subjects, enjoyed any right there; the charter of that company having been granted in the year 1670. The exception applies only to the coasts and their harbors, and does not affect the right of fishing in Hudson's Bay beyond three miles from the shores, a right which could not exclusively belong to, or be granted by any nation.

"The most difficult part of the negotiation related to the permanence of the right. To obtain the insertion in the body of the convention of a provision declaring expressly that that right should not be abrogated by war, was impracticable. All that could be done was to express the article in such manner as would not render the right liable to be thus abrogated. The words 'for ever' were inserted for that purpose, and we also made the declaration annexed to the protocol of the third conference, the principal object of which was to provide in any event for the revival of all our prior rights. The insertion of the words 'for ever' was strenuously resisted. The British plenipotentiaries urged that, in case of war, the only effect of those words being omitted, or of the article being considered as abrogated, would be the necessity of inserting in the treaty of peace a new article renewing the present one; and that, after all that had passed, it would certainly be deemed expedient to do it, in whatever manner the condition was now expressed. We declared that we would not agree to any article on the subject, unless the words were preserved, or in case they should enter on the protocol a declaration impairing their effect.

"It will also be perceived that we insisted on the clause by which the United States renounce their right to the fisheries relinquished by the convention, that clause having been omitted in the first British Counter-project. We insisted on it with the view-1st. Of preventing any implication that the fisheries secured to us were a new grant, and of placing the permanence of the rights secured and of those renounced precisely on the same footing. 2d. Of its being expressly stated that our renunciation extended only to the distance of three miles from the coasts. This last point was the more important, as, with the exception of the fishery in open boats within certain harbors, it appeared, from the communications above mentioned, that the fishing ground, on the whole coast of Nova Scotia, is more than three miles from the shore; whilst, on the contrary, it is almost universally close to the shore on the coasts of Labrador. It is in that point of view that the privilege of entering the ports for shelter is useful, and it is hoped that, with that provision, a considerable portion of the actual fisheries on that coast (of Nova Scotia) will, notwithstanding the renunciation, be preserved."

In the first place, the Commissioners referred to the waters, covered by the renunciatory clause, as British harbours, in the fifth line from the commencement of the report. That was their idea of the nature of the waters which were renounced by the renunciatory clause which is now being discussed.

In the second place I desire respectfully to call the attention of the Tribunal to the fact that, referring to the so-called exclusive rights of the Hudson's Bay Company, whatever they were, which it is not necessary here to discuss, they used the following language:—

"The exception applies only to the coasts and their harbours, and does not effect the right of fishing in Hudson's Bay beyond three miles

from the shore, a right which could not exclusively belong to, or be granted by, any nation."

The use of the phrase "applies only to the coasts and their harbours," seems most significant. The "coasts and their harbours" were to be excepted from the rights of the American fishermen, but beyond 3 miles from the coasts and their harbors, the fishermen of the United States would not be excluded, because rights in such waters, in accordance with this report, could not exclusively belong to any

nation.

JUDGE GRAY: Was not that language used in reference to Hudson Bay?

MR. WARREN: Most assuredly, your Honour, but it shows that the American Commissioners put the rights of nations in Hudson Bay on the same basis that they put the rights of nations in any other bay, because there was no essential difference between the law applicable to Hudson Bay and to any other bay. The treaty stated that the rights of the Hudson's Bay Company were not to be prejudiced, and with that exception there was no difference between Hudson Bay and any other bay. Hudson Bay was not one of the bays referred to in this treaty, and this Tribunal is, of course, not concerned with Hudson Bay, but the Hudson Bay was used by the Commissioners of the United States when stating their idea of the principle which governed in the negotiation. They say that coasts and their harbours only, in Hudson Bay, could be excluded from the common right of fishing, because, by the law of nations, the right beyond 3 miles from the shore could not exclusively belong to, or be granted by, any nation. The Commissioners for the United States referred to a principle and not to a particular body of water.

682

I pass now to one other paragraph of this report, which is on p. 307 of the United States Case Appendix:

"This last point was the more important, as, with the exception of the fishery in open boats within certain harbors, it appeared, from the communications above-mentioned, that the fishing-ground, on the whole coast of Nova Scotia, is more than three miles from the shores; whilst, on the contrary, it is almost universally close to the shore on the coasts of Labrador."

The Commissioners there stated that the fishing-ground on the whole coast of Nova Scotia is more than 3 miles from the shores.

This, I maintain and submit, if the Tribunal please, clearly establishes that the Commissioners for the United States believed that the term "of any of the coasts" applied to all the coasts and included all of the coast of Nova Scotia, almost half of which lies within what is designated by the counsel for Great Britain as a geographical bay; and shows that when these Commissioners reported to their

Government that the fisheries along all the coast of Nova Scotia were more than 3 miles from the shore they necessarily included the portion of the coast of Nova Scotia within what is designated as the Bay of Fundy as much as they included the portion of the coast of Nova Scotia which lies on the other side of the province.

I have before referred to the fact that in the treaty of 1763 between Great Britain, France and Spain, known as the Treaty of Paris, the very language of the treaty demonstrates conclusively that, historically, in this region of the world, the word "coasts," when used in these treaties, signified the curving shore-line of the entire coasts. JUDGE GRAY: Your contention is that, if you took the shores of the bays out, there would be very little coast left?

MR. WARREN: I should like to see a mathematical calculation of what there would be left on the coasts of Newfoundland, Nova Scotia, Prince Edward Island, New Brunswick, and Cape Breton if one confined the word "coasts" to the points that project out into the sea and called everything else bays. Such a calculation would be most instructive. It would not require much time to add the distances.

