These treaties were made in 1713 and 1763 respectively; and this Tribunal is now entirely familiar with the fact that by the third article of the treaty of 1783 between the United States and Great Britain, the inhabitants of the United States were to enjoy co-extensively with the subjects of Great Britain the right to fish on all the coasts, bays, creeks, and harbours of His Britannic Majesty's possessions in the North Atlantic Ocean.

The provisions of this treaty of 1783 would seem, alone, to be sufficient to establish that, as against the inhabitants of the United States, in respect of the fisheries, Great Britain, in 1783, and ever afterward, did not pretend to assert exclusive jurisdiction over any part of the high seas.

The nature of the rejected proposal of the Plenipotentiaries for Great Britain, to which I have called attention in these negotiations for the treaty of 1783, will be recalled by the Tribunal.

As to whether or not Great Britain was making broad assertions of jurisdiction over the seas adjacent to its possessions in the North Atlantic, against the inhabitants of the United States, I respectfully refer the Tribunal to four authorities, who, I submit, should and do settle this question. They are: First, Sir Charles Russell, afterwards Lord Russell, Chief Justice of England; Second, Lord Castlereagh, when he was Principal Secretary of State for Foreign Affairs of Great Britain; Third, Mr. George Canning, when he was Principal Secretary of State for Foreign Affairs of Great Britain; and Fourth, Lord Bathurst, when one of the Principal Secretaries of State in the Foreign Office of Great Britain.

Reading from the Argument of Sir Charles Russell, before the Tribunal of Arbitration at Paris to determine questions arising between the United States and Great Britain concerning the property rights in the fur seals in the Behring Sea, as reported in vol. XIII of the American reprint of the proceedings, on p. 315, will be found this statement:

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"In the first instance, let me point out that so far as any special rights were conceded by France

Sir Charles Russell was here speaking of these very treaties that I am now concerned with, of 1713 and 1763—

-I have told the Tribunal there were such-they were conceded by Treaty. So as regards Spain;-"

That refers to the treaty of 1763—

"but those Treaties only bound Spain and only bound France, and would not have interfered one iota with the right of any other nation over the area affected by them."

Then, referring to the treaty of 1783, between the United States and Great Britain, he said, on p. 317 of the same volume:

"It was an averment that these rights, theretofore existing in all British subjects, should have belonged as of right to those British subjects who by the rebellion had become the citizens of an independent nation."

And on p. 320, this statement is made by the President of that Tribunal, Baron de Courcel:

"The President: Might not there be a difference in respect of time? The historical exposé of Mr. Dwight Foster "—

Referring to Mr. Foster who was in the Halifax proceedings as the agent and also counsel for the United States

"which you have just read seems to me to be practically correct; that Great Britain may have asserted in previous times the doctrine of mare apertum in opposition to mare clausum which was not quite acknowledged, they asserted an exclusive right over part of those seas and fisheries which by progress of time and progress of ideas were considered abandoned, though they did not want to abandon it in fact. Towards the end of the 18th century it was not abandoned; but, perhaps, at the time of the Treaty of Utrecht it was not quite clear."

And Sir Charles Russell replied:

"I began by telling you, Sir, there were such claims made by Great Britain, and she professed to base those claims on Treaty rights conceded by France and by Spain. That is so. I did not stop to consider whether she would be justified under those treaties in making that pretension at all. I have stated what was asserted, what was put forward. There were certain Treaty rights, but that is ancient history."

The President then intervened with a question:

"The Treaty rights were limited to about one hundred miles.

Referring to the rights under these treaties of 1713 and 1763. Sir Charles Russell proceeded :

"As I have already pointed out, and you were good enough to assent to my statement I think, even if such powerful nations as France and Spain had conceded to Great Britain rights over an area of the sea, they would not have the power of giving to Great Britain that right as against the people of any other nation in the world on the high seas.'

Now, if the Tribunal please, Sir Charles Russell was afterwards the Lord Chief Justice of England, and his statements regarding law-and he was speaking of law at this time-are worthy of the greatest consideration in view of the source from which they come. Sir Charles Russell continued as reported on p. 320 of the same volume:

"Of course, when the United States became an independent power, one of the family of nations, it would have, in virtue of its sovereignty, the right to claim the free use of the high seas; but the point is this: that, from 1783 down through the whole of this negotiation,

Great Britain has never asserted, and the United States has never alleged that she was asserting, that the right of fishery in the nonterritorial waters was not a right that belonged to every independent nation. That is the point."

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JUDGE GRAY: Mr. Warren, may I ask a question? Is it conceded that, in international law, one nation may, by treaty obligation, treaty contract, with another, exclude itself from certain portions of the high seas?

MR. WARREN: Most certainly, your Honour.

At the bottom of p. 321 of this same vol. XIII of the American reprint of the proceedings of the Fur Seal Arbitration at Paris, this eminent authority continued:

"I leave this branch of the subject by expressing my agreement with the opinion stated on page 157 of the United States Argument, that there cannot be one international law for the Atlantic, and one 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."

JUDGE GRAY: May I ask you, for myself entirely, to read that passage again, the statement of Sir Charles Russell, where he alleges as a fact that Great Britain had never asserted, and the United States never alleged that it had asserted, certain things with regard to non-territorial waters?

MR. WARREN: I shall be very glad to do so, your Honour. It commences at the bottom of p. 320 of this vol. XIII :—

"Of course, when the United States became an independent power, one of the family of nations, it would have, in virtue of its sovereignty, the right to claim the free use of the high seas; but the point is this: that, from 1783 down through the whole of this negotiation, Great Britain has never asserted, and the United States has never alleged that she was asserting, that the right of fishery in the nonterritorial waters was not a right that belonged to every independent nation. That is the point.'

