not a candidate, was in a receptive mood for the Presidency of the United States. He was in fact made President within two years thereafter. He was replying to this report of Mr. Russell's, which, although written in 1815, shortly following the signing of the Treaty of Ghent, was not in fact made public, for the apparent embarrassment of Mr. Adams, until 1822, which fact-the delay in publication-appears in the British Counter-Case, Appendix, on page 150. The publication of this report of Mr. Russell's, in 1822, gave rise to this controversy with Mr. Adams, and resulted, as I say, in the publication of this book, from which these extracts in the British Counter-Case Appendix have been taken.

In this controversy Mr. Adams was apparently seeking to justify the position of the majority of the Commissioners at Ghent, as against the position of Mr. Russell, in demanding the inshore fisheries as a matter of principle, and was undertaking to justify the contention put forward by the majority of the Commissioners in 1814 that none of the rights under the treaty of 1783 had been abrogated by the war of 1812.

Reading from this correspondence, on p. 161 of the British Counter-Case Appendix, the counsel for Great Britain made an observation regarding the effect of a statement there found.

No particular importance should be attached to this controversy, in any event, but it plainly appears from this correspondence that what Mr. Adams was arguing with Mr. Russell was that, if Mr. Russell had been able to persuade the majority of the Commissioners for the United States at Ghent to admit the worthlessness of the fisheries and the word "worthlessness" was used at the time by Mr. Russell the British Commissioners might have undertaken, in 1814, to obtain by a treaty stipulation the whole of the fisheries, and might have sought to insert in the treaty an exclusive right to the enjoyment of the entire fisheries, as such provisions had been incorporated in the French and Spanish treaties many years before.

There are one or two extracts from this report and correspondence that I desire to bring to the attention of the Tribunal. If the Tribunal will now kindly follow me to the separate report of Mr. Russell to the Secretary of State of the United States, dated the 11th February, 1815, made after the treaty had been signed, printed on p. 150 of the Appendix to the Counter-Case of Great Britain, there will be found the following statement, beginning at the bottom of that page:

"I now have the honor to state to you the reasons which induced me to differ from a majority of my colleagues on the expediency of offering an article confirming the British right to the navigation of the Mississippi, and the right of the American people to take and cure fish in certain places within the British jurisdiction."

Mr. Russell knew of the distinction that was drawn by the Commissioners at Ghent, and this Tribunal now knows, from the correspondence found in the pamphlet, as I have called it, what the instructions of Lord Castlereagh and Lord Bathurst were to the Commissioners at Ghent regarding the extent of British jurisdiction.

I wish to call attention to an extract, found on p. 162 of the Appendix to the British Counter-Case. This is a portion of the answer of Mr. Adams-one of the answers of Mr. Adams to Mr. Russell-and in it he makes this statement:

"It was this incident which led to the negotiations which terminated in the convention of 20th October, 1818. In that instru

ment the United States have renounced forever, that part of 661 the fishing liberties which they had enjoyed or claimed in certain parts of the exclusive jurisdiction of the British provinces, and within three marine miles of the shores."

On p. 165 of the Appendix to the British Counter-Case, in another portion of this correspondence, Mr. Adams said, in a rejoinder to Mr. Russell:

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"The conflict of opinion was adjusted by a new article,”

That is, in the treaty of 1818,—

as little liable to be abrogated by a future war, as the treaty of Independence. By this article, we have expressly renounced a small portion of the liberties within the exclusive and limited territorial jurisdiction of part of the British provinces, and have received in equivalent an enlargment of those liberties on the coast and shores of Newfoundland."

If the Tribunal will now turn to p. 168 of this same Appendix, I desire to read a portion of a letter, which also was not read when this correspondence was being discussed by the distinguished counsel for Great Britain. In fact, it is not a part of the correspondence of 1822 at all, but it is printed in connection with the correspondence of 1822, in the British Counter-Case Appendix. This letter, from which I am about to read, is a letter written by Mr. Adams, under date the 26th December, 1814, to one of the American negotiators of the treaty of 1783, and the Tribunal will bear in mind that the Treaty of Ghent was signed on the 24th December, 1814. So that Mr. Adams wrote this letter two days after the signing of the treaty:

"There is, as you must remember, in the third article of the treaty of 1783, a diversity of expression by which the general fisheries on the Banks are acknowledged as our right, but these fishing privileges within the British jurisdiction, are termed liberties. The British government consider the latter as franchises forfeited ipso facto by the war, and declared they would not grant them anew without an equivalent."

Mr. Adams was not labouring under any misapprehension two days after the signing of the treaty. And a little further down in that letter he states:

"It was termed a liberty because it was a freedom to be enjoyed within a special jurisdiction; the fisheries on the Banks were termed rights because they were to be enjoyed on the ocean, the common jurisdiction of all nations;

Mr. President, we are not confined to the correspondence between Mr. Russell and Mr. Adams, or to the memoirs of Mr. Adams, or to the letter just read, in order to show that there was no broad assertion of jurisdiction over waters adjacent to the shores of the British possessions in North America by the British Government through the negotiators of the Treaty of Ghent.

The Tribunal has now before it a portion of the instructions of Lord Castlereagh and Lord Bathurst to the Commissioners appointed to negotiate at Ghent. These instructions have been found amongst the letters and despatches of Lord Castlereagh, published in London in 1853, and on p. 4 of the pamphlet submitted to the Tribunal containing these instructions is an instruction from Lord Castlereagh to the British Commissioners in the terms which the Tribunal will recall. And it will also be recalled that in a later instruction appearing at p. 9 of that pamphlet, Lord Bathurst instructed the Commissioners that the usual maritime jurisdiction of one league was common to the two Powers unless modified by treaty.

