would be of very great assistance to us, but it may not be possible after so long a time has elapsed. MR. WARREN: Mr. President, counsel for the United States submit that we will have no trouble whatever to answer the question put. I am only stating now the claim of Great Britain as advanced to the United States. I mentioned the letter to Mr. Baker, the British chargé in Washington before the arrival of Mr. Bagot as Minister, and in the natural order of the argument, the Baker letter, the interview between Lord Bathurst and Mr. Adams, and the subsequent letter from Mr. Adams to Lord Bathurst will be discussed. I will here Mr. President, replying to the question which you put, call to the attention of the Tribunal the fact that the contention of the United States does not rely solely upon Lord Bathurst's own definition of the Baker letter, because Mr. Adams took the precaution, as shown on p. 269 of the Appendix to the Case of the United States, to restate to Lord Bathurst what Lord Bathurst had stated to him, and in the restatement of Lord Bathurst's position used the same definition of the Baker letter that Lord Bathurst had used when stating the contents of it to Mr. Adams. THE PRESIDENT: You used the expression the "Adams letter." MR. WARREN: I referred the Tribunal to Mr. Adams' letter to Lord Bathurst, which is printed, commencing on p. 268 of the Appendix to the Case of the United States, and I had just commenced to read an extract from that letter, to be found on p. 269. Mr. Adams made a statement there to Lord Bathurst of what Lord Bathurst had stated to him: 66 your lordship did also express it as the intention of the British Government to exclude the fishing vessels of the United States, hereafter, from the liberty of fishing within one marine league of the shores of all the British territories in North America." THE PRESIDENT: That is consistent with the report Mr. Adams had made to Mr. Monroe and not consistent with the letter of Lord Bathurst MR. WARREN: To Mr. Baker, Mr. President. THE PRESIDENT: To Mr. Baker. MR. WARREN: If the Tribunal please, the United States will undertake, at a later point in the argument, to show that Mr. Adams' definition of the letter is quite consistent with the position taken; but, in any event, it is to be observed that the Baker letter forms no part of the correspondence with the United States. Mr. Baker had already written his letter to the Secretary of State for the United States about the "Jaseur" incident, before the receipt by him of the letter from Lord Bathurst, dated the 7th September, 1815, which related to the "Jaseur" incident. THE PRESIDENT: What do you mean by the Baker letter? MR. WARREN: The letter from Lord Bathurst to Mr. Baker, on p. 64 of the Appendix to the British Case, Mr. President. 630 THE PRESIDENT: I understood you to mean the letter from Mr. Baker, and I could not find one in that connection. MR. WARREN: Pardon me; I mean the letter to Mr. Baker. I was about to say that the letter from Mr. Baker to Mr. Monroe, the American Secretary of State, regarding the "Jaseur" incident, is printed on p. 264 of the Appendix to the United States Case, and bears date the 31st August, 1815. Therefore, Mr. Baker had not received the letter from Lord Bathurst which bears date the 7th September, 1815. He never took occasion to transmit any other letter to the United States regarding the "Jaseur" incident than the one which bears date the 31st August, 1815. I desire to draw the attention of the Tribunal to this additional fact, to which I have already alluded-that in the transmission to Mr. Bagot of the instructions from Lord Castlereagh, Appendix to British Counter-Case, p. 175, the principles, by which Mr. Bagot was to be guided, were the principles laid down in the notes passing between, and reports of the interviews between Lord Bathurst and Mr. Adams, which are the notes to which I have referred. It was asserted by Great Britain that the war of 1812 abrogated the liberty of American fishing-vessels within the "territorial jurisdiction" of Great Britain, which was stated to extend 3 marine miles from the shore, and within which lay the harbours and creeks and waters close upon the shore that were thereafter to be closed to the fishing-vessels of the United States. Now, I wish here to ask: If the Government of Great Britain had been advancing a claim to exclusive jurisdiction, in respect of the fisheries, over large areas of water extending many miles from the shore, would the claim have been stated in the terms employed by Lord Bathurst, that is, that thereafter the vessels of the United States would not be permitted to fish within the creeks and close upon the shore of the British territories; nor would they be interrupted in fishing without the territorial jurisdiction a marine league from the shore? Thereafter, when Lord Castlereagh, or Lord Bathurst, or Mr. Bagot, on the part of the Government of Great Britain, and Mr. Monroe and Mr. Rush, on the part of the United States, and, later, when the negotiators of the treaty of 1818 used the terms "territorial jurisdiction," "exclusive jurisdiction of Great Britain," "maritime limits," "within the British limits," "within the limits of the British Sovereignty," and "His Britannic Majesty's Dominions in America," they referred to a jurisdiction over the sea extending only 3 marine miles from the shore of the possessions of Great Britain in North America; and only bays, creeks, and harbours found therein were included. No claim of extended jurisdiction over bodies of water known by the name of bays was advanced during these negotiations in behalf of Great Britain as against the fishing-vessels of the United States. The learned counsel, when opening in behalf of Great Britain, criticised the statement in the Argument of the United States appearing on p. 124, which reads: "Lord Bathurst and Mr. Adams had, without controversy, understood that the territorial jurisdiction extended a marine league from the shore, within which lay the creeks and waters close upon the shores denied to the fishing vessels of the United States, as clearly disclosed by the notes, which, placed subsequently in the hands of the negotiators in 1818, became the basis of the negotiations and virtually the measure of their respective powers." The reason Lord Bathurst and Mr. Adams so understood the extent of the exclusive territorial jurisdiction of Great Britain, was because Lord Bathurst had so stated the claim of Great Britain in the interview just brought to the attention of the Tribunal, and about which the honourable President made an inquiry. Lord Bathurst made no claim to extended jurisdiction over bodies of water known to the public or to geographers as bays, but only asserted that the fishing-vessels of the United States would not be permitted to fish within the creeks and close upon the shores of the British territories, and would not be prevented from fishing without the territorial jurisdiction a marine league from the shore. Before taking up the negotiations in 1818 leading to the making of this treaty, it seems, I submit, necessary briefly to review the diplomatic relations between the United States and the Government of Great Britain between the years 1783 and 1815, the year following the peace concluding the war of 1812, in so far as they shed any light upon this question now under consideration. This review is for the purpose of ascertaining the extent of the claims to exclusive maritime jurisdiction, as against the people of the United States, over the waters adjacent to the shores of the British possessions in North America, advanced by the Government of Great Britain. 