Turning to the Appendix to the case of Great Britain, submitted to the Tribunal of Arbitration at Paris, on p. 563 of vol. V of the American reprint of these Proceedings, a note will be found from Lord Salisbury to Sir Julian Pauncefote, under date the 2nd August, 1890.

Sir Julian Pauncefote was at that time Minister for Great Britain in the United States.

Lord Salisbury enclosed a letter dated the 27th September, 1822, from Mr. George Canning, then the Principal Secretary of State for Foreign Affairs of Great Britain, to the Duke of Wellington. That letter will be found on p. 574 of this vol. V of the Fur Seal Arbitration; and, reading from p. 575, Mr. Canning stated:

"I have, indeed, the satisfaction to believe, from a conference which I have had with Count Lieven on this matter, that upon these two

points the attempt to shut up the passage altogether, and the claim of exclusive dominion to so enormous a distance from the coast-the Russian Government are prepared entirely to waive their pretensions. The only effort that has been made to justify the latter claim was by reference to an article in the Treaty of Utrecht, which assigns thirty leagues from the coast as the distance of prohibition. But to this argument it is sufficient to answer that the assumption of such a space was, in the instance quoted, by stipulation in a Treaty, and one to which, therefore, the party to be affected by it had (whether wisely or not) given its deliberate consent. No inference could be drawn from that transaction in favor of a claim by authority against all the world."

THE PRESIDENT: What was the contention, please, Sir, of the United States in the Fur Seal Arbitration concerning the right of taking fur seals? What limits and what regulations were contended for by the United States?

MR. WARREN: Mr. President, if you will pardon me, I shall come to the position of the United States in the Behring Sea controversy at a time when it can be more properly treated in connection with other matters, and I shall then bear in mind the question put by the President.

THE PRESIDENT: Thank you.

MR. WARREN, resuming: Lord Salisbury also enclosed the instruction given by Mr. George Canning to Mr. Stratford Canning, when the latter was named Plenipotentiary to negotiate the treaty of 1825 between Great Britain and Russia, which followed the negotiations to which Mr. George Canning, the Principal Secretary of State for Foreign Affairs, referred in his letter, just read, of 1822, to the Duke of Wellington.

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It was this treaty between Great Britain and Russia of 1825 that the Alaska Boundary Tribunal was called upon to interpret, as between the United States and Great Britain.

I will read now from p. 572 of vol. V of the Proceedings of the Fur Seal Arbitration. This is what Lord Salisbury himself said in 1890:

"Upon this point the instructions given by Mr. George Canning to Mr. Stratford Canning, when the latter was named Plenipotentiary to negotiate the Treaty of 1825, have a material bearing. Writing under date the 8th December, 1824, after giving a summary of the negotiations up to that date, he goes on to say:

Now, passing over a part of the note, I resume reading at the bottom of p. 572, where Lord Salisbury quotes from Mr. George Canning's instructions to Mr. Stratford Canning:

"The law of nations assigns the exclusive sovereignty of one league to each Power off its own coasts, without any specified stipulation, and though Sir Charles Bagot was authorized to sign the Convention

with the specific stipulation of two leagues, in ignorance of what had been decided in the American Convention at the time, yet after that Convention has been some months before the world," and so on.

Mr. George Canning there refers to the fact that by the Convention between the United States and Russia in 1824, the United States had obtained an arrangement with Russia confining exclusive sovereignty to one league. The instructions of Sir Charles Bagot were correspondingly changed when that knowledge was conveyed to Great Britain, and before the treaty of 1825 was signed Sir Charles Bagot was instructed to obtain a stipulation similar to the one contained in the treaty of 1824 between the United States and Russia.

Lord Salisbury himself stated in his note dated August 2, 1899, on p. 570 of this vol. V:

"I do not suppose that it is necessary I should argue at length upon so elementary a point as that a claim to prohibit the vessels of other nations from approaching within a distance of one hundred miles from the coast is contrary to modern international usage. Mr. Adams [this is, John Quincy Adams] and Mr. Canning clearly thought in 1823 that the matter was beyond doubt or discussion.

"The rule which was recognised at that time, and which has been generally admitted both by publicists and Governments, limits the jurisdiction of a country in the open sea to a distance of three miles from its coasts, this having been considered to be the range of a cannon shot when the principle was adopted."

I pass now to the third subdivision of this data, that is, the Jay treaty of 1794, referred to in the argument of counsel for Great Britain. I discussed that treaty at yesterday's session, and will not go over it again.

In considering yesterday the treaty of 1806, I submitted to the Tribunal the facts that clearly established that the material provisions of the Jay treaty expired in October 1807 and, consequently, that treaty can have no bearing upon the extent of jurisdiction after 1807, and certainly no bearing upon the negotiations leading to the treaty of 1818.

The fourth subdivision of this date was the note of Mr. Jefferson to the French Minister in the United States in 1793 regarding Delaware Bay. As to that, the discussion of the action of Great Britain, the United States and France regarding Delaware Bay, will be taken up when the law applicable to this entire Question is considered in order to avoid going over the same ground twice, as this action must necessarily be fully gone into in the argument on the law.

I will now pass to the fifth subdivision of this data, the note of Mr. Jefferson to M. Genet, Minister for France in the United States, in 1793, and the similar note of Mr. Jefferson to the Minister for Great Britain in the United States, regarding the extent of the maritime jurisdiction asserted by the United States. The note of Mr.