p. 278 of the Appendix to the Case of the United States, and asked for instructions from his Government.

The Secretary of State authorised Mr. Adams, under date the 30th October, as appears in the United States Case Appendix, p. 287, to negotiate a convention providing for the objects contemplated, and Mr. Monroe, then Secretary of State, stated in this instruction, that it appeared from Lord Bathurst's note that the British Government denied the right of the inhabitants of the United States to take, cure, and dry fish within their jurisdiction. The Secretary of State added that any arrangement should be made so as not to weaken the right of the United States, and suggested either the reservation of mutual rights or that the agreement be made in the form of a remedy for abuses.

Mr. Monroe had himself participated in the negotiation of the unratified treaty of 1806, and he was also familiar with Lord Bathurst's statement of the British jurisdiction, as he had a copy of the note of Mr. Adams stating it, and possessed the entire correspondence between Lord Bathurst and Mr. Adams.

Negotiations in London were temporarily suspended, and Mr. Bagot, who had come to the United States as the first Minister from Great Britain after the war of 1812, undertook to adjust the dispute in Washington, conducting the negotiations with Mr. Rush, acting Secretary of State.

I am not intending to take up the time of the Tribunal with the details of that phase of the negotiations. The Tribunal has read the notes exchanged, and will recall that it appears from the notes that what was really sought, was an agreement upon some portion of the territory of Great Britain where rights of drying and curing fish could be enjoyed by the American fishermen. The right itself being insisted upon by the United States and denied by Great Britain.

I have referred to the instruction of Lord Castlereagh to Mr. Bagot, in which he laid down for the first time the extent of the surrender expected from the United States, not that it was to be a renunciation in the sense subsequently insisted upon in 1818 by the Commissioners on behalf of the United States, but that the inhabitants of the United States were to abandon all pretensions to fish or dry within the maritime limits on any of the coasts of the British possessions in North America other than those coasts to be agreed upon and designated by the treaty to be entered into. This instruction from Lord Castlereagh is found in the Appendix to the CounterCase of Great Britain, on pp. 175 and 176.

I have also called to the attention of the Tribunal the fact that Mr. Bagot adopted the words of Lord Castlereagh when communicating the offer of certain coasts to the Government of the United States, and it is unnecessary to go further into that. The note from

Mr. Bagot to Mr. Monroe commences on p. 289 of the United States Case Appendix, and the portion now referred to is on p. 291.

In any event, the offers of Mr. Bagot were declined, and Mr. Monroe notified Mr. Adams in February 1817, as appears on p. 284 of the Appendix to the Case of the United States, that the negotiations had been fruitless.

Mr. Adams, in April 1817, in turn notified Lord Castlereagh, as appears on p. 294 of the Appendix to the United States Case, that no satisfactory result had been reached; and, under date the 7th May, 1817, in a note found in the Appendix to the Case of the United States, on p. 295, Lord Castlereagh replied to Mr. Adams. In that note Lord Castlereagh stated:

"As soon as the proposition which Mr. Bagot was authorized in July last to make to the Government of the United States, for arranging the manner in which American citizens might be permitted to carry on the fisheries within the British limits had been by them declined."

There Lord Castlereagh again adopts the expression "British limits" as used and defined in these negotiations, I respectfully submit, and as defined in the correspondence then in the Foreign Office of Great Britain, and in the State Department in Washington.

Richard Rush became Acting Secretary of State in 1817. 667 Mr. Rush subsequently became Minister for the United States

in Great Britain, and one of the negotiators of the treaty of 1818, and in his position as Acting Secretary of State he had become familiar with the correspondence and with the understanding of the terms "territorial jurisdiction," "British limits," and other similar terms that were used in these negotiations. Mr. Adams, in his instructions to Messrs. Rush and Gallatin, as I have already stated, referred to the fact that Mr. Rush possessed copies of the correspondence between the two Governments.

Before any negotiation was concluded, twenty American vessels were seized within a British port within the 3-mile limit, by a British sloop of war called the "Dee," as appears in the Appendix to the United States Case, at p. 298.

Charts showing the location of these seized vessels and other vessels seized before and during 1818 are filed with the Tribunal. The charts show that they were all within the 3-mile limit. I shall not stop to comment upon these charts, but will hand in sufficient copies for the use of the Tribunal, and counsel for Great Britain will be provided with copies. There can be no question about the fact that these seizures in Ragged Island and Port Negro, near Cape Negro Island, were within the 3-mile limit.

JUDGE GRAY. What was the date of those seizures, I mean what year?

MR. WARREN: 1817 was the year, your Honour. It appears on p. 297 of the Appendix to the Case of the United States in a note written by Mr. Rush, Acting Secretary of State, to Mr. Bagot, under date the 4th August, 1817, that these vessels had put into the harbour at Ragged Island, on the coast of Nova Scotia, near Shelbourne, for protection, and that they were seized within the harbour. All of these vessels were subsequently released, as is shown by the records of the Court of Vice-Admiralty at Halifax, a copy of which is found on pp. 1076 and 1077 of the second volume of the Appendix to the Case of the United States.

The charts which have been submitted indicate the position of the vessels and the places where they were seized. The red lines show the width of the harbours-there are really two harbours, Ragged Island and Port Negro-and they establish that the harbours were less than 6 miles wide. The other red lines outside indicate the 3-mile limit.

SIR CHARLES FITZPATRICK: Did not these vessels go in for shelter? MR. WARREN: Yes, Sir Charles; so the American Government claimed.

SIR CHARLES FITZPATRICK: And they were released. What point is there in that?

