The Tribunal is entirely familiar with the fact that Great Britain claimed that the second clause of article 3 of the treaty of 1783 was abrogated by the war of 1812, and that the United States claimed the right to enjoy all the privileges recognised by article 3 of the treaty of 1783. At the first conference of the Commissioners at Ghent, the proceedings of which are recorded in the Appendix to the Case of the United States, on p. 242, this statement was made: "The British commissioners requested information whether the American commissioners were instructed to enter into negotiation on the above points. But before they desired any answer, they felt it right to communicate the intentions of their Government as to the North American fisheries, viz.: that the British Government did not intend to grant to the United States gratuitously the privileges formerly granted by treaty to them of fishing within the limits of the British sovereignty, and of using the shores of the British territories for purposes connected with the fisheries." As I have stated, it is quite unnecessary for me to go through these protocols. The result was that the Plenipotentiaries of both Powers expressed their willingness to omit any article referring to the fisheries, or to the navigation of the Mississippi by the subjects of Great Britain; the right of the subjects of Great Britain to navigate this river having been denied by the United States, and having been brought into the discussion. I shall depart from the direct course of my argument a moment to remind the Tribunal of the fact that there was an evident belief at the time of the making of the treaty of 1783 that the boundary fixed between the dominions of the United States and Great Britain gave British subjects access to the Mississippi River, and to the additional fact that when the boundary line was extended, it was found that the Mississippi River did not rise, and was not accessible in the territory of Great Britain. This brought the Mississippi River into the discussion at the conferences in 1814. The British Plenipotentiaries, in a note dated the 22nd December, 1814, to be found in the Appendix to the Case of the United States, on p. 256, stated to the American Commissioners: "The undersigned, returning to the declaration made by them at the conference of the 8th of August, that the privileges of fish645 ing within the limits of the British sovereignty, and of using the British territories for purposes connected with the fisheries, were what Great Britain did not intend to grant without equivalent, are not desirous of introducing any article upon the subject. "With a view of removing what they consider as the only objection to the immediate conclusion of the treaty, the undersigned agree to adopt the proposal made by the American plenipotentiaries at the conference of the 1st instant, and repeated in their last note, of omitting the 8th article altogether." 92909°-S. Doc. 870, 61-3, vol 10- -12 The 8th article was among those articles proposed, and was the article concerning the Mississippi and the fisheries. This note shows that the British Plenipotentiaries expressed a willingness, which the American Plenipotentiaries had already expressed, of omitting altogether the 8th article, which referred to the subject of the fisheries. The negotiations on this subject were accordingly at an end, and no reference was made in the treaty subsequently signed to the right of British subjects to navigate the Mississippi or to the right of the people of the United States in the fisheries, as appears, of course, by the treaty itself, which is among the documents here submitted. The treaty was signed on the 24th December, 1814. In the report of the American Plenipotentiaries to the Secretary of State, under date the 25th December, 1814, which will be found on p. 256 of the Appendix to the United States Case, the reasons were set forth at length for their refusal to agree to any article referring to future negotiations, the access to and navigation of the Mississippi, and the right of the people of the United States to fish within the exclusive British jurisdiction. In this same report the Commissioners for the United States reported the grounds upon which they had declined to bring into the discussion the right of the inhabitants of the United States to the fisheries-quoting from their report-" within the exclusive British. jurisdiction." I respectfully refer the Tribunal to this report, which I have already cited, and only care now to refer to the fact that the discussion concerned alone the liberty of the inhabitants of the United States to fish" within the exclusive British jurisdiction." I shall now take up, before passing to the consideration of the negotiations leading to the treaty of 1818, certain arguments advanced by counsel in opening this submission in behalf of Great Britain, drawn from data in the Appendix to the British Case largely, and in some instances from data included in the Appendix to the Case of the United States. On p. 29 of the report of Sir Robert Finlay's Argument he stated: "If the Court will turn to p. 125 of the United States Argument, there will be found a very sweeping statement which, if supported, would go some way to help the case made. The passage begins at the top of page 125, and it runs down to near the foot of the page:— "Before the consideration of the negotiations in 1818 to compose the differences between the two nations, it is important to review the diplomatic history of the two powers, which is material to this. Question, between the termination of the War for Independence in 1783, and the commencement of negotiations leading to the treaty of 1818, for the purpose of ascertaining how precise an understanding had actually been reached as to the limits of the exclusive British jurisdiction,' or 'the limits of the British sovereignty,' over the waters adjacent to the shores of His Majesty's possessions in North America. 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. "This review becomes the more important because of the erroneous conclusions in the Case of Great Britain drawn from incomplete data as to the extent of the maritime limits' in respect of the fisheries in 1818. "A careful reading and consideration of these prior negotiations between the two Governments regarding the extent of maritime jurisdiction discloses that before the Treaty of Ghent "That was the treaty of peace in 1814 "and antedating any discussion of the modification of the liberty of the people of the United States by reason of the War of 1812, it was well understood by the United States that Great Britain's claim of sovereignty over adjacent waters, or the territorial sea, in the North Atlantic was limited to three marine miles from the shores, comprehending only the bays and creeks therein contained.' "I will venture to say, sir, that that statement is not supported by any of the documents." 