631 In the printed Argument, filed on behalf of the United States, on p. 125, this statement is made referring to the phrases "the exclusive British jurisdiction" and "the limits of the British Sovereignty": "These terms were used in the negotiations leading to the treaty of 1818 with such definite meaning as to preclude any conclusion except that a perfect and complete understanding existed between the two Governments as to their exact meaning." Sir Robert Finlay referred to this extract and evidently construed it, in connection with what precedes and follows it, as referring to some agreement made in 1806, or in 1814. The statement seems plain. It is that the terms which were used in the negotiations leading to the treaty of 1818 had such a definite meaning that there must have been an understanding between the two Governments as to their exact meaning. The review of the diplomatic relations between the two Governments prior to 1815, upon which I am about to enter, will disclose how far Great Britain had defined her exclusive jurisdiction in the waters adjacent to her possessions in North America and will be helpful in showing the Tribunal what was in the minds of the negotiators of the treaty of 1818, by reason of the negotiations between the two Governments during the years immediately preceding the making of the treaty of 1818. This review is made more important because of the incorrect conclusions drawn in the Case presented in behalf of Great Britain, and by counsel in oral argument here, as to the effect and bearing of these occurrences upon the negotiations in 1818; which conclusions were drawn from certain carefully selected data antedating the period directly under discussion. I refer to the reliance placed upon the Treaty of Utrecht of 1713, the treaty between Great Britain, France, and Spain of 1763, the action of the United States as to Delaware Bay in 1793, the letter from Mr. Jefferson to Mr. Genet, the Minister for France in the United States in 1793, the Jay Treaty of 1794, and the letter from Mr. Jefferson, in 1804, to the Secretary to the Treasury. This data will be hereafter specifically dealt with, and I do not now stop to make any observations concerning any part of it. I will take up now the negotiations between the United States and the Government of Great Britain leading to the unratified treaty of 1806. From these negotiations two important facts will emerge, and they are these: that by the terms of this unratified treaty of 1806 the maritime jurisdiction stipulated for by the terms of the treaty was to apply both to the United States and to the Dominions of Great Britain in North America; and that while in these negotiations the United States sought, as against Great Britain, some protection for waters enclosed by what Mr. Monroe called headlands, the Government of Great Britain absolutely declined to make any such concession, and refused to incorporate it in the treaty. Great Britain proceeded along the lines that she had been pursuing, with the history of which we are all familiar, until the outcome was, unfortunately, the war of 1812. Taking up the negotiation of this unratified treaty of the 31st December, 1806, I wish to state, first, I do not recall any statement during the entire argument, and I am unable to find in the report of the argument of counsel who opened on behalf of Great Britain any statement that article 25 of the Jay Treaty of 1794 expired by virtue of the limitations of the treaty in 1807. If the Tribunal please, this is an important fact. When I say that article 25 of the treaty expired, I should say that all the articles except the first ten articles and the twelfth article expired in October 1807 by virtue of the limitation expressed in the treaty itself. This appears from the fact that all the articles except the first ten and the twelfth were to expire twelve years after the ratifications, which were exchanged the 28th October, 1795. Article 25 of the Jay Treaty was about to expire, then, when the Commissioners met in 1806. The object of the negotiation in 1806 was to negotiate a new treaty of commerce and navigation between the United States and Great Britain. James Monroe, afterwards President of the United States, and William Pinkney, a distinguished lawyer of his time, were the Commissioners on behalf of the United States, and Lord Holland and Lord Auckland were the Commissioners on behalf of Great Britain. These Commissioners, on the 31st December, 1806, concluded a treaty in London, which was rejected by the United States on the ground, as stated by Mr. Madison, then Secretary of State for 632 the United States, in an instruction to the American Commis sioners, after the transmission to him of the treaty, and when returning it to the Commissioners, which appears on p. 100 of the Appendix to the Counter-Case of the United States, that: "Without a provision against impressments, substantially such as is contemplated in your original instruction, no treaty is to be concluded." The United States, the Tribunal will recall, was seeking among other objects a means, by treaty or otherwise, to keep Great Britain from impressing American seamen for the purpose of using them in the European wars. I am not going to digress further to explain that feature of the negotiations. If the Tribunal will do me the honour of turning to p. 22 of the Appendix to the Counter-Case of the United States, it will be seen that the first article of this unratified treaty material to the Question now under consideration is article 12. This article is as follows: "And whereas it is expedient to make special provisions respecting the maritime jurisdiction of the high contracting parties on the coast of their respective possessions in North America on account of peculiar circumstances belonging to those coasts, it is agreed that in all cases where one of the said high contracting parties shall be engaged in war, and the other shall be at peace, the belligerent Power shall not stop except for the purpose hereafter mentioned, the vessels of the neutral Power, or the unarmed vessels of other nations, within five marine miles from the shore belonging to the said neutral Power on the American seas." |