THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES 61ST CONGRESS = = 3D SESSION DECEMBER 5, 1910-MARCH 4, 1911 SENATE DOCUMENTS VOL. 80 WASHINGTON : : GOVERNMENT PRINTING OFFICE : : 1912 61 ST CONGRESS \ BTTTMAT'TJ' /DOCUMENT 3d Session } SENATE j Na m NORTH ATLANTIC COAST FISHERIES PROCEEDINGS IN THE North Atlantic Coast Fisheries Arbitration BEFORE ,• THE PERMANENT COURT OF ARBITRATION AT THE HAGUE UNDER THE PROVISIONS OF THE GENERAL TREATY OF ARBITRATION OF APRIL 4, 1908, AND THE SPECIAL AGREEMENT OF JANUARY 27, 1909, BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN (IN TWELVE VOLUMES) VOLUME X WASHINGTON GOVERNMENT PRINTING OFFICE 1912 CONTENTS OF PROCEEDINGS. V. i 0 VOLUME I: Final Report of the Agent of the United States. Protocols of the Arbitration. Award of the Tribunal, and Dissenting Opinion of Dr. Drago on Question Five. Case of the United States. VOLUME II: Part I of the Appendix to the Case of the United States (Treaties. Stat- utes, and Correspondence). VOLUME III: Part II of the Appendix to the Case of the United States (Correspond- ence). VOLUME IV: Case of Great Britain. Parts I and II of the Appendix to the Case of Great Britain (Treaties and Correspondence). VOLUME V: Part III of the Appendix to the Case of Great Britain (Statutes). VOLUME VI: Counter Case of the United States. Appendix to the Counter Case of the United States. VOLUME VII: Counter Case of Great Britain. Appendix to the Counter Case of Great Britain. VOLUME VIII: Printed Arguments of the United States and Great Britain. VOLUME IX: Part I of the Oral Arguments before the Permanent Court (Sir Robert Bannatyne Finlay, Great Britain ; Honorable George Turner, United States). VOLUME X: Part II of the Oral Arguments before the Permanent Court (Sir Jjunes S. Winter, Great Britain ; Honorable Charles B. Warren, United States ; Mr. John W. Ewart, Great Britain ; Honorable Samuel J. Elder, United States). VOLUME XI: Part III of the Oral Arguments before the Permanent Court (Sir William Snowdon Robson, Great Britain; Honorable Elihu Root, United States). VOLUME XII: Appendices to the Oral Arguments before the Permanent Court. Indexes. m 8575S3 NORTH ATLANTIC COAST FISHERIES ORAL ARGUMENTS PRESENTED BY THE UNITED STATES AND GREAT BRITAIN BEFORE THE TRIBUNAL CONSTITUTED UNDER AN AGREEMENT SIGNED AT WASHINGTON ON THE 27TH DAY OF JANUARY. 1909 (IN THREE PARTS) PART 2 TABLE OF CONTENTS.* Argument of the Honourable Sir James S. Winter, K. C 543-598 Question 1 1 543-572 Newfoundland legislation not discriminatory 544 Position taken by Mr. Turner 544-6 Regulations examined in detail 547 Statute of 1862 547 Americans never fished for herring, but purchased it. 547-8, 550, 552 Inshore cod-fishery practically insignificant 549,553,581 No mackerel in Newfoundland waters 551 Regulations of herring fishery of most importance 551 Statute of 1892 553 Resuni6 of Newfoundland's position 554-5 Legislation of 1905 555 Sunday-fishing: Act of 1876 556 Statute of 1877 557 1879 558 „ 1882 559 „ 1891 559 1884 559-62 1889 562 1892 563 1893 563 1905 564-6 Fishery Regulations of 1908 567 General observations on regulations objected to by the United States 568 Bultows f 568-9 Purse-seines 570-2 Question 6 A primd facie case _1 572-3 Words "coast" and "coasts" 573—4 Reason for distinction between the Labrador and other specified coasts 575 Word "coast" in third article of treaty of 1783 575.578 Americans have no right to fish in any of the bays of New- foundland 577 Negotiations leading up to treaty of 1818 578-84 Newfoundland cod-fishery practically a bank fishery 584 No right of shelter by treaty in bays on west coast 586 Intention of negotiators in 1818 587-9. 591-2 Plural of " coast " used in speaking of Labrador because there are three distinct coasts 589-91 * The page references given in this Table of Contents are to the pages of the original publication, which are shown inset in this publication. VII VIII TABLE OF CONTENTS. Argument of the Honourable Sir James S. Winter, K. C. — Continued. Question 6 — Continued. Page. Mr. Dana's argument before Halifax Commission, 1877 593 Maxwell on " Interpretation of Statutes " 594 Treaty must be construed strictly 594 Question first raised by Sir Robert Bond in 1905, because con- troversy only arose in that year 596-8 A primd facie case upon construction of treaty . 598 Argument of the Honorable Charles B. Warren 599-739 Question 5 599 Introduction '. 599 Letter of Lord Stanley to Governor Falkland, 1845 600 Westlake on maritime jurisdiction 600 Lord Fitzmaurice's speech in Parliament 1906 600-1 Moray Firth case, 1906 601-2 British position as to "bays" 602-3 United States position as to "bays" 603-5 The " triangle " 605-7, 673 Illustrated by reference to St. George's and Chaleurs Bays 607-8 Inconsistency of British argument as regards so-called " historic position" of United States 608-10 Lieutenant Paine's Report, 1839 610-11 Case of the " Washington," 1S53 611 Are the words in 1818 treaty relating to bays taken from 1783 treaty? 612-13 " Gulf of St. Lawrence" in treaty of 1783 613-14 Cardwell letter, 1866 615-16 Kimberley letter, 1870 616-17 Lord Castlereagh to British Commissioners at Ghent 617 Position taken by Sir Charles Russell at Fur Seal Arbitration, 1893 617-18 Claims of maritime jurisdiction in 1818 619-20 Treaty negotiated in 1782 620-2 Treaties of 1713 and 1763 622-3 Historical rgsumS 623-6 Adams-Bathurst correspondence 626-7 Lord Bathurst's letter of 7th September, 1815, to Mr. Baker 628-9 Lord Bathurst's position as regards bays in 1815 630-1 Unconfirmed treaty of 1806 631-6,639-42 The "Twee Gebroeders," 1802_ 632-3 The "Ann," 1806 633 Distinction between " bays " and " coasts " ; authorities on inter- national law quoted 637-8 Jay Treaty, 1794 640 Question by Tribunal as to territorial ity of bays renounced 642 Replies by counsel 642-3 Treaty of Ghent, 1814 644-5 Use of word "bays" in various treaties 647-8 Contention that Great Britain was making broad claims of mari- time jurisdiction in 1818 647 1. Position of Sir Charles Russell at Fur Seal Arbitration, 1893 647. 656, 661 2. Position of Lord Castlereagh 661, 665-6 TABLE OF CONTENTS. IX Argument of the Honorable Charles B. Warren — Continued. Question 5 — Continued. Contention that Great Britain was making broad claims of mari- time jurisdiction in 1818 — Continued. Page. 3. Position of George Canning 649-50 4. Position of Lord Bathurst 661, 664-6 Jefferson's letters in 1793 650-1 Schiicking 651 Commonwealth v. Peters 651-2 United States v. Grush 652-4 Dunham v. Lamphere 654 Manchester v. Massachusetts 654-5 Treaty of Oregon, 1846 656 British position in Alaska boundary dispute 657-60 Adams-Russell controversy 660-1 Baker-Monroe correspondence 663-4 Adams-Bathurst correspondence 663-6 Seizures in 1817 667 Negotiations relating to treaty of 1818 668 Instructions of American Commissioners 668 Protocols of negotiations 069 Meaning of " any " 669-70 Meaning of "dominions" 671 " Coast " comprehends edges of bays 671-3 The " 3 miles " to be measured from intersection of 3-mile lines following indentations of coast 673-4 Behriug Sea or Fur Seal Arbitration, 1893 674-8 Seizures, 1812-1818 678-9 Report of American Commissioners, 1818 680-3 Meaning of " within the British jurisdiction " 683-4 "Intersection of the 3-mile lines" theory 684-5 Illustration as to Bay of Fuudy and Placentia Bay 685-6 Statements of Mr. Rush, 1833, 1853, and 1854 686-7 Charts handed in 688 Newfoundland Fishery Regulations, 1908, section 64, showing what Newfoundland considers a bay 689-92 J. Q. Adams' reference to Mitchell's map in 1823 692-3 Franco-American controversy, 1821-3 693-5 Significance of seizures in 1821-1824 695-6 Mr. Lyman's statement in 1828 697 Proof that there were cod-fish in the bays 698-701 Limits of Bay of Fundy, as understood by the parties in 1818 701-2 Mr. Tail's letter of 14th August, 1839 702-3 Lieutenant Paine's report, 1839 703-4 Case presented by Governor Falkland, 1841 704-5 The " Washington " and the " Argus," 1853 705-9 Everett-Aberdeen correspondence, 1844-5 706-7 Colonial laws 709-10 Mr. Webster's circular 711-13 Lord Malmesbury's position, 1852 713 Commodore Perry's admission 714 Commodore Shubrick : instructions and report 714-17 Cardwell letter, 1866—. _ 717-18 X TABLE OF CONTENTS. Argument of the Honorable Charles R. Warrep — Continued. Question 5 — Continued. Page. Canadian Customs Circular No. 371 719-21 Chamberlain-Bayard Treaty of 1888 721-2 Resiling of argument 722—4 Case of Delaware and Chesapeake Bays 724-5 Text-writers quoted in proof of position of United States 725^0 Holland 725, 734 Lord Blackburn (Conception Bay case) 726 Galiani 727, 7.38 Ortolan 727, 730 Philliinore 727 Heffter 727, 729 Azuni ___ 727, 738 Twiss 727, 730-1 Pradier-Fodere 727, 732 Fiore 728, 731 Rivier 728, 732 Ferguson 728, 732 Stoerk 728 Perels 728 Calvo 728, 731 Hall 728 Oppenheirn 728, 734, 736 Bynkershoek 729 Vattel . 729 Xeyron 729 G. F. de Martens 729, 738 Kliiber__ 729 Hautefeuille 730 de Cussy 730 Funck-Brentano 732 Testa : 732 Piedelievre 732 Despagnet 733 Liszt 733 Westlake 733 Nys 734 "Annuaire de 1'Institut de Droit International, 1894 " 735 Lord Stowell (Le Louis)-.! 735 Regina v. Keyn 735 Taylor 730 Wheaton 735 Kent 735 Grotius 736-7 Burlamaqui 738 Masse 739 Argument of Mr. John S. Ewart, K.C 740-871 Question 5 740-808 Great Britain has consistently held one view 740 Great Britain's position misunderstood by United States 740-1 Lord Stanley's position in 1845 740-1 Practical impossibility of applying Mr. Warren's theory 741-2 Treaties of 1686, 1778, and 1794__ 742 TABLE OF CONTENTS. XI Argument of Mr. John S. Ewart, K. C. — Continued. Question 5 — Continued. Page. Case of Delaware Bay 742 United States inconsistency 742-3 Controversy in 1839 742-3 Lieutenant Paine's report, 1839 743 The "fishermen's theory" 743 Mr. Webster's letter-proclamation of 1852 744-5, 748, 778-9 Debate in Senate of United States 744, 781-2 United States position at Halifax, 1877 746-7, 854 Difficulties of the new territorial idea 747 1. Changing treaty 747 2. Impossibility of proving theory by principles of inter- national law 747 United States inconsistency reverted to 748-9 "Territorial" contrasted with "fishermen's" theory 749-51 Difficulty of "the triangle" 751-3 Mr. Warren's new theory 753 United States argument based on British laxity 753-5 Meaning of "dominions" 755-6 What the negotiators understood 756-7 Illustration as to Fuca Straits 757-8 Mr. Adams' letter re " Jaseur " incident 758-9 Report of Messrs. Gallatin and Rush 759-61 Mr. Rush's letter of 1853 761 Instances of use of term "bays" in ordinary sense 761-2 Explanation of term " Gulf of St. Lawrence " 763 Treaty of 1783 764-5 1818 765-43 Events of 1824 766-7 Franco-American controversy, 1821-3 767-8 Mr. Vail's report, 1839 769-70 Lieutenant Paine's report, 1839 770-1 Everett-Aberdeen correspondence, 1843-5 . 771-7 Sabiue's report 776-7 Mr. Webster's unfinished memorandum 782—1 Admiral Seymour's instructions 784-5 Commodore Shubrick's instructions 785-6 Commodore Perry's admission 786-7 Lord Malmesbury's letter to Mr. Lawrence of llth August, 1852_ 787-8 Mr. Rush's letter to his executors in 1853 reverted to 789 Mr. Bayard's letter of 20th May, 1886, had to do with commer- cial privileges only 790 Canadian fishery instructions in 1886 791-5 Mr. Bayard's proposal for an arrangement 795 International law on subject of bays 796 Juristic and geographical meaning of "bays" 796 Treaties of 1783 and 1818; "bays" meant same thing in each case 796 Other treaties referred to 797 Mr. Foster's argument before Halifax Commission, 1877 797 United States position in Fur Seal Arbitration of 1893 798-9 Case of Delaware Bay 799-800, 804-5 Negotiations of 1806 800 XII TABLE OF CONTENTS. Argument of Mr. John S. Ewart, K. C. — Continued. Question 5 — Continued. Page. G. F. de Martens 801-2 The "Grotius rule" 803 Argument of United States in Alaska Boundary Case 803-4, 806-7 The " Alleganean " 804 Illustration of Fuca Straits 805-6 Treaty between United States and Mexico as to boundaries 806 American text-writers 807 Gould 808 Farnham 808 Question 2 _' 808-21 Universality of question 808 Three classes of persons to be considered 809 Position of parties in 1783 809 The statutes considered 80S) Statute of 1699 809,811 Statute of 1775 809-10 Statute of 1786 810 Situation in 1818 811-12 Statutes of 1824 and 1699 compared 812-13 Statutes of 1824 and 1906 compared 813-14 Treaty of Utrecht, 1713 814-15 Treaty of Paris, 1763 815 Hoot-Grey correspondence, 1905-6 815-17 Argument based on law of principal and agent 1 817-18 Delaware statute of 1871 818 Argument based on use of words " in common " 81S-19 Treaties of 1794, 1815, and 1871 819-20 Wickham v. Hawker; Bingham v. Salene 820 Question 7 821-5 Commercial privileges distinguished from industrial advantages. 821-2 Geographical advantages of colonial fishermen 823 United States position as to Pribyloff Islands 823 Memorandum on bait question 824-5 Question 1 825-71 Is this fishery to be regulated by two Governments or one? 825 Situation prior to 1783 826-8 Report of Committee of Congress, 1782 828-9 Mr. Adams' letter, 1822 830-1 Negotiations of 1782 831-2 Why fisheries were conceded 832-3 Meaning of " liberty " 833^ Contemporary testimony 834 How could concurrence have been obtained in 1783? 835 Articles of confederation between the Colonies in 1778 835-6. 837 Scope of article 4 of the treaty agreement of 1909 838-9 Dunham v. Lamphere; Manchester v. Massachusetts 840-2 Colonial regulating statutes, 1783-1818 842 Negotiations leading to treaty of 1818 842-3 Meaning of " in common " 843 United States v. Alaska Packers 843^ Restrictions mentioned in proviso not the only ones applicable to Americans __ 845 TABLE OF CONTENTS. XIII Argument of Mr. John S. Ewart, K. C. — Continued. Question 1 — Continued. Page. Statute and Order-in-Council of 1819 845-6 Statute of 1824 846-7 Extreme pretension of the United States 846-7 Sunday prohibition 847 Franco-American controversy, 1821-3 848 Mr Tail's report, 1839 848 Mr. Forsyth to Mr. Stevenson, 20th February, 1841 848-0 Boutwell circulars, 1870, 1872 850-1 Treaty of 1871 851-3 Mr. Trescott's position at Halifax, 1877 852-4 Evarts-Salisbury correspondence 854-7 Statute of Maine. 1883 857-8 American retaliatory statute, 1887 858 Geography and the treaty have given colonial fishermen some advantages 859 Security United States has that regulations will be reasonable 859-60 Previous attempts at joint regulation 860-1 Concept of servitudes 861-2 "Partition of empire" theory . 862-9 United States constitution: no State shall pass laws impairing obligation of contracts 869-70 Cooley on the constitution 870-1 Summary of argument 871 Communication from the Tribunal : detailed statement of par- ticular provisions of statutes and regulations, objected to by each party, asked for 872 Argument of the Honorable Samuel J. Elder 872-963 Circumstances leading to this Arbitration 872-3 Newfoundland and Foreign Fishing- Vessels Act, 1905 873 Sir Robert Bond's speech at Colonial Conference 873-4 Newfoundland statute of 1887 875-6 Bait Act of 1887 and Sir J. Winter's remarks 876 Unconfirmed treaty of 1888 877 Sir Robert Bond's speech in 1905 878-9 Blaine-Bond Treaty, 1891 878 Hay-Bond Treaty, 1902 878, 879 West coast herring fishery 878-9 Bait essential to American fishermen 879-80, 886 Right of Americans to employ Newfoundlanders 880-5 Modus vivendi of 1906 886-7 The "Mascot" 889 Imperial Government not desirous of hampering American fisher- men 890-1,901 Crane and Dubois incident 891,897 Hiring men just outside 3-mile limit 893 Sir Robert Bond's speech in Parliament, 1906, criticising modus vivendi 894-5 Mass meetings at Bay of Islands and Ferryland, 1907 895-7 Sir Robert Bond at Colonial Conference, 1907 896, 898 Root-Grey correspondence, 1905-6 «. 898-9 Insistence of Sir Robert Bond in having Question No. 6 submitted 900-J XIV TABLE OF CONTENTS. Argument of the Honorable Samuel J. Elder — Continued. page. Criticism of modus Vivendi by Newfoundland Parliament 902-3 Newfoundland's attitude avowedly coercive 903 Proceedings of Captain Alexander on west coast 904-6 Mr. Ewart's argument as to United States position in Alaska Bound- ary Arbitration 907-9 Question 2 909-934 Rights of "vessels" not claimed by United States 910 Right under treaty resides in United States 910-11 Sir Robert Finlay's argument 911 Effect of United States ship registration 911-12. 915 Mr. Root's position 912-14 United States fishermen must have registration or fishing licences 916-17 Great Britain entitled to certificates of identification 918 Explanation of Mr. Evarts' report, 1880 919 Kvarts-Salisbury correspondence ' 920-1 Imperial Statute of 1660 922 1699 922-3 1775 923-4 Fishing crews very composite in early times 924 Americans always hired Nova Scotians 925 French fishing crews are more homogeneous than any other 926 The fishery was always considered a trade 926 Binghani v. Salene 926 Wickham r. Hawker 926-7 Meaning of " inhabitant" 927 What Arbitrators as asked to answer under Question No. 2 of the submission 928-32 Mr. Whitelaw Reid's letter of 6th October, 1906 929-30 Summary of argument 931-2 The universality of the question 933-4 Questions 3 and 4 934 Meaning of "conditional" in Question No. 4 934-9 Difference between "report" and "entry" 935 Imperial Act, 1775 935 Question of smuggling 936 Seizure of Messrs. Pew and Sons' ship " Columbia," 1904 936-7 Impracticability of reporting ; danger of being frozen in 937-8 No report should be required under certain circumstances 938-9 Question 6 940-54 "Coast" used with same meaning in treaty of 1783 and 1818 940 Sir Robert Bond's contention 940-1,943 "Shores" as used in referring to Magdalen Islands 941 Intention of negotiators 941-2 French treaty rights on West Coast of Newfoundland 943 Meaning of "coast" in treaty of 1818 943-4 Meaning of "shores" 944-5 Law Officers' understanding of " shores." 1841 944-5 Maxwell on "Interpretation of Statutes" 945 Analogy from use of words " person " and " persons " in Statute of Uses _. 946 Anderson v. Anderson : Lord Esher and Lord Rigby 946-7 Report of Assembly of Newfoundland, 1845 ,. 947 TABLE OF CONTENTS. XV Argument of the Honorable Samuel J. Elder — Continued. Question 6— Continued. Page- Imperial Order-iu-Couucil, 1819 947-8 Lord Bathursfs letter, 21st June, 1819 948-9 Franco-American dispute. 1821^1 949 Proceedings at Halrfax, 1877 950-1 Case of the " Bayard " in Bonne Bay : 951 Bayard-Chamberlain Treaty, 1888 952 Minority report of United States Senate, 1888 952 Newfoundland Customs Circular of 1898 952-3 Summary of United States position 953-4 Question 7 954-63 Report of Mr. Daniel Manning, 1886 •_ 954-5 True meaning of question as submitted 955 Meaning of "otherwise" in Question 7 955-6 Proclamation of 1830 956-7 President Grant's message, 1870 957 That United States vessels have commercial privileges must be assumed; does treaty take them away from fishing- vessels? 958-9 United States system of registering vessels 959-61 ORAL ARGUMENTS BEFORE THE PERMANENT COURT OF ARBITRATION. 543 EIGHTEENTH DAY : MONDAY, JULY 4, 1910. The Tribunal met at 10 o'clock a. m. THE PRESIDENT: May I ask the Secretary-General to read a com- munication : — BARON MICHIELS VAN VERDUYNEN: The two counsel who have opened the case for both parties, having discussed all the questions, and some of them in all their details, the Court expresses the opinion that the four counsel who are next to follow might content them- selves with the discussion of those topics which have not so far been treated ex professo, and might succeed in doing so by taking to- gether not more than two weeks, that is to say, four days for each party. For the purpose of enlarging the time at the disposal of these counsel, the Court is willing, if wanted, to sit in the next two weeks in the afternon till 5 o'clock. Of course, it is expected that the counsel who close for the respec- tive parties will cover all the questions at issue without any limitation as to time. THE PRESIDENT: Now, Sir James Winter, will you address the Court? ARGUMENT OF THE HONOURABLE SIR JAMES S. WINTER, K. C., ON BEHALF OF GREAT BRITAIN. SIR JAMES WINTER: Mr. President and gentlemen of the Arbitra- tion,— I can assure you, in appearing to-day on behalf of Great Britain, as one of the counsel in this case, I am fully sensible of the importance of the trust which has been committed to me, in associa- tion with others, and of the gravity of the duty which I am called upon to perform. I am also deeply conscious of the inadequacy of the faculties and powers which I possess to deal efficiently with a 92909°— S. Doc. 870, 61-3, vol 10 2 911 912 NORTH ATLANTIC COAST FISHERIES ARBITRATION. task of such great magnitude. I am sustained by the hope and be- lief that I shall at least have the indulgence of the Court in the effort I shall make to present my part of the case, which indulgence has already, I think, been assured by the very patient and kind manner in which the Court has listened to the counsel who have preceded me. I am also sensible of the importance of presenting what I have to submit to the Court within as short a time as possible, not only be- cause of the great length of the* arguments up to the present time, but also from the intimation which has just been given by the Tri- bunal as to their views upon the matter. I shall endeavour, as far as it is possible, to follow the intimation given by the Tribunal, and to compress such observations as I have to make within as small a space as possible, having due regard to the great importance of the subject with which I have to deal. Anticipating the necessity for abbreviation, I may state that, as the result of conferences with my associates, we have arrived at an understanding that, so far as possible, those who immediately follow me, as well as myself, will divide the subjects and questions, among us in such manner that each one will address himself to particular questions and topics, so far as practicable, and with as little over- lapping or repetition as possible. Following that understanding, I propose this morning to begin by addressing myself to one branch only of Question No. 1, relating to the right of regulation. By one branch of the subject, I mean the observations that were made by counsel for the United States, Mr. Turner, towards the close of his address, when he referred particu- larly to the subject of the legislation of the Colony of Newfoundland relating to the prosecution of the fisheries, the methods, appliances, and so forth. With a view of impressing upon the Court, so far as I could under- stand his observations, he dealt with two leading and main ideas, for whatever bearing they might have, upon the ultimate decision of the question. These two leading and main ideas, so far as I could gather them, were that Newfoundland, in its statutes in relation to the fisheries, and the adoption under those statutes of regulations for the prosecution of the fisheries, had obviously and plainly 544 directed its legislation against the fishermen of the United States, and that it was of such a character as might be de- scribed, and was I think described by him, as discriminating — dis- criminating in favour of the fishermen of Newfoundland, as against the fishermen of the United States — and, in such a manner as not only to give the fishermen of Newfoundland an advantage over the fishermen of the United States, but seriously to hamper and interfere with and impede the fishermen of the United States in the liberty ARGUMENT OF SIR JAMES WINTER. 913 and freedom to which they were entitled under the terms of the treaty. His second ground of complaint against this legislation, statutory and by regulation, was, that the regulations in themselves were ob- jectionable, unnecessary, and such as he and those whom he repre- sented, did not approve of. Therefore, it would follow, as a conse- quence, that they would not have consented to them. Although the learned counsel did not put it in so many words, his argument and his observations had a very important bearing, not only upon the question I am immediately discussing, but upon the other very important question, which the Tribunal will have to con- sider. That is, the question of the consequence of the fishermen of the United States, or the United States, refusing their consent to the- legislation of Newfoundland. He not only tells us, on behalf of the United States, that the fishermen of the United States consider that this legislation, prohibiting this and forbidding that, is unnecessary, vexatious, unreasonable, and discriminating, but he goes further, at least by implication, in his observations, to the extent that, the United States, being a party, standing upon equal terms, upon an equal footing with Great Britain, or with Newfoundland (which is the same thing) in the framing of laws and regulations for the conduct of the fishery it would refuse its consent to legislation of the objection- able kind that he pointed out. However, without regard to this graver question, and the conse- quences that might follow upon taking such a course as this, upon which important question the Tribunal will have to determine, I will pass on to an examination of the legislation itself, and endeavour to put before the Tribunal such explanation as I am able to give for the purpose of helping the Tribunal to determine whether or not this legislation is open to the objection which the learned counsel has set forth. In order to understand the nature of his objections, to put them as clearly and as briefly as possible, I cannot do better than read the learned counsel's own observations, which are compressed, for the present purpose, within not a very long space. I will refer the Tribunal to the typewritten report of the learned gentleman's speech at p. 2826 [pp. 463-4 supra], because, for this purpose, that will be a convenient starting point. He says: — " I now pass on to the Consolidated Statutes of Newfoundland of 1892, chapter 124, which contain provisions with reference to the taking of herrings, and which the United States insists were mani- festly passed with a purpose to discriminate against the vessel-fishing of the Americans in favor of the shore-fishing of the local inhabit- ants, and which were likewise designed to give local vessels in the bank fisheries an advantage over American vessels in the matter of taking herring for bait. 914 NORTH ATLANTIC COAST FISHERIES ARBITRATION. " Section 1 of these Consolidated Statutes, to be found in the United States Case Appendix at p. 175, exhibits this discrimination to which I have referred : — " ' No person shall haul, catch or take herrings by or in a seine or other such contrivance, on or near any part of the coast of this colony or its dependencies, or in any of the bays, harbours, or other places therein, at any time between the twentieth day of October in any year, and the eighteenth day of April in the following year, or at any time use a seine or other contrivance for the catching or taking of herring, except by way of shooting and forthwith hauling the same, under a penalty not exceeding two hundred dollars: Pro- vided that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner, and not used for in-barring or enclosing herrings in a cove, inlet or other place. This section shall not apply to the coast of Labrador.' " Now the United States insists that that distinctly and clearly gives an advantage to the shore fishermen over the boat fishermen who, when they come there to fish, are compelled to conduct their operations from their boats, and who cannot conduct their operations in the peculiar manner by which the shore fishermen conduct theirs. These nets ' set in the usual and customary manner ' — I imagine that what they are is clear to the apprehension of everybody who has ever been around the sea where fishing is carried on, without calling any expert to determine what it is. They are nets set out from the shore, anchored to the ground, with floats which keep them from sinking, in which the fish come along in their natural course through the water and entangle themselves and are thereby caught. That is ' the usual and customary manner ' in which the herring are taken, as I understand it, by the local fishermen upon those shores. Under the theory of the American right there, which has been rigidly prescribed against them, they have no right to use the shores for any purpose whatever. They cannot anchor their nets there; they must conduct their fisheries from their boats, and with a seine, with which only a boat fishery can be conducted. 545 " Here we see in this provision to which I call the attention of the Tribunal, a prohibition against the catching of these herrings by seine or any other similar contrivance, between these extremely extended periods, and a proviso that nothing shall be con- strued to prevent the taking of herrings in nets set ' in the usual and customary manner' that is, by the usual and customary manner of shore fishing, — a provision which strikes me as exhibiting in the very clearest light the discriminatory character of the legislation to which the American fishermen have been and are subjected by the laws of Newfoundland. " This discrimination against the American fishermen is further illustrated by a consideration of sections 4 and 5 of these same Statutes." I shall not trouble the Court with those at present; I may have to refer to them later. For the present I will confine my observations to those parts of the learned counsel's address which relate to seines as distinguished from nets. He says: — ARGUMENT OF SIR JAMES WINTER. 915 " The comment to be made on that, of course, is very apparent to the Members of the Tribunal." Then he says at the top of p. 2850 [p. 467, supra] :— " So that, it seems to me that this testimony of this Royal Commis- sion in England, and of Professor Huxley and the gentlemen who were engaged with him in the investigation of the subject is that in so far as the decimation and destruction of the fish are concerned, these regulations against the peculiar manners of fishing are absolutely unnecessary and that after all if there were destruction to the breed- ing of fish shown in special measures of fishing, it is not found in the method of purse seine fishing, which is the only method by which fishing can be carried on profitably by a vessel from the United States, any more than it is found in the fixed nets of the local fisher- men, which entangle the fish, with the result that the fish, "being in- jured in their struggles to get loose, die and thereby decimate the fishery as much as the small fish which might be caught and de- stroyed in the purse seines. " Section 21 of these Regulations, to which I have been referring, contains another provision to which I desire to call the attention of the Tribunal, and which, I think, will be found to be discriminatory : " ' Unless otherwise provided, no person shall use a seine for the purpose of catching herring in any of the waters of Newfoundland, except exclusively for bait and for immediate use for that purpose in the fisheries, between the 1st day of April and the 1st day of August in any year.' " They shall not catch these fish with a seine during these particu- lar periods; yet, with reference to certain districts of the non-treaty, coasts, it was provided by section 24 of this same Act : " ' provided that herring may be taken at any time and by any means for bait purposes and for immediate use for these purposes in the fisheries.' " Now by section 25 of the Regulations dealing with the American treaty coast, the prohibition of section 21 was reinforced by this provision : " ' No herring seine or herring trap shall be used for the purpose of taking herring on that part of the coast from Cape LaHune, on the West Coast, and running by the West and North through the Straits of Belle Isle to Cape John. "An absolute prohibition upon the American treaty coasts against taking fish at any season of the year by seines, but permission, by sections 21 and 24, to take fish by these means, for bait and for imme- diate use, by the local inhabitants during any period of the year. The particular part of this coast to which I refer — Cape LaHune — commences, I am told, about thirty miles to the eastward of the Rameau Islands which are found here. It is an absolute prohibition to take any herring with the seine extending all around here down to Cape St. John which is here, these regulations having been made during the time that both the American and French fishery rights existed on this coast, being made to take in both the French coast and the American coast, and thus affording an additional reason to believe that they were made for the purpose of discriminating against the rights of foreign fishermen visiting those coasts. Thus, herring are to be taken at any time for bait purposes and for the purpose of the 916 NORTH ATLANTIC COAST FISHERIES ARBITRATION. local use of the inhabitants on all this coast with a positive provision against their being taken at any period of the year by seines upon the American and the French fishery coasts which commence approxi- mately at the commencement of the American coast on the south coast of Newfoundland and extend to the point where the French fishery began under their treaty with Great Britain." Then there is a section regarding Sunday catching which I pass over because it does not affect the immediate point, and then he con- cludes at the foot of p. 2852 [p. 468, supra] : — " Experts have a great many ideas upon this subject, but that is a novel idea to me and I think that the explanation of this provision with reference to herring is to be found, not in this idea suggested by Sir Robert, but in the fact of the peculiar manner in which 546 local fishermen carry on their fishery by fixed nets set out from the shore. They naturally want to go and visit their homes on Sunday." Here learned counsel mixes up the question of Sunday fishing, as I respectfully submit, with the other question as to whether it is necessary to make this regulation against the use of seines, and to forbid fishing on Sunday on account of its effects upon the fishery. He continues : — " Here are these fixed nets catching fish all the time for them. While they are observing Sunday their nets are working just as hard as ever they were and they do not want any other fishermen to come around and disturb these nets. That is the explanation of the pro- hibition against Sunday fishing and the hardship of making Ameri- can fishermen, whose families are across the sea and whose return to their families is thus prolonged, conform to this, as a convenience to local fishermen, is so obvious, to say nothing of the chance of the failure to which such interference subjects the fishing ventures. Upon this subject the Tribunal has only to turn to this Fortune Bay incident where it is stated explicitly that by virtue of the interference with the right to take this school of herring which had come into Fortune Bay on Sunday, the vessels were compelled to return to the United States without any catch of fish whatever, this fish being elusive, going into particular places at their own pleasure and not observing Sunday like we do, and when they go in there it being necessary to take them or not take them at all at that time." Now, Mr. President, in making these observations, the learned counsel must have left upon the mind of any person who listened to him the impression, although he did not state it in so many words, that large seines were used, on one side, by the American and that, on the other side, nets — the smaller article — catching fish in smaller quantities, were used by the people from the shore ; that the nets that he speaks of were fixed from the shore and, therefore, that only New- foundland fishermen could use them; and, secondly, that the New- foundland fishermen did not use seines. The general impression that was left from his observations, I think, was that this was a dis- ARGUMENT OF SIR JAMES WINTE&. crimination, or rather legislation which allowed Newfoundland fish- ermen to use nets from the shore and forbade American fishermen using and catching fish by seines from their boats. That was the impression which, I submit, must have been left upon the mind of any person who heard the argument; in fact, that is the only sense in which this charge of discrimination, I think, can be of any force or effect. Xow, learned counsel failed to state to the Tribunal the whole facts of the case. When I say the " facts of the case " I refer to the cus- toms, usages, and practices observed in carrying on the fishery on this part of the coast as well as on all parts of the coast. The fact is that seines were used before this legislation was enacted, and have been used ever since, down to the present time by the Newfoundland fishermen. This legislation was and must have been directed prin- cipally against Newfoundland fishermen. The legislation, merely by accident, happened to be passed when the United States fishermen had the same rights to catch fish upon the coasts as Newfoundlanders had. in 1862, when the Reciprocity Treaty of 1854 was in force, but since that time — and the legislation was intended for all time — it has been kept in force against the fishermen of Newfoundland, and in relation to those parts of the coast where the Americans have no right to fish. I may go further and say that at the time of the pass- ing of this legislation the only fishery carried on by means of these seines was carried on in the waters of Fortune Bay and its vicinity, and that had been carried on by the Newfoundland fishermen only, and not by the fishermen of the United States or any other country. That fishery was carried on by the use of these large seines at certain seasons of the year in the waters of Fortune Bay and it was found that the herring fishery was being injured; or, at any rate, it was a fact that the herring fishery was dwindling away, or being injured by some cause or other, and the cause of that injury was supposed, and is still supposed to be the use of seines by our fishermen and the catching of enormous quantities of herring, particularly in the spring, in the months of March and April, as well as also by the taking of herring during the spawning season. The legislation was directed to- wards the protection of herring from the two methods of injury: one, the taking of herring in large quantities at the spawning season ; and, the other, the practice which had prevailed of taking herring in very large quantities in the spring; by which methods it was supposed that the herring fishery had been damaged and diminished. Those against whom that legislation was directed, therefore, in the first place, were the fishermen of Newfoundland; certainly it was not against the Americans, because neither then nor at any other time, except once, so far as we can discover, have the Americans ever used seines for the purpose of catching fish in Newfoundland waters. 918 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 547 The exception to which I referred was at the time of the occur- rence in Fortune Bay, when the question was raised and dis- cussed to some extent, but not disposed of or finally settled either one way or the other, but in so far as my researches have enabled me to discover, this is the only case in which the Americans have availed themselves of the opportunity of using seines for the prosecution of the herring fishery in Newfoundland. Another misconception on the part of learned counsel SIR CHARLES FITZPATRICK: Do you say that legislation originated in 1862? SIR JAMES WINTER : I have taken the legislation of 1862 SIR CHARLES FITZPATRICK: I do not want you to go into details; I put the question — do you say it originated in 1862? SIR JAMES WINTER: Yes, Sir. SIR CHARLES FITZPATRICK : That is all I want to know. SIR JAMES WINTER: I am not positive whether there was legisla- tion to the same effect before 1862. My recollection rather is that there was legislation in 1858, or thereabouts. My observation was for the purpose of showing that since 1862 this legislation has been in force. The other point with regard to which the statements of learned counsel were not exactly consistent with the facts is his de- scription of the manner in which the shore fishermen set their nets. It is quite true that the shore fishermen set their nets, and that sometimes they do operate from the shore in the sense that their boats row out from the shore for the purpose of setting their nets, but it is perfectly competent, perfectly easy, and, as a matter of fact, it is done repeatedly — over and over again, continually, although not quite universally — that nets may be set without any connection with the shore whatever, that nets may be set from a vessel or from a boat, moored in the water, watched and tended, and the fish hauled and taken from these nets, just as well as from the shore and some- times better, and that it is and always has been perfectly competent for the American fishermen, in the full exercise of their rights, to catch herring by means of nets from their own vessels and with their own boats. There is one explanation of the whole matter, one obser- vation, or one statement of fact, which applies to the whole case, and which may be taken as running through the whole case, and that is that down to 1905 it was more profitable and convenient for the Americans to come down and purchase in small quantities from our people such herring as they required — which were only for the purpose of bait and not for the purpose of selling in the market as an article of food. The business in which our people were engaged was that of selling herring as an article of food every season to for- eigners and exporting it. That is the real purpose for which the Newfoundland people caught herrings. The United States fisher- ARGUMENT OF STR JAMES WINTER. 919 men never engaged in the prosecution of the fishery for the purpose of selling herring as an article of consumption or as an article of exportation upon a large scale. The Fortune Bay incident was only one case, and an entirely exceptional one, in which it appears that the United States fishermen, or one of them, had ever thought of en- gaging in this industry. In this case one of these American fisher- men thought it would be a profitable undertaking to come down to the Newfoundland shore and make a haul of a large quantity of herring. He came down for that purpose at a season when, it ap- pears, the law forbade the taking of herring by seines, but he did it, I presume, on the advice that a law of Newfoundland forbidding the taking of herring at that season, did not apply to the American fishermen, and that they would not be bound by it. However, that is a mere speculation as to what may have been in his mind. I merely now point to the fact that the Fortune Bay incident is the only case, as far as I know, upon record, in which any American fishermen have engaged in that business, or have intended to engage in the business of catching herring by means of seines in Newfound- land waters. So that the legislation which is complained of as being directed against Americans, and only against Americans, was, in point of fact, directed against the Newfoundland fishermen, and only against the Newfoundland fishermen, and the Newfoundland fishermen, from that time down to to-day, have been governed by that legislation and have submitted to it, because, in their own be- lief and in the belief of their representatives in the Legislature, the provision is necessary for the protection and preservation of the industry, and it has been adopted for that and for no other pur- pose. 548 Now, Mr. President, having stated merely in outline these broad facts in relation particularly to the shore fishery, I would ask the Tribunal to follow me while I make a statement, as brief as I can under the circumstances, as to the course of legislation which has taken place in Newfoundland in the nature of the regula- tion of the fisheries for the purpose of examining it in relation to the observations made by learned counsel on the other side in order that we may discover how far his broad and general observations as to the discriminatory character of this legislation and as to its being un- necessary are sustained by the facts of the case. Before looking at the legislation in detail, I would make this statement of an important matter of fact and of history, and it is that until the year 1887 the United States fishermen had always been permitted to purchase bait and supplies freely in the treaty waters. However, in that year, the Newfoundland Legislature passed the Bait Act, as it is called. It was amended in 1888 and 1889 ; it was re-enacted in 1892, and in 1893 another Act was passed, called the Foreign Fishing- Vessels Act. I 920 NORTH ATLANTIC COAST FISHERIES ARBITRATION. unite these two together for the purpose merely of bringing out the fact that the legislation was of this character in both Acts, namely, that they both contained provisions, regulations, and clauses under which the American fishermen were enabled to procure bait by pur- chase from the Newfoundland people. These Acts are still in force. In 1888 an effort was made to effect a permanent arrangement with the United States for the protection of the fisheries, and a treaty was arranged with the United States, but the contemplated arrangement finally fell through because the treaty wTas not confirmed or accepted by the Senate of the United States. Under the modus vivcndi be- tween the parties, which was arranged when the treaty was agreed upon at first by the Commissioners, and which extended over a period of three years, the United States fishermen were enabled to procure bait in the waters of Newfoundland by simply applying for and taking out a licence. This licence enabled them to purchase bait, supplies, and other things freely in all the wraters of Newfoundland and Labrador. The treaty of 1818 did not expressly, of course, enable them to do so even with regard to the west coast — it only gave them the right to take fish. As a matter of fact, there can be no dis- pute that after the Bait and other Acts were passed and this system of issuing licences to the American fishermen was adopted, they wrere enabled to purchase bait wherever they required it all around the coast of Newfoundland, and no exception whatever was taken to it. There was no reason for taking exception to it. It was convenient for both parties. It was convenient for the United States fishermen to come to Newfoundland and purchase the bait which they required for the prosecution of their cod fishery, which cod fishery, it must be remembered all through this case, was carried on, if not entirely exclusively, almost exclusively, upon the banks of Newfoundland far distant from the shore upon the one side and Labrador upon the other ; any other fishery carried on by the United States fishermen upon the parts of the coast to which this treaty refers, namely, the south coast from Rameau to Cape Ray, being so small that I merely mention it, as just an exception, if it can be called an exception at all; if they ever did catch any fish upon that part of the coast it was to a very small extent indeed. Their principal business — I am not sure but their whole business — was the fishery upon the banks distant from the shores and the coasts of Newfoundland on the one side, and of Labra- dor upon the other ; and, for the purposes of their fishery, mainly on the banks, this system of purchasing under licence was agreed upon and carried out. THE PRESIDENT: They were required to pay a fee for the licence? SIR JAMES WINTER: They paid a fee. It was part of the arrange- ment that, inasmuch as they had no right to these privileges, and the question of their rights under the treaty and otherwise, was a matter ARGUMENT OF SIR JAMES WINTER. 921 of importance, they should be obliged to come and procure that licence but they also submitted to the charge of $1.50 per ton for the privilege. SIR CHARLES FITZPATRICK : When you talk of the south coast fishery, you mean the south coast cod fishery ? SIR JAMES WINTER : Certainly. SIR CHARLES FITZPATRICK : The cod fishery in connection with the bank of St. Pierre — I think they call it? SIR JAMES WINTER: Yes. When I speak of the fishery I would be understood, unless I refer to the herring fishery, as meaning the cod fishery. That is the term, I think, which appears in this 549 case. It will be observed that the word '' fishery " did for many years and still does to most people, at any rate certainly with respect to the Newfoundland fisheries, mean the cod fishery. A ques- tion has arisen and still prevails as to whether, in documents, corre- spondence, treaties, &c., the word " fishery " did not mean the cod fishery only. That was one of the questions which was continually in dispute between Great Britain on the one side and France on the other in relation to the construction of treaties and other documents. JUDGE GRAY: Will you state again what part of the territorial waters off the coast of Newfoundland you say are important with reference to the cod fishery ? SIR JAMES WINTER: They are off the coast of Newfoundland proper. JUDGE GRAY : Of Newfoundland proper ? SIR JAMES WINTER : The only parts of the coast JUDGE GRAY : I mean the territorial waters. SIR JAMES WINTER : The territorial waters. I might say generally that no part of the coasts of Newfoundland were believed to be of any importance to the cod fishery, except the coasts at the headlands on each side of the bays. These are the principal fishing grounds to which large vessels resort for the purpose of carrying on the fisheries. JUDGE GRAY : That is the cod fishery ? SIR JAMES WINTER : The cod fishery. With one or two exceptions there is no cod fishery in the bays of Newfoundland prosecuted on a large scale by vessels. Whatever cod fishery is carried on in the bays i<: comparatively small ; it is carried on only in small boats by a few fishermen who live on the shore and are not able, from one cause or another, to procure boats or vessels to go to any great distance. JUDGE GRAY : I am much obliged to you for the information. May I ask you again what other fisheries than the cod fisheries are carried on by American fishermen in the territorial waters of Newfound- land? SIR JAMES WINTER: None whatever. JUDGE GRAY: Except the herring fishery? 922 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR JAMES WINTER: Only when the herring fishery came up as a subject for consideration. There never was any fishery of any sort carried on by Americans in Newfoundland waters; and they never did catch any fish there. That is the strong point in our case, if I catch what the Arbitrator means — there never was any herring fishery carried on by Americans in Newfoundland waters. JUDGE GRAY: Do I understand you — I am asking for informa- tion— SIR JAMES WINTER: I am very glad JUDGE GRAY : Do I understand you, then, that the principal reason for resort by American fishermen to the coastal or territorial waters of Newfoundland was for the procurement of bait? SIR JAMES WINTER: That only. Absolutely and unequivocally — only for the purpose of procuring bait, to go outside into the deep waters of the banks to catch fish. To buy herring, of course for bait, to purchase bait and supplies, was their only purpose. JUDGE GRAY: Herring is a bait fish? SIR JAMES WINTER: Yes. THE PRESIDENT: And they began to fish for herring only after they had been forbidden to purchase herring? SIR JAMES WINTER: Yes, the whole trouble in this case — I was coming do\vn to that point, it is just as well to understand it here. 550 THE PRESIDENT : As long as the license was in practice ? SIR JAMES WINTER: So long as the license system continued, and it did continue down to the j^ear 1905 under one arrangement or another— a modus vivendi first and afterwards under the Foreign Fishing Vessels Act of 1893, which succeeded the Bait Act — under the operation of these Acts, one after the other, the business was continued uniformly without any change whatever, the business, as I call it, of the Americans coming into the ports of Newfoundland or the coasts of Newfoundland to get bait for their deep-sea fishery; and that only. And they never attempted to catch herring; with the one exception of Fortune Bay, there is not upon record a single case of the American fishermen catching herring in Newfoundland waters, down to 1905. SIR CHARLES FITZPATRICK : The right to do so undoubtedly existed, though ? SIR JAMES WINTER: Oh, yes; that is an important feature or ele- ment in our case, that although all the time they had the right to do it they never did it, because it always suited them better to purchase. JUDGE GRAY : Then your contention, to put it in other words, is, as I understand you,""that the liberty of fishing in the prescribed waters ARGUMENT OF SIB JAMES WINTER. 923 under the treaty of 1818 had its principal value in the opportunity of procuring bait? SIR JAMES WINTER: No; just the contrary, I think. Will you repeat that question? JUDGE GRAY : I understood you to say that the only reason, or the principal reason, of American fishermen to come into the harbours, or the coastal or territorial waters, was for the procurement of bait ? SIR JAMES WINTER : Oh, yes. JUDGE GRAY : And that it was the principal value of the liberty of fishing ? SIR JAMES WINTER : No ; not of the liberty of fishing. JUDGE GRAY : I ask you what other fish than herring ? SIR JAMES WINTER : None. JUDGE GRAY : Or cod-fish ? SIR JAMES WINTER: But they had no liberty to come in to pur- chase bait. The treaty gives them no liberty to come in to purchase. JUDGE GRAY: I understand that. SIR JAMES WINTER : Yes. JUDGE GRAY: There was really then no object, under a strict con- struction of the privilege granted by the treaty of 1818 — there could have been no object for their resorting there at all, unless it was to catch cod-fish, which you say SIR JAMES WINTER : They never did. — JUDGE GRAY: And the fishery was so small that it practically was not exercised ? SIR JAMES WINTER : Oh, yes ; that is so. JUDGE GRAY: Then I understood you to say there were no other fish than herring and cod ? SIR JAMES WINTER : No other fish than herring and cod. JUDGE GRAY: Haddock or halibut? SIR JAMES WINTER : Not in Newfoundland waters. JUDGE GRAY: Mackerel? 551 SIR JAMES WINTER: No, sir; very few, a little, halibut was found some years, — but not in the treaty waters JUDGE GRAY: I mean the treaty waters. SIR JAMES WINTER : Afterwards, under the treaty of 1854 or 1871, they may have caught a few halibut, a very few, in other parts, not on the treaty coast — farther eastward in Fortune Bay, or possibly upon the west coast. JUDGE GRAY: Where were the mackerel caught? SIR JAMES WINTER : We have no mackerel. JUDGE GRAY: None? SIR JAMES WINTER : The mackerel disappeared from the coasts of Newfoundland many years ago. There has been no mackerel fishery. 924 NORTH ATLANTIC COAST FISHERIES ARBITRATION. As a matter of fact, so far as the actual fishery is concerned, the Americans have never prosecuted any fishery of any sort in New- foundland waters, except the cod fishery, and even that cod fishery, under the treaty, to a very limited extent only on the south coast, between Rameau and Cape Ray. SIR CHARLES FITZPATRICK: So that the whole issue is narrowed down to this miserable question of herrings ? SIR JAMES WINTER : Yes. the whole question ; and all the questions in this case, have sprung out of the change of the relations between the countries that took place in the year 1905, when the system of permitting the Americans to come into our ports to purchase herring was discontinued and stopped. The Americans then for the first time — clearly for the first time — in the history of the whole matter, came in and set up the claim which we resist. — the claim, that is. to catch herring in the Newfoundland waters by means of seines or other contrivances. SIR CHARLES FITZPATRICK : As a matter of fact the whole question of regulation is with respect to the herring fishery? SIR JAMES WINTER : The whole matter of regulation • SIR CHARLES FITZPATRICK: As a matter of fact? SIR JAMES WINTER : I think that the only regulation that we under- stand as substantially in issue in this case — SIR CHARLES FITZPATRICK : " Substantially in issue " — I should have used those words. SIR JAMES WINTER: If that is what is meant? SIR CHARLES FITZPATRICK: Yes. SIR JAMES WINTER: The only regulation that as far as I am aware is of any importance to either party in this case and that is involved in the inquiry which is now going on, is a regulation relating to the herring fishery, the method of carrying on the herring fishery. And I may say right here that it is the question of purse seines, the ques- tion whether or not the United States fishermen have the right to come into the waters of Newfoundland and use purse seines in the prosecution of the herring fishery which is really the only important and substantial question at issue to-day around which, as it were, all the other questions in this controversy revolve or to which they have relation. SIR CHARLES FITZPATRICK : It gets down to this, then, as I under- stand it, that to enable the American fishermen to prosecute the cod fishery, it is necessary for them to have bait? SIR JAMES WINTER: Yes. SIR CHARLES FITZPATRICK: And that they, for a long time, have purchased the bait from you? SIR JAMES WINTER : Yes, Sir. 552 SIR CHARLES FITZPATRICK : And that you at one time refused to make any further sales of bait ? ARGUMENT OF SIR JAMES WINTER. 925 SIR JAMES WINTER: Yes. SIR CHARLES FITZPATRICK: And that, in self defence, they had to resort to the same fishery — SIR JAMES WINTER : Yes. I suppose that is the way they would put it that in self-defence they resorted to the same fishery; with this qualification, however, which I think is important and should be borne in mind, that the United States Case does not stand even upon what I may term as favourable a footing as that, in this way, that the prosecution of the herring fishery which the United States fishermen wish to carry on is not a herring fishery for the purposes of bait at all. SIR CHARLES FITZPATRICK: No. They want to enter your waters and compete with you under the terms of this treaty in the prosecu- tion of the herring fishery for commercial purposes? SIR JAMES WINTER: Yes; for commercial purposes. That is the trouble. SIR CHARLES FITZPATRICK: That is not the trouble. That is the right. SIR JAMES WINTER : That is what they claim as their right. That is the cause of the difficulty between the two countries. The herring fishery business which was carried on before this trouble arose in 1005 was not a fishery for the purposes of bait. Besides the right to come down and purchase fish for bait in Newfoundland waters, the American fishermen also had another privilege, under license, under which they came to the Bay of Islands in the winter months to purchase herring — not for the purposes of bait, but for the purpose of export to the United States as a commercial article. SIR CHARLES FITZPATRICK: For the purposes of trade. SIR JAMES WINTER: Yes. And when that business was stopped by the Newfoundland legislature in 1905, it was then that the ques- tion arose which is now substantially before the Tribunal as an issue between the two parties, as to whether or not the Americans, the American fishermen, under their treaty have the right to come in and catch herring in unlimited quantities on the treaty coasts, not for the purposes of bait, but for the purposes of sale as a commercial article in the United States. JUDGE GRAY : But have they not that right under the treaty ? Have they not that right? SIR JAMES WINTER : We claim not. We claim that under Question 6, which will be before this Tribunal— JUDGE GRAY: I mean, to catch the fish themselves? SIR JAMES WINTER : No ; we claim that they have not. SIR CHARLES FITZPATRICK : On the coasts they have. JUDGE GRAY: On the prescribed coasts — the treaty coasts? SIR JAMES WINTER: Question 6 in this case brings up that very question, and that turns upon the question, whether or not the Americans have the right to go into the bays 926 NORTH ATLANTIC COAST FISHERIES ARBITRATION. JUDGE GRAY: Oh, yes. SIR JAMES WINTER — harbours and creeks of Newfoundland to fish. JUDGE GRAY : Oh, yes. SIR JAMES WINTER : And this herring business is carried on in the bays, harbours and creeks into which the Americans claim the right, under the treaty, to enter, and Great Britain denies that right. JUDGE GRAY: There is no fishery of that kind except within the 3-mile limit? There is no fishery of that kind except in the bays? SIR JAMES WINTER: No; the herring fishery is in the bays and harbours. 553 JUDGE GRAY: Therefore, under your contention, that the American fishermen are not allowed by the treaty of 1818, by the wording of that treaty, to go into the bays, that liberty is practically worthless? SIR JAMES WINTER : Which liberty ? JUDGE GRAY : The liberty to take fish in the prescribed waters. SIR JAMES WINTER : Precisely. It is worthless, but the construc- tion of the view, or the stand or position which Great Britain takes upon that matter is, that it was always worthless. THE PRESIDENT: That it would be worthless as regards herring? SIR JAMES WINTER: Yes; that it has always been worthless as regards herring, and practically also worthless as regards the cod fishery on that part of the coast. As a matter of fact it will be found, and cannot be disputed — I make the statement unreservedly, without qualification, and I believe it will not be disputed; and if it is disputed, of course, then. I cannot insist upon its being accepted unless it is supported by evidence — that the evidence clearly shows (as I think I shall satisfy the Court upon another issue) that there has been actually no cod fishery on that part of the coast carried on even by the Americans. That part of the coast is particularly one, or especially one where there is no cod fishery, and never has been, of any value. There is a little cod fishery, but it is out in the deep water, more than 3 miles from the shore, all along from Cape Ray down to Quirpon. except in some small areas where the French have got establishments, and have had establishments for many years, down further north, towards the Straits of Belleisle, where there is a considerable fishery; but even there, the greater part of the fishery is more than 3 miles from the shore. Little or no cod-fish are ever caught near to the shore on that part of the coast, or any- where except Labrador. THE PRESIDENT : If you please, Sir James : What is the difference between the two branches of section 1 of the Newfoundland statute of 1892? In the first branch, it is said: "That no person shall haul, catch, or take herrings by any seine or other such contrivance " ARGUMENT OF SIR JAMES WINTER.. 927 in a limited period of the year, between the 20th October and the 18th April in the following year. SIR JAMES WINTER : Yes. THE PRESIDENT : And in the next branch it is said that at any time it is forbidden to use a seine or other contrivance for the catching or taking of herring, " except by way of shooting and forthwith hauling the same." In what other manner can a seine be used except by way of shoot- ing and forthwith hauling the same ? It seems that under the first branch every use of a seine is for- bidden during that part of the year; and according to the second branch, only a special use of the seine is forbidden, during the whole year — during all the rest of the year. What is the difference between these two methods? SIR JAMES WINTER : " Shooting and forthwith hauling the seine " — that provision was to prevent and prohibit entirely for the future a practice which was called the in-barring of herring. THE PRESIDENT : That is the in-barring of herring ? SIR JAMES WINTER : Yes. That was a practice by which the seine was used to enclose a large area containing herring, by fastening the ends at the shore. THE PRESIDENT: That is what the American fishermen in Fortune Bay had been accused of doing? SIR JAMES WINTER: No; that is another thing. The purse seines are a different thing altogether. They constitute another method of fishing. This act of 1892 had nothing to do with the purse seines. THE PRESIDENT: But were not the American fishermen in Fortune Bay accused of having in-barred herring? S]R JAMES WINTER: No, Sir; not the American fishermen. Oh, no. It was the Newfoundland fishermen, who had followed a prac- tice which has been called the barring or in-barring of herring; and that was fastening one end of a large seine to the shore, and then enclosing a large area, and fastening the other end so as to 554 enclose this area, containing a very large quantity of herring, and keeping them there until it suited the owner of the seine to empty it, or until he was able to do it, and take in the herring. This had the effect of a terrible destruction of the herring. Enor- mous quantities of herring were enclosed in that way, died, and sank to the bottom, where they decayed, rotted, and putrefied, and not only was the fishery destroyed, but the fishing ground, as a place of resort for the herring, was also spoiled. This provision was intended to put an end to that practice altogether. THE PRESIDENT : For the whole year ? SIR JAMES WINTER: For all time; for ever. THE PRESIDENT : I thank you, Sir. 92909°— S. Doc. 870, 61-3, vol 10 3 928 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR JAMES WINTER : In other words, to put it in colloquial, simple language: Inbarring is henceforth entirely prohibited — absolutely and entirely prohibited; and as to the period between the 20th of October and the 18th of April, seines shall not be used in any way whatsoever. In order, then, to understand and to see how far any of this legis- lation of Newfoundland can be held or found to be vexatious or discriminatory as against the United States fishermen, or whether they have any right to complain of it or to take exception to it for any purpose before this Tribunal, it has been necessary to make this explanation, as to the mode in which the fishery has been carried on by the fishermen of the countries respectively. Going back, then, and looking over the various statutes and regulations — SIR CHARLES FITZPATRICK : I want to see if I have your statements correctly in mind. You say that in the first instance there is no fishery of any practical value in the territorial waters except the herring fishery? SIR JAMES WINTER: Yes, Sir — I mean in which the Americans are concerned. SIR CHARLES FITZPATRICK: Yes, exactly; and as far as we are concerned. SIR JAMES WINTER : Exactly. There is another large fishery which is valuable, not as a fishery, but for bait, and that is the fishing for a fish called caplin, which is a very valuable fishery, but for bait only. SIR CHARLES FITZPATRICK : Not for commercial purposes ? SIR JAMES WINTER: Not at all for commercial purposes. SIR CHARLES FITZPATRICK : Then you go on to say that this herring fishery can only be prosecuted profitably in the bays and harbours ? SIR JAMES WINTER : Yes ; and exists there. SIR CHARLES FITZPATRICK : And exists there exclusively ? SIR JAMES WINTER: And exists there exclusively. SIR CHARLES FITZPATRICK : And on your construction of the treaty, that herring fishery, which can only be prosecuted in these harbours, is in effect of no value to the Americans ? JUDGE GRAY : On the treaty coasts. SIR JAMES WINTER : Not to American fishermen. As fishermen, it is of no value to them. It is of no value to them unless they can come down and catch it in large quantities as an article of commerce. Of course, if they have the right to catch it as fishermen in large quan- tities, if they have that right under the treaty, they have the right to use it for commercial purposes. We admit that, of course. SIR CHARLES FTTZPATRICK : Let me see how the difficulty originated, then: You first submit that the herring was useful to the American ARGUMENT OF SIR JAMES WINTER. 929 fishermen in connection with the transaction of the cod fishery, as bait? SIR JAMES WINTER: Yes, Sir, certainly. SIR CHARLES FITZPATRICK: Your first legislation was to cut them out of the right to purchase the herring for bait? SIR JAMES WINTER: Except under licence. SIR CHARLES FITZPATRICK: Except under licence? 555 SIR JAMES WINTER: Because they had no right to that, under the treaty. The legislation did not prevent it. SIR CHARLES FITZPATRICK : Next you legislated for the purpose of preventing them from acquiring the herring for commercial pur- poses, for trading purposes? SIR JAMES WINTER: Yes. SIR CHARLES FITZPATRICK : Then they were thrown back upon their rights under the treaty ? SIR JAMES WINTER: No; we did not legislate to prevent them. There was no fresh legislation to prevent them from getting it for commercial purposes. SIR CHARLES FITZPATRICK : I understood you to say so. SIR JAMES WINTER : No ; the only fresh legislation — SIR CHARLES FITZPATRICK : Leaving out the word " fresh " ? SIR JAMES WINTER : The only legislation, the only new legislation, that took place that interfered with the business was that relating to the purchase of herring for commercial purposes, and that is in 1905. SIR CHARLES FITZPATRICK : That is what I wanted to know. SIR JAMES WINTER : In 1905, when the law was passed forbidding Newfoundland fishermen from engaging as crews of American fisher- men, or forbidding American fishermen from hiring the Newfound- landers as fishermen. SIR CHARLES FITZPATRICK: Now, you have got back to this position THE PRESIDENT: Will you permit me to follow your question, Sir Charles, with another one at this moment? SIR CHARLES FITZPATRICK : Certainly. THE PRESIDENT: Does not the Act of 1905 also contain a disposi- tion that an American fisherman which has on board any herring, caplin, squid, or other bait fishes which have been bought in the harbours of this island, is to be confiscated ? SIR JAMES WINTER : Yes. THE PRESIDENT : And by this Act of 1905, were not the Americans prohibited from purchasing bait fishes? SIR JAMES WINTER : Yes, Sir. THE PRESIDENT: That was the question you have been putting, Sir Charles? 930 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR CHARLES FITZPATRICK: Yes; but all that legislation had no bearing whatever upon the treaty rights? SIR JAMES WINTER: No, Sir; none whatever. It bore only upon their commercial rights. This legislation, which has led to all the trouble, has arisen en- tirely— not out of the prosecution of the fishery at all — the whole trouble or difficulty about regulations, and inhabitants, and all these questions, as a matter of fact, has arisen out of the stop that was put by the legislature of Newfoundland upon the business of purchas- ing herring for the market by the United States fishermen in 1905. THE PRESIDENT: By the legislation of 1905, you have not only stopped the practice of according licences, but you have made it a criminal act to purchase bait fishes from the Newfoundlanders? SIR JAMES WINTER: Oh, yes, that is so; and that appears clearly from the case all through — that there were negotiations all through between the parties, extending over years, in relation to the inter- change of commercial facilities, &c., tariffs, and all that sort of thing. Two attempts were made, under the Bond-Blaine treaty first, and the Bond-Hay treaty afterwards; — and these negotiations went so far as an agreement between the Governments upon terms relating to these commercial matters, but they fell through because they were not ac- cepted by the United States Senate in one case ; — they fell through, at any rate. And so matters stood, negotiations going on, until ulti- mately, in 1905, it was found that they could lead to nothing. 556 Negotiations were broken off and then the legislation of New- foundland put a stop to the commercial privileges only. It did not interfere, and did not purport in any way to interfere with the operation of the treaty of 1818, whatever that might be. It sim- ply put a stop to the commercial transactions of purchasing herring in Newfoundland waters by the Americans. Then, finding that there was this prohibition and this difficulty in the way of purchasing herring for the United States market, the Americans resorted to the plan, which is also the subject of inquiry here, of employing Newfoundland fishermen, as part of their crews, to catch fish for them. Then the Newfoundland Legislature answered that, as it were, or met that, by a prohibition in 1906, an Act for- bidding the Newfoundland fishermen from engaging as crews to the American fishermen. And that is one of the questions which is now before this Tribunal, indirectly, under another heading, Ques- tion 2. So the legislation stood, running from 1862. In 1872, the same provision as passed in 1862 was re-enacted in Newfoundland, under the Consolidated Statutes. That was merely a formal matter. There was no change in the legislation. The Consolidated Statutes was a re-enactment of the Act, in the same form as it formerly stood. ARGUMENT OF SIE JAMES WINTER. 931 In 1876, an Act was passed prohibiting fishing on Sundays. All that we know of that, or all that there is upon record, and all that anybody can find in relation to that matter, is that there was no objection upon the part of the United States fishermen to that legis- lation then, and for the reason that they were not taking herring. THE PRESIDENT : If you please, Sir James : Is this Act of 1876 in the Appendix to the British Case? SIR JAMES WINTER : I think so, Sir. Yes, it is at p. 707. • THE PRESIDENT: Thank you, Sir. SIR JAMES WINTER : About the middle of the page, No. 119, sec- tion 4. THE PRESIDENT: Oh, yes. SIR JAMES WINTER (reading) : " No person shall, between the hours of Twelve o'clock on Saturday night and Twelve o'clock on Sunday night, haul or take any Herring, Caplin or Squids, with nets, seines, bunts, or any such contrivance, or set or put out any such net, seine, bunt, or contrivance, for the purpose of such hauling or taking." And it will be noticed that, in the following year SIR CHARLES FITZPATRICK : If I understand you, now, you say that you are dealing exclusively with the question of legislation in so far as it may be considered as a regulation of the fishery ? You have left the other legislation aside? SIR JAMES WINTER: What other legislation? SHI CHARLES FITZPATRICK : The legislation with respect to the sale of fish, and the employment of Newfoundland fishermen. SIR JAMES WINTER: Certainly. SIR CHARLES FITZPATRICK: And you are now coming to the legis- lation upon the subject of regulation pure and simple? SIR JAMES WINTER : I was not on the question of the sale of fish to foreign fishermen at all. It only came up incidentally. SIR CHARLES FITZPATRICK : Well, I meant so far as it did come up. SIR JAMES WINTER: In order to explain the position, in order to show that there was SIR CHARLES FITZPATRICK: I understand. I understand that, and that you are now coming to the question of regulation, pure and simple. SIR JAMES WINTER : Certainly. I am now proposing to deal only with the question of legislation in relation to the observations of counsel on the other side as to 557 the objectionable character of this legislation, &c., making such observations upon it as may be necessary ; but I shall be very brief indeed in my comments, because the same observation ap- plies to nearly all the legislation, and that is that the United States made no objection to it. Some of these regulations did affect the Americans in their fishery, and some did not. 932 NORTH ATLANTIC COAST FISHERIES ARBITRATION. In the following year, 1877, an Act, to be found at p. 707 of the Appendix to the British Case, was passed which extended the Sun- day provision to all kinds of bait-fishes, which are named : — " That the Fourth Section of the said recited Act shall be held to include and apply to the jigging of Squids, and to the use of any contrivance whatever, and to any mode of taking and obtaining Fish for Bait" That is, that all kinds of fish to be taken for bait are not to be disturbed — are not to be taken on Sundays. I may make the explanation here that this was necessary, because the bait-fishes in Newfoundland, and particularly herring and the other fish called caplin, are of such habits that it was believed, and still is believed, that it is necessary to give them what is called a day of rest somewhere or other; that the unbroken continuous prosecu- tion of the fishery has the effect of driving the fish away from the places to which they are in the habit of resorting; that if one small place to which the fish go is continually being fished, nets being set out, and boats brought there and their moorings put out, and nets put out, and catching going on continually without any intermission, the effect of it is ultimately, in the course of time, to drive the fish away from these grounds, and that it is necessary that there should be an intermission at some time or other of the practice of continuous fishing. And it was believed that that purpose, as well as the observ- ance of the Sabbath, could be combined by making Sunday a sort of day of rest for these two fishes. JUDGE GRAY : Did that Sunday law permit the staking of nets that might work in the absence of their owners during Sunday ? SIR JAMES WINTER : No. That Act, I think, prohibited the actual placing of the nets on Sunday. JUDGE GRAY : But, in practice, could they place such a net, as Mr. Turner intimated they could, on Saturday night, in the secular part of the week, and let it remain until Monday, so that it might work in the absence of the owner ? SIR JAMES WINTER : Oh, it might be left in the water, if it was set out on Saturday night. It might be left in the water until Monday morning. JUDGE GRAY: Well, then, that would not effectuate the object of giving the herring a rest, would it? SIR JAMES WINTER : Oh, yes, it would. JUDGE GRAY (continuing) : Although it gave a rest to the owners of the nets ? SIR JAMES WINTER: I must correct that misapprehension. The Sunday prohibition applies only to seining, not to nets. It has not the same effect at all. The 'effect of a net, with a few herring in it, as described by counsel, struggling in the water, would not do any ARGUMENT OP SIR JAMES WINTER. 