It may be inferred that, by reason of the treaty of 1818 being negotiated in London, the British negotiators forwarded no reports to Lord Castlereagh, His Majesty's Principal Secretary of State for Foreign Affairs, other than the one which appears on p. 86 of the Appendix to the British Case. Only one such report is printed in the British Appendices or produced here, but the evidence shows that others were made.

The instructions to the British Commissioners, disclosed in this one report, were to take the proposals of the United States as to the fisheries ad referendum. The report made in September 1818, before the treaty was signed by the Commissioners in behalf of Great Britain, which appears on p. 86 of the Appendix to the British Case submitted to this Tribunal, is most instructive and enlightening upon the interpretation of this treaty-as to what was understood by the term "British jurisdiction," and as to whether or not this report of the United States Commissioners is, as contended by the distinguished counsel, Sir Robert Finlay, quite immaterial.

I conceive that if it is shown that the report of the British Commissioners agrees with the report of the American Commissioners as to this Question, it would become quite material to make an inquiry as to what the understanding was.

If the Tribunal please, I will read from this report from the British Commissioners, about fifteen lines from the beginning:"With respect to the fisheries they observed"

this being the report of the British Commissioners to Lord Castlereagh, and referring to the American Commissioners as "they".

"that in consideration of the different opinions known to be entertained by the Governments of the two countries, as to the right

683

The word "right" refers to the contest that had been going on regarding the question of the survival of the rights under the treaty of 1783 by reason of the War of 1812, which, according to Great Britain, had abrogated certain of the rights of the inhabitants of the United States under the treaty of 1783, and which, in accordance with the contention of the United States, had not abrogated any of the rights. I continue reading:

"of the United States to a participation in the fisheries within the British jurisdiction, and to the use of those purposes of British territory."

The British Commissioners used the expression "within the British jurisdiction." What becomes of the contention of counsel for Great Britain in this submission that this treaty referred to geographical bays, and that the jurisdiction of Great Britain at that time is immaterial, and that the only enquiry is into the terms of the treaty?

JUDGE GRAY: Could they have granted fishery rights in any waters that were not within their jurisdiction?

MR. WARREN: Not to the citizens of the United States, your Honour. JUDGE GRAY: Or to anybody?

MR. WARREN: They might to France and Spain, which had been excluded from those waters by virtue of treaty contracts, but not to the citizens of the United States.

JUDGE GRAY: Well, I do not quite understand your answer if it is only (in looking at the passage to which you have referred us) that this is as regards the right of fishery within the British jurisdiction. Could they grant a right of fishery except in waters within their jurisdiction?

MR. WARREN: Most decidedly not, your Honour.

JUDGE GRAY: This is not with reference to the exclusion?

MR. WARREN: This is a reference to the entire negotiation, as to what they were negotiating about, namely, the right to resort along certain designated portions of coast to the British jurisdiction and the consequent surrender of the right to resort to the British jurisdiction and the consequent surrender of the right to resort to the British jurisdiction on certain other portions of the coast.

SIR CHARLES FITZPATRICK: It is perfectly obvious that it is just a statement of the claim of the United States to participate. That is all it is; it is nothing but that.

THE PRESIDENT: Does not the expression " within the British jurisdiction" refer to the distinction between the two branches of the treaty of 1783? The treaty of 1783 contains two branches; the first

as to the fishing in the open sea, and the second branch as to the fishing

"on the Coasts, Bays, and Creeks of all other of His Britannic Majesty's Dominions in America."

The British contention has been that the second of these branches has been abolished by the war of 1812; and if, in the further correspondence, they speak of fishing within the British jurisdiction, do they not mean the fishing in the sense of the second branch of the treaty of 1783, in contradistinction to the fishing in the sense of the first branch of the treaty of 1783?

MR. WARREN: If the President will permit me to read the question submitted I should prefer to answer it when I have read it, as I did not have the treaty of 1783 immediately before me when the question was put.

THE PRESIDENT: I can quite well conceive the difficulty in answering on the spur of the moment.

MR. WARREN: I do observe in regard to the term " within the British jurisdiction" that it shows clearly that the extent of "the British jurisdiction was without the controversy altogether-that had been defined. The instructions given to the Commissioners and the correspondence exchanged between the two Powers prior to the negotiations had put that question entirely out of the discussion; that was considered as settled and beyond controversy and "the British jurisdiction" was understood to extend only 3 miles from the shores, as now contended by the United States. I am not going to delay the Tribunal to again state that contention.

684

I call the attention of the Tribunal to one other paragraph in this report of the British Commissioners. I am reading from the nineteenth line of the letter on p. 86 of the British Case Appendix. The British Commissioners stated that "they desired "- -by "they" again the American Commissioners are intended—

"they desire to be understood, as in no degree abandoning the ground upon which the right to the fishery had been claimed by the Government of the United States, and only waiving discussion of it, upon the principle that, that right was not to be limited in any way, which should exclude the United States from a fair participation in the advantages of the fishery."

If the renunciatory clause, as brought forward by the American Plenipotentiaries, is to be construed as a virtual surrender of all rights to the fisheries in the great bodies of water adjoining the coasts of the British possessions in the North Atlantic, would the British Commissioners have stated in this note to their Government that the right to the fishery was not to be limited in any way which would exclude the United States from a fair participation in the advantages of the fishery?

92909°-S. Doc. 870, 61-3, vol 10-16