Page images
PDF
EPUB

Then somewhat further on, on the next page, this language oc

curs:

"Great Britain did not recognize or concede any claim, upon the part of Russia, to exclusive jurisdiction as to the seal fisheries in Bering Sea, outside of ordinary territorial waters."

66

Then again on the same page the award reads:

no exclusive rights of jurisdiction in Bering Sea and no exclusive rights as to the seal fisheries therein were held or exercised by Russia outside of ordinary territorial waters after the Treaty of 1825."

Then a little further on, in the award, this statement occurs:"the United States has not any right of protection or property in the fur seals frequenting the islands of the United States in Bering Sea, when such seals are found outside the ordinary three-mile limit."

There, if the Tribunal please, is an award following a treaty between the two great Powers now before this Tribunal, in which the cannon-shot rule is identified with the 3-mile rule, and further discussion upon that question will I submit be needless before this Tribunal.

Mr. President, it has not escaped my attention, that when you first put this question to me at the morning session of Friday last, you made an inquiry as to the limitations, within which seals could be taken, which were fixed by the award. You did not include that phase in your statement of the question the second time, but I now desire to reply, in order to cover in full the question put by you, Mr. President, to that feature of your inquiry.

The Behring Sea Tribunal had the right, under the provisions of the submission, to establish, as between the citizens of the United States and the subjects of Great Britain, any regulations which the Tribunal considered reasonable in order to protect this industry, and under those provisions of the treaty submitting the matter to arbitration, the Fur Seal Tribunal found that it was advisable to prescribe a zone of 60 miles around the Pribiloff Islands, and to make regulations therefor. I will not further comment about that zone, because it is manifestly plain from the reading of the treaty itself that there was a special submission giving to the Tribunal the right to prescribe regulations that should be binding upon the two Powers, at least, who were parties to that submission.

I now pass to the question which Sir Charles Fitzpatrick put to me just before the close of the last session of the Tribunal, and which appears at p. 674 of the record of these arguments. The question is:

"SIR CHARLES FITZPATRICK: Before we separate, I understood you, Mr. Warren, to say that there had been no assertion of jurisdiction during the period intervening between 1812 and 1818 beyond those cases in which Judge Wallace had declared that there had been no violation of the territorial jurisdiction of Great Britain. I want to

draw your attention, at p. 308 of the Appendix to the Case of the United States, to the concluding paragraph of a letter in which Mr. Rush refers to some further captures and threatened condemnations. You might perhaps, on Monday, give us the details of these captures." SIR CHARLES FITZPATRICK: If you will give us the references I will be satisfied.

MR. WARREN: I refer you, Sir, to p. 42 of the Case of the United States, and desire to call particular attention to the sentence commencing at the bottom of that page and to the paragraph at the top of p. 43:

679 "It appears from the official record that nine of these vessels were seized while at anchor in Ragged Island harbor and one vessel at the entrance of that harbor; seven vessels were seized either in Cape Negro harbor or while entering or leaving that harbor; one vessel in the basin of Annapolis and one vessel in the Gut of Annapolis, within half a mile of land, and one vessel in the Bay of Fundy, one mile distant from Trout Cove. By reference to the map showing these localities it will be found that not only the places of seizure but also the places where the offences were alleged to have occurred were in every instance within three marine miles of the shore."

In the case of the United States reference is made by a foot-note to pp. 1076 and 1077 of the Appendix to the Case of the United States; and on pp. 1076 and 1077 of the Appendix to the Case of the United States will be found a copy of the Court Records of the Vice-Admirality Court at Halifax. This Court Record of a British Court sets out the details of the four seizures concerning which Mr. Rush wrote at the bottom of his note on p. 308 of the Appendix to the Case of the United States.

I pause only to add this, Sir Charles, to the references, that the note to which you were kind enough to refer, on p. 308 of the Appendix to the Case of the United States, bears date, as shown on p. 307, the 27th October, 1818, which was seven days after the date of the convention which is now before this Tribunal, and that Mr. Rush stated, as you were good enough to say, in putting the question, that he had noticed from the newspapers that certain seizures had been made of "our fishing-vessels," meaning American vessels,— "during the last season, followed by sentences of condemnation."

It is now apparent, that, inasmuch as the letter was written seven days after the treaty was signed, the seizures which Mr. Rush referred to occurred before the treaty was signed, because we know that, no matter whether Mr. Rush referred to American newspapers or English newspapers, the news of the seizures could not have reached Mr. Rush, who wrote from London, unless the seizures had been made before the 20th October, 1818, the date of the treaty.

Turning to pp. 1076 and 1077 of the Appendix to the Case of the United States, the abstract showing the places where the respective American vessels were seized, as shown from affidavits filed in the Vice-Admiralty Court in Halifax, discloses that on the 8th July, 1818, the "Raven" was seized in Mackarel Cove, lying at anchor, that the "Nabby" was seized on the 28th July, 1818, off Pope's Harbour, that the "Washington" was seized on the 28th July, 1818, in Lipscomb Harbour, and that the "Betsey" was seized in Lipscomb Harbour.

If the Tribunal will be good enough to refer to the charts which I handed in at the last session of the Tribunal, they will find that the locations of these vessels are designated on the charts, although, when referring to the earlier seizures which Mr. Rush was immediately concerned with, I did not more than mention the fact that the other seizures were located on the charts.