In this connection I desire to submit the observation of Sir Charles Russell in the Behring Sea Arbitration, appearing at p. 318 of vol. XIII of the American reprint, where Sir Charles Russell, after reading this very instruction from Lord Castlereagh to the Commissioners at Ghent, stated at the top of p. 318

First I would direct the attention of the Tribunal to the fact that in the reprint of these Proceedings of the Behring Sea Tribunal there is an evident error, in that Sir Charles Russell's observation is printed as a part of Lord Castlereagh's instruction. The observation is plainly to be distinguished from the terms of the instruction of Lord Castlereagh for if the Tribunal will compare the extract from the instruction, as read by Sir Charles Russell, with the instruction printed in the pamphlet now before this Tribunal, it will be observed that they agree exactly down to the point where Sir Charles Russell makes this observation, after reading from Lord Castlereagh's instruction:

"You will see it is an entirely erroneous view to suggest that at any time and in any part of this discussion, Great Britain was asserting that the open sea was not open to all mankind as between the United States and herself, or that she was conferring upon the United States a privilege which she did not have as a general right."

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There is another portion of the argument of Sir Charles Russell on p. 317 of this volume that I would like to call to the attention of the Tribunal.

"It was merely a recognition of a right common to all nations, and as to the fishing on the coast, bays and creeks within the municipal dominion of His Majesty."

I will content myself with reading one other extract bearing upon this argument of the counsel for Great Britain that there were broad claims put forward as against the United States from which it might be presumed that the area of sea over which Great Britain claimed a right to exercise dominion was so vast, that it would include large bodies of water adjacent to the shore, and therefore include bays.

Lord Alverstone, the present Chief Justice of England, on p. 544 of this volume XIII of the American reprint of the Fur Seal Arbitration said:

"Mr. President, if that argument was worth anything at all it means simply this: that Great Britain (and Canada, representing the rights of Great Britain) have either prevented or claimed to prevent the United States from enjoying the rights of fishing outside the three-mile limit or outside territorial waters in the Atlantic. Sir, I will make good what I am about to say by reference, but I assert that since the year 1783 such a contention has been impossible, and if I choose to go back I say that long before that time the contention had disappeared; but from the year 1783 down to the present time, British, French, United States, and for all I know other nationals-but these are sufficient for my purpose-have been fishing side by side on the banks of Newfoundland 50 or 60 miles from shore, or whatever the distance is, without a shadow of a suggestion that the United States people were there either by grant, by sufferance, by treaty, or in any other way than as exercising the common right of all nations."

THE PRESIDENT: If you please, Sir: As you recur several times to the Behring Sea Arbitration, may I repeat a question which I asked this morning, and the answer to which you deferred: What was the position that the United States took in the Behring Sea Arbitration concerning its rights as the successor of Russia, in consequence of the treaties of 1824 and 1825?

MR. WARREN: Mr. President, if you will pardon me again, I am not intending to avoid stating fully the position of the United States in the Behring Sea controversy, nor is there any reason for avoiding it. I am going to reply in full to the inferences that might erroneously be drawn from the extracts from the proceedings of the Behring Sea Tribunal printed in the Appendix to the Case of Great Britain submitted to this Tribunal; but I had not expected at this session to present my views on that controversy, and have not at this moment before me the necessary books from which I would have to read.

Sir Robert Finlay did not rely upon the position taken by the United States before the Behring Sea Tribunal to support his con

tention against which I am at present directing my argument. At the next session, Mr. President, I will have the necessary books, and will answer at length the question which you have put to me.

THE PRESIDENT: I beg pardon. I merely thought that it would assist us in an appreciation of the facts concerning the Behring Sea controversy; that it would be better to have full cognizance of the case now. But if it is more convenient to you, we certainly shall wait.

Mr. WARREN: If the Tribunal please, I have now concluded whatever comment and citations it seemed advisable to make on the data which I designated this morning. This data was relied upon by Sir Robert Finlay to prove that both the United States and the Government of Great Britain were, immediately preceding the making of the treaty of 1818, and since have been, putting forth such broad claims of exclusive maritime jurisdiction as to preclude this Tribunal from finding that the claim by Great Britain, in 1818, to exclusive jurisdiction over bodies of water adjacent to the shores of its possessions in North America, was confined to a claim of jurisdiction over waters lying within 3 marine miles of the shores excepting always the irregular-shaped areas of waters which have been referred to as triangular bodies of water.

Mr. President, I will not state the conclusions necessarily resulting, it seems to me, from the review of this data, authorities and citations which have been presented bearing thereon, but will content myself with submitting to the Tribunal the argument as made, and with making this statement-that the contention of the learned counsel for Great Britain is entirely unsupported by the data upon which he relied.

I now come to the incident of the "Jaseur," from which arose the correspondence which afterwards became a basis for the negotiations that resulted in the treaty of 1818.

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Mr. Monroe, who was Secretary of State of the United States, wrote Mr. Baker, the British chargé at Washington, the letter that will be found in the Appendix to the Case of the United States on p. 262. The letter simply called Mr. Baker's attention to what Mr. Monroe said was an invasion of the rights of the United States. The Tribunal is entirely familiar with the fact of the warning to an American fishing-vessel by the British ship of war "Jaseur" in 1815.

Mr. Baker replied to Mr. Monroe's note, in a note which was found in the Appendix to the Case of the United States on p. 264.

I referred yesterday to this note, and observed its date, 31st August, 1815. Instead of reading from it again, I shall content my self with citing it.