933 harm such as I have been endeavouring to describe. There would be no objection to that. It is the catching by seines every day in the week and during Sunday which is objectionable. DR. DRAGO : I think this Act refers to nets, in Section 4. THE PRESIDENT : It says with " nets, seines, bunts, or any such contrivance." DR. DRAGO: Yes. It says: It is forbidden to set out nets, seines, bunts, or any contrivance between the hours of 12 o'clock on Satur- day and 12 o'clock on Sunday night. SIR JAMES WINTER (reading) :— " Xo person shall, between the hours of Twelve o'clock on Saturday night and Twelve o'clock on Sunday night, haul or take any Her- ring, Caplin or Squids, with nets seines, bunts, or any such con- trivance, or set or put out any such net, seine, bunt, or contrivance, for the purpose of such hauling or taking." 558 That agrees, I think, with the statement that I just made, and that is, that the mere leaving of a small net in the water during Sunday is not objectionable. It does not do any harm. But constantly putting out and hauling in the nets is what produces the effects that are intended to be prevented by this legislation, — the constant threshing of the water by the boats and the moorings, and the putting out and hauling in of the nets, the oars, &c., — those are the things which it was considered were doing harm and driving the fish away from the grounds; and that if a fisherman put out his net on Saturday night and left it there until Monday morning, there was no harm done. However, I am not now discussing the propriety or otherwise of the measure. I am only endeavouring to explain, as far as I know, the reasons why the legislation was passed. In 1879 (p. 708 of the British Case Appendix) will be found an Act which amended the previous acts relating to the catching of her- ring, by altering the date of the close season from the 20th Octo- ber to the 18th April. THE PRESIDENT : If I am not wrong, Sir, there is here, already, in the law of 1872, a proviso : — " Provided, that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner, and not used for in-barring or enclosing herrings." You have explained, Sir James, already, the words " not used for in-barring " ? SIR JAMES WINTER : Yes. THE PRESIDENT: But what is the use of the words first given in the proviso : — " Provided that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner " ? 934 NORTH ATLANTIC COAST FISHERIES ARBITRATION. To what does that allude? What is the meaning of this exception? SIR JAMES WINTER : Because it might, but for that provision " nets set in the usual and customary manner," be considered that the setting of a net would be in-barring. THE PRESIDENT: Yes. SIR JAMES WINTER : They used to bar them in small quantities. SIR CHARLES FITZPATRICK: But you can take herrings by nets, without in-barring or enclosing them? SIR JAMES WINTER: Oh, yes. SIR CHARLES FITZPATRICK : Is not that the explanation of the pro- viso? SIR JAMES WINTER: Yes: "And not used for in-barring or enclos- ing herrings." THE PRESIDENT: " In the usual and customary manner." SIR CHARLES FITZPATRICK : That is, provided you do not use them to in-bar? SIR JAMES WINTER: Yes; provided they are not used for in-bar- ring. It appears as if that proviso was really unnecessary. It was put in merely out of abundant caution: — " Provided that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner, and not used for in-barring or enclosing herrings in a cove, inlet or other place." I think I would further suggest this, as an explanation of that proviso, that that was intended to meet the words in the first line of that section: — " No person shall haul, catch, or take herrings by or in a seine or other such contrivance." " Other such contrivance " might have been intended to mean " net " ; and therefore the proviso was made afterwards with regard to nets : Provided that a net may be used, but not used " for in- barring or enclosing herrings in a cove, inlet, or other place." In 1882 an Act was passed, which will be found at p. 709 of the Appendix to the British Case. 559 SIR CHARLES FITZPATRICKS When did the Washington Treaty end ? SIR JAMES WINTER : In 1883, 1 think. THE PRESIDENT: 1885. SIR JAMES WINTER: Yes; it continued until 1885. In 1882 an Act was passed regulating cod-traps. The only observation upon that is that the United States fishermen did not use traps, made no objection to the provisions of the Act, and no trouble arose out of that. There are laws in force, and regulations also, in relation ARGUMENT OF SIR JAMES WINTER. 935 to cod-traps; and as to those, all that 1 can say is that the United States fishermen either do not use cod-traps at all, or if they do, they have made no objection to the provision, and are complying with it. There has been no trouble. THE PRESIDENT: Will you permit me to interrupt you a moment, Sir James? I have found now, in a Newfoundland statute of 20th May, 1882, on p. 709 of the British Appendix, a disposition that re- minds me again of a question which was put a while ago by Mr. Justice Gray. He asked what is to be done with the net which has been set out on Saturday, perhaps at 11 o'clock in the night, and re- mains until Monday morning. In the statute of 1882 I think there is, concerning another object, a disposition which would give an answer to that question, but which leads to perhaps a different conclusion concerning the Act of 1876. In the statute of 1882 there is a disposition, under section 2 : — " No person shall, at any time within the period of two years .... set or permit to remain set, or to remain in the water, any Net or other contrivance whatsoever for the capture or taking of Salmon or Trout, .... between .... Friday and .... Monday." This disposition does not apply to our case. It applies only to salmon and trout in the rivers. SIR JAMES WINTER : Oh, yes. THE PRESIDENT: But it would give an answer to the question put by Mr. Justice Gray. Perhaps one could conclude that, as the statute of 1882 disposes expressly of the case of the net being permitted to remain in the water, that according to the law of 1876 the ques- tion ought to be answered in the opposite sense, because there is no disposition there of the matter specifically; that the consequence would be that the net might remain in the water, notwithstanding the Sunday. SIR JAMES WINTER : That question has been dealt with, I may say, and legislated upon since, and I refer the Tribunal to p. 720 — legis- lation passed in 1891. THE PRESIDENT: It is No. 51. SIR JAMES WINTER : Section 51 : — " No person shall catch, take or bar herring in a seine, net or other contrivance, between the hours of twelve o'clock on Saturday night and twelve o'clock on Sunday night, and no nets or other contrivances (except seines containing herring which shall have been barred be- fore twelve o'clock on Saturday night) shall be allowed to be set or remain in the water during the aforesaid period, under a penalty not exceeding one hundred dollars." It would appear from that that this very question of leaving the nets set out during Sunday has been dealt with in this manner, and that now it is unlawful to leave the net there during Sunday, and the net must be taken up on Saturday night. The legislation NORTH ATLANTIC COAST FISHERIES ARBITRATION. has gone further than I remembered at the moment, when I was speaking. That only shows that the legislation all proceeded upon the same belief, or the same assumption, and that is that it was necessary to have a Sunday vacation or close time for the herring. In 1884 an Act was passed which requires a little observation. It will be found at p. 709 of the British Appendix. THE PRESIDENT : Does not this Act of the 22nd April, 1884, section 1, make a distinction in favour of local fishermen ? JUDGE GRAY : That is the one he is referring to. THE PRESIDENT : I refer to the Statute on p. 709, section 1. 560 SIR JAMES WINTER : Oh, yes. " Notwithstanding any law to the contrary, it shall be law- ful for the owner of any vessel owned and registered in this Colony, which shall be fully fitted out, supplied and ready to prosecute the Bank fishery, and shall have obtained a Custom's Clearance for the said fishery, to haul, catch, and take herring, at any time and by any means, except by in-barring or enclosing such herring in a cove, inlet or other place, to an extent not exceeding sixty barrels for any one voyage, to be used as bait in prosecuting the said Bank fishery in the said vessel." The meaning of the Act being passed in that form, and there being an apparent difference made, or discrimination, or exception made in favour of Newfoundland vessels was this: That under the Act as it stood before 1884, under the general provision against catching fish by seines during the winter months from October to April the New- foundland bank fishermen were found to be damaged or prejudiced. The business of carrying on or prosecuting the fishery on the banks of Newfoundland by the Newfoundland bank fishermen was just then growing up, and it was found that the prohibition against seining during the winter months was operating to the prejudice of the bank fishermen, and that it was necessary to give them an opportunity of procuring sufficient supplies for bait, even by taking with seines. Accordingly this provision was passed, to enable our own fishermen to obtain a supply of bait for the bank fishery. The only reason for the apparent difference or discrimination between them and the American fishermen was the fact, which we have already been dis- cussing, that the American bank fishermen did not, and did not want to, use seines to get herring for bait. There was no trouble with them. They came down and bought their bait, if they did require it all during those months, which was very rarely. They did not require it. The Act was passed in order to enable the fishermen of New- foundland to prosecute the fishery upon the banks. No provision was made with regard to the Americans, because it appeared that there was no provision necessary at the time. The Americans took no exception, made no objection, to this legislation. Consequently ARGUMENT OF SIR JAMES WINTER. 937 it has remained on the Statute Book up to this day. If it appears to be discriminating, and unfair or prejudicial in any way against the Americans, there is, as far as I am aware, no reason for continuing it against them, if it is necessary to remove it in order to enable them to get the supply of bait-fish they require. If, after this enquiry, this or any other provision is found to oper- ate harshly or injuriously or unfairly toward the American fishermen there has never been any refusal or any objection to entertaining their objections down to the present moment, and neither is there now. This is a discrimination which is really only an apparent one — a the- oretical one. It never assumed any practical shape, and never has taken any shape until now; and now it possesses no real, substantial value, because no American fisherman at the present time wants to come down and haul herring in a seine for bait. It would be an absurd and a foolish business. That is the explanation, and the only explanation that I can give — that an American or a French or any other foreign vessel coming from another country for bait would not bring down a seine — a large, cumbersome, heavy article like that — for the purpose of hauling bait. JUDGE GRAY: But they could not purchase it, could they, during the winter months? They could not purchase bait herring, could they ? SIR JAMES WINTER : Yes. JUDGE GRAY: I thought there was a close season in the winter against taking herring? SIR JAMES WINTER : No. They can get all they want for bait. All that is required in the winter can be got in the small nets, and that is how the business has been carried on. And that has been going on in the Bay of Islands particularly. The business has grown up — a very large business has grown up — and it has extended, and that is what this whole case has arisen out of — that not only was there a sufficient herring catch in the winter months for bait, but it has grown into a commercial business, and an important business — the catching of herring for exportation for consumption, and not with seines, but the catching with nets. THE PRESIDENT: The quantity of herring which was necessary for bait purposes could be caught in nets? SIR JAMES WINTER: Yes. 561 THE PRESIDENT: And only such large quantities as are nec- essary for exportation makes necessary the employment of seines? SIR JAMES WINTER: No, Sir; we do not go so far even as that, because, as I have said, there has been a profitable business in the catching of herring for exportation for food carried on in recent years on the west coast, in the Bay of Islands, by means of nets only — an additional reason for not using seines; that is, that even 938 NORTH ATLANTIC COAST FISHERIES ARBITRATION. though the fishermen are confined to nets they can still get enough to enable them and the Americans who purchase from them to carry on a business. SIR CHARLES FITZPATRICK: So your own fishermen in the Bay of Islands are restricted to the use of nets? SIR JAMES WINTER : Yes ; our fishermen are restricted to the use of nets ; but, however, that is one side of the case. On the other side it is perfectly clear that nets are quite sufficient for the purposes of bait, and always have been. This Act of 1884 was passed in order to enable a particular class of fishermen at that season of the year to haul a quantity, not exceeding sixty barrels, by means of a seine. The same provision would have been extended, of course, undoubt- edly, to the Americans if they had asked for it. SIR CHARLES FITZPATRICK : When that Act of 1884 was passed, the Washington Treaty was in force, was it notV SIR JAMES WINTER : Yes ; the Washington Treaty was in force. The same Act of 1884, sections 7 and 9, regulates the use of cod- traps and cod-nets. THE PRESIDENT : What is the distinction between a cod-trap and a cod-net ? SIR JAMES WINTER: A cod-trap is a contrivance which consists of four sides, which may be called nets. It is an enclosure. THE PRESIDENT : It is a combined system of nets — a combination of several ? SIR JAMES WINTER : Yes ; it has four sides. It is a sort of structure, consisting of four sides, each of which is made up of nets, which go into the water, and the fish swim into this trap, and are enclosed and caught. SIR CHARLES FITZPATRICK: Like a large bag? SIR JAMES WINTER : It is a sort of bag or box. The difference be- tween the operation of that and the cod-net is this : That the cod-net, being only on one single line, as it were, the fish must be caught in the mesh. SIR CHARLES FITZPATRICK : The fish must be caught in the gills ? SIR JAMES WINTER: Yes. The cod-trap is different. It encloses them. JUDGE GRAY : The net is a gill-net ? SIR JAMES WINTER: Yes; and catches and holds the fish by the gills. The cod-trap encloses a lot of loose fish, and keeps them swim- ming about in what is called a trap. SIR CHARLES FITZPATRICK : What is the difference between that and a seine? SIR JAMES WINTER: The cod-trap is very much smaller; a smaller article. SIR CHARLES FITZPATRICK : It is only a question of size ? ARGUMENT OF SIR JAMES WINTER. 939 SIR JAMES WINTER : Yes — well, the cod-trap is so constructed that it is left to remain in the water indefinitely. The seine has to be operated at once — SIR CHARLES FITZPATRICK: Oh, I see. SIR JAMES WINTER by a large crew. The cod-trap is so con- structed that it can be moored and left to do its work, and the fish swim into it. The seine has to be operated by a crew of men, either from the vessel or from the shore, at once. It has just been suggested to me that seines are sometimes used, but very little used, particularly recently, for the purpose of catching cod-fish. That practice has given way almost entirely to the use of cod-traps ; so that the seines which we have been discussing here are used principally, if not entirely, for herring. The same Act, section 9, regulates the use of bultows. Section 9 contains merely regulations relating to the use of bultows. 562 Some observations were made with regard to the use of bul- tows, and I shall refer to them later on, generally, as to their obnoxious character or otherwise. All that I wish to observe at the present time is this: — That there was no objection, that no objection whatever has been made on the part of the United States, to this legis- lation. They either do not use the bultows on the grounds at all, or if they used them, as I understand they have, they have complied with the law, and do not object to it. The only place where they could have used them would have been on the south coast from Rameau to Cape Ray or at Labrador. In 1889 an Act was passed, which will be found at p. 717 of the British Appendix, and under that Act a Board of Commissioners was appointed SIR CHARLES FITZPATRICK : That is in 1889 ? SIR JAMES WINTER: Yes. SIR CHARLES FITZPATRICK : I suppose your general observation on all the legislation that you have referred to, up to 1885, prohibiting the use of seines and the taking of fish on Sunday, &c., was applicable to the same extent to both the American and the Canadian fishermen ? SIR JAMES WINTER: Certainly. SIR CHARLES FITZPATRICK : When both were in the enjoyment of the same privileges on these coasts? SIR JAMES WINTER : Yes. SIR CHARLES FITZPATRICK: Under the reciprocity treaty of 1854, or the Washington Treaty ? SIR JAMES WINTER : Exactly. SIR CHARLES FITZPATRICK : They were applicable to both alike — all of these statutes? SIR JAMES WINTER : Yes, sir ; there was no discrimination between them. The laws were applicable to both, and there was no objection. 940 NORTH ATLANTIC COAST FISHERIES ARBITRATION. It will be found, with reference to this Act, that besides regula- tions with regard to the catching of fish, there were regulations pro- hibiting the throwing of ballast, sand, or rubbish into the waters where herring were known to frequent. That will be found at p. 720 of the British Appendix, under the head of " Rules and Regu- lations." For instance, Regulation No. 55, on p. 720, reads : — " Xo person shall throw any ballast, sand or rubbish into the waters where herring are known to frequent, but all spoiled herring, ballast, sand or rubbish, shall be carried to such places as the Sanitary Com- missioners may direct." SIR CHARLES FITZPATRICK: What is the point of your reference there ? SIR JAMES WINTER : Simply that there was no objection to the regu- lation by the United States fishermen. Because, although they might not have carried on the fishery in the manner that the regulations referred to. by cod-traps, &c., they were certainly amenable to these regulations, which are regulations that would apply to both the Canadian and the United States fishermen ; and they took no excep- tion. That is the only point of that observation. JUDGE GRAY : Regulations of that kind do not touch the act of fish- ing— regulations about throwing overboard the offal, and so on. SIR JAMES WINTER: It does not affect the act of fishing, no; but it affects very materially the fishery. JUDGE GRAY: Oh, I understand that. But I say there is this dis- tinction, between police regulations of that kind and such regulations as touch the very act of fishing. I did not mean to disturb you. I supposed my comment was really in line with your argument. SIR JAMES WINTER : Xo; because it goes further. It is the throwing of ballast, sand or rubbish into the waters, &c. It does not apply to the manner of actually taking the fish. JUDGE GRAY: It is a police regulation. It applies to every- body. 563 SIR CHARLES FITZPATRICK : It does not apply to the time or manner of fishing. SIR JAMES WINTER : But it goes to the manner of the preservation of the fishing-grounds for the fishermen of both sides. SIR CHARLES FITZPATRICK : There is no objection to that. SIR JAMES WINTER : In 1892, all of the foregoing statutes were con- solidated and amended and re-enacted, and no exception was taken: no question arose. That. I think, is a statement in brief outline, of the general char- acter of the legislation that has taken place on the matter of regulat- ing the fisheries. ARGUMENT OF SIR JAMES WINTER. 941 THE PRESIDENT: Perhaps it would be convenient for you to con- tinue this afternoon at 2 o'clock, Sir James? SIR JAMES WINTER : Yes, Sir. [Thereupon, at 12.10 o'clock p. M., the Tribunal took a recess until 2 o'clock P. M. AFTERNOON SESSION, MONDAY, JULY 4, 1910, 2 p. M. THE PRESIDENT: Will you please continue, Sir James? SIR JAMES WINTER (resuming) : When we adjourned for recess, Mr. President, I had completed my examination of the legislation concerning the fishery regulations down to the period when difficul- ties arose out of the Foreign Fishing Vessels Act of 1905. I omitted to observe that before the Act of 1905 there had been passed an Act in 1893 called "The Foreign Fishing Vessels Act." That will be found at p. 730 of the British Appendix. Previously to that Act, I may observe also, there had been an Act passed in 1892, to be found at p. 720. It is very short. That is really a sort of continuation of the arrangement which I spoke of this morning, which was come to in 1888 when the treaty was nego- tiated at Washington in settlement of all troubles and difficulties, and when what was called a modus vivendi was agreed upon between the parties pending the ratification of that convention or arrangement; and, under that modus vivendi the parties on both sides acted until 1892, practically. The arrangement was not carried through, the convention fell through, the United States did not approve of it or accept it, it did not receive the approval of the Senate of the United States, and in 1892 this short Act was passed. It simply enabled the Governor-in-Council to authorise the issue of licences to foreign fishing-vessels enabling them to enter any port on the coasts of New- foundland during the current year, and until the closing of the Session of the Legislature to be held in the year 1893, for the follow- ing purposes : — " The purchase of bait, ice, seines, lines and all other supplies and outfits for the fishery, and shipping of crews. " The fee for every such license shall be One dollar and fifty cents per registered ton, and the terms and conditions thereof shall be determined by the Governor-in-Council." and so on. Substantially that was to the same effect as the temporary arrange- ment called the modus vivendi under which they had been acting. For that modus vivendi I would refer the Tribunal to pp. 426 and 427 of the British Case Appendix, where it will be found there was the same arrangement continued for the year. 942 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Then in 1893 this Act of 1892 having expired, an Act was passed called " The Foreign Fishing- Vessels Act," to be found at p. 730. For the present purpose, all I need say about that Act is this : That it authorised the issue of licences to foreign fishing-vessels to enter the ports and coasts of Newfoundland under licences, for the follow- ing purposes : — " The purchase of bait, ice, seines lines and all other supplies and outfits for the fishery, and for the shipping crews." And then section 3 contained a provision to enforce the terms of the first section, giving power to officers to board and examine the vessels, in order that they should not be purchasing bait without licence, and to 'keep them under a sort of surveillance. 564 Then there appeared a prohibition against engaging any person to form part of the crew of such vessel, or rather a pro- vision for the punishment of the offender, the owner of the vessel, if it were found that he had engaged any men without a licence. That Act was passed, as I have said already, in view of the fact that negotiations were still going on between the Government of Newfoundland and the United States, with a view to making a com- mercial treaty, or with a view to commercial relations generally, which culminated or ended in what it called the Bond-Hay treaty ultimately. This Act was passed in order, as it were, to keep things right, to keep things smooth (this Act of 1893), while these negotia- tions were going on. But ultimately, the negotiations fell through, and in 1905 the parties found themselves, as it were, face to face. The negotiations had failed, and the position of the parties then was that each side stood upon its strict rights. But I must observe here that these negotiations, and the failure to come to terms, had no relation whatever to the question of treaty rights ; they related entirely to commercial or fiscal questions. That is, the negotiations. This clause, however, was put into the Act of 1893, and afterwards repeated in a slightly different form in 1905, in order, in the mean- time, while the negotiations were going on, to facilitate the opera- tions of the American fishing-vessels while they were fishing- vessels. And here comes up a sort of accident which has been the cause of some confusion and misunderstanding of the whole business in other points as well as those we are now discussing. By a sort of accident the same vessels that came down to catch fish at one season of the year came down afterwards to purchase herring. That appears I think clearly, and cannot be disputed. These vessels, when they cleared from the United States, brought with them the necessary papers and documents to enable them to carry on trade in Newfoundland waters, in addition to their rights as fishermen. They brought licences or ARGUMENT OF SIR JAMES WINTER. 943 clearances, or documents, I do not remember exactly what they are called. There are two kinds, one called by one name and another by another name. The point to which I wish to call attention is, that they were the same vessels which would be engaged in the cod fishery in the summer months, that afterwards came in the winter to the Bay of Islands to purchase herring. Therefore, a confused idea got among those who do not understand the case, without looking closely into it, that American fishing-vessels, when they were in thw Bay of Islands purchasing herring, were there under their treaty rights. They were not. They were there simply on the same footing as any commercial vessels from any other part of the world ; and the fact that they were American fishing- vessels at another season of the year is to be borne in mind, because it is endeavoured to be made to appear that these differences, or that these questions which after- wards arose with regard to the purchase of herring, had some connec- tion and an important bearing on the right of the American fisher- men under the treaty and on the treatment they were receiving at the hands of the Newfoundland Government. Whether the treatment they received when they came down to pur- chase herring from Newfoundland fishermen was hostile or not, friendly or unfriendly, the point I wish to bring out is, that it had nothing whatever to do with their treaty rights under the treaty of 1818. Then the Act of 1905 was passed. The issue then between the parties, or the trouble or difficulty that led to the enactment of this measure, related entirely to what may be called commercial matters or commercial transactions, and previously to 1905, with regard to the matter of the engaging of crews. This is a point which I think is of importance. With regard to the provision in the Act of 1893 concerning the engagement of crews, 'that clearly had reference only to the engagement of two or three men, in case there might be a short- age in the crew on account of an accident, a man leaving or becoming ill, or some more men being required. In order to meet such a case as that, that clause was put in the Act of 1893 to facilitate matters. Further, as has just been suggested to me, it was to meet the case of a bond fide fishing- vessel coming down into Newfoundland waters, be- ing short of a man, or requiring a man or two — this provision was put in to enable the master to get a man in Newfoundland to make up his crew. SIR CHARLES FITZPATRICK : Which provision do you refer to now ? SIR JAMES WINTER : The license to engage crews in Newfoundland. Number one of the Act of 1893. SIR CHARLES FITZPATRICK: Page 730? SIR JAMES WINTER : And for the shipping of crews. It is p. 730. 565 That was meant to refer to a bond -fide shortage in crew, 92909°— S. Doc. 870, 61-3, vol 10 4 944 NORTH ATLANTIC COAST FISHERIES ARBITRATION. where a man might have been left behind by some accident, or some- thing of that sort. Just the same kind of thing as was referred to by Mr. Turner in his address when he was commenting on this Act of 1905. But, when it came to 1905, matters stood upon an entirely different footing, and the position that then presented itself was this: — In 1905 the Newfoundland Government, acting under the powers which they had under their Acts, refused to permit the fishermen of Newfoundland to sell herring to the Americans, which they claimed they had a perfect right to do, and to which the treaty of 1818 had no reference whatever. This policy, adopted by the Newfoundland Government with re- gard to the shipping of crews, has not, and ought not to be permitted to have any bearing upon the questions that are now before the Tri- bunal in relation to keeping faith, or not keeping faith, in the matter of the articles of the treaty of 1818. It was simply a termination of what may be called " commercial privileges," that is, the right to come in and buy herring, the fishermen of Newfoundland then being prohibited, or not being permitted, to sell herring to United States fishermen. Now, this is what took place: The United States fishermen resorted to the plan which is the subject of discussion under another question here, that is, of employing, not as the Newfoundland Government contend, a bond fide crew as a fishing crew for its vessel, but employing a number of men — Newfoundlanders — to catch fish, for them, and put them on board their vessels, calling or describing them as part of their crew. As a matter of fact it appears the very first fish that were caught under this arrangement were paid for at the rate of so much per barrel for the number of barrels of herring that they put on board, not as servants would be paid .at the rate of so much per day for their services as members of a crew. In other words, substantially, for all practical purposes, it was just as much a purchase and sale of herring as it was before the Act of 1905. That was the condition of things existing in 1905. I merely call attention to it on account of the observations which were made by learned counsel, Mr. Turner, when he called the attention of the Tribunal to the unfriendly character, the hostile character as he termed it, of this legislation as against the American fishing vessels, that under this they were pro- hibited, as it would appear, from doing that which no friendly power would interfere with, that is, from getting a sufficient number of men to make up their crews, and so on. It was not to prevent them from getting bond fide crews, it was done to prevent them from going through a transaction which, under the name of hiring men for their crew, was nothing more than the purchase of herring, which it had been decided to prohibit, and which had already been pro- ARGUMENT OF SIR JAMES WINTER. 945 hibited by statute, and by the power vested in the Governor-in- Coimcil for that purpose. JUDGE GRAY: Sir James, what was the policy of that prohibition of the purchase of herring? _ SIR JAMES WINTER : It was because the parties had come to a deadlock over other commercial negotiations. They had been en- deavouring to negotiate terms for a sort of reciprocity, mutual trade relations, tariffs, and so forth, arid they had failed entirely in their negotiations. The United States, on the one side, wanted to come clown and get our herring and take them up to the United States, as they had been doing. They got the herring arid imported them into the United States free of duty, although purchased from Newfound- land people, as appears abundantly by the correspondence. They had been taking these herring into the United States market and selling them. The Government of the day, the Government of New- foundland, were endeavouring to make, as I have said, terms of reci- procity with the United States under which herring and other fish of Newfoundland might be admitted duty free into the United States market in return for considerations or other privileges. JUDGE GRAY: It was retaliatory? SIR JAMES WINTER : Purely retaliatory fiscal legislation, one coun- try legislating against another upon purely commercial matters. And this legislation of 1905 was followed by a more stringent measure in 1906 on the part of Newfoundland, which prohibited the fishermen of Newfoundland from engaging as part of the crew of United States vessels. This policy or Act on the part of Newfound- land was, as I have said, the outcome of this deadlock. 566 In order to show the position in which matters stood pre- viously and down to this date, I refer the Tribunal to p. 424 of the Appendix to the Counter-Case of the United States, where the speech of Sir "Robert Bond will be found explaining the reasons, or the course of events which led up to, and, in his view, justified and necessitated the passing of that. measure: — " For fifteen years, by a free and generous policy toward our fisher friends of the New England States, we have endeavored to show them that in our desire to secure a measure of reciprocal trade with their country we intend them no injury whatever; on the contrary, we desire to compete with them on equal terms for the enormous mar- ket that the 85 millions of people in the United States offers for fishery products. In 1890 we said to the people of the United States, Kemove the tariff bar that shuts our fishery products out of your markets, and we will grant you all the supplies that you require at our hands to make your fishing a success. The offer still holds good. For the reason that I have explained, the past fifteen years the fisher- men of the United States have received those supplies without the tariff barrier to the admission of our fishery products into the United States being removed by act of Congress, but we find the very 946 NORTH ATLANTIC COAST FISHERIES ARBITRATION. men to whom we have extended such generous treatment are pre- cisely those who have worked most strenuously to injure us in our trade relations with their country. We now propose to convince those men that the hands that have bestowed the privileges they have enjoyed have the power to withdraw those privileges. In doing this we simply rise to the full dignity of matter-of-fact statesmen. With the Administration of the United States we have no shadow of a cause for complaint. They have treated us with the greatest courtesy whenever we have approached them, and have manifested both a friendly and just attitude toward this colony. It is not the fault of the Administration at Washington that we are where we are to-day in this matter; the fault lies solely at the door of those who, for petty personal interests, have misrepresented facts, and, by so doing, have deceived those who represent them in the Senate of their country " And so on. This measure, therefore, of 1905, was passed, as I have said, for the reasons which I have given. It was intended only for what might be called a commercial purpose, entirely outside and irre- spective of the position of the United States as fishermen under the treaty of 1818. No change whatever took place in the relations of the parties, or has taken place in that regard. THE PRESIDENT: Please, Sir James, if I understood you correctly, you said that in 1893 the Government of Newfoundland thought itself entitled to prohibit the enlistment of Newfoundlanders, but that in the cases you mention, supplementing a man who had been lost by accident, and so on, they permitted the issue of a licence ? SIR JAMES WINTER : Yes. THE PRESIDENT : But, in principle, in 1893, the enlistment of New- foundlanders was considered as illicit? Was not that the purpose of the Act of 1893, section 1, which says the Governor-in-Council may authorise the issue of licences to foreign fishing-vessels for the following purposes; for the shipping of crews, and so on — that pre- supposes, in principle, that the shipment of crews was not allowed? SIR JAMES WINTER : It was done, I presume, in order to give the Government power, at any time they saw fit, to put a stop to that. THE PRESIDENT: Yes. SIR JAMES WINTER: It was left in the hands of the Government to give a licence or refuse a licence. THE PRESIDENT: To make exceptions? SIR JAMES WINTER : Yes ; but clearly it does not involve the prin- ciple that the shipping of crews would be illicit. THE PRESIDENT : It did not go so far as that ? SIR JAMES WINTER: It did not go so far as to declare it illicit, because under the comity of nations they might come in and ship crews if nobody made any objection. ARGUMENT OF SIR JAMES WINTER. 947 THE PRESIDENT: But they would reserve to themselves the power of forbidding it? SIR JAMES WINTER: Yes, that was intended, that they should reserve the power at any time it would be considered expedient to forbid the shipping of crews in Newfoundland waters. 567 That was continued, without any friction and without any difficulty, for twelve years, the negotiations for reciprocal rela- tions going on all the time, Newfoundland hoping and expecting that an arrangement satisfactory to both parties would be come to. When they failed, Newfoundland then stood upon what she con- sidered, and upon what she still considers to be her legitimate and constitutional rights in the matter. It is not necessary to go into a discussion, and we are not likely to profit by any discussion of the wisdom or otherwise of the fiscal or commercial policy of these countries on either one side or the other. It is sufficient for our present purpose to show the Tribunal that in this action or policy of the Newfoundland Government they were acting, not only within their rights, but that they were not acting in any way in hostility to or in derogation of the rights of the Ameri- can people under the treaty of 1818, as counsel's observations might make it appear they had done. His observations were to the effect that this legislation was for the purpose of interfering with Ameri- can fishermen in the exercise of their treaty rights. It was not so. The learned counsel also took exception to one of the provisions of the recent regulations relating to the taking of herring with seines over a certain portion of the coast from Cape LaHune, on the west coast, and running by the west and north through the Straits of Belle Isle to Cape John. He said at p. 2851 of the typewritten argu- ment [p. 467 supra] : — " Now by section 25 of the regulations dealing with the American treaty coast, the prohibition of section 21 was reinforced by this provision : — " ' No herring, seine, or herring trap shall be used for the purpose of taking herring on that part of the coast from Cape LaHune on the west coast, and running by the west and north through the Straits of Belle Isle to Cape John.' "An absolute prohibition upon the American treaty coasts against taking fish at any season of the year by seines, but permission, by sec- tions 21 and 24, to take fish by these means, for bait and for immedi- ate use, by the local inhabitants during any period of the year. The particular part of this coast to which I refer — Cape LaHune — com- mences, I am told, about 30 miles to the eastward of the Kameau Islands which are found here. It is an absolute prohibition to take any herring with the seine extending all round here down to Cape St." John which is here, these regulations having been made during the time that both the American and French Fishery rights existed on this coast, being made to take in both the French coast and the American coast." 948 NORTH ATLANTIC COAST FISHERIES ARBITRATION. This statement is a good deal, if I may so term it, mixed up; but the point to which I wish to call attention is this : That this territory from Cape LaHune to the eastward, within about 30 miles of the Rameau Island, includes of course waters over which the Americans had no right, and at the time of the passing of these regulations the Americans were not fishing, as I have stated, with seines at all, and this was purely a fishery regulation, intended to protect that part of the coast from seining, because on that part of the coast, from Cape LaHune right around, the herring were found to be not in sufficient abundance to withstand seining. The herring were more abundant in other parts of the coast farther to the eastward, in Fortune Bay. The great fishing ground for herring is in Fortune Bay, and it was found necessary and useful to prohibit seining altogether from Cape LaHune right round to the west, into the Gulf of St. Lawrence, and right north to Cape John. And, further than that, to show that it was not intended against the Americans, the prohibition is right through the Straits of Belle Isle to Cape John, a long distance on the north-east coast of the island, where the Americans have no right of fishing, and where it could not have been directed against them. This examination of this legislation, Mr. President, I consider necessary in order to satisfy the Tribunal, as far as I can, that not one of these acts or regulations was designed to injuriously affect in any way whatever the rights and privileges of the Americans under the treaty of 1818. In so far as the fishery was concerned, the fishery regulations applied to the people of both countries, both when the Americans were fishing under the treaties of 1854 and 1871 and also when they had not those rights. They were aimed at our own people principally, because the prohibition against any appliance, no matter what it is — seines, cod-traps, bultows, or anything else — applies to ten Newfoundland fishermen as against one United States fisherman to whom it can apply at all. The only fishery — I cannot help repeat- ing it too often, because it is important to this case — the only fishery that can be called a fishery, that was carried on by the fishermen of the United States in Newfoundland waters down to 1905 and down to the present day, was the cod fishery, and that out in the deep waters, not even near the coast of Newfoundland. They only came into the ports, bays, harbours, and creeks for the purpose of getting bait, and 568 when they came in for the purpose of getting bait they invari- ably purchased it and never fished for it. None of these minor fishery regulations that are on the Newfoundland statute book, numerous as they are, as the Court will see, was intended to have any relation to or effect upon American fishermen, nor as a matter of fact has it had. The Americans have taken no notice whatever of them, and we have heard nothing about them until the present moment in this case. The whole object of these rules and regulations was the ABGUMENT OP SIR JAMES WINTER. 949 preservation and protection of the fisheries whether the United States participated in them or not, as they did for a great period of the time over which the legislation extended. It would be impossible and utterly impracticable for the Newfoundland Legislature to devise or contrive any rules or regulations which would injure the American fishermen and not injure the Newfoundland fishermen as the fishery is carried on. I will pass on to a few observations upon what was said by the learned counsel in relation to the character of these regulations; that is as to whether they were or were not necessary for the preservation of the fishery and as to whether they were good or objectionable. I do not know how far an enquiry of that sort would be relevant to the present position of this case, because Question 1, which is submitted to the Tribunal is, broadly and generally, as to the power or the right of Great Britain, or the colony, to make laws and regulations in relation to the prosecution of the fishery, and the question for the Tribunal is: Assuming these regulations to be reasonable, whether it is competent for the United States to object to them altogether, no matter how reasonable they may be, and whether there is power to pass them at all without the consent of the United States ? I do not see that the criticisms of learned counsel upon these regulations have any direct bearing upon or relevancy to the question which is before the Tribunal ; but, in so far as they may have any bearing upon the question, I must just refer to these observations and endeavour to answe.r them very briefly and precisely as well as I can. Speaking of bultows and trawls, learned counsel — I shall not refer to his language, but generally — made the observation that there was great difference of opinion among qualified authorities as to the wis- dom of legislating to prohibit the use of bultows or trawls. No doubt upon this question there is a considerable difference of opinion, and there probably will be for many years. Some scientific authorities are of the opinion that regulations prohibiting the use of bultows are not necessary, that bultows or trawls do not damage the fishery; others are of the opinion that, on the contrary, they do, and particu- larly in certain localities. Newfoundland has such legislation as it considers desirable, after having considered the matter most care- fully, and after having had the experience and the opinion of the best qualified authorities in the country. It must be borne in mind in any consideration of this question that the trade and commerce, and almost the whole life and existence of Newfoundland depend upon the successful prosecution of the cod fishery more than any other fishery, and of other fisheries also, but to a minor degree, and that it is not only the interest but the duty of the people and legisla- tors of Newfoundland to study these matters carefully from day to day and year to year. The result is that under our legislation, regula- 950 NORTH ATLANTIC COAST FISHERIES ARBITRATION. tions are made dealing with all sorts of matters affecting the prosecu- tion of the fisheries — bultows amongst them — and that from time to time, profiting by the experience gained from year to year, these rules are changed, amended and sometimes rescinded altogether. This goes on and must of necessity go on from year to year. Among other things, those who are entrusted with these powers and duties have come to the conclusion that in certain places bultows are objection- able, that they have a bad effect upon the fishing operations of these localities and the result is, without going into details, as has already been stated, at certain places which are marked on the maps, which I believe, are being put in for the information of the Tribunal, these regulations against the use of bultows are in force. It is not general or universal. It is only applied to certain places around the coasts and shores of the island and, as one of my associates has observed, none of these places are where the Americans go to catch fish. None of these regulations affect the Americans in the prosecution of their fishery except in one place only, and that is between the Rameau Islands and Cape Ray where the use of bultows is prohibited. As I have stated already, the position of the United States fishermen on that matter is either that they do not fish there at all, or if they do fish at all in that neighbourhood it is to a very small extent indeed. The fishing grounds, as everybody knows, because it is a matter of public knowledge and notoriety, are farther than 3 miles out to sea. If any fish are caught in near the shore it is in very small quantities. The American fishermen have complied with the law, because there is no evidence before this Court to the contrary, and we must presume that they have obeyed the law. Certainly they have never 569 found any fault with the law up to the present time. On the other hand, as I have stated, on other parts of the coast bul- tows are prohibited, but it is only the Newfoundland fishermen who are prohibited from using them by these rules and regulations, be- cause the Americans have no right to fish there, and even when they had the right they never went there to fish because the fishery prose- cuted by the American fishermen is out in the deep water on the banks and not in the bays, creeks and harbours of Newfoundland where these bultow regulations are in force. THE PRESIDENT : Perhaps it would be useful for us to indicate the different localities on the map. SIR JAMES WINTER : All I can say is — THE PRESIDENT : Perhaps one of the other gentlemen will have the kindness. SIR JAMES WINTER : I might observe that counsel on the other side said that they had maps and were ready to furnish them to the Court. JUDGE GRAY: This gentleman (referring to Mr. O'Reilly) will point them out on the map here. ARGUMENT OF SIR JAMES WINTER. 951 SIR JAMES WINTER: Mr. O'Reilly, will you point out the places where the regulations against bultows are in force? Mr. O'Reilly indicated Cape LaHune and Cape Ray. SIR JAMES WINTER : Now, on the coast east of Cape LaHune. Mr. O'Reilly indicated points in Fortune Bay and Placentia Bay. THE PRESIDENT : These are on the non-treaty coasts ? MR. O'REILLY : Yes. THE PRESIDENT : Are there any on the treaty coasts too ? MR. O'REILLY : There are very few. SIR JAMES WINTER: Do not the names appear in the regulations? I think they do. MR. O'REILLY: Yes, I think they do. THE PRESIDENT: Will you be so kind as to furnish the names to the Tribunal to-morrow ? MR. O'REILLY : Yes, Sir. JUDGE GRAY: Your contention is that this prohibition of bultows extends largely to the non-treaty coasts and not to the treaty coasts ? SIR JAMES WINTER : Yes, to a far greater extent to the non-treaty coasts than to the treaty coasts. I think No. 58, p. 764 of the British Case Appendix, applies to the non-treaty coast. I see a number of these regulations on p. 764 — 55 and 56. THE PRESIDENT : 58 and 59. SIR JAMES WINTER : Yes, I referred to No. 59, but I see that there are others. For instance : — " 55. No cod-jiggers, trawls, or bultows shall be used inside of a line commencing at a point one-half mile north of the northern head of Salvage, thence east three miles, thence south to a line drawn east from a southern point of Little Harbour Head, in Bonavista Bay." That is on the non-treaty coast. Nor shall any bultow be used before the 20th day of September in any year, within four miles northward or westward of the shore, including Green Island, Stone Island or Gull Island, and Cape Island, between Black Head, Bonavista Bay, and Cape Bonavista; nor within three miles northward or eastward of the shore between Cape Island and Spillar's High Rock, in the vicinity of Cape Bonavista." Then the next one is No. 56 : " Xo person shall use any bultow or trawl on the fishing grounds in Trinity Bay between a line running south east from Deer Har- bour (West) and a line running south east from Seal Islands 570 (East) nor inside of a line from Green Island, south east of Ireland's eye and half a mile off Bonaventure Head; nor be- tween a line running south east from Bonaventure Head (West) and a line running south extending three miles from the shore — JUDGE GRAY : It is hardly worth while. Are most of these on the non-treaty coasts? 952 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR JAMES WINTER : All of these are on the non-treaty coast. They are in the vicinity of Bonavista and Trinity Bays. JUDGE GRAY : It will save your time. SIR JAMES WINTER: Yes, thank you. The whole of these regula- tions on p. 764 have reference to non-treaty waters. The only excep- tion is that covered by regulation No. 62, which will be found at the top of p. 765 : " No bultows shall be used on the fishing grounds from Cape LaHune to Cape Ray, both inclusive, in the district of Burgeo and LaPoile." That includes both treaty coast and non-treaty coast, and that is the only part of the treaty coast, as I think, to which any prohibition applies. So much with regard to bultows. The same general observations that I have made about bultows apply to seining, with this exception, that there is more unanimity of opinion on the matter of seines than there is as to bultows. The fact that bultows are prohibited in a number of places on the coast is because, on account of local circumstances, the reasons are different, and it is generally left to those who have the best information on these matters in each of the localities to decide and to help the leg- islators. It is generally upon their opinions and views that these regulations are made; in other words, they are made to suit the circumstances, views and opinions of the people. It is a sort of what is called local option, and from this it results that the prohibi- tion of bultows is not general or universal. But it is different with seining. There is a general consensus of opinion against the use of seines, or rather not against the use, but as to the necessity for re- stricting and limiting the use of seines, and that is done under the general legislation which I have already referred to, going back to 1862 and applying to the whole colony, from the 20th October to a certain day in April, the date having been changed from time to time. The one other method or appliance which has been discussed is the use of purse seines. Purse seines are different from other seines. I need not delay the Court with a discussion with regard to purse seines. Whatever objections apply to the common seine are con- sidered to apply with very much greater force to the purse seine, for the reason, probably, that they are more efficacious. They sweep the ground very much more efficiently than the ordinary seine, and they take in, in their sweeping, all kinds of fish besides the fish that is being particularly sought for at the time, and a large number of small and useless fish are taken and destroyed. For further infor- mation upon that point, if any should be necessary, I would refer the Tribunal to the British Counter Case Appendix,, p. 195, where will be found an extract from the seventh annual report of the Deputy Minister of Fisheries for Canada, headed " Purse Seines." It is a long and exhaustive document ; it would take too long for me to read ABGUMENT OF SIB JAMES WINTEB. 953 it, and it is not necessary that I should read it. It begins generally by saying that: — " The destruction that the use of these seines has worked in the mackerel fishery, both on the coasts of the United States and Canada, has ceased to be either a matter of doubt or controversy, the con- sideration, therefore, of remedial measures is of paramount .im- portance." That is the statement with which it begins, and then, it will be found, upon reading it through, that some very decided opinions and views are held, not only in Canada by this writer, but in the United States, and particularly by Professor Brown Goode, who is an emi- nent authority upon these matters — a citizen of the United States holding an official position in that country, whose opinions are given throughout this article in several places. Upon these some of the States of the United States have taken action and have legislated. The Dominion of Canada has legislated, giving effect to the opinions set forth in this report strongly and unequivocally against the use of purse seines, and this legislation is in general operation through- out Canada. Further than that similar legislation — one general, sweeping provision against the use of purse seines in Newfoundland, anywhere, at any time and at all times, has been the law for years, and it has never been taken exception to by any one. Now, for the first time, it appears that this question of the use of purse 571 seines arises and, unfortunately it arises in connection with the very difficulties that have led up to this arbitration. In fact, it will be found in the correspondence and otherwise that the United States fishermen, in the exercise of their treaty rights, claimed the right to do either one thing or the other ; they said that they must have the right to employ Newfoundland fishermen, which is one of the matters in question here, or they must use purse seines. They began to use purse seines, and the correspondence, which passed immediately before the reference of these matters to this Tribunal took place, will show that that is one of the principal questions, which is at the present time acute ; I mean the question as to whether or not the Americans can come down and use purse seines in the waters of Newfoundland under the treaty. What Newfoundland says — and we have to say it here to-day — is that this is not a mere matter of a trifling regulation, a matter of no vital importance, or of no far-reaching consequences, and that it does not come under the general description given of the term used on the other side with relation to the question of one nation giving up its sovereignty to another and leaving certain small subsidiary matters of detail to be settled afterwards by mutual arrangement between the parties in the exercise of what is called the comity of nations. Learned counsel said that where the treaty itself did not provide for matters of detail 054 NORTH ATLANTIC COAST FISHERIES ARBITRATION. and there were some small and subsidiary matters and difficulties which presented themselves and which required agreement or regu- lation, or arrangement between the parties, the good sense of the nations on both sides, actuated by friendly and honourable feelings towards each other, could be relied on to take care of them, and that the parties would be able to agree upon these minor and subsidiary matters. They did not stand, he said, in the way of the application of the doctrine which he was contending for, and that under such a treaty as this was supposed to be, where a nation had parted with its control over these matters had parted with its sovereignty, had divested itself of its sovereignty, so that it was not able to legislate in reference to these small matters of detail, such matters of detail would be provided for afterwards by the good sense of the parties concerned. These were what I think he described by the word " modalities." All I have to observe upon this subject is that this is no modality in so far as the interests of the colony are concerned. This is not a mere subsidiary and trifling matter of detail, not provided for by treaty or arrangement, as to which the good sense and comity of nations would make provision afterwards. This is a vital matter which goes right down to the question of the very existence, as we may call it, of the right, or privilege, or property which is in question here. The regulation of the fisheries down on the Newfoundland coast may be a very trifling thing indeed to the United States; it may be a modality, or a triviality, or it may have applied to it any other term that will mean insignificance. To the people of Newfoundland it is not a modality and it is no trifle. This question involving the right of the fishermen of the United States to use purse seines in defiance of the opinion, in defiance of the laws, and in defiance of the Legislature of Newfoundland, is not a mere matter of modality. It is a matter affecting the most vital interests of the colony. To return to the simile of the land and to the subject of the servitude, this is not a mere servitude which is in question in so far as the colony of Newfoundland is concerned. This is the enjoyment by the United States of a servitude, and the question is whether they shall be allowed to enjoy that servitude in such a manner as to destroy not only the servitude itself, but the very existence of the colony of Newfoundland from whom they get this servitude or this privilege. On the subject of purse seines, my attention has just been called by my associates to a further passage in the report, at p. 195, of the Appendix to the Counter-Case on the part of Great Britain, which I shall read to the Tribunal : — " The United States Government realizing the disastrous falling off on its coasts of the mackerel fishery, but being unable to directly control or successfully prohibit the use of purse seines, to which such falling off was attributed, passed an Act prohibiting the land- ARGUMENT OF SIR JAMES WINTER. 955 ing of mackerel taken by means of these seines on any part of the coast of the United States, before the first of June in each year. As by this date many of these migratory fish had found their way to the coast of Nova Scotia and the Gulf of St. Lawrence, it will readily be seen that had the fish been at all plenty in the waters named, the seining operations of the United States vessels would, to a very much larger extent than was done, have been there carried on all such vessels being provided with purse seines." The reason, as I am instructed — it is a public matter, and, of course, there will be no question about it — that this Act was passed by the United States Congress in this form was that the catching of fish itself and the method of catching it was a matter for the Legislature of each particular State, and, seeing that the legislation of the particular States concerned had not prevented the use 572 of purse seines, for reasons, which, no doubt, commended them to those States, the Federal Legislature, realising the disas- trous consequences, and apparently taking a different view of it from that of the several States, accomplished the object, not by prohibit- ing the catching of mackerel, but by prohibiting the landing of mackerel taken by means of purse seines on any part of the coasts of the United States before the 1st June in each year. We must therefore claim, not only that these purse seines are mischievous and bad in their effects, but we must also claim, on behalf of Great Britain and the colonies, the right to control the fisheries of Newfoundland and Canada in such a manner as to prevent these destructive prac- tices and to preserve these fisheries. Of course this question, under Question 1, is one for the consideration of the Tribunal as to whether or not we have the power to legislate in such matters. I would make this further observation upon this general matter, that there has never been any desire to refuse to entertain any objection that the United States may have to any of the laws~ or regulations in force in Newfoundland in relation to the fisheries in so far as they affect the operations of United States fishermen. There has never been any complaint or objection upon these matters, or, if there has, there has never been any refusal, and there never will be any refusal, to hear, to consider, and to entertain any objection that may be put forward. There is no interest on the part of Newfoundland, no object,- no purpose to be served by any refusal to consider any ob- jection that may be made with the view of the protection of the fisheries on the one side, or the repeal of any restriction on the other side if it should be found to be unnecessary or working harshly or injuriously, or creating difficulties for United States fishermen, I have now, Mr. President, disposed, in so far as I am concerned, of this question of the regulations and legislation of Newfoundland ; and I would ask the attention of the Tribunal to a few observations 956 NORTH ATLANTIC COAST FISHERIES ARBITRATION. which I shall have to offer to them with relation to Question No. 6. The question, as stated, is this: — " Have the inhabitants of the United States the liberty under the said article or otherwise to take fish in the bays, harbours, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands? " The British contention is very briefly stated at p. 123 of the Brit- ish Case: — " The question is whether United States fishermen are, under the treaty of 1818, entitled to take fish, not only on that portion of the ' coast ' of Newfoundland specified in article one of the treaty, and the ' shores ' of the Magdalen Islands, but also in the bays, harbours, and creeks thereof. While the treaty grants to American fishermen liberty to take fish " ' on the coasts, bays, harbours, and creeks from Mount Joly, on the southern coast of Labrador,' etc. — " it gives liberty on the ' coast ' merely of Newfoundland, and on the ' shores ' of the Magdalen Islands. And the question is, whether the more restricted liberty in these two localities is to be construed as meaning the same as the more ample liberty on the Labrador coast. " For the present purpose the provisions of' the treaty may be divided into three parts: — " 1. American fishermen are to have liberty to take fish in the fol- lowing places: — " (a) Part of the southern', western, and northern 'coast of New- foundland,' " (b) ' On the shores of the Magdalen Islands.' " (c) ' On the coasts, bays, harbours, and creeks' of Labrador. " 2. American fishermen are to have liberty to dry and cure fish- But that is not the question before the Tribunal ; it does not relate to the drying and curing of fish but only to the right of taking fish itself. Now, Mr. President, although so much has been written and printed bearing upon it, the question itself is one within a very small com- pass. And our contention is that it is clear that on the face of the words themselves, they are scarcely capable of a second opinion. It is perfectly clear that there is a difference and that a difference was intended to be made between Labrador, where the liberty was given to fish on the coasts, bays, harbours and creeks, and the west coast of Newfoundland, where the liberty is given only on the coast, the southern coast of Newfoundland from Rameau to Cape Ray, where the liberty is given only on the coast, and the Magdalen Islands, where the liberty is given only on the shores. Or, to put it in another way, that the right to fish in the bays, harbours and creeks is given only in regard to Labrador, in addition to coasts, of course, of Labrador. ARGUMENT OF SIB JAMES WINTER. 957 A clear, unqualified, plain distinction is drawn between Labrador on the one side and the other localities or districts or areas or 573 whatever they may be called upon the other. There can be no question as to what is the obvious meaning of the words, the clear, plain, simple meaning of the words. But if there is a ques- tion before this Tribunal, — and it has been raised, — it is whether the plain and obvious meaning of the words is to be altered? Are the words to be read in any sense differently from that in which they appear in the treaty itself? It will, of course, have already been observed by the Tribunal, in reading over the Case and Counter-Case and the Arguments in this matter, as no doubt has" been done by the Court, that the contention — broadly the contention on the side of the United States is that the word "coast" necessarily includes "bays, harbors and creeks." I suppose it is their contention that it would include it anywhere, and that it includes it here in this particular document, this particular treaty — that the word "coasts" includes the "bays, harbors and creeks." Or, to put it in another way, that the intention of the parties was to include " bays, harbors and creeks/' and that the words " bays, harbors and creeks " must, as it is called, be read into the treaty. They are not there now, but they must be read into the treaty, and so the meaning contended for by the United States be practically accomplished or given. Our contention is, to start with, that the question is, and the onus is, upon the other side — if I may use the familiar expression — the onus is upon those who set up the contention against the British con- tention— the onus is upon them to show that the word " coasts " was intended to include "bays, harbors and creeks." Now, how that burden can be borne — how that onus can be carried and borne by the other side — will depend of course upon many con- siderations. But I may say this : that if it were a strict trial of the question according to the strict practice and formula in a British court — or a court of the United States, I think, as far as I am a\vare of the law of that country — the principle would apply that the onus would be upon the other side to show that the word " coast " included " bays, harbors and creeks," or that " bays, harbors and creeks " ought to be read into the treaty if they are not there already. The first contention that would arise is that it is not competent to go outside of the document itself. There are the words themselves. They are capable of the meaning which we attribute to them. On the face of them they themselves bear a plain and obvious meaning, and it is not competent for a court that has to construe a document of that sort to go outside of the face of the document itself. It is obvious therefore on fche face of it, it is plain and clear that those who drew that document — presuming, of course, as a matter of law as well as a matter of fact, in this case that they knew what they were doing — 958 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that when they made that difference between Labrador and the other parts, and used the word " coast " in both, that they intended clearly to make the difference which appears on the face of the document between Labrador and the other parts. And it would not be compe- tent to go outside of the plain terms of the document itself, to give it a different meaning from that which appears on the face of it. But, of course, Mr. President, the United States come before this Tribunal for an interpretation of this treaty without being technically or otherwise bound by the strict rules of procedure or the strict laws of evidence of any particular country. And therefore both parties have already in their Arguments and in their Cases gone outside of the terms of the treaty itself, and looked at the surrounding facts and circumstances existing at the time that were within the contempla- tion or knowledge or cognizance of the negotiators of the treaty, in order to make clear what was the real intention of the parties as expressed in those words. THE PRESIDENT : Permit me, Sir James, to ask a question : Does it not make, perhaps, a difference in the signification of the word " coast," whether the word " coasts " is used in the plural, and is used in contradistinction to " bays and harbors and creeks " which are fol- lowing ; or whether the word " coast " is used in the singular, and the expression is not only coasts, but " that part of the southern coast of Newfoundland " which extends from a certain cape to another cape ? SIB JAMES WINTER: Yes. THE PRESIDENT : Is there not a difference in the signification of the word "coasts" in the plural and this word "coast" in the singular if it is only applied to certain geographically determined points, within certain geographically determined limits? SIR JAMES WINTER: We say not; our contention is that there is not ; that it makes no difference ; that it is immaterial ; that the word " coast " means the same thing in both places. 574 THE PRESIDENT : Yes, but then would you have the kindness to look at the next part of article 1 of the treaty of 1818. There you find the words : "And also on the coasts, bays, harbours, and creeks, from Mount Joli, on the southern coast of Labrador . . . . " Here you have in the same phrase the word " coasts " in the plural and in the singular. First it is said "on the coasts," and these "coasts bays, harbours, and creeks," are here considered. It seems you. could interpret that sentence in that sense, as if those '" coasts, bays, harbours and creeks " would have been considered as a part of the coast; and that would perhaps lead to a distinction, — coast in the singular embracing the whole, and "coasts," in the plural in contradistinction to the bays and the creeks and the har- bours. Would one not come then to a distinction between "coast" in the singular, embracing the whole extention of the coast, and ARGUMENT OF SIR JAMES WINTER. 959 "coasts" in the plural, as a part of it, in contradistinction to the bays? SIR JAMES WINTER: Our contention, Mr. President, in regard to that, is that there is no distinction ; that the words " coast " is plain and simple, whether it be used in the singular or the plural ; that the meaning of coast is there and that it is immaterial, seeing that " coasts " is used in Labrador, whether you use the same word apply- ing to another part, another district, and another area, in the sin- gular or the plural. We are quite free to admit that in another place, and with a different context, and with other things to throw a light upon the real meaning of the parties, the word " coast " might be understood and read so as to include " bays, harbours, and creeks." The word "coast" is commonly used, not only in formal docu- ments, but in informal documents, conventionally and colloquially, generally in a broad, general sense, in which the coast of a country would be understood to include the bays, harbours, and creeks. We cannot go so far as to dispute that, and to contend that "coasts" ought not, or might not, or could not in some such a case as that possibly be intended to include bays, harbours, and creeks; and that is stated in the British Case. What the British Case relies upon is the clear distinction, the use of different words, not only in these very lines, but in other parts of the same clause — other parts which I shall refer to presently — in which coasts, bays, and creeks are re- peated over and over again where it is necessary to point out the distinction that is intended to be made between bays and creeks and harbours and coasts. JUDGE GRAY : There is one place, Sir James, where they repeat the use of the words " bays, harbours, and creeks." It is where the Amer- ican fishermen are given the liberty for ever " to dry and cure fish in any of the unsettled bays, harbours and creeks of the southern part of the coast of Newfoundland hereinabove described." SIR JAMES WINTER: Yes. JUDGE GRAY : That is the treaty coast, of course — " the southern part of the coast of Newfoundland hereinabove described " ? SIR JAMES WINTER: Yes. JUDGE GRAY : Is it contemplated that they should catch fish in one place and carry them into other bays and harbours and cure them; or are they at liberty to catch the fish in those bays and harbours and cure them there? SIR JAMES WINTER : I was coming to that presently. Our conten- tion is that it is very clear that what was intended was that they should catch the fish outside, out on the coast, and bring it into the bays, harbours, and creeks and dry it; and that is undoubtedly, clearly, and unquestionably the intention ; because — I may state here, as I was coming to it — it is perfectly well known to everybody that 92909°— S. Doc. 870, 61-3, vol 10 5 960 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the proper place for curing and drying cod-fish is the place where they have not been caught. The proper place to take cod-fish to dry it and cure it is a place where no cod-fish would ever be found for the purpose of catching it. That is very clear. The clear intention, unquestionable to any fisherman who is reading that article, would be : — That is all right ; you have got the right to catch fish out on the coast, and bring it into the bays, harbours, and creeks to dry it. And it is only in the bays, harbours, and creeks, where it is impossible to catch your fish, that the fish can be cured and dried. JUDGE GRAY: It may be clear to the fishermen, but it is not clear to me why that should be so. SIR JAMES WINTER: And further than that it was then only the unsettled bays, harbours, and creeks. 575 SIR CHARLES FITZPATRICK: Can you not make that point clear? It is not any more clear to me than it is to Justice Gray. SIR JAMES WINTER: Which point is that? SIR CHARLES FITZPATRICK: The point you made a moment ago, that you cannot cure the fish where you catch them. I suppose it is on the ground that you cannot catch fish in the bay. Is that it? SIR JAMES WINTER: Yes. SIR CHARLES FITZPATRICK: That is the point I wanted you to answer. SIR JAMES WINTER : I was coming to that. The fact is this, and it is the point, really, upon which the whole case, so far as the facts and the interpretation of this treaty, turns, as far as I am instructed, and that is that in Labrador, where they are given the right both to catch and cure and dry, in the bays, harbours, and creeks, there the fish, the cod-fish, frequent and go into the bays, harbours, and creeks and a re caught there. That is a physically well-known fact, — publicly known. An entirely different condition of things exists, has existed, and did exist at the time of the making of the treaty, and does-exist down to to-day, on the other parts of the treaty coasts, namely, from Rameau Islands up to Quirpon, and from Cape Ray to Quirpon, where no cod-fish is ever caught in any of the bays, harbours, and creeks. Further than that, we say that if the word " cod-fish " is put into the treaty to-day, instead of " fish of all kinds," we are perfectly content with that construction of the treaty. The Ameri- cans are perfectly at liberty to come into all the bays and creeks and harbours of the southern and western coast of Newfoundland for the purpose of catching cod-fish, as much as ever they please ; — • because no cod-fish ever come into any of the bays, creeks, and har- bours of that part of the country. SIR CHARLES FITZPATRICK : What evidence have we of that ? ARGUMENT OF SIB JAMES WINTER. 