MR. WARREN: They were not released by the Admiralty Court at Halifax because they went in for shelter; they were released under a decision by Judge Wallace, which is before the Tribunal, on the ground that there was no statute under which the Admiralty Court could take jurisdiction of the cases. The point is that the seizures were made within the 3-mile limit, and even then there could be found no British or colonial statute authorising the seizures.

THE PRESIDENT: That was before the treaty of 1818, and of course before the Act of 1819; and that was the statute which was wanting? MR. WARREN: A statute was wanting, Mr. President; I could not say that the Act of 1819 was wanting.

THE PRESIDENT: Yes.

MR. WARREN: I am referring to these seizures solely to show that Great Britain was not seizing vessels outside the 3-mile limit. I had no other object in referring to them than that.

It seemed to be necessary to the case of the United States to establish that there was nothing in the seizure of those vessels which conflicted in any manner with the position which it is claimed the Government of Great Britain was occupying, as to the limits of maritime jurisdiction.

JUDGE GRAY: As I understand it, you are now supporting your contention that Great Britain had never up to this time of the treaty of 1818 undertaken to assert any jurisdiction in any of these bays except within 3 miles of the shore? Is that it?

MR. WARREN: Yes, your Honour. There were no other seizures than those referred to in this note of Mr. Rush, and the seiz668 ures located on the other charts already handed to the Tribunal. All seizures before the treaty of 1818 were made inside the 3-mile limit.

I now come, if the Tribunal please, to the negotiations in 1818. Inasmuch as the commercial treaty of the 3rd July, 1815, between the United States and Great Britain, was about to expire by its own limitations, Mr. Adams, Secretary of State of the United States, in May, 1818, proposed a negotiation with Great Britain, which was agreed to on the part of Great Britain; and Messrs. Rush and Gallatin were appointed negotiators on behalf of the United States, and Messrs. Robinson and Goulburn on behalf of Great Britain.

On the 28th July, 1818, the Secretary of State transmitted to the American Commissioners his instructions regarding the negotiation, which are found on p. 304 of the Appendix to the Case of the United States:

"The proceedings, deliberations, and communications upon this subject, which took place at the negotiation of Ghent, will be fresh in the remembrance of Mr. Gallatin. Mr. Rush possesses copies of the correspondence with the British Government relating to it after the conclusion of the peace, and of that which has passed here between Mr. Bagot and this Government. Copies of several letters received by Members of Congress during the late session, from the parts of the country most deeply interested in the fisheries, are now transmitted.

"The President authorizes you to agree to an article whereby the United States will desist from the liberty of fishing, and curing and drying fish, within the British jurisdiction generally, upon condition that it shall be secured as a permanent right, not liable to be impaired by any future war, from Cape Ray to the Ramea Islands, and from Mount Joli, on the Labrador coast, through the Strait of Belle Isle, indefinitely north, along the coast; the right to extend as well to curing and drying the fish as to fishing."

The distinguished counsel for Great Britain, when referring to this instruction, made the observation, that if there had been any understanding as to what the British jurisdiction was, Mr. Adams was then reasonably called upon to state it. Why, if the Tribunal please, he referred to the correspondence that constituted the understanding, and stated that Mr. Rush possessed copies of the correspondence with the British Government, and between the United States and Mr. Bagot, and though Mr. Adams did not refer to the correspondence in terms as the basis, he used it as the basis of the negotiations.

In these instructions Mr. Adams, who had long been familiar with the entire controversy, and having in mind the statements of the British Government as to the extent of British jurisdiction, and the extent of water over which jurisdiction was asserted, and ear

nestly bent upon obtaining for his own State of Massachusetts and his country the rights for which he had so long contended and forcibly insisted, instructed the Plenipotentiaries of the United States in the language I have just read, using the term "British jurisdiction generally" in the sense he well understood it.

Mr. Adams' understanding of the British claim to exclusive jurisdiction, so plainly stated to him by Lord Bathurst, was in his mind when he drafted these instructions. There had been no controversy as to the extent of British jurisdiction. He was in accord with Great Britain as to the extent of the British dominions. The United States would surrender all rights "within the British jurisdiction generally;" that is, within 3 marine miles of the shores of British territory, comprehending the waters lying close upon the shores denied American fishing-vessels by Lord Bathurst, upon condition that the permanent right to fish, and to dry and cure fish within the British jurisdiction from Cape Ray to the Ramea Islands, on the Newfoundland shore, and from Mount Joli, indefinitely north on the Labrador coast, should be granted perpetually.

It was in these instructions that Mr. Adams added, on p. 305 of the United States Case Appendix:

"The British Government may as well be assured that not a particle of these rights will be finally yielded by the United States without a struggle, which will cost Great Britain more than the worth of the prize."

Is it to be concluded that the President of the United States, who, as Secretary of State in 1806, had refused even to submit to the Senate of the United States for its approval a treaty that denied to the United States any extension of jurisdiction beyond 5 marine miles from shore, although an article preventing armed vessels from seizing or searching vessels within the harbours or chambers formed by headlands had been proposed; who had been advised by the American Commissioners in 1806 that the extent of jurisdiction claimed by Great Britain was 3 marine miles from the shores of its possessions in North America; who had summoned the nation to war against Great Britain in 1812 for hostile acts committed within the harbours of the United States, now instructed his Secretary of State, who on his own part had been willing to sacrifice peace at Ghent to preserve the North Atlantic fisheries, to authorise the Plenipotentiaries of the United States to agree to an article acknowledging the exclusive British jurisdiction to comprehend great outer bays of vast extent and vital importance to the people of the United States, while he was also to commission them to assure the British Government that a fair adjustment failing, not a particle of these rights would be finally yielded by the

669