treaty, with a view of having negotiations continued, Mr. Madison. instructed the Commissioners in the terms found on p. 100 of the United States Counter-Case Appendix:

"Should all the other belligerent nations, contrary to probability, concur in the addition of two miles to our jurisdiction, this construction would still be applicable to their armed ships; those unarmed alone being within the additional immunity against British cruisers; and the armed as well as the unarmed ships of Great Britain being expressly within the additional responsibility of the United States. And, as to article 12, the Commissioners were instructed:

"It is much regretted that a provision could not be obtained against the practice of British cruisers, in hovering and taking stations for the purpose of surprising the trade going in and out of our harbours;

etc.

And the Secretary of State added, at the end of the instruction:— "To secure the advantage promised by this article, the right of search ought to be suppressed altogether, the additional space enjoying in this respect the same immunity as is allowed to the marine league. To this object the President wishes your endeavors to be directed."

If it please the Tribunal, Mr. Madison is writing there about the right of search in harbours-what he calls harbours-and he is seeking the incorporation of a special provision in the treaty to protect harbours. And after the express instruction of the British Government-the only concession that the British Commissioners would allow to be incorporated-was an extension of 2 marine miles beyond the range of cannon-shot from the shore, that is, 5 marine miles from shore.

Afterward, Mr. Monroe, who was one of the Commissioners, it will be recalled, and who, as I probably have already stated, was subsequently President of the United States, wrote to Mr. Madison a note regarding these articles 12 and 19 of the proposed treaty which appears in the Appendix to the United States Counter-Case, on p. 102:

"It is the sole object of the twelfth article to secure to the United States an accommodation, by extending their jurisdiction on their coast, in what concerns themselves, from three to five miles. The stipulation is unconditional as to them, but conditional as to other Powers, dependent on their acknowledging the same limit. It is made reciprocal, by being extended to the British Dominions northward of the United States; a circumstance which merits attention, as it precludes the idea that any other equivalent was expected or intended to be given for it."

I wish to bring to the attention of the Tribunal the fact that that statement of Mr. Monroe's, "by being extended to the British domin

ions northward of the United States," was not a conclusion of 642 Mr. Monroe's, but was a statement of a provision of the treaty, because the treaty applied to the dominions of both countries in North America.

And on p. 103 of the Appendix to the United States Counter-Case, Mr. Monroe continues

"The difficulty to obtain the accommodation which was yielded in the twelfth article was extreme. We labored most earnestly to extend it to other Powers without their consenting to reciprocate it in favor of Great Britain, but that could not be accomplished. The British commissioners urged that as Great Britain predominated at sea, and must lose by the concession in any form, it would be unjust for her to make the concession in their favour, unless they would allow her the advantage of it. Finding that it was impossible to extend the additional limit to other Powers on other terms, we thought it advisable to adopt the arrangement in respect to them conditionally, putting it in their power to accept or reject it as they thought fit. We flattered ourselves that as they could not lose by it, they would not refuse their assent to an arrangement by which they might gain, especially as it would prove advantageous to a friendly Power. We deemed it highly important to establish the additional limit in favour of the United States, from the advantage it might afford to their commerce within it, and from the effect which the measure seemed likely to produce on the future conduct of the British squadrons on our coast, by whom it could not fail to be considered as a severe censure on the past."

As the hour of half after four has arrived, I shall suspend my argument for to-day in accordance with the suggestion of the Tribunal, as I have already exceeded the usual limit of the session.

THE PRESIDENT: For the purpose of facilitating and of shortening the discussions, I should, on behalf of the Court, ask the counsel of both parties to tell us whether they understand the position of Great Britain to be that, under the renunciation clause of the treaty of 1818, United States fishermen have renounced the right to enter bays that are non-territorial as well as those that are territorial; that is to say, bays in the geographical sense of the word, without referring to their territoriality.

It will be quite sufficient for us to have the answer to this question from both sides to-morrow, at the beginning of our session tomorrow, at ten o'clock.

[Thereupon, at 4.30 o'clock P. M., the Tribunal adjourned until to-morrow, Friday, July 8, 1910, at 10 o'clock A. M.]

TWENTY-FIRST DAY: FRIDAY, JULY 8, 1910.

The Tribunal met at 10 o'clock a. M.

SENATOR ROOT: The Tribunal propounded a question yesterday which was in form addressed to counsel both of Great Britain and of the United States. And as the question related to the then understanding of the respective counsel as to the position of Great Britain, I think perhaps it would be appropriate for the counsel of the United States to answer the question first, because what Great Britain may say in answer to the question may possibly have the effect of modifying the views as to their position which we entertain. And I will ask leave of the Tribunal now to read the statement of the view of counsel for the United States upon the question put by the Tribunal, if it is the pleasure of the Tribunal?

