Of course it is out of the question that Mr. Bayard would have made this proposal if he thought that Great Britain had reduced her claim definitely to 3 miles.

Some correspondence took place with reference to this letter, and after Great Britain had made some comments upon the various proposals upon the memorandum which Mr. Bayard had sent to Mr. Phelps in the letter that I have just quoted from, Mr. Bayard made certain counter-observations, and these, together with the original memorandum, are found very conveniently set in three columns on each page, commencing with p. 416 of the British Case Appendix. In the first column will be found the arrangement as proposed by Mr. Bayard.

In the second column is the British observation on Mr. Bayard's memorandum.

In the third column is Mr. Bayard's reply to the British observations-p. 416 British Case Appendix.

It was the first article that dealt with the subject of " bays," and the general effect of it is as indicated in the letter which I have just read. The British reply, or the "observations," as the document is spoken of, on Mr. Bayard's memorandum, in the second column, took exception to reduction of the bays to 10 miles wide, upon the ground that it would involve a surrender of fishing rights which had always been regarded as the exclusive property of Canada.

And, in Mr. Bayard's reply, he made a statement that I desire to call the attention of the Tribunal to. It is on p. 416, the third column, and perhaps I had better read from the commencement:

"A prior agreement between the two Governments as to the proper definition of the bays and harbours' from which American fishermen are hereafter to be excluded, would not only facilitate the labours of the proposed Commission, by materially assisting it in defining such bays and harbours, but would give to its action a finality that could not otherwise be expected. The width of ten miles was proposed not only because it had been followed in Conventions between many other powers, but also because it was deemed reasonable and just in the present case;"

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It is very evident that Mr. Bayard, as also Mr. Webster, had never heard of the settlement in 1806 and 1815.

That correspondence resulted in the unconfirmed treaty of 1888. I am not going to more than mention it, because Sir Robert Finlay went fully into that matter.

I now, Sirs, am at the end of my references to the historical facts, and I hope that what I have said in opening has been justified to the full, by the more complete reference to the documents.

So far, as will be observed, I have been dealing with the construction of the treaty, the question being whether a bay means a terri

torial bay. I have now to pass to the question of International Law. Upon that I hope to be not very long.

Before doing that, however, I wish to say this, that when considering the question of what the word "bays" means in the treaty, I think there are only two possible significations that can be attached to it. There is the geographical or topographical, and there is the juristic meaning. We have been arguing for the geographical meaning, and I propose now to make that more secure by eliminating the juristic meaning.

If there were two meanings to the word "bays "-one geographical and the other juristic there might be a question as to which one we should adopt; but if there was no juristic meaning of the word "bays" in those years 1783 and 1818, then of necessity we must discard the idea of the negotiators having used the word in a juristic sense, and we are driven back to the adoption of the only other alternative, namely, the geographical.

Mr. Warren objects to the indefiniteness of "geographical bays." My objection to his alternative is not to the indefiniteness of International Law in 1783 and 1818. My objection is that there was no International Law as to " bays" in 1818.

And, I think, Sirs, in discussing this question of International Law, it is essentially necessary to make a distinction that did not seem to appeal very strongly to Mr. Warren's mind, and that is, the difference between unindented coasts and bays. Most nations probably now have agreed more or less definitely that on unindented coasts, a distance of 3 marine miles is the limit of territorial jurisdiction.

SIR CHARLES FITZPATRICK: Have the nations agreed to it, or have the text writers laid down the rule?

MR. EWART: The text writers have laid it down fairly unanimously, and some of the nations, at all events, I think, must be taken to have agreed to it. It has been referred to in the Alaska Treaty or the Alaska Reference. It is referred to as the "limit" in other places. The English decisions go back as far as 1801, and in other ways, although there has never been anything absolutely definite, yet I think I would have a difficult task if I had to contend now that Great Britain had not assented to a limit of 3 miles on unindented coasts.

What I can assert, and what, I think, I can prove very conclusively is that no nation had accepted that rule prior to 1783. I do not know the name of any nation that can be suggested that had accepted that rule prior to 1783, and that is the period we are most interested in. As to 1818, I can say the same thing, subject to this that the English decisions (which, of course, did not bind English political

action) had accepted the 3-mile rule. But if I can establish that, in 1783, there was no rule at all, and that the word "bays" meant the same thing in 1818 as it did in 1783, then, I think that I obviate all difficulty. Even if I should fail in that, I am still a long way from failing in the next position I should take, and that is that after all unindented coasts have nothing to do with the case. This is a question of what the agreement was as to bays, and I think I can fairly say that no nation, up to the present time, has ever applied the 3-mile limit to its own bays, whatever it may think of other peoples.

Now, Mr. Warren tried to make a distinction between the treaties of 1783 and 1818; but the draughtsman of the United States Argument had not thought of any such distinction, and, I submit, that there is none. In the first place, there is the recital in the treaty of 1818, which recites that differences have arisen respecting coasts and bays, so that the word bays is carried over in the recital from one treaty to another. Then, in the following pages of the United States Argument the Tribunal will find that the United States insists that the language in one treaty is to be judged by the language of the other-pp. 143, 144, 147, 228, 229, and 230. The only page I shall read from is 230, about the middle of the page:

"If any further evidence were needed that the negotiators were following literally the treaty of 1783, the almost identical lan797 guage used concerning the right to dry and cure fish would furnish it. Even the peculiar phrase without a previous agreement for that purpose with the inhabitants, proprietors or possessors of the ground,' is copied almost verbatim.

