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Later, it will appear that the nature of the orders issued prior to 1888, since which, according to the contention of the counsel for Great Britain, there has been no discussion of this question, was in accordance with the construction now contended for by the United States.

It will also appear later, in the submission of this question, that there was no dispute between the Governments regarding the construction of the treaty material to this question for something over twenty years after the signing of the treaty of 1818. So that there is a period of twenty years, or something over twenty years, immediately following the signing of the treaty, when the construction of the United States was, I submit, adopted by Great Britain; and, there has been a period of about twenty years immediately preceding this submission, during which the construction by the United States of this clause of the treaty has been concurred in by Great Britain.

The Tribunal will recall that during that interim the reciprocity treaty of 1854 was concluded, which gave to the inhabitants of the United States-until the year 1866 when it was abrogated by the action of the United States-rights in the waters under discussion, co-extensive with the rights of the subjects of Great Britain; and, that during another part of that period, the Treaty of Washington, signed in 1871, was in effect and remained in effect until the year 1885, when its fishery provisions were abrogated by the action of the United States.

Referring now to the position which I have stated had been taken by the Government of Great Britain in the past, which did involve the consideration of the extent of the exclusive jurisdiction of Great Britain, under the terms of this treaty of 1818, I first take up the letter of Mr. Cardwell, British Secretary of State for the Colonies, of the 12th April, 1866, printed in the Appendix to the Case of Great Britain, on p. 221. This letter has been read by one of the learned counsel for Great Britain in part only. If the matter concerns one of the colonies of Great Britain, the orders to the Admiralty apparently pass through the Colonial Department of the Foreign Office of Great Britain.

Mr. Cardwell stated on p. 222 :—

"Her Majesty's Government are clearly of opinion, that by the Convention of 1818, the United States have renounced the right of fishing, not only within three miles of the Colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek."

The phrase will be noted: "Any British bay or creek."

Continuing my reading of the letter:

"But the question what is a British bay or creek is one which has been the occasion of difficulty in former times."

92909°-S. Doc. 870, 61-3, vol 10-9

After the writing of this instruction both the British and Canadian Governments, without any reservation whatever, issued instructions which, however, were never put into force, excluding the fishingvessels of the United States, only from those waters lying within a line drawn from shore to shore at the part where the body of water first contracts to the width of 10 miles; in accordance with, as was stated by Mr. Cardwell himself, the convention between Great Britain and France in 1839.

The reasons these instructions were not put in force were, first, because of the system of granting licences which prevailed from the termination of the Reciprocity Treaty of 1854 in 1866 until 1870; and, second, because, when the system of granting licences by the colonial governments was terminated in 1870, the Government of

Great Britain requested and insisted that there should be put 616 in force other and quite different orders, which were not in conflict with the position of the United States, and which in fact directed the fishing vessels of the United States to be excluded from bays not over 6 miles in width.

I am aware, if the Tribunal please, that as to these last ordersnotice was given to the Government of the United States, that the fact of putting the orders into effect-these later orders-must not be regarded as an "arrangement."

In 1870, turning now to another illustration of the position of the Government of Great Britain, the Earl of Kimberley transmitted to Sir John Young, then Governor-General of Canada, and to Sir Edward Thornton, who, during that year had become Sir Edward Thornton, Minister for Great Britain in the United States, a memorandum to be found on p. 629 of the Appendix to the United States Case. The memorandum was transmitted in a note which begins at the bottom of p. 628 and ends near the top of p. 629.

The memorandum, so far as material here, reads as follows:

"A convention made between Great Britain and the United States, on the 20th October, 1818, after securing to American fishermen certain rights to be exercised on part of the coasts of Newfoundland and Labrador, proceeded as follows:

"And the United States hereby renounce, for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on or within three miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America, not included within the above limits.'

"The right of Great Britain to exclude American fishermen from waters within three miles of the coast is unambiguous, and it is believed, uncontested. But there appears to be some doubt what are the waters described as within three miles of bays, creeks, and harbours. When a bay is less than six miles broad, its waters are within the three miles limit, and therefore clearly within the meaning of the

treaty; but when it is more than that breadth, the question arises whether it is a bay of Her Britannic Majesty's dominions.

This is a question which has to be considered in each particular case with regard to international law and usage. When such a bay, &c., is not a bay of Her Majesty's dominions, the American fishermen will be entitled to fish in it, except within three miles of the 'coast;' 'when it is a bay of Her Majesty's dominions' they will not be entitled to fish within three miles of it, that is to say, (it is presumed), within three miles of a line drawn from headland to headland.”

The PRESIDENT: Please, Sir, has this memorandum been communicated to the United States?

MR. WARREN: The memorandum was not communicated to the Government of the United States, in so far as any evidence before this Tribunal discloses, and that is what, after all, is binding upon the Tribunal.

The memorandum was transmitted by the Earl of Kimberley to Sir John Young, then Governor-General of the new Dominion of Canada, and to Sir Edward Thornton, then Minister in the United States for Great Britain, for the purpose of being used as a basis for a negotiation with the United States, and was an instruction forwarded for that express purpose. That the memorandum was forwarded for this purpose is borne out by a note of Sir Edward Thornton to Mr. Fish, then Secretary of State of the United States, which is to be found on p. 632 of the Appendix to the Case of the United States, in which note Sir Edward Thornton stated to Mr. Fish, under date the 26th January, 1871:—

"In compliance with an instruction which I have received from Earl Granville

This was the instruction that appears on p. 62% of the Appendix to the Case of the United States, and precedes this letter of Mr. Thornton's by three pages. I will just pause here to state that the Earl of Kimberley notified Sir John Young that he had requested Lord Granville to transmit to Sir Edward Thornton this memorandum, as appears at the bottom of p. 628 of the Appendix to the Case of the United States, and that is the reason Sir Edward Thornton came to be instructed by the Earl of Granville.

