intentions in understanding how it is that only bays comprehended within the 3-mile limit could have been intended, if the precise statement were not made-taking it for granted, for the moment, and for the purposes of the argument that such a statement was not made. The position of the United States is, in that respect, that wanting a specific assertion of extended jurisdiction over bodies of water outside the acknowledged 3-mile limit, the only bays that could have been understood to have been included, and that could within the comprehension of the negotiators have been understood to have been included, were those bays lying landward of the 3-mile line fixed by the terms of the treaty itself. The records of the negotiations will be searched in vain for any assertion of exclusive jurisdiction, as against the fishermen of the United States, and presented and made to the United States, over bays or greater in extent than those bays found within the 3-mile limit.

Continuing reading, on p. 145 of the Argument of the United States:

"If the British limits,' or the 'limits of the British jurisdiction,' with absolutely no exception sought or asked for bays, extended three marine miles from the shores, in what manner could a bay, creek or harbor of His Britannic Majesty's Dominions' include waters more than three marine miles from the shores?

"A bay, creek, or harbor of His Britannic Majesty's dominions in America was, therefore, well understood to be a body of water not over six marine miles in width at its entrance. Such a bay, creek, or

harbor was to be a closed bay; and the three marine miles 605 were to be measured from the shores, and from the lines, de

termined by this measurement from the shores, across bays, creeks, or harbors within His Majesty's admitted jurisdiction,"

On p. 146 of the printed Argument of the United States, this passage will be found:

When, therefore, the American plenipotentiaries drafted this renunciatory clause, and subsequently, when the plenipotentiaries of both powers agreed upon its terms, they provided that the inhabitants of the United States should renounce any liberty previously enjoyed of taking, drying, and curing fish on or within three marine miles of all the coasts, except the sections of coast, which previously had been specifically designated. The word 'coasts' comprehended the coast line of all the great bays; and, of course, the three miles could not be measured from the inner coast line of bays, creeks, or harbors six marine miles or less in width, for the three-mile line drawn across their entrances from the opposite shores closed such bays, irrespective of their inner extent."

To make that clear, if it lacks clarity, I will say that, when the 3-mile line is drawn, following the sinuosities of the shore of the non-treaty coasts, the lines coming from opposite directions meet at a point 3 miles from each shore of any bay 6 miles wide, because the lines following the sinuosities of the shore come together at the point which is on a line 6 miles long drawn from the opposite shores of the bay.

Continuing reading on p. 146 of the Argument of the United States:

"The three-mile-from-land rule of measurement excluded the fishing vessels from such bays, creeks, or harbors, as it would be impossible to enter them without passing through waters within three marine miles of the coast at the entrances. Such bays, creeks, or harbors, necessarily lying landward of the three-mile line, were bays, creeks, or harbors of His Britannic Majesty's Dominions in America; and as to them the plenipotentiaries provided a simple rule of thumb for the guidance of American fishing vessels."

The Tribunal must always, it seems to me, recollect that this treaty was a treaty relating to fishing, and that the endeavour was to lay down some rule for the guidance of fishing-vessels and fishermen. Continuing reading on p. 146:

"A line following the sinuosities of the coasts at a distance of three marine miles seaward would not enter bays, creeks, or harbors six marine miles or less in width at their entrances that is, bays, creeks, or harbors, within the exclusive British jurisdiction;' and therefore the three-mile line was to be drawn seaward from such waters as though the shore-line continued across their entrances. So the clause was stated: ' On or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's Dominions in America.""

These are the words of the treaty.

That is, instead of opening up a space of water to constant contention between fishermen, the negotiators extended the 3-marine-mile 92909°-S. Doc. 870, 61-3, vol 10—8