"It is submitted, then, that the treaty of 1818 was in many respects a Chinese copy of the treaty of 1783."

Now, Sirs, I wish to mention very hurriedly the circumstances which, I think, enable me to say that in 1783 there was no agreement amongst the nations as to unindented coasts.

In 1697, by the Treaty of Ryswick, Nova Scotia was restored to France, and Sabine indicates that the next war was because of the claim which France advanced to the sole ownership of the Newfoundland fisheries. These were the fisheries out on the sea.

In 1713 came the Treaty of Utrecht, by which the French were excluded to a distance of 30 leagues.

In 1763 Canada was ceded by the French to the British, and the French were excluded to a distance of 3 leagues from the shores in the gulf, 15 leagues from Cape Breton and 30 leagues from Nova Scotia and south of that.

In 1776 the United States proposed to France that, in the event of the lion being slain, they should divide its hide between them, by which, of course, I mean divide the fisheries.

Mr. John Quincy Adams, British Counter-Case Appendix, p. 165, said that in 1776:

"this fishery belonged exclusively to the British nation, subject to a certain limited participation in it reserved by treaty stipulations to France."

In 1779 the Congress of the United States admitted that Great Britain was entitled to exercise jurisdiction for three leagues along its coast. I refer to the British Counter-Case Appendix, pp. 18, 19, 21, 23, and 29.

In 1782, during the negotiations between Great Britain and the United States, Great Britain was still asserting its right to 3 leagues in the Gulf and 15 leagues from Cape Breton.

By the treaty of 1783 between Great Britain and France, France was still kept off to the distances that I have mentioned.

And, in 1783, in the treaty between Great Britain and the United States, it was thought necessary, by the United States, to get a specific declaration from Great Britain--an acknowledgment of the rights of the United States to fish, not only on the banks and on the open seas, but in the Gulf of St. Lawrence.

I refer also upon that point to the United States Argument, at p. 121, because there it is indicated that these broad claims of Great Britain were in full force down to 1783; and then, I fancy, the writer meant that they terminated only as far as the United States were concerned. The Argument says:

"Therefore, in these first negotiations and the subsequent treaty between the people of the United States and Great Britain, all broad claims to extensive jurisdiction in respect of the fisheries over the waters adjoining the coast of His Majesty's dominions in North America were abandoned by the Government of Great Britain with the recognition of the independence of the United States."

I refer also to the British Counter-Case Appendix, p. 183, the reference being to Mr. Dwight Foster's speech in the Halifax proceedings a little below the middle of the page:

"Those are the two treaties of 1763-the Treaty of Paris with France and the treaty with Spain. Obviously, at that time, Great Britain claimed for herself exclusive sovereignty over the whole Gulf of St. Lawrence and over a large part of the adjacent seas. By the Treaty of Versailles, in 1783, substantially the same provisions of exclusion were made with reference to the French fishermen. Now, in that broad claim of jurisdiction over the adjacent seas, in the right asserted and maintained to have British subjects fish there exclusively, the fishermen of New England, as British subjects, shared. Undoubtedly, the pretensions that were yielded to by those treaties have long since disappeared. Nobody believes now that Great Britain has any exclusive jurisdiction over the Gulf of St. Lawrence or the Banks of Newfoundland, but at the time when the United States asserted their independence and when the treaty was

formed between the United States and Great Britain, such were the claims of England, and those claims had been acquiesced in by France and by Spain."

I read from the British Case Appendix, p. 75, the statement of Mr. John Quincy Adams in his letter to Viscount Castlereagh in 1816:

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"The fisheries on the Banks of Newfoundland, as well in the open seas, as in the neighbouring bays, gulfs, and along the coasts of Nova Scotia and Labrador, were, by the dispensations and the laws of nature, in substance, only different parts of one fishery. Those of the open sea were enjoyed not as a common and universal right of all nations; since the exclusion from them of France and Spain, in whole or in part, had been expressly stipulated by those nations, and no other nation had, in fact, participated in them. It was, with some exceptions, an exclusive possession of the British nation; and in the treaty of separation it was agreed

and so on.

I quote next from the American reprint of the Behring Sea Arbitration, vol. ix, p. 156. This is the printed Argument put in by the United States in the Behring Sea Case:-

"It was contended by Great Britain and conceded by the United States that all those fisheries, both within and without the line of territorial jurisdiction, were previous to the revolutionary war, the exclusive property of Great Britain, as an appurtenant to its territory. On this point there was no dispute, although the fisheries in question extended in the open sea almost five degrees of latitude from the coast, and along the whole northern coast of New England, Nova Scotia, the Gulf of St. Lawrence, and Labrador."

Then, omitting a few sentences, the Argument continues in this way:

"Which side of this contention was right, it is quite foreign to the present purpose to consider. It is enough to perceive that it never occurred to the United States Government or its eminent representatives to claim, far less to the British Government to concede, nor to any diplomatist or writer, either in 1783 or 1815, to conceive, that these fisheries, extending far beyond and outside of any limit of territorial jurisdiction over the sea that ever was asserted there or elsewhere, were the general property of mankind, or that a participation in them was a part of the liberty of the open sea. If that proposition could have been maintained, the right of the Americans would have been plain and clear. No treaty stipulations would have been necessary at the end of either war."

I now wish to say a few words in reference to the remarks which Mr. Warren made in relation to the Behring Sea Case. He thought that the quotations which we had given in our Appendix were calculated to produce an erroneous impression. I concede, entirely, most of what Mr. Warren said, and I distinctly agree that Mr.