Now taking up the reading of the note:

"In compliance with an instruction which I have received from Earl Granville, I have the honor to state that Her Majesty's Government deem it of importance to the good relations which they are ever anxious should subsist and be strengthened between the United States and Great Britain, that a friendly and complete understanding should be come to between the two governments as to the extent of the rights which belong to the citizens of the United States and Her Majesty's subjects, respectively, with reference to the fisheries on the coasts of Her Majesty's possessions in North America, and as to any

other questions between them which affect the relations of the United States towards those posessions.

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"As the consideration of these matters would, however, involve investigations of a somewhat complicated nature, and as it is very desirable that they should be thoroughly examined, I am directed by Lord Granville to propose to the Government of the United States the appointment of a Joint High Commission, which shall be composed of members to be named by each Government; shall hold its sessions at Washington, and shall treat of and discuss the mode of settling the different questions which have arisen out of the fisheries, as well as those which affect the relations of the United States toward Her Majesty's possessions in North America."

I take up next the letter from Lord Castlereagh to the Commissioners at Ghent, under date the 28th July, 1814, which appears only in the evidence brought before the Tribunal by the United States since the Tribunal has convened, and is printed in a document which I shall refer to as the pamphlet."

Reading from the pamphlet at p. 4:

"But the point, upon which you must be quite explicit, from the outset of the negociation, is the construction of the Treaty of 1783, with relation to the Fisheries. You will observe that the third Article of that Treaty consists of two distinct branches: the first, which relates to the open sea Fishery, we consider a permanent obligation, being a recognition of the general right which all nations have to frequent and take fish in the high seas.

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And continuing a sentence or two further down:—

"Nor do they feel themselves called upon to concede to the Americans any accommodation within the British Sovereignty, except upon the principle of a reasonable equivalent in frontier, or otherwise; it being quite clear that, by the law of nations, the subjects of a foreign State have no right to fish within the maritime jurisdiction, much less to land on the coasts belonging to His Britannic Majesty, without an express permission to that effect."

The extent of British sovereignty clearly delimited the rights of Great Britain.

Lord Bathurst, in the Foreign Office of Great Britain, in the absence of Lord Castlereagh, instructed the Commissioners at Ghent in a note which appears on p. 9 of the same pamphlet. This was an instruction regarding the fisheries. I read from the bottom of p. 9 and the top of p. 10:

"Secondly, the fisheries. You are to state that Great Britain admits the right of the United States to fish on the high seas without the maritime jurisdiction of the territorial possessions of Great Britain in North America; that the extent of the maritime jurisdiction of the two contracting parties must be reciprocal; that Great Britain is ready to enter into an arrangement on that point; and that, until any arrangement shall be made to the contrary, the usual maritime jurisdiction of one league shall be common to both contracting

"Appendix (A), p. 1355.

parties. But they cannot agree to renew the privilege, granted in the Treaty of 1783, of allowing the Americans to land and dry their fish on the unsettled shores belonging to His Britannic Majesty, such privilege having been annulled by the war

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And really that after all is what the discussion was about, and what worried Great Britain after the war of 1812-the right claimed under the treaty of 1783 by the inhabitants of the United States "to land and dry their fish on the unsettled shores belonging to his Britannic Majesty "; not that other questions had not also become involved, but that was the question which was largely discussed. Continuing reading

"such privilege having been annulled by the war, and it being the undoubted right of the British Government to refuse to renew it."

Referring to another statement of the position of Great Britain, Sir Charles Russell, later Chief Justice of England, stated, as will be found in vol. 13 of the American reprint of the Proceedings of the Tribunal of Arbitration at Paris, known as the Fur Seal Arbitration, on p. 320

"Of course, when the United States became an independent Power, one of the family of nations, it would have, in virtue of its sovereignty, the right to claim the free use of the high seas; but the point is this:"

And I would call this statement to the notice of the Tribunal"that, from 1783 down through the whole of this negotiation, Great Britain has never asserted, and the United States has never alleged that she was asserting, that the right of fishery in the non-territorial waters was not a right that belonged to every independent nation. That is the point."

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JUDGE GRAY: Is there any contention on that point now? MR. WARREN: Your Honour, the position of Great Britain is here that these are geographical bays, that territorial jurisdiction is in no wise involved, that they do not have to prove what the extent of the territorial jurisdiction was admitted to be by the United States prior to the negotiation of 1818, but that they are permitted to take some map, not referred to in the treaty, or, as stated in the British Argument, that they are permitted to call in people that reside in the districts especially involved in this arbitration, and have these people determine the bodies of water from which United States fishermen were excluded:—

JUDGE GRAY: It is so long since you made that statement of the British position that I had lost sight of it in connection with your present statement.

MR. WARREN : Continuing my reading on p. 321 of the same volume from the argument of Sir Charles Russell:

"I leave this branch of the subject by expressing my agreement with the opinion stated on p. 157 of the United States Argument, that there can not be one international law for the Atlantic, and one

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