961 SIR JAMES WINTER : There is some evidence, and I shall refer to it. I shall refer to it, before I finish, and satisfy the Court upon that point also — that upon the very best authority that can be had, that is, those who are qualified fishermen, it will be found exactly as I have stated, and that is that on the coast of Labrador it is different from the other parts not only of the coast of Labrador, but other parts of the coast of Newfoundland in that respect. What may be the reasons for it, I am not able to state, and there is no evidence before the Court. The only reason that I can offer by way of sug- gestion is, and I am warranted, I think, in doing that, Sir, by the well-known physical facts and conditions, is that two things com- bine to produce this result: One is that there the water is colder, much colder than it is in the Gulf of St. Lawrence, and the cod-fish is a fish that likes cold water; and the cod-fish goes into the bays, harbours, and creeks of Labrador because the waters are cold. Another is that the coast of Labrador has a peculiar configuration, and all along the coast there are a number of islands standing out from the coast, and inside those islands are what may be called bays, harbours, and creeks where the fishermen go to catch fish. In order, then, to secure these fishing-grounds at the time of the making of the treaty, the negotiators insisted, and made it very clear, that they must have the bays, harbours, and creeks of Labrador for their fishery ; and they made no such claim whatever in respect of the other parts of the treaty coasts. SIR CHARLES FITZPATRICK : Did you look at article 3 of the treaty ? SIR JAMES WINTER : Yes, Sir ; of which treaty ? SIR CHARLES FITZPATRICK: This same treaty, on p. 31, where the word " coast " is used. SIR JAMES WINTER : Oh, I am quite free to admit — SIR CHARLES FITZPATRICK : Are you going to refer to that ? SIR JAMES WINTER: I was not going to refer to it. I should be very much obliged if you would indicate any point upon which you wish to have me touch. SIR CHARLES FITZPATRICK : You say there " coast " is not construed as including " harbours " ? SIR JAMES WINTER: Oh, no. 576 SIR CHARLES FITZPATRICK: The language there is: — " northwest coast of America, . . . shall, together with its har- bors, bays, and creeks." SIR JAMES WINTER : Yes : — " It is agreed that any country that may be claimed by either party on the northwest coast of America, westward of the Stony Mountains, shall, together with its harbors, bays, and creeks, etc." That observation, of course, is in our favour, and it bears out the answer, or at least sustains the contention that I made in answer to 962 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR JAMES WINTER : There is some evidence, and I shall refer to it. I shall refer to it, before I finish, and satisfy the Court upon that the question put by the President, that the word " coast " there is in the singular number. THE PRESIDENT : But leaving aside the question where the cod-fish are and where they may be caught, viewing only the grammatical sense of the phrase : " any of the unsettled bays, harbors and creeks of the southern part of the coast of Newfoundland," in article 1, does not that express the idea that the bays, harbours, and creeks form a part of the coast? SIR JAMES WINTER : In that particular phrase ? THE PRESIDENT: Yes. SIR JAMES WINTER : In that particular sentence, yes. THE PRESIDENT: Yes. SIR JAMES WINTER: It may be so read. Of course it must be so read. THE PRESIDENT: Is it not an indication that, in the foregoing sen- tence, the words " that part of the coast " included the bays, harbours, and creeks? SIR JAMES WINTER: We submit that if it is such an indication, it is a very faint indication, and ought not to prevail over the more obvious meaning of the word in the other sense. If there were more am- biguity about it, the use of the word might be taken as an indication of that idea ; but our contention is that the word is so free from am- biguity that an indication of that sort ought not to come in; that the word " coast " is distinguished there from " bays, harbors and creeks." I will quite admit what I think I have already said, but I will say it again, that if the word stood alone, if it were not for the context, the immediate context, the immediate association in the very same sentence, in the very same clause, of " bays, harbors and creeks " in addition to " coasts," it would be open to the other side, of course, to contend that " coasts " did include " bays, harbors and creeks " ; and they would have a very strong contention, and we might have to look to other facts and circumstances, in order to give the right inter- pretation to the word. It might or it might not have the other mean- ing. But the deliberate distinction and difference that is made be- tween " coast " and " coasts " in regard to Labrador, and " coast " in relation to the west part and the south part of Newfoundland is so plain and obvious that it must have been in the minds of the nego- tiators when they made the treaty. I was following up the reason, the particular, substantial reason in fact for the making of the distinction. At the time of the making of that treaty, the negotiators had in view — particularly the negotiators on behalf of the United States — the securing, as a sine qua non of the coasts, bays, harbours, and creeks of Labrador for the purpose of fish- ARGUMENT OF SIR JAMES WINTEE. 963 ing; and of course that meant, at that time, cod-fishing, because there was no other fishery in the contemplation of the parties. It is clear, beyond all question — that in that treaty, although the words " fish of all kinds " are used — that when the negotiators sat down to negotiate the treaty, they were thinking of nothing but the cod fishery. That is very plain, and I shall refer to evidence, as I proceed, that fully estab- lishes that fact. THE PRESIDENT: According to the treaty of 1783, I suppose the Americans had the right of entering the bays? They were not ex- cluded from the bays in 1783? SIR JAMES WINTER : The terms of the treaty of 1783 are very broad. THE PRESIDENT: Yes. SIR JAMES WINTER : And the word " coast " is there. 577 THE PRESIDENT: There was in that treaty the use of the term : " on such part of the coast of Newfoundland as British fishermen shall use? " SIR JAMES WINTER : Yes. THE PRESIDENT: Under these terms, I suppose they had the right of entering the bays also, because, in accordance with the treaty of 1783, the American fishermen were not excluded from the territorial waters of Great Britain. They were admitted to the territorial waters. SIR JAMES WINTER: They were not excluded; that is, however, with all respect, begging the question — whether they were excluded, whether the word " coasts " allowed them to come into the bays and harbours or not. The same question may be raised. DR. DRAGO: If the British were allowed to enter, the Americans were allowed also. SIR JAMES WINTER : Of course — DR. DRAGO : Because they were allowed to fish in the same parts as the British fishermen. SIR JAMES WINTER : No — " such part of the coast as British fisher- men shall use." The meaning of the word " coast " is still open. It says : " As the British fishermen shall use." It does not follow posi- tively that they must enter the bays, creeks, and harbours also. That may have been the intention of the parties, or it may not; but the word " coast " is not clearly capable of such meaning. DR. DRAGO : But is it a fact that the British entered the harbours and the Americans too, according to the treaty? THE PRESIDENT : Under the treaty of 1783 ? DR. DRAGO : I am not discussing the word " coast " in this instance, but I am asking whether it is or not a fact that the Americans en- tered the harbours and creeks, and the British also. The Americans were allowed to use the same harbours and the same fishing waters as the British? 964 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR JAMES WINTER : No, Sir. That is the same question still. DR. DRAGO: I am only asking: did the British fish in creeks, har- bours and bays? If that is so, Americans were allowed to enter them too. SIR JAMES WINTER: There is no evidence that they fished in these bays, creeks and harbours on the part of the coast in question, or used them ; and, with respect, I submit that they did not use them for fish- ing, because of the facts that I have stated, that they did not go there to fish. There was no fish for them there to catch. They used the har- bours, they may use the harbours and frequent the harbours, and go in and out of the harbours. There is no doubt about that. That is perfectly clear ; but the same question, as to whether they ever caught fish anywhere except on the coast, still remains. THE PRESIDENT: Does not the following part of article 3 of the treaty of 1783 give the sense ? The treaty of 1783 says : — "And also that the inhabitants of the United States shall have lib- erty to take fish of every kind on such part of the coast of Newfound- land as British fishermen shall use, (but not to dry or cure the same on that island), and also on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America." In this context does it not appear that, according to the treaty of 1783, the American inhabitants had the right not only to fish on the coasts, but also to fish in the bays and creeks, not only of all other of His Britannic Majesty's dominions in America, but also in the bays of Newfoundland ? I think the word " also " indicates this sense. SIR JAMES WINTER: No, Mr. President. With all due respect, no. For the two reasons that I have already given, or endeavoured to give, with regard to the treaty of 1783, and that is in this same treaty, the very words that you have read, that when you deal with the creeks and bays of all other of His Majesty's dominions in America, 578 the terms " coasts, bays, and creeks " are used ; they are given there expressly ; but they are not given in Newfoundland, the only expressions used being " coast " — such part of the coast of New- foundland as British fishermen shall use. The same distinction, whatever reason there was for it — and evidently there was some reason — is made between Newfoundland and the other dominions in America, where the bays and creeks are expressly mentioned. The same ambiguity is in both treaties; that is very clear. If it is an ambiguity at all, the same ambiguity is in both, and the same dis- tinction is taken; but for a very much stronger reason is the dis- tinction taken in the case of Labrador under the treaty of 1818. The reports of the negotiators themselves, the exchange of their papers, their drafts from day to day as the negotiations went on, and the facts and circumstances as they then stood, will help con- ARGUMENT OP SIR JAMES WINTER. 965 siderably in throwing light upon this question and in leading to a conclusion. SIR CHARLES FITZPATRICK : Are you leaving the treaty now ? SIR JAMES WINTER: On, no; I am coming to it. Leaving the treaty itself, do you mean? SIR CHARLES FITZPATRICK: Yes; are you leaving the treaty itself? SIR JAMES WINTER : On the face of it, yes, Sir. SIR CHARLES FITZPATRICK : Will you explain to me what difference there is between the words used in article 1, where the liberty to take fish of every kind is granted on the part of the southern coast of New- foundland which extends from Cape Ray to the Rameau Islands, and the words in the third paragraph, article 3, where reference is made to the north-west coast of America ? To the word " coast " is added : " together with its harbours, bays, and creeks." Why is it necessary to add harbours, bays, and creeks if " coasts " included them? SIR JAMES WINTER: May I ask you to be good enough to tell me what page you are reading from? SIR CHARLES FITZPATRICK: I am reading from pp. 30 and 31. I am reading from the treaty. SIR JAMES WINTER: Article 3; yes. " It is agreed that any country that may be claimed by either party, on the northwest coast of America . . . shall, together with its harbors, bays, and creeks, etc." SHI CHARLES FITZPATRICK: You see, in one paragraph, they speak of the southern coast of Newfoundland? SIR JAMES WINTER: Yes. SIR CHARLES FITZPATRICK : Leaving it at that ? SIR JAMES WINTER: Yes. SIR CHARLES FITZPATRICK : And in the other paragraph they speak of the north-west coast of America, and find it necessary to add " harbours, bays, and creeks ? " SIR JAMES WINTER: We submit that that supports our contention clearly, that the word is used there, not only in the singular, as it is in article 1, but it is also used with the same purpose, and for the same purpose of clearly carrying that meaning, making it clear, these words being added : " Together with its harbours, bays, and creeks," showing that the draughtsman himself recognised that the word " coast," standing alone, would not carry " bays, harbours, and creeks." SIR CHARLES FITZPATRICK: I should not say it was so clear as all that. Perhaps it is worth considering; that is all. SIR JAMES WINTER : That is the argument, if any,- that is to be deduced from the use of the word in that way, we submit. 966 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I shall refer now, as briefly as possible, to the reports of the nego- tiations between the parties, by the contractors on behalf of the par- ties respectively, the negotiations that took place leading up to the signing of the treaty. I refer to p. 88 of the Appendix to the British Case, at the top of the page: — " Extract from Protocol of Third Conference held between the American and British Plenipotentiaries at Whitehall. " Present : Mr. Gallatin, Mr. Rush, Mr. etc " The American Plenipotentiaries, after some previous explanation of the nature of the propositions which they were about to make, submitted the five annexed articles, (A, B, C, and D,) upon the fish- eries, the boundary line, the West India intercourse, that of Nova Scotia and New Brunswick, and the captured slaves. The two first articles they stated to be drawn as permanent; and they accompanied that respecting the fisheries with the annexed explanatory memo- randum." Reading article A, it would appear that the article was drafted in the same manner as the treaty, or almost in the same manner as the treaty now stands : — " on that part of the southern coast of Newfoundland which extends from Cape Ray to the Ramea Islands, and the western and northern coast of Newfoundland, from the said Cape Ray to Quirpon Island, on the Magdalen Islands; and also on the coasts, bays, harbours, and creeks from Mount Joli, on the southern coast of Labrador, to and through the straits of Belleisle, and thence, northwardly, indefi- nitely, along the coast; and that the American fishermen shall also have liberty for ever to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfound- land here above described, of the Magdalen Islands, and of Labra- dor, as here above described, — and so on. Then the following day, at p. 89, it would appear that " the British Plenipotentiaries gave in the five annexed articles, on the fisheries, the boundary, the Mississippi, the intercourse between Nova Scotia and the United States, and the captured slaves." Then it will be noticed that the clause, as drafted by the British Plenipotentiaries, in relation to the fisheries, is somewhat altered, that is, that they made a sort of counter-proposal : — " It is agreed that the inhabitants of the United States shall have liberty to take fish, of every kind, on that part of the western coast of Newfoundland which extends from Cape Ray to the Quirpon Islands, and on that part of the southern and eastern coasts of Lab- rador, which extends from Mount Joli to Huntingdon Island ; and it is further agreed," etc. Then there is a further clause, in the second paragraph, with regard to rivers, which was afterwards disposed of. upon the final draft, because the rivers were not necessary. JUDGE GRAY : From what page are you reading ? ARGUMENT OP SIR JAMES WINTEB. 967 SIR JAMES WINTER: I am referring to p. 89 of the British Case Appendix. THE PRESIDENT: If you please, Sir James: Had the French the right to fish in the bays of Newfoundland, prior to the treaty of 1818 — according to the treaties of Utrecht, Versailles, and Paris? SIR JAMES WINTER : The French ? THE PRESIDENT : Yes. Had the French the right to fish in the bays of Newfoundland in the nineteenth century? SIR JAMES WINTER : Well, I have not looked at the treaty with the French lately. THE PRESIDENT: Was it the practice of the French to fish in the bays of Newfoundland ? SIR JAMES WINTER : No. I am very clear upon that. THE PRESIDENT : It was not ? SIR JAMES WINTER: They never caught any fish in the bays. THE PRESIDENT : No fish were caught by them in the bays ? SIR JAMES WINTER : No. They went into the bays ; but they only went into the harbours for settlement, and to cure and dry their fish. On that part of the coast they never caught any fish, except out on the coasts. They never caught any fish in the bays, harbours, and creeks of Newfoundland. THE PRESIDENT : But would they have had the right to ? 580 SIR JAMES WINTER: The very same question might arise under their treaty. I have not looked at that. I can look at it and answer it more definitely at another time, if I am permitted the time to look into it. There was no point with regard to the French as to making any distinction ; and it is quite consistent with our contention that the words of the treaty with the French might have given them, even though the word " coast " was used, the right to fish in the bays, harbours, and creeks, if they required it. THE PRESIDENT: The bays are not mentioned in the treaty with the French. SIR JAMES WINTER: I do not say that even. THE PRESIDENT : No ; they are not mentioned, I believe. SIR JAMES WINTER: Perhaps they are not. I am quite ready to admit that. THE PRESIDENT: I am not sure about it; but I do not believe they are mentioned. SIR CHARLES FITZPATRICK : No ; they are not mentioned. SIR JAMES WINTER: At the same time the fact remains, as I have stated, that although they have the right to the bays, harbours, and creeks, as a matter of fact they did not use them, and there was not the necessity for making any distinction, and the result does not happen as in this case, where there is a distinction between " coasts " 968 NORTH ATLANTIC COAST FISHERIES ARBITRATION. in one place and "coast" in another place in the same article. That would be the difference. The word " coast " might be construed in the French treaty to give them the bays, creeks, and harbours, and it might be, as I have said, construed in this treaty to give them the bays, creeks, and harbours, if it were not for the juxtaposition close alongside of the statement including the bays, creeks, and harbours with regard to Labrador, and the exclusion of them with regard to the other parts of the coast. It marks clearly the distinc- tion between the two. JUDGE GRAY : How do you understand, Sir James, on p. 91 of the British Appendix, third paragraph, in that communication of Messrs. Gallatin and Rush, reading: — " The liberty of taking fish within rivers is not asked. A positive clause to except them is unnecessary, unless it be intended to com- prehend under that name waters which might otherwise be consid- ered as bays or creeks." Does not that show that at least on the part of those negotiators there was no idea but that bays were included within the waters SIR JAMES WINTER : That would arise, possibly, from this JUDGE GRAY (continuing) : — that were given to them with liberty to fish. SIR JAMES WINTER: That would be only where they were allowed to fish in bays and creeks. (Reading) : — " The liberty of taking fish within rivers is not asked. A positive clause to except them is unnecessary, unless it be intended to compre- hend under that name waters which might otherwise be considered as bays or creeks." SIR CHARLES FITZPATRICK : That would apply to Labrador ? SIR JAMES WINTER: That would apply to Labrador, yes. Coasts, bays, harbours, and creeks are still reserved in this article for Labrador : — " and on the coasts, bays, harbors, and creeks from Mount Joli, on the southern coast of Labrador,"- That evidently applied to Labrador; and there was merely a dis- cussion as to whether it was necessary to make a separate or special reference to rivers. (After an informal discussion in regard to the hour of adjourn- ment:) SIR JAMES WINTER: I hope to be able to conclude to-morrow, by the 12 o'clock recess. I think it would be more convenient to 581 me if the Tribunal were to adjourn now, because my attention has been called to several points, and I shall endeavour to clear them up in a short time in the morning. [Thereupon, at 4.10 o'clock p. m., the Tribunal adjourned until to- morrow. Tuesday, the 5th July, 1910, at 10 o'clock a. m.] ARGUMENT OF SIR JAMES WINTER. 969 NINETEENTH DAY: TUESDAY, JULY 5, 1910. The Tribunal met at 10 o'clock a. m. THE PRESIDENT : Will you continue, Sir James ? SIR JAMES WINTER: Before continuing my argument I wish to correct a misapprehension which may have been caused by an answer that I made to one of the arbitrators yesterday to the question whether the French had been actually catching fish on their treaty coasts. And I am afraid that my answer may have been to the effect that they had not been catching fish on that part of the coast. If I answered apparently to that effect it was because I was thinking of cod-fish, and it was not present to my mind at the moment that the French undoubtedly do catch fish of other kinds in the territorial waters in that part of the country. They have to fish for bait, and do fish for fish of all kinds, and recently they have started a new industry — the lobster fishery, which they claim to have had the right to do under the original terms of their treaty. Therefore, if I did use the expression or did make the statement to the effect that they do not catch any fish, I meant cod-fish. I may further add in this connection that when I spoke so definitely and clearly and positively, as it may appear, with regard to the French catching cod-fish on the coast of that part of the island, it may possibly be discovered, and constitute a discovery, or it may be a fact that cod-fish to a very small extent may have been caught by the French sometimes, in the bays, creeks, and harbours. But it is not material for the purposes of our contention in this case whether they did or not. Our contention here is that the Americans, when the treaty was being negotiated, did not contemplate fishing in the bays, creeks or harbours for cod-fish. And the fact of whether the French did catch a few cod-fish in their waters would have no material bearing in arriving at a conclusion upon the question of fact. That is all: the question of fact is whether at the time of the negotiation of the treaty the Americans contemplated the catching of cod-fish in their treaty waters on the west coast of Newfoundland. That is the ques- tion. And the fact that the French may have caught a few cod-fish down on that part of the coast would, I submit, have no material effect upon the determination of this question, for the reasons that will develop more fully as I proceed with the examination of the evidence that I shall ask the Court to consider. I had commenced, but had not gone far yesterday in the examina- tion into the circumstances connected with the negotiations between the Commissioners, the Plenipotentiaries, for the conclusion of this treaty. Then it was near the hour of adjournment, and there was 970 NORTH ATLANTIC COAST FISHERIES ARBITRATION. a little digression, on account of some questions that were suggested to me, which I endeavoured to answer. I had only proceeded par- tially with this inquiry into these negotiations, and I have to ask the Court here to bear with me while I resume that inquiry and make my observations upon all the facts and matters connected with those negotiations, so far as they are before us in the evidence. But I think it will be convenient, before coming to the actual negotiations between the parties, the negotiators themselves, the Plenipotentiaries, to go back a little and look at the instructions which they received from the United States Government as their guide for the purposes of their negotiations. I refer the Tribunal to the British Case Appendix, p. 77. The first definite statement, or at least the first matter which to my view appears to throw light upon what was in the minds of the negotiating parties, that is the Governments — both Governments as well as the Plenipotentiaries — will be found on the lower part of p. 77. This is contained in a letter from Mr. Bagot, British Minister at Washington, to Mr. Mon- roe, the United States Secretary of State : — 582 WASHINGTON, November 27, 1816. ******* " It being the object of the American Government, that, in addition to the right of fishery, as declared by the first branch of the fourth article of the treaty of 1783 permanently to belong to the citizens of the United States, they should also enjoy the privilege of having an adequate accommodation, both in point of harbours and drying ground, on the unsettled coasts within the British sovereignty, I had the honour to propose to you that that part of the southern coast of Labrador which extends from Mount Joli, opposite the eastern end of the Island of Anticosti, in the Gulf of St. Lawrence, to the bay and isles Esquimaux, near the western entrance of the Straits of Belleisle, should be "allotted for this purpose ;" That is a starting point, as it were, showing that the British Min- ister at Washington made that offer to the United States Secretary of State, limiting his offer, as I have said, to that part of the southern coast of Labrador which ends at Esquimaux Bay. And by reference to the map it will be seen that Esquimaux Bay is a little west of the Straits of Belleisle, "it being distinctly agreed that the fishermen should confine them- selves to the unsettled parts of the coast, and that all pretensions to fish or dry within the maritime limits, or on any other of the coasts of British North America, should be abandoned.^' That was, then, the propsition ; to give them that part of the Lab- rador coast which extended down to Esquimaux Bay west of the Straits of Belleisle. There was a reply, then, from Mr. Monroe to Mr. Bagot, which will be found on p. 78 : — ARGUMENT OF SIR JAMES WINTER. 971 " You have made two propositions, the acceptance of either of which must be attended with the relinquishment of all other claims on the part of the United States, founded on the first branch of the fourth article of the treaty of 1783. In the first, you offer the use of the territory on the Labrador coast, lying between Mount Joli and the Bay of Esquimaux, near the entrance of the Strait, of Belleisle ; and, in the second, of such part of the southern coast of the Island of Newfoundland as lies between Cape Ray and the Ramea Islands." The position of the parties, according to that, was just this : Britain was ready to offer to the United States two things — one down on Lab- rador from Mount Joli to Esquimaux, and another on the south coast of Newfoundland from Rameau to Cape Ray. That was the then position. And in reply to that offer this answer comes — having stated the offer: — " I have made every inquiry that circumstances have permitted, respecting both these coasts, and find that neither would afford to the citizens of the United States the essential accommodation which is desired ; neither having been much frequented by them heretofore, nor likely to be in future. I am compelled, therefore, to decline both propositions." I omitted to state that the first offer was not of both parts, but only in the alternative. The offer that was first made was either one or the other. And this is the reply, that either one or the other of these was not sufficient. Then comes a letter from Mr. Bagot to Mr. Monroe, 31st December, 1816, at the top of p. 79 :— " The wish of His Royal Highness the Prince Regent to extend to the citizens of the United States every advantage which, for the purposes in view, can be derived from the use of His Majesty's coasts, Las no other limit than that which is necessarily prescribed by a regard' to the important considerations to which I have adverted." Then I would ask the Tribunal to go down for a few lines to a very material part, this concluding sentence of the paragraph : — " His Royal Highness will be willing that the citizens of the United States should have the full benefit of both of them," Both Cape Ray to Rameau and the coast of Labrador — " and that, under the conditions already stated, they should be admit- ted to each of the shores which I have had the honour to point out. " In consenting to assign to their use so large a portion of His Majesty's coasts, His Royal Highness is persuaded that he affords an unquestionable testimony of his earnest endeavour to meet, as far as is possible, the wishes of the American Government, and prac- tically to accomplish, in the amplest manner, the objects which they have in view. The free access to each of these tracts cannot fail to offer every variety of convenience which the American fishermen can require in the different branches of their occupation ; " 972 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 583 Evidently referring to the convenience which was sought for at that time for the purpose of curing and drying their fish, and which they stipulated for most anxiously, and which they afterwards obtained, so far as Labrador was concerned, and Cape Ray to Rameau was concerned. It appeared to be a strong desire on both sides, or at least on the side of the Americans at that time, that they should have these facilities for curing and drying their fish. They stipulated for that right through; but I will come to that afterwards. That was the explanation which I offered of that phrase, that sentence. THE PRESIDENT : Please, Sir, if the Americans are excluded from the bays of the southern coast from Rameau to Cape Ray, can one say that they have the full benefit of these coasts. " His Royal High- ness will be willing that the citizens of the United States should have the full benefit of both of them." SIR JAMES WINTER: According to my contention, yes; for the reason that the full benefit, all that they wanted, and all they can have, they have got. They have got the coasts to fish on and the bays, harbours, and creeks to dry. And that is all they have sought for, or ever thought of, and all that they require. And that is fully covered by those words. Because they catch no fish in the bays, creeks, and harbours of that part of the coast. Their fishery is out- side of the bays, creeks, and harbours. It may be occasionally but to a very small and very limited extent on the coasts at all. And that part of the coast, outside there, was really of no value to them at that time, and is of no value whatever now except for curing and drying fish which they were catching in the deep water just outside of that coast, and out on the Banks of Newfoundland. I may here observe, as perhaps it may be of assistance in this case, that this privilege of curing and drying, which appeared at that time to be so important, has really not been exercised by the fishermen of the United States at all. They never have cured and dried their fish on any part of the coast. They are differently situated, alto- gether, in that respect, from both the British fishermen and the French fishermen. The French fishermen and the British fishermen both used the bays, creeks and harbours, — did use them and still do use them — for the purpose of curing and drying their fish. The coasts, the shores, are their bases of operations. Both British and French are settled on the coast, on the land. The French come out from France in the spring and settle down for the summer, and they go into certain harbours and have their establishments, their fixed establishments there, and from those establishments they send out their vessels to catch fish. Vessels go out and catch fish, and bring it into the bays, creeks and harbours, where it is dried and cured. They do the same thing exactly on the islands of St. Pierre ARGUMENT OF SIK JAMES WINTEB. 973 and Miquelon ; they prosecute the bank fishery out in the deep waters, and they bring the fish which they catch on the banks into St. Pierre and Miquelon on the south coast, and there they cure and dry it ; and they send it away to the market in a dried and cured condition. The British fishermen do the same thing, both on Newfoundland and Labrador, and at the time of the making of this treaty it was no doubt in the minds of all the parties that the American fishermen would continue to dry and cure fish in the same manner as had been done before. It is, however, a matter of fact, as it has turned out, and a matter of experience, that that idea, or that intention has never been carried out. The American fishermen, as a matter of fact, do not land anywhere to cure and dry their fish. They come down from the ports of the United States, and they prosecute their fishery, for the main part, as I have said, only in the deep waters of the banks of Newfoundland, outside of the treaty coasts altogether; occasionally, to a very small extent, in these treaty waters, if they ever did. on the south coast and on the coast of Labrador, where they follow up the voyage consistently during the summer months. But they do not land and cure and dry their fish anywhere, either in New- foundland or Labrador. They take it back, and in the United States, in their market, they sell it without curing and drying. They sell it in the condition that is called green. So that the whole of the reason for the stipulations in this treaty . for convenience in the way of curing and drying, were such as, at that time, appeared to be impor- tant, but afterwards were found to be of no importance. JUDGE GRAY: Can they or do they, the American fishermen, cure their fish on board the vessels? 584 SIR JAMES WINTER : No ; they do not cure. They are obliged to salt their fish, of course, and then, wThen they take it back to tho United States, it is cleaned and cured, in a manner which satisfies the market in the United States ; and that is a different method of curing altogether, — an entirely different method from that which is pursued both by the French and the Newfoundlanders. The latter are obliged to have shore places, in the bays, harbours and creeks, quiet places, removed from the fishing grounds, places inside, which are entirely unfit for cod fishing, but which are suitable for curing and drying; places where they can have quiet, where there will be no rough sea, where their boats can come alongside and land their fish, and where they have quiet beaches, where they can spread their fish and erect their scaffolds and flakes for the drying of their fish. Both on the French coast and the Newfoundland coast, the whole business of the cod fishery is carried on in the manner that I have described; that is, the fishermen go- out, are obliged to go out to long distances to catch the fish, and bring it back into the ports and har- bours for drying. The result is that it works out in practice as I said 974 NORTH ATLANTIC COAST FISHERIES ARBITRATION. yesterday : The greater part, far the greater part, almost the whole of the cod fishery is carried on in two places, or two regions, as you may call them — one, the Banks of Newfoundland, which spread over hun- dreds of miles away out in the deep waters ; and the other, the coast fishery of Newfoundland ; but even the coast fishery, the cod fishery, is out at the headlands, the headlands on each side of the bays; and also Labrador. These are the main fishing grounds of the New- foundland cod fishery — the bank fishery, to a small extent by the Newfoundlanders; the shore cod fishery, as I have said, mainly out on the headlands, at the side of the bays, the favourite places of resort for the cod fishermen, and the coast of Labrador, where the people of the Island of Newfoundland, who live in the bays, harbours and creeks of Newfoundland, leave the place in thousands every year and go down to Labrador for the prosecution of the fishery. Even in Newfoundland, the fishery in the bays is confined to the people of Newfoundland and is a comparatively valueless industry. It is only- prosecuted by the poorer class of fishermen, who are obliged to use only small boats, and who have not the means to procure larger boats to take them out to the capes and headlands, or to go down to Lab- rador to prosecute the fishery. The Americans — the United States fishermen — leave their homes, their country in the United States, and come down to prosecute the cod fishery in those regions that I have endeavoured to describe. They either go out to the banks, which they do in large numbers — that is their principal industry — they either go out to the banks or they go to Labrador. These are the two principal places of resort for the American fishermen — either the banks or Labrador. In the course of their fishery in the summer, it may be that they do fish to a small extent out on some of the headlands outside of the bays that I have referred to; but if it is done, it is to a very small, compara- tively insignificant extent. Their main fishery is either on the banks, in the deep waters, or at Labrador, where they fish along the coast in the bays, harbours, and creeks. These are the main, salient facts upon which we have to endeavour to arrive at what was in the view and in the minds of the parties when the treaty was being negotiated. JUDGE GRAY: Do these facts appear, Sir James, in the record, at all, as evidence? SIR JAMES WINTER : I submit that from what I am going to read, and further upon a perusal of the correspondence to which I shall refer, it will be clearly gathered from this correspondence. I shall refer briefly to this correspondence, which I have not time to read at length, leading up to these negotiations which I am just now reading from, at pp. 78, 79, and thereabouts, of the Appendix to the British Case, AEGUMENT OF SIB JAMES WINTER. 975 Mr. Bagot says, at p. 79 : — " The free access to each of these tracts cannot fail to offer every variety of convenience which the American fishermen can require in the different branches of their occupation; and it will be observed that an objection which might possibly have been felt to the accept- ance of either of the propositions, when separately taken, is wholly removed by the offer of them conjointly; as, from whatever quarter the wind may blow, the American vessels engaged in the fishery will always have the advantage of a safe port under their lee." That could only refer to the coast from Rameau to Cape Ray, on one side, or Labrador, on the other ; because at that time neither party had mentioned the west coast of Newfoundland from Cape Ray to Quirpon. 585 JUDGE GRAY : That would infer that the use of these bays was in times of gales and bad weather? SIR JAMES WINTER: Yes. JUDGE GRAY: As a refuge and harbour? SIR JAMES WINTER : For shelter. JUDGE GRAY : For shelter ? SIR JAMES WINTER : Oh, yes. That is quite consistent. JUDGE GRAY : You do not contend now that there is no right to go in, even for shelter, under the treaty ? SIR JAMES WINTER : No ; the treaty does not say anything about it. JUDGE GRAY : I know it does not. SIR JAMES WINTER : The treaty says nothing about it. JUDGE GRAY: But you contend SIR JAMES WINTER : What I submit is that the passage I have read shows that, besides the advantage of the fishery, on either place, wherever they might be in those waters, in the deep waters, either outside of Rameau and Cape Ray or down at Labrador, they had the benefit of a place for shelter; that is, they would have it under the treaty secured to them. JUDGE GRAY : Under the treaty, on the non-treaty coasts, by special provision the American fishermen are allowed to go in for shelter, and for the four purposes. SIR JAMES WINTER : Yes. JUDGE GRAY: Now, that is exclusively, so far as the words of the treaty are concerned, confined to the non-treaty coasts? SIR JAMES WINTER : Oh, yes. JUDGE GRAY : Do you mean to say that they have not that liberty on the treaty coasts, according to your construction ? SIR JAMES WINTER : Not under the treaty. JUDGE GRAY: Not under the treaty? SIR JAMES WINTER: Certainly not. JUDGE GRAY: They have no right to go in for shelter? 92909°— S. Doc. 870, 61-3, vol 10 6 976 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR JAMES WINTER : Certainly not. That is our contention. That is one of the positions that Newfoundland has taken all through these negotiations, — that they have no right to come into the treaty coasts. They must either go into treaty coasts or non-treaty coasts. They come into the treaty coasts and harbours for shelter under their Fight of fishing, if they have the right JUDGE GRAY : But you say they have not. SIR JAMES WINTER : They have not, on this part. J*UDGE GRAY: Therefore they have not the right to come in for shelter ? SIR JAMES WINTER: Not under the treaty. They may have it otherwise, and they have been accorded it otherwise. If they have been accorded the right to come in for shelter all through those waters, our contention is that it has not been under the provision of the treaty, but because there was no objection to their coming in, any more than there was to anybody else coming in for shelter. THE PRESIDENT: On both tracts of the coast — Labrador and on the southern coast of Newfoundland, they have the right to enter for curing and drying their fish ? SIR JAMES WINTER : Oh, yes. THE PRESIDENT : And if they have the right SIR JAMES WINTER: If they have the right to come in for curing and drying, a fortiori, at that time, they would have the right 586 to come in for shelter. Where they have the right to come in for drying and curing, they can come in for shelter. No ex- press stipulation was made with regard to the west coast, for coming in for shelter, because there was no necessity for it. As they were fishing outside, if they required to come in for shelter, there was no necessity to stipulate specially for that ; and it was not so stipulated. They have come in, just as they have come in at other places for shelter. The object of the treaty was to secure these places at that time— on the one side for curing and drying fish, and on the other part of the coast for shelter. JUDGE GRAY: On that view, why was it necessary to have an ex- press stipulation to give the Americans the right to seek shelter in the non-treaty bays ? SIR JAMES WINTER: Because the object of that was this, in con- nection with the restrictions: That they should not, having treaty rights to go into certain parts to catch fish — that they should not, under pretence of being American fishermen, be at liberty to go into the ports and bays and creeks and harbours all over the coast, and say that they were American fishermen who had come down to catch fish on the banks, or had come down to catch fish on the bays and creeks, or had come down to catch fish on Labrador ; because if they ARGUMENT OF SIB JAMES WINTER. 977 did, under that pretence, it was feared that there would be violations of the customs and other laws. JUDGE GRAY : Your contention is that they had no right to go into the ports and harbours on the west coast? SIR JAMES WINTER : Yes, Sir. JUDGE GRAY: Then that pretence that you suggested would not have availed them? SIR JAMES WINTER: No; if they were up there, and were there bond fide in the prosecution of the fishery, there would be no neces- sity for these restrictions for the purpose of watching them when they came in. It was only irr order that they should be under re- strictions going into the other parts of the coast, a long distance from where they had the right to catch fish. It was the coast that was left open to them : " On one part of the coast you can go and catch fish; on another part you are not to go into the bays, creeks, and harbours, except for shelter, wood, and water, and for no other pur- poses whatever." Then, with all respect, I would make this observation : That with regard to the Newfoundland west coast — and this is the remarkable feature in the case, that shows clearly that it was intended that they should -not come into the creeks, bays, and harbours of the west coast, or rather that they should not have the right to do so, even to catch fish — that on the part of the coast from Cape Ray to Quirpon, they had not the right to dry and cure their fish there ; the intention being really, as I have said, to give them the benefit of catching the fish on the coasts outside, for whatever it might be worth; and it was not considered of any value by either party, at that time or since. JUDGE GRAY : Pardon me if I interrupt you again. I am interested in getting your exact contention. SIR JAMES WINTER: I am very glad to have you ask any ques- tions, Sir. JUDGE GRAY : Do you think it reasonable to suppose that the nego- tiators of the treaty of 1818 intended only to protect those fishermen, by giving then shelter, who happened to be on the non-treaty coasts, and leave entirely unprotected, so far as treaty stipulations were con- cerned, those unfortunate fishermen who happened to be on the west coast in stress of weather? SIR JAMES WINTER: Yes, Sir; for the reason that I cannot help repeating too often, that on the west coast it was never contemplated or expected that they would be there at all. There is no fishery for them to prosecute. The only fishery of any value that was in the con- templation of either party at that time was either out in the deep waters in the banks at the south of Newfoundland, or down on the coast of Labrador; and the ports on the south and west coast were, 978 NORTH ATLANTIC COAST FISHERIES ARBITRATION. at that time, of no concern, of no value whatever to the American fishermen, the American cod fishermen, and have never been and are not to-day. It is not worth talking about — the advan- 587 tage of going into the coasts on the western coast of New- foundland, for the American fishermen. They go in to such a trifling extent, without any express stipulation in the treaty, that there is ample provision for it. Nobody would have objected to their going in. No objection would have been made, and none is made, or ever has been made. That, then, was the proposition made by Mr. Bagot to Mr. Mon- roe, at p. 79 of the British Appendix. A reply then came, dated the 7th January, 1817, to be found at the same p. 79, from Mr. Monroe to Mr. Bagot : — "Having stated, in my letter of the 30th of December, that, ac- cording to the best information which I had been able to obtain, neither of those coasts had been much frequented by our fishermen, or was likely to be so in future, I am led to believe that they would not, when taken conjointly, as proposed in your last letter, afford the accommodation which is so important to them, and which it is very satisfactory to find it is the desire of your Government that they should possess. From the disposition manifested by your Govern- ment, which corresponds with that of the United States, a strong hope is entertained that further enquiry into the subject will enable His Royal Highness the Prince Regent to ascertain that an arrange- ment, on a scale more accommodating to the expectation of the United States, will not be inconsistent with the interest of Great Britain." It appeared, then, that the negotiations were, as it were, dropped for a time, in the hope that they might be resumed later on. The parties did not seem to have come near enough together to make an agreement. Then, the next stage in the negotiations appears to be on the 28th July, 1818, as shown by an extract from a letter from Mr. Adams, United States Secretary of State, to Messrs. Gallatin and Rush, to be found on p. 83 of the British Case Appendix. These are instruc- tions given by the United States to Messrs. Gallatin and Rush, to resume the negotiations which had been begun by the letters and cor- respondence that I have read. It appears that the Ministers must have come together, and that there was an endeavour to resume the negotiations; and accordingly Messrs. Gallatin and Rush were au- thorised to meet the Plenipotentiaries on the British side, and re- sume the negotiations. And at p. 84, nearly at the foot of the page, is the important, the very important statement, contained in the instructions to these gentlemen with regard to their negotiations: — "The president authorises you to agree to an article whereby the United States will desist from the liberty of fishing, and curing and ARGUMENT OF SIB JAMES WINTER. 979 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 Belleisle, indefinitely north, along the coast; the right to extend as well to curing and drying the fish as to fishing." In that it will be observed — which is the ultimatum, the limit of their instructions — there is no mention made of the west coast what- ever. The instructions which the Commissioners had were limited to the coast from Rameau to Cape Ray, and Labrador; and upon those instructions they opened and commenced negotations with the British Commissioners, no mention whatever being made of the west coast, for either fishing or curing and drying. Then we come to the negotiations, the report of which will be found upon p. 88 of the British Case Appendix. On p. 88, at the top of the page, I read : — " The American plenipotentiaries, after some previous explanation of the nature of the propositions which they were about to make, sub- mitted the five annexed articles, (A, B, C, and D,) upon the fisheries, the boundary line, the West India intercourse, that of Nova Scotia and New Brunswick, and the captured slaves." Then, the articles A, B, C, and D, which were submitted by the American Plenipotentiaries follow ; and A will be found on p. 88, at the foot of the page : — AKTICLE A. " Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbours, and creeks of His Britannic Majesty's dominions in America: it is agreed between the high con- tracting parties that the inhabitants of the said United States shall continue to enjoy unmolested, for ever, the liberty to take fish, of every kind, on that part of the southern coast of Newfoundland which extends from Cape Ray to Ramea Islands, and the western and northern coast of Newfoundland, from the said Cape Ray to Quirpon Island, on the Magdalen Islands; and also on the coasts, bays, har- bours, and creeks from Mount Joli, on the southern coast of Labra- dor, to and through the straits of Belleisle, and thence, northwardly, indefinitely, along the coast." 588 It will be observed, as a matter of fact, that these stipula- tions were afterwards embodied and carried out in the treaty. Then this article A proceeds : — " and that the American fishermen shall also have liberty for ever to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland here above described, " From Ramea to Cape Ray " of the Magdalen Islands " 980 NORTH ATLANTIC COAST FISHERIES ARBITRATION. They wished to have the Magdalen Islands for curing and drying, as well as for fishing — " and of Labrador, as here above described ; . . . . and the United States hereby renounce any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, and harbours of His Britannic Majesty's dominions in America not included within the above-mentioned limits." So that at that time, even the Americans themselves did not stipulate for the west coast of Newfoundland, for either fishing or drying and curing. THE PRESIDENT : Is it not for fishing ? SIR JAMES WINTER : For drying and curing. THE PRESIDENT: Not for drying and curing, but for fishing, I think it is stipulated. SIR JAMES WINTER: Yes; I beg pardon. I was mistaken. That was the first time that that stipulation had been made. The following day it appears that they were met again by the British Commissioners, and that will be found on p. 89 : — " The British plenipotentiaries gave in the five annexed articles, on the fisheries, the boundary, the Mississippi, the intercourse be- tween Nova Scotia and the United States, and the captured slaves." To that offer as it stands, the same observation would apply, that there was no stipulation for the curing on the west coast of the island of Newfoundland, and the only point to which I would call the at- tention of the Tribunal at this moment is that we have here an ex- planation which throws a very clear light, as I submit, on the ques- tion that was asked by the President yesterday, as to how it hap- pened that the word " coasts," in the plural, was used with regard to Labrador, while the word " coast " only in the singular, is used with regard to Newfoundland, both from Ramea to Cape Ray and from Cape Ray to Quirpon. In both these cases the singular word " coast " is used, while with regard to Labrador, the word is in the plural, " coasts." Here we have, I submit, a very full and satisfac- tory explanation of that, in this offer — the counter offer or counter proposition of the British Plenipotentiaries, Article A. — " It is agreed that the inhabitants of the United States shall have liberty to take fish, of every kind, on that part of the western coast of Newfoundland which extends from Cape Ray to the Quirpon Islands,"- Which is one coast only — "and on that part of the southern and eastern coasts of Lab- rador "- Clearly recognising that then, at that time, there were understood to be two distinct coasts of Labrador — the southern and eastern — ARGUMENT OF SIR JAMES WINTER. 981 " on that part of the southern and eastern coasts of Labrador which extends from Mount Joli to Huntingdon Island; " That is apparently an extension from Esquimaux Bay ; instead of Esquimaux, as it was originally given, the British counter offer then is: We wiil extend it down to Huntingdon Island. That is a 589 long distance down the coast of Labrador, down towards the east. They say: Very well, now, as we offered you first only one part of the southern coast of Labrador, that is from Mount Joli to Esquimaux, we will now give you, and now include, the southern and eastern coasts of Labrador, dowyn to Huntingdon Island. And the result of the negotiations was that they got down to Huntingdon Island, and farther if they chose to go, because the northern limit is not fixed, is not named, and they have the right to go north indefi- nitely, under the treaty. DR. DRAGO: May I call your attention to this. In this Article A it is said : — " On the coasts, bays, harbors and creeks from Mount Joli, on the southern coast ; " So you see that the word " coasts " in the plural has the same mean- ing as " bays and harbours." You can read it here : " The coasts .... on the southern coast of Labrador." SIR JAMES WINTER: The language is " the said south and east coasts of Labrador." DR. DRAGO : I am not reading there. I am reading at p. 88, under the heading "Article A." SIR JAMES WINTER: I beg pardon; I was looking at the wrong place. JUDGE GRAY (reading) : " on the coasts, bays, harbours, and creeks .... on the southern coast of Labrador." DR. DRAGO : It says here — " on the coasts, bays, harbours, and creeks ... on the southern coast of Labrador." So you can read it : — " On the coast "- SIR JAMES WINTER : That means from Mount Joli, on the southern coast of Labrador, to and through the Straits of Belleisle. DR. DRAGO : But here is an enumeration SIR JAMES WINTER : Yes. DR. DRAGO: According to which, on the coast of Labrador, there are coasts, bays, harbours and creeks? SIR JAMES WINTER : Yes. DR. DRAGO : So you can notice that the word " coasts " in the plural is distinguished from the word " coast " in the singular, which com- 982 NORTH ATLANTIC COAST FISHERIES ARBITRATION. prises the coast proper and the bays, harbours, and creeks — as a gen- eral name which includes what is called " coasts " in the plural and the bays and harbours. SIR JAMES WINTER: That is in the second place — in the second case? DR. DRAGO: Yes. SIR JAMES WINTER: No, with all respect, because it says there: " On the southern coast of Labrador." DR. DRAGO : Yes. That is it. SIR JAMES WINTER : That is in the singular ? DR. DRAGO: Yes; of course. But it begins with the plural — the " coasts " on the southern " coast " of Labrador. SIR JAMES WINTER: Yes. Well, then, my answer to that is this, with all due respect: — The coasts, bays, harbours, and creeks from Mount Joli, on the southern coast of Labrador, away northward indefinitely, meant all the coasts, starting with Mount Joli, on the southern coast, down indefinitely, which comprised three coasts — the southern, eastern, and northern. That is my answer to that. Start- ing from Mount Joli, on the southern coast, and extending north- wardly indefinitely, within those limits, or no limit — indefinitely — on the coasts of Labrador, they were to have the right to catch fish. 590 SIR CHARLES FITZPATRICK : The southern, eastern, and north- ern coasts? SIR JAMES WINTER: Yes. SIR CHARLES FITZPATRICK : How do you make that construction fit in with what immediately precedes, when they speak of the western and northern coast of Newfoundland? SIR JAMES WINTER : That is one coast, the west and north coast. SIR CHARLES FITZPATRICK : Why do they make that one coast, and three coasts of the other, the Labrador coast? SIR JAMES WINTER : They so describe it, as one coast, known as the west and north coast, from Cape Ray to Quirpon. Looking at the map, it will be seen that it would come within that description ; that it is one coast, one strip, one area, extending from Cape Ray to Quir- pon, which could be described as on the west and north; being very nearly in a straight line. Those are the limits, and in order not to make confusion, we call it west and north — west and north from Cape Ray to Quirpon — one coast ; the north-west coast, it might have been called. You might call it a mixed coast, but it is one coast, one area, one limit, from Cape Ray to Quirpon, and described by the words western and northern coast. On the contrary, the coasts of Labrador are described generally without the limitations as being the south coast, the eastern coast, and the northern coast. That was generally the manner in which they were described by the parties themselves, in their correspondence, and reduced into the treaty. ARGUMENT OF SIR JAMES WINTER. 983 THE PRESIDENT: If I understand you correctly, Sir James, you mean that because there are two coasts of Labrador, they use the term in the plural? SIR JAMES WINTER: Yes. THE PRESIDENT : But then would it not have been the consequence, in the treaty of 1818 — if you will have the kindness to look at the Treaty, at p. 30 of the British Appendix — that also they are speaking of two coasts of Newfoundland, the western and northern coast of Newfoundland ? SIR JAMES WINTER : No. With all respect, I take issue upon that. I say that the western and northern coast of Newfoundland is one coast, and is intended by the parties to mean one coast. By looking at the n%ap it will be seen that, being all within one limit, from Cape Kay to Quirpon, it is described as one coast, with the two adjectives, western and northern, prefixed to it. It is one coast, described as " western and northern." SIR CHARLES FITZPATRICK: You see, unfortunately, on p. 89, they speak of the southern and eastern coasts of Labrador. SIR JAMES WINTER : That is what I call attention to. SIR CHARLES FITZPATRICK: Then why not have used the word " coast " there — on the southern and eastern coast of Labrador ? — SIR JAMES WINTER: Because they are understood as two distinct coasts, being referred to as the southern coast, the eastern coast and the northern coast. The three taken together are described as the coasts. And that would further appear from the description that is given of the southern coast, namely, from Mount Joli to Esquimaux Bay, which clearly corresponds with the idea, or fits in with the idea of the southern coast. Then there is an eastern coast and a northern coast. The first cross which I have made on the map that has been handed up to the arbitrators shows Esquimaux Bay. THE PRESIDENT : And the second is Huntingdon Island, further up ? SIR JAMES WINTER : And the second is Huntingdon. That is the one referred to in article A, on p. 89 : — " the southern and eastern coasts of Labrador, which extends from Mount Joli to Huntingdon Island." So that, by that offer, they got these two coasts, the southern and eastern coasts of Labrador, as far as Huntingdon Island. Then, having proceeded so far with the negotiations, and the offer having been made by the British Plenipotentiaries down to 591 Huntingdon Island, and no further, the next step to which I will call the attention of the Tribunal is to be found on p. 91, dated the 7th October, 1818 :— "Mr. Gallatin and Mr. Rush present their compliments to Mr. Robinson and Mr. Goulburn, and beg leave to send them the enclosed 984 NORTH ATLANTIC COAST FISHERIES ARBITRATION. paper, containing some remarks on the articles handed to them at the conference yesterday. They are to be considered as unofficial, according to the intimation given yesterday, when they were prom- ised, and have been drawn up merely under the hope that, by pos- sessing the British Plenipotentiaries of some of the views of the American plenipotentiaries before the next meeting on the 9th, the progress of the negotiation may be accelerated." Up to this time it appears they had not disclosed their ultimatum or instruction. Then they go on : — " The American plenipotentiaries are not authorized by their instructions to assent to any article on that subject which shall not secure to the inhabitants of the United States the liberty of taking fish of every kind on the southern coast of Newfoundland, from Cape Ray to the Ramea Islands, and on the coasts, bays, harbors and creeks from Mount Joli, on the southern coast of Labrador, to and through the Straits of Belleisle and thence northwardly, indefinitely, along the coast ; and also, the liberty of drying and curing fish in any of the unsettled bays, harbors, and creeks of Labrador and of the southern coast of Newfoundland, as above described; with the proviso respecting such of the said bays, harbors, and creeks as may be settled." It would appear that even then, having submitted what was their ultimatum as it were, they had no instruction and no power to agree to any article that did not contain this stipulation, and that there- fore would be indicated as being their proposal, what they would take, and even from that they omitted the west coast of Newfoundland. The west coast of Newfoundland does not appear in any of these proposals upon either one side or the other up to this time. The result of these negotiations then appears in the treaty itself. We have nothing to throw any light upon what further passed be- tween the parties until the treaty itself is agreed to, as will be found upon p. 30, and there, for the first time, in black and white, does it appear that the west coast of Newfoundland is, as it were, thrown in ; and the reason why it was done, or how it came to be done, does not appear anyAvhere. It does not appear to have been a subject of discussion, of negotiation, or of consideration, between the parties at all. It appears not even to have been referred to in the corre- spondence or negotiations that I have read ; and so far there is no explanation of it, except that it was just thrown in, in a sort of gen- eral way, after the other terms had been agreed upon — a sort of free gift on the part of the British Plenipotentiaries, the gift of a thing to which neither party attached the slightest value or importance at that time. And, particularly also for the reason, as will I think be manifest, that over that part of the coast the French had the right of drying and curing fish on the shores. So far then as dry- ing and curing on the shores was concerned, it was impossible to give it to them, because it would be interfering with the French; ARGUMENT OF SIE JAMES WINTER. 985 and, even now, under the treaty, it is not given to the Americans to dry and cure on that part of the coast. The most then that the British Plenipotentiaries could give would be the right to catch the fish on the coast outside, if they chose to do so, if there were any fish for them to catch. Then I will ask the Tribunal to look at p. 94 of the British Case Appendix, where Messrs. Gallatin and Rush send their report to the Secretary of State, accompanying the treaty, stating how the nego- tiations have proceeded, and what they have accomplished. And, this appears: — " 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 harbours of North America." They there describe that coast of Newfoundland as one coast. " On the western coast." It included a little bit farther around to Quirpon, which is not exactly west, but that is the general descrip- tion they give of the coast, the one limit or area which they called " coast " — " the western coast of Newfoundland." " Both were suggested as important to our fishermen, in the commu- nications on that subject which were transmitted." JUDGE GRAY: They seem to have thought they had secured the privilege of entering, for shelter and so on, all the British har- 592 bours of North America, from the fourth line of that first sen- tence, which of course would include the harbours on the western coast. I refer to the fourth line of paragraph No. 1, " Fisheries ": — " and the privilege of entering for shelter, wood and water, in all the British harbours of North America." SIR JAMES WINTER: Outside of the treaty coast, all the British harbours of North America for shelter, but it did not touch upon this particular area. They did not call particular or specific attention to the matter we are now considering; of course if they had, we should not have been here to-day. JUDGE GRAY: But they describe in general terms what they have secured. They had secured certain areas for fishing, and certain areas for drying, and all the areas outside of those limits for shelter. SIR JAMES WINTER : I will now ask the attention of the Tribunal to an observation in this report which shows clearly the contention that I have put forward, that these arrangements that were made at that time, that which the parties had in view as the one object of their solicitude on this part of the coast at any rate, had relation to the cod fishery and the cod fishery only. 986 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I will call attention to the concluding paragraph of this part of the Report: — " 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-projet. We insisted on it with the view — 1st. Of prevent- ing any implication that the fisheries secured to use 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 har- bors, 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 ; " This was their justification when it became a question of their having given up a fishery on the coast of Nova Scotia which they had previously enjoyed. They had the privilege, before that, on other parts of the coasts of Newfoundland, and British North America, and in renouncing and giving up those they thought they were justified, because the fisheries on the coast of Nova Scotia, which they were giving up, they thought, were all 3 miles outside of the coast line. " 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 priv- ilege 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." That is, having the right to enter into the non-treaty coast in Nova Scotia for the purposes of shelter, they would still be able to avail themselves of the fishery on that coast, although 3 miles outside of the coast line. Now, in confirmation of that Report, I would call the attention of the Tribunal to p. 130 of the British Case Appendix — a despatch from the Right Honourable Viscount Falkland to the Right Hon- ourable Lord John Russell, 8th May, 1841. I shall not read that. It is a long document, but at the end on p. 130 it says : — " The Plenipotentiaries however acted on bad information," The subject-matter under discussion was a dispute as to whether they had given up the fishery on the coast of Nova Scotia. After dis- posing of that question, which was very long and tedious, as a matter of history, this part comes in : — " The Plenipotentiaries however acted on bad information, and were mistaken, beyond three miles from the land, very few, if any herring or mackerel, the chief objects of pursuit are to be caught, ARGUMENT OF SIR JAMES WINTER. 987 and the natives of the United States are now consequently disap- pointed, and discontented, at not continuing to enjoy that wh. they had as they conceived only apparently covenanted to give up. — Mr. Eush in his Memoirs, page 400,- Cap. 19 claims credit for his astute- ness in regard to this arrangement and the introduction into the Treaty of a clause not found in the British contreprojet in the fol- lowing words, " ' It was by our act that the United States renounced the right to the fisheries not guaranteed to them by the Convention. — That clause did not find a place in the British contreprojet. We deemed it proper under a threefold view : First, to exclude the implication of the fisheries secured to us being a new grant; secondly, to place the rights secured and renounced on the same footing of permanence; thirdly, that it might expressly appear that our renunciation 593 was limited to three miles from the coasts.' This last point we deemed of the more consequence from our -fishermen having informed us that the whole fishing ground on the coasts of Nova Scotia extended to a greater distance than ' three miles ' from the land : whereas along the coasts of Labrador it was almost universally close in with the coast." This, I respectfully submit, brings us up to a point where the intention of the parties — the clear manifest intention of the parties — is expressed, is reduced to words, and set forth clearly and beyond question in the terms of the treaty itself. We have here a clear, satisfactory and abundant statement, setting before us what was present in the minds of the parties themselves ; not a mere matter of inference from the construction of words. We have here the clearest testimony, I respectfully submit, as to what was actually passing in the minds of the negotiators themselves at the time they drew this treaty. Our contention is that they reduced into plain, clear, une- quivocal language exactly what they intended. Two things are abundantly manifest. First, that the negotiations related, so far as this part of the fisheries was concerned (and when I say this part of the fisheries I refer to the Newfoundland and Lab- rador coasts) only to the cod fishery. There was no other fishery at that time worth talking about, so far as I can understand, except the mackerel fishery, which was not in the waters of Newfoundland, or on that part of the coast. It was clearly only the cod fishery all through that the parties had in view. And, secondly, that there was this broad difference or distinction between the conditions of the coast of Labrador, and that of all other parts of the coast of Newfoundland or elsewhere; that in all other parts except Labrador, the cod fish is found only in deep water, and almost entirely more than 3 miles outside of the coast. When they do come within 3 miles of the coast, it is in comparatively small quantities — at any rate in that part of the coast. As I have said already, on the headlands — near the headlands on each side of the bays of Newfoundland, the cod fish do come in to the coast, within 3 988 NORTH ATLANTIC COAST FISHERIES ARBITRATION. miles, but only at the headlands; but, those are non-treaty coasts; those are the headlands which were not granted, and which were re- nounced by the Americans. Then at p. 188 of the Appendix to the British Counter-Case we have the speech of one of the counsel on behalf of the United States, made at the enquiry in Washington in 1877 (the Halifax Commission), when the subject of enquiry was the value of the fisheries which had been conceded to the Americans under the Treaty of Washington of 1871. The value of all the several fisheries, and the circumstances connected with them, were the subject of discussion and computation, and so forth, before the Tribunal. Mr. Dana, the leading counsel on behalf of the United States, was addressing the Tribunal, and among his observations and statements this will be found at p. 188 : — " Your honors will also observe that until 1830 the mackerel fish- eries were unknown. There was no fishery but the cod fishery. The cod fisheries were all the parties had in mind in making the Treaty of 1818, and to this day, as you have observed from some of the wit- nesses, ' Fishing ' by the common speech of Gloucester, means, ex vi termini cod-fishing ; ' fishing ' is one thing and ' mackereling ' is an- other. In Mr. Adams's pamphlet, on the 23rd page, he speaks of it as a ' fishery,' or in other words, cod fishery, and in 1818 the question was of the right of England to exclude." We submit, Mr. President and gentlemen, that these observations can leave on the mind of any person who is called upon to construe that treaty no possible doubt whatever as to the meaning of the words and the intention of the parties, and it was, as we say, that on the southern coast of Newfoundland, from Cape Ray to Ramea, they had the right to fish on the coast, but not in the bays, harbours,* and creeks. The same thing applies to the west coast. They have the right to fish on the coast, but not in the bays, harbours, and creeks. But in Labrador they had the right to fish both on the coast and in the bays, harbours, and creeks. We have brought the parties up now to a point at which there can be no doubt whatever about their meaning, as gathered not only from the words themselves, according to a reasonable and proper construc- tion, supporting the construction for which we contend, but also, from the statements, the positive, clear, unequivocal statements and views and intentions of the negotiators themselves, as set forth in the corre- spondence and in their own references in their own language. Upon that point I would merely ask to submit one authority, a leading English authority upon the rule of construction to be applied in such cases as this, where a controversy arises as to the mean- 594 ing of a single word — where it may be contended it is capable of two meanings. I refer to " Maxwell on the Interpretation of Statutes," at p. 396 (edition of 1883), a leading and recognised work : — AEGUMENT OF SIK JAMES WINTER. 989 " When two words or expressions are coupled together, one of which generically includes the other, it is obvious that the more general term is used in a meaning excluding the specific one. Though the words ' cows,' ' sheep,' and ' horses,' for example, standing alone, comprehend heifers, lambs, and ponies respectively, they would be understood as excluding them if the latter words were coupled with them. The word ' land,' which in its ordinary legal acceptation in- cludes buildings standing upon it, is evidently used as excluding them, when it is coupled with the word ' buildings.' If after impos- ing a rate on houses, buildings, works, tenements, and hereditaments, an Act exempted ' land,' this word would be restricted to land un- burthened with houses, buildings, or works; which would otherwise have been unnecessarily enumerated. In the 43 Eliz., c. 43, which imposed a poor rate on the occupiers of ' lands,' houses, tithes and ' coal-mines,' the same word was similarly limited in meaning as not including mines. The mention of one kind of mine shows that the Legislature understood the word ' land,' which in law comprehends all mines, as not including any. " In the same way, although the word ' person ' in the abstract, includes artificial persons, that is, corporations, the Statute of Uses, which enacts that when a ' person ' stands seised of tenements to the use of another ' person or body corporate,' the latter ' person or body ' shall be deemed to be seised of them, is understood as using the word ' person ' in the former part of the sentence as not including a body corporate. Consequently, the statute does not apply where the legal seisin is in a corporation. The same construction was given, for the same reason, to the same word in the Mortmain Act, 9 Geo. II, c. 36. " It is in this sense that the maxim, occasionally misapplied in argument, expressio unius est exclusio alterius, finds its true applica- tion." On the same point I would take the liberty of citing from the United States Counter-Case Appendix, at p. 524, from a report which is printed of the speech of Sir Robert Bond on the Newfoundland Fisheries before the Colonial Conference of 1907. Sir Robert Bond introduced this Act which gave rise to this discussion, and in the course of the speech he concludes in this way : — " Vattel, probably the best authority upon the interpretation of treaties, says : " ' The first general maxim of interpretation is, that it is not allowable to interpret what has no need of interpretation. When the wording is in clear and precise terms and its meaning is evident and leads to no absurd conclusion, there can be no reason for refusing to admit the meaning which such treaty naturally presents, and to go elsewhere in search of conjectures in order to restrict or extend it is but an attempt to elude it.' " That citation has already been read in other connections to this Tribunal. Then I would make this further observation to the Tribunal of what our contention is upon this matter. That is, that the meaning of the parties being clear, — having been ascertained clearly, — there is no necessity for referring to further matters that have occurred 990 NORTH ATLANTIC COAST FISHERIES ARBITRATION. since the making of the treaty, except in so far as they have a direct bearing upon the question of the meaning of the parties. If the meaning was in doubt, subsequent facts might throw a light upon the meaning of the words in the article under discussion. But, our case is, that the meaning of the words is clear, that being so, there is no necessity, and it is not permissible to go outside of the meaning of the words as they appear on the face of the document. We have come down to a point where the parties came to terms, signed their agreement, and we have not only the agreement itself before us, but everything that took place prior to the signing. Now, what did they mean? In order to decide this question, as we submit, satis- factorily and properly, the proper course would be to suppose or to imagine that the treaty had been made yesterday, and that we were called upon to-day to interpret it in the light of everything that had occurred up to that moment, in the light of all the sur- rounding circumstances up to that moment, and we say. that that is the position of this case, and that everything that followed after- wards is of no relevance, and can be of no importance whatever. As- suming that at that time we have established that there could be no doubt of the meaning of the parties, subsequent events or doings or sayings or writings which might be construed as pointing to a dif- ferent conclusion should not be entertained, unless they have such a direct and close and positive bearing upon the meaning of the words themselves as to lead to a different conclusion. THE PRESIDENT: May I ask you, Sir James, whether you apply what you have just said also to a statement I find in the extracts from the journals of the Legislative Assembly of Newfoundland in 1845? It is on p. 1068 of the American Appendix: — 595 " By the Convention of 1818 the Americans of the United States are allowed to fish along all our coasts and harbors within three marine miles of the shore." Do you consider that also of no relevance? SIR JAMES WINTER: Certainly; most decidedly; upon the prin- ciple I have laid down. THE PRESIDENT: Then I have understood you, Sir? SIR JAMES WINTER: Clearly. That statement, even without any assertion of mine, is clearly, on the face of it, made by some person who did not know the facts and who did not understand the facts. My contention is that that does not help us as being a statement made subsequently by parties who could not have had accurate in- formation as to the intention of the parties, and which is manifest from other statements in the same document which was drawn up, adopted, and published without a correct knowledge of the facts and circumstances as they existed and as they exist even up to the present ABGUMENT OF SIR JAMES WINTER. 