646 On p. 124 of the printed Argument of the United States are two paragraphs which were not read by the distinguished counsel for Great Britain. They are as follows: "When Lord Bathurst and Mr. Adams, Lord Castlereagh and Mr. Adams, Mr. Bagot, Mr. Monroe, and Mr. Rush as acting Secretary of State, and subsequently 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 territorial sea extending only three marine miles from the shores of His Majesty's possessions in North America, and comprehending only bays, creeks, and harbors found therein. "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." And on p. 137 of the printed Argument of the United States, after the notes which had passed between Mr. Adams and Lord Bathurst had been reviewed, and attention had been drawn to the statement of Lord Bathurst that the British Government did not intend to interrupt the fishing-vessels of the United States thereafter in the liberty of fishing, without the territorial jurisdiction, 1 marine league from the shore of all the British territories in North America, the statement is made: "Here was a formal, definite, and distinct understanding between these representatives of the two powers as to what constituted the limits of the British sovereignty,' or 'His Britannic Majesty's Dominions in America;' and throughout the negotiations thereafter, it was ever in the minds of the representatives of both powers that the 'British jurisdiction' in America or 'His Majesty's Dominion' was without question acknowledged to be limited, in respect of the fisheries, to one marine league from the shores of the British possessions in North America, within which lay the bays, creeks, harbors, and waters close upon the shores now denied to the vessels of the United States. This admission of the limitation of British jurisdiction necessarily implied that beyond such limit no right to exercise sovereignty was claimed as againt the rights and liberty of the people of the United States in respect of the fisheries." The negotiations resulting in the unratified treaty of 1806 have been reviewed with considerable detail, and it plainly appears that the Commissioners on behalf of Great Britain stated, in a note to their Government printed in the British Appendix at p. 61: "The distance of a cannon shot from shore is as far as we have been able to ascertain the general limit of maritime jurisdiction and that distance is for the sake of convenience practically construed into three miles or a league." And it also appears from those negotiations that while there was a desire on the part of the United States to make some broad provision for the waters between headlands, that the result of the negotiations was, I submit, that no such provision was inserted in the treaty, because of the resistance of Great Britain to the incorporation of such a stipulation in the treaty. The negotiations following the war of 1812 have just been reviewed, and it appears that the sole demand made in behalf of the Government of Great Britain was that thereafter, because of the war of 1812, the inhabitants of the United States should not be entitled, without an equivalent, to fish or dry and cure fish "within the limits of the British sovereignty." Counsel for Great Britain relies to prove that the statement in the American Argument which was read, but was not connected with the other extracts which I have just read, was without any evidence to support it-counsel for Great Britain relies I say on various treaties, notes, and documents to be found in both Cases submitted to this Tribunal, to establish that both the United States and Great Britain were making broad claims to exclusive jurisdiction over the high seas; so as to preclude the conclusion that the negotiators of the treaty of 1818 understood that the extent of Great Britain's claim to exclusive jurisdiction comprehended only the waters lying within the 3-mile limit. There is an evident attempt to avoid the necessity of proving the assertion of jurisdiction over bays in the Case, Counter-Case and Argument of Great Britain, and counsel relies in oral argument, instead of proving an assertion of jurisdiction over bays, upon certain evi dence which it is evidently hoped will be accepted in lieu of the complete failure to establish any assertion of jurisdiction over these great bodies of water, and the acquiescence in any assertion of jurisdiction by the United States. 647 These treaties, documents and notes, relied upon by the counsel for Great Britain, were: First, the Treaty of Utrecht, of 1713; Second, the treaty between Great Britain, France and Spain, of 1763; Third, the treaty of 1794 between the United States and Great Britain; Fourth, the note of Mr. Jefferson, when Secretary of State of the United States, to the Minister for France in the United States, in 1793 regarding Delaware Bay; Fifth, the note from Mr. Jefferson to M. Genet, Minister for France in the United States, in 1793, and the similar note from Mr. Jefferson to the Minister for Great Britain in the United States, regarding the extent of maritime jurisdiction asserted by the United States; Sixth, the note from Mr. Jefferson, when President of the United States, in 1804, to the Secretary of the Treasury of the United States; Seventh, the treaty between the United States and Great Britain of the 15th June, 1846, for the settlement of the Oregon boundary; Eighth, the position of the United States before the Alaska Boundary Tribunal; and Ninth, extracts from the memoirs of John Quincy Adams and from the correspondence between Mr. Adams and Jonathan Russell in 1822, arising in a political controversy and the separate report of Mr. Russell to the Secretary of State, which, though dated in 1815, was not made public until 1822, as appears from the correspondence. Taking up this data in the order in which I have stated it, proceed : I First to the Treaty of Utrecht, which is printed in the British Appendix, on pp. 6 and 7. The Tribunal is now familiar with the provisions of this treaty and will recall that by its terms the subjects of France were to be excluded from fishing off certain of the coasts of Nova Scotia within 30 leagues thereof. For the purpose of shortening the discussion, the treaty of 1763 between Great Britain, France and Spain, will be considered with the treaty of 1713. It will be recalled that by this treaty, Great Britain consented to leave to the subjects of France the right of fishing in the Gulf of St. Lawrence, on condition that the subjects of France did not exercise the fishery but within 3 leagues from certain coasts and within 15 leagues from certain other coasts. |