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waters outside of the 3-mile zone in bays are to be considered nonterritorial waters?

MR. WARREN: Mr. President, I will read from Dr. Oppenheim's recent work. He is Professor of International Law in an English University, and is a writer of authority and reputation, as we all know.

THE PRESIDENT: Yes.

MR. WARREN: He says, at p. 222, which is one of the passages cited by me, in paragraph 172:

"To the territory of a State belong not only the land within the State boundaries, but also the so-called territorial waters. They consist of the rivers, canals, and lakes which water the land, and, in the case of a State with a seacoast, of the maritime belt and certain gulfs, bays, and straits of the sea."

JUDGE GRAY: I do not understand that. Are you citing that in support of your position?

MR. WARREN: Yes, your Honour. That refers to the territorial waters, as including the maritime belt and bays.

JUDGE GRAY: Will you read it again, please?

MR. WARREN: Certainly. When the maritime jurisdiction of a State is referred to, there is included as a matter of law all those waters mentioned in that passage which I just read.

SIR CHARLES FITZPATRICK: Mr. Warren, I understood your argument to be that it appeared from the correspondence exchanged between the parties that coast and shore were used as convertible terms, that shore means the sinuosities of the coast, and therefore where the words "coast" and "shore" are used in the treaty, by reason of their use in the negotiations you say they are still used as convertible terms. That, I think, was the general result of your argument?

MR. WARREN: If you will permit me to go back a little, Sir Charles, in answering that question: I was talking of the treaty of 1806, and the use of the word "coast" and "shore" in the treaty of 1806, and not of the correspondence exchanged between the parties. SIR CHARLES FITZPATRICK: Oh! I thought you were.

MR. WARREN: When I made that comment, I was then directing my remarks entirely to articles 12 and 19 of the treaty of 1806.

SIR CHARLES FITZPATRICK: Yes. I thought you had referred to the correspondence exchanged previous to that time, and that the treaty of 1806 was referred to in connection with the treaty of 1818, as something that would explain those terms in that treaty.

MR. WARREN: If you recollect, Sir Charles, there was no correspondence between the parties prior to 1806 about this question, because between 1783 and 1812, the United States vessels had the right under the treaty of 1783 to fish in all the waters.

SIR CHARLES FITZPATRICK: I apologize. I thought you referred to that letter of the 5th January, 1804, from Mr. Madison to Mr. Monroe, in that sense.

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MR. WARREN: I should like to add one thing to my answer to your question, Sir Charles, before proceeding. My object in referring to the use of the words "coast" and "shore" as synonymous in the treaty of 1806 was for the purpose of using that fact in connection with the correspondence to which I shall refer later.

SIR CHARLES FITZPATRICK: That is what I understood.

MR. WARREN: And not as bearing upon any correspondence before 1806; because there was no correspondence between the two Governments on this subject of the fisheries before 1806 after 1783.

The American Commissioners, under date the 11th November, 1806, in a communication to be found on p. 95 of the Appendix to the Counter-Case of the United States, advised the Secretary of State:—

"We shall meet the British Commissioners to-morrow to proceed in the negotiation, which we are persuaded it will not require any considerable length of time to conclude."

And passing over some twelve or fifteen lines, they stated:

They will agree also to acknowledge our jurisdiction to the extent of a league from our coast; we have claimed that acknowledgment to the extent of three leagues.'

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That shows, if the Tribunal please, the attitude of Great Britain toward these early desires or ambitions of the Government of the United States.

It will be recalled that Washington was not inaugurated as President until 1789, and that in 1793 his first term ended and his second term began; and that the United States was in a position where, above all, it desired to protect itself against further wars with the Powers, then so seriously involved in their own difficulties. The problem before the United States was its own internal development. THE PRESIDENT: Did this correspondence, Sir, concerning the jurisdiction of Great Britain and of the United States, refer to the fisheries? I mean this correspondence in 1806, and at that time?

MR. WARREN: No, Mr. President. This negotiation concerned a convention to replace certain provisions of the Jay Treaty of 1794, which were to expire in 1807. The distinguished counsel for Great Britain claimed that article 25 of the Jay treaty was broad enough to cover all bodies of water that might be designated geographically as bays; and I am about to show that the Government of Great Britain in 1806, and ever afterwards, refused to permit the United States an extended jurisdiction over waters, merely because designated bays, on its shores, and did not claim an extended jurisdiction over such waters on their own shores in the North Atlantic.

THE PRESIDENT: And the principal object, I believe, was the stopping of vessels for impressment?

MR. WARREN: No, Mr. President, if you will pardon me. The principal object was to negotiate an entire treaty to replace the provisions of the Jay Treaty, about to expire; and the instructions to the Commissioners for the United States were to negotiate a treaty of amity, commerce, and navigation between the United States and Great Britain. The matter of impressment, Mr. President, was, of course, an important matter, and led the Secretary of State, without submitting the treaty to the Senate of the United States at all, to reject—as representing the President of the United States-the proposed treaty, upon the ground that no special provision had been incorporated in the treaty regarding impressment. The subject of impressment was not covered in the proposed treaty as signed by the Commissioners. The Secretary of State wrote the Commissioners, as appears on p. 100 of the Appendix to the Counter-Case of the United States"without a provision against impressments, substantially such as is contemplated in your original instructions, no treaty is to be concluded."

Of course, Mr. President, the United States was looking for a provision regarding impressments, because it saw the difficulty looming large; and the statesmen of the time were very wise, because the war of 1812 did at length arise out of the failure to adjust that question in 1806-that is, the question of the right of impressment.