991 time. This very statement itself carries its own refutation on the face of it: — " By the Convention of 1818 the Americans of the United States are allowed to fish along all our coasts and harbours, within three marine miles of the shore, (an indefinite distance) and of curing fish in such harbours and bays as are uninhabited, or, if inhabited, with the consent of the inhabitants." How the mistake was made, whether it was originally made, as appears, from sheer ignorance of the whole facts of the case, or whether some mistake has been made in copying since, I am not pre- pared to say, but the statement is manifestly wrong, and again, under the principle which I have submitted, it is only a statement made afterwards, and such a statement made by anybody should not be accepted unless it is so powerful and strong as to upset, or more than outweigh, the facts which have been already declared and which, I state, are sufficient in this case. The statement of any number of witnesses — not witnesses, because I ask to be allowed to make the distinction — but if the statement had been made by one of the nego- tiators it might then be open to the observation which the President has just made. THE PRESIDENT : I asked only where you applied this. SIR JAMES WINTER : In my general observation I include not only this statement, but probably a large number of other statements which have been made by other parties at other times and on other occasions in which it might have been and has been stated that on this very west coast the Americans have the right to go into the bays, creeks, and harbours. These statements may be and probably will be referred to in this argument later on, but I shall not now deal with them because, as I respectfully submit, it is sufficient for us on our side to put before the Tribunal what we call a primd facie case. I have endeavoured to show that at the time of the making of the treaty, the clear intention of the negotiators was expressly set forth — that they expressly set forth what they intended, nothing more and nothing less. SIR CHARLES FITZPATRICK: Of course, that statement is far too broad in any case : — "By the Convention of 1818 the Americans of the United States are allowed to fish along all our coasts and harbours." SIR JAMES WINTER: Yes, it certainly bears on the face of it the clearest evidence that whoever wrote or published it did not know what he was writing about. THE PRESIDENT : He makes no distinction between the treaty coast and the non treaty coast. 92909°— S. Doc. 870, 61-3, vol 10 7 992 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR JAMES WINTER : No distinction, but the very general statement that they had the right to fish all over the coast and all around the island and also to dry and cure their fish all over the island. That is an exaggerated, unreasonable statement. It is made, not for the purpose, I think, of directing anything against the Americans par- ticularly. It had more to do, generally, with the protection of the fisheries. I certainly would apply my observation in that way. We submit, then, that we have brought the matter down to this 59G point that the clear and manifest intention of the parties is what we contend for and that the words of the treaty expressed fully and clearly not only the contention which we have set up out- side of the treaty, but the actual intention of the negotiators them- selves, and that anything that has occurred since could have no material bearing on this question and ought not to be permitted to come in. It may be that, later in the case, the Tribunal will be called upon to deal with matters that have arisen since the making of the treaty which point to a different interpretation of the words of the treaty. I am not now about to enter into a discussion of any of these matters for the reason I have given and for the further reason that in opening the case for the United States this Question, No. 6, has not been dealt with. If it had been dealt with more fully and if the main grounds upon which the United States relied for their conten- tion in the case had been submitted to the Court for argument it would have been my duty to answer it, but, in the present position of the case, I consider that it is sufficient to put before the Tribunal what we might call a primd facie case leading up to the conclusion that I have stated. If there be any argument adduced afterwards on behalf of the United States relating to matters which may have occurred since the making of the treaty, it will have to be dealt with by subsequent speakers on this side of the case. I will conclude with a few general observations, relating par- ticularly to one feature of the case to which great importance appears to be attached by the United States Case and Argument, and that is that Sir Robert Bond, the Premier of Newfoundland, was the first to make the discovery of this construction of the treaty, and that, further, during all the years from 1818 down to 1905, as it is said, Great Britain had slept upon her rights, that she had these rights and had never enforced or asserted them, and that, on the contrary, the United States had openly and continuously exercised and asserted their rights and they had never been disputed. I can only answer that in a very broad and general way by saying that although it may be quite true that Sir Robert Bond, in 1905, was the first to call attention to this construction of the treaty, the reason for that was that up to that time no occasion had arisen for an examination into these words, that up to that time, as a matter of ARGUMENT OF SIR JAMES WINTER. 993 fact, the United States fishermen had not openly exercised their rights under the treaty on that part of the coast, that United States fishermen had never carried on a fishery on that part of the coast, that there was no cod fishery for them to carry on and that, as a matter of fact, there is not, in this whole case, from beginning to end, a single bit of evidence that can be called evidence, that ever a fish was caught under the rights of the treaty of 1818 by a United States fisherman from Cape Eay round to Quirpon, with one excep- tion only — as far as any statement of that sort appears — and that was in the year 1823. There is an account of the proceedings that took place in relation to some fishermen who were ordered off the fishing grounds by the French and correspondence took place which I shall not go into in detail. Great Britain was drawn into that case; the United States set up the sovereignty of Great Britain and they claimed that they had the right to be on the fishing grounds in those waters by virtue of their treaty rights under their treaty with Great Britain. It was only in connection with that question that the matter came up for consideration. I submit that that will be found to be the only case in which there is any evidence whatever of any fish having been caught upon that part of the coast, from Cape Kay to Quirpon, or from Rameau to Cape Ray, by American fishermen. But, supposing that there had been, what difference would it have made? Would it be said that, even if they had no right to come in there, if they had come in there continually and repeatedly, that it would make any difference now when their strict rights under the treaty come to be enquired into? We say that it would not. Great Britain might have allowed American fishermen to come in there freely to catch fish although they had no treaty right. That would not put a different construction on the treaty. If it is clear that the treaty did not give them the right, their coming in there, once, or twice, or a dozen times, or a hundred times, or a thousand times, under the circumstances, ought not to make any difference when we are coming to adjudicate upon their strict rights, as we are to-day. It is freely acknowledged that there was no population on that part of the coast to interfere with them if they had come in. They might come in and fish there and it would not be worth the while of anybody to object to them. The British Government would not know if they were there unless there was someone to tell them, and there was no resident population on that part of the coast. They may have gone in there after 1823 frequently, but if they did go in there and if they did catch fish there — whicn must have been only a few fish — no legal effect can be given to that circumstance that would alter the rights of the parties under the treaty 597 of 1818. It could not be turned into a consent on the part of Great Britain, or a waiving or a giving up of her rights, if 994 NORTH ATLANTIC COAST FISHERIES ARBITRATION. they are what we claim them to be, it being merely one of those acts of permission, which, notwithstanding how it may have been de- scribed, could have no legal effect upon the relations between the parties. There was a period when, under the reciprocity treaty of 1854, they would have had the right to go there ; under the treaty of 1871 they would have had the right to go there, and since the treaty of 1871, under the modus vivendi and otherwise, they might have gone there, but it is perfectly clear, it is absolutely clear as we submit, from the extracts and matters that I have referred to, that down to the present time, if the Americans ever did go into one of these ports, it was not to catch cod-fish. They have had no other business there at any time except one and that was the purchase of herring. They have been there only for that purpose and the contrary cannot be shown, I submit, from anything that has occurred in this case. In so far as I am instructed and informed they have never set up this claim until now to catch cod-fish because they never wanted to catch cod-fish and they never set up the right to catch herring because they never caught any herring; they always purchased the herring which they required, and it is only now, after the expiry of all these years, that we hear of these supposed rights such as the United States are contending for. They are the people who have been sleeping on their rights because they never set up a right. This is a matter of claim which is disputed and they never did anything with regard to this very question of their rights, the only question for determina- tion, until 1905, or thereabouts. Then, how does the matter come up? It does not come up at all under relations between the parties such as existed in 1818 when the treaty was made. The question now arises for the first time, as Sir Robert Bond says, and he is the first to deal with the question. They are now setting up a new right for the first time to prosecute a new fishery and to carry on a new business under the treaty in the waters of Newfoundland which it is abundantly, manifestly, and clearly shown was not in the contem- plation of the parties at the time the treaty was made. JUDGE GRAY: What is the fishery they are prosecuting in these bays? SIR JAMES WINTER: Only herring, and that has arisen from the fact of the United States coming in and making a claim to catch her- ring in the Bay of Islands and other bays on the west coast — the first time that they have asserted the claim positively as a matter in ques- tion to be dealt with seriously and to be passed upon and disposed of. That will appear 'abundantly from the evidence when it is gone into. If reliance is placed upon the fact in any future part of the case that the United States fishermen did exercise their rights to catch fish in those waters, all I can state in a general way is, that as far as I am instructed, it is not so, that they have carried on no AKGUMENT OP SIR JAMES WINTER. 995 fishing operations of any sort, with the one exception that I have spoken of in 1823, that since then there is no evidence of it at all, and, I submit, that as a matter of fact there has been no fishing in those waters since then. The reason is that the fish are not there. It is not worth their while to go there and the question has never arisen. Confusion may have arisen in the minds of the people since then. There may have been a general idea that they had the right to fish there from the fact that American fishermen come down from the United States, bringing with them licences to touch and trade. Nat- urally they come in the same vessel as those which are engaged in the deep sea fishery, they go indiscriminately into all ports and buy their herring and bait, and they being American fishermen who have the right to prosecute the cod fishery on the banks, the notion has got out, that the Americans have the right to go into those waters to catch fish. But the fact that the question is now raised for the first time is because, up to the present time, they have never done cod fish- ing, as it was expected and contemplated when the treaty was made, and they now come in to prosecute a business to which the New- foundland Government, at any rate, very strongly object, namely, the fishing for herring in the bays on the west coast. When they set up this claim for the first time it becomes necessary to enquire strictly into their legal rights. Then, for the first time, we examine their title deeds to see what their title is to exercise this new fishery, to carry on a new business which it is the object and purpose of the Newfoundland Government, for the present at any rate, to prohibit altogether. Having decided to put an end to the purchase and sale of herring, as it has been going on, the United States turn around and, for the first time, set up the right to catch herring in those waters, and to catch herring by employing Newfoundland fishermen as part of their crews. It is out of this new claim and out of this new business that this whole trouble has arisen. These facts are so 598 sufficiently well established that it is not necessary to occupy the time of the Tribunal by referring to them in detail. It may have been generally believed and supposed by all parties con- cerned that the Americans had the right to go in and fish in New- foundland waters and the distinction between the cod fishery, which it was intended, under the treaty of 1818, that they should be per- mitted to carry on, and the herring fishery which they are now, for the first time, trying to enter upon, was never pointed out, never ap- peared and never arose. They made a treaty for the purpose of catching cod-fish in 1818. They put the word " coasts " in the treaty, which gave them the cod fishery, and gave them the cod fishery because they did not want any- thing more than the cod fishery. If at the time of making the treaty they had wanted the herring they would have put in the words 996 NOETH ATLANTIC COAST FISHERIES ARBITRATION. " bays, creeks, and harbours." They did not want the herring at that time ; there was no herring there, and there was no herring there for years afterwards. It is only recently that this herring business has grown up, and it has grown up on account of the settled popula- tion. There being now a population settled down on that part of the coast and the people catching the herring from the shore, it has made it necessary for the Americans to come in and purchase herrings from these people ; but even yet it is a comparatively new business. THE PRESIDENT: The treaty, by its language, is not limited to the cod fishery ; it extends to the taking fish of every kind ? SIR JAMES WINTER: Yes; I am thankful for the suggestion. Our contention is that they have the right to catch fish of every kind, but we say: Catch fish of every kind on the coast. We further say to them : You have the right to take fish of every kind, and we have no objection to your taking fish of every kind, but you have no right to take fish in the bays, creeks, and harbours of the west coast. If you read the word " cod-fish " into the treaty, as we say it should be, we have no objection to your going into the bays and creeks and catch- ing such cod-fish as you can find there. But if you do not read into the treaty the word "cod-fish," then you must not read into it the words " bays, creeks, and harbours." If you stand upon your strict rights, and not only upon your strict rights, but upon your rights as the negotiators honestly intended them, then you must construe '; coasts " in the manner we contend for. You wanted to carry on the cod fishery, and the word "coasts" was sufficient to give you what you wanted. That is our contention. You put " coasts " on the west coast, and when you got down to Labrador, when you wanted to go into the bays, creeks, and harbours, you put those words in the treaty. You could have put " bays, creeks, and harbours " into the treaty in both cases. That is our contention, and I say with all respect that all the facts and surrounding circumstances show that that was un- doubtedly the intention of the parties — that that is what was in their minds and nothing else. This whole trouble has arisen from the fact that now an attempt is being made to justify the prosecution of an entirely new business in the waters of Newfoundland on these treaty coasts which was not contemplated by the parties, which was not con- templated by the negotiators, and which is, under the terms of the treaty itself, excluded, and from which they are forbidden. I have endeavoured to submit the Argument for the British Case upon this question in as brief outline as possible, and only, as I have said, to establish what I hold to be a primd facie case upon the con- struction of this treaty. I do not consider that I am called upon to proceed any further, because I should be only, perhaps, groping in the dark in dealing with questions and points which possibly may not arise; but, at any rate, if they should arise, if any defence or any ARGUMENT OP SIR JAMES WINTER. 997 answer to our contention be set up by the other side, and if new mat- ter is introduced, it will devolve upon counsel who follow me to deal with such questions. I thank the Tribunal for the patient hearing they have given me. THE PRESIDENT: The Court will adjourn until 2 o'clock. [The Tribunal, at 11.55 o'clock A. M., took a recess until 2 o'clock p. M.] 599 AFTERNOON SESSION, TUESDAY, JULY 5, 1910, 2 P. M. THE PRESIDENT: Please begin your Argument, Mr. Warren. AEQUMENT OF THE HONORABLE CHARLES B. WARREN ON BEHALF OF THE UNITED STATES. MR. WARREN : Mr. President, the duty has been assigned to me of presenting, in behalf of the United States, its submission relating to and bearing upon the 5th Question of the Special Agreement be- tween the United States and the Government of Great Britain under which this High Tribunal is convened. Before undertaking to perform this duty, however, I desire to associate myself with the sentiments so well expressed by the hon- oured president of this Tribunal at its first session. Inasmuch as the Tribunal has manifested a desire that this sub- mission proceed rapidly I shall not take this occasion to express, in rny own behalf, sentiments to which I should desire to give expression were these hearings not already of long duration, and were it not evident that they must of necessity continue days longer. The fact that this controversy, however, which, in the matters at least that touch its history, reaches back before the beginning of the Government of the United States of America and of the Dominion of Canada, and before the beginning of local government in the colony of Newfoundland, and which has continued while the Dominion of Canada has been growing to such great proportions, is now, after having been for many years the subject of diplomatic controversy and dispute, submitted to this Tribunal for arbitration, entitles the two Governments here represented to be known to all the world as advo- cates of the principle of the settlement of international disputes by arbitration. Inasmuch as this is an arbitration between two nations, and the adjustment of differences between states by arbitration is on trial, it seems important to the counsel for the United States 'that every fact and every principle of law which might have a bearing on the award should be fully presented and argued, in order that, whatever the result may be, the world will know that these two nations fully presented this submission, and that justice was done between them. 998 NORTH ATLANTIC COAST FISHERIES ARBITRATION. It will be my endeavour to compress what I may say into as small a compass as possible, to dispense with all discussion of collateral matters, and to confine myself to the subject-matter indicated by the Question itself. The distinguished counsel who opened in behalf of Great Britain, Sir Eobert Finlay, took occasion to express a fear which had, per- haps, been already sufficiently manifested in the Case filed on behalf of Great Britain, that the Award of this Tribunal would go beyond the scope of the construction of the treaty of 1818 between the United States and Great Britain. The United States well understands that the submission here involves solely the interpretation of the various clauses of this treaty of 1818, and entertains no doubt that the Tri- bunal will perform that task only. Nor do I, for my own part, believe that an Award by this Tribunal, finding, that antedating and during the negotiations, and that by the very terms of the treaty itself, it was understood between these two nations that " bays, creeks, or harbors of His Britannic Majesty's Dominions in America," for the purposes of this treaty, now submitted to this Tribunal, were confined to those bodies of water lying landward of the 3-mile line, agreed upon by the very terms of the treaty itself, would, as con- tended by Great Britain, result " in difficulties and disputes in every part of the world." In 1824, six years after the signing of this treaty, the orders of the Government of Great Britain to His Majesty's sloop " Dotterel," then stationed in the North Atlantic, were, as shown on p. 377 of the Appendix to the Case of the United States, that any American vessel found within three marine miles of the shore, except for the four purposes specified in the treaty, should be seized. In 1839 the orders issued by the Admiralty of Great Britain to Admiral Sir Thomas Harvey, in command in the North ' Atlantic, were only to prevent American fishing-vessels from fishing nearer than 3 miles to the land. This fact appears in the evidence on p. 451 of the Appendix to the Case of the United States. The construction of the treaty became a matter of contro- 600 versy about the year 1841, and was discussed between the representatives of the two Governments for several years. It was during these years that the authorities of the province of Nova Scotia sought to have the Government of Great Britain change its orders to the Admiralty. However, the Government of Great Britain, after long delibera- tion, expressed its own judgment, as will be seen in the Appendix to the British Case, on p. 146, in a note from Lord Stanley, Secretary of State for the Colonies, to the Eight Honourable Viscount Falk- land, to this effect: — ARGUMENT OP CHARLES B. WARREF. 999 " His Majesty's Government therefore henceforward propose to regard as bays, in the sense of the treaty, only those inlets of the sea which measure from headland to headland at their entrance the double of the distance of three miles, within which it will still be prohibited to the fishing vessels of the United States to approach the coast for the purpose of fishing." I am not unmindful of the fact that this formal decision of the Government of Great Britain was objected to, in behalf of the province of Nova Scotia, and of the province of New Brunswick; but, nevertheless, this was in 1845 the judgment of the Government of Great Britain. The note containing this decision was transmitted to the Governor of Nova Scotia and to the Governor of New Bruns- wick, with the recommendation that the construction of this treaty be carried out along the lines laid down in the note. Professor Westlake, until recently Whewell Professor of Inter- national Law at the University of Cambridge in England, at one time President of the Institute of International Law, for many years an eminent authority, and often an advisor of the British Govern- ment, states in his work on International Law, at p. 1ST of vol. i. : — "As to kays, if the entrance to one of them is not more than twice the width of the littoral sea enjoyed by the country in question, — that is, not more than six sea miles in the ordinary case, eight in that of Norway, and so forth, ..." and here I pause for' a moment to remind the Tribunal that Norway has steadfastly insisted upon the four-mile limitation, as an excep- tion among nations — "... there is no access from the open sea to the bay except through the territorial water of that country, and the inner part of the bay will belong to that country no matter how widely it may expand. The line drawn from shore to shore at the part where, in approaching from the open sea, the width first contracts to that mentioned, will take the place of the line of low water, and the littoral sea belonging to the state will be measured outwards from that line to the distance, three miles, or more proper to the state." By " proper to the state " Professor Westlake means the maritime limit acknowledged by the state; and there is no doubt that the Gov- ernments of Great Britain and the United States acknowledge this limit to be three marine miles, as is plain from their own decisions, and the decisions of their own courts, and from their statutes, to which of course reference will later be specifically made. The position of the Foreign Office of Great Britain to-day on this question has been defined in the House of Lords, by the Under- secretary of State for Foreign Affairs, in reply to a direct question, in these words — I read from vol. clxix. of the authorised edition of the Parliamentary Debates of Great Britain, in column 989. 1000 NORTH ATLANTIC COAST FISHERIES ARBITRATION. However, before I read this statement, without professing an excessive amount of information as to the internal government of Great Britain, I might say that I understand, that when these ques- tions are put in the British Parliament, they are put in writing and notice is given, a certain number of days, which, if I carry the number in my mind, I believe is five, before a reply is expected from the Government to any question so put by any member of the House of Lords or of the Commons; and that when the reply is made, the member of the Government best informed on the subject-matter indi- cated by the question makes that reply; and that it is therefore a formal, indeed, a very formal, proceeding in the Parliament of that great nation. This statement, as I said, is found in the " Parliamentary Debates," vol. clxix, and is under date of the 21st February, 1907. The reply to a question so put was made by the Under-Secretary of State for Foreign Affairs, Lord Fitzmaurice, and was as follows: — " I pass to the position of the Foreign Office. The jurisdiction which is exercised by a state over its merchant or trading vessels upon the high seas is conceded to it in virtue of its ownership of them as property in a place where no local jurisdiction exists." That is a recognition of dominium, in behalf of the Foreign Office of Great Britain. 601 " Therefore, the first thing that, in these cases, the Foreign Office has to ask is, Was there or was there not, territorial juris- diction in the place where the alleged events occurred? In regard to that I can certainly say that according to the views hitherto ac- cepted by all the Departments of the Government chiefly concerned— the Foreign Office, the Admiralty, the Colonial Office, the Board of Trade, and the Board of Agriculture and Fisheries — and apart from the provisions of special treaties, such as, for instance, the North Sea Convention, within the limits to which that instrument applies, territorial waters are: — First, the waters which extend from the coastline of any part of the territory of a State to three miles from the low- water mark of such coastline; secondly, the waters of bays the entrance to which is not more than six miles in width, and of which the entire land boundary forms part of the territory of a State. By custom however and by Treaty and in special convention the six-mile limit has frequently been extended to more than six miles." There is no question but that by convention, and by assertion of jurisdiction and acquiescence, the extent of jurisdiction may be en- larged, and that it has frequently been so enlarged; and that is what the Under-Secretary of State for Foreign Affairs intended by that statement. When this has been and is the position of that great Government, I conceive that it rmght be more disturbing to the peace of the world should this Tribunal determine, by its award that the contention here ARGUMENT OP CHARLES B. WARREN. 1001 put forward by the counsel for Great Britain that every body of water which some geographer, of whatever standing, might designate on a map as a bay, was in fact a territorial bay in international law, and for the purposes of fishing was the exclusive territorial water of the nation possessing the adjacent territory. The particular Question to which I shall address myself reads : — " From where must be measured the ' three marine miles of any of the coasts, bays, creeks, or harbors ' referred to in the said Article? " The renunciatory clause in the treaty of 1818, from which arises this Question, reads: — "And the United States hereby renounce forever, any Liberty here- tofore enjoyed or claimed by the Inhabitants thereof, to take, dry, or cure Fish on, or within three marine Miles of any of the Coasts, Bays, Creeks, or Harbors of His Britannic Majesty's Dominions in Amer- ica not included within the above-mentioned limits; " That phrase " above-mentioned limits " of course refers to the designated coasts within which rights had been granted under the preceding terms of the treaty. The clause continues: — " provided, however, that the American Fishermen shall be admitted to enter such Bays or Harbours for the purpose of Shelter and of repairing Damages therein, of purchasing Wood, and of obtaining AVater, and for no other purpose whatever. But they shall be under such Restrictions as may be necessary to prevent their taking, drying or curing Fish therein, or in any other manner whatever abusing the Privileges hereby reserved to them.". The true interpretation of the provision : " Within 3 marine miles of any of the bays, creeks, or harbours of His Britannic Majesty's Dominions in America," when used in connection with the clause " Or within three marine miles of any of the coasts," is to be deter- mined by the Tribunal when answering this Question. JUDGE GRAY: May I interrupt you a moment, Mr. Warren? MR. WARREN : Certainly, your honour. JUDGE GRAY : I wish to ask you whether you have, or whether we can obtain, the Moray Firth Case, referred to in the extract you have just read from the "Parliamentary Debates"? MR. WARREN : We can furnish the Tribunal with the Moray Firth Case in the lower court. JUDGE GRAY: We should like to have it. MR. WARREN : That is the judgment of the lower court. The case is still on appeal, and has not been determined, as I understand, in the higher courts in England. If I am wrong, counsel for Great Britain can correct me. JUDGE GRAY : That is all I wished to ask. If we can get it, we can ; and if we cannot, we can get along without it. 1002 NORTH ATLANTIC COAST FISHERIES ABBITRATIOIT. 602 MR. WARREN : We have the decision of the lower court. THE ATTORNEY-GENERAL: I think the decision in question was one by the highest court of criminal appeal in Scotland, and I do not think there is any appeal to the House of Lords. In fact, I do not think, as the matter was a criminal case, that any appeal would lie. Still, we will make enquiry, and if there is any further report than that which is submitted to the Tribunal by Mr. Warren, the Tribunal shall have it. MR. WARREN: It seems desirable now to state the contentions of the two Governments on this question. I shall read from the British Case and Argument, for while this question was discussed at great length in the oral argument, the position of that Government has only been amplified and illustrated, and in no wise altered. On p. 83 of the British Case, just above the sub-division entitled " History of the Question," the position of Great Britain is stated : — " His Majesty's Government contend that the negotiators of the treaty meant by ' bays,' all those waters which, at the time, everyone knew as bays." On p. 103, the position is again stated, under the heading " British Contention " : — " His Majesty's Government contends that the term ' bays,' as used in the renunciation clause of article one, includes all tracts of water on the non-treaty coasts which were known under the name of bays in 1818, and that the 3 marine miles must be measured from a line drawn between the headlands of those waters." On p. 104, in the last paragraph on that page, the position is thus stated : — " The negotiators of the convention were dealing, therefore, with tracts of water on the shores of His Majesty's dominions which were known to everyone under the name of ' bays ' — tracts of varying size and of varying conformation, some with greater and some with less width between their headlands, ranging from inclosures of consider- able extent to inlets of small size. They use the term ' bays ' without any qualification whatever, and the inference is irresistible, as His Majesty's Government submits, that the term was intended to apply to all the waters on those shores which were known to the negotia- tors and to the public, and were marked on the maps at the time, as ' bays.' If it had been intended that the term should apply only to a limited class of the waters which were then called ' bays,' an ex- press limitation would have been inserted to give effect to that intention." I call attention to the expression : " which were known to the negotiators and to the public" — maps not being sufficient, but the public being included, as a witness to be produced. On p. 122 of the British Case, the position of the British Govern- ment is stated as follows — reading the " Conclusion " on that page : — " Great Britain, therefore, contends that the treaty applies to all bays on the coasts of British North America, and that the three ABGUMENT OF CHARLES B. WAEEEN. 1003 marine miles specified in article one must be measured, in the case of unindented coasts, from the shore line at low tide; and, in the case of all bays, creeks, or harbours, from a line drawn across the mouths of such bays, creeks, or harbours." In the Argument presented in behalf of Great Britain, at p. 85, the contention is stated in this wise : — "The contention of His Majesty's Government is that the word ' bays ' includes all those tracts of water which were known under the name of bays in 1818, and were so marked in the maps of that time ; and that the three marine miles must be measured from the outer limits of those waters — that is, in accordance with the general prac- tice in such cases, from a line drawn between the headlands." And at p. 92 of the same volume, the position is stated with dis- tinctness and precision. I read from the first paragraph on p. 92 of the British Argument: — " It has been suggested that the natural meaning of the term ' bays ' may be limited by the words which follow, namely, ' Of His Britan- nic Majesty's dominions in America.' Great Britain contends that these words are merely descriptive of the locality of the bays, and that they have no other significance. In the Counter- Case of the United States the attjtude of Great Britain on this point has been misunderstood. It is there stated that ' the British Case is based on the assumption that the words "bays, creeks, or harbours of His Britannic Majesty's Dominions in America," as used in the renuncia- tory clause of the treaty, were intended to be descriptive of terri- torial waters of Great Britain,' and an argument is thereupon formu- lated on that issue. This is a misapprehension. The contention of His Majesty's Government is stated quite clearly in the British Case, and has been stated in the same way on many occasions during the 603 last seventy years. It is that the treaty relates to all bays on the British coasts. In that view no question can arise as to territorial jurisdiction." Now, if that language means anything, it means that it is not for this Tribunal to make any inquiry into the extent of the exclusive territorial jurisdiction of Great Britain in respect of the fisheries in the North Atlantic Ocean in 1818, admitted by the United States of America ; but that that question is outside and quite apart from the issue before this Tribunal. Proceeding with the reading from p. 92 of the British Argument : — " the words of the article are read in their natural sense as referring to all the tracts of water known as bays on the coasts of the British dominions in North America. It is abundantly clear that all the bays on these coasts were within British jurisdiction, but, in the view that His Majesty's Government presents, the question is not material. " That the words ' of His Britannic Majesty's dominions in Amer- ica ' were merely descriptive from a geographical point of view is clear from an examination of the treaty. It will be observed that the language of the renunciation of 1818 follows closely the lan- guage of the grant of 1783." 1004 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Then follows a short extract from the treaty of 1783, and the Ar- gument continues: — " The word ' bays ' was therefore undoubtedly intended to be used with the same signification in both treaties. And consideration of the language of both documents shows clearly that the words ' of all other of His Britannic Majesty's Dominions in America ' were em- ployed as words of locality, and not of ownership. The words were used as a geographical limitation ; that they were merely a convenient form of denoting the bays on those parts of the British coasts which were not referred to by name. It would be difficult to suggest any other form of words which would so completely give effect to the con- struction for which his Majesty's Government contends. On the other hand, if it had been intended to limit the waters in the manner sug- gested by the United States, it \vould certainly have been necessary, in view of the great uncertainty of the law on the point, and the large claims which both Great Britain and the United States were maintaining at that time, to come to some express agreement on the extent of territorial jurisdiction over enclosed waters, and to give effect to that agreement in the treaty. " The suggestion that the treaty is limited to territorial bays origi- nated not with Great Britain but with the United States. The argu- ment of the United States on former occasions has been that the article refers only to bays over which Great Britain had jurisdiction in 1818." If the Tribunal please, counsel for Great Britain have carefully refrained from presenting to this Tribunal in the printed Argument or from discussing in oral argument, the question of the extent of the exclusive territorial jurisdiction of Great Britain over bodies of water adjacent to the shores of its possessions in North America in 1818 ; arid have taken the position that it is immaterial, and some- thing quite apart from the issue here, as to whether or not any body of water from which the fishermen of the United States were to be excluded thereafter, was within or without the exclusive jurisdiction of Great Britain. Taking up, Mr. President, the contention of the United States on this question, I read from p. 144 of the printed Argument filed in behalf of the United States :— "If this renunciatory clause, drafted by the American plenipo- tentiaries, had been made to read on or within three marine miles of any of the coasts, bays, creeks, or harbors within the 'British jurisdiction' or within 'the British limits,' or within 'the ex- clusive jurisdiction of Great Britain,' or within ' the maritime limits of Great Britain,' or within 'the limits of the British sover- eignty ' all these limiting phrases are quotations from the correspondence and negotiations leading up to the treaty of 1818— "the meaning definitely attached to any one of these terms in the notes and discussions between the two powers antedating the meeting ARGUMENT OF CHARLES B. WARREN. 1005 of the Commissioners would have now attached when one of the phrases was again used. "It is not open to discussion that the words, 'of His Britannic Majesty's Dominions in America,' transferred from the treaty of 1783, were the equivalent in all material respects of these other lim- iting phrases. "The notes in the possession of the respective plenipotentiaries disclosed no demand for the surrender of the historic rights of the American fishermen in these great outer bays. There never had been any discussion, between the two powers, of such extended juris- diction. The protocols of the conferences, in which the proceedings were to be recorded in detail." 004 And the words " in detail " are taken from the protocol of the first conference of the commissioners in 1818 — " contain no reference to the discussion of this question, and the American plenipotentiaries stated that ' their instructions did not anticipate that any new terms or restrictions would be annexed ' to the proposals made to the American Government prior to the meeting of the negotiators." THE PRESIDENT : If you please, Sir : If the words had a legal sense, and not a merely geographical sense, if the words " of His Britannic Majesty's Dominions " would be equivalent to British jurisdiction, or limits of exclusive jurisdiction of Great Britain, or one of these other expressions referred to in the printed Argument, would it then not have been more appropriate to speak of His Britannic Majesty's " dominion," instead of His Britannic Majesty's " Dominions " ? Would not the conception of sovereignty be more adequately ex- pressed by using the singular " dominion " instead of the word " dominions " wThich is used more to the territorial extent ? MR. WARREN: Mr. President, in answering that question, I first wish to say this : That it seems to me, that it must always be under- stood that these negotiators were not recording the results of philo- sophical studies on this subject, but were using phrases as they were commonly used amongst men. I have no doubt that the negotiators well knew that the term " dominions " signified the territory over which any particular State had the exclusive right to exercise sover- eignty, and that the term " dominion " signified the sovereignty so exercised ; and that in the minds of the negotiators of the treaty the words would have been understood as synonymous. I will, Mr. President, continue reading from p. 145 of the United States Argument : — " The extent of the ' bays, creeks, or harbours of His Britannic Majesty's Dominions in America ' could not be determined except by the agreement of the two powers, provided there was to be any exten- sion beyond the admitted jurisdiction within the three mile limit." Now, if the Tribunal please, that statement would seem to be a fact; that the exclusive maritime jurisdiction of Great Britain could 100G NORTH ATLANTIC COAST FISHERIES ARBITRATION. not be extended except by agreement with the United States, in regard to the subject-matter under discussion and negotiation. There had been no claim of exclusive jurisdiction over the large outer bays on the part of Great Britain; and I now ask this Tribunal, or the counsel for Great Britain, to point out in the documents and evi- dence before this Tribunal where any claim of extended jurisdiction over bays as such was made during the negotiations for the treaty of 1818 as against the fishermen of the United States of America by Great Britain, and of which the United States was notified. On the contrary, it was beyond dispute understood by both Powers that the bays, creeks and harbours of His Britannic Majesty's Do- minions in America were those within the British limits, and there- fore necessarily 6 marine miles or less in width, thus comprehending the waters close upon the shores sought to be closed against the ves- sels of the United States. The distinguished counsel for Great Britain, Sir Robert Finlay, found some trouble, and I assume with good intentions in under- standing how it is that only bays comprehended within the 3-mile limit could have been intended, if the precise statement were not made — taking it for granted, for the moment, and for the purposes of the argument that such a statement was not made. The position of the United States is, in that respect, that wanting a specific asser- tion of extended jurisdiction over bodies of water outside the ac- knowledged 3-mile limit, the only bays that could have been under- stood to have been included, and that could within the comprehension of the negotiators have been understood to have been included, were those bays lying landward of the 3-mile line fixed by the terms of the treaty itself. The records of the negotiations will be searched in vain for any assertion of exclusive jurisdiction, as against tfie fishermen of the United States, and presented and made to the United States, over bays or greater in extent than those bays found within the 3-mile limit. Continuing reading, on p. 145 of the Argument of the United States :— " If the ' British limits,' or the l limits of the British jurisdiction,' with absolutely no exception sought or asked for bays, extended three marine miles from the shores, in what manner could a bay, creek or harbor ' of His Britannic Majesty's Dominions ' include waters more than three marine miles from the shores? "A bay, creek, or harbor of His Britannic Majesty's dominions in America was, therefore, well understood to be a body of water not over six marine miles in width at its entrance. Such a bay, creek, or harbor was to be a closed bay; and the three marine miles 605 were to be measured from the shores, and from the lines, de- termined by this measurement from the shores, across bays, creeks, or harbors within His Majesty's admitted jurisdiction," ARGUMENT OF CHARLES B. WARREN. 1007 On p. 146 of the printed Argument of the United States, this pas- sage will be found: — " "When, therefore, the American plenipotentiaries drafted this re- nunciatory clause, and subsequently, when the plenipotentiaries of both powers agreed upon its terms, they provided that the inhabitants of the United States should renounce any liberty previously enjoyed of taking, drying, and curing fish on or within three marine miles of all the coasts, except the sections of coast, which previously had been specifically designated. The word ' coasts ' comprehended the coast line of all the great bays ; and, of course, the three miles could not be measured from the inner coast line of bays, creeks, or harbors six marine miles or less in width, for the three-mile line drawn across their entrances from the opposite shores closed such bays, irrespective of their inner extent." To make that clear, if it lacks clarity, I will say that, when the 3-mile line is drawn, following the sinuosities of the shore of the non-treaty coasts, the lines coming from opposite directions meet at a point 3 miles from each shore of any bay 6 miles wide, because the lines following the sinuosities of the shore come together at the point which is on a line 6 miles long drawn from the opposite shores of the bay. Continuing reading on p. 146 of the Argument of the United States :— " The three-mile-from-land rule of measurement excluded the fish- ing vessels from such bays, creeks, or harbors, as it would be impos- sible to enter them without passing through waters within three ma- rine miles of the coast at the entrances. Such bays, creeks, or harbors, necessarily lying landward of the three-mile line, were ' bays, creeks, or harbors of His Britannic Majesty's Dominions in America; and as to them the plenipotentiaries provided a simple rule of thumb for the guidance of American fishing vessels." The Tribunal must always, it seems to me, recollect that this treaty was a treaty relating to fishing, and that the endeavour was to lay down some rule for the guidance of fishing-vessels and fishermen. Continuing reading on p. 146 : — " A line following the sinuosities of the coasts at a distance of three marine miles seaward would not enter bays, creeks, or harbors six marine miles or less in width at their entrances — that is, bays, creeks, or harbors, 'within the exclusive British jurisdiction;' and therefore the three-mile line was to be drawn seaward from such waters as though the shore-line continued across their entrances. So the clause was stated : ' On or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's Domin- ions in America.' " These are the words of the treaty. That is, instead of opening up a space of water to constant con- tention between fishermen, the negotiators extended the 3-marine-mile 92909°— S. Doc. 870, 61-3, vol 10 8 1008 NORTH ATLANTIC COAST FISHERIES ARBITRATION. line following the sinuosities of the shore, opposite bays 6 miles or less wide, as though the lines across such bays were continuations of the shore line. If this" had not been done, there would have been in the case of each bay of His Majesty's dominions, a sort of a triangle, not a mathematical triangle, but an irregular-shaped body of water, with the apex at the point where the 3-mile line coming from oppo- site directions met, and its side lines the 3-mile line following the sinuosities of the shores. THE PRESIDENT: Please, Sir, is that the same triangle which was on the drawing which was handed in by Sir Robert Finlay, or is it a different triangle ? MR. WARREN : It is the same triangle, except that Sir Robert Finlay very excessively over-stated the area of the water included in the triangle, without intentionally doing so, undoubtedly. THE PRESIDENT: The area is of no importance is it, with regard to the legal question ? For the practical effect of course it is of great consequence. MR. WARREN: It was regarded then as of no importance, except for this reason, that if the American fishermen had been left free to invade these bodies of water, which, for the purpose of illustration, may be called triangular bodies of water, there would have been end- less complications arising; sailing-vessels would have been tacking back and forth where there was not space for properly handling a vessel, and without intent, the fishermen of the United States would have constantly invaded the acknowledged territorial waters of Great Britain. 606 THE PRESIDENT : And according to your conception and con- struction, you avoid these difficulties by making this triangle territorial waters? MR. WARREN : Exactly, Mr. President. THE PRESIDENT: Then I understand you well. MR. WARREN : The bodies of water enclosed within those lines were acknowledged by the terms of this treaty to be territorial waters of Great Britain in respect of the fishing rights of American fisher- men. THE PRESIDENT: Then, are there not spaces in this triangle a greater distance from the shore than 3 marine miles? MR. WARREN : Yes, Mr. President, unless the line across the terri- torial bays had become the shore line. The treaty, therefore, made that provision. Do I make myself clear in that brief answer ? THE PRESIDENT : I do not quite understand it. Will you be so kind as to give it in a little more explicit way ? MR. WARREN: Your question, Mr. President, was this: Whether or not the triangular shaped bodies of water about which I have been ABGUMENT OF CHARLES B. WARREN. 1009 speaking became a part of the territorial waters of Great Britain in respect of fishing under the terms of the treaty? THE PRESIDENT: Yes, that was the first question. MR. WARREN : Then, answering that question, I would say that they did. Now, the second question was : Whether or not there were not points or places within these triangles which would be more than 3 miles from shore? THE PRESIDENT: Yes. MR. WARREN: Assuredly, Mr. President; any point within one of those triangles, except for the provision above referred to, would be. I have a chart which I claim to be somewhat more elaborate than the chart submitted by counsel for Great Britain, but in the absence of that chart I will answer the President's question by making use temporarily of the one furnished by counsel for Great Britain. Any place within that triangle would be beyond 3 miles from shore; but the reason that the negotiators for the United States stipu- lated that that water should be the territorial water of Great Britain in respect of these fisheries was because, if they had not, a fisherman would have had nothing to guide him in keeping away from the shore, and when he reached a bay he might have gone in until he touched the 6-mile line across; then, if he went one inch over he would have been in the exclusive jurisdictional waters of Great Britain, and a difficulty and a complication would have immediately occurred. Therefore, in order to avoid that complication and diffi- culty, the negotiators laid down that rule which Professor Westlake, at p. 187 of vol. i of his work on international law, says is now the rule. He states it thus : — " The line drawn from shore to shore at the part where, in ap- proaching from the open sea, the width first contracts to that men- tioned, will take the place of the line of low water, and the littoral sea belonging to the state will be measured outwards from that line to the distance, three miles or more, proper to the state." THE PRESIDENT: But, according to the words of the renunciatory clause of the treaty, would American fishermen be excluded from fishing in this triangle? MR. WARREN : Yes, Mr. President. THE PRESIDENT : I ask only for information. Do you not make too great a concession to Great Britain in doing so? MR. WARREN : The United States made it, Mr. President. THE PRESIDENT : A concession beyond the words of the treaty ?• MR. WARREN : No, Mr. President ; we do not make a concession be- yond the words of the treaty. The United States made a concession by the words of the treaty; because the treaty says that American fishermen should not be allowed to take, dry, or cure fish on or within 3 marine miles of any of the coasts, bays, creeks, or harbours of 1010 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 607 His Britannic Majesty's dominions. So that when bays lying landward of the 3-mile line are determined by the 3-mile line, the fishing- vessels of the United States are to keep outward from the lines across those bays as though those lines were a continuation of the shore line. That concession was made to Great Britain by the terms of the treaty. I will, Mr. President, later hand up charts showing the area of water involved, that is, the average area of water which is found within these lines that make these triangular shaped bodies of water. It will be found, when these charts come to be examined, that the area of water is very small, and that when the distinguished counsel for Great Britain stated there were 6 or 7 square miles of water there he was very wide of the mark. If the bay were 6 miles wide ex- actly— and no greater bay is, under the terms of this treaty, a bay of His Britannic Majesty's dominions — the area would be larger than if the bay were 5 miles wide, and the area in the case of a bay 4 miles wide would be smaller than in the case of one 5 miles wide. If the bay were 3 miles wide there would be no area involved at all. JUDGE GRAY : As I understand you, the moment the 3-mile line from the coast, following the sinuosities, curving into the bays on each side, forms a triangle or funnel-shaped area of water, it ceases to be of any importance at all in regard to jurisdiction, for then you draw the line across the headland and measure the jurisdiction 3 miles out from that? MR. WARREN : With this exception, your honour, I would agree with you, that I do not draw the line across from any headlands. A line is drawn each way to the shore from the point where the lines follow- ing the sinuosities of the shore — the two lines coming from opposite directions meet, and the headlands have nothing whatever to do with it. There may be headlands there or there may be sandbars. JUDGE GRAY: There is no trouble about the jurisdiction over that funnel-shaped area of water when you once get such a condition of things? Then you draw the line at the point of meeting and meas- ure 3 miles out? MR. WARREN : Yes, your honour, the United States conceded by the terms of this treaty that that water was within the exclusive ter- ritorial jurisdiction of Great Britain in respect of the fisheries, as against the inhabitants of the United States. SIR CHARLES FITZPATRICK: Would it disturb your argument if I were to ask you to illustrate your theory, taking St. George's Bay, for instance, on the west coast of Newfoundland ? Where would the point be from which you would draw the line? MR. WARREN: St. George's Bay, Newfoundland, of course, is not on the non-treaty coasts and this Question 5 concerns such coasts only, but I will use it as an illustration. ARGUMENT OF OHABUGS B. WABEEN. 1011 SIR CHARLES FITZPATRICK: If you would like to be very precise, take the Baie des Chaleurs. MR. WARREN : If it is agreeable, Sir Charles, I will use the bay that you suggested as an illustration. The 3-mile line, following the sinuosities of the north shore of St. George's Bay, would run along the north shore of the bay as shown on this map, and a line starting from the south northward would run along the southern shore of the bay, and at a certain point in that body of water those two lines would come together. At the point where they did come together the opposite shores would, of course, be exactly 6 miles apart, and it would not make a particle of differ- ence whether there was a headland there or a sandbar, the line drawn to each shore would be 3 miles long and together the lines would be 6 miles long and the water landward of that 6-mile line would be closed to American fishermen except under the terms of the proviso clause following the renunciatory clause of this treaty. I have been in St. George's Bay, Newfoundland, and there is no headland at that point. SIR CHARLES FITZPATRICK: Take perhaps a better illustration, the Baie des Chaleurs, which we are perhaps both personally familiar with. MR. WARREN : And make the same illustration ? The line coming from the north southward would follow the northern coast, 608 and the line coming from the south would follow the southern coast, and at a certain point those two lines would meet, and at the point where they did meet, the shores of the bay would be 6 miles apart. SIR CHARLES FITZPATRICK: Thank you. Then the 3-mile limit would be from that line? MR. WARREN : From that point ; and, the line each way would be drawn to the shore, from the point where the two lines, following the trend of the coast, meet. Mr. President, is there any other question regarding that matter that the Tribunal would like to ask ; if so, I should like to answer the question if possible, and if I cannot answer it I should like to confess there was a difficulty that was insurmountable. THE PRESIDENT : Perhaps later we shall trouble you with questions. MR. WARREN: Before stating the conclusions necessarily flowing from these positions of the two Governments, which I have now stated, by reading from the Cases and the printed Arguments sub- mitted to this Tribunal, I desire to take up and discuss the contention of the distinguished counsel who opened this submission on behalf of Great Britain, that this statement of the contention of the United States is in conflict with the statement of the position of the United States as set out in its Case. 1012 NORTH ATLANTIC COAST FISHERIES ARBITRATION. At a later time in the progress of the argument of Sir Robert Fin- lay, after he had first stated that this difference existed, he answered the argument himself by finding that in the Counter-Case of the United States at pp. 67 and 69 the position taken in the Argument is stated. If the Tribunal please, I will refer to these pp. 67 and 69 of the Counter-Case of the United States, because they were, subsequently to the first statement of the counsel for Great Britain, referred to by him, as appears in the report of his oral argument. The extract on p. 67 to which it is necessary briefly to call the at- tention of the Tribunal is as follows : — "A knowledge of the situation existing prior to and at the time of making the treaty of 1818 is essential to a proper understanding of the true intent and meaning of the renunciatory clause. The Case of the United States, therefore, presented a full review of the historical conditions leading up to that treaty and of the circumstances in which it was made, and the controversy and differences which it was intended to settle. It was shown that the antecedents and surround- ings of the treaty and the language used establish beyond question that the negotiators intended, in adopting the renunciatory clause, that it should apply only to the exercise of the liberties, therein men- tioned, on or within three marine miles of the shore, and that the bays, creeks, and harbors referred to were those inside of such limit of three marine miles." At p. 69 of the Counter-Case the passage which I desire to read is : — " On the issue thus presented by Great Britain the United States maintains, as it has maintained ever since the question was raised under the headland theory, that, at the time this treaty was entered into, none of the waters on the non-treaty coasts more than three miles from shore were regarded as territorial waters of Great Britain, whether considered with reference to the position taken by the two Governments in the negotiations which led up to this treaty, or with reference to British jurisdiction over such water at that time; and consequently that the territorial waters of Great Britain did not include any bays which were more than six marine miles in width." In the Case of the United States the extract referred to as being in conflict with the Argument presented by the United States, but subsequently acknowledged not to be in conflict with the position taken in the Counter-Case, had reference only to what is here im- portant to be considered, namely, whether or not the fishing vessels of the United States have a right to invade the bays which are not territorial bays, unless they fish nearer than 3 miles to the shores. On p. 145 of the Argument of the United States this statement is made : — "A bay, creek, or harbor of His Britannic Majesty's Dominions in America was, therefore, well understood to be a body of water not ARGUMENT OF CHARLES B. WARREN. 1013 over six marine miles in width at its entrance. Such a bay, creek, or harbor was to be a closed bay ; and the three marine miles were to be measured from the shores, and from the lines, determined by this measurement from the shores, across bays, creeks, or harbors within His Majesty's admitted jurisdiction." The words " and from the lines, determined by this measurement from the shores " show what was being considered in the Case of the United States, because the lines from the opposite shores mark the 6-mile bays. 609 The learned counsel for Great Britain contended that this was not the historic position of the United States, but that on the contrary the position of the United States in the past had been that the 3-marine-mile line should follow the sinuosities of the shore. It is quite true that when the diplomats, or other men in public life concerned with this question, were discussing the right of the fish- ing-vessels of the United States, they usually asserted the right of the fishing-vessels of the United States to fish within the large bays within 3 marine miles of the shore — that is, by large bays I mean non-territorial bays of Great Britain. This effort of counsel to show a conflict between the position taken in the Argument, and the position taken in the Case of the United States, is undoubtedly made for the purpose of making it appear that this position taken j.n the Argument is something new. I refer now to the Argument which was printed and filed on behalf of Great Britain before this Tribunal, in which the opposite position is taken, when the counsel who drafted that printed Argument thought that the United States was taking the other position in its Case. So that whichever position the United States assumed, counsel for Great Britain were ready to contend that it was not the historic position of the United States. I refer to the printed Argument of Great Britain in this submis- sion at p. 128. The Argument of Great Britain there refers to an instruction forwarded by Mr. Seward, when Secretary of State of the United States, to Mr. Adams in 1866. That was, of course, not John Quincy Adams. I shall start at the middle of the citation in order to shorten the reading. JUDGE GRAY: That Adams was Charles Francis Adams? MR. WARREN : Yes, your Honour, who was then Minister at Lon- don. In this instruction it was proposed to have a commission ap- pointed with a view of drawing lines across these bays, which no- body could draw on the British theory, but which were perfectly capable of being drawn on the theory of the United States. The instruction was accompanied by a letter written by Mr. Rich- ard D. Cutts, who had acted as United States Commissioner under the treaty of 1854. I suppose in marking the rivers and estuaries 1014 NORTH ATLANTIC COAST FISHERIES ARBITRATION. under the Eeciprocity treaty of 1854. Mr Seward said in the in- struction, according to the British Argument, that he forwarded a very suggestive letter from Mr. Cutts, stating who he was, and that Mr. Cutts had been long familiar with the subject practically and theoretically, and that his suggestions were entitled to great respect. I will read from the document quoted in the printed Argument of Great Britain, for the purpose of showing the historical position of the United States :— " In this letter Mr. Cutts said : — " ' In the opinion of this Government, repeatedly announced at different periods, the American fishermen have a clear right to the use of the fishing grounds lying off the provincial coasts, whether in the main ocean or in the inland seas, provided they do not approach within three marine miles of such coasts, or of the entrance to any bay, creek or harbour not more than six miles in width ; and to such bays only does the renunciatory clause in the first article apply.' " When the counsel for Great Britain found that statement, it was the historical position of the United States ; but now, because an effort is made to draw a distinction between the Argument and the Case of the United States, the printed Argument of Great Britain is abandoned, and this position, as stated by Mr. Cutts, is not the his- torical position of the United States. The printed Argument of Great Britain recalls another illustra- tion of the historical position of the United States, and cites the posi- tion taken before the Halifax Commission in the proceedings under the Treaty of Washington in Halifax in 1877. The British Argu- ment quotes from the Answer of the United States, filed before that Commission, as follows: — " For the purposes of fishing, the territorial waters of every country along the sea-coast extend three miles from low water-mark ; and be- yond is the open ocean, free to all. In the case of bays and gulfs; such only are territorial waters as do not exceed six miles in width at the mouth, upon a straight line measured from headland to head- land. All larger bodies of water, connected with the open sea, form a part of it. And wherever the mouth of a bay, gulf, or inlet exceeds the maximum width of six miles at its mouth, and so loses the 610 character of territorial or inland waters, the jurisdictional or proprietary line for the purpose of excluding foreigners from fishing is measured along the shore of the bay, according to its sinu- osities, and the limit of exclusion is three miles from low-water mark." The British Argument also cites the position of the Committee on Foreign Eelations of the United States Senate in 1887, and states that they " reaffirmed the same view," citing a passage from the re- port of the committee to substantiate the fact that the historical view of the United States was that expressed by Mr. Cutts. The extract ARGUMENT OF CHARLES B. WARREN. 1015 from the Report of the Committee on Foreign Relations, quoted in the British Argument, is as follows: — " It would seem to be clear that by the universally recognized pub- lic law among civilized nations, territorial jurisdiction of every na- tion along the sea is limited to 3 marine miles from its coasts, as they may happen to be, whether embracing long lines of open coast or em- bracing great curvatures of sea shore, which may, and often do, almost surround vast bodies of the waters of the ocean. The phrase of fhe treaty, therefore, speaking of bays, creeks and harbours of His Britannic Majesty's dominions, must be understood as being such bays, creeks and harbours as by the public law of nations were and are within the territorial jurisdiction of the British Government. The committee is therefore clear in its opinion that any pretension that exclusive British jurisdiction exists, either by force of public law or of this treaty, within headlands embracing such great bodies of water, and more than 6 marine miles broad, must be quite untenable." The foundation of the position of the United States is very old. On the 20th October, 1818, the Commissioners on behalf of the United States, Mr. Gallatin and Mr. Rush, on the day that this treaty now before this Tribunal for interpretation was signed, transmitted a report to their Government in which, speaking of Hudson Bay- reading from the Appendix to the Case of the United States, on p. 306— they stated:— " The exception applies only to the coasts and their harbours, 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." That was the report of the Commissioners of the United States of their understanding of the principle of law on which the negotiators for these two Governments had proceeded during the negotiation; and that report bears the same date as the treaty now before this Tribunal, the 20th October, 1818, and accompanied, if the Tribunal please, the treaty sent to the State department of their Government, presided over at that time by John Quincy Adams. The position of the United States was again taken in the report of Lieutenant Paine, which is printed in the Appendix to the Case of the United States at p. 451, and bears date 1839. I am not going to trouble the Tribunal with reading it, but shall merely content myself with citing it. This position was taken by the Secretary of State, Mr. Forsyth, in the instructions to Mr. Stevenson, when Minister for the United States in Great Britain, and was in turn taken by Mr. Stevenson in his communication to Lord Palmerston, then Secretary of State for Foreign Affairs for Great Britain. THE PRESIDENT: You have just referred to the report of Lieu- tenant Paine, on p. 451 ? ME. WARREX: Yes, Mr. President. 1016 NORTH ATLANTIC COAST FISHERIES ARBITRATION. THE PRESIDENT: Lieutenant Paine says: — " The questions on which dispute may arise^ are — " 1st. The meaning of the word bay, in the convention of 1818, where the Americans relinquish the rights before claimed or exercised, of fishing in or upon any of the coasts, bays, &c., of her Britannic Majesty's provinces, not before described, nearer than three miles." Does Lieutenant Paine here quote the words of the renunciatory clause of the treaty in exact terms, or is there a difference between the quotation made by Lieutenant Paine and the text of the renunciatory clause itself? MR. WARREN : The report of Lieutenant Paine, who was in com- mand of the " Grampus," and who was sent to the waters in the North Atlantic Ocean at the express request of the President of the United States, was addressed to the Secretary of State. He was reporting his observations and the results of his visit to those waters. The authorities of Nova Scotia claimed at that time the right to draw lines between any headlands found anywhere on the coast, and 611 to exclude United States vessels from the waters contained therein. The Tribunal will recall that later they even drew a line from Cape North, in Cape Breton, to the northernmost head of Cow Bay, which is properly known as Cape Percy, seized the "Argus " when within the line and claimed that that was a bay within the meaning of the treaty. Lieutenant Paine observes in his report, at p. 451, that : — " The authorities of Nova Scotia seem to claim a right to exclude Americans from all bays, including those large seas such as the Bay of Fundy and the Bay of Chaleurs; and also to draw a line from headland to headland; the Americans not to approach within three miles of this line. " The fishermen, on the contrary, believe they have a right to work anywhere, if not nearer than three miles to the land." THE PRESIDENT: My question was whether the argumentation of Lieutenant Paine is based on a quotation of the renunciatory clause of the treaty in its exact terms, or whether he gives the renunciatory clause a loose construction ? MR. WARREN: I think, Mr. President, he is reporting the claim of the authorities of Nova Scotia. THE PRESIDENT : Would you have the kindness to look at the para- graph which is marked " 1st " ? It is as follows : — " The meaning of the word bay, in the convention of 1818, where the Americans relinquish the rights before claimed or exercised, of fishing in or upon any of the coasts, bays, &c., of her Britannic Majesty's provinces, not before described, nearer than three miles." MR. WARREN : That is, undoubtedly, Mr. President, a statement of Lieutenant Paine and not an extract from the treaty. ARGUMENT OF CHARLES B. WARREN. 1017 THE PRESIDENT : It is his meaning of the contents of the treaty, but not the text of the treaty itself. MR. WARREN : Now, Mr. President, Mr. Everett, when Minister for the United States in Great Britain, in a communication to Lord Aberdeen, found in the United States Appendix, at pp. 474 and 481, stated the position of the United States. Mr. Everett was discussing the right to invade the large bays unless the fishermen fished nearer than 3 miles from shore. I am not going to delay the Tribunal by reading that note, because it will have to come into the discussion later on another point. The decisions in the " Washington " and "Argus " cases are printed in the United States Case, pp. 131-133, and the decision in the case of the " Washington " is also printed in the British Case Appendix, at p. 212. Mr. Upham, the Commissioner appointed under the Claims Treaty of 1853, to adjudicate upon claims on the part of the subjects of either country, which had been presented to either Government for its interposition with the other, since the Treaty of Ghent, in 1814, gave an opinion in the case of the " Washington," which will be found in the British Appendix, on p. 212. The British Commis- sioner differed from Mr. Upham, although filing no opinion appa- rently, at least, there never has been an opinion printed as delivered by the British Commissioner. In stating his opinion, on p. 214 of the Appendix to the British Case, Mr. Upham recites the interviews between Lord Bathurst and Mr. Adams-relating to the fisheries, the interviews between the others concerned in the negotiations, and the views of Mr. Gallatin and Mr. Rush, the American negotiators of the treaty of 1818, as they appear in the communication to which I have already referred, and cites their statements with the view of showing that they thought that the renunciation was confined, in the large bays, to waters within 3 miles of the shore. A conclusive demonstration, that the British Government had no difficulty whatever, and never has had from the day when this dis- pute first arose, in understanding the position of the United States, is disclosed by the letter printed on p. 145 of the Appendix to the British Case. That letter is from Lord Stanley to Lord Falkland, Governor of Nova Scotia — Lord Stanley being the Secretary of State for the Colonies for Great Britain, and on p. 146 he states under date May, 1845 : — " H. M. Govt. therefore henceforward propose to regard as bays, in the sense of the treaty, only those inlets of the sea which measure from headland to headland at their entrance the double of the dis- tance of 3 miles, within which it will still be prohibited to the fishing vessels of the United States to approach the coast for the purpose of fishing." 