for the Pacific, and I agree the law is the same for each-that outside the territorial limits there is an unrestricted right and liberty for all mankind to take what it can from the bosom of the sea."

And if the Tribunal please, Lord Russell of Killowen, then Sir Charles Russell, was talking about the treaty of 1818, in connection with the treaty of 1783, when he made this statement-his statement was not detached from any connection with the treaty of 1818.

I now leave these references to the past position of Great Britain, by these most distinguished representatives of the Government of Great Britain, to speak for themselves, and pass on to the position of the counsel for Great Britain in this submission.

The past position of Great Britain has been departed from in this submission. Although Lord Bathurst, as just quoted, had stated, in 1814, that until any arrangement should be made to the contrary, the usual maritime jurisdiction of one league should be common to both contracting parties, this statement--coming to the question of Mr. Justice Gray-is now made, on behalf of Great Britain, in the British Case, at p. 83:

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

แ

And on p. 103 of the same volume:

"His Majesty's Government contends that the term 'bays' as used in the renunciation clause of article 1, 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."

And, in the British Argument, the statement is made on p. 92.

"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 last seventy years. It is that the treaty relates to all bays on the British coasts."

JUDGE GRAY: You will excuse me for interrupting you, but I really did not understand clearly-a day has intervened since you first made the statement-that the contention was upon any other ground than that the bays from which American fishermen were excluded were only the territorial bays of Great Britain.

MR. WARREN: If your Honour pleases, I will read the next sentence from the extract from the printed Argument of Great Britain: "In that view no question can arise as to territorial jurisdiction."

In the view of the United States the true interpretation of this renunciatory clause requires the determination of the extent of the coasts referred to, and the meaning of the words "bays, creeks, or

harbours," when used in connection with the word "coasts," 619 and necessitates the determination of the extent, prior to 1818, of the sea adjacent to the shores of the British possessions in North America over which Great Britain asserted a right of sovereignty, in respect of the fisheries, as against the fishingvessels of the United States.

The preamble, so to speak, of the treaty of 1818 is:

"Whereas differences have arisen respecting the liberty, claimed by the United States for the inhabitants thereof," &c.

From this recital it is apparent that differences had arisen which the treaty now before this Tribunal was intended to adjust. The interpretation of the treaty is necessarily connected with the facts disclosing the differences which existed and with the practical difficulties which the treaty was intended to remove.

I shall now review the circumstances and occasions from which the controversy, at length resulting in this treaty, arose, and state, in as brief a manner as seems consistent with the desire to have all the facts before the Tribunal, the successive stages in the controversy until the stage at which it is now found.

THE PRESIDENT: Of course, we do not wish to trouble you with any remark as to limitation of time, because we are most desirous of having presented to us all the facts which are necessary for your

cause.

MR. WARREN: I thank you, Mr. President.

THE PRESIDENT: And if we expressed the opinion that counsel might confine themselves to a certain number of days in the presentation of their arguments, that only meant that, in our opinion, the case could be sufficiently developed within that time. But our principal object is to obtain an entire cognizance of the case.

MR. WARREN: I thank you, Mr. President, and the Tribunal may rest assured that counsel would not consume the time of the Tribunal after such an expression, unless he thought he was discussing matters material to the issue.

The British Case contains a most important statement regarding the negotiations preceding and during 1818, and I desire to lay emphasis upon the fact that in this paragraph is to be found all that is said regarding the negotiations immediately preceding the treaty of 1818. I read from the bottom of p. 121 of the British Case:

"In addition to these arguments, His Majesty's Government desire to point out to the Tribunal that the circumstances existing at the time of the negotiations of 1818 themselves negative the contention that the term bay of his Britannic Majesty's dominions' as used

in the treaty was not intended to include the whole of the bays on the British coasts.

"At the beginning of the last century, Great Britain and the United States were putting forward wide claims to jurisdiction over territorial waters, as has already been shown. The case of Delaware Bay and the claims of the United States were fresh in the minds of the American negotiators," &c.

I shall later come to the specific consideration of these so-called "wide claims " which the distinguished counsel who opened for the Government of Great Britain substituted in the Argument before this Tribunal for a discussion of the very specific question here involved of the want of any assertion of jurisdiction in respect of the fisheries over bodies of water known as bays.

Counsel, in opening for Great Britain, undertook to establish that Great Britain was asserting wide claims of exclusive maritime jurisdiction over the sea generally adjacent to the shores of its possessions in the North Atlantic in respect to the fisheries.

The facts upon which counsel relied to establish this alleged assertion of extended jurisdiction, both by the United States and Great Britain, will, as I just stated, be specifically discussed at a later stage; but now I am directly concerned with the general statements made by counsel as to the wide claims of Great Britain, and I read first from p. 242 of the report of the argument of Sir Robert Finlay :— "because the claims put forward by Great Britain and the recognition of maritime jurisdiction by the United States show that at that time any idea of the claim with regard to a bay being confined to a bay with a six-mile entrance is entirely out of the question."

