plains of this practice, and he is dealing then with the proposal of a treaty, or for a treaty which should put an end to it. He says:"The first article relates to impressments from American vessels on the high seas. The commanders of British armed vessels have, as is well known, been long in this practice. They have, indeed not only continued it, under the sanction of their superiors, on 1126 the high seas, but have with impunity, extended it to our own coasts, to neutral ports, and to neutral territory, and in some instances to our own harbors. The article does not comprehend these later cases.

That is the article which relates to impressments. He says:

"The article does not comprehend these later cases, because it would not be very honorable in Great Britain to stipulate against the practice of such enormities, nor in the United States to recur to stipulations as a security against it; and because it may be presumed that such particular enormities will not be repeated or unpunished, after a general stop should have been put to impressments.” So when they came to the draft treaty of 1806, when they were dealing with each other's territory, and forbidding and saying they would not allow foreigners to come and fight on or in their territory, they thought it unnecessary to repeat this stipulation as to "bays because they thought it was beneath their dignity. That means, that "bays" are so much a part of our territory, there is no need to mention it in the particular article of the treaty, and therefore they did not mention it.

That answers the question put by the learned President as to why, having mentioned them in 1794, when they came to a corresponding article in another treaty of commerce, in 1806, they are dropped out. THE PRESIDENT: By whom is that paper?

SIR W. ROBSON: This is by Mr. Madison to Mr. Monroe. He writes it in 1804, but the reason why it appears as instructions in 1806 is because I find another reference (p. 120 of this volume) where instructions are being given to the Commissioners who had to work out the treaty of 1806. There it is said:

"The instructions given to Mr. Monroe, January 5, 1804 ". the ones I have just read

"having taken into view and being still applicable to a great proportion of the matter now committed to your joint negotiations, it will be most convenient to refer you to those Instructions as your general guide,"

So that the instructions of 1804 were put forward as the guide for 1806. The Commissioners in 1806 saw this paragraph I have just read, saying: "We need not stipulate about bays, because we must assume they will be respected and treated as our own property," and therefore they did not repeat the stipulation in 1806 which they had put forward in 1794. Of course that was relating to impressments, it

was not relating to fishing, but it is an indication that the United States took up the position then which we take now, namely, your bays are yours, ours are ours, they are ours completely, ours so as to prevent impressments, ours so as to give us complete control over fisheries.

Now, I have come to 1806, and from the point of view of the United States argument that is an important period, but I propose to pass over it, because I am dealing now simply with the point put to me by the Tribunal.

It is said in 1806 that the parties negotiated for a treaty, but the negotiations came to nothing; nevertheless Great Britain at that time stipulated for a 3-mile limit, and that is the foundation on the part of the United States of their theory of the 6-mile bay. They said we got our 3 miles in 1806, and all we have got to do, when once we have got the 3-mile range, is to double it, and it gives us our 6-mile bays.

Well, now, they did not get their 3 miles, because the agreement made was 5 miles-the provisional agreement-and that went off on other ground. I am not going over that because I am not going to touch the United States contention. I am dealing with the other point, as to whether bays were dealt with separately, and I therefore come to the negotiations in 1814 and 1818, and they put this point really beyond argument.

I will take the passages upon which Mr. Warren relied, I will take the evidence and documents to which he referred, that is why I must present the appearance of inflicting a good deal of repetition upon the Tribunal, but I have to go over my opponent's ground in order to draw different conclusions from his facts. But let us see what the facts were in 1814. The United States had enjoyed this privilege of fishing in our bays since 1783. It had given rise to difficulty. It

was not so much, as Dr. Lohman points out, the fishing in 1127 the bays that gave rise to difficulty. It is very doubtful that

there was much fishing in the bays. It was the landing in

the bays that gave rise to difficulties.

Then came the things of which we complain. The Americans got there first, and took up places, and so on, and there was disorder.

But how were we to deal with the landing? There was only really one practical way of dealing with it. It was to say: "You shall not come into the bays at all." It was no use saying: “You may come into these bays where there is very little cod-fishing, but you shall not land." Therefore, the only way in which we could effectually prevent the occurrence of this mischief was to say: ❝ You shall not come in at all."

Now, that is what we said, and from this moment the "bays" are the principal thing to be considered. That is up to 1783 the "coasts" were the things that were the most talked about. "Bays

were fre

quently added as a mere etcetera, a mere part of the more general term, because there we were giving the right. Now we are going to withhold the right. And we intimate that it shall be withheld on the coasts which are not given to them by treaty, and also particularly withheld so far as the bays are concerned. The word "bay " begins to be more important than the word "coasts," and now I will ask the Tribunal in following this now so familiar evidence to see how the word "bay " becomes the dominant word in this enumeration of "coasts, bays, &c." "Bays" are the things they begin now to think about, and to take care about. I will in the course of dealing with this correspondence draw particular attention to those passages in which it will be seen that Great Britain demanded the renunciation. There are three or four of those passages to which I will draw attention as we come to them chronologically.

Mr. Warren put in this excellent little-booklet I will call it: "Notes from the Letters and Despatches of Lord Castlereagh," and if the Tribunal will kindly take p. 4 of that and refer to one passage, it will make my point clear throughout the succeeding letters.

Lord Castlereagh is writing to His Majesty's Commissioners appointed to negotiate, and the letter is the 28th July, 1814. He says on p. 4, speaking of the fishery, at the second paragraph [Appendix (A), infra, p. 1356]:

But the point, upon which you must be quite explicit, from the outset of the negociation, is the construction of the Treaty of 1783, with relation to the Fisheries. You will observe that the third Article of that Treaty consists of two distinct branches:-the first, which relates to the open sea Fishery, we consider a permanent obligation, being a recognition of the general right which all nations have to frequent and take fish in the high seas."