On the 31st December, 1806, a convention was concluded between the Commissioners, and on the 3rd day of January, 1807, the Plenipotentiaries on behalf of the United States transmitted the convention to the Secretary of State, and in commenting on the 12th article, they advised the Secretary of State to the following effect-as appears on p. 96 of the Appendix to the CounterCase of the United States:

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"The twelfth article establishes the maritime jurisdiction of the United States to the distance of five marine miles from their coast, in favor of their own vessels and the unarmed vessels of all other Powers who may acknowledge the same limit."

That shows that the negotiation was not confined to armed vessels. "This government [Great Britain] contended that three marine miles was the greatest extent to which the pretension could be carried by the law of nations, and resisted, at the instance of the Admiralty and the law officers of the Crown, in Doctors' Commons, the concession, which was supposed to be made by this arrangement, with great earnestness. The ministry seemed to view our claim in the light of an innovation of dangerous tendency, whose admission, especially at the present time, might be deemed an act unworthy of the Government. The outrages lately committed on our coast, which made some provision of the kind necessary as a useful lesson to the commanders

of their squadrons, and a reparation for the insults offered to our Government, increased the difficulty of obtaining any accommodation whatever. The British commissioners did not fail to represent that which is contained in this article, as a strong proof of a conciliating disposition in their Government towards the Government and the people of the United States. The limit established was not so extensive as that which we had contended for, and expected to have obtained; we persuade ourselves, however, that the great object which was contemplated by any arrangement of the subject, will result from that which has been made. The article in the treaty, in connexion with the causes which produced it, forms an interesting occurrence in the history of our country, which cannot fail to produce the most salutary consequences. It is fair to presume, that the sentiment of respect which Great Britain has shown by this measure for the United States, will be felt and observed in future by her squadrons in their conduct on our coast, and in our bays and harbors."

Now, if the Tribunal please, the Jay Treaty of 1794 is claimed to have contained a provision which was broad enough to have included all the bays on the coast of the United States; and without reverting to whether or not that is true, for the material provisions I have shown were to cease to be of any effect in 1807, I wish to call the attention of the Tribunal to this statement of the American Commissioners

"will be felt and observed in future by her squadrons in their conduct on our coast, and in our bays and harbors."

The treaty is printed in full, and it will be searched in vain for any clause providing for an extended jurisdiction over bays as such. Therefore, so far as any jurisdiction over bays was provided for by the treaty of 1806, it was by reason of the fact that they were included within the limits of 5 marine miles from the shore.

And that is the more certain for the reason that in the instructions to the American Commissioners, a special provision was sought to protect the coast of the United States waters enclosed by headlands; and for the reason that reference was made in the instructions themselves to lines drawn between headlands; and, finally, because the Government of Great Britain knew that these instructions included that provision, for in the letter written by Lord Holland and Lord Auckland to Lord Howick, found on p. 61 of the Appendix to the British Case, on which I have commented at length, they particularly referred to the fact that such a provision was sought. Now, when these British Commissioners asked for an expression from Lord Howick, at the head of the Foreign Office of Great Britain, on the subject, Lord Howick must have reported that it would not be permitted, for it is recorded in the history of these negotiations, on p. 96 of the Appendix to the Counter-Case of the United States, that Great Britain

"contended that three marine miles was the greatest extent to which the pretension could be carried by the law of nations and resisted, at the instance of the Admiralty and the law officers of the Crown, in Doctors' Commons, the concession, which was supposed to be made by this arrangement, with great earnestness."

This Tribunal is without the instructions of Lord Howick. Why are not the instructions from Lord Howick to the British Commissioners made a part of the documents submitted here? Where is the instruction of the British Government in answer to that letter asking for specific instructions? Is it to be presumed, in the absence of that instruction, that there is anything helpful in it to the contention of Great Britain before this Tribunal? Or is it to be presumed, in the absence of that instruction, that there is something in it helpful to the position of the United States? In any event, the instruction is solely within the control of the Government of Great Britain, and we do not find it before this Tribunal, and the ordinary rules of evidence permit certain conclusions to be drawn from the fact of its being withheld.

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On the 3rd February, 1807, the Secretary of State for the United States, prior to the receipt by him of the treaty, which was not signed until the 31st December, 1806, it will be recalled, replying to notes from the American Commissioners, observed, as appears on p. 98 of the Appendix to the Counter-Case of the United States:

"It is hoped, at least, that within the extent of one league you will be able to obtain an effectual prohibition of British ships of war from repeating the irregularities which have so much vexed our commerce and provoked the public resentment, and against which an article in your instructions emphatically provides. It cannot be too earnestly pressed on the British Government, that in applying the remedy copied from regulations heretofore enforced against a violation of the neutral rights of British harbors and coasts, nothing more will be done than what is essential to the preservation of harmony between the two nations. In no case is the temptation or the facility greater to ships of war for annoying our commerce, than in their hovering on our coasts and about our harbors; nor is the national sensibility in any case more justly or more highly excited," etc.

It is manifest that the Secretary of State was seeking a special provision for the protection of what he called the harbours of the United States, and it is equally apparent, that when the treaty was entered into, the only provision that was incorporated in the treaty was that the maritime jurisdiction of each nation on the American Continent should extend 5 marine miles from the shore; and that no exception was made for bays or harbours.

As I have stated, after the receipt of the treaty, Mr. Madison instructed the American Commissioners that it was unsatisfactory without the provision regarding impressment; and in returning the

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