And on p. 248 counsel stated:

"The wide extent of the British claims was well known;" 620 Again, at p. 250 counsel stated:

"Having regard to the claims which Great Britain at that time put forward, I submit that such a position is absolutely incredible,'

Why, if the Tribunal please, I have just read a statement from Sir Charles Russell that from 1783 down Great Britain never made any wide claim outside of what he called territorial waters. Nor is there any doubt about what Sir Charles Russell meant by territorial waters when he was talking. And I have also read the instructions of Lord Castlereagh to the Commissioners at Ghent in 1814, when they were negotiating the treaty that closed the war of 1812, in which he stated that they must especially take notice of the fact that no claim was asserted against the United States, except that the fishing-vessels of the United States should keep outside the maritime jurisdiction of Great Britain. And later I read the instruction of Lord Bathurst, who, in the absence of Lord Castlereagh on the continent or some

where else, issued instructions to the Commissioners defining maritime jurisdiction. At that time, the Tribunal will recall, Europe was in an agitated condition, and Lord Castlereagh at various times went to the continent, and indeed he was compelled to go to the continent during the negotiations in 1818, and Lord Bathurst, in the absence of Lord Castlereagh, issued the instructions to the Commissioners at Ghent which I read to the Tribunal a short time since, in which he stated that

"until any arrangement shall be made to the contrary, the usual maritime jurisdiction of one league shall be common to both contracting parties."

The United States respectfully submits that the evidence before this Tribunal abundantly establishes that Great Britain, in the negotiations prior to the treaty of 1818, was not asserting as against the inhabitants of the United States, in respect of these fisheries, any extended jurisdiction over the seas adjacent to her possessions in North America.

Taking up now the consideration of the circumstances and occasions from which the differences, sought to be composed by the negotiators of the treaty of 1818, arose, I refer first to the fact that there were no "differences" between the two Governments, material to this Question, between the signing of the treaty terminating the war for independence and the close of the war of 1812.

The differences arose out of the contention on behalf of Great Britain after the close of the war of 1812, that the second part of article 3 of the treaty of 1783 had been abrogated by the war of 1812, while the United States claimed for its inhabitants the enjoyment of all the rights and liberties previously enjoyed under the entire stipulations of the 3rd article of the treaty of 1783.

In order to make clear the "differences" to be adjusted between the two Governments by the treaty of 1818, the terms of the treaty of 1783 must be examined; and the rights of the two nations thereunder, and especially the claims put forward by each nation after the war of 1812, must be understood.

I shall not, Mr. President, delay long over the terms of this treaty of 1783, because I know they are quite familiar to the Tribunal. I shall content myself with reading but little, merely referring to the points which I desire to emphasise.

In the preliminary negotiations of 1782 in Paris, to terminate the war for independence, the American Commissioners proposed a series of articles, among which was one which appears on p. 217 of the Appendix to the Case of the United States.

Before considering this article, it will be recalled, of course, that the preliminary treaty, as signed in 1782, became, without alteration,

the definitive treaty of peace of 1783. I am not going into the reasons why the delay of that year occurred, but it is a fact that the treaty as negotiated in 1782 became the definite treaty of 1783, without alteration.

The American Commissioners proposed, among the articles appearing on p. 217 of the Appendix to the Case of the United States, the 3rd article which was finally adopted with some alterations. That proposed article reads:

"That the subjects of His Britannic Majesty and people of the said United States, shall continue to enjoy unmolested, the rights to take fish of every kind on the banks of Newfoundland, and other places where the inhabitants of both countries used formerly, to wit, before the last war between France and Britain, to fish and also to dry and cure the same at the accustomed places, whether belonging to his said. Majesty or to the United States; and his Britannic Majesty and the said United States will extend equal privileges and hospitality to each other's fishermen as to their own."

621 This article was agreed to ad referendum by the British Commissioner, Richard Oswald, but was not approved by the British Government. A new article was subsequently agreed upon by the Commissioners of the two Powers, which is set out at the bottom of p. 218 of the Appendix to the Case of the United States. It is not necessary to read or have incorporated this article, inasmuch as it also proved unacceptable to the British Government, although signed by the British Commissioner-I should not say signed in the sense of finally agreed to, but agreed to ad referendum.

The proposal on p. 219 of the Appendix to the United States Case, to which I wish specifically to call the attention of the Tribunal, was put forward by Great Britain, and reads as follows:

"Article III. The citizens of the said United States shall have the liberty of taking fish of every kind on all the banks of Newfoundland, and also in the Gulf of St. Lawrence; and also to dry and cure their fish on the shores of the Isle of Sables and on the shores of any of the unsettled bays, harbors, and creeks of the Magdalen Islands, in the Gulf of St. Lawrence, so long as such bays, harbors, and creeks shall continue and remain unsettled; on condition that the citizens of the said United States do not exercise the fishery, but at the distance of three leagues from all the coast belonging to Great Britain, as well those of the continent as those of the islands situated in the Gulf of St. Lawrence. And as to what relates to the fishery of the coast of the Island of Cape Breton out of the said gulf, the citizens of the said United States shall not be permitted to exercise the said fishery, but at the distance of fifteen leagues from the coasts of the Island of Cape Breton."

This suggestion that:

"the citizens of the said United States do not exercise the fishery, but at the distance of three leagues from all the coast belonging to Great Britain, as well those of the continent as those of the islands