1018 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 612 That position must have been taken by the British Govern- ment because they thought it was the contention of the United States that the renunciatory clause applied only to bays within the 3-maririe-mile line, and, therefore, not more than 6 miles across. In one of the extracts which I have read from the British Argu- ment, on p. 92, this statement is made : — "Great Britain contends that these words are merely descriptive of the locality of the bays, and that they have no other significance. In the Counter-Case of the United States the attitude of Great Britain on this point has been misunderstood. It is there stated that ' the British Case is based on the assumption that the words "bays, creeks, or harbours of his Britannic Majesty's dominions in America" as used in the renunciatory clause of the treaty, were intended to be descriptive of territorial waters of Great Britain,' and an argument is thereupon formulated on that issue. This is a mis- apprehension. The contention of His Majesty's Government is stated quite clearly in the British Case, and has been stated in the same way on many occasions during the last seventy years. It is that the treaty relates to all bays on the British coasts." And on p. 93 of the British Argument this position is also taken. Now, I wish to state to the Tribunal the logical result of the position of Great Britain, The logical result of this contention on the part of Great Britain is that the United States is, by virtue of this renunciatory clause, not only excluded from fishing within the exclusive territorial waters of Great Britain constituting part of the British dominions bordering the North Atlantic, but that by virtue of this renunciatory clause, the United States, except on the coasts specifically designated in the treaty, also renounced the right of fishing on the high seas. There is no other conclusion to be drawn from the position of Great Britain but that when the Commissioners, on behalf of the United States, themselves drafted and presented to the British Com- missioners, in 1818, this renunciatory clause, they voluntarily sur- rendered the right to fish on the high seas; the surrender of which right had never been even suggested by Great Britain in any state- ment of what was to be surrendered. The position of the United States, as stated in the extracts that I have read from the Argument of the United States, is that, by virtue of this renunciatory clause, the United States renounced the right, except on the specifically designated coasts, to fish within the exclusive maritime limits, or within the exclusive maritime jurisdic- tion of Great Britain; and that this jurisdiction had been stated, in the preliminary negotiations for the treaty, to extend 3 marine miles from the shores of the British possessions in North America; but that when the negotiators drafted the treaty, the provision was inserted that the fishing-vessels of the United States should refrain from fishing not only within 3 marine miles of the coasts, but within ABGUMENT OF CHARLES B. WARREN. 1019 3 marine miles of the bays, creeks, or harbours lying landward of the 3-marine-mile limit. SIR CHARLES FITZPATRICK: Mr. Warren, do I understand your argument to be that by the renunciatory clause in the treaty of 1818 you renounced those fishing rights that you had acquired under the treaty of 1783 with respect to territorial bays, and that with respect to those rights you had to fish on the high seas, of course, they remained and were not dealt with? That is your case, as I understand it? Mr. WARREN : No, Sir Charles, that is not my argument. SIR CHARLES FITZPATRICK: I beg your pardon; I just want to see if I understand your position. MR. -WARREN : I have not touched that point, but it is not at all involved in the position of the United States. SIR CHARLES FITZPATRICK : Very well ; you need not trouble. MR. WARREN : With your permission, Sir Charles, I will state the reason. When the right to fish in the bays was extended to the inhabitants of the United States — if you call it extended — at least, when it was stipulated for in the treaty of 1783, there was no dis- cussion as to the extent of the territorial waters of Great Britain in respect of bays, creeks, or harbours, because the fishermen of the United States had the right to go to the very shores of the entire British territories in the North Atlantic and fish in all waters that the subjects of Great Britain had the right to fish in. 613 SIR CHARLES FIT/PATRICK: Independently of the treaty? MR. WARREN: No. Sir Charles, by virtue of the treaty of 1783. I will read the clause of the treaty of 1783. If I understand the question put SIR CHARLES FITZPATRICK : It was not a question ; it was rather a statement of my understanding of your argument. I may have mis- understood you. MR. WARREN: I would again observe that the statement made of my position did not involve any consideration of the treaty of 1783, nor does it. SIR CHARLES FITZPATRICK : In substance, by the renunciatory clause of the treaty of 1818, you say that you did not renounce those rights which you had, as one of the general public, to fish in the open sea ? MR. WARREN : That is correct, Sir Charles, when one understands that by open sea I mean all outside the 3-mile limit. SIR CHARLES FITZPATRTCK : That is another way of putting it ? MR. WARREN : Yes, Sir. Now, turning to the treaty of 1783, p. 13 of the Appendix to the Case of Great Britain, the third article of the treaty will be found to read as follows: — " It is agreed, that the People of The United States shall continue to enjoy unmolested the right to take Fish of every kind on the 1020 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Grand Bank and on all the other Banks of Newfoundland; also in the Gulph of St. Lawrence, and all other places in the Sea, where the Inhabitants of both Countries used at any time heretofore to fish. And also that the Inhabitants of The United States shall have liberty to take fish of every kind on such part of the Coast of Newfoundland as British fishermen shall use, (but not to dry or cure the same on that Island), and also on the Coasts, Bays, and Creeks of all other of His Britannic Majesty's Dominions in America; and that the American Fishermen shall have liberty to dry and cure fish in any of the unsettled Bays, Harbours and Creeks of Nova Scotia, Mag- dalen Islands, and Labrador, so long as the same shall remain unsettled." By the terms of the treaty, the people of the United States enjoyed co-extensively with the subjects of Great Britain all rights of fishing, except the right to dry and cure fish on the shores of Newfoundland and Quebec, and there was no question raised about the extent of the jurisdiction over bays as such; nor was there in respect of these fishing rights and liberties between that time and 1812, because from the time of the making of the treaty until the war of 1812, the people of the United States had, in common with the subjects of Great Brit- ain, under Article 3 of that treaty of 1783, the right to fish in all the bays, creeks, and harbours of whatever size, no matter whether claimed to be within or without the jurisdiction of Great Britain. SIR CHARLES FITZPATRICK: And that right was renounced by the treaty of 1818— is that it? MR. WARREN : Not at all, Sir Charles. Between the treaty of 1783 and the negotiation of the treaty of 1818 the jurisdiction of Great Britain as to bays came to be defined, as I shall show in the course of this discussion, and when the treaty of 1818 was drafted the negotia- tors knew what Great Britain was claiming as to the extent of terri- torial bays. JUDGE GRAY : I understand then that when you say that the conse- quence of the British position is that the United States, by the treaty of 1818 renounced the right to fish on the high seas, to a certain ex- tent, you mean that those bays which were more than 6 miles wide at their mouths were open waters and part of the high seas. Is that it? MR. WARREN : Yes, • your Honour ; not only that, but the Govern- ment of Great Britain do not limit their claim here to territorial waters, but extend their claim to what they are pleased to call geo- graphical waters and counsel for Great Britain fail to discuss, and refuse to discuss, the question of the jurisdiction of Great Britain over bays, as understood between the negotiators prior to the treaty of 1818. THE PRESIDENT : There is one thing that I do not understand about the treaty of 1783, and that is why the Gulf of St. Lawrence is spe- cifically mentioned: — ARGUMENT OF CHARLES B. WARREN. 1021 " It is agreed, that the People of The United States shall continue to enjoy unmolested the right to take Fish of every kind on the Grand Bank and on all the other Banks of Newfoundland; also in the Gulph of St. Lawrence, and at all other places in the Sea." 614 What is the reason that the Gulf of St. Lawrence is men- tioned specifically? MR. WARREN: Mr. President, there was no important reason for designating it, because the language that follows it was " all other places in the sea " and they might have left it out. I cannot see the importance of their having put it in. They perhaps had in mind the Gulf of St. Lawrence and wished to mention it. THE PRESIDENT: Perhaps there may be another explanation of it, and it may be that they wished to make a distinction between the Gulf of St. Lawrence and the other bays. In the second branch of the article there is a reference to bays and creeks. Perhaps there was a reason why they specifically mentioned the Gulf of St. Law- rence, and it may have been that on account of its great extent it was not to be treated as a bay. Therefore, the Gulf of St. Lawrence was put in the first branch of the article, and the other bays were put in the second branch. I do not know whether that is the explana- tion or not. MR. WARREN : If the Tribunal please, I will read the question put by the President and later undertake to clear it up, because my atten- tion has never been directed to the reason why the Gulf of St. Law- rence was specifically mentioned. In any matter of importance it seems immaterial because the treaty referred to " all other places in the sea." THE PRESIDENT: It may be mere inadvertence as you suggest, but there may be some reason. We shall continue at 10 o'clock A. M. on Thursday. [The Tribunal, at 4.5 o'clock p. M., adjourned until Thursday, July 7, 1910, at 10 o'clock A. M.] TWENTIETH DAY : THURSDAY, JULY 7, 1910. The Tribunal met at 10 A. M. MR. WARREN (resuming) : Just preceding the closing of the last Session of the Tribunal, I had stated the logical result of the conten- tion on the part of Great Britain to be that the inhabitants of the United States were, by virtue of the terms of this renunciatory clause, not only excluded from fishing within the exclusive territorial waters of Great Britain adjacent to her possessions in North America, but that in accordance with the position taken here, except on the coasts 1022 NORTH ATLANTIC COAST FISHERIES ARBITRATION. specifically designated in the treaty, the United States renounced, by this renunciatory clause, the right of fishing in the open sea. I had also stated the position of the United States as to the true construction of this clause of the treaty of 1818. I shall of course not again state those positions, but will proceed to draw the conclu- sions resulting therefrom. The evident result of the position taken by counsel for Great Britain in this arbitration is that it avoids an examination into and a discussion of the negotiations preceding the treaty of 1818, and the conclusons that irresistibly emerge therefrom. While a passing claim of jurisdiction is inserted in the printed Argument of Great Britain, and in passing is reverted to by counsel, nevertheless the statement in the Argument of Great Britain is that it is immaterial for this Tribunal to make any examination into the question of the extent of exclusive maritime jurisdiction over the waters in the Xorth Atlantic Ocean bordering the British possessions. I respectfully submit that the position of the Government of Great Britain has not been in the past to lay claim as against the fishermen of the United States to any part of the high seas; disregarding, of course, now the right of Great Britain to the triangular shaped bodies of water concerning which there was so much discussion at the last session of the Tribunal. I may here observe, Mr. President, that at the last session I stated that charts, showing the result of the position of the United States, would be submitted to this Tribunal. If the Tribunal will pardon me, I will not take those charts up during this session, although they are here, because when I come to a later portion of my argument it will be necessary for me to compare from those charts the posi- 615 tion of the United States, and the ease with which its principle can be carried into force by a decision of this Tribunal, with the position of the counsel for Great Britain, and the impossibility of grounding the award of this Tribunal upon that position. I de- sire, therefore, not to cover the same ground twice, and shall pass on. It is perhaps because the views which I am now about to bring to the attention of the Tribunal have been expressed at various times on behalf of the Government of Great Britain, that their position re- garding their rights in the North Atlantic Ocean on this question of the extent of territorial waters has never been enforced against the fishing- vessels of the United States. In the British Case, on p. 103, this statement appears:— " Since 1888 the question has not been further discussed." That refers to this question, because in that portion of the Argu- ment of Great Britain counsel are discussing solely Question 5 — - " bays " — as appears manifestly from the Argument itself. AKGUMENT OF CHARLES B. WARREN. 1023 Later, it will appear that the nature of the orders issued prior to 1888, since which, according to the contention of the counsel for Great Britain, there has been no discussion of this question, was in accordance with the construction now contended for by the United States. It will also appear later, in the submission of this question, that there was no dispute between the Governments regarding the con- struction of the treaty material to this question for something over twenty years after the signing of the treaty of 1818. So that there is a period of twenty years, or something over twenty years, imme- diately following the signing of the treaty, when the construction of the United States was, I submit, adopted by Great Britain; and, there has been a period of about twenty years immediately preceding this submission, during which the construction by the United States of this clause of the treaty has been concurred in by Great Britain. The Tribunal will recall that during that interim the reciprocity treaty of 1854 was concluded, which gave to the inhabitants of the United States — until the year 1866 when it was abrogated by the action of the United States — rights in the waters under discussion, co-extensive with the rights of the subjects of Great Britain; and, that during another part of that period, the Treaty of Washington, signed in 1871, was in effect and remained in effect until the year 1885, when its fishery provisions were abrogated by the action of the United States. Referring now to the position which I have stated had been taken by the Government of Great Britain in the past, which did involve the consideration of the extent of the exclusive jurisdiction of Great Britain, under the terms of this treaty of 1818, I first take up the letter of Mr. Cardwell, British Secretary of State for the Colonies, of the 12th April, 1866, printed in the Appendix to the Case of Great Britain, on p. 221. This letter has been read by one of the learned counsel for Great Britain in part only. If the matter concerns one of the colonies of Great Britain, the orders to the Admiralty appar- ently pass through the Colonial Department of the Foreign Office of Great Britain. Mr. Cardwell stated on p. 222 : — "Her Majesty's Government are clearly of opinion, that by the Convention of 1818, the United States have renounced the right of fishing, not only within three miles of the Colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek." The phrase will be noted : "Any British bay or creek." Continuing my reading of the letter : — " But the question what is a British bay or creek is one which has been the occasion of difficulty in former times." 92909°— S. Doc. 870, 61-3, vol 10 9 1024 NORTH ATLANTIC COAST FISHERIES ARBITRATION. After the writing of this instruction both the British and Canadian Governments, without any reservation whatever, issued instructions which, however, were never put into force, excluding the fishing- vessels of the United States, only from those waters lying within a line drawn from shore to shore at the part where the body of water first contracts to the width of 10 miles; in accordance with, as was stated by Mr. Cardwell himself, the convention between Great Britain and France in 1839. The reasons these instructions were not put in force were, first, be- cause of the system of granting licences which prevailed from the termination of the Reciprocity Treaty of 1854 in 1866 until 1870; and, second, because, when the system of granting licences by the colonial governments was terminated in 1870, the Government of Great Britain requested and insisted that there should be put 616 in force other and quite different orders, which were not in conflict with the position of the United States, and which in fact directed the fishing vessels of the United States to be excluded from bays not over 6 miles in width. I am aware, if the Tribunal please, that as to these last orders — notice was given to the Government of the United States, that the fact of putting the orders into effect — these later orders — must not be regarded as an " arrangement." In 1870, turning now to another illustration of the position of the Government of Great Britain, the Earl of Kimberley transmitted to Sir John Young, then Governor-General of Canada, and to Sir Ed- ward Thornton, who, during that year had become Sir Edward Thornton, Minister for Great Britain in the United States, a memo- randum to be found on p. 629 of the Appendix to the United States Case. The memorandum was transmitted in a note which begins at the bottom of p. 628 and ends near the top of p. 629. The memorandum, so far as material here, reads as follows : — "A convention made between Great Britain and the United States, on the 20th October, 1818, after securing to American fishermen cer- tain rights to be exercised on part of the coasts of Newfoundland and Labrador, proceeded as follows: — " 'And the United States hereby renounce, for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on or within three miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America, not included within the above limits.' " The right of Great Britain to exclude American fishermen from waters within three miles of the coast is unambiguous, and it is be- lieved, uncontested. But there appears to be some doubt what are the waters described as within three miles of bays, creeks, and har- bours. When a bay is less than six miles broad, its waters are within the three miles limit, and therefore clearly within the meaning of the ARGUMENT OF CHARLES B. WARREN. 1025 treaty; but when it is more than that breadth, the question arises whether it is a bay of Her Britannic Majesty's dominions. This is a question which has to be considered in each particular case with regard to international law and usage. When such a bay, &c., is not a bay of Her Majesty's dominions, the American fishermen will be entitled to fish in it, except within three miles of the 'coast; ' ' when it is a bay of Her Majesty's dominions ' they will not be en- titled to fish within three miles of it, that is to say, (it is presumed), within three miles of a line drawn from headland to headland." The PRESIDENT : Please, Sir, has this memorandum been communi- cated to the United States? MR. WARREN: The memorandum was not communicated to the Government of the United States, in so far as any evidence before this Tribunal discloses, and that is what, after all, is binding upon the Tribunal. The memorandum was transmitted by the Earl of Kimberley to Sir John Young, then Governor-General of the new Dominion of Canada, and to Sir Edward Thornton, then Minister in the United States for Great Britain, for the purpose of being used as a basis for a negotiation with the United States, and was an instruction for- warded for that express purpose. That the memorandum was for- warded for this purpose is borne out by a note of Sir Edward Thornton to Mr. Fish, then Secretary of State of the United States, which is to be found on p. 632 of the Appendix to the Case of the United States, in which note Sir Edward Thornton stated to Mr. Fish, under date the 26th January, 1871 :— " In compliance with an instruction whicl I have received from Earl Granville— This was the instruction that appears on p. 62b of the Appendix to the Case of the United States, and precedes this letter of Mr. Thorn- ton's by three pages. I will just pause here to state that the Earl of Kimberley notified Sir John Young that he had requested Lord Gran- ville to transmit to Sir Edward Thornton this memorandum, as ap- pears at the bottom of p. 628 of the Appendix to the Case of the United States, and that is the reason Sir Edward Thornton came to be instructed by the Earl of Granville. Now taking up the reading of the note: — " In compliance with an instruction which I have received from Earl Granville, I have the honor to state that Her Majesty's Govern- ment deem it of importance to the good relations which they are ever anxious should subsist and be strengthened between the United States and Great Britain, that a friendly and complete understanding should be come to between the two governments as to the extent of the rights which belong to the citizens of the United States and Her Majesty's subjects, respectively, with reference to the fisheries on the coasts of Her Majesty's possessions in North America, and as to any 1026 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. other questions between them which affect the relations of the United Stales towards those posessions. 617 "As the consideration of these matters would, however, involve investigations of a somewhat complicated nature, and as it is very desirable that they should be thoroughly examined, I am directed by Lord Granville to propose to the Government of the United States the appointment of a Joint High Commission, which shall be composed of members to be named by each Government; shall hold its sessions at Washington, and shall treat of and discuss the mode of settling the different questions which have arisen out of the fisheries, as well as those which affect the relations of the United States toward Her Majesty's possessions in North America." I take up next the letter from Lord Castlereagh to the Commis- sioners at Ghent, under date the 28th July, 1814, which appears only in the evidence brought before the Tribunal by the United States since the Tribunal has convened, and is printed in a document which I shall refer to as the pamphlet.0 Heading from the pamphlet at p. 4 : — " 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 obli- gation, being a recognition of the general right which all nations have to frequent and take fish in the high seas." And continuing a sentence or two further down : — " Nor do they feel themselves called upon to concede to the Ameri- cans 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." The extent of British sovereignty clearly delimited the rights of Great Britain. Lord Bathurst, in the Foreign Office of Great Britain, in the absence of Lord Castlereagh, instructed the Commissioners at Ghent in a note which appears on p. 9 of the same pamphlet. This was an instruction regarding the fisheries. I read from the bottom of p. 0 and the top of p. 10 :— " 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 jurisdic- tion of the two contracting parties must be reciprocal; that Great Britain is ready to enter into an arrangement on that point; and that, until any arrangement shall be made to the contrary, the usual mari- time jurisdiction of one league shall be common to both contracting "Appendix (A), p. 1355. ARGUMENT OP CHARLES B. WARREN. 1027 parties. But they cannot agree to renew the privilege, granted in the Treaty of 1783, of allowing the Americans to land and dry their fish on the unsettled shores belonging to His Britannic Majesty, such privilege having been annulled by the war " And really that after all is what the discussion was about, and what worried Great Britain after* the war of 1812 — the right claimed under the treaty of 1783 by the inhabitants of the United States " to land and dry their fish on the unsettled shores belonging to his Britannic Majesty"; not that other questions had not also become involved, but that was the question which was largely discussed. Continuing reading — "such privilege having been annulled by the war, and it being the undoubted right of the British Government to refuse to renew it." Referring to another statement of the position of Great Britain, Sir Charles Russell, later Chief Justice of England, stated, as will be found in vol. 13 of the American reprint of the Proceedings of the Tribunal of Arbitration at Paris, known as the Fur Seal Arbitration, on p. 320— " Of course, when the United States became an independent Power, one of the family of nations, it would have, in virtue of its sover- eignty, the right to claim the free use of the high seas ; but the point is this : " And I would call this statement to the notice of the Tribunal — " — that, from 1783 down through the whole of this negotiation, Great Britain has never asserted, and the United States has never alleged that she was asserting, that the right of fishery in the non-territorial waters was not a right that belonged to every independent nation. That is the point." JUDGE GRAY : Is there any contention on that point now ? 618 MR. WARREN: Your Honour, the position of Great Britain is here that these are geographical bays, that territorial jurisdic- tion is in no wise involved, that they do not have to prove what the ex- tent of the territorial jurisdiction was admitted to be by the United States prior to the negotiation of 1818, but that they are permitted to take some map, not referred to in the treaty, or, as stated in the Brit- ish Argument, that they are permitted to call in people that reside in the districts especially involved in this arbitration, and have these people determine the bodies of water from which United States fisher- men were excluded : — JUDGE GRAY: It is so long since you made that statement of the British position that I had lost sight of it in connection with your present statement. MR. WARREN : Continuing my reading on p. 321 of the same volume from the argument of Sir Charles Russell : — "I leave this branch of the subject by expressing my agreement with the opinion stated on p. 157 of the United States Argument, that there can not be one international law for the Atlantic, and one 1028 NORTH ATLANTIC COAST FISHERIES ARBITRATION. for the Pacific, and I agree the law is the same for each — that outside the territorial limits there is an unrestricted right and liberty for all mankind to take what it can from the bosom of the sea." And if the Tribunal please, Lord Russell of Killowen, then Sir Charles Russell, was talking about the treaty of 1818, in connection with the treaty of 1783, when he made this statement — his statement was not detached from any connection with the treaty of 1818. I now leave these references to the past position of Great Britain, by these most distinguished representatives of the Government of Great Britain, to speak for themselves, and pass on to the position of the counsel for Great Britain in this submission. The past position of Great Britain has been departed from in this submission. Although Lord Bathurst, as just quoted, had stated, in 1814, that until any arrangement should be made to the contrary, the usual maritime jurisdiction of one league should be common to both contracting parties, this statement — coming to the question of Mr. Justice Gray — is now made, on behalf of Great Britain, in the British Case, at p. 83 :— " His Majesty's Government contend that the negotiators of the treaty meant by ' bays,' all those waters which, at the time, every one knew as bays." And on p. 103 of the same volume : — " His Majesty's Government contends that the term ' bays ' as used in the renunciation clause of article 1, includes all tracts of water on the non-treaty coasts which were known under the name of bays in 1818, and that the 3 marine miles must be measured from a line drawn between the headlands of those waters." And, in the British Argument, the statement is made on p. 92. " In the Counter-Case of the United States the attitude of Great Britain on this point has been misunderstood. It is there stated that ' the British Case is based on the assumption that the words " bays, creeks, or harbours of his Britannic Majesty's Dominions in Amer- ica," as used in the renunciatory clause of the treaty, were intended to be descriptive of territorial waters of Great Britain,' and an argu- ment is thereupon formulated on that issue. This is a misapprehen- sion. The contention of His Majesty's Government is stated quite clearly in the British Case, and has been stated in the same way on many occasions during the last seventy years. It is that the treaty relates to all bays on the British coasts." JUDGE GRAY: You will excuse me for interrupting you, but I really did not understand clearly — a day has intervened since you first made the statement — that the contention was upon any other ground than that the bays from which American fishermen were ex- cluded were only the territorial bays of Great Britain. MR. WARREN : If your Honour pleases, I will read the next sen- tence from the extract from the printed Argument of Great Britain : " In that view no question can arise as to territorial jurisdiction." ARGUMENT OF CHARLES B. WARREN. 1029 In the view of the United States the true interpretation of this renunciatory clause requires the determination of the extent of the coasts referred to, and the meaning of *the words " bays, creeks, or harbours," when used in connection with the word " coasts," 619 and necessitates the determination of the extent, prior to 1818, of the sea adjacent to the shores of the British posses- sions in North America over which Great Britain asserted a right of sovereignty, in respect of the fisheries, as against the fishing- vessels of the United States. The preamble, so to speak, of the treaty of 1818 is: — " Whereas differences have arisen respecting the liberty, claimed by the United States for the inhabitants thereof," &c. From this recital it is apparent that differences had arisen which the treaty now before this Tribunal was intended to adjust. The interpretation of the treaty is necessarily connected with the facts disclosing the differences which existed and with the practical diffi- culties which the treaty was intended to remove. I shall now review the circumstances and occasions from which the controversy, at length resulting in this treaty, arose, and state, in as brief a manner as seems consistent with the desire to have all the facts before the Tribunal, the successive stages in the controversy until the stage at which it is now found. THE PRESIDENT: Of course, we do not wish to trouble you with any remark as to limitation of time, because we are most desirous of having presented to us all the facts which are necessary for your cause. MR. WARREN : I thank you, Mr. President. THE PRESIDENT: And if we expressed the opinion that counsel might confine themselves to a certain number of days in the presenta- tion of their arguments, that only meant that, in our opinion, the case could be sufficiently developed within that time. But our prin- cipal object is to obtain an entire cognizance of the case. MR. WARREN : I thank you, Mr. President, and the Tribunal may rest assured that counsel would not consume the time of the Tribunal after such an expression, unless he thought he was discussing matters material to the issue. The British Case contains a most important statement regarding the negotiations preceding and during 1818, and I desire to lay em- phasis upon the fact that in this paragraph is to be found all that is said regarding the negotiations immediately preceding the treaty of 1818. I read from the bottom of p. 121 of the British Case :— " In addition to these arguments, His Majesty's Government desire to point out to the Tribunal that the circumstances existing at the time of the negotiations of 1818 themselves negative the contention that the term ' bay of his Britannic Majesty's dominions ' as used 1030 NORTH ATLANTIC COAST FISHERIES ARBITRATION. in the treaty was not intended to include the whole of the bays on the British coasts. "At the beginning of the last century, Great Britain and the United States were putting forward wide claims to jurisdiction over territorial waters, as has already been shown. The case of Delaware Bay and the claims of the United States were fresh in the minds of the American negotiators," &c. I shall later come to the specific consideration of these so-called " wide claims " which the distinguished counsel who opened for the Government of Great Britain substituted in the Argument before this Tribunal for a discussion of the very specific question here involved of the want of any assertion of jurisdiction in respect of the fisheries over bodies of water known as bays. Counsel, in opening for Great Britain, undertook to establish that Great Britain was asserting wide claims of exclusive maritime juris- diction over the sea generally adjacent to the shores of its posses- sions in the North Atlantic in respect to the fisheries. The facts upon which counsel relied to establish this alleged asser- tion of extended jurisdiction, both by the United States and Great Britain, will, as I just stated, be specifically discussed at a later stage; but now I am directly concerned with the general statements made by counsel as to the wide claims of Great Britain, and I read first from p. 242 of the report of the argument of Sir Robert Finlay : — " because the claims put forward by Great Britain and the recogni- tion of maritime jurisdiction by the United States show that at that time any idea of the claim with regard to a bay being confined to a bay with a six-mile entrance is entirely out of the question." And on p. 248 counsel stated : — " The wide extent of the British claims was well known ;" 620 Again, at p. 250 counsel stated: — " Having regard to the claims which Great Britain at that time put forward, I submit that such a position is absolutely incredible," Why, if the Tribunal please, I have just read a statement from Sir Charles Russell that from 1783 down Great Britain never made any wide claim outside of what he called territorial waters. Nor is there any doubt about what Sir Charles Russell meant by territorial waters when he was talking. And I have also read the instructions of Lord Castlereagh to the Commissioners at Ghent in 1814, when they were negotiating the treaty that closed the war of 1812, in which he stated that they must especially take notice of the fact that no claim was asserted against the United States, except that the fishing- vessels of the United States should keep outside the maritime jurisdiction of Great Britain. And later I read the instruction of Lord Bathurst, who, in the absence of Lord Castlereagh on the continent or some- ARGUMENT OF CHARLES B. WARREN. 1031 where else, issued instructions to the Commissioners defining mari- time jurisdiction. At that time, the Tribunal will recall, Europe was in an agitated condition, and Lord Castlereagh at various times went to the continent, and indeed he was compelled to go to the con- tinent during the negotiations in 1818, and Lord Bathurst, in the absence of Lord Castlereagh, issued the instructions to the Commis- sioners at Ghent which I read to the Tribunal a short time since, in which he stated that — " until any arrangement shall be made to the contrary, the usual maritime jurisdiction of one league shall be common to both con- tracting parties." The United States respectfully submits that the evidence before this Tribunal abundantly establishes that Great Britain, in the nego- tiations prior to the treaty of 1818, was not asserting as against the inhabitants of the United States, in respect of these fisheries, any extended jurisdiction over the seas adjacent to her possessions in North America. Taking up now the consideration of the circumstances and occa- sions from which the differences, sought to be composed by the nego- tiators of the treaty of 1818, arose, I refer first to the fact that there were no " differences " between the two Governments, material to this Question, between the signing of the treaty terminating the war for independence and the close of the war of 1812. The differences arose out of the contention on behalf of Great Britain after the close of the war of 1812, that the second part of article 3 of the treaty of 1783 had been abrogated by the war of 1812, while the United States claimed for its inhabitants the enjoyment of all the rights and liberties previously enjoyed under the entire stipu- lations of the 3rd article of the treaty of 1783. In order to make clear the "differences" to be adjusted between the two Governments by the treaty of 1818, the terms of the treaty of 1783 must be examined; and the rights of the two nations there- under, and especially the claims put forward by each nation after the war of 1812, must be understood. I shall not, Mr. President, delay long over the terms of this treaty of 1783, because I know they are quite familiar to the Tribunal. I shall content myself with reading but little, merely referring to the points which I desire to emphasise. In the preliminary negotiations of 1782 in Paris, to terminate the war for independence, the American Commissioners proposed a series of articles, among which was one which appears on p. 217 of the Appendix to the Case of the United States. Before considering this article, it will be recalled, of course, that the preliminary treaty, as signed in 1782, became, without alteration, 1032 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the definitive treaty of peace of 1783. I am not going into the reasons why the delay of that year occurred, but it is a fact that the treaty as negotiated in 1782 became the definite treaty of 1783, without alteration. The American Commissioners proposed, among the articles appear- ing on p. 217 of the Appendix to the Case of the United States, the 3rd article which was finally adopted with some alterations. That proposed article reads: — " That the subjects of His Britannic Majesty and people of the said United States, shall continue to enjoy unmolested, the rights to take lish of every kind on the banks of Newfoundland, and other places where the inhabitants of both countries used formerly, to wit, before the last war between France and Britain, to fish and also to dry and cure the same at the accustomed places, whether belonging to his said Majesty or to the United States; and his Britannic Majesty and the said United States will extend equal privileges and hospitality to each other's fishermen as to their own." 621 This article was agreed to ad referendum by • the British Commissioner, Richard Oswald, but was not approved by the British Government. A new article was subsequently agreed upon by the Commissioners of the two Powers, which is set out at the bot- tom of p. 218 of the Appendix to the Case of the United States. It is not necessary to read or have incorporated this article, inasmuch as it also proved unacceptable to the British Government, although signed by the British Commissioner — I should not say signed in the sense of finally agreed to, but agreed to ad referendum. The proposal on p. 219 of the Appendix to the United States Case, to which I wish specifically to call the attention of the Tribunal, was put forward by Great Britain, and reads as follows: — "Article III. The citizens of the said United States shall have the liberty of taking fish of every kind on all the banks of Newfound- land, and also in the Gulf of St. Lawrence; and also to dry and cure their fish on the shores of the Isle of Sables and on the shores of any of the unsettled bays, harbors, and creeks of the Magdalen Islands, in the Gulf of St. Lawrence, so long as such bays, harbors, and creeks shall continue and remain unsettled; on condition that the citizens of the said United States do not exercise the fishery, but at the distance of three leagues from all the coast belonging to Great Britain, as well those of the continent as those of the islands situated in the Gulf of St. Lawrence. And as to what relates to the fishery of the coast of the Island of Cape Breton out of the said gulf, the citizens of the said United vStates shall not be permitted to exercise the said fishery, but at the distance of fifteen leagues from the coasts of the Island of Cape Breton." This suggestion that: — "the citizens of the said United States do not exercise the fishery, but at the distance of three leagues from all the coast belonging to Great Britain, as well those of the continent as those of the islands AEGUMENT OF CHARLES B. WARREN. 1033 situated in the Gulf of St. Lawrence. And as to what relates to the fishery on the coast of the Island of Cape Breton out of the said gulf, the citizens of the said United States shall not be permitted to exercise the said fishery, but at the distance of fifteen leagues from the coasts of the Island of Cape of Breton," was emphatically and decisively rejected by the American Commis- sioners, who even refused to consider any such limitations of the rights of the independent Colonies on the high seas. The suggested article was thereupon abandoned by the British Commissioner who, in reporting to his Government, after the nego- tiations had been concluded, stated, as appears on p. 234 of the Ap- pendix to the Case of the United States in a letter from Mr. Oswald, the British Commissioner, to Mr. Townshend: — " If we had not given way in the article of the fishery, we should have had no treaty at all. Mr. Adams having declared that he would never put his hand to any treaty, if the restraints regarding the three leagues and fifteen leagues were not dispensed with, as well as that denying his countrymen the privilege of drying fish on the unsettled parts of Nova Scotia." And John Adams, in his Journal of the Peace Negotiations, found printed in part on p. 223 of the Appendix to the Case of the United States, confirms this statement of Richard Oswald; for Mr. Adams makes this observation in his diary, under date the 29th November, 1782, which was during the negotiations themselves: — " I rose up and said, gentlemen, is there or can there be a clearer right ? In former treaties, that of Utrecht, and that of Paris, France and England have claimed the right, and used the word. When God Almighty made the Banks of Newfoundland at three hundred leagues distance from the people of America, and at six hundred leagues dis- tance from those of France and England, did He not give as good a right to the former as to the latter? If Heaven, in the creation, gave a right, it is ours at least as much as yours. If occupation, use, and possession give a right, we have it as clearly as you. If war and blood and treasure give a right, ours is as good as yours." And in the same entry, at the bottom of p. 224, Mr. Adams stated : — " I said I never could put my hand to any articles without satisfac- tion about the fishery; that Congress had, three or four years ago, when they did me the honor to give me a commission to make a treaty of commerce with Great Britain, given me a positive instruction not to make any such treaty without an article in the treaty of peace acknowledging our right to the fishery ; that I was happy Mr. Laur- ens was now present, who, I believed, was in Congress at the time and must remember it." 622 Mr. Laurens was also one of the Commissioners on behalf of the United States in the negotiations of 1782. (Continu- ing the reading: — ) " Mr. Laurens upon this said, with great firmness, that he was in the same case and could never give his voice for any articles without 1034 NORTH ATLANTIC COAST FISHERIES ARBITRATION. this. Mr. Jay spoke up, and said it could not be a peace; it would only be an insidious truce without it." Article 3 of the treaty of 1783 appears at p. 24 of the Appendix to the Case of the United States, as finally agreed upon : — " It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bunk, and on all the other banks of Newfoundland; also in the (iiilph of Saint Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish. And also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use (but not to dry or cure the same on that island) and also on the coasts, bays and creeks of all other of His Britannic Majesty's dominions in America; and that the Ameri- can fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbours and creeks of Nova Scotia, Magdalen Is- lands, and Labrador, so long as the same shall remain unsettled ; but so soon as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlements, without a previous agreement for that purpose with the inhabitants, proprietors or possessors of the ground." I will only make this observation on this article: that the article, when signed, did away with all proposed limitations upon the rights of the fishing-vessels or fishermen of the United States, and that, under the terms of that article 3 of the treaty of 1783, the inhabit- ants of the United States had the right to enjoy, co-extensively with the subjects of Great Britain, all the rights to the fisheries in the North Atlantic Ocean, and had the right to invade waters of whatever extent, and go to the very shores of the British possessions, and to do everything that a subject of Great Britain could do by virtue of his being a subject of Great Britain, except that inhabi- tants of the United States did not have the right to dry and cure fish upon the island of Newfoundland and in the province of Quebec. Now, if the Tribunal please, why bring into this discussion matters preceding and antedating the actual negotiations of the treaty of 1783? In that treaty the rights of the inhabitants of the United States were determined and fixed ; and by that treaty, and under the terms of that treaty, they were exercised thereafter, and there is no question of construction of that treaty here involved. If there were any doubt about the wording of article 3 of the treaty of 1783 it might be appropriate to bring into the discussion the instructions of the Continental Congress, which instructions, as shown by Senator Turner, changed from time to time in accordance with the fortunes of war. It might be appropriate, I say, to bring forward those proceedings for the purpose of obtaining light upon the construction of the words of this article 3 were there any doubt about their meaning. ARGUMENT OF CHARLES B. WARREN. 1035 But of course there is no doubt about their meaning. All limitations, except as to Newfoundland and Quebec, including the limitations pro- posed by the British Government — that in the Gulf of St. Lawrence the fishermen of the United States should not fish nearer than 3 leagues to the coast, and off the part of Cape Breton lying outside of the Gulf of St. Lawrence that they should be restrained from fish- ing within 15 leagues of the coast — disappeared when the treaty itself was signed ; and the inhabitants of the United States, I repeat again, had the right to enjoy practically co-extensively with the subjects of Great Britain the fisheries in the North Atlantic Ocean bordering the British possessions. I shall take but a moment, if the Tribunal please, to call attention to the difference in the terms of this article 3 of the Treaty of Peace of 1783 between the United States and Great Britain and the treaty between Great Britain and France of 1713, which is printed in the Appendix to the British Case at p. 7. Counsel for Great Britain bring forward in the Case, and again before the Tribunal in oral argument, this treaty of 1713, which con- stituted a contract between Great Britain and France varying in essential particulars from the rights of the inhabitants of the United States recognised by Great Britain in the treaty of 1783, as though it was of some importance as to what the French did. The only clause of this treaty of 1713 that I desire to call to the attention of the Tribunal is found on p. 7 of the Appendix to the British Case : — " in the said seas, bays, and other places on the coasts of Nova Scotia, that is to say, on those which lie towards the east, within 30 leagues, beginning from the island commonly called Sable, inclusively, and thence stretching along towards the south-west." 623 In the treaty between Great Britain, France and Spain, of 1763, printed on p. 8 of the Appendix to the Case of Great Britain, which was also brought forward as being of enormous im- portance, will be found this provision, commencing with the fifth line of article 5 : — "And His Britannic Majesty consents to leave to the subjects of the Most Christian King the liberty of fishing in the Gulf of St. Lawrence, on condition that the subjects of France do not exercise the said fishery but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said Gulf of St. Lawrence. And as to what relates to the fishery on the coasts of the Island of Cape Breton, out of the said gulf, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of 15 leagues from the coasts of the Island of Cape Breton ; and the fishery on the coasts of Nova Scotia or Acadia, and everywhere else out of the said gulf, shall remain on the foot of former treaties." 1036 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Now, if the Tribunal please, those words have a familiar sound. They are the terms of the proposal put forward by the Commissioner for Great Britain in the negotiations of 1782, appertaining to the fisheries in the Gulf of St. Lawrence, and off the coast of Cape Breton ; and the proposal was rejected by the Commissioners in be- half of the United States; and when article 3 of the treaty of 1783 was signed, all limitations, contracted to be binding as between France and Great Britain, and as between Spain and Great Britain, disap- peared, and the inhabitants of the United States were to enjoy the unlimited and free right in all those fisheries on practically equal terms with the subjects of Great Britain. The Tribunal is already familiar with the fact that in these first negotiations between the United States and Great Britain, and in the treaty agreed upon by the United States and Great Britain, all broad claims to extensive jurisdiction, in respect to the fisheries, over the waters adjacent to the shores of the British possessions in North America, were surrendered by the Government of Great Britain when the independence of the United States was recognised. I have, however, taken the time to compare briefly the provisions of article 3 of the treaty between the United States and Great Britain signed in 1782 with the very different provisions of the Treaty of Utrecht between Great Britain and France of 1713, and the Treaty of Paris signed in 1763 between Great Britain, France, and Spain. The people of the United States were under the provisions of this treaty, which went into effect in 1783, from that time forward, to enjoy the fisheries with the subjects of Great Britain in all of the waters, including all bodies of water known by whatever name, adjacent to the British possessions in the North Atlantic. This article 3 of the treaty of 1783 was in plain terms. What the people of the colonies, who had now become the United States of America, had enjoyed, they were to continue to enjoy with entire freedom. The fisheries were demanded, and received, as a part of the fruits of the contest for Independence. The fishery article of this treaty of 1783 was no mere concession by Great Britain, nor was it the result of a mere captious demand by the United States. It was a wise provision for a source for food to the people of the new nation, and for obtaining a product for ex- change in the markets of the world; and was regarded by the people of the United States as providing an indispensable nursery for their future seamen. The possession of these fisheries, as shown by the documents already made familiar in the arguments before this Tribunal, was the moving cause of the early conflicts between the English and the French in America. ARGUMENT OF CHARLES B. WARREN. 1037 A half-century before any settlement in North America by the English, the French had explored the St. Lawrence River, and later they established the first settlement at Quebec. They moved up the St. Lawrence, and on to Lake Huron, established trading posts and constructed forts along the Great Lakes, and crossed from Lake Michigan to the Mississippi River. In the territory bordering the North Atlantic, at the beginning of the eighteenth century, Great Britain claimed alone Newfoundland, by virtue of the discovery of Cabot. The English settlements were largely to the south, in what is now a part of the United States of America. But while the English colonised the country, built homes and devel- oped villages, the French girdled them about with a chain of forti- fications and military posts. The " War of the Spanish Succession " broke out in Europe in 1710 and spread to America, where it was known as " Queen Anne's War." In 1710 Acadie was taken by the English. The name of Port Royal was changed to Annapolis, in honour of Queen Anne, the English Queen; and the name of Acadie was changed to Nova Scotia. 624 The Peace of Utrecht, in 1713, ended this war. England received all the territory surrounding Hudson's Bay, Acadie, and the undisputed possession of Newfoundland. In 1740, the "War of the Austrian Succession" broke out in Europe, and it was known in America, where it spread, as "King George's War." This once more embroiled the English and the French in America in war, as they were already embroiled in Europe. The possession of the fisheries moved the inhabitants of New England to invade the French territories in America, and Louis- burg was captured by a force organised in the colony of Massachu- setts and adjoining colonies. By the Treaty of Aix-la-Chapelle, however, in 1748, all territory acquired or conquered in New France was restored to the French crown. In 1755, war broke out between the French and the English in America. This war became known as the "French and Indian war." It spread from America across the Atlantic, in the other direction this time, and in Europe was known as the " Seven Years War." In 1759, in September, we all recall that Wolfe scaled the Heights of Abraham, and lost his life, but won Canada for England. When the treaty in 1763 was made between England and France, England received the undisputed possession of Quebec, which subsequently was divided into Lower and Upper Canada ; received the undisputed possession of Nova Scotia and Cape Breton; the undisputed posses- sion of Prince Edward's Island, then known as St. John's Island; the undisputed possession of all the islands in the Gulf of St. Law- rence; and had already acquired, under the treaty of 1713 with the 1038 NORTH ATLANTIC COAST FISHERIES ARBITRATION. French the undisputed possession of the Island of Newfoundland, subject to the French fishing right. In the beginning of 1776, Great Britain possessed in America sev- enteen colonies. Thirteen of these colonies were, for the purpose of description, to the south. Four were to the north. The people of the thirteen colonies to the south thought that the time had arrived when they must determine upon a permanent form of government. They elected to be independent, and on the 4th July, 1776, they published their Declaration of Independence. Their independence was recognised by Great Britain in 1783, after having been recognised by other nations in Europe. The four colonies to the north — Newfoundland, Nova Scotia, St. John's Island, and Quebec — preferred to remain a part of the British Empire. So the empire on the American continent was divided, and it was divided as between the United States and Great Britain by the terms of the treaty of 1783 ; and one of the articles of this treaty of 1783 was this fishery article, which acknowledged the right of the people of the United States to enjoy the right of fishing wherever enjoyed by British subjects. John Adams, who subsequently, as is within the knowledge of the Tribunal, became President of the United States, was one of the Com- missioners for the United States, and he declared, in a passage that has been read to the Tribunal, that he would not put his hand to any treaty which contained any limitations upon the enjoyment by the people of the United States of these fisheries. In a letter under date August, 1822, Mr. Adams stated, as appears in the Appendix to the Case of the United States on p. 318 : — " That New England, and especially Massachusetts, had done more in defence of them (the fisheries) than all the rest of the British em- pire. That the various projected expeditions to Canada, in which they were defeated by British negligence, the conquest of Louisburg, in 1745, and the subsequent conquest of Nova Scotia, in which New England had expended more blood and treasure than all the rest of the British empire, were principally effected with a special view to the security and protection of the fisheries." So, as I said, the empire in America was divided by this treaty, and the fisheries became the joint possession of the two nations. The terms and conditions upon which this division was made constituted an essential part of the acknowledgment of the independence of the United States ; and the preservation of the fishing rights so long en- joyed as British subjects was amongst the most important of the stipulations demanded and received by the people of the United States. This was as much a right, and was as urgently insisted upon, as independence itself. ARGUMENT OF CHARLES B. WARREN. 1039 THE PRESIDENT : May I interrupt you a moment, Sir ? MR. WARREN : Certainly, Mr. President. 625 THE PRESIDENT : You said the fisheries became the joint pos- session of both parties. Is this idea, that the fisheries are the joint possession of both parties, expressed in the treaty of 1783 in an equal manner as it is expressed in the first drafts of this treaty which had been proposed by the United States? If you will have the kind- ness to compare the American draft, the first draft, which is found on p. 217 of the Appendix to the Case of the United States, and the final treaty, I shall be obliged. Is this idea of joint property ex- pressed in an equal manner in the first draft and in the final treaty? MR. WARREN : Mr. President, I was not in my submission referring to the history of the acquisition of the fisheries as a national posses- sion for the purpose of drawing conclusions therefrom bearing on Question 1. And if you will permit me to confine myself to the ques- tion that I am undertaking to discuss, I should prefer that the dis- tinguished senior counsel for the United States should answer the question put to me. THE PRESIDENT: Yes. Then we limit ourselves now to the discus- sion of the bays, and to the discussion of whether bays are territorial waters or not. MR. WARREN: I have made this brief statement of the history of the acquisition of these fisheries, for the purpose of showing that this was and is a great national right in which the people of the United States took and do take an enormous interest ; and for the purpose of explaining why the Commissioners in behalf of the United States in 1814, at Ghent, and why the Commissioners for the United States in 1818, who helped to frame the treaty now before this Tribunal for interpretation, considered these fisheries as a national possession, and in part the property of the United States of America, and also as bearing upon the statement made in his Argument by Sir James Winter, who comes from the Island of Newfoundland, that a part of these fisheries has some peculiar value to the people of Newfoundland. Of that I have no doubt. But I wish to emphasise the fact, and have undertaken to do so, that this fishery was of peculiar value to the people of the United States in 1783, and in 1814, and in 1818. The demand for the enjoyment of these fisheries was no mere unexplain- able or capricious demand upon the part of the Commissioners of the United States during these various negotiations in 1782, in 1814, and in 1818. The possession of these fisheries constituted essentially a part of the national possessions, which the nation acquired by virtue of becoming an independent nation. All of this history bears upon the way in which, if it please the Tribunal, I think the Tribunal should look at this question. 92909°— S. Doc. 870, 61-3, vol 10 1Q 1040 NORTH ATLANTIC COAST FISHERIES ARBITRATION. This is no new demand, now presented, where the United States, no matter what its population, is seeking to wrest from the people of the colony of Newfoundland, no matter what its population, a prop- erty right which has recently suggested itself to the people of the United States as of great value. The possession in part of this right is a great historical possession of the nation, was so considered from 1782 down, indeed was so considered prior to 1782 by the subjects of Great Britain residing in the territory subsequently becoming the territory of the United States of America, and was so considered in the negotiations of 1814 and in the negotiations of 1818. After the treaty of 1783 the fisheries henceforth belonged, in part, I say, to the colonies which had declared their Independence. The possession of this fishery was intermingled with the early struggles for Independence, and its possession now became a part and parcel of the national property, under the terms of — not by virtue of — the treaty of 1783, but acknowledged by the terms of the treaty as a part of the national property. These fisheries were from thenceforth to be enjoyed in common. From the time of this treaty acknowledging the Independence of the United States, until after the war of 1812, the people of the United States enjoyed these fisheries in the waters along all the coasts of the British possessions in North America, as I have stated, comprehend- ing bodies of water of whatever dimensions. The Government of Great Britain made no claim of exclusive juris- diction over large bodies of water adjacent to the shores of the Brit- ish possessions bordering the North Atlantic against the fishing- vessels of the United States. It is most apparent that no exclusive jurisdiction could be claimed, or at least maintained, as against the people of the United States by Great Britain on the one hand, and that no exclusive right to the enjoyment of the fisheries by the subjects of Great Britain could be acquiesced in by the inhabitants of the United States on the 626 other hand; for it is an undisputed fact — and the documents on both sides will be searched in vain for anything that con- tradicts the fact — that from 1783 until the war of 1812 the people of the United States enjoj'ed these fisheries in all the bays, creeks, and harbours of the North Atlantic coast, wherever resorted to by British fishermen. The divergence in the views of the two Powers as to the continua- tion of any liberty of the inhabitants of the United States under the second part of article 3 of the treaty of 1783 arose after the termina- tion of the war of 1812. The differences referred to in the preamble of the treaty of 1818, which the negotiators of that treaty undertook to compose, emerged entirely from this divergence in the views of the two Governments as to the effect of the war of 1812 upon the treaty of 1783. ARGUMENT OF CHARLES B. WABBEN. 1041 If the Tribunal please, if it is agreeable, I. will stop at this point for the recess. [Thereupon, at 12 o'clock, the Tribunal took a recess until 2 o'clock P. M.] AFTERNOON SESSION, THURSDAY, JULY 7, 1910, 2 P. M. MR. WARREN (resuming) : I shall not occupy time in re-stating any part of what I had stated before the Tribunal adjourned for the recess. However, I desire to re-state that these differences, referred to in the treaty of 1818, between the two Governments arose entirely from the assertion on the part of the Government of Great Britain on the one hand that American fishermen could not fish or dry and cure fish " within the exclusive British jurisdiction"; and, from the claim by the United States on the other hand, that all the rights recognised by the treaty of 1783 were still to be enjoyed by the in- habitants of the United States irrespective of the war of 1812. This brought into question at once, and for the first time, the determination of the extent of the exclusive British jurisdiction in respect to the fisheries, as against the people of the United States. That is why, in reply to a question by Sir Charles Fitzpatrick on Tuesday, I stated that there was no connection between the " bays " mentioned in the treaty of 1783, and the "bays" subsequently men- tioned in the treaty of 1818. because in 1783 there was no attempt to define the jurisdiction of Great Britain, whatever it may have been, inasmuch as the fishermen of the United States had the right to approach the British shores in North America in all of the bays, creeks and harbours, of whatever extent. Although, when the consideration of the negotiations of the treaty of 1818 is reached in the statement and presentation of this particu- lar question, it will become necessary to go into detail to disclose clearly the position and demand of the Government of Great Britain, as to the extent of its exclusive maritime jurisdiction in respect of these fisheries, as against the inhabitants of the United States, never- theless I desire at this stage in the Argument that the position taken by the Government of Great Britain, following the close of the war of 1812, be made most clear, if it is possible for me to make it clear. The Tribunal will recall first the letter of Lord Bathurst, of the 18th October, 1814, appearing in the pamphlet from which I read this morning ; and also will recall that at p. 10 of the same pamphlet, Lord Bathurst stated, in substance, that the usual maritime jurisdic- tion of 1 league, that is 3 marine miles, was recognised in the absence of some particular arrangement to the contrary. After the war of 1812 had closed, Lord Bathurst, in an interview with John Quincy Adams, then Minister for the United States in 1042 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Great Britain, in September, 1815, claiming in an interview that a certain part of article 3 of the treaty of 1783 had been abrogated by the war of 1812, stated to Mr. Adams, as appears on p. 265 of the Appendix to the Case of the United States, that: — " Great Britain could not permit the vessels of the United States to fish within the creeks and close upon the shores of the British territories, so, on the other hand, it was by no means her intention to interrupt them in fishing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore; " Mr. Adams, after this interview, and in pursuance of a notification to Lord Bathurst during the interview that he would address a G27 formal note on the subject, wrote Lord Bathurst. This noti- fication of course could be made but for one purpose, that was to have specifically defined in writing the statement made by Lord Bathurst. This note appears in the United States Case Appendix, on p. 269. I will read but a part of it — " Your lordship did also express it as the intention of the British Government to exclude the fishing vessels of the United States, here- after, from the liberty of fishing within one marine league of the shores of all the British territories in North America, and from that of drying and curing their fish on the unsettled parts of those terri- tories," Lord Bathurst, under date October, 1816, in a note on p. 278 of the Appendix to the Case of the United States, sets out the difficulty in these words : — " It was not of fair competition that His Majesty's Government had reason to complain, but of the preoccupation of British harbours and creeks, in North America, bv the fishing vessels of the United States," Mr. Bagot shortly afterwards came to the United States as the first Minister from Great Britain following the war of 1812. On p. 290 of the Appendix to the Case of the United States, in a note to Mr. Monroe, then Secretary of State for the United States, and sub- sequently President of the United States, he advised Mr. Monroe as follows: — " It is not necessary for me to advert to the discussion which has taken place between Earl Bathurst and Mr. Adams." Mr. Bagot had before him, the Tribunal will observe, the notes of the discussion between Mr. Adams and Lord Bathurst, which more plainly appears further along in the same note : — " In the correspondence which has passed between them, you will have already seen, in the notes of the former, a full exposition of the grounds upon which the liberty of drying and fishing within the ARGUMENT OP CHARLES B. WARREN. 1043 British limits, as granted to the citizens of the United States by the treaty of 1T83, was considered to have ceased with the war, and not to have been revived by the late treaty of peace." It will be recalled that Lord Bathurst had defined the maritime limits of Great Britain in respect of fishing as against the inhabit- ants of the United States in these notes in the possession of Mr. Bagot, and here referred to by Mr. Bagot in his note to the Secre- tary of State for the United States. When Mr. Bagot wrote of fish- ing within the " British limits " he used the term " British limits " as it had been defined by his superior, in the Foreign Office of Great Britain, in the notes then in his possession, and which, of course, had either been transmitted to him, or been delivered to him when he departed for the United States as Minister. Continuing reading from the same note to Mr. Monroe on p. 290 of the United States Case Appendix, where Mr. Bagot refers to any agreement that should be entered into, or might be entered into, be- tween the two Governments, and states : — " It being distinctly agreed that the fishermen should confine them- selves to unsettled parts of the coast, and that all pretensions to fish or dry within the maritime limits, or on any other of the coasts of British North America, should be abandoned." There, if the Tribunal please, is the first statement of the renuncia- tory clause, which was subsequently drafted by the Commissioners on behalf of the United States in the negotiations of 1818. And this was no informal statement by Mr. Bagot, because, if the Tribunal will do me the honour to follow me to p. 176 of the Appendix to the Counter-Case of Great Britain, there will be found on p. 175 the instruction from Lord Castlereagh to Mr. Bagot, and on p. 176, which contains a portion of the letter, these words will be found : — " You are authorized, in the last resort, to yield both to them. . . ." Both portions of the coast that Mr. Bagot was authorised to yield up to the United States. Continuing reading the instruction — "... to yield both to them upon their distinctly agreeing to con- fine themselves to the unsettled parts of the coasts so assigned, aban- doning all pretensions to fish or dry within our maritime limits on any other of the coasts of British North America." 628 In this instruction from Lord Castlereagh to Mr. Bagot, turning again to the first of the instruction on p. 175 of the Appendix to the British Counter-Case, it will be found that Lord Castlereagh refers to the fact that he had already enclosed in another instruction — " copies of the notes which had been exchanged between the American Minister in London and His Majesty's Government, were therein 1044 NORTH ATLANTIC COAST FISHERIES ARBITRATION. transmitted for your information ; and you were directed to conform your language in your intercourse with the American Secretary of State to the principles which had been brought forward in this cor- respondence on the part of your Court." The letter from Lord Bathurst to Mr. Baker of the 7th Septem- ber, 1815, on which counsel for Great Britain relies so much, consti- tuted no part of the correspondence, although it was in accord with the position of the United States as interpreted by Lord Bathurst himself. It was to the correspondence between the American Minis- ter in London and His Majesty's Government that Mr. Bagot was referred, and he was directed " to conform your language in your intercourse with the American Secretary of State to the principles which had been brought forward in this correspondence on the part of your Court." " This correspondence " included the letter of Mr. Adams to Lord Bathurst, in which Mr. Adams had restated specifically what he un- derstood Lord Bathurst to have stated in the interview preceding the writing of the note. So that the " principles " by which Mr. Bagot was to be guided were derived from the correspondence between Mr. Adams and Lord Bathurst, and the discussion between them as recorded in the note of Mr. Adams to Lord Bathurst. In May 1817, as appears in the Appendix to the United States Case on p. 295, Lord Castlereagh, the Principal Secretary of State for Foreign Affairs for Great Britain, took up the discussion with Mr. Adams, and in a note bearing the date just stated he wrote : — "As soon as the proposition which Mr. Bagot was authorized in July last, to make to the Government of the United States, for ar- ranging the manner in which American citizens might be permitted to carry on the fisheries within the British limits, had been by them declined," &c. Lord Castlereagh took up the subject where it had been left by Lord Bathurst, and accepted Lord Bathurst's definition of the British limits ; and from thence on in the negotiations the terms " exclusive British jurisdiction," " British limits," " maritime limits," " exclusive sovereignty of Great Britain " were used by the representatives of the two Governments, and subsequently by the negotiators, in the sense and in accordance with the understanding of these terms in the interview between Lord Bathurst and Mr. Adams, and in the sense stated in the letter from Mr. Adams to Lord Bathurst. In these notes and interviews is found a statement of the position of Great Britain. They constitute the statement of the British claim. American fishing-vessels would not be allowed to fish within the creeks and close upon the shores of the possessions of Great Britain in North America; nor would the Government of Great Britain interrupt fishing beyond a marine league from the shore. ARGUMENT OF CHARLES B. WARREN. 1045 Close upon the shore were the creeks and waters within the mari- time jurisdiction of Great Britain- and all the sea, a marine league from the shores was not within the exclusive maritime jurisdiction of Great Britain. As stated by Mr. Bagot, " within the British limits " lay the creeks and harbours close upon the shore and within the " maritime limits," he stated, lay the interdicted waters. Beyond a marine league from the shore all was open sea. THE PRESIDENT : It would be of the greatest value, Sir, if it would be possible to elucidate a certain discrepancy which exists between the letter from Lord Bathurst to Mr. Baker of the 7th September, 1815, in the British Case Appendix, p. 64, and the report which Mr. Adams made to Mr. Monroe, stating the conversation which he had had with Lord Bathurst concerning these instructions, appearing also in the British Case Appendix. In that letter Lord Bathurst says to his Minister at Washington, Mr. Baker : — " You will take an early opportunity of assuring Mr. Monroe that, as, on the one hand, the British Government cannot acknowledge the right of the United States to use the British territory for the purpose connected with the fishery, and that their fishing vessels will be excluded from the bays, harbours, rivers, creeks, and inlets of all His Majesty's possessions." 