THE PRESIDENT: Yes, Sir.

SENATOR ROOT: The counsel of the United States have the honour to answer the question asked by the President, in behalf of the Tribunal, on the 7th July, as follows:—

They understand the position of Great Britain to be that, under the renunciation clause of the treaty of 1818, the United States has renounced the right to have its inhabitants take fish in bays, in the geographical sense of the word, without referring to their territoriality, as stated—

1. In the British Case, p. 83:

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

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2. In the British Case, p. 103:

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

3. In the British Case, p. 104:

"The negotiators of the convention were dealing, therefore, with tracts of water on the shores of His Majesty's dominions which were known to everyone under the name of 'bays'-tracts of varying size and of varying conformation, some with greater and some with less width between their headlands, ranging from inclosures of considerable extent to inlets of small size. They used the term 'bays' without any qualification whatever, and the inference is irresistible, as His Majesty's Government submits, that the term was intended to apply to all the waters on those shores which were known to the negotiators and to the public, and were marked on the maps at the time, as 'bays.' If it had been intended that the term should apply only to a limited class of the waters which were then called ' bays,' an express limitation would have been inserted to give effect to that intention."

4. In the British Counter-Case, p. 43:

"There is no qualification of any kind in regard to bays, and the necessary conclusion is that the treaty meant what it said and applied to all those tracts of water on the British American coasts which were known as bays at the date of the treaty."

5. In the British Argument, p. 92:

"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 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: 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."

THE ATTORNEY-GENERAL: I will just add to the extract that my learned friend, Mr. Root, has read the last sentence of that passage on p. 92 of the British Argument. It follows on:

"It is abundantly clear that all the bays on these coasts were within British jurisdiction, but, in the view of His Majesty's Government presents, the question is not material."

I think I may add to that passage the answer to the question that the learned President put in very simple and concise terms. It is that Great Britain, while contending that the bays in question (referred to by the President) are in fact territorial, says also that the United States, by the terms of the treaty, have renounced for their fishermen the right to enter these bays, except for the purposes mentioned in the treaty itself-whether apart from the treaty these bays be territorial or be not territorial. We say they are territorial, but we say that, in view of the terms of the treaty of 1818, which contain an express renunciation, their territoriality is immaterial so far as this Tribunal is concerned.

THE PRESIDENT: Now, Mr. Warren, please continue your argument. MR. WARREN: Mr. President, immediately preceding the adjournment at the last session I had shown that the provisions of the Jay Treaty of 1794 relative to the questions now being considered would

expire in October 1807, and that there was no extension of jurisdiction by treaty in 1806.

It had also appeared that the negotiations betwen the two Powers disclosed that the extent of maritime jurisdiction recognised by Great Britain, in the absence of treaty stipulations or long-continued usage and acquiescence therein, was 3 marine miles from the shore.

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The negotiations for the treaty of 1806 also disclosed that there was no recognition of exclusive maritime jurisdiction over large bodies of water adjacent to the coasts of either Power, whenever called bays, and that any special provision, outside of the general clause fixing the extent of maritime jurisdiction, for the protection of harbours or chambers within headlands sought by the United States, was resisted by the Commissioners on behalf of Great Britain, under the terms of an instruction which is not in evidence, and is not produced in behalf of Great Britain.

The vexatious question of impressment remained unsettled, and, unhappily, provoked the war of 1812.

I shall now pass on to the war of 1812, and to the consideration of the effect of the negotiations for peace, following that war, upon the differences recited in the preamble to the treaty of 1818, and sought to be composed by that treaty.

The posture of affairs between the United States and Great Britain. induced the Congress of the United States to declare war in June 1812. The fortunes of war in that contest between the two Powers rested now with one side and now with the other; but in August 1814, Commissioners met at Ghent for the negotiation of terms of peace.

The protocols of the conferences between the Commissioners will be found in extenso in the Appendix to the Case of the United States, beginning with p. 242 and ending on p. 256. And the final report of the American Plenipotentiaries to the Secretary of State immediately follows the protocols of the conferences, commencing at the bottom of p. 256 and continuing to p. 259 of the same Appendix.

If the Tribunal please, I am pressing on to conclude within reasonable limits this argument, and I am not going to detain the Tribunal with reading the protocols of those negotiations. It is quite unnecessary to go into detail as to that negotiation, the results of which, after all, can be stated in a very few words.

The American Commissioners were instructed that the right to the fisheries was not to be brought into discussion. This appears at the top of p. 242 of the Appendix to the Case of the United States, where Mr. Monroe says:

"These rights must not be brought into discussion. If insisted on, your negotiations will cease."