These are the four seizures, Sir Charles, to which Mr. Rush refers in the note appearing near the bottom of p. 308, and concerning which you made an enquiry.

I may add one other thing, that, in the Case of the United States which goes with great care, and with a minuteness which, it seems to me, is very creditable, into these seizures, the statement was made that every one of these seizures took place within 3 miles of land; and that while that statement was made in the Case served in October last upon the Government of Great Britain, the statement has not been challenged in the Counter-Case of Great Britain answering the Case or in the Argument presented before this Tribunal.

I now take up, Mr. President, the line of argument which I was pursuing at the last adjournment, unless there are some questions which the Tribunal cares to ask bearing on the two questions which I have undertaken to answer.

I was reading, just before adjournment, from p. 3 of the report of Sir Robert Finlay's argument, and I had read these words:

"The language of the Treaty must of course be read by the light of all the circumstances as they existed at the time when it was entered into, and the history of that time is, for that purpose, very material.

"There has been an immense amount of discussion with regard to what the meaning of the treaty is. That discussion has broken out from time to time, and upon it some of the acutest minds upon both sides of the Atlantic have been engaged."

It seems that it would be a matter of the first importance to examine the meaning given to the words of the treaty by the two Governments at the time of its making, and especially by their representatives who participated in the negotiations; and for that reason I desire to refer briefly to the report of the Commis

680

sioners of the United States to their Government, which bears date 20th October, 1818, the day the treaty was signed, and which transmitted the treaty to Mr. Adams, then Secretary of State of the United States.

This report will be found on p. 306 of the Appendix to the Case of the United States. Mr. Adams had instructed the Commissioners, as will appear, of course, from the instructions. I shall only pause long enough to again refer to the fact that Mr. Adams took occasion, as appears on p. 305 of the Appendix to the Case of the United States, to authorise the Commissioners on behalf of the United States to assure the British Government "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."

Nevertheless, although Mr. Adams had received from Lord Bathurst a statement of the extent of the exclusion insisted upon against American fishing-vessels, confining the demand for exclusion to waters lying within 3 miles of the shore, this Tribunal is now asked, by its Award, to determine that the President of the United States and his Secretary of State and the Senate of the United States approved this treaty without the United States requesting, on its part, a similar extension of jurisdiction over all bodies of water that might be known by the name of geographical bays indenting the possessions of the United States bordering the Atlantic Ocean.

It might be instructive to note the Message of the President of the United States of 29th December, 1818, to the Senate transmitting this treaty.

The Message merely transmitted the treaty, together with the correspondence and protocols making up the negotiations, as if no enormous change had been made by the negotiators in violation of the instructions of Mr. Adams. It will be recalled by the Tribunal that no proposals were taken by the Commissioners of the United States, ad referendum, and that no further instructions, other than the instructions read at the Friday session, were ever issued to the Commissioners. The Message of the President reads:

"I lay before the Senate, for their consideration, a convention signed at London on the 20th of October last, between the United States and Great Britain, together with the documents showing the course and progress of the negotiation. I have to request that these documents, which are original, may be returned when the Senate shall have acted on the convention."

The documents are the documents before this Tribunal.

I submit, if the Tribunal please, that it seems almost conclusive that an understanding between these two Governments prior to the actual signing of the treaty is shown by this correspondence, which was

then transmitted to the Senate, so definite that the use of the words "bays, creeks or harbors" in the renunciatory clause must have been understood between the two Powers as confined to those waters which are landward of the 3-mile line following the sinuosities of all the coasts, including all the coasts of the great bodies of water now claimed by Great Britain because they had been vaguely designated on some map as bays.

I have alluded, in passing, to the fact that the United States requested no similar recognition of jurisdiction.

If the British contention, as now put forward, should be followed in the Award of this Tribunal, and if exclusive jurisdiction should be granted to Great Britain as against the fishermen of the United States, no similar right would exist as to the waters along the coast of the United States.

It will be recalled, in this connection, that James Monroe, who was President of the United States in 1818, when this treaty was signed, was one of the negotiators of the unratified treaty of 1806, and that the United States had then sought, without success, to extend its jurisdiction in respect to a subject-matter-the operations of ships of war-which would be more readily granted, I submit, than would be a request concerning the exclusive right to these fisheries. It will also be recalled that a provision was sought by the negotiators for the United States in 1806 to close, against the war vessels of Great Britain, which were then engaged in impressing seamen upon the high seas, because of the war in Europe, what were called harbours and chambers within headlands, and that this proposal was resisted by the Government of Great Britain at the instance of the law officers of the Crown, at the request of the Admiralty of Great Britain, which appears from what I have already submitted to this Tribunal.

I wish, if the Tribunal please, to refer briefly to this report of the American Commissioners, dated the 20th October, 1818, found on p. 306 of the Appendix to the Case of the United States. It is as follows:

[blocks in formation]

"We succeeded in securing, besides the rights of taking and curing fish within the limits designated by our instructions, as a sine qua non. the liberty of fishing on the coasts of the Magdalen Islands, and of the western coast of Newfoundland, and the privilege of entering for shelter, wood, and water, in all the British harbors of North America. Both were suggested as important to our fishermen, in the communications on that subject which were transmitted to us with our instructions. To the exception of the exclusive rights of the Hudson's Bay Company we did not object, as it was virtually implied in the treaty of 1783, and we had never, any more than the British

« PreviousContinue »