629 Thus Lord Bathurst writes to Mr. Baker. Mr. Adams re- ports to Mr. Monroe that he had had a conversation with Lord Bathurst concerning these instructions, and he had asked Lord Bathurst what the substance of these instructions was. On p. 65 it is stated that Lord Bathurst replied that he could give the substance of the answer that had been forwarded, and that it had been that — " as, on the one hand, Great Britain could not permit the vessels of the United States to fish within the creeks and close upon the shores of the British territories, so, on the other hand, it was by no means her intention to interrupt them in fishing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore." In the letter Lord Bathurst speaks of the bays, while in the report which Mr. Adams makes concerning the conversation he had had with Lord Bathurst, he does not speak of the bays. One of these re- ports must be incorrect. Either Mr. Adams had not quite correctly reported what he had heard from Lord Bathurst, or Lord Bathurst had forgotten something which he had written to Mr. Baker, or in his oral communication he had said something different from what he had written. Then there is the possibility that Mr. Baker did not quite exactly communicate the contents of the despatch of Lord Bathurst to the American Government. There must be some misun- derstanding, and it would be interesting to know who was incorrect in his report. If it were possible to elucidate such a question it 1046 NORTH ATLANTIC COAST FISHERIES ARBITRATION. would be of very great assistance to us, but it may not be possible after so long a time has elapsed. MR. WARREN : Mr. President, counsel for the United States submit that we will have no trouble whatever to answer the question put. I am only stating now the claim of Great Britain as advanced to the United States. I mentioned the letter to Mr. Baker, the British charge in Washington before the arrival of Mr. Bagot as Minister, and in the natural order of the argument, the Baker letter, the inter- view between Lord Bathurst and Mr. Adams, and the subsequent let- ter from Mr. Adams to Lord Bathurst will be discussed. I will here Mr. President, replying to the question which you put, call to the attention of the Tribunal the fact that the contention of the United States does not rely solely upon Lord Bathurst's own definition of the Baker letter, because Mr. Adams took the precaution, as shown on p. 2G9 of the Appendix to the Case of the United States, to restate to Lord Bathurst what Lord Bathurst had stated to him, and in the restatement of Lord Bathurst's position used the same definition of the Baker letter that Lord Bathurst had used when stating the con- tents of it to Mr. Adams. THE PRESIDENT : You used the expression the "Adams letter." MR. WARREN : I referred the Tribunal to Mr. Adams' letter to Lord Bathurst, which is printed, commencing on p. 268 of the Appendix to the Case of the United States, and I had just commenced to read an extract from that letter, to be found on p. 269. Mr. Adams made a statement there to Lord Bathurst of what Lord Bathurst had stated to him : " your lordship did also express it as the intention of the British Government to exclude the fishing vessels of the United States, here- after, from the liberty of fishing within one marine league of the shores of all the British territories in North America." THE PRESIDENT : That is consistent with the report Mr. Adams had made to Mr. Monroe and not consistent with the letter of Lord Bathurst — MR. WARREN : To Mr. Baker, Mr. President. THE PRESIDENT : To Mr. Baker. MR. WARREN : If the Tribunal please, the United States will under- take, at a later point in the argument, to show that Mr. Adams' defi- nition of the letter is quite consistent with the position taken ; but, in any event, it is to be observed that the Baker letter forms no part of the correspondence with the United States. Mr. Baker had already written his letter to the Secretary of State for the United States about the " Jaseur " incident, before the receipt by him of the letter from Lord Bathurst, dated the 7th September, 1815, which related to the " Jaseur " incident. THE PRESIDENT: What do you mean by the Baker letter? ARGUMENT OF CHARLES B. WARREN. 1047 MR. WARREN: The letter from Lord Bathurst to Mr. Baker, on p. 64 of the Appendix to the British Case, Mr. President. 630 THE PRESIDENT: I understood you to mean the letter from Mr. Baker, and I could not find one in that connection. MR. WARREN : Pardon me ; I mean the letter to Mr. Baker. I was about to say that the letter from Mr. Baker to Mr. Monroe, the American Secretary of State, regarding the " Jaseur " incident, is printed on p. '264 of the Appendix to the United States Case, and bears date the 31st August, 1815. Therefore, Mr. Baker had not received the letter from Lord Bathurst which bears date the 7th Sep- tember, 1815. He never took occasion to transmit any other letter to the United States regarding the "- Jaseur " incident than the one which bears date the 31st August, 1815. I desire to draw the atten- tion of the Tribunal to this additional fact, to which I have already alluded — that in the transmission to Mr. Bagot of the instructions from Lord Castlereagh, Appendix to British Counter-Case, p. 175, the principles, by which Mr. Bagot was to be guided, were the principles laid down in the notes passing between, and reports of the interviews between Lord Bathurst and Mr. Adams, which are the notes to which I have referred. It was asserted by Great Britain that the war of 1812 abrogated the liberty of American fishing-vessels within the "territorial jurisdic- tion " of Great Britain, which was stated to extend 3 marine miles from the shore, and within which lay the harbours and creeks and waters close upon the shore that were thereafter to be closed to the fishing-vessels of the United States. Now, I wish here to ask : If the Government of Great Britain had been advancing a claim to exclusive jurisdiction, in respect of the fisheries, over large areas of water extending many miles from the shore, would the claim have been stated in the terms employed by Lord Bathurst, that is, that thereafter the vessels of the United States would not be permitted to fish within the creeks and close upon the shore of the British territories; nor would they be inter- rupted in fishing without the territorial jurisdiction a marine league from the shore? Thereafter, when Lord Castlereagh, or Lord Bathurst, or Mr. Bagot, on the part of the Government of Great Britain, and Mr. Mon- roe and Mr. Rush, on the part of the United States, and, later, when the negotiators of the treaty of 1818 used the terms "territorial jurisdiction," " exclusive jurisdiction of Great Britain," " maritime limits," " within the British limits," " within the limits of the British Sovereignty," and " His Britannic Majesty's Dominions in America," they referred to a jurisdiction over the sea extending only 3 marine miles from the shore of the possessions of Great Britain in North America; and only bays, creeks, and harbours found therein were included. 1048 NORTH ATLANTIC COAST FISHERIES ARBITRATION. No claim of extended jurisdiction over bodies of water known by the name of bays was advanced during these negotiations in behalf of Great Britain as against the fishing- vessels of the United States. The learned counsel, when opening in behalf of Great Britain, criticised the statement in the Argument of the United States appear- ing on p. 124, which reads: — " Lord Bathurst and Mr. Adams had, without controversy, under- stood that the territorial jurisdiction extended a marine league from the shore, within which lay the creeks and waters close upon the shores denied to the fishing vessels of the United States, as clearly disclosed by the notes, which, placed subsequently in the hands of the negotiators in 1818, became the basis of the negotiations and virtually the measure of their respective powers." The reason Lord Bathurst and Mr. Adams so understood the ex- tent of the exclusive territorial jurisdiction of Great Britain, was because Lord Bathurst had so stated the claim of Great Britain in the interview just brought to the attention of the Tribunal, and about which the honourable President made an inquiry. Lord Bathurst made no claim to extended jurisdiction over bodies of water known to the public or to geographers as bays, but only asserted that the fishing-vessels of the United States would not be permitted to fish within the creeks and close upon the shores of the British terri- tories, and would not be prevented from fishing without the territorial jurisdiction a marine league from the shore. Before taking up the negotiations in 1818 leading to the making of this treaty, it seems, I submit, necessary briefly to review the diplomatic relations between the United States and the Government of Great Britain between the years 1783 and 1815, the year follow- ing the peace concluding the war of 1812, in so far as they shed any light upon this question now under consideration. This review is for the purpose of ascertaining the extent of the claims to exclusive maritime jurisdiction, as against the people of the United States, over the waters adjacent to the shores of the British possessions in North America, advanced by the Government of Great Britain. 631 In the printed Argument, filed on behalf of the United States, on p. 125, this statement is made referring to the phrases " the exclusive British jurisdiction " and " the limits of the British Sovereignty " : — " These terms were used in the negotiations leading to the treaty of 1818 with such definite meaning as to preclude any conclusion except that a perfect and complete understanding existed between the two Governments as to their exact meaning." Sir Robert Finlay referred to this extract and evidently construed it, in connection with what precedes and follows it, as referring to some agreement made in 1806, or in 1814. ARGUMENT OF CHARLES B. WARREN. 1049 The statement seems plain. It is that the terms which were used in the negotiations leading to the treaty of 1818 had such a definite meaning that there must have been an understanding between the two Governments as to their exact meaning. The review of the diplomatic relations between the two Govern- ments prior to 1815, upon which I am about to enter, will disclose how far Great Britain had defined her exclusive jurisdiction in the waters adjacent to her possessions in North America and will be help- ful in showing the Tribunal what was in the minds of the negotiators of the treaty of 1818, by reason of the negotiations between the two Governments during the years immediately preceding the making of the treaty of 1818. This review is made more important because of the incorrect con- clusions drawn in the Case presented in behalf of Great Britain, and by counsel in oral argument here, as to the effect and bearing of these occurrences upon the negotiations in 1818; which conclusions were drawn from certain carefully selected data antedating the period directly under discussion. I refer to the reliance placed upon the Treaty of Utrecht of 1713, the treaty between Great Britain, France, and Spain of 1763, the action of the United States as to Delaware Bay in 1793, the letter from Mr. Jefferson to Mr. Genet, the Minister for France in the United States in 1793, the Jay Treaty of 1794, and the letter from Mr. Jefferson, in 1804, to the Secretary to the Treasury. This data will be hereafter specifically dealt with, and I do not now stop to make any observations concerning any part of it. I will take up now the negotiations between the United States and the Government of Great Britain leading to the unratified treaty of 1806. From these negotiations two important facts will emerge, and they are these : that by the terms of this unratified treaty of 1806 the mari- time jurisdiction stipulated for by the terms of the treaty was to apply both to the United States and to the Dominions of Great Britain in North America; and that while in these negotiations the United States sought, as against Great Britain, some protection for waters enclosed by what Mr. Monroe called headlands, the Govern- ment of Great Britain absolutely declined to make any such conces- sion, and refused to incorporate it in the treaty. Great Britain proceeded along the lines that she had been pursuing, with the history of which we are all familiar, until the outcome was, unfortunately, the war of 1812. Taking up the negotiation of this unratified treaty of the 31st De- cember, 1806, I wish to state, first, I do not recall any statement dur- ing the entire argument, and I am unable to find in the report of the argument of counsel who opened on behalf of Great Britain any 1050 NORTH ATLANTIC COAST FISHERIES ARBITRATION. statement that article 25 of the Jay Treaty of 1794 expired by virtue of the limitations of the treaty in 1807. If the Tribunal please, this is an important fact. When I say that article 25 of the treaty expired, I should say that all the articles ex- cept the first ten articles and the twelfth article expired in October 1807 by virtue of the limitation expressed in the treaty itself. This appears from the fact that all the articles except the first ten and the twelfth were to expire twelve years after the ratifications, which were exchanged the 28th October, 1795. Article 25 of the Jay Treaty was about to expire, then, when the Commissioners met in 1806. The object of the negotiation in 1806 was to negotiate a new treaty of commerce and navigation between the United States and Great Britain. James Monroe, afterwards President of the United States, and William Pinkney, a distinguished lawyer of his time, were the Com- missioners on behalf of the United States, and Lord Holland and Lord Auckland were the Commissioners on behalf of Great Britain. These Commissioners, on the 31st December, 1806, concluded a treaty in London, which was rejected by the United States on the ground, as stated by Mr. Madison, then Secretary of State for 632 the United States, in an instruction to the American Commis- sioners, after the transmission to him of the treaty, and when returning it to the Commissioners, which appears on p. 100 of the Appendix to the Counter-Case of the United States, that : — "Without a provision against impressments, substantially such as is contemplated in your original instruction, no treaty is to be con- cluded." The United States, the Tribunal will recall, was seeking among other objects a means, by treaty or otherwise, to keep Great Britain from impressing American seamen for the purpose of using them in the European wars. I am not going to digress further to explain that feature of the negotiations. If the Tribunal will do me the honour of turning to p. 22 of the Appendix to the Counter-Case of the United States, it will be seen that the first article of this unratified treaty material to the Question now under consideration is article 12. This article is as follows : — "And whereas it is expedient to make special provisions respecting the maritime jurisdiction of the high contracting parties on the coast of their respective possessions in North America on account of pecul- iar circumstances belonging to those coasts, it is agreed that in all cases where one of the said high contracting parties shall be engaged in war, and the other shall be at peace, the belligerent Power shall not stop except for the purpose hereafter mentioned, the vessels of the neutral Power, or the unarmed vessels of other nations, within five marine miles from the shore belonging to the said neutral Power on the American seas." ARGUMENT OF CHARLES B. WARREN. 1051 And the other article material to this Question is the proviso clause of article 19, which is printed on p. 25 of the same Appendix. It reads: — " Neither of the said parties shall permit the ships or goods belong- ing to the subjects or citizens of the other to be taken within cannon shot of the coast, nor within the jurisdiction described in Article 12, so long as the provisions of the said article shall be in force, by ships of war or others having commissions from any prince, republic, or state whatever. But in case it should so happen, the party whose territorial rights shall thus have been violated shall use his utmost endeavors to obtain from the offending party full and ample satis- faction for the vessel or vessels so taken, whether the same be vessels of war or merchant vessels.*' The jurisdiction described in article 12 and referred to in this clause was " within five marine miles from the shore," as appears on p. 22 of the Appendix to the United States Counter-Case, in the passage which I have just read to the Tribunal. It therefore is manifest that the words " coast " and " shore " were used interchangeably by the two Governments in this treaty. For in one place in the proviso clause it is stated that the ships or goods belonging to the subjects or citizens of the other should not — " be taken within cannon-shot of the coast, nor within the jurisdiction described in Article 12," and the jurisdiction described in article 12 is 5 marine miles from the shore. If the coast was something outside and apart from the shore, there could not be an extension of the 3-mile limit to a 5-mile limit. The limits started from the same base, and therefore the " shore " and the " coast " were used synonymously. This treaty between the United States and Great Britain recog- nised the extent of maritime jurisdiction to be limited to a cannon- shot from shore, which was in that treaty formally identified by the Commissioners on behalf of the United States and Great Britain with the 3-mile rule, unless the extent of maritime jurisdiction should be modified by convention or by long-continued usage and acqui- escence. The customary jurisdiction was stated to extend a cannon- shot or 3 marine miles from shore. I desire here to bring to the attention of the Tribunal the fact — and it seems, I submit, a most important fact — that Lord Stowell, Great Britain's greatest Admiralty judge, sitting in the High Court of Admiralty in Great Britain, in July 1800 and in November 1801, had, in the cases of the " Twee Gebroeders," Alberts, master, and the " Twee Gebroeders," Northolt, master, reported in third Robinson's Admiralty Reports, at pp. 162 and 336, identified the 3-marine-mile rule with the cannon-shot rule, and had decided that 3 marine miles 1052 NORTH ATLANTIC COAST FISHERIES ARBITRATION. was the limit of territorial waters, and that beyond the reach of cannon-shot universal use in the sea was presumed. If the Tribunal please, these decisions just preceded these negotia- tions of 1806, and had a most important bearing on the question of the recognition of the extent of the maritime jurisdiction by Great Britain and upon the claims of Great Britain, as expressed in the notes from Lord Bathurst and from Lord Castlereagh which have been read to the Tribunal, and in the interview between Mr. Adams and Lord Bathurst. 633 At p. 163, 3 Robinson's Reports, Lord Stowell, then, of course, Sir William Scott, stated : — " Upon the question so proposed, the first fact to be determined is, the character of the place where the capturing ship lay ; whether she was actually stationed within those portions of land and water, or of something between water and land, which are considered to be within the limits of the Prussian territory? On this point, I am inclined to think, on an inspection of the charts, and on hearing what has been urged, that she was lying within the limits, to which neutral immu- nity is usually conceded. — She was lying in the Eastern branch of the Eems, within what may I think be considered as a distance of three miles, at most, from East Friesland: an exact measurement cannot easily be obtained ; but in a case of this nature, in which the Court would not willingly act with an unfavourable minuteness to- wards a neutral state, it will be disposed to calculate the distance very liberally; and more especially, as the spot in question is a sand cov- ered with water only on the flow of the tide, but immediately con- nected with the land of East Friesland, and when dry, may be con- sidered as making part of it." And at p. 339 of the same report, Sir William Scott, in the other Twee Gebroeders Case which I have just cited, said : — " In the sea, out of the reach of cannon shot, universal use is pre- sumed. In rivers flowing through conterminous states, a common use to the different states is presumed. Yet, in both of these, there may, by legal possibility, exist a peculiar property, excluding the universal or the common use. Portions of the sea are prescribed for ; so are rivers flowing through contiguous states ; the banks on one side may have been first settled, by which the possession and property may have been acquired, or cessions may have taken place upon con- quests, or other events. But the general presumption certainly bears strongly against such exclusive rights, and the title is a matter to be established, on the part of those claiming under it, in the same man- ner as all other legal demands are to be substantiated, by clear and competent evidence." If the Tribunal please, without an assertion of any jurisdiction over bodies of water, other than a statement that the maritime limits extend 3 marine miles from shore, how is Great Britain going to establish, as against the people of the United States, a title to bodies of water known to geographers or to the people of the locality as bays? ARGUMENT OF CHARLES B. WARREN. 1053 Lord Stowell delivered another opinion bearing on this question, in 1805, in the case of the "Anna," reported in 5 Robinson's Ad- mirality Reports at p. 373 ; and reading from pp. 385 B and 385 c of that report, in delivering judgment Lord Stowell said : — " We all know that the rule of law on this subject is " — quoting the words of Bynkershoek, — " ' terrcB dominium finitur, ubi finitur armorum vis? and since the in- troduction of fire arms, that distance has usually been recognised to be about three miles from the shore." That establishes the identification, by the Admiralty courts of Great Britain, at that early date, of the cannon-shot rule with the 3-mile rule. I will not be compelled to read these cases again when I come to the consideration of the law applicable to this question, in order to establish that as far as Great Britain is concerned the cannon-shot rule has been identified with the 3-marine-mile rule. I desire also to call to the attention of the Tribunal a decision by Mr. Justice Story of the Supreme Court of the United States, whose reputation in America as an Admiralty judge is of the highest, and who, I believe, enjoys an enviable reputation in Great Britain and on the Continent as a judge in admiralty cases. The decision was delivered in 1812 in the case of the brig " Ann," reported in 1 Gallison's Reports at p. 62. And I wish first to state that the " Ann " was seized on the 12th January, 1808, although the decision wyas not delivered until 1812. In this decision Justice Story, stated at p. 63 of the report : — " All the writers upon public law agree that every nation has ex- clusive jurisdiction to the distance of a cannon shot, or marine league, over the waters adjacent to its shores; and this doctrine has been recognised by the Supreme Court of the United States. Indeed such waters are considered as a part of the territory of the sov- ereign." It is seen that in these negotiations of 1806 between these two Powers, in which the cannon-shot rule was identified with the 3-ma- rine-mile rule from shore, the rule of international law as laid down by the greatest Admiralty judge of England, and the rule shortly thereafter laid down by Mr. Justice Story in the United States, involving a seizure in 1808, was recognised. I will proceed with the consideration of the negotiations in 1806. 634 The Commissioners considered it expedient to make a special provision concerning the maritime jurisdiction of the two Powers on the coasts of their respective possessions in North America. It was agreed that the line of maritime jurisdiction, in case of one country being at war and the other being at peace, should extend 1054 NORTH ATLANTIC COAST FISHERIES ARBITRATION. "five marine miles from the shore belonging to the said neutral Power on the American seas." This provision for maritime jurisdiction of 5 marine miles, was recognised as an extension of the customary maritime jurisdiction, as is shown by article 19 of the treaty. By the terms of this article 19, it was agreed between the parties that the rule of international law thus recognised by the two Powers confined maritime jurisdiction to a cannon-shot from the shore, and the cannon-shot rule was, by the terms of the treaty, identified with the 3-mile rule, 'which was later inserted in the treaty of 1818. Later in the discussion of the negotiations leading up to the treaty of 1818, the fact will be referred to that the words "coast" and "shore" were used in this treaty of 1806 as synonymous; and I shall not have to call attention to that fact again. When that point is reached in the argument, the fact can be referred to without recurring to this treaty of 1806 again. This convention of 1806 between Great Britain and the United States was negotiated by Commissioners who were definitely in- structed by their respective Governments. Mr. Madison, subse- quently President of the United States, then Secretary of State, in a note to James Monroe, who was then Minister for the United States in Great Britain and one of the Commissioners for the United States and who was also later President of the United States stated, as will appear in the Appendix to the British Case on p. 58 : — "The time has been, indeed, when England not only claimed but exercised pretensions scarcely inferior to full sovereignty over the seas surrounding the British Isles, and even as far as Cape Finisterre to the south, and Van Staten in Norway to the north. It was a time, however, when reason had little share in determining the law, and the intercourse of nations, when power alone decided questions of rights, and when the ignorance and want of concert among other maritime countries facilitated such an usurpation. "The progress of civilisation and information has produced a change in all those respects ; and no principle in the code of public law is at present better established than the common freedom of the seas beyond a very limited distance from the territories washed by them. This distance is not, indeed, fixed with absolute precision. It is varied in a small degree by written authorities, and perhaps it may be reasonably varied in some degree by local peculiarities. But the greatest distance which would now be listened to anywhere would make a small proportion of the narrowest part of the narrowest seas in question." Mr. Madison was speaking of the narrow seas surrounding Eng- land, not of the narrow seas surrounding the British possessions on the North Atlantic. The term, I dare say, is perfectly familiar to the Tribunal, as it had a very definite meaning as regards the seas sur- rounding England. ARGUMENT OF CHARLES B. WARREN. 1055 Continuing the reading of the letter on p. 58 of the Appendix to the British Case : — " What are, in fact, the prerogatives claimed and exercised by Great Britain over these seas? If they were really a part of her domain her authority would be the same there as within her other domain. Foreign vessels would be subject to all the laws and regu- lations framed for them, as much as if they were within the har- bours or rivers of the country. Nothing of this sort is pretended. Nothing of this sort would be tolerated." And the Secretary of State, in an instruction to the American Commissioners, at the very beginning of the extract printed in the British Appendix on p. 60, stated : — " There remains, as an object of great importance, some adequate provision against the insults and injuries committed by British cruis- ers in the vicinity of our shores and harbours." And a little lower down on the same page : — " With this view, it is proper that all armed belligerent ships should be expressly and effectually restrained from making seizures or searches within a certain distance from our coasts, or taking stations near our harbours commodious for those purposes." The Secretary of State then submitted the article and sought to have it made a part of the treaty, which is cited in the British Case on p. 86, and concerning which considerable comment was made, although I must acknowledge that Sir Robert Finlay did state, before concluding his remarks regarding this proposal, that 635 probably the first portion of it was put forward with a view of negotiating, rather than as an expression of opinion. The proposed article is found on p. 60 of the Appendix to the British Case, and is as follows : — " It is agreed that all armed vessels belonging to either of the parties engaged in war, shall be effectually restrained by positive orders, and penal provisions, from seizing, searching, or otherwise interrupting or disturbing vessels to whomsoever belonging, whether outward or inward bound, within the harbours or the chambers formed by headlands, or anywhere at sea, within the distance of four leagues from the shore, or from a right line from one headland to another." It will be recalled again, that Great Britain was engaged in a prolonged war with France. The provisions of the Jay Treaty, as I have shown to the Tribunal, in so far as material to this Question, would expire by limitation in 1807; and the Government of the United States was seeking, against the armed vessels of Great Britain, as extended a sea-zone bordering its possessions as possible, in order to prevent the search of American vessels by the armed vessels of Great Britain, for the purpose of impressing sailors claimed to be deserters from the British Navy. 92909°— S. Doc. 870, 61-3, vol 10 11 1056 NORTH ATLANTIC COAST FISHEEIES ARBITRATION. The Secretary of State added this clause to the instructions, which is not set out in the Case of Great Britain, but which is found in the Appendix to the British Case on p. 60 : — " If the distance of four leagues cannot be obtained, any distance not less than one sea league may be substituted in the article. It will occur to you that the stipulation against the roving and hovering of armed ships on our coasts so as to endanger or alarm trading vessels, will acquire importance as the space entitled to immunity shall be narrowed." Lord Holland and Lord Auckland, who were, as I have stated, the Commissioners on behalf of Great Britain, antedating the signing of any treaty, requested an instruction from Lord Howick, the Minister of Foreign Affairs for Great Britain, to which I wish to call the at- tention of the Tribunal, and which was not even referred to in con- nection with the discussion of the treaty of 1806 by the counsel for Great Britain. This note has a most important bearing on these negotiations. It was addressed to Lord Howick, under date of 14th November, 1806, and appears on p. 61 of the Appendix to the British Case : — " In elucidation of the subject of our public despatch we beg leave to lay before you the following observations on the nature of the ex- tension of jurisdiction suggested by the American Commissioners, on the real value of such a concession compared with that which they seem to set upon it as well as the reasons which in our opinion induce them to urge it so strenuously. " The distance of a cannon shot from shore is as far as we have been able to ascertain the general limit of maritime jurisdiction and that distance is for the sake of convenience practically construed into three miles or a league." Now, if the Tribunal please, I have read the decisions of Lord Stowell, delivered in 1800, in 1801, and in 1805, in the High Court of Admiralty of England, in which that great jurist identified the can- not-shot rule with the 3-marine-mile rule; and I have read the deci- sion of Mr. Justice Story, of the Supreme Court of the United States, delivered in 1812, affecting a seizure made in 1808, in which he stated that the 3-mile rule was the rule of international law. These Commissioners went on to state to their Government, read- ing from p. 61 of the Appendix to the British Case : — "All independent nations possess such jurisdiction on their coasts and the right to it is not only generally contained in the acknowledg- ment of the independence of the United States, but seems to have been specifically alluded to in the 25th article or the treaty of 1794. Particular circumstances resulting from immemorial usage, geo- graphical position or stipulations of treaty have sometimes led to an extension of jurisdiction, and may therefore when applicable, be urged as a justification of such a pretension." ARGUMENT OF CHARLES B. WARREN. 1057 They refer, if the Tribunal please, to the attitude of the United States as a " pretension " ; that is, their desire for some protection over the bodies of water enclosed within the headlands. The note continues : — " The natural causes which should lead to such exceptions are vari- ously stated by authors and those urged by the American commis- sioners as applicable to their country are to be found occasionally among them. Thus, the remoteness of a country from the 636 jurisdiction of all others is acknowledged as diminishing the inconvenience of an extension of her own. The practice of some nations even at this day though not of great authority is founded on such a claim, and even the admitted jurisdiction over an inland sea seems to rest on reasoning nearly similar. Selden, who had however a strong bias in favour of extended jurisdictions argues from such a principle in favour of the maritime pretensions of Eng- land, and the claim of a division of the sovereignty of a sea lying between two Powers such as Great Britain and Spain has been as- serted and is still seriously maintained in our law books of authority. " The space between headlands is more generally laid down, and admitted by Grotius himself, as subject to the exclusive jurisdiction of the power to whom the land belongs. But neither in theory nor in practice do we find the distance between the headlands to which such a rule must exclusively apply accurately defined. James 1st by his royal proclamation dated 1st of March 1604, prohibiting hos- tilities between belligerent nations within his jurisdiction, stated headlands more than 90 miles distant one from another as forming bays necessarily dependent on and belonging to the adjoining terri- tory— but it is remarkable that the Spaniards who were one of the objects of this prohibition, considered the order as a relaxation not as an extension of his lawful jurisdiction over the seas. " The circumstances however on which the American commission- ers have chiefly relied is the shelving nature of their coast; and though from the east end of Long Island northwards it does not deserve such a description they allege that it is so broken with rocks as to oblige coasting vessels to keep at a considerable distance from the land. A shelving coast is urged as a reason for an extension of jurisdiction on the principle that a right over the neighbouring parts of the sea is not solely founded on power but on convenience for the protection of trade from the molestation of belligerent vessels; and an inference may be thence drawn in favour of an extension of juris- diction on a coast where the usual limits admit of little or no navi- gation. "Though such protection afforded to their coasters give them a local exemption from our right of impressment, it would diminish it is said, the odium attached to that practice among them in much greater degree than it would abridge the advantages resulting from it to us. For, one instance of vexation within sight of the shore excites more discontent than many of a similar nature which do not reach the country till the passions of the parties have in a great measure subsided. " Though claims of an extension of jurisdiction beyond the cannon shot of the three miles have been asserted and maintained in particular 1058 NORTH ATLANTIC COAST FISHEBIES ARBITRATION. instances by most maritime Powers and especially by ourselves and the Spaniards we meet with few instances of a recognition of such claims in treaties, probably owing to the unreasonable extent to which the respective honour of nations has been pledged to support them. The acquiescence in the right of fisheries at a considerable distance from the coast, sometimes at twenty leagues, and the submission to revenue laws, such as our hovering Acts, &c., might indeed be argued with some plausibility as a proof of the exception allowed by nations to the general limitation of maritime jurisdiction. " By our treaty of peace and commerce with Tripoli, concluded 19th of September 1751, it is stipulated that the vessels of Tripoli shall not cruise or look for prizes within sight of the island of Minorca or city of Gibraltar; and the same stipulation is introduced into our treaty with Tunis, of the 19th of October 1751, with this addition, that any prize taken by the ships of Tunis within ten miles of the aforesaid places shall be restored without any contradiction; and Spain in her treaty with Tripoli, of 1784, stipulated that the Tripoline corsairs should not capture vessels within ten leagues of her coast. " If your Lordship should deem it expedient on other grounds to concede any extension of jurisdiction to the United States beyond that which their independence necessarily implies, the American com- missioners have more than once assured us that they are ready in the article itself to acknowledge it as an exception to the general rule arising from the particular circumstances of their situation and peculiar nature of their coast. We shall also observe that their utmost expectation after our conversations on the subject, is two marine leagues. " The disadvantages of such a stipulation to us would be the ad- ditional protection of a league to our enemies and to our deserters in the American service, and a fear has also been expressed by a very intelligent sea officer, that the difficulty of ascertaining the distance would add to the frequency of the disputes. But without dwelling on the uncertainty of the criterion at present resorted to for ascertain- ing the distance, viz the depth of the water,' a reference to the cases which have occurred during this and the late war would amply prove that as far as the practice of our cruisers is concerned, the present limits of jurisdiction are no security against mistake or at least against litigation." Then they add, in the last paragraph — and this is most im- portant : — " We might on the other hand derive some little advantage from the claim it would justify of an extended jurisdiction and consequent protection of revenue and commerce on the coasts of our colonial possessions. But the chief benefit we could expect to derive from it is the conviction in the American public of our conciliatory disposi- tion towards them, an object which the language and conduct of Mr. Monroe and Mr. Pinkney have persuaded us that they and the Amer- ican Government have as much at heart as any of those which were the immediate causes of their mission. They are anxious to remove the causes which led to the misunderstanding between the two countries, but it is obvious that they are more anxious to prevent the ARGUMENT OP CHARLES B. WARREN. 1059 consequences of that misunderstanding. The ferment occasioned by it is considered by them as the chief obstacle to the adoption of a system more friendly to Great Britain, and in urging the extension of jurisdiction they evidently consider the effect on the public mind in America more than the intrinsic value of the acquisition." 637 Here, therefore, the British Commissioners have defined what they meant by extended jurisdiction. The jurisdiction acknowledged by the rule of international law was 3 marine miles from shore; but they thought that if the United States and Great Britain could agree upon an extended jurisdiction in a treaty, that Great Britain might derive some little advantage from the claim it would justify of an extended jurisdiction on the coasts of its colo- nial possessions in North America. JUDGE GRAY : You do not concede then, Mr. Warren, that in these documents generally, and in public writers where the jurisdiction of 3 miles from the coasts is spoken of, it refers — I say generally— to the maritime belt along the coast, as distinguished from the bays and harbours ? For instance, if you will pardon me, in the letter of Mr. Madison, No. 11, on p. 60 of the Appendix to the British Case, in the paragraph next to the last : — " It is agreed that all armed vessels belonging to either of the parties engaged in war, shall be effectually restrained by positive orders, and penal provisions, from seizing, searching, or otherwise interrupting or disturbing vessels to whomsoever belonging, whether outward or inward bound, within the harbours or the chambers formed by headlands, or anywhere at sea, within the distance of four leagues from the shore, or from a right line from one headland to another." MR. WARREN : In that respect, your Honour, I could not undertake to say what any particular writer means when he uses an expression, without having the book before me. But I will make this observa- tion, your Honour: that when Great Britain was called upon by Mr. Adams to define the extent of its maritime jurisdiction, in respect of these fisheries, as against the people of the United States, and stated that the extent was 3 marine miles from the shore, and made no claim to an extended jurisdiction over bodies of water known as bays, that Great Britain is precluded from now bringing forward the claim that these bays, creeks, or harbours are something quite apart from the ordinary maritime jurisdiction; and I most respectfully refer the Tribunal to the following authorities which hold generally to this doctrine, that within the maritime jurisdiction of a State is comprehended, not only the marginal belt or littoral sea over which the State exercises jurisdiction, or a right of sover- eignty, but as well its bays, creeks, and harbours. Wheaton, at section 177 of his work on the " Elements of Interna- tional Law ; " Dr. Oppenheim, at pp. 222 and 247 ; Sir Robert Philli- 1060 NORTH ATLANTIC COAST FISHERIES ARBITRATION. more, vol. 1, p. 284; Pitt Cobbett, 3rd edition, p. 143; Calvo, section 365, p. 498; Kliiber, section 130; G. F. de Martens, section 153, p. 399; Halleck, vol. 1, p. 167; Ferguson, vol. 1, p. 399; Creasy, p. 232; Taylor — Hannis Taylor, — section 217, p. 263, and section 228, p. 277. I am not giving the titles of these works, because the Tribunal is familiar with them. Bonfils, section 516; de Cussy. section 40, p. 96; Funck-Brentano and Sorel, p. 375. I do not believe this last authority has been before the Tribunal. They were professors at the University of Paris and were writers on this sub- ject. H. B. Oppenheim, p. 128. I respectfully refer the Tribunal to these authorities, in answer to the question put to me. JUDGE GRAY: You do not understand me, of course, as expressing any opinion? I was merely asking you whether, when the docu- ments to which you refer speak of the 3-mile limit, or when the au- thors to which you refer speak of the cannon-shot, which is synony- mous therewith, as the limit of territorial jurisdiction, they are not generally speaking of coasts. You say you think not. You think they refer, as well, to the bays. I am willing to take your answer. MR. WARREN: I would like to make myself a little clearer, your Honour, — not simply to answer the question, but to clear the point, which, of course, is important to this discussion. The only complaint that was made by Great Britain against the people of the United States was of fishing in the waters close upon the shore and in the creeks, and of landing to dry and cure. Then Lord Bathurst stated that the extent of the territorial jurisdiction of Great Britain was 1 marine league from the shore. Now, I respect- fully submit that the " shore " is a definite thing, and that when any one uses the term " shore " the shore line is intended, and that, if Great Britain desired to bring into the discussion any claim of ex- tended jurisdiction over bodies of water marked on maps or known to anybody as bays, Lord Bathurst, or some one else, in behalf of Great Britain, should have brought forward such a claim, in 638 order that it might have been promptly resisted, as it would have been, by the United States, and as it was resisted in 1783. JUDGE GRAY: As to Lord Bathurst, then, you contend that the context of his communication shows that his particular reference to a 3-mile limit included the bays. I understand. MR. WARREN: Exactly, your Honour. THE PRESIDENT: Of course there are others who are of a different opinion, but if I understand you aright, Sir, those writers whom you have been citing just now, make no distinction as to the belt on the open coast and the shores of the bays; so that also in bays, only the waters in the 3-mile zone are considered as territorial waters, and V ARGUMENT OF CHARLES B. WARREN. 1061 waters outside of the 3-mile zone in bays are to be considered non- territorial waters? MR. WARREN : Mr. President, I will read from Dr. Oppenheim's recent work. He is Professor of International Law in an English University, and is a writer of authority and reputation, as we all know. THE PRESIDENT: Yes. MR. WARREN : He says, at p. 222, which is one of the passages cited by me, in paragraph 172: — " To the territory of a State belong not only the land within the State boundaries, but also the so-called territorial waters. They con- sist of the rivers, canals, and lakes which water the land, and, in the case of a State with a seacoast, of the maritime belt and certain gulfs, bays, and straits of the sea." JUDGE GRAY: I do not understand that. Are you citing that in support of your position ? MR. WARREN: Yes, your Honour. That refers to the territorial waters, as including the maritime belt and bays. JUDGE GRAY : Will you read it again, please ? MR. WARREN: Certainly. When the maritime jurisdiction of a State is referred to, there is included as a matter of law all those waters mentioned in that passage which I just read. SIR CHARLES FITZPATRICK: Mr. Warren, I understood your argu- ment to be that it appeared from the correspondence exchanged be- tween the parties that coast and shore were used as convertible terms, that shore means the sinuosities of the coast, and therefore where the words " coast " and " shore " are used in the treaty, by reason of their use in the negotiations you say they are still used as convertible terms. That, I think, was the general result of your argument ? MR. WARREN: If you will permit me to go back a little, Sir Charles, in answering that question: I was talking of the treaty of 1806, and the use' of the word " coast " and " shore " in the treaty of 1806, and not of the correspondence exchanged between the parties. SIR CHARLES FITZPATRICK : Oh ! I thought you were. MR. WARREN: When I made that comment, I was then directing my remarks entirely to articles 12 and 19 of the treaty of 1806. SIR CHARLES FITZPATRICK: Yes. I thought you had referred to the correspondence exchanged previous to that time, and that the treaty of 1806 was referred to in connection with the treaty of 1818, as something that would explain those terms in that treaty. MR. WARREN: If you recollect, Sir Charles, there was no corre- spondence between the parties prior to 1806 about this question, be- cause between 1783 and 1812, the United States vessels had the right under the treaty of 1783 to fish in all the waters. 1062 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR CHARLES FITZPATRICK: I apologize. I thought you referred to that letter of the 5th January, 1804, from Mr. Madison to Mr. Monroe, in that sense. MR. WARREN : I should like to add one thing to my answer to your question, Sir Charles, before proceeding. My object in re- 639 f erring to the use of the words " coast " and " shore " as synony- mous in the treaty of 1806 was for the purpose of using that fact in connection with the correspondence to which I shall refer later. SIR CHARLES FITZPATRICK : That is what I understood. MR. WARREN : And not as bearing upon any correspondence before 1806 ; because there was no correspondence between the two Govern- ments on this subject of the fisheries before 1806 after 1783. The American Commissioners, under date the llth November, 1806, in a communication to be found on p. 95 of the Appendix to the Counter-Case of the United States, advised the Secretary of State : — " We shall meet the British Commissioners to-morrow to proceed in the negotiation, which we are persuaded it will not require any considerable length of time to conclude." And passing over some twelve or fifteen lines, they stated : — " They will agree also to acknowledge our jurisdiction to the extent of a league from our coast ; we have claimed that acknowledgment to the extent of three leagues." That shows, if the Tribunal please, the attitude of Great Britain toward these early desires or ambitions of the Government of the United States. It will be recalled that Washington was not inaugurated as Presi- dent until 1789, and that in 1793 his first term ended and his second term began; and that the United States was in a position where, above all, it desired to protect itself against further wars with the Powers, then so seriously involved in their own difficulties. The problem before the United States was its own internal development. THE PRESIDENT: Did this correspondence, Sir, concerning the juris- diction of Great Britain and of the United States, refer to the fish- eries? I mean this correspondence in 1806, and at that time? MR. WARREN: No, Mr. President. This negotiation concerned a convention to replace certain provisions of the Jay Treaty of 1794, which were to expire in 1807. The distinguished counsel for Great Britain claimed that article 25 of the Jay treaty was broad enough to cover all bodies of water that might be designated geographically as bays; and I am about to show that the Government of Great Britain in 1806, and ever afterwards, refused to permit the United States an extended, jurisdiction over waters, merely because desig- nated bays, on its shores, and did not claim an extended jurisdiction over such waters on their own shores in the North Atlantic. ARGUMENT OF CHARLES B. WARREN. 1063 THE PRESIDENT : And the principal object, I believe, was the stop- ping of vessels for impressment? MR. WARREN : No, Mr. President, if you will pardon me. The prin- cipal object was to negotiate an entire treaty to replace the provisions of the Jay Treaty, about to expire ; and the instructions to the Com- missioners for the United States were to negotiate a treaty of amity, commerce, and navigation between the United States and Great Britain. The matter of impressment, Mr. President, was, of course, an important matter, and led the Secretary of State, without submit- ting the treaty to the Senate of the United States at all, to reject — as representing the President of the United States — the proposed treaty, upon the ground that no special provision had been incorporated in the treaty regarding impressment. The subject of impressment was not covered in the proposed treaty as signed by the Commissioners. The Secretary of State wrote the Commissioners, as appears on p. 100 of the Appendix to the Counter-Case of the United States — " without a provision against impressments, substantially such as is contemplated in your original instructions, no treaty is to be con- cluded." Of course, Mr. President, the United States was looking for a provision regarding impressments, because it saw the difficulty loom- ing large; and the statesmen of the time were very wise, because the war of 1812 did at length arise out of the failure to adjust that question in 1806 — that is, the question of the right of impressment. On the 31st December, 1806, a convention was concluded between the Commissioners, and on the 3rd day of January, 1807, the Pleni- potentiaries on behalf of the United States transmitted the 640 convention to the Secretary of "State, and in commenting on the 12th article, they advised the Secretary of State to the following effect — as appears on p. 96 of the Appendix to the Counter- Case of the United States : — " The twelfth article establishes the maritime jurisdiction of the United States to the distance of five marine miles from their coast, in favor of their own vessels and the unarmed vessels of all other Powers who may acknowledge the same limit." That shows that the negotiation was not confined to armed vessels. " This government [Great Britain] contended that three marine miles was the greatest extent to which the pretension could be carried by the law of nations, and resisted, at the instance of the Admiralty and the law officers of the Crown, in Doctors' Commons, the concession, which was supposed to be made by this arrangement, with great earnestness. The ministry seemed to view our claim in the light of an innovation of dangerous tendency, whose admission, especially at the present time, might be deemed an act unworthy of the Govern- ment. The outrages lately committed on our coast, which made some provision of the kind necessary as a useful lesson to the commanders 1064 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of their squadrons, and a reparation for the insults offered to our Government, increased the difficulty of obtaining any accommodation whatever. The British commissioners did not fail to represent that which is contained in this article, as a strong proof of a conciliating disposition in their Government towards the Government and the peo- ple of the United States. The limit established was not so extensive as that which we had contended for, and expected to have obtained ; we persuade ourselves, however, that the great object wrhich was con- templated by any arrangement of the subject, will result from that which has been made. The article in the treaty, in connexion with the causes which produced it, forms an interesting occurrence in the history of our country, which cannot fail to produce the most salu- tary consequences. It is fair to presume, that the sentiment of re- spect which Great Britain has shown by this measure for the United States, will be felt and observed in future by her squadrons in their conduct on our coast, and in our bays and harbors." Now, if the Tribunal please, the Jay Treaty of 1794 is claimed to have contained a provision which was broad enough to have included all the bays on the coast of the United States ; and without reverting to whether or not that is true, for the material provisions I have shown were to cease to be of any effect in 1807, I wish to call the at- tention of the Tribunal to this statement of the American Commis- sioners— " will be felt and observed in future by her squadrons in their conduct on our coast, and in our bays and harbors." The treaty is printed in full, and it will be searched in vain for any clause providing for an extended jurisdiction over bays as such. Therefore, so far as any jurisdiction over bays was provided for by the treaty of 1806, it was by reason of the fact that they were in- cluded within the limits of 5 marine miles from the shore. And that is the more certain for the reason that in the instructions to the American Commissioners, a special provision was sought to protect the coast of the United States waters enclosed by headlands ; and for the reason that reference was made in the instructions them- selves to lines drawn between headlands; and, finally, because the Government of Great Britain knew that these instructions included that provision, for in the letter written by Lord Holland and Lord Auckland to Lord Howick, found on p. 61 of the Appendix to the British Case, on which I have commented at length, they particularly referred to the fact that such a provision was sought. Now, when these British Commissioners asked for an expression from Lord Howick, at the head of the Foreign Office of Great Britain, on the subject, Lord Howick must have reported that it would not be per- mitted, for it is recorded in the history of these negotiations, on p. 96 of the Appendix to the Counter-Case of the United States, that Great Britain — ARGUMENT OF CHARLES B. WARREN. 1065 " contended that three marine miles was the greatest extent to which the pretension could be carried by the law of nations and resisted, at the instance of the Admiralty and the law officers of the Crown, in Doctors' Commons, the concession, which was supposed to be made by this arrangement, with great earnestness." This Tribunal is without the instructions of Lord Howick. Why are not the instructions from Lord Howick to the British Commis- sioners made a part of the documents submitted here? Where is the instruction of the British Government in answer to that letter asking for specific instructions ? Is it to be presumed, in the absence of that instruction, that there is anything helpful in it to the contention of' Great Britain before this Tribunal ? Or is it to be presumed, in the absence of that instruction, that there is something in it helpful to the position of the United States? In any event, the instruction is solely within the control of the Government of Great 641 Britain, and we do not find it before this Tribunal, and the ordinary rules of evidence permit certain conclusions to be drawn from the fact of its being withheld. On the 3rd February, 1807, the Secretary of State for the United States, prior to the receipt by him of the treaty, which was not signed until the 31st December, 1806, it will be recalled, replying to notes from the American Commissioners, observed, as appears on p. 98 of the Appendix to the Counter-Case of the United States : — " It is hoped, at least, that within the extent of one league you will be able to obtain an effectual prohibition of British ships of war from repeating the irregularities which have so much vexed our commerce and provoked the public resentment, and against which an article in your instructions emphatically provides. It cannot be too earnestly pressed on the British Government, that in applying the remedy copied from regulations heretofore enforced against a viola- tion 01 the neutral rights of British harbors and coasts, nothing more will be done than what is essential to the preservation of harmony between the two nations. In no case is the temptation or the facility greater to ships of war for annoying our commerce, than in their hovering on our coasts and about our harbors; nor is the national sensibility in any case more justly or more highly excited," etc. It is manifest that the Secretary of State was seeking a special provision for the protection of what he called the harbours of the United States, and it is equally apparent, that when the treaty was entered into, the only provision that was incorporated in the treaty was that the maritime jurisdiction of each nation on the American Continent should extend 5 marine miles from the shore; and that no exception was made for bays or harbours. As I have stated, after the receipt of the treaty, Mr. Madison in- structed the American Commissioners that it was unsatisfactory without the provision regarding impressment; and in returning the 1066 NORTH ATLANTIC COAST FISHEEIES ARBITRATION. treaty, with a view of having negotiations continued, Mr. Madison instructed the Commissioners in the terms found on p. 100 of the United States Counter-Case Appendix:— " Should all the other belligerent nations, contrary to probability, concur in the addition of two miles to our jurisdiction, this construc- tion would still ^>e applicable to their armed ships; those unarmed alone being within the additional immunity against British cruisers ; and the armed as well as the unarmed ships of Great Britain being expressly within the additional responsibility of the United States." And, as to article 12, the Commissioners were instructed : — " It is much regretted that a provision could not be obtained against the practice of British cruisers, in hovering and taking stations for the purpose of surprising the trade going in and out of our har- bours; " etc. And the Secretary of State added, at the end of the instruction : — " To secure the advantage promised by this article, the right of search ought to be suppressed altogether, the additional space enjoy- ing in this respect the same immunity as is allowed to the marine league. To this object the President wishes your endeavors to be directed." If it please the Tribunal, Mr. Madison is writing there about the right of search in harbours — what he calls harbours — and he is seek- ing the incorporation of a special provision in the treaty to protect harbours. And after the express instruction of the British Govern- ment— the only concession that the British Commissioners would allow to be incorporated — was an extension of 2 marine miles beyond the range of cannon-shot from the shore, that is, 5 marine miles from shore. Afterward, Mr. Monroe, who was one of the Commissioners, it will l?e recalled, and who, as I probably have already stated, was subse- quently President of the United States, wrote to Mr. Madison a note regarding these articles 12 and 19 of the proposed treaty which appears in the Appendix to the United States Counter-Case, on p. 102:— " It is the sole object of the twelfth article to secure to the United States an accommodation, by extending their jurisdiction on their coast, in what concerns themselves, from three to five miles. The stipulation is unconditional as to them, but conditional as to other Powers, dependent on their acknowledging the same limit. It is made reciprocal, by being extended to the British Dominions north- ward of the United States; a circumstance which merits attention, as it precludes the idea that any other equivalent was expected or in- tended to be given for it." I wish to bring to the attention of the Tribunal the fact that that statement of Mr. Monroe's, " by being extended to the British domin- ARGUMENT OF CHARLES B. WARREN. 1067 ions northward of the United States," was not a conclusion of G42 Mr. Monroe's, but was a statement of a provision of the treaty, because the treaty applied to the dominions of both countries in North America. And on p. 103 of the Appendix to the United States Counter-Case, Mr. Monroe continues — " The difficulty to obtain the accommodation which was yielded in the twelfth article was extreme. We labored most earnestly to extend it to other Powers without their consenting to reciprocate it in favor of Great Britain, but that could not be accomplished. The British com- missioners urged that as Great Britain predominated at sea, and must lose by the concession in any form, it would be unjust for her to make the concession in their favour, unless they would allow her the ad- vantage of it. Finding that it was impossible to extend the addi- tional limit to other Powers on other terms, we thought it advisable to adopt the arrangement in respect to them conditionally, putting it in their power to accept or reject it as they thought fit. We flat- tered ourselves that as they could not lose by it, they would not refuse their assent to an arrangement by which they might gain, especially as it would prove advantageous to a friendly Power. We deemed it highly important to establish the additional limit in favour of the United States, from the advantage it might afford to their commerce within it, and from the effect which the measure seemed likely to pro- duce on the future conduct of the British squadrons on our coast, by whom it could not fail to be considered as a severe censure on the past." As the hour of half after four has arrived, I shall suspend my argument for to-day in accordance with the suggestion of the Tri- bunal, as I haA'e already exceeded the usual limit of the session. THE PRESIDENT : For the purpose of facilitating and of shortening the discussions, I should, on behalf of the Court, ask the counsel of both parties to tell us whether they understand the position of Great Britain to be that, under the renunciation clause of the treaty of 1818, United States fishermen have renounced the right to enter bays that are non-territorial as well as those that are territorial; that is to say, bays in the geographical sense of the word, without referring to their territoriality. It will be quite sufficient for us to have the answer to this ques- tion from both sides to-morrow, at the beginning of our session to- morrow, at ten o'clock. [Thereupon, at 4.30 o'clock P. M., the Tribunal adjourned until to-morrow, Friday, July 8, 1910, at 10 o'clock A. M.] 1068 NORTH ATLANTIC COAST FISHERIES ARBITRATION. TWENTY-FIRST DAY: FRIDAY, JULY 8, 1910. The Tribunal met at 10 o'clock A. M. SENATOR ROOT: The Tribunal propounded a question yesterday which was in form addressed to counsel both of Great Britain and of the United States. And as the question related to the then under- standing of the respective counsel as to the position of Great Britain, I think perhaps it would be appropriate for the counsel of the United States to answer the question first, because what Great Britain may say in answer to the question may possibly have the effect of modify- ing the views as to their position which we entertain. And I will ask leave of the Tribunal now to read the statement of the view of counsel for the United States upon the question put by the Tribunal, if it is the pleasure of the Tribunal? THE PRESIDENT : Yes, Sir. SENATOR ROOT: The counsel of the United States have the honour to answer the question asked by the President, in behalf of the Tribunal, on the 7th July, as follows: — They understand the position of Great Britain to be that, under the renunciation clause of the treaty of 1818, the United States has renounced the right to have its inhabitants take fish in bays, in the geographical sense of the word, without referring to their terri- toriality, as stated — 1. In the British Case, p. 83 : — " His Majesty's Government contend that the negotiators of the treaty meant by ' bays,' all those waters which, at the time, everyone knew as bays." 643 2. In the British Case, p. 103 :— " His Majesty's Government contends that the term * bays ' as used in the renunciation clause of article one, includes all tracts of water on the non-treaty coasts which were known under the name of bays in 1818, and that the 3 marine miles must be measured from a line drawn between the headlands of those waters." 3. In the British Case, p. 104 :— "The negotiators of the convention were dealing, therefore, with tracts of water on the shores of His Majesty's dominions which were known to everyone under the name of ' bays ' — tracts of varying size and of varying conformation, some with greater and some with less width between their headlands, ranging from inclosures of consider- able extent to inlets of small size. They used the term ' bays ' with- out any qualification whatever, and the inference is irresistible, as His Majesty's Government submits, that the term was intended to ap- ply to all the waters on those shores which were known to the nego- tiators and to the public, and wTere marked on the maps at the time, as ' bays.' If it had been intended that the term should apply only to a limited class of the waters which were then called ' bays,' an express limitation would have been inserted to give effect to that intention." ARGUMENT OP CHARLES B. WARREN. 1069 4. In the British Counter-Case, p. 43 : — " There is no qualification of any kind in regard to bays, and the necessary conclusion is that the treaty meant what it said and ap- plied to all those tracts of water on the British American coasts which were known as bays at the date of the treaty." 5. In the British Argument, p. 92 : — " It has been suggested that the natural meaning of the term ' bays ' may be limited by the words which follow, namely, ' Of His Britan- nic Majesty's dominions in America.' Great Britain contends that these words are merely descriptive of the locality of the bays, and that they have no other significance. In the Counter Case of the United States the attitude of Great Britain on this point has been misunderstood. It is there stated that ' the British Case is based on the assumption that the words "bays, creeks or harbours of His Britannic Majesty's Dominions in America," as used in the renuncia- tory clause of the treaty, were intended to be descriptive of terri- torial waters of Great Britain,' and an argument is thereupon formu- lated on that issue. This is a misapprehension. The contention of His Majesty's Government is stated quite clearly in the British Case, and has been stated in the same way on many occasions during the last seventy years. It is that the treaty relates to all bays on the British coasts. In that view no question can arise as to terri- torial jurisdiction: the words of the article are read in their natural sense as referring to all the tracts of water known as bays on the coasts of the British dominions in North America." THE ATTORNE Y- GENERAL : I will just add to the extract that my learned friend, Mr. Hoot, has read the last sentence of that passage on p. 92 of the British Argument. It follows on :— " It is abundantly clear that all the bays on these coasts were within British jurisdiction, but, in the view of His Majesty's Govern- ment presents, the question is not material." I think I may add to that passage the answer to the question that the learned President put in very simple and concise terms. It is that Great Britain, while contending that the bays in question (referred to by the President) are in fact territorial, says also that the United States, by the terms of the treaty, have renounced for their fishermen the right to enter these bays, except for the purposes mentioned in the treaty itself — whether apart from the treaty these bays be territorial or be not territorial. We say they are territorial, but we say that, in view of the terms of the treaty of 1818, which contain an express renunciation, their territoriality is immaterial so far as this Tribunal is concerned. THE PRESIDENT : Now, Mr. Warren, please continue your argument. MR. WARREN : Mr. President, immediately preceding the adjourn- ment at the last session I had shown that the provisions of the Jay Treaty of 1794 relative to the questions now being considered would 1070 NORTH ATLANTIC COAST FISHERIES ARBITRATION. expire in October 1807, and that there was no extension of jurisdic- tion by treaty in 1806. It had also appeared that the negotiations betwen the two Powers disclosed that the extent of maritime jurisdiction recognised by Great Britain, in the absence of treaty stipulations or long-continued usage and acquiescence therein, was 3 marine miles from the shore. The negotiations for the treaty of 1806 also disclosed that 644 there was no recognition of exclusive maritime jurisdiction over large bodies of water adjacent to the coasts of either Power, whenever called bays, and that any special provision, outside of the general clause fixing the extent of maritime jurisdiction, for the protection of harbours or chambers within headlands sought by the United States, was resisted by the Commissioners on behalf of Great Britain, under the terms of an instruction which is not in evidence, and is not produced in behalf of Great Britain. The vexatious question of impressment remained unsettled, and, unhappily, provoked the war of 1812. I shall now pass on to the war of 1812, and to the consideration of the effect of the negotiations for peace, following that war, upon the differences recited in the preamble to the treaty of 1818, and sought to be composed by that treaty. The posture of affairs between the United States and Great Britain induced the Congress of the United States to declare war in June 1812. The fortunes of war in that contest between the two Powers rested now with one side and now with the other; but in August 1814, Commissioners met at Ghent for the negotiation of terms of peace. The protocols of the conferences between the Commissioners will be found in extenso in the Appendix to the Case of the United States, beginning with p. 242 and ending on p. 256. And the final report of the American Plenipotentiaries to the Secretary of State immediately follows the protocols of the conferences, commencing at the bottom of p. 256 and continuing to p. 259 of the same Appendix. If the Tribunal please, I am pressing on to conclude within reason- able limits this argument, and I am not going to detain the Tribunal with reading the protocols of those negotiations. It is quite unneces- sary to go into detail as to that negotiation, the results of which, after all, can be stated in a very few words. The American Commissioners were instructed that the right to the fisheries was not to be brought into discussion. This appears at the top of p. 242 of the Appendix to the Case of the United States, where Mr. Monroe says : — " These rights must not be brought into discussion. If insisted on, your negotiations will cease." ABGUMENT OF CHARLES B. WARREN. 1071 The Tribunal is entirely familiar with the fact that Great Britain claimed that the second clause of article 3 of the treaty of 1783 was abrogated by the war of 1812, and that the United States claimed the right to enjoy all the privileges recognised by article 3 of the treaty of 1783. At the first conference of the Commissioners at Ghent, the proceed- ings of which are recorded in the Appendix to the Case of the United States, on p. 242, this statement was made: — "The British commissioners requested information whether the American commissioners were instructed to enter into negotiation on the above points. But before they desired any answer, they felt it right to communicate the intentions of their Government as to the North American fisheries, viz. : that the British Government did not intend to grant to the United States gratuitously the privileges for- merly granted by treaty to them of fishing within the limits of the British sovereignty, and of using the shores of the British territories for purposes connected with the fisheries." As I have stated, it is quite unnecessary for me to go through these protocols. The result was that the Plenipotentiaries of both Powers expressed their willingness to omit any article referring to the fish- eries, or to the navigation of the Mississippi by the subjects of Great Britain; the right of the subjects of Great Britain to navigate this river having been denied by the United States, and having been brought into the discussion. I shall depart from the direct course of my argument a moment to remind the Tribunal of the fact that there was an evident belief at the time of the making of the treaty of 1783 that the boundary fixed between the dominions of the United States and Great Britain gave British subjects access to the Mississippi River, and to the additional fact that when the boundary line was extended, it was found that the Mississippi River did not rise, and was not accessible in the territory of Great Britain. This brought the Mississippi River into the dis- cussion at the conferences in 1814. The British Plenipotentiaries, in a note dated the 22nd December, 1814, to be found in the Appendix to the Case of the United States, on p. 256, stated to the American Commissioners: — " The undersigned, returning to the declaration made by them at the conference of the 8th of August, that the privileges of fish- 645 ing within the limits of the British sovereignty, and of using the British territories for purposes connected with the fish- eries, were what Great Britain did not intend to grant without equiva- lent, are not desirous of introducing any article upon the subject. " With a view of removing what they consider as the only objec- tion to the immediate conclusion of the treaty, the undersigned agree to adopt the proposal made by the American plenipotentiaries at the conference of the 1st instant, and repeated in their last note, of omitting the 8th article altogether." 92909°— S. Doc. 870, 61-3, vol 10 12 1072 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The 8th article was among those articles proposed, and was the article concerning the Mississippi and the fisheries. This note shows that the British Plenipotentiaries expressed a willingness, which the American Plenipotentiaries had already ex- pressed, of omitting altogether the 8th article, which referred to the subject of the fisheries. The negotiations on this subject were accordingly at an end, and no reference was made in the treaty subsequently signed to the right of British subjects to navigate the Mississippi or to the right of the people of the United States in the fisheries, as appears, of course, by the treaty itself, which is among the documents here submitted. The treaty was signed on the 24th December, 1814. In the report of the American Plenipotentiaries to the Secretary of State, under date the 25th December, 1814, which will be found on p. 256 of the Appendix to the United States Case, the reasons were set forth at length for their refusal to agree to any article referring to future negotiations, the access to and navigation of the Mississippi, and the right of the people of the United States to fish within the exclusive British jurisdiction. In this same report the Commissioners for the United States re- ported the grounds upon which they had declined to bring into the discussion the right of the inhabitants of the United States to the fisheries — quoting from their report — " within the exclusive British jurisdiction." I respectfully refer the Tribunal to this report, which I have already cited, and only care now to refer to the fact that the discus- sion concerned alone the liberty of the inhabitants of the United States to fish " within the exclusive British jurisdiction." I shall now take up, before passing to the consideration of the nego- tiations leading to the treaty of 1818, certain arguments advanced by counsel in opening this submission in behalf of Great Britain, drawn from data in the Appendix to the British Case largely, and in some instances from data included in the Appendix to the Case of the United States. On p. 29 of the report of Sir Robert Finlay's Argument he stated : — " If the Court will turn to p. 125 of the United States Argument, there will be found a very sweeping statement which, if supported, would go some way to help the case made. The passage begins at the top of page 125, and it runs down to near the foot of the page : — " ' Before the consideration of the negotiations in 1818 to compose the ' differences ' between the two nations, it is important to review the diplomatic history of the two powers, which is material to this Question, between the termination of the War for Independence in 1783, and the commencement of negotiations leading to the treaty of 1818, for the purpose of ascertaining how precise an understanding had actually been reached as to the limits of ' the exclusive British jurisdiction,' or ' the limits of the British sovereignty,' over the waters ARGUMENT OP CHARLES B. WARREN. 