Now, the first one to be remembered was the Gulf of St. Lawrence in the bank fisheries:

"The latter branch ".

That included the bays and creeks. The latter branch was the liberty as opposed to the right.

"The latter branch is, on the contrary, considered as a mere conventional arrangement between the two States, and, as such, to have been annulled by the war. This part of the Treaty has been found to be productive of so much inconvenience, as to determine his Majesty's Government not to renew the provisions of it in their present form; nor do they feel themselves called upon to concede to the Americans any accommodation within the British Sovereignty, except upon the principle of a reasonable equivalent in frontier, or otherwise; it being quite clear that, by the law of nations, the subjects of a foreign State have no right to fish within the maritime jurisdiction, much less to land on the coasts belonging to his Britannic Majesty, without an express permission to that effect."

Now, said Mr. Warren, what is the maritime jurisdiction? He said it is 3 miles from the coast. Now, what is the maritime jurisdiction according to Lord Castlereagh?

When you turn to the treaty of 1783 and ask what is the latter. branch, the latter branch there is the liberty to take fish on the coasts, bays, and creeks. The first branch is the right to take fish on the Grand Bank, in this great Gulf, and in all the rest of the open sea. That is one branch. That is outside the jurisdiction. That is a right. Now, then, says Lord Castlereagh, the latter branch, which is not a "right," which is a "liberty," which comprises the maritime jurisdiction, that covers coasts, bays, and creeks.

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When one appreciates that, it is the keynote of the negotiation. It is the first letter. It is the keynote of the negotiation in 1814 and 1818, and really when one appreciates that, Mr. Warren's argument is at an end, because he read this very passage. He said maritime jurisdiction" means 3 miles, and therefore he said Lord Castlereagh meant there simply 3 miles from the coast. Not at all. Lord Castlereagh meant the bays and 3 miles from the coast. That is the maritime jurisdiction of England. That is the agreed maritime jurisdiction among all these nations.

It will become clearer as I go on, although I think it is clear there. The bays, then, are placed by Lord Castlereagh within our jurisdiction, and with all the consequences that follow upon that, the right to prevent foreigners from fishing there.

Now on the 8th August (this is merely a formal document), the British Government gave notice that they "did not intend to grant gratuitously the privileges formerly granted by treaty to them of fishing within the limits of British sovereignty "-now the limits of British sovereignty included bays-" and of using the shores of British territory for purposes connected with the fishery."

Then the same expression "British jurisdiction" is repeated in several letters Mr. Warren went through. He went through them with one meaning. I do not need to go through them again. "British jurisdiction" did not mean merely 3 miles, it meant something else as well.

Now we come to an important letter of the 18th October, which is in the same little booklet, p. 9 [infra, p. 1358]. It is at the bottom of p. 9 and the top of p. 10. This is Lord Bathurst to the Commissioners at Ghent:

"Secondly, the fisheries. You are to state that Great Britain admits the right of the United States to fish on the high seas without the maritime jurisdiction of the territorial possessions of Great Britain in North America; that the extent of the maritime jurisdiction of the two contracting parties must be reciprocal; that Great 92909°-S. Doc. 870, 61-3, vol 11-19

Britain is ready to enter into an arrangement on that point; and that, until any arrangement shall be made to the contrary, the usual maritime jurisdiction of one league shall be common to both contracting parties."

That meant the usual maritime jurisdiction as usually applied to the coasts, but it does not mean we are giving up our bays, it does not mean we are confining our claim to jurisdiction to the coast line alone, and letting you take it all around the bays. If there is any doubt about that it will be settled in the later letters.

And then it says this also. The extent of the maritime jurisdiction of the two contracting parties must be reciprocal. What was it that remained in doubt? Only the coast line. As to that Great Britain is saying, whatever coast line we fix, it must be the same for you. That required settlement, that coast line question, but there was no doubt about the bays, none. That did not require any negotiation. The only part of the maritime jurisdiction that required settlement was the coast line.

Of course that observation about "reciprocal" would have an application if one thought of the Delaware Bay incident. Supposing they were thinking of "bays" at the time (I do not know whether they were or not) but it would mean this: "If you are entitled to keep us out of Delaware, out of your bays, we are entitled to keep you out of ours. We are not going to give you a maritime jurisdiction superior to that which we keep for ourselves. Therefore it must be reciprocal."

Really, if full meaning be given to those words, how important they are on this question! What do those words mean except this: "Whatever we agree about jurisdiction you must agree to. You have claimed to exclude us from fishing in Delaware; we are to have the same right, whether we exercise it or not. If you get bays we get bays, and for whatever purpose you get them, we get them. In fact, reciprocity was the very basis of the controversy at that time. JUDGE GRAY: Do you attach any significance to that last sentence in that paragraph, they cannot agree to renew the privilege allowing Americans to land and dry?

SIR W. ROBSON: Yes; they cannot agree to renew the privilege allowing Americans to land and dry on the unsettled shores, and so on. JUDGE GRAY: I mean in view of the fact that in speaking of the maritime jurisdiction of 1 league, which you say is from the coast, they do not mention the bays at all, except to say that the privilege of landing and drying cannot be conceded.

SIR W. ROBSON: Yes, we would not grant it.

JUDGE GRAY: Would not the inference rather be this, that the limitation of 1 league from the shore that was settled on ultimately 1129 would apply to bays, and the only thing that they desired to call especial attention to was the privilege of landing and

drying?