1073 adjacent to the shores of His Majesty's possessions in North America. These terms were used in the negotiations leading to the treaty of 1818 with such definite meaning as to preclude any conclusion except that a perfect and complete understanding existed between the two Governments as to their exact meaning. " ' This review becomes the more important because of the erro- neous conclusions in the Case of Great Britain drawn from incom- plete data as to the extent of the * maritime limits ' in respect of the fisheries in 1818. " ' A careful reading and consideration of these prior negotiations between the two Governments regarding the extent of maritime juris- diction discloses that before the Treaty of Ghent '- " That was the treaty of peace in 1814 — " ' and antedating any discussion of the modification of the liberty of the people of the United States by reason of the War of 1812, it was well understood by the United States that Great Britain's claim of sovereignty over adjacent waters, or the territorial sea, in the North Atlantic was limited to three marine miles from the shores, compre- hending only the bays and creeks therein contained.' " I will venture to say, sir, that that statement is not supported by any of the documents." 646 On p. 124 of the printed Argument of the United States are two paragraphs which were not read by the distinguished counsel for Great Britain. They are as follows : — " When Lord Bathurst and Mr. Adams, Lord Castlereagh and Mr. Adams, Mr. Bagot, Mr. Monroe, and Mr. Rush as acting Secretary of State, and subsequently the negotiators of the treaty of 1818, used the terms 'territorial jurisdiction,' 'exclusive jurisdiction of Great Britain,' ' maritime limits,' ' within the British limits,' ' within the limits of the British Sovereignty,' and 'His Britannic Majesty's Dominions in America,' they referred to a jurisdiction over the terri- torial sea extending only three marine miles from the shores of His Majesty's possessions in North America, and comprehending only bays, creeks, and harbors found therein. " Lord Bathurst and Mr. Adams had, without controversy, under- stood that the territorial jurisdiction extended a marine league from the shore, within which lay the creeks and waters close upon the shores denied to the fishing vessels of the United States, as clearly disclosed by the notes, which, placed subsequently in the hands of the negotiators in 1818, became the basis of the negotiations and virtually the measure of their respective powers." And on p. 137 of the printed Argument of the United States, after the notes which had passed between Mr. Adams and Lord Bathurst had been reviewed, and attention had been drawn to the statement of Lord Bathurst that the British Government did not intend to inter- rupt the fishing-vessels of the United States thereafter in the liberty of fishing, without the territorial jurisdiction, 1 marine league from the shore of all the British territories in North America, the state- ment is made : — " Here was a formal, definite, and distinct understanding between these representatives of the two powers as to what constituted 'the 1074 NORTH ATLANTIC COAST FISHERIES ARBITRATION. limits of the British sovereignty,' or 'His Britannic Majesty's Do- minions in America;' and throughout the negotiations thereafter, it was ever in the minds of the representatives of both powers that the 'British jurisdiction' in America or 'His Majesty's Dominion' was without question acknowledged to be limited, in respect of the fish- eries, to one marine league from the shores of the British possessions in North America, within which lay the bays, creeks, harbors, and waters close upon the shores now denied to the vessels of the United States. This admission of the limitation of British jurisdiction nec- essarily implied that beyond such limit no right to exercise sover- eignty was claimed as againt the rights and liberty of the people of the United States in respect of the fisheries." The negotiations resulting in the unratified treaty of 1806 have been reviewed with considerable detail, and it plainly appears that the Commissioners on behalf of Great Britain stated, in a note to their Government printed in the British Appendix at p. 61 : — " The distance of a cannon shot from shore is as far as we have been able to ascertain the general limit of maritime jurisdiction and that distance is for the sake of convenience practically construed into three miles or a league:" And it also appears from those negotiations that while there was a desire on the part of the United States to make some broad pro- vision for the waters between headlands, that the result of the nego- tiations was, I submit, that no such provision was inserted in the treaty, because of the resistance of Great Britain to the incorporation of such a stipulation in the treaty. The negotiations following the war of 1812 have just been reviewed, and it appears that the sole demand made in behalf of the Govern- ment of Great Britain was that thereafter, because of the war of 1812, the inhabitants of the United States should not be entitled, with- out an equivalent, to fish or dry and cure fish " within the limits of the British sovereignty." Counsel for Great Britain relies to prove that the statement in the American Argument which was read, but was not connected with the other extracts which I have just read, was without any evidence to support it — counsel for Great Britain relies I say on various treaties, notes, and documents to be found in both Cases submitted to this Tribunal, to establish that both the United States and Great Britain were making broad claims to exclusive jurisdiction over the high seas; so as to preclude the conclusion that the negotiators of the treaty of 1818 understood that the extent of Great Britain's claim to exclusive jurisdiction comprehended only the waters lying within the 3-mile limit. There is an evident attempt to avoid the necessity of proving the assertion of jurisdiction over bays in the Case, Counter-Case and Ar- gument of Great Britain, and counsel relies in oral argument, instead of proving an assertion of jurisdiction over bays, upon certain evi- ARGUMENT OF CHARLES B. WARREN. 1075 dence which it is evidently hoped will be accepted in lieu of the com- plete failure to establish any assertion of jurisdiction over these great bodies of water, and the acquiescence in any assertion of jurisdiction by the United States. 647 These treaties, documents and notes, relied upon by the counsel for Great Britain, were : — First, the Treaty of Utrecht, of 1713 ; Second, the treaty between Great Britain, France and Spain, of 1763; Third, the treaty of 1794 between the United States and Great Britain; Fourth, the note of Mr. Jefferson, when Secretary of State of the United States, to the Minister for France in the United States, in 1793 regarding Delaware Bay ; Fifth, the note from Mr. Jefferson to M. Genet, Minister for France in the United States, in 1793, and the similar note from Mr. Jefferson to the Minister for Great Britain in the United States, re- garding the extent of maritime jurisdiction asserted by the United States ; Sixth, the note from Mr. Jefferson, when President of the United States, in 1804, to the Secretary of the Treasury of the United States; Seventh, the treaty between the United States and Great Britain of the loth June, 1846, for the settlement of the Oregon boundary ; Eighth, the position of the United States before the Alaska Boun- dary Tribunal ; and Ninth, extracts from the memoirs of John Quincy Adams and from the correspondence between Mr. Adams and Jonathan Russell in 1822, arising in a political controversy and the separate report of Mr. Russell to the Secretary of State, which, though dated in 1815, was not made public until 1822, as appears from the correspondence. Taking up this data in the order in which I have stated it, I proceed : — First to the Treaty of Utrecht, which is printed in the British Appendix, on pp. 6 and 7. The Tribunal is now familiar with the provisions of this treaty and will recall that by its terms the subjects of France were to be excluded from fishing off certain of the coasts of Nova Scotia within 30 leagues thereof. For the purpose of shortening the discussion, the treaty of 1763 be- tween Great Britain, France and Spain, will be considered with the treaty of 1713. It will be recalled that by this treaty, Great Britain consented to leave to the subjects of France the right of fishing in the Gulf of St. Lawrence, on condition that the subjects of France did not exer- cise the fishery but within 3 leagues from certain coasts and within 15 leagues from certain other coasts. 1076 NOETH ATLANTIC COAST FISHERIES ARBITRATION. These treaties were made in 1713 and 1763 respectively ; and this Tribunal is now entirely familiar with the fact that by the third article of the treaty of 1783 between the United States and Great Britain, the inhabitants of the United States were to enjoy co-ex- tensively with the subjects of Great Britain the right to fish on all the coasts, bays, creeks, and harbours of His Britannic Majesty's possessions in the North Atlantic Ocean. The provisions of this treaty of 1783 would seem, alone, to be suffi- cient to establish that, as against the inhabitants of the United States, in respect of the fisheries, Great Britain, in 1783, and ever afterward, did not pretend to assert exclusive jurisdiction over any part of the high seas. The nature of the rejected proposal of the Plenipotentiaries for Great Britain, to which I have called attention in these negotiations for the treaty of 1783, will be recalled by the Tribunal. As to whether or not Great Britain was making broad assertions of jurisdiction over the seas adjacent to its possessions in the North Atlantic, against the inhabitants of the United States, I respectfully refer the Tribunal to four authorities, who, I submit, should and do settle this question. They are: First, Sir Charles Russell, after- wards Lord Russell, Chief Justice of England ; Second, Lord Castle- reagh, when he was Principal Secretary of State for Foreign Affairs of Great Britain ; Third, Mr. George Canning, when he was Princi- pal Secretary of State for Foreign Affairs of Great Britain; and Fourth, Lord Bathurst, when one of the Principal Secretaries of State in the Foreign Office of Great Britain. Reading from the Argument of Sir Charles Russell, before the Tribunal of Arbitration at Paris to determine questions arising be- tween the United States and Great Britain concerning the 648 property rights in the fur seals in the Behring Sea, as reported in vol. XIII of the American reprint of the proceedings, on p. 315, will be found this statement : — "In the first instance, let me point out that so far as any special rights were conceded by France "- Sir Charles Russell was here speaking of these very treaties that I am now concerned with, of 1713 and 1763 — " — I have told the Tribunal there were such — they were conceded by Treaty. So as regards Spain ; — That refers to the treaty of 1763— " but those Treaties only bound Spain and only bound France, and would not have interfered one iota with the right of any other nation over the area affected by them." Then, referring to the treaty of 1783, between the United States and Great Britain, he said, on p. 317 of the same volume: — ARGUMENT OP CHARLES B. WARREN. 1077 " It was an averment that these rights, theretofore existing in all British subjects, should have belonged as of right to those British subjects who by the rebellion had become the citizens of an inde- pendent nation." And on p. 320, this statement is made by the President of that Tribunal, Baron de Courcel : — " The President: Might not there be a difference in respect of time? The historical expose of Mr. Dwight Foster " — Referring to Mr. Foster who was in the Halifax proceedings as the agent and also counsel for the United States — " which you have just read seems to me to be practically correct; that Great Britain may have asserted in previous times the doctrine of mare apertum in opposition to mare clausum which was not quite acknowledged, — they asserted an exclusive right over part of those seas and fisheries which by progress of time and progress of ideas were considered abandoned, though they did not want to abandon it in fact. Towards the end of the 18th century it was not abandoned ; but, perhaps, at the time of the Treaty of Utrecht it was not quite clear." And Sir Charles Russell replied : — " I began by telling you, Sir, there were such claims made by Great Britain, and she professed to base those claims on Treaty rights conceded by France and by Spain. That is so. I did not stop to con- sider whether she would be justified under those treaties in making that pretension at all. I have stated what was asserted, what was put forward. There were certain Treaty rights, but that is ancient history." The President then intervened with a question : — " The Treaty rights were limited to about one hundred miles. Referring to the rights under these treaties of 1713 and 1763. Sir Charles Russell proceeded : — "As I have already pointed out, and you were good enough to as- sent to my statement I think, even if such powerful nations as France and Spain had conceded to Great Britain rights over an area of the sea, they would not have the power of giving to Great Britain that right as against the people of any other nation in the world on the high seas." Now, if the Tribunal please, Sir Charles Russell was afterwards the Lord Chief Justice of England, and his statements regarding law — and he was speaking of law at this time — are worthy of the greatest consideration in view of the source from which they come. Sir Charles Russell continued as reported on p. 320 of the same volume : — " Of course, when the United States became an independent power, one of the family of nations, it would have, in virtue of its sover- eignty, the right to claim the free use of the high seas ; but the point is this : that, from 1783 down through the whole of this negotiation, 1078 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Great Britain has never asserted, and the United States has never alleged that she was asserting, that the right of fishery in the non- territorial waters was not a right that belonged to every independent nation. That is the point." 649 JUDGE GRAY: Mr. Warren, may I ask a question? Is it conceded that, in international law, one nation may, by treaty obligation, — treaty contract, — with another, exclude itself from cer- tain portions of the high seas ? MR. WARREN : Most certainly, your Honour. At the bottom of p. 321 of this same vol. XIII of the American reprint of the proceedings of the Fur Seal Arbitration at Paris, this eminent authority continued: — " I leave this branch of the subject by expressing my agreement with the opinion stated on page 157 of the United States Argument, that there cannot be one international law for the Atlantic, and one for the Pacific, and I agree the law is the same for each — that out- side the territorial limits there is an unrestricted right and liberty for all mankind to take what it can from the bosom of the sea." JUDGE GRAY : May I ask you, for myself entirely, to read that pas- sage again, — the statement of Sir Charles Russell, where he alleges as a fact that Great Britain had never asserted, and the United States never alleged that it had asserted, certain things with regard to non-territorial waters? MR. WARREN : I shall be very glad to do so, your Honour. It com- mences at the bottom of p. 320 of this vol. XIII : — " Of course, when the United States became an independent power, one of the family of nations, it would have, in virtue of its sover- eignty, the right to claim the free use of the high seas ; but the point is this : that, from 1783 down through the whole of this negotiation, Great Britain has never asserted, and the United States has never alleged that she was asserting, that the right of fishery in the non- territorial waters was not a right that belonged to every independent nation. That is the point." Turning to the Appendix to the case of Great Britain, submitted to the Tribunal of Arbitration at Paris, on p. 563 of vol. V of the American reprint of these Proceedings, a note will be found from Lord Salisbury to Sir Julian Pauncefote, under date the 2nd Au- gust, 1890. Sir Julian Pauncefote was at that time Minister for Great Britain in the United States. Lord Salisbury enclosed a letter dated the 27th September, 1822, from Mr. George Canning, then the Principal Secretary of State for Foreign Affairs of Great Britain, to the Duke of Wellington. That letter will be found on p. 574 of this vol. V of the Fur Seal Arbitra- tion ; and, reading from p. 575, Mr. Canning stated : — " I have, indeed, the satisfaction to believe, from a conference which I have had with Count Lieven on this matter, that upon these two ARGUMENT OP CHARLES B. WARREN. 1079 points — the attempt to shut up the passage altogether, and the claim of exclusive dominion to so enormous a distance from the coast — the Russian Government are prepared entirely to waive their preten- sions. The only effort that has been made to justify the latter claim was by reference to an article in the Treaty of Utrecht, which assigns thirty leagues from the coast as the distance of prohibition. But to this argument it is sufficient to answer that the assumption of such a space was, in the instance quoted, by stipulation in a Treaty, and one to which, therefore, the party to be affected by it had (whether wisely or not) given its deliberate consent. No inference could be drawn from that transaction in favor of a claim by authority against all the world." THE PRESIDENT: What was the contention, please, Sir, of the United States in the Fur Seal Arbitration concerning the right of taking fur seals? What limits and what regulations were contended for by the United States? MR. WARREN : Mr. President, if you will pardon me, I shall come to the position of the United States in the Behring Sea controversy at a time when it can be more properly treated in connection with other matters, and I shall then bear in mind the question put by the President. THE PRESIDENT: Thank you. MR. WARREN, resuming: Lord Salisbury also enclosed the instruc- tion given by Mr. George Canning to Mr. Stratford Canning, when the latter was named Plenipotentiary to negotiate the treaty of 1825 between Great Britain and Russia, which followed the negotiations to which Mr. George Canning, the Principal Secretary of State for Foreign Affairs, referred in his letter, just read, of 1822, to the Duke of Wellington. 650 It was this treaty between Great Britain and Russia of 1825 that the Alaska Boundary Tribunal was called upon to inter- pret, as between the United States and Great Britain. I will read now from p. 572 of vol. V of the Proceedings of the Fur Seal Arbitration. This is what Lord Salisbury himself said in 1890:— " Upon this point the instructions given by Mr. George Canning to Mr. Stratford Canning, when the latter was named Plenipotentiary to negotiate the Treaty of 1825, have a material bearing. Writing under date the 8th December, 1824, after giving a summary of the negotiations up to that date, he goes on to say : — Now, passing over a part of the note, I resume reading at the bot- tom of p. 572, where Lord Salisbury quotes from Mr. George Can- ning's instructions to Mr. Stratford Canning: — " The law of nations assigns the exclusive sovereignty of one league to each Power off its own coasts, without any specified stipulation, and though Sir Charles Bagot was authorized to sign the Convention 1080 NORTH ATLANTIC COAST FISHERIES ARBITRATION. with the specific stipulation of two leagues, in ignorance of what had been decided in the American Convention at the time, yet after that Convention has been some months before the world," and so on. Mr. George Canning there refers to the fact that by the Conven- tion between the United States and Kussia in 1824, the United States had obtained an arrangement with Russia confining exclusive sover- eignty to one league. The instructions of Sir Charles Bagot were correspondingly changed when that knowledge was conveyed to Great Britain, and before the treaty of 1825 was signed Sir Charles Bagot was instructed to obtain a stipulation similar to the one contained in the treaty of 1824 between the United States and Russia. Lord Salisbury himself stated in his note dated August 2, 1899, on p. 570 of this vol. V :— " I do not suppose that it is necessary I should argue at length upon so elementary a point as that a claim to prohibit the vessels of other nations from approaching within a distance of one hundred miles from the coast is contrary to modern international usage. Mr. Adams [this is, John Quincy Adams] and Mr. Canning clearly thought in 1823 that the matter was beyond doubt or discussion. " The rule which was recognised at that time, and which has been generally admitted both by publicists and Governments, limits the jurisdiction of a country in the open sea to a distance of three miles from its coasts, this having been considered to be the range of a cannon shot when the principle was adopted." I pass now to the third subdivision of this data, that is, the Jay treaty of 1794, referred to in the argument of counsel for Great Britain. I discussed that treaty at yesterday's session, and will not go over it again. In considering yesterday the treaty of 1806, 1 submitted to the Tri- bunal the facts that clearly established that the material provisions of the Jay treaty expired in October 1807 and, consequently, that treaty can have no bearing upon the extent of jurisdiction after 1807, and certainly no bearing upon the negotiations leading to the treaty of 1818. The fourth subdivision of this date was the note of Mr. Jefferson to the French Minister in the United States in 1793 regarding Dela- ware Bay. As to that, the discussion of the action of Great Britain, the United States and France regarding Delaware Bay, will be taken up when the law applicable to this entire Question is considered in order to avoid going over the same ground twice, as this action must necessarily be fully gone into in the argument on the law. I will now pass to the fifth subdivision of this data, the note of Mr. Jefferson to M. Genet, Minister for France in the United States, in 1793, and the similar note of Mr. Jefferson to the Minister for Great Britain in the United States, regarding the extent of the mari- time jurisdiction asserted by the United States. The note of Mr. ARGUMENT OF CHARLES B. WARREN. 1081 Jefferson, President of the United States, of the 8th September, 1804, which was the sixth subdivision of the data now being considered, will be taken up in connection with these notes from Mr. Jefferson in 1T93. These three notes will be found in the Appendix to the British Case on pp. 56, 57, and 59. These notes were much relied upon by the distinguished counsel for Great Britain, Sir Robert Finlay. The Tribunal has read these notes, has heard them discussed by counsel, and will recall that in the note on p. 56 of the British Case Appendix, Mr. Jefferson stated that the jurisdiction of the United States was confined to 3 geographical miles from the 651 shore. This statement appears about twelve lines from the bottom of p. 56. That statement was not interesting to the counsel for Great Britain as it was a plain statement limiting the maritime jurisdiction of the United States to 3 geographical miles from the shore. It was to the statement regarding rivers and bays of the United States that the counsel gave especial attention, and that clause reads : — " For that of the rivers and bays of the United States, the laws of the several States are understood to have made provision, and they are, moreover, as being landlocked, within the body of the 'United States." The note to Mr. Hammond, the British Minister in the United States, set out on p. 57 of the British Case Appendix, may be called practically a similar note, because, as Sir Robert Finlay said, it differs in wording only slightly from the note to M. Genet. The third note which I am about to discuss appears on p. 59 of the Appendix to the British Case, and is the note of Mr. Jefferson, when President, to the Secretary of the Treasury, which embodies the curved line, and in which he stated that the extent of sight was the rule of common law as to jurisdiction over adjacent waters, and stated that he supposed that 25 miles was the extent of sight. I refer first to the work of Schticking, " Das Kiistenmeer im Inter- nationalen Recht." The extract from Schiicking which I am about to read commences on p. 29 of his work and translated into English is as follows : — " We cannot understand why Godey should replace the limit of the territorial sea, proposed by the Institute, by the range of eyesight or the horizon of a man standing at the coast. This means breaking off with everything in use at the present time. The history of interna- tional law knows only of one application of this principle in an Ordi- nance of Philipp II, of Spain ! Yet Godey calls it ' consacre dans la pratique,' sanctioned by usage ! or ' established in practice.' Bynker- shoek critcises this view as follows: — " Indeed it is too lax, it is vague and in no way certain enough. How far does eyesight reach and shall it begin at a certain place on 1082 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the land, or on the shore, or on a castle, or in a city, or the distance that a person '-an see with the naked eye, or a person having a very sharp eyesight; certainly not so far as those sharp sighted ones, as the ancient tells us, who could see Carthage from Sicily. " At the beginning of our century Gerard de Rayneval defended this limit (cf. Godey a.a. O., p. 18). But nobody has followed him either in theory or practice. It was left to Godey to discover that this limit is the safest and the most permanent. He does away with all arguments showing how different the horizon is according to the position of the person, by the proposition that we view the sea from a point 10 m. above the surface. From such a point he says one can see to a distance of 6 sea miles. According to him optical instru- ments would not extend the sight but would bring the picture only nearer to the eye. But why should the spectator not ascend a tower of 20 m. ; he could probably see to a distance of 10 miles. Godey's idea lacks logical foundation and we need not consider it anv further." I will take up now the early decisions of the Courts of the United States on this question, concerning which Mr. Jefferson expressed an opinion, and, I venture to say, that if the Tribunal should find that Mr. Jefferson made a mistake in stating what the laws of the various States were, or made a misstatement of the decisions of the Courts of the United States, his statement would not be binding upon the United States. I read first from the case of The Commonwealth v. Peters, reported in 12 Metcalf's Reports, p. 387. This is a report of a decision of the Supreme Court of the State of Massachusetts. The extracts which I shall read show what was involved. The opinion was delivered by Chief Justice Shaw, who stated on p. 390 : — " The defendant was indicted, in the Municipal Court, for an ag- gravated assault and battery, committed on board an American mer- chant vessel, lying at anchor in the harbor of Boston, having then re- cently returned from a foreign voyage, and anchored in the channel, preparatory to hauling in, to unlade at a wharf. The place is suffi- ciently described, for the purpose of this inquiry, by saying that the vessel was lying within and far up the inner harbor, but anchored in the channel, in deep water, at a place never left by the tide, and of course below low water mark. The question is, whether the Munici- pal Court had jurisdiction of an offence so committed. The Court had jurisdiction of all crimes and offences, arising and dccurring within the county cognizable by the courts of the State." And, turning to p. 392, the opinion continues : — " It has already been stated that the place where the offence is alleged to have been committed was quite within the inner har- 652 bor of Boston, entirely land-locked, but in deep water, below the line of low water mark. All creeks, havens, coves, and inlets lying within projecting headlands and islands, and all bays and arms of the sea lying within and between lands not so wide but that persons and objects on the one side can be discerned by the naked eye by persons on the opposite side, are taken to be within the body of the county. The place, where the vessel in question was at ARGUMENT OF CHARLES B. WARREN. 1083 anchor, was clearly a place of this description, and is within both definitions ; that is, a river, or arm of the sea, below low water mark, and so within admiralty and maritime jurisdiction; and also a place within the body of the county." I refer next to the case of the United States v. Grush, reported in 5 Mason's Reports of Cases in the United States Circuit Court, First Circuit, at p. 290. The decision was rendered by Mr. Justice Story of the Supreme Court of the United States, who said, in delivering the opinion of the Court, at p. 296 : — " It is agreed between the parties, that the place where the vessel, (the Pacific), on board of which the offence was committed, lay at anchor at the time of the commission of the offence, was between Level's Island, George's Island, and Gallop's Island, which belonged to the city of Boston, as part of its territorial limits. The tide ebbs and flows between these islands into what is called the inner harbour of Boston; and at all times of the tide there is a great depth of water there, the bottom or channel never being dry; and vessels at anchor there are constantly afloat in the stream. The distances between these islands is about one-eighth of a mile. Hale's map of Boston and Wadsworth's chart of the harbour of Boston and the adjacent coasts and headlands, are admitted in evidence, as accurate delinea- tions of the same. The nearest headlands on the main land on each side are the town of Hull on the southern, and Point Shirley on the northern side of the harbour of Boston, and the distance between these headlands is about 5 or 6 miles. There are a number of islands between these headlands., with narrow inlets and passages for vessels between them. The main channel into the inner harbour of Boston flows also between them, in no instance exceeding one mile in breadth. Xantasket Roads, as it is called, or the outer harbour of Boston, where vessels, going from and coming to the port, are accustomed to lie at safe anchorage, is on the side contiguous to Hull. There are several islands farther out towards the ocean; and particularly the Great Brewster, on which the principal lighthouse stands. The extreme point of the main land, jutting from the southern coast opposite to this lighthouse, is called Point Alderton, and the distance between them is about one mile and a quarter. Processes from the State Courts of the County of Suffolk have been at all tunes, without objection, served as far down as where the Pacific lay ; and even down to the lighthouse on the Great Brewster; but not below. Vessels are accustomed to anchor where the Pacific lay. The towns of Bos- ton and Chelsea constitute the county of Suffolk. Such are the material facts." If the Tribunal please, I have a chart of the harbour of Boston which I shall submit and leave with the Tribunal, to show the locality involved in this decision. I will not refer to the chart in my argument. It may be referred to by the Tribunal. Justice Story continues, on p. 298 : — "Thus Lord Hale says. .... the sea is either that which lies within the body of the Bounty or without. That arm or branch of the sea, which lies within the fauces terra3, where a man may reasonably 1084 NORTH ATLANTIC COAST FISHERIES ARBITRATION. discern between shore and shore, is, or at least may ~be, within the body of the county, and therefore within the jurisdiction of the sheriff or coroner ; " And for this he cites Fitzherbert's Abridgement, and other au- thorities. Reading again from p. 300 of the report : — " This leads me to consider what is the proper boundary of counties bordering on the sea coast, according to the established course of the common law ; "- Mr. Justice Story is here discussing what Mr. Jefferson undertook to express an opinion upon, and is stating what the law really was at the time of this decision, which was in 1829, and what the rule of common law had been in the United States previous to that time — u for to that I shall feel myself bound to conform on the present oc- casion, whatever might have been my doubts, if I were called to de- cide upon original principles. The general rule, as it is often laid down in the books, is, that such parts of rivers, arms, and creeks of the sea are deemed to be within the bodies of counties, where persons can see from one side to the other. Lord Hale uses more guarded language, and says, in the passage already cited, that the arm or branch of the sea, which lies within the fauces terrce, where a man may reasonably discern between shore and shore is, or at least may be, within the body of a county. Hawkins (PI. Cr. b. 2, ch. 9, par. 14) has expressed the rule in its true sense, and confines it to such parts of the sea, where a man standing on the one side may see what is done on the other." This does not mean that arms of the sea, across which one can look and ascertain whether there is a lighthouse there, are a 653 part of the adjoining county, but does mean that the true rule was, that these bodies of water which were deemed to be within the body of a county were confined to such parts of the sea as were so narrow that one standing on the one side may see what is done on the other. Continuing the reading of the decision : " and this is precisely the doctrine, which is laid down by Stanton, J., in the passage in Fitz. Abridg. Corone 399; 8 Edw. 2; on which Lord Coke and the common lawyers have laid so much stress as furnishing conclusive authority in their favor. It is there said, 'it is no part of the sea, where one may see what is done on the one part of the water, and the other, as to see from one land to the other.' And Mr. East, in his Treatise on Common Law, (2 East, P. C. ch. 17, para. 10, p. 804) manifestly considers this as the better opinion." JUDGE GRAY: Of course, Mr. Warren, if the distance is to be de- cided by the ability of a man of average sight to discern from one shore what is being done on the other shore the distance would have to be a good deal less than 6 miles. ARGUMENT OF CHARLES B. WARREN. 1085 MR. WARREN : Yes, your Honour, but these decisions that I am now reading establish that the rule of common law did not and does not extend the jurisdiction beyond the double of the 3-mile distance fixed by the terms of the treaty of 1818. I continue reading the decision from near the bottom of p. 301 : — " I do not understand by this expression, that it is necessary, that the shores should be so near that all that is done on one shore could be discerned and testified to with certainty by persons standing on the. opposite shore ; but that objects on the opposite shore might be reasonably discerned ; that is, might be distinctly seen with the naked eye, and clearly distinguished from each other. Indeed, upon the evidence before me, I incline strongly to the opinion, that the limits of the county of Suffolk, in this direction not only includes the place in question, but all the waters down to a line running across from the lighthouse on the Great Brewster to Point Alderton. In the sense of the common law, these seem to me the true fauces terrce, where the main ocean terminates." THE PRESIDENT: These are all criminal cases, I suppose, in which these opinions were expressed ? MR. WARREN: This particular case involved an offence committed on board a vessel, and the question was whether the vessel was within the county; the whole question was whether the place where the vessel lay was a part of the State of Massachusetts. THE PRESIDENT : Yes, but these were criminal cases in which these opinions were expressed. MR. WARREN : Yes, Mr. President, just so. This statement which I have just read is very important, coming from Mr. Justice Story. He was expressing an opinion as to what he thought the limits of jurisdiction were. THE PRESIDENT : But it was for the purpose of deciding a criminal case? MR. WARREN : No, Mr. President, he was here expressing an opinion outside the case before the Court. JUDGE GRAY: Obiter dictum. MR. WARREN: Yes, your Honour; and the chart which I have sub- mitted shows that the distance between Great Brewster — the light- house on Great Brewster — and Point Alderton does not exceed If miles. JUDGE GRAY: But you do not understand that he fixed that as a limit between the fauces terras, which was to determine in all cases the jurisdiction of the State over the waters enclosed? He says in that case, that being the limit, clearly it was within the jurisdiction. MR. WARREN: No, if your Honour pleases, he went beyond the spot where the vessel lay. JUDGE GRAY: He measured the distance between the fauces terrce, and said that that ought to determine this case, no matter what the 1086 NORTH ATLANTIC COAST FISHERIES ARBITRATION. bay was otherwise. I am only trying to get at what the opinion was. 654 MR. WARREN : May I read Mr. Justice Story's words your Honour? " Indeed, upon the evidence before me, I incline strongly to the opinion, that the limits of the county of Suffolk, in this direction, not only include the place in question, but all the waters down to a line running across from the lighthouse on the Great Brewster to Point Alderton. In the sense of the common law, these seem to me the true fauces terras, where the main ocean terminates." Now, he had an opportunity to go beyond that, that is, beyond the Great Brewster, across to the opposite shore. JUDGE GRAY: Yes, but he could not go beyond those fauces terrce. MR. WARREN : Your Honour, he could have gone beyond the Great Brewster Island, and stated that a larger body of water than that lying between the lighthouse on the Great Brewster and Point Alderton was within the jurisdiction of the county of Suffolk and the State of Massachusetts. This will be very apparent when the Tribunal looks at the chart submitted. JUDGE GRAY : Then I misunderstood you, that is all. I next take up the case of Dunham v. Lamphere, 3 Gray's Reports, p. 268, which was a case involving the right of fishing, and will read a portion of the opinion : — " We suppose the rule to be, that these limits extend a marine league, or three geographical miles, from the shore ; and in ascertain- ing the line of shore this limit does not follow each narrow inlet or arm of the sea; but when the inlet is so narrow that persons and objects can be discerned across it by the naked eye, the line of terri- torial jurisdiction stretches across from one headland to the other of such inlet." I next refer the Tribunal to the case of Commonwealth v. Man- chester, 152 Massachusetts Reports, p. 230, also a fishery case. The syllabus of the case is as follows : — " The territorial jurisdiction of a nation over the adjacent seas, subject to the common right of navigation, extends by the law of nations to the distance of one marine league at least from the shore, and to bays wholly within the territory of the nation, which do not exceed in width two marine leagues at the mouth; and within this jurisdiction is the right of control over fisheries in such waters, whether the fish are migratory and free-swimming, or free-moving, or attached to or imbedded in the soil." The Tribunal will observe that the case involved fishing in Buzzard's Bay. I will not take the time of the Tribunal to explain the geog- raphy of Buzzard's Bay, which, after all, is a matter of common knowledge, and the Tribunal is at liberty to consult any atlas for any necessary information. The Court states, on pp. 231 and 232, of the decision : — AKGUMENT OF CHARLES B. WAKREN. 1087 " The distance between the headlands at the mouth of Buzzard's Bay, viz. at Westport in the county of Bristol on the one side, and the island of Cuttyhunk. the most southerly of the chain of islands lying to the eastward of Buzzard's Bay, and known as the Elizabeth Islands, in the county of Dukes County, on the other side, was more than one and less than two marine leagues; and that the distance across said bay at the point where the acts of the defendant were done is more than two marine leagues, and the opposite points are in dif- ferent counties." The decision, at p. 240, commented on the Conception Bay Case — the Newfoundland Case: — " Apparently he was of opinion that, by most of the text writers on international law, Conception Bay would be excluded from the territory of Newfoundland, and the part of the Bristol Channel which in Regina v. Cunningham was decided to be in the county of Glamorgan would be excluded from the territory of Great Britain; but he decides that Conception Bay is a part of the territory of New- foundland, because the British Government has exercised exclusive dominion over it, with the acquiescence of other nations, and it has been declared by act of Parliament ' to be part of the British terri- tory, and part of the country made subject to the Legislature of Newfoundland.' " I shall not pause to take up the discussion of the Conception Bay Case, because, when the authorities on the law applicable to Question 5 are taken up, the Conception Bay Case will be commented upon and the position of the United States as to that Case will be stated. This may, however, be said, that the United States never acquiesced in the assertion of exclusive jurisdiction over Conception Bay by Great Britain. Then the opinion continues at p. 240 : — 655 "We regard it as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide waters is a marine league from its coast, and that bays wholly within its territory not exceeding two marine leagues in width at the mouth are within this limit, and that included in this territorial juris- diction is the right of control over fisheries, whether the fish be migratory, free-swimming fish, or free-moving fish like lobsters, or fish attached to or imbedded in the soil." I refer next to an Act of the Legislature of Massachusetts for the purpose of showing the nature of the laws passed by the various States of the United States. It was to Acts of this nature that Mr. Jefferson referred. The statute is found on p. 640 of the Acts and Resolves of the State of Massachusetts, Extra Session 1859 : — " The territorial limits of this Commonwealth extend one marine league from its seashore at low-water mark. When an inlet or arm of the sea does not exceed two marine leagues in width between its headlands, a straight line from one headland to the other is declared to be equivalent to the shore line. The boundaries of counties bor- 92909°— S. Doc. 870, 61-3, vol 10 13 1088 NORTH ATLANTIC COAST FISHERIES ARBITRATION. dering upon the sea shall extend to the line of the State as above defined. The jurisdiction of counties separated by waters within the jurisdiction of the State shall be concurrent." At the bottom of p. 56 of the Appendix to the British Case, in the note from Mr. Jefferson to M. Genet, Mr. Jefferson states : — " For that of the rivers and bays of the United States, the laws of the several States are understood to have made provision." There were nowhere to be found in any of the States of the United States of America any Acts extending the ordinary jurisdiction over bodies of water known as bays, and this statute of the State of Massa- "chusetts defining the common law as to jurisdiction over a bay is illustrative of the common law and statute law of the several States. Mr. Jefferson was mistaken when he made the statement that the laws of the several States are understood to have made provision for jurisdiction over bays, if he intended by that expression to have it inferred that there were laws in the several States which provided for an extension of the ordinary jurisdiction over bodies of water known as bays. The Supreme Court of the United States in the case of Manchester v. Massachusetts, 139 United States Reports, p. 240, passed upon this question of the territorial limits of the States of the United States. Reading from the syllabus, which is written by the Court : — " Within what are generally recognised as the territorial limits of States by the law of nations, a State can define its boundaries on the sea and the boundaries of its counties ; and by this test Massachusetts can include Buzzard's Bay within the limits of its counties." I have shown the extent of Buzzard's Bay by a citation in the case of Commonwealth v. Manchester, 152 Massachusetts Reports, from which I read a short time since. The opinion of the Supreme Court of the United States at p. 255 is to this effect : — " The territorial limits of this Commonwealth extend one marine league from its seashore at low-water mark. When an inlet or arm of the sea does not exceed two marine leagues in width between its headlands, a straight line from one headland to the other is equivalent to the shore line." At p. 256 the opinion continues : — " that the distance between the headlands at the mouth of Buzzard's Bay ' was more than one and less than two marine leagues ; ' : That fixes the width of the bay under consideration in that case. At p. 257 the opinion of the Court proceeds : — " The limits of the right of a nation to control the fisheries on its seacoasts, and in the bays and arms of the sea within its territory, have never been placed at less than a marine league from the coast ARGUMENT OF CHARLES B. WARREN. 1089 on the open sea ; and bays wholly within the territory of a nation, the headlands of which are not more than two marine leagues, or six geographical miles, apart, have always been regarded as a part of the territory of the nation in which they lie." I take up now the seventh sub-division of the data relied upon to prove the assertion by Great Britain and the United States 656 of extended jurisdiction over the waters adjacent to the shores of their possessions. This is the treaty between the United States and Great Britain of the 15th June, 1846, adjusting the Ore- gon boundary. The treaty is printed in the Appendix to the British Case on p. 32. In the British Case, at p. 110, this treaty between the United States and Great Britain of 1846 is referred to as evidence of the extended claims of the United States and Great Britain. I am not going to read the extract in the British Case, but it will be found on p. 110, and I will content myself with citing it. Quoting now from the treaty on p. 32 of the British Case Ap- pendix, it is declared — " that the state of doubt and uncertainty which has hitherto prevailed respecting the Sovereignty and Government of the Territory on the North west Coast of America, lying westward of the Rocky or Stony Mountains, should be finally terminated by an amicable com- promise of the rights mutually asserted by the two Parties over the said Territory." So the Tribunal will observe by referring to this treaty that the primary object, and the only object, of the treaty, as stated in the treaty itself, was to remove the state of doubt and uncertainty which had prevailed respecting the sovereignty of the territory on the north- west coast — referring to the land. The line agreed upon, after leav- ing the mainland, divided numerous islands adjacent to the coasts, as shown on a map of the locality which I submit to the Tribunal. It is a map of the Straits of Juan de Fuca and the adjacent waters. I shall not comment at length upon this chart. Article 1 of the treaty, as printed in the British Case Appendix at p. 33, reads : — "provided, however, that the navigation of the whole of the said channel and straits south of the forty ninth parallel of north latitude remain free and open to both Parties." Another similar treaty should be mentioned here. On p. 34 of the British Case Appendix will be found an extract from the treaty of 1848 between the United States and Mexico. This was also a boundary treaty, and is evidently inserted in the Appendix to the British Case for the purpose of basing upon it a similar claim to that made regarding the Oregon boundary treaty or permitting such an inference to be drawn from it. 1090 NORTH ATLANTIC COAST FISHERIES ARBITRATION. This, as I have said, was also a boundary treaty, and the position of the United States regarding the nature of such treaties is clearly shown by the note of James Buchanan when Secretary of State of the United States, to Mr. Oampton, the Minister for Great Britain in Washington, which will be found in the Appendix to the Counter- Case of the United States on p. 624. Mr. Crampton had made an enquiry of Mr. Buchanan concerning this treaty between the United States and Mexico for the purpose of ascertaining what it meant as against Great Britain's right to navi- gate the waters into which the boundary-line was extended. Mr. Buchanan, in his note, replied to Mr. Crampton: — " In answer, I have to state, that the stipulation in the treaty can only affect the rights of Mexico and the United States. It is for their mutual convenience it has been deemed proper to enter into such an arrangement, third parties can have no just cause of com- plaint. The Government of the United States never intended by this stipulation to question the rights which Great Britain or any other Power may possess under the law of nations." I proceed now to a citation directly concerning the treaty of 1846 between the United States and Great Britain, known as the Oregon Boundary Treaty. During the argument in the Fur-Seal Arbitration in Paris in 1893, in response to an enquiry by one of the Arbitrators as to whether this treaty of 1846 did not divide the Straits of Juan de Fuca between the two Powers, Sir Charles Russell, in behalf of Great Britain, made a statement which will be found in vol. XIII of the American reprint of those proceedings, p. 79 : — " In the first place I should require to know a little more about the precise circumstances of the water which is called the Straits of Juan de Fuca, which leave Puget Sound on the one hand and pass Victoria on the other: whether or not it came within the category of land- locked waters, and so forth. " SENATOR MORGAN : They are not land-locked waters." Senator Morgan was one of the Arbitrators appointed by the United States. "SiR CHARLES RUSSELL: I am merely suggesting that I should require to know more about this before expressing an opinion. " SENATOR MORGAN : The lakes are 1 think." 657 Senator Morgan evidently referred to some lakes that are land-locked and have nothing to do with this question. I do not know what lakes he had in mind. " SIR CHARLES RUSSELL : I should then require to know how far the concurrence of other nations had been given to the arrangement made between the two Powers who owned the adjoining territory; and lastly I should express the opinion, for what that opinion is worth, that if that could be properly called the ' high sea,' and other ARGUMENT OP CHARLES B. WARREN. 1091 nations were not concurring in its appropriation between these two Powers, that the effect of that treaty would be binding on these two Powers, and on these two Powers only. " SENATOR MORGAN : I am only speaking of the fact that the United States and Great Britain in their treaties had established the propo- sition that a water boundary may be established by treaty, and upon the high seas. " SIR CHARLES RUSSELL : I think it would be founding, if I may respectfully say so, Senator, a tremendous conclusion upon a very small base of premises to say that because, in that particular case, that particular treaty had been entered into, it was the affirmation of a principle of general application." Then, Sir Johri Thompson, one of the arbitrators appointed by the Government of Great Britain, who was a former Minister of Justice of Canada ; who was one of the counsel for Great Britain before the Halifax Commission, and who was subsequently Prime Minister of the Dominion of Canada, made a statement which will be found at the bottom of p. 79 of this vol. XIII :— " I think it will be found that that was not a Treaty dividing water on the high seas outside the three mile limit, but fixing the boundary line behind which you were to ascertain the respective properties of the nations; and its bearing was ascertained by its course on the high seas." And Sir Charles Russell replied: — " I have no doubt about it." I respectfully submit that Great Britain cannot take one position on this question in an arbitration involving the Pacific Ocean, and assume another position in an arbitration involving the Atlantic Ocean. Now, if the Tribunal please, I will pass to the eighth sub-division of this data and to the consideration of the position of the United States before the Alaska Boundary Tribunal. I desire first to call the attention of the Tribunal to a statement in the printed Argument of Great Britain, on p. 98, which relates to the proceedings before the Alaska Boundary Tribunal. The state- ment is as follows: — " In 1903. in the Alaskan Boundary Arbitration Case, the Uiuted States asserted that its boundary extended three miles beyond aline joining the islands which lie off the Alaska coasts. Some of the dis- tances between these islands are more than twenty-five miles." That statement was made with the evident purpose of showing that the United States took one position in the Alaska Boundary Ar- bitration and takes another in this arbitration. I respectfully sub- mit that the statement is entirely erroneous. Such a claim of juris- diction over bodies of water more than 25 miles in extent was not made by the United States in the Alaska Boundary Arbitration. 1092 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The charts of the Pacific coast and the atlas accompanying the British Case are undoubtedly produced to support this assertion. A review of the Alaska Boundary dispute will establish that this statement in the British Argument is without foundation, and will also show that the British charts put forward in this submission to prove it are founded on false premises. I refer to the British charts submitted to this Tribunal, found in the volume of charts, and I shall first make a general statement con- cerning charts numbered 13, 14, 17, and a portion of No. 16. I may say that these charts submitted to the Tribunal, numbered 13, 14, and 17, and all that portion of No. 16 lying south of 54° 40' north latitude have nothing whatever to do with the district really involved in the submission to the Alaska Boundary Tribunal. The lines on chart No. 15, and on that part of No. 16 north of 54° 40' are, I respectfully submit, founded on an erroneous assump- tion as to the position of the United States in that arbitration. One of the principal subjects discussed before the Alaska Boundary Tribunal was the meaning of the word " coast," used in the Anglo- Russian Treaty of 1825. which was construed by that Tribunal. 658 It was contended on the part of Great Britain that the coast- line to be used as a base-line for the location of the boundary- line on the mainland in accordance with the provisions of the treaty of 1825 was a line extending along the mainland of south-eastern Alaska cutting across the entrances of inlets. The proceedings of the Alaska Boundary Tribunal, Congressional Reprint, vol. Ill, show that Great Britain invoked the rule of measurement for this line cutting across inlets established by the terms of the North Sea Fisheries Convention of 1882, and maintained that this rule of measurement should be regarded by the Tribunal in determining what was to be the coast-line for the purposes of de- termining the boundary -line on the mainland. The British Case, at p. 79 of vol. Ill, just referred to, quoted the 2nd article of the North Sea Fisheries Convention, which reads as follows: — " As regards bays, the distance of three miles shall be measured from a straight line drawn across the bay, in the part nearest the entrance, at the first point where the width does not exceed ten miles." In controverting the contention of Great Britain, the United States maintained that the physical coast-line furnished the base-line for the boundary on the mainland to be determined by the Tribunal, and, in its Counter- Case, pointed out that such a coast line as that for which Great Britain contended was a political coast line, in contradistinction to the physical coast-line which the United States contended should be used as the line from which the boundary on mainland should be measured. The United States also maintained in its Counter-Case that the sole purpose of such a political coast line was to determine ARGUMENT OP CHARLES B. WARREN. 1093 the 3-mile belt of the marginal sea bordering the territory of the State over which municipal jurisdiction could be exercised. In vol. IV of the American reprint of the Alaska Boundary pro- ceedings, on pp. 31 and 32, of the Counter-Case of the United States, the different meanings of the word " coast " were defined, and it was pointed out that the true political coast-line, in contradistinction to the political coast-line proposed by Great Britain, would pass out- side the islands lying along the mainland of south-eastern Alaska. I submit to the Tribunal a chart which shows the islands between which the line that is referred to in the British Case before this Tribunal is stated to have been drawn by the United States. The lines shown on the charts accompanying the British Case sub- mitted to this Tribunal do not correctly show the line drawn by the United States in pursuance of the principle laid down in the Case of Great Britain submitted to the Alaska Tribunal — which principle was taken from the North Sea Fisheries Convention. In order to controvert the principle stated by Great Britain in its submission to the Alaska Tribunal, the United States, in its Counter- Case before the Alaska Tribunal, at p. 32 of volume IV of the Ameri- can reprint, made a statement that shows most clearly the line that would result from following the principle suggested for adoption by Great Britain in that arbitration. Later, the line can be followed on the chart submitted to this Tri- bunal, and it will be seen that the statement at p. 32 of the Counter- Case of the United States, submitted to the Alaska Tribunal, is clearly based on the principle brought into the Case by the Govern- ment of Great Britain. I read now from the Counter-Case of the United States before that Tribunal, at p. 32 :— " In the present instance the political or legal coast line drawn southward from Cape Spencer would cross to the northwestern shore of Chichagof Island and follow down the western side of that island and of Baranof Island to Cape Ommaney ; at this point it would turn northward for a short distance an then cross Chatham Strait to the western shore of Kuin Island; thence again turning southward along that shore and along the outlying islets west of Prince of Wales Island, the line would round Cape Muzon and proceed eastward to Cape Chacon; thence following northward along the eastern shore of Prince of Wales Island to Clarence Strait it would cross the latter at its entrance and proceed south eastward to the parallel of 54° 40' at the point where it enters Portland Canal. Thus the political coast line of South eastern Alaska does riot touch the mainland between Cape Spencer and 55 of North latitude." If the Tribunal will do me the honour to take the map which I have submitted and follow the line as laid down in the Counter-Case of the United States, it will be seen that the United States adopted the contention of Great Britain that 10 marine miles was the proper 1094 NORTH ATLANTIC COAST FISHERIES ARBITRATION. limit for these bodies of water and laid down the line between the islands lying off the mainland of Alaska, as shown by this statement in the Counter-Case of the United States. The line followed 659 in and out between these islands always crossing from island to island where the width was 10 miles or less. The very words of the Counter-Case of the United States, on p. 32. when care- fully read demonstrate that the line did not cross between these islands at the places designated on the charts submitted by Great Britain in this Tribunal. If the line, as stated in the Counter-Case of the United States before the Alaska Tribunal is laid down on the chart now submitted by me to this Tribunal, it will be clearly seen that the lines on the British charts in this submission, No. 15 and that part of No. 16 north of 54° 40' are drawn on an entirely erroneous basis. [Thereupon, at 12 o'clock, the Tribunal took a recess until 2 o'clock p. m.] AFTERNOON SESSION, FRIDAY, JULY 8, 1910, 2 P. M. Just before the recess I was referring to the statement made in the Counter-Case of the United States before the Alaska Boundary Tribunal as to the lines in between the islands outside the mainland of that portion of Alaska south of Cape Spencer, and had observed that that line, as plainly appears from the extract on p. 32 of the Counter-Case of the United States filed before that Tribunal— THE PRESIDENT: If you please, Sir; Had the Alaska Boundary Arbitration a direct bearing on the extent of maritime limits, or the limits of territorial waters? MR. WARREN : None whatever, Mr. President. THE PRESIDENT: Yes. MR. WARREN : And I am discussing the Alaska Boundary Arbitra- tion because the counsel for Great Britain relied upon the alleged position of the United States before that Tribunal, as one of the grounds to prove, that the United States has made broad assertions of maritime jurisdiction ; and for the additional reason that extracts from the proceedings before that Tribunal were printed in the Ap- pendix to the British Case in this submission, with the evident in- tention of showing that the United States took a position before the Alaska Boundary Tribunal inconsistent with the position taken be- fore this Tribunal on this Question 5. THE PRESIDENT: Was it a question concerning the boundary on the sea, or the boundary on land? MR. WARREN: On land, Mr. President. And the question was as to whether or not the boundary-line on mainland should be measured in acordance with the contention of the United States from the AEGUMENT OP CHARLES B. WARREN. 1095 physical coast-line or from an artificial coast-line which the British Case called the political coast-line, and which was drawn following the general trend of the shore, except that it crossed certain inlets, and also crossed certain projections of land. This is shown on the maps submitted to the Alaska Boundary Tribunal, a copy of which will be left with the Tribunal for inspection. THE PRESIDENT: If the line had been drawn from what is called the political coast-line, then the frontiers of British territory would have come nearer to the sea than in the other case? MR. WARREN: The frontiers of British territory, Mr. President, would have included the head-waters of the Lynn Canal, which would have given to Great Britain access from the sea for the pur- pose of trading with the gold-fields then recently discovered in the Klondike. And I may state that the Alaska Boundary Tribunal found that the boundary-line on mainland should be measured from the physical coast-line, and not from any artificial coast-line. When the Government of Great Britain, in presenting their case to the Alaska Tribunal, drew the political coast-line on charts, the line was drawn following what was called the general trend of the coast, cutting across certain inlets where the width from shore to shore was 10 miles, so as to give access to the head of one particular body of water, the Lynn Canal. When the United States took up the position assumed by 660 Great Britain, no question was raised as to whether the line should cross the inlets where the width was 6 miles or ten miles. The United States stated that, in any event, the line must be drawn outside the islands, because they were as much a part of the territory of the United States as the mainland ; and that if the line were drawn outside of the islands, then there would not be any strip or lisiere, inshore at all, and the very object sought by the treaty of 1825 between Russia and Great Britain would be defeated. The ninth and last ground relied upon by Sir Robert Finlay to es- tablish the assertion of broad claims of maritime jurisdiction by Great Britain was founded upon extracts from the Memoirs of John Quincy Adams, extracts from the correspondence between Mr. Adams and Mr. Jonathan Russell, and the separate report to the Secretary of State of Mr. Russell, who was one of the negotiators at Ghent. These extracts are printed in the Appendix to the British Counter- Case, on pp. 137 to 169. I am not going at any length into this correspondence. I merely wish to make this observation : that in writing this book, " The Fish- eries and the Mississippi," from which certain of these extracts are taken, Mr. Adams was replying, in the midst of a heated political controversy, to Mr. Russell, at a time when Mr. Adams, at least if 1096 NORTH ATLANTIC COAST FISHERIES ARBITRATION. not a candidate, was in a receptive mood for the Presidency of the United States. He was in fact made President within two years thereafter. He was replying to this report of Mr. Kussell's, which, although written in 1815, shortly following the signing of the Treaty of Ghent, was not in fact made public, for the apparent embarrass- ment of Mr. Adams, until 1822, which fact — the delay in publica- tion— appears in the British Counter-Case, Appendix, on page 150. The publication of this report of Mr. Russell's, in 1822, gave rise to this controversy with Mr. Adams, and resulted, as I say, in the publication of this book, from which these extracts in the British Counter-Case Appendix have been taken. In this controversy Mr. Adams was apparently seeking to justify the position of the majority of the Commissioners at Ghent, as against the position of Mr. Russell, in demanding the inshore fish- eries as a matter of principle, and was undertaking to justify the contention put forward by the majority of the Commissioners in 1814 that none of the rights under the treaty of 1783 had been abrogated by the war of 1812. Reading from this correspondence, on p. 161 of the British Coun- ter-Case Appendix, the counsel for Great Britain made an observa- tion regarding the effect of a statement there found. No particular importance should be attached to this controversy, in any event, but it plainly appears from this correspondence that what Mr. Adams was arguing with Mr. Russell was that, if Mr. Russell had been able to persuade the majority of the Commissioners for the United States at Ghent to admit the worthlessness of the fisheries — and the word " worthlessness " was used at the time by Mr. Russell — the British Commissioners might have undertaken, in 1814, to obtain by a treaty stipulation the whole of the fisheries, and might have sought to insert in the treaty an exclusive right to the enjoyment of the entire fisheries, as such provisions had been in- corporated in the French and Spanish treaties many years before. There are one or two extracts from this report and correspondence thai I desire to bring to the attention of the Tribunal. If the Tri- bunal will now kindly follow me to the separate report of Mr. Russell to the Secretary of State of the United States, datecl the llth Feb- ruary, 1815, made after the treaty had been signed, printed on p. 150 of the Appendix to the Counter-Case of Great Britain, there will be found the following statement, beginning at the bottom of that page:— " I now have the honor to state to you the reasons which induced me to differ from a majority of my colleagues on the expediency of offering an article confirming the British right to the navigation of the Mississippi, and the right of the American people to take and cure fish in certain places within the British jurisdiction." ARGUMENT OF CHARLES B. WABREN. 1097 Mr. Russell knew of the distinction that was drawn by the Com- missioners at Ghent, and this Tribunal now knows, from the corre- spondence found in the pamphlet, as I have called it, what the in- structions of Lord Castlereagh and Lord Bathurst were to the Com- missioners at Ghent regarding the extent of British jurisdiction. I wish to call attention to an extract, found on p. 162 of the Appendix to the British Counter-Case. This is a portion of the answer of Mr. Adams — one of the answers of Mr. Adams to Mr. Russell — and in it he makes this statement : — " It was this incident which led to the negotiations which ter- minated in the convention of 20th October, 1818. In that instru- ment the United States have renounced forever, that part of 6G1 the fishing liberties which they had enjoyed or claimed in certain parts of the exclusive jurisdiction of the British prov- inces, and within three marine miles of the shores." On p. 165 of the Appendix to the British Counter-Case, in another portion of this correspondence, Mr. Adams said, in a rejoinder to Mr. Russell : — " The conflict of opinion was adjusted by a new article,"- That is, in the treaty of 1818 — " as little liable to be abrogated by a future war, as the treaty of Independence. By this article, we have expressly renounced a small portion of the liberties within the exclusive and limited territorial jurisdiction of part of the British provinces, and have received in equivalent an enlargment of those liberties on the coast and shores of Xewfoundland." If the Tribunal will now turn to p. 168 of this same Appendix, I desire to read a portion of a letter, which also was not read when this correspondence was being discussed by the distinguished counsel for Great Britain. In fact, it is not a part of the correspondence of 1822 at all, but it is printed in connection with the correspondence of 1822, in the British Counter-Case Appendix. This letter, from which I am about to read, is a letter written by Mr. Adams, under date the 26th December, 1814, to one of the American negotiators of the treaty of 1783, and the Tribunal will bear in mind that the Treaty of Ghent was signed on the 24th December, 1814. So that Mr. Adams wrote this letter two days after the signing of the treaty: — " There is, as you must remember, in the third article of the treaty of 1783, a diversity of expression by which the general fisheries on the Banks are acknowledged as our right, but these fishing privileges within the British jurisdiction, are termed liberties. The British government consider the latter as franchises forfeited ipso facto by the war, and declared they would not grant them anew without an equivalent." 1098 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Mr. Adams was not labouring under any misapprehension two days after the signing of the treaty. And a little further down in that letter he states: — " It was termed a liberty because it was a freedom to be enjoyed within a special jurisdiction; the fisheries on the Banks were termed rights because they were to be enjoyed on the ocean, the common jurisdiction of all nations;" Mr. President, we are not confined to the correspondence between Mr. Russell and Mr. Adams, or to the memoirs of Mr. Adams, or to the letter just read, in order to show that there was no broad asser- tion of jurisdiction over waters adjacent to the shores of the British possessions in North America by the British Government through the negotiators of the Treaty of Ghent. The Tribunal has now before it a portion of the instructions of Lord Castlereagh and Lord Bathurst to the Commissioners appointed to negotiate at Ghent. These instructions have been found amongst the letters and despatches of Lord Castlereagh, published in London in 1853, and on p. 4 of the pamphlet submitted to the Tribunal con- taining these instructions is an instruction from Lord Castlereagh to the British Commissioners in the terms which the Tribunal will recall. And it will also be recalled that in a later instruction ap- pearing at p. 9 of that pamphlet, Lord Bathurst instructed the Com- missioners that the usual maritime jurisdiction of one league was common to the two Powers unless modified by treaty. In this connection I desire to submit the observation of Sir Charles Russell in the Behring Sea Arbitration, appearing at p. 318 of vol. XIII of the American reprint, where Sir Charles Russell, after read- ing this very instruction from Lord Castlereagh to the Commissioners at Ghent, stated at the top of p. 318 — First I would direct the attention of the Tribunal to the fact that in the reprint of these Proceedings of the Behring Sea Tribunal there is an evident error, in that Sir Charles Russell's observation is printed as a part of Lord Castlereagh's instruction. The observation is plainly to be distinguished from the terms of the instruction of Lord Castlereagh for if the Tribunal will compare the extract from the instruction, as read by Sir Charles Russell, with the instruction printed in the pamphlet now before this Tribunal, it will be observed that they agree exactly down to the point where Sir Charles Russell makes this observation, after reading from Lord Castlereagh's in- struction : — " You will see it is an entirely erroneous view to suggest that at any time and in any part of this discussion, Great Britain was assert- ing that the open sea was not open to all mankind as between the United States and herself, or that she was conferring upon the United States a privilege which she did not have as a general right." AEGUMENT OF CHARLES B. WARREN. 1099 662 There is another portion of the argument of Sir Charles Russell on p. 317 of this volume that I would like to call to the attention of the Tribunal. " It was merely a recognition of a right common to all nations, and as to the fishing on the coast, bays and creeks within the municipal dominion of His Majesty." I will content myself with reading one other extract bearing upon this argument of the counsel for Great Britain that there were broad claims put forward as against the United States from which it might be presumed that the area of sea over which Great Britain claimed a right to exercise dominion was so vast, that it would include large bodies of water adjacent to the shore, and therefore include bays. Lord Alverstone, the present Chief Justice of England, on p. 544 of this volume XIII of the American reprint of the Fur Seal Arbitra- tion said : — "Mr. President, if that argument was worth anything at all it means simply this: that Great Britain (and Canada, representing the rights of Great Britain) have either prevented or claimed to prevent the United States from enjoying the rights of fishing outside the three-mile limit or outside territorial waters in the Atlantic. Sir, I will make good what I am about to say by reference, but I assert that since the year 1783 such a contention has been impossible, and if I choose to go back I say that long before that time the contention had disappeared ; but from the year 1783 down to the present time, Brit- ish, French, United States, and for all I know other nationals — but these are sufficient for my purpose — have been fishing side by side on the banks of Newfoundland 50 or 60 miles from shore, or whatever the distance is, without a shadow of a suggestion that the United States people were there either by grant, by sufferance, by treaty, or in any other way than as exercising the common right of all nations." THE PRESIDENT: If you please, Sir: As you recur several times to the Behring Sea Arbitration, may I repeat a question which I asked this morning, and the answer to which you deferred : What was the position that the United States took in the Behring Sea Arbitration concerning its rights as the successor of Russia, in consequence of the treaties of 1824 and 1825 ? MR. WARREN : Mr. President, if you will pardon me again, I am not intending to avoid stating fully the position of the United States in the Behring Sea controversy, nor is there any reason for avoiding it. I am going to reply in full to the inferences that might erroneously be drawn from the extracts from the proceedings of the Behring Sea Tribunal printed in the Appendix to the Case of Great Britain sub- mitted to this Tribunal ; but I had not expected at this session to pre- sent my views on that controversy, and have not at this moment before me the necessary books from which I would have to read. Sir Robert Finlay did not rely upon the position taken by the United States before the Behring Sea Tribunal to support his con- 1100 NORTH ATLANTIC COAST FISHERIES ARBITRATION. tention against which I am at present directing my argument. At the next session, Mr. President, I will have the necessary books, and will answer at length the question which you have put to me. THE PRESIDENT : I beg pardon. I merely thought that it would as- sist us in an appreciation of the facts concerning the Behring Sea controversy; that it would be better to have full cognizance of the case now. But if it is more convenient to you, we certainly shall wait. Mr. WARREN : If the Tribunal please, I have now concluded what- ever comment and citations it seemed advisable to make on the data which I designated this morning. This data was relied upon by Sir Robert Finlay to prove that both the United States and the Govern- ment of Great Britain were, immediately preceding the making of the treaty of 1818, and since have been, putting forth such broad claims of exclusive maritime jurisdiction as to preclude this Tribunal from finding that the claim by Great Britain, in 1818, to exclusive jurisdiction over bodies of water adjacent to the shores of its pos- sessions in North America, was confined to a claim of jurisdiction over waters lying within 3 marine miles of the shores — excepting always the irregular-shaped areas of waters which have been referred to as triangular bodies of water. Mr. President, I will not state the conclusions necessarily result- ing, it seems to me, from the review of this data, authorities and citations which have been presented bearing thereon, but will content myself with submitting to the Tribunal the argument as made, and with making this statement — that the contention of the learned coun- sel for Great Britain is entirely unsupported by the data upon which he relied. I now come to the incident of the " Jaseur," from which arose the correspondence which afterwards became a basis for the negotiations that resulted in the treaty of 1818. 663 Mr. Monroe, who was Secretary of State of the United States, wrote Mr. Baker, the British charge at Washington, the letter that will be found in the Appendix to the Case of the United States on p. 262. The letter simply called Mr. Baker's at- tention to what Mr. Monroe said was an invasion of the rights of the United States. The Tribunal is entirely familiar with the fact of the warning to an American fishing-vessel by the British ship of war " Jaseur " in 1815. Mr. Baker replied to Mr. Monroe's note, in a note which was found in the Appendix to the Case of the United States on p. 264. I referred yesterday to this note, and observed its date, 31st August, 1815. Instead of reading from it again, I shall content my self with citing it. ARGUMENT OF CHARLES B, WARREN. 1101 John Quincy Adams was the American Minister in Great Britain at this time, and it will be recalled that he had been one of the negotiators of the Treaty of Ghent, and that he, therefore, was en- tirely familiar with the claims of the United States in regard to the North Atlantic fisheries,, The Secretary of State advised Mr. Adams of the incident, as will be seen in a note printed in the Appendix to the Case of the United States on p. 263 : and after notifying him of this warning given by this British sloop — the " Jaseur " — which was promptly stated to be without any authority whatever — the Secretary of State wrote to Mr. Adams: — " It is sufficient to observe here, that the right of the United States to take fish on the coat of Newfoundland, and on the coasts, bays and creeks of all other of His Britannic Majesty's dominions in Amer- ica, and to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen islands, and Labrador — in short, that every right appertaining to the fisheries, which were secured by the treaty of 1783, stands now as unshaken and perfect as it then did, constituting a vital part of our political existence, and resting on the same solid foundation as our independence itself." And he added, as appears on p. 264 of the same Appendix : — " It can scarcely be presumed that the British Government, after the result of the late experiment, in the present state of Europe, and under its other engagements, can seriously contemplate a renewal of hostilities. But it often happens with nations, as well as with indi- viduals, that a just estimate of its interest and duties is not an infallible criterion of its conduct. We ought to be prepared at every point to guard against such an event. You will be attentive to cir- cumstances, and give us timely notice of any danger which may be menaced." This observation, like many others of a similar nature, is only important at this late day for the reason that it furnishes a just measure of the importance attached to this fishery question by the people of the United States during the period under consideration. The North Atlantic fisheries were inseparably connected with the struggle for Independence, and were regarded, as stated by Mr. Monroe, as constituting a vital part of our political existence, and resting on the same solid foundation as our Independence itself. These views, as I say, are only important as throwing light upon the construction of the renunciatory clause of the treaty of 1818. It is not, I submit, to be readily concluded that the United States would surrender vital liberties, or make a concession, asnow con- strued by Great Britain, that gave up, without a struggle, important national rights, the surrender of which to the extent now contended had never been asked ; nor is it to be easily believed that this sur- render was made by Plenipotentiaries instructed by the President of 1102 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the United States " that the British Government may be well 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." Upon the receipt of these instructions from the Secretary of State. Mr. Adams took up with the Foreign Office of Great Britain the matter of the fisheries left unadjusted by the Treaty of Ghent, and under date the 19th September. 1815. in a note printed on p. 164 of the Appendix to the Case of the United States, he advised his Government of the results of an interview with Lord Bathurst, and stated at length what Lord Bathurst had stated to him. That por- tion of Mr. Adams's note to which I wish to refer is this: — " There were other objects which I deemed it necessary to present again to the consideration of this Government. In the first instance, it seemed advisable to open them by a verbal communication; and I requested of Lord Bathurst an interview, for which he appointed the 14th instant, when I called at his office in Downing Street. I said that, having lately received despatches from you respecting several objects of some importance to the relations between the two coun- tries, my first object in asking to see him had been to inquire whether he had received from Mr. Baker a communication of the correspond- ence between you and him relative to the surrender of the Michili- mackinac; to the proceedings of Colonel Nichols in the south- 664 ern part of the United States; and to the warning given by the captain of the British armed vessel " Jaseur " to certain Amer- ican fishing vessels, to withdraw from the fishing grounds to the dis- tance of 60 miles from the coast. He answered, that he had received all these papers from Mr. Baker about 4 days ago; that an answer with regard to the warning of the fishing vessels had immediately been sent ; but, on the other subjects, there had not been time to ex- amine the papers and prepare the answers. I asked him if he could, without inconvenience, state the substance of the answer that had been sent. He said, certainly: it had been that as. on the one hand, Great Britain could not permit the vessels of the United States to fish within the creeks and close upon the shores of the British terri- tories, so, on the other hand, it was by no means her intention to interrupt them in fishing anywhere in the open sea, or without the ter- ritorial jurisdiction, a marine league from the shore; and, therefore, that the warning given at the place stated, in the case referred to, was altogether unauthorized. I replied, that the particular act of the British commander in this instance, being disavowed, I trusted that the British Government, before adopting any final determination upon the subject, would estimate, in candor, and in that spirit of amity which my own Government was anxiously desirous of main- taining in our relations with this country, the considerations which I was instructed to present in support of the right of the people of the United States to fish on the whole coast of North America, which they have uniformly enjoyed from the first settlement of the country; that was my intention to address, in the course of a few days, a letter to him on the subject. He said that they would give due attention to the letter that I should send him, but that Great Britain had explic- ARGUMENT OF CHARLES B. WARREN. 1103 itly manifested her intention concerning it; that this subject, as I dou bless knew, had excited a great deal of feeling in this country, perhaps much more than its importance deserved; but their own fish- ermen considered it as an excessive hardship to be supplanted by American fishermen, even upon the very shores of the British do- minions." It does not appear reasonable, I respectfully submit, if Great Brit- ain intended to claim exclusive jurisdiction in respect to the fisheries, as against the people of the United States, over the great outer bays, that the claim would be put forward in the statement made by Lord Bathurst in this interview. On p. 268 of the Appendix to the Case of the United States is to be found a note from Mr. Adams to Lord Bathurst which contains, on p. 269, the extract which I read yesterday embodying Mr. Adams's statement to Lord Bathurst of what Mr. Adams understood Lord Bathurst to have said in the interview that immediately pre- ceded the letter. And I called the fact to the attention of the Tri- bunal when stating briefly the claim of Great Britain, that this letter from Mr. Adams was in pursuance of a formal notice to Lord Bath- urst that Mr. Adams intended to incorporate in a note the substance of the interview between him and Lord Bathurst. There is one paragraph on p. 269 in this note from Mr. Adams to Lord Bathurst that I wish to read : — " But, in disavowing the particular act of the officer who had pre- sumed to forbid American fishing vessels from approaching within sixty miles of the American coast, and in assuring me that it had been the intention of this Government, and the instructions given by your lordship, not even to deprive the American fishermen of any of their accustomed liberties during the present year, your lordship did also express it as the intention of the British Government to exclude the fishing vessels of the United States, hereafter, from the liberty of fishing within one marine league of the shores of all the British terri- tories in North America, and from that of drying and curing their fish on the unsettled parts of those territories, and, with the consent of the inhabitants, on those parts which have become settled since the peace of 1783." The contents of Lord Bathurst's answer to Mr. Adams' note is most important. The answer will be found on p. 273 of the Appendix to the Case of the United States. Lord Bathurst was writing under date the 30th October, 1815 :— "The undersigned, one of His Majesty's principal Secretaries of State, had the honor of receiving the letter of the minister of the United States, dated the 25th ultimo, containing the grounds upon which the United States conceive themselves, at the present time, entitled to prosecute their fisheries within the limits of the British sovereignty, and to use British territories for purposes connected with the fisheries." 92909°— S. Doc. 870, 61-3, vol 10 14 1104 NORTH ATLANTIC COAST FISHERIES ARBITRATION. If the Tribunal please, that note was a direct acknowledgment of Mr. Adams' note containing the statement, in precise language, of what Lord Bathurst had stated to him in the previous interview; and I submit that Lord Bathurst adopts and accepts the definition of the extent of the British sovereignty as expressed by Mr. Adams in his letter of the 25th September, 1815, which is found on p. 268 of the Appendix to the Case of the United States. Lord Bathurst also stated in this note, on p. 278 of this Ap- pendix : — " It was not of fair competition that His Majesty's Government had reason to complain, but of the preoccupation of British harbors and creeks, in North America, by the fishing vessels of the 665 United States, and the forcible exclusion of British vessels from places where the fishery might be most advantageously conducted. They had, likewise, reason to complain of the clandestine introduction of prohibited goods into the British colonies by Ameri- can vessels," etc. The notes exchanged between Lord Bathurst and Mr. Adams were subsequently placed in the hands of the negotiators in 1818. I have stated that they were given to the Commissioners and were referred to as the measure of the respective admissions and contentions of the two Powers. I now respectfully refer the Tribunal to the evidence supporting the statement. First on p. 304 of the Appendix to the Case of the United States will be found the instructions from Mr. Adams, who had returned from England to become Secretary of State of the United States, to Messrs. Gallatin and Rush, the negotiators of the treaty of 1818 in behalf of the United States. In these instructions Mr. Adams stated, under sub-division 5 relat- ing to the fisheries: — " 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." It will be recalled that Mr. Gallatin was one of the Commissioners at Ghent. " Mr. Rush possesses " • It will also be remembered that Mr. Rush had been acting Secre- tary of State of the United States and had conducted certain of the correspondence regarding this controversy prior to his being ap- pointed Minister for the United States in Great Britain. So Mr. Adams states : — " 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." ARGUMENT OF CHARLES B. WARREN. 1105 And the second reference is to the British Case Appendix, p. 85, where will be found an extract from the instructions from Lord Castlereagh, Principal Secretary of State for Foreign Affairs for Great Britain, to Messrs. Kobinson and Goulb^rn who were the Com- missioners in behalf of Great Britain in 1818. Lord Castlereagh stated in these instructions, under date the 24th August, 1818 : — " The accompanying papers will bring the present state of the fishery question under your view. I refer you to the proceedings at Ghent for those arguments upon which the British plenipotentiaries maintained, as I conceive unanswerably, that the second branch of the Illrd Article of the treaty of 1783 had expired with the war." Then in the next paragraph he said : — " The subsequent correspondence will show which, of course was a part of the accompanying papers " the nature of the claim put forward by the American Government soon after the peace." &c. I submit that in this correspondence enclosed by Lord Castlereagh, Lord Bathurst had stated, in language characterised by great exact- ness, the extent of the claim of the Government of Great Britain. And I repeat, there was no broad claim of jurisdiction over large bays or large bodies of water adjacent to the shores. The 3-marine-mile line was measured from the shore, and within that line were the waters denied to the vessels of the United States. The negotiations thereupon proceeded with a definite understanding that there was no controversy as to the extent of the maritime juris- diction of Great Britain in respect of these fisheries as against the inhabitants of the United States. Surveying for a moment this correspondence between the two Gov- ernments relating to the arrangement of the details for a modifica- tion of the liberty previously recognised as belonging to American fishermen, and with the knowledge in mind that the extent of juris- diction was not now a subject of controversy, the conclusion is irre- sistible that the negotiation did not involve any assumed claim to jurisdiction over the outer bays or the large bodies of water adjacent to the British possessions in North America. After the notes had been exchanged between Mr. Adams and 666 Lord Bathurst, Lord Bathurst, in a note on p. 278 of the Ap- pendix to the United States Case, expressed a willingness — " to enter into negotiations with the Government of the United States for the modified renewal of the liberties in question ; and they doubt not that an arrangement may be made satisfactory to both countries, and tending to confirm the amity now so happily subsist- ing between them." Mr. Adams transmitted this note from Lord Bathurst to his Gov- ernment under date the 8th November, 1815. The note is found on 1106 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 Govern- ment 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 Bath- urst's statement of the British jurisdiction, as he had a copy of the note of Mr. Adams stating it, and possessed the entire correspond- ence 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 inhab- itants 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 instruc- tion from Lord Castlereagh is found in the Appendix to the Counter- Case 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 communi- cating the offer of certain coasts to the Government of the United States, and it is unnecessary to go further into that. The note from ARGUMENT OF CHARLES B. WARREN. 1107 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 negotia- tions 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 ar- ranging 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 sub- mit, 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 ves- sels 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? 1108 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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, un- der date the 4rth August, 1817, that these vessels had put into the harbour at Ragged Island, on the coast of Nova Scotia, near Shel- bourne, 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 estab- lish that there was nothing in the seizure of those vessels which con- flicted in any manner with the position which it is claimed the Gov- ernment 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? ARGUMENT OP CHARLES B. WARREN. 1109 MR. WARREX: Yes, your Honour. There were no other seizures than those referred to in this note of Mr. Rush, and the seiz- 668 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 Gal- latin 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 trans- mitted. " 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 cur- ing 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 under- standing 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- 1110 NORTH ATLANTIC COAST FISHERIES ARBITRATION. nestly bent upon obtaining for his own State of Massachusetts and his country the rights for which he had so long contended and forci- bly 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 juris- diction, 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 par- ticle of these rights will be finally yielded by the United States with- out 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 com- 669 mitted within the harbours of the United States, now in- structed 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 fail- ing, not a particle of these rights would be finally yielded by the ARGUMENT OF CHARLES B. WARREN. 1111 United States without a struggle which would cost Great Britain more than the worth of the prize? And is it to be concluded that this surrender of historic rights and liberties of the United States, that had cost the colonists dearly in blood and treasure, was now to be made without any demand for a similar recognition of the extension of jurisdiction on the shores of the United States ? Or is it to be determined that both Governments understood the exclusive British jurisdiction, in respect of the fisheries as against the United States, to include within its limits, only the waters within 3 marine miles of the British shores in North America comprehending the creeks and other waters " close upon the shores," as stated by Lord Bathurst in a note referred to in the instructions to the Com- missioners for both Governments ? Or is it to be determined that when the Secretary of State of the United States, who himself had received from Lord Bathurst the statement of the extent of the exclusive British jurisdiction, used the phrase " British jurisdiction generally " in formal instructions to the Plenipotentiaries of the United States he had no doubt as to the accepted meaning of the term ? I pass now to the protocols of the negotiations for the treaty of 1818, and first to that of the third conference held on the 17th September, 1818, to be found on p. 310 of the Appendix to the United States Case. The American Plenipotentiaries put forward the first draft of this article 1 of the treaty of 1818. It begins on the bot- tom of p. 310 :— " Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry and cure fish on certain coasts, bays, harbours and creeks of His Britannic Majesty's Dominions in America : It is agreed between the high con- tracting parties that the inhabitants of the said United States shall continue to enjoy unmolested forever, the liberty to take fish, of every kind, on that part of the southern coast of Newfoundland which ex- tends from Cape Ray to the Ramea islands, and the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Island on the Magdalen Islands; and also on the coasts, bays, harbors, and creeks from Mount Joli, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence north- wardly, indefinitely, along the coast; and that the American fisher- men shall also have liberty forever to dry and cure fish in any of the unsettled bays, harbours and creeks of the southern part of the coast of Newfoundland hereabove described, of the Magdalen Islands, and of Labrador, as hereabove described; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fish- ermen to dry or cure fish at such settlement, without previous agree- ment for that purpose with the inhabitants, proprietors, or possessors of the ground; and the United States hereby renounce any liberty 1112 NORTH ATLANTIC COAST FISHERIES ARBITRATION. heretofore enjoyed or claimed by the inhabitants thereof to take, dry or cure fish on or within three marine miles of any of the coasts, bays, creeks and harbours of His Britannic Majesty's Dominions in America not included within the above-mentioned limits; provided, however, that the American fishermen shall be admitted to enter such bays and harbours for the purpose only of obtaining shelter, wood, water, and bait, but under such restrictions as may be necessary to prevent their drying or curing fish therein, or in any other manner abusing the privilege hereby reserved to them." This proposal is in most essential particulars identical with the article as it finally appeared in the treaty, and it is quite unnecessary to pause to read it, as it may be incorported in the report as though read. THE PRESIDENT: Please, Sir, what sense do you attribute to the word " any " in the renunciatory clause ? The first time it says re- nounce " any " liberty ; and the second time " within three marine miles of ' any ' of the coasts, bays, harbors, creeks," and so on. Is the word " any " essential or important, or is it unnecessary and superfluous in your opinion, in the second place where it occurs? Would the sense be the same if the word " any " were omitted, if it read " within three marine miles of the coasts, bays, and creeks ? " MR. WARREN: The clause to which you refer, Mr. President, is " and the United States hereby renounce any liberty heretofore en- joyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within 3 marine miles of any of the coasts," and 670 so on. The word " any " is certainly used in a distributive and refers to all the coasts. THE PRESIDENT : You are inclined to think the word " any " is of no great importance, however? MR. WARREN : Counsel for the United States have never attached any importance to the word itself — it plainly means all the coasts. I will come to the point later in my argument. JUDGE GRAY : Is it not equivalent to " all the coasts," or " every one of the coasts," and so on ? MR. WARREN : As I just answered the President, your Honour, I think the word was used in a distributive sense as referring to all the coasts, and the negotiators put it " any " of the coasts. SIR CHARLES FITZPATRICK: It might have meant coasts and bays of " every description." DR. DRAGO : It is tantamount to saying : " with no exception." It means " all and every." SIR CHARLES FITZPATRICK : " Of every description." JUDGE GRAY : It is intensive. They might have left it out. MR. WARREN : The Tribunal will observe, of course, that the re- nunciatory clause as it appears in the treaty finally, is a part of the draft presented by the American Commissioners. The reason that ARGUMENT OF CHARLES B. WARREN. 1113 the American Commissioners desired to state any surrender that was made in compliance with the bargain to be made in the words " the United States hereby renounce " was that they wished to have it understood that the United States was giving up a right which it claimed. This is shown by the report of the American Commissioners to their Government to which I shall refer at a later period. At the conference on the 6th October, the protocol of which is found on p. 312 of the Appendix to the Case of the United States, the Commissioners on behalf of Great Britain brought forward an article on the fisheries which the American Commissioners rejected. Later, an article, practically as drafted by the American Commis- sioners— and I am confining myself to this Question under discus- sion— including the renunciatory clause was accepted. This article appears in the Appendix to the Case of the United States on p. 315, and is, of course, the present article 1 of the treaty now before this Tribunal. It may be set out as though read, and I will not pause to read it. "ARTICLE A. " Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbours, amd creeks of His Britannic Majesty's dominions in America : It is agreed between the high con- tracting parties that the inhabitants of the said United States shall have, forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Ramea Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbours, and creeks, from Mount Joli, on the southern coast of Labrador, to and through the straits of Belle Isle, and thence, northwardly, indefinitely, along the coast, without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company; and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of New- foundland, hereabove described, and of the coast of Labrador ; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the in- habitants, proprietors, or possessors of the ground. And the United States hereby renounce, forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within 3 marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America, not included within the above-mentioned limits: Provided, however, That the American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter, and of repairing damages therein, of pur- chasing wood and obtaining water, and for no other purpose what- 1114 NORTH ATLANTIC COAST FISHERIES ARBITRATION. ever. But they shall be under such restrictions as may be neces- sary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges thereby reserved to them." 671 On the 19th of October the article was agreed to, and on the 20th of October, 1818, the treaty was signed. If the Tribunal please, I desire to repeat what, perhaps, I stated a day or two since, when I was not considering the renunciatory clause of this article in detail, that if this renunciatory clause read " on or within three marine miles of any of the coasts, bays, creeks, or harbours within the British jurisdiction," or " within the British limits," or " within the exclusive jurisdiction of Great Britain," or " within the maritime limits of Great Britain," or " within the limits of the British sovereignty," would there now exist, or would there ever have existed, any doubt as to its meaning? Unquestionably the definite meaning attached to any of these terms in the notes and discussions between the two Governments antedating the meeting of the Commissioners would have attached when the phrases were again used. The words " His Britannic Majesty's Dominions in America," were the equivalents in all material and practical respects, leaving out for the present legal distinctions, of any one of these other phrases. Without here digressing for the purpose of entering into a philo- sophical and legal discussion of the various theories as to the nature of the right of the bordering State over the waters adjacent to its coasts, I wish to take the time to call the attention of the Tribunal to the precise meaning of the term " dominion." " Dominion," or the word dominium denotes a property right in the littoral sea. The word " sovereignty," or the word imperium, denotes the right to exercise sovereignty over the littoral sea, and the word " jurisdiction," or the word jurisdictio, signifies the right to exercise jurisdiction, which is only one of the many functions of sovereignty. The term " His Britannic Majesty's Dominions in America," as against the terms " within the limits of British Sovereignty," and " within the exclusive jurisdiction of Great Britain," if the negotia- tors had these distinctions in mind, denoted the narrowest right in respect of the extent of waters, although, philosophically and legally, the most complete right, in respect of the nature of the right, in the littoral sea. It is the submission of the United States, in regard to this re- nunciatory clause, that it is not conceivable that the American Com- missioners, instructed by the Secretary of State, that in case a fair adjustment was not reached, " the British Government may be well assured that not a particle of these rights will be finally yielded by ARGUMENT OF CHARLES B. WARREN. 1115 the United States without a struggle, which will cost Great Britain more than the worth of the prize," and guided by a Secretary of State who had informed the British Minister — as appears in the Appendix to the United States Case, on p. 301 — that he believed they would have to fight about it, and that his opinion was they ought to do so — should at the first conference have brought forward a pro- posal never requested by Great Britain, that, according to the present contention of Great Britain, amounts to a surrender by the inhabit- ants of the United States of access to bodies of water of enormous extent, the right to which was regarded as one of the heritages of the early struggles for colonial existence and of the later contests for Independence. The liberty of fishing within these great bodies of water had been exercised by the colonial fishermen from times running back to within a few decades after the settlement of the continent. This liberty re- mained after the peace of 1783, after the Treaty of Ghent, had never at any time thereafter been the subject of discussion or controversy between the two Governments; but, it is now asserted, that the Plenipotentiaries of the United States yielded this historic right without a consideration, without a demand, and without a reference to their Government for authority ; and with no counter-demand for a similar extension of the jurisdiction of the United States along the coasts of the United States, bordering the Atlantic Ocean. It does not seem that the extent of the " bays, creeks, and harbours of His Britannic Majesty's Dominions in America," if there was to be any extention beyond the acknowledged jurisdiction, could be estab- lished or determined except by agreement between the two nations. There had been no assertion of jurisdiction over the large outer bays on the part of Great Britain, and certainly no acquiescence by the United States in any broad claim to, or assertion of, jurisdiction. On the contrary, it seems plain that the "bays, creeks, and har- bours of His Britannic Majesty's Dominions in America," were those within the British limits, and, therefore, necessarily 6 marine miles or less in width, and that they comprehended only the waters close upon the shores which were sought to be closed against the fishing- vessels of the United States. Digressing for a moment, I submit that it has been abundantly established that there was no broad assertion of jurisdiction 672 by the Government of Great Britain over the seas lying off these coasts against the people of the United States during any part of this period. The complaint of Lord Bathurst, which was in the hands of the Plenipotentiaries, was not based upon any infraction of any broad claims to exclusive jurisdiction over the vast outer bays bordering the British possessions in North America; but, on the contrary, was 1116 NORTH ATLANTIC COAST FISHERIES ARBITRATION. directed against the occupation of British harbours and creeks in North America by the fishing-vessels of the United States, and against the vessels of the United States fishing within the creeks and close upon the shores of the British territories. He had expressly disavowed — I use his language — any " intention to interrupt them in fishing anywhere in the open sea or without the territorial jurisdic- tion, a marine league from the shore." The discussion and exchange of notes leading up to this treaty had continued during four years, and throughout the discussions and in the exchange of formal diplomatic notes, " the limits of the British sovereignty " were definitely understood, without being at any time the subject of controversy, to extend " a marine league from the shore," of all the British possessions in North America. Bays, harbours, and creeks in North America were referred to, but never at any period of the negotiations did Great Britain assert juris- diction over any waters beyond 3 marine miles from the shores, and never at any period of the negotiations was there any discussion of exclusive jurisdiction over the great outer bays, or any complaint recorded by the Government of Great Britain against the use of these great bays. The Tribunal will recall that I have shown that the only seizures, after the war of 1812, and there were, of course, none before 1812, and prior to the negotiations of 1818, were made in harbours that were less than 6 marine miles across in any part. Great Britain had, through Mr. Bagot, offered to concede the use of the waters along a designated coast. The negotiators met. Those on behalf of the United States drafted and presented in this pro- posed Article A their demand for a concession to the inhabitants of the United States within the "British limits," and brought forward this renunciatory clause as formulating their conception of the sur- render of pre-existing rights, and the British proposal that the vessels of the United States should not, outside of the coasts to be desig- nated, resort to the waters close upon the shores within the British jurisdiction of 3 marine, miles from the shores. As large a permanent right as possible for fishing, drying, and curing within the admitted British limits, including access to the shores, was sought to be retained by the United States, but there was never any demand for a renunciation or any intention of renouncing any right or liberty to fish in bodies of water not claimed as a part of the exclusive British jurisdiction. I submit that if the " British limits," or the " limits of the British sovereignty" or the "limits of the British jurisdiction," extended 3 marine miles from the shores, how could a bay, creek, or harbour of His Britannic Majesty's dominions include waters more than 3 marine miles from the shores 2 ARGUMENT OF CHARLES B. WARREN. 1117 These bays, within the 3-mile limit, were closed bays and the line to which I referred, upon the first day of my submission of this Question, drawn from the point, where the lines following the sinu- osities of the shore meet, to the opposite shores, closed bays of that nature against the fishing- vessels of the United States, and the phrase agreed upon in the treaty " on or within 3 marine miles of any of the coasts, bays, creeks, or harbours," foreclosed the fishing-vessels of the United States from entering the small triangular-shaped bodies of water, which have been already sufficiently described. At the outset of the presentation of this Question 5 the statement was made that the Tribunal must determine the coasts referred to, and the true interpretation of the phrase "on or within 3 marine miles of any of the bays, creeks, or harbours of His Britannic Majes- ty's Dominions in America," when used in connection with the pro- vision "within 3 marine miles of any of the coasts." I shall take time to refer to but one of the historical uses of this word "coasts"; and I refer to the treaty between Great Britain, France, and Spain of 1763, which appears on p. 52 of the Appendix to the Case of the United States : — "The subjects of France shall have the liberty of Fishing and Drying, on a part of the coasts of the Island of Newfoundland, such as it is specified in Article XIII of the Treaty of Utrecht; which Article is renewed and confirmed by the present Treaty, (except what relates to the Island of Cape Breton, as well as to the other Islands and coasts in the mouth and in the Gulph of St. Lawrence) ." 673 The " coasts " here plainly comprehend the sinuosities of the shore of that portion of Newfoundland referred to, and this was the construction adopted in practice between the two na- tions. The word " coasts," when used the second tune, clearly in- eluded the curving shore line of the Gulf of St. Lawrence. The word " coast " meant, according to the lexicographers of the period, "the edge of the land next to the sea" — the shore; and the word " shore " signified the " coast of the sea." The history of the negotiations, I feel I am justified in saying, has shown that the interdicted waters lay within 3 marine miles of the shores and necessarily comprehended only bays, creeks, or harbours lying within the " maritime limits " and within " the exclusive Brit- ish jurisdiction." When, therefore, the American Plenipotentiaries drafted this re- nunciatory clause, and, subsequently, when the Plenipotentiaries of both Powers agreed upon its terms, they provided that the inhabit- ants of the United States should renounce any liberty previously en- joyed of taking, drying, and curing fish on or within 3 marine miles of any or all the coasts, except the sections of coast which previously had been specifically designated in the treaty. 1118 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The word " coasts," as used in the treaty, comprehended the coast line of all the great bays; and, of course, the 3 miles could not be measured from the inner coast line of bays, creeks, or harbours 6 marine miles or less in width, for, as I have stated, the line drawn from the point where the lines following the sinuosities of the shores meet, to the opposite shores, excludes fishing-vessels of the United States from such bays no matter what their inner extent. Therefore, the 3-mile-from-land rule was adopted which excluded the fishing- vessels of the United States from all such bays, as it would be impossible for the vessels to enter them without passing through waters which were admittedly territorial waters of Great Britain. Such bays, creeks, or harbours as lay landward of the point where these two lines following the sinuosities of the shore meet were closed to American fishermen; and, as I stated a day or two since, a rule for the guidance of fishermen was laid down, and it was provided that American fishing-vessels should not fish within 3 miles of a line drawn 3 miles out from the point of intersection of the lines follow- ing the sinuosities of the coasts. So the clause was stated in the treaty : — "On or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's Dominions in America." I have stated that there was no practical difference between these two rules of measurement, and I now submit to the Tribunal drawings which show the average area of the triangular-shaped bodies of water from which the fishing-vessels of the United States are ex- cluded under the words of the treaty — " on or within three marine miles of any of the bays, creeks, or harbors of His Britannic Majesty's Dominions in America " not included in the previously designated coasts. In the case of a bay where the opposite shores are 6 miles apart, it will be seen by the first drawing that the entire area of the average triangle is 3.86 square sea miles. It will also be observed by exam- ining the drawing that in the upper part of the triangle, and indeed until nearly half-way down, the width is less than a mile, and that in each of the other angles the width is less, so that the actual body of water involved is so small that it was deemed by the negotiators of the treaty of no practical importance whatever. A sailing-vessel could not possibly make use of any part of the water enclosed in the upper end or in either of the other angles of the triangle. In case the line is drawn across shores 5 miles apart, the average area of the triangle, it will be found, is only 1.98 square sea miles, including the area in all the angles; and it is perfectly apparent ARGUMENT OP CHARLES B. WARREN. 1119 from the drawing that the water within the angles would be of no practical benefit for fishing purposes. With the line 4 miles in length between the opposite shores, an examination of the drawing submitted will disclose that there is but .96 of a square sea mile of area involved in the average case ; and no drawing is necessary to show that in the case of a body of water but 3 miles wide there would be no difference in the two methods of measurement. I have stated that these mathematical calculations, the results of which are on these drawings submitted, show the average area of water in these triangular-shaped bodies of water. Of course actu- ally the side lines of the triangle following the sinuosities of the shore vary the area in every case. Projections in the coast would 674 lessen the area of the triangle and indentations in the coast would increase the area, but the average area would be as shown on these drawings. The drawings are merely for the purpose of showing the area involved in the surrender by the Commissioners of the United States and for the purpose of showing that the extent of water was and is of no practical importance. The difference between measuring 3 miles from the shore and 3 miles from a bay lying landward of the 3-mile line was so insignificant as to be of no importance whatever. In the opening Argument for Great Britain, at p. 3, the distin- guished counsel said : — " The question which the Court has to deal with is, in our view, mainly — almost entirely — a question of the construction of the lan- guage of the treaty. 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." THE PRESIDENT: Shall we adjourn now and continue on Monday? MR. WARREN: If agreeable to the Tribunal, it would be quite agreeable to me to discontinue at this point for the day. THE PRESIDENT: Yes, we will stop now, and the Court will adjourn until Monday. 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. Bush refers to some further captures and threatened condemnations. You might perhaps, on Monday, give us the details of these captures. 92909°— S. Doc. 870, 61-3, vol 10 15 1120 NORTH ATLANTIC COAST FISHERIES ARBITRATION. P. 308 of the Appendix to the Case, the last sentence in the last para- graph of Mr. Rush's letter : — " I mention this, perceiving, from the newspapers, that there had been fresh captures of our fishing vessels during the last season, fol- lowed by sentences of condemnation." You might give us the circumstances under which these captures had been made, on Monday. I have not been able to find anything with regard to them. MR. WARREN: Without delaying the Tribunal now, I will answer that question Monday. SIR CHARLES FITZPATRICK: Yes. THE PRESIDENT: The Court is adjourned until Monday at 10 o'clock. [Thereupon, at 4.6 o'clock p. m., the Tribunal adjourned until Mon- day, the llth July, 1910, at 10 o'clock a. m.] TWENTY-SECOND DAY: MONDAY, JULY 11, 1910. The Tribunal met at 10 a. m. THE PRESIDENT : Will you continue, Mr. Warren, please ? MR. WARREN : Before proceeding with the line or argument which I was presenting just before the last adjournment, I have now the books necessary for use in answering the question which the President put to me regarding the contention of the United States before the Behring Sea or Fur Seal Arbitration Tribunal in 1893. The question appears at the middle of p. 662 of the report of these proceedings and reads: — " THE PRESIDENT : If you please, sir : As you recur several times to the Behring Sea Arbitration, may I repeat a question which I 675 asked this morning, and the answer to which you deferred: What was the position that the United States took in the Beh- ring Sea Arbitration concerning its rights as to the successor of Kussia, in consequence of the treaties of 1824 and 1825?" Undoubtedly, Mr. President, you intended to confine the question to the treaty of 1825? THE PRESIDENT: Yes. MR. WARREN : I will proceed to that question, and after answering that question, I will take up the question which Sir Charles Fitz- pa' trick put to me just before the adjournment on Friday. Counsel on behalf of Great Britain in this submission did not dis- cuss in oral argument the position taken by the United States in the Fur Seal Arbitration in 1893, but two extracts from the printed Argu- ment of the United States in that arbitration are set forth in the Printed Argument suohiitted by Great Britain to this Tribunal, ARGUMENT OF CHARLES B. WAEREH. 1121 Although the British Argument in this submission makes no com- ment on these two extracts, they are evidently in the evidence for the purpose of giving the impression that the United States in the arbi- tration with Great Britain in 1893 contended for a jurisdiction over the high seas greater than the 3-mile limit common to the two countries. That no such contention was ever made by the United States is clearly established by the correspondence preceding the arbitration, and by reference to the position taken by the United States before the Behring Sea Tribunal. The Fur Seal or Behring Sea controversy arose out of the seizure by the United States of certain Canadian vessels in 1886, and during a few years following 1886. I was one of the counsel for the United States before the High Commission that subsequently heard and de- cided the claims on behalf of the owners of the numerous Canadian vessels that were seized, and I recall the Behring Sea controversy partially from the fact that it was made the subject of study at that time. Great Britain, in protesting against the action of the United States in seizing these vessels assumed from the early correspondence upon the subject, that the United States claimed Behring Sea to be mare clausum. Mr. E. J. Phelps, Minister for the United States in Lon- don, wrote in a letter, dated the 12th September, 1888, to Mr. Bayard, Secretary of State of the United States, printed in volume II of the American reprint, Appendix 1, to the Case of the United States in this Fur Seal Arbitration Proceeding: — " Much learning has been expended upon the discussion of the abstract question of the right of mare clauswn. I do not conceive it to be applicable to the present case. " Here is a valuable fishery, and a large and, if properly managed, permanent industry, the property of the nations on whose shores it is carried on."- that referred to the shores of the Pribiloff Islands where the seals dwell, so to speak — " It is proposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the countries interested, to destroy this business by the indiscriminate slaughter and extermination of the animals in question, in the open neighboring sea, during the period of gestation, when the common dictates of humanity ought to protect them, were there no interest at all involved. And it is suggested that we are prevented from defending ourselves against such depre- dations because the sea at a certain distance from the coast is free. The same line of argument would take under its protection piracy and the slave trade, when prosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things that can not be allowed to be done on the open 1122 NORTH ATLANTIC COAST FISHERIES ARBITRATION. sea with impunity, and against which every sea is mare clausum. And the right of self-defence as to person and property prevails there as fully as elsewhere." In the correspondence which preceded the negotiation of the treaty submitting the dispute to arbitration, the claim of the right of the United States to protect the seals, and the principles upon which such a right rested, were discussed at great length by Mr. Elaine, then Secretary of State of the United States, and by Lord Salisbury for Great Britain. In a letter dated the 17th December, 1890, to Lord Salisbury, after reviewing the issues to be submitted to arbitration, Mr. Elaine, as ap- pears on p. 286 of Appendix 1 to the Case of the United States in the American reprint of the Fur Seal Proceedings, known as vol. II, stated : — 676 " The repeated assertions that the Government of the United States demands that the Behring Sea be pronounced mare clausum, are without foundation. The Government has never claimed it and never desired it. It expressly disavows it." And then Mr. Elaine quoted the language of Mr. Phelps, which I have just read. On the 21st February, 1891, Lord Salisbury wrote to Sir Julian Pauncefote, the British Minister in Washington, the following letter, which appears on p. 290 of the same vol. II : — " The dispatch of Mr. Elaine, under date of the 17th December, has been carefully considered by Her Majesty's Government. The effect of the discussion which has been carried on between the two Governments has been materially to narrow the area of controversy. It is now quite clear that the advisers of the President do not claim Behring's Sea as a mare clausum. and indeed that they repudiate that contention in express terms. Nor do they rely, as a justification for the seizure of British ships in the open sea, upon the contention that the interests of the seal fisheries give to the United States Gov- ernment any right for that purpose which, according to international law, it would not otherwise possess." I shall not read from vol. II of the American reprint all the questions which were submitted to the Tribunal, but shall content myself with reading merely the questions with which I am directly concerned, in order to answer the question put to me by you, Mr. President. These questions are found on pp. 3 and 4 of this sarnie volume from which I have read, in that portion of the volume called the Appendix to the Case of the United States. The first question is: — " 1. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States? ARGUMENT OF CHARLES B. WARREN. 1123 " 2. How far were these claims of jurisdiction as to the seal fish- eries recognized and conceded by Great Britain? ******* " 4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring's Sea east of the water boundary, in the Treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that Treaty? " 5. Has the United States any right, and if so, what right of pro- tection or property in the fur seals frequenting the islands of the United States in Behring Sea when such seals are found outside the ordinary three-mile limit? " These questions are in the Convention between the two Powers submitting this matter to arbitration. These questions it is obvious were agreed upon after the United States had emphatically repudiated any claim on its part that it sought to make the eastern portion of Behring Sea territorial waters, and after Lord Salisbury had stated that he understood no such claim to be made. In the Printed Argument filed on behalf of the United States in that Arbitration, when considering the questions before the Tribunal, this statement, found in vol. IX, on p. 37 of the American reprint of the Fur Seal Arbitration, was made : — " The words ' exclusive jurisdiction in Behring Sea ' .are used in the questions formulated in the Treaty by way of description of the claims of Russia, and the same, or similar, language will be found in various places in the diplomatic argument to have been employed in a like sense. From this it might be thought that what Russia was supposed to have asserted, and what the United States claimed as a right derived from her, was a sovereign jurisdiction over some part of Behring Sea, making it a part of their territory and subject to their laws. This would be entirely erroneous. Russia never put for- ward any such pretension." The Argument then goes on to state that Russia sought to prevent interference with her commercial enterprises on the north-west coast of America by the adoption of measures similar to the Hovering Acts of various countries; and at p. 38 of the same volume appears this statement : — " This, of course, was no assertion of exclusive jurisdiction, or of jurisdiction at all, in the strict sense of that term. It was the asser- tion of a right to protect interests attached to the shore from threats and danger of invasion." In his oral argument Mr. James C. Carter, Counsel for the United States, submitted to the Tribunal a written statement setting forth the position of the United States as to the principles involved in its contention ; the first two paragraphs relate to territorial jurisdiction. I read from p. 254 of vol. XII of the Fur Seal Proceedings : — 677 " First. The territory of a nation consists of the land within its dominion and what are commonly called its territorial 1124 NORTH ATLANTIC COAST FISHERIES ARBITRATION. waters, which embrace interior gulfs, or bays nearly enclosed by its territory, but connected with the sea by narrow straits separated by headlands, and a narrow belt of the open sea along the shore, of the width, as commonly allowed, of three miles, or a cannon shot. " Second. The exercise of the sovereign legislative power of the nation is limited to its territory as above described, except in special instances where, for reasons of necessity, a nation may exercise a limited legislative power over neighboring parts of the sea beyond the narrow belt above mentioned. Outside of the territory of the nation its laws, as laws, have, except as above mentioned, no opera- tion or effect. The ships of a nation, however, are, even when on the high seas, deemed to be a part of its territory." Leaving these statements of the position of the United States, I desire to read from the same volume on p. 256, from the argument of Mr. Carter: — " Those, then, are the grounds upon which the United States asserts its right to the employment of reasonable force. If it has a property in the seals, that property is invaded whenever they are attacked by pelagic sealers, and that property interest in the seals themselves, and the necessity of defending it give the United States the right to pre- vent that practice by the arrest and seizure of the guilty vessel. If it should be decided that it has not a property interest in the seals themselves, but has a property interest in the industry which it main- tains upon the Pribilof Islands — a rightful, lawful and useful in- dustry— then its right to arrest the practice of pelagic sealing upon the sea does not depend upon a property interest in the seals but upon the fact that that practice is an essential wrong, and is, besides, an invasion of the rightful industry which the United States carries on upon the land." I will pass on to the extract from the Fur Seal Arbitration Pro- ceedings, relied upon in the printed Argument of Great Britain sub- mitted to this Tribunal, which is found on pp. 97 and 98 of the Argument of Great Britain : — " Precisely what is the limit of jurisdiction upon the littoral sea, and precisely what are the nature and extent of the jurisdiction that can be asserted within it, whether it is absolute or qualified, terri- torial or extraterritorial, are questions that have been a subject of grave difference of opinion among jurists. Nor have they ever been entirely settled. They will be found to be discussed with a fullness of learning, a depth of research, and a masterly power of reasoning, to which nothing can be added, in the opinions of the English judges in the important and leading case of the Queen v. Keyn (2 Law Rep. Exch. Div., 1876-77, pp. 63 to 239). These learned and eminent judges were not fortunate enough to agree upon all the questions involved, and every view that can be taken of them, and every consideration that is pertinent, are exhaustively presented in their opinions." ******* " It is under the operation of the same principle on which jurisdic- tion is awarded to nations over the sea within the 3-mile or cannon- shot limit, that a similar jurisdiction is allowed to be exercised not ARGUMENT OF CHARLES B. WARREN. 1125 only over navigable rivers, bays, and estuaries, which may be fairly regarded as lying within territorial boundaries, but over those larger portions of the ocean comprised within lines drawn between distant promontories or headlands, and often extending much more than three miles from the nearest coast. Such waters were formerly known in English law as ' the King's Chambers.' " I would now like to read the paragraphs immediately preceding these, which are not made use of in the British Argument before this Tribunal. I read from vol. IX of the Fur Seal Proceedings at p. 146 :— " This somewhat indefinite area of a greater or less jurisdiction over the marginal sea, which has thus come to be recognized and conceded, though accorded for the purposes of national self-protec- tion, is by no means its boundary. It illustrates the right of which it is an example, but does not exhaust it. It is but one application of the principle out of many. The necessity which gave rise to it justi- fies likewise the larger power, and further means of defence, which may from time to time be required. No nation, in whatever statute or treaty it may have assented to the three mile or cannon shot limit of municipal jurisdiction, has ever agreed to surrender its right of self defense outside of that boundary, or to substitute for that right the contracted and qualified power which is only one of the results of it, and which must often prove inadequate or inapplicable. On the contrary, as will be seen hereafter, many nations have been compelled to assert, and have successfully asserted, much wider and larger powers in the defence of their manifold interests." The foregoing shows the contention of the United States in the Fur Seal Arbitration. If this position had been accepted by the Tribunal the United States would have been given the legal right to protect the seals having their breeding-grounds upon the Pribilof Islands, and the sealing industry necessarily springing therefrom. However, it should be borne in mind, Mr. President, by this 678 Tribunal, that the contention of the United States was re- jected by the Fur Seal Arbitration Tribunal, and the rights of protection were confined to the jurisdictional limits of 3 marine miles recognised in the treaty submitting the controversy to arbitration. I shall not take the time to again read the fifth question submitted to the Behring Sea Tribunal. The Tribunal will recall that the nature of it was as to whether or not the United States had any particular property right in these seals as national property. I now turn to the award of the Behring Sea Tribunal, and will read from vol. I of the American reprint, pp. 77 and 78, this ex- tract : — " Russia never asserted in fact or exercised any exclusive jurisdiction in Bering's Sea or any exclusive rights in the seal fisheries therein beyond the ordinary limit of territorial waters." 1126 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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." 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 be- tween the two great Powers now before this Tribunal, in which the cannon-shot rule is identified with the 3-mile rule, and further dis- cussion 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 arbitra- tion, the Fur Seal Tribunal found that it was advisable to prescribe a zone of 60 miles around the Pribiloff Islands, and to make regula- tions 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 ARGUMENT OF CHARLES B. WARREN. 1127 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 com- mencing 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 ves- sels 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 An- napolis, 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 Ap- pendix 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 re- ferred 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. 1128 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Turning to pp. 1076 and 1077 of the Appendix to the Case of the United States, the abstract showing the places where the respec- tive 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 Lips- comb 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 wrill find that the locations of these vessels are designated on the charts, although, when referring to the earlier seizures which Mr. Rush was immedi- ately 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 answer- ing 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 en- tered 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 ex- amine the meaning given to the words of the treaty by the two Gov- ernments at the time of its making, and especially by their repre- sentatives who participated in the negotiations; and for that 680 reason I desire to refer briefly to the report of the Commis- AKGUMENT OF CHARLES B. WARREN. 1129 sioners of the United States to their Government, which bears date 20th October, 1818, the day the treaty was signed, and which trans- mitted 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 Bath- urst 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 ap- proved 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 cor- respondence and protocols making up the negotiations, as if no enor- mous 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 in- structions read at the Friday session, were ever issued to the Com- missioners. 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." Tbe 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 1130 NORTH ATLANTIC COAST FISHERIES AEBITRATION. 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 re- quested 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 180G, and that the United States had then sought, without success, to ex- tend 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 fish- eries. 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 pro- posal 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 : — 681 " 1. FISHERIES. " 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 ARGUMENT OF CHARLES B. WARREN. 1131 subjects, enjoyed any right there; the charter of that company hav- ing 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 perma- nence of the right. To obtain the insertion in the body of the conven- tion 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 plenipo- tentiaries urged that, in case of war, the only effect of those words be- ing 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 prevent- ing 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 ex- pressly 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 har- bors, 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 uni- versally 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 por- tion of the actual fisheries on that coast (of Nova Scotia) will, not- withstanding the renunciation, be preserved." In the first place, the Commissioners referred to the waters, cov- ered 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 1132 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 har- bours," 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 appli- cable 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 re- ferred to in this treaty, and this Tribunal is, of course, not concerned with Hudson Bay, but the Hudson Bay was used by the 682 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 Commis- sioners for the United States referred to a principle and not to a par- ticular body of water. 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 estab- lishes 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 ARGUMENT OF CHARLES B. WARREN. 1133 Government that the fisheries along all the coast of Nova Scotia were more than 3 miles from the shore they necessarily included the por- tion 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, histor- ically, 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 nego- tiated 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 distin- guished counsel, Sir Robert Finlay, quite immaterial. I conceive that if it is shown that the report of the British Com- missioners agrees with the report of the American Commissioners as to this Question, it would become quite material to make an in- quiry 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 Castle- reagh, and referring to the American Commissioners as " they " 1134 NORTH ATLANTIC COAST FISHERIES ARBITRATION. " that in consideration of the different opinions known to be enter- tained 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 accord- ance 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 imma- terial, 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 juris- diction 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 juris- diction " refer to the distinction between the two branches of the treaty of 1783? The treaty of 1783 contains two branches; the first ARGUMENT OF CHARLES B. WARREN. 1135 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 Maj- esty's Dominions in America." The British contention has been that the second of these branches has been abolished b\ the war of 1812; and if, in the further corre- spondence, 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. WARREX : 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 answer- ing on the spur of the moment. MR. WARREX : I do observe in regard to the term " within the Brit- ish 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 cor- respondence exchanged between the two Powers prior to the nego- tiations had put that question entirely out of the discussion; that was considered as settled and beyond controversy and " the 684 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. I call the attention of the Tribunal to one other paragraph in this report of the British Commissioners. I am reading from the nine- teenth 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 Govern- ment 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 ad- vantages 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 ad- vantages of the fishery ? 92909°— S. Doc. 870, 61-3, vol 10 16 1136 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Why, if the Tribunal please, if the construction put upon that clause by the counsel for Great Britain before this Tribunal is to be incorporated in the Award of this Tribunal, the Commissioners of the United States surrendered enormous rights, historical rights, rights of vast extent and enormous importance to the people of the United States. I now pass to the proviso clause of the renunciatory clause of the treaty of 1818. I call the proviso clause of the renunciatory clause that clause which commences with the words : " Provided, however." I shall not pause to read this clause. I simply desire to meet the argument advanced by the learned counsel for Great Britain, who opened this submission, that this clause is absolutely fatal to the contention of the United States be- cause the word " bays " in the treaty must be construed in the same sense in both clauses of the treaty. I submit that it is perfectly apparent that there is absolutely noth- ing at all in this contention w^hich is claimed to be so fatal to the position of the United States before this Tribunal. A " bay of His Majesty's Dominions " was a bay lying landward of the 3-mile line, or a body of water 6 miles or less in width; and from such waters American fishermen, as far as their fishing operations were concerned, were to be excluded according to the renunciatory clause. The argument of the distinguished counsel is that if the words " bays or harbours " in the proviso clause forming a part of the re- nunciatory clause refer only to the bays lying landward of the 3-mile line, then the fishing-vessels of the United States have no right to enter the large bays for shelter, wood, water, and repairs. The argument on this point will be found at p. 250 of the report of Sir Robert Finlay's argument. When the argument was made the emphasis was always placed upon the word " bays," and the dis- tinguished counsel seemed quite to overlook the fact that the vessels of the United States have a right under the proviso clause of this treaty to seek the harbours for shelter, wood, water, and repairs. When this language of the proviso clause is considered — " shall be admitted to enter such bays or harbours for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever,"- it is readily seen that, wherever along the coasts covered by this renunciatory clause there is a harbour, to that harbour a fishing- vesseJ of the United States has a right to resort for the four purposes speci- fied in the treaty. Now, to use a specific illustration : Suppose a fishing- vessel of the United States were in a body of water which at no part contracted to a width of 6 miles, which would not be a bay from which the fish- ing-vessels of the United States were excluded, but the fishing- vessels AEGUMENT OF CHARLES B. WARREN. 1137 of the United States would be excluded from all that water lying within 3 miles of the sinuosities of the shores. I will digress to make this statement. If projecting from a large bay there is found a body of water 6 miles or less in width, that bay would be, under the renun- ciatory clause, the territorial waters of Great Britain. I am not going into those details. These Commissioners did not in all probability have those details under discussion or consideration at the time the treaty was framed. But there is nothing in my argu- ment which makes this proposition illogical. Going back to the illustration that I was about to make. If 685 a fishing-vessel of the United States were in a body of water which at no place sank to a width of 6 miles or less, and under necessity were compelled to seek shelter or repairs, and could find a small harbour within that bay or that body of water, of course, under the very words of the proviso clause, the vessel has a right to resort to the harbour, and the vessel has the right to invade the territorial waters of Great Britain which lie within 3 miles of the land along that bay for the purpose of reaching that harbour. The same principle would apply that would apply in the case of a grant by a private individual of a right to take water from a lake entirely surrounded by the land of the grantor. It is presumed, and it necessarily follows and emerges as an irresistible conclusion of law, that the grantee has the right to cross the grantor's land to reach the lake. So, under this treaty, these fish ing- vessels of the United States have a perfect right to invade the 3-mile belt to find a harbour lying within any such large bay. If there were no harbour there, then, of course, a fishing-vessel would not desire to go there. JUDGE GRAY: I am very much interested in what you are saying, Mr. Warren, and I wish you would illustrate with some other bay than the Bay of Fundy, which has, in a measure, been excluded from our consideration in this arbitration. I think this point is impor- tant, and I am interested in what you are saying. Take, for illus- tration, Placentia Bay or Conception Bay, or one of those other bays. MR. WARREN : I will, however, take for illustration St. George's Bay, which is on the treaty coast of Newfoundland. THE PRESIDENT: Why not take one on the non- treaty coast, as we are concerned with the non-treaty coast? Why not take Placentia or Conception Bay, for instance? MR. WARREN : The Court would prefer me to take Placentia Bay for purposes of illustration? THE PRESIDENT : Yes, perhaps ; one on the non-treaty coast. MR. WARREN: Placentia Bay is on the non- treaty coast? THE PRESIDENT : Yes. MR. WARREN : Because the non-treaty coast ends at Rameau Islands on Newfoundland. 1138 NORTH ATLANTIC COAST FISHERIES ARBITRATION. If a fishing-vessel were in Placentia Bay, under its rights given it by virtue of its being an American vessel, it would have the right to fish at any place outside a line 3 miles from shore, following its sinuosities. When the bay at any place sinks to a width of 6 miles or less, the waters inside of the line which is formed by the meeting of the two lines following the sinuosities of the shore, coming from opposite directions, become territorial waters of Great Britain; be- cause they are necessarily within the 3-mile limit. JUDGE GRAY: It is a territorial bay within a geographical bay? MR. WARREN : Yes, your Honour. Now, if the vessel were fishing in that part of Placentia Bay which is a part of the high sea, that is, outside of the 3-mile limit, and out- side of any admitted territorial waters, and desired to seek a harbour under the proviso clause of this treaty of 1818, what would be its rights? That is the question, I understand, that I am asked to illustrate. Its rights would be these: By virtue of the proviso clause of the treaty, it has the right to enter " bays or harbours." If there is a harbour, therefore, lying within that bay, to reach which the vessel must sail through the 3-mile belt from which it is excluded from fishing by the terms of the treaty, it certainly has the right to pass through that 3-mile belt to find that harbour, because it was provided in the treaty that American fishermen could resort to harbours for shelter. JUDGE GRAY : I wish to see if I am sure that I understand the line of your argument, in which I am very much interested. You referred to the language of the letter from the British Commissioners to 686 Viscount Castlereagh in regard to the treaty coasts, and to the grant of a right " to participate in the fisheries within the Brit- ish jurisdiction "; and I understood your argument to be that as in the grant of a right of fishery they could only grant what it was in their power to give, and that is a right in territorial waters, so when you come to the excluding clause, or the renunciatory clause, we must understand that the United States renounced, for her fishermen, the right to enter bays of like kind — that is, territorial bays? MR. WARREN : Exactly, your Honour. JUDGE GRAY: That the one balanced the other? MR. WARREN: Exactly, your Honour. JUDGE GRAY : And that while they were permitted to enter the ter- ritorial bays on the treaty coasts for fishing, they were excluded from territorial bays on the non-treaty coasts? MR. WARREN: Exactly, your Honour. JUDGE GRAY: That is what I understood to be the connection be- tween the two that you were seeking to make. SIR CHARLES FITZPATRICK : I understood that the words used were " territorial waters " — not " bays." ARGUMENT OP CHARLES B. WARREN. 1139 JUDGE GRAY : I meant " territorial waters." MR. WARREN : I shall not pause to discuss the question put by your Honour JUDGE GRAY: It was not a question. I only desired to see if I understood your argument. MR. WARREN : I shall not pause to make any further observations along that line, because I have already attempted to cover the ground. In connection with the report of the American Commissioners and the letter of the British Commissioners to their Government, I desire briefly to call the attention of the Tribunal to the statement of Mr. Rush, who himself was one of the negotiators of the treaty of 1818, published in a book called "Memoranda of a Residence at the Court of London." The date of this book was 1833, and it was, therefore, published before the counsel for Great Britain assert there was any contention between the two Governments as to the construction of this treaty. The statement of Mr. Rush to which I wish to invite the attention of the Tribunal is to be found on p. 323 of the Appendix to the Case of the United States : — "It was by our act that the United States renounced the right to the fisheries not guaranteed to them by the convention. That clause did not find a place in the British counter-pro jet. We deemed it proper under a threefold view: 1, to exclude the implication of the fisheries secured to us being a new grant; 2, to place the rights secured and renounced, on the same footing of permanence; 3, that it might expressly appear, that our renunciation was limited to three miles from the coasts. This last point we deemed of the more con- sequence from our fishermen having informed us, that the whole fishing ground on the coast of Nova Scotia, extended to a greater distance than three miles from land; whereas, along the coasts of Labrador it was almost universally close in with the shore. To the saving of the exclusive rights of the Hudson's Bay Company, we did not object. The charter of that company had been granted in 1670, and the people of the United States had never enjoyed rights in that bay that could trench upon those of the company. Finally, it is to be remarked, that the liberty of drying and curing on certain parts of the coasts of Newfoundland, as secured in the article, had not been allotted to the United States even under the old treaty of 1783." I have already submitted, in connection with another phase of this Question, the opinion of John Quincy Adams, written in 1822, bear- ing on the true construction of this treaty. I wish, however, to invite the attention of the Tribunal at this point to the following passage in the letter from Mr. Adams to be found on p. 162 of the Appendix to the Counter-Case of Great Britain — "It was this incident which led to the negotiations which ter- minated in the convention of 20th October, 1818. In that instrument the United States have renounced forever, that part of the fishing liberties which they had enjoyed or claimed in certain parts of the 1140 XORTH ATLANTIC COAST FISHERIES ARBITRATION. exclusive jurisdiction of the British provinces, and within three marine mtt-es of the shores." 687 I also desire to direct the attention of the Tribunal to the letter of Mr. Rush, found in the United States Case Appendix, on p. 549, and to read the portion of that letter found on p. 554 : — " In signing it, we believed that we retained the right of fishing in the sea, whether called a bay, gulf, or by whatever other term designated, that washed any part of the coast of the British North American Provinces, with the simple exception that we did not come within a marine league of the shore. We had this right by the law of nations. Its confirmation was in the treaty of : 83. We retained it undiminished, unless we gave it up by the first article of the con- vention of 1818. This we did not do. The article warrants no such construction. Mr. Everett when minister in London, writing to Lord Aberdeen, August the 10th 1843, under instructions from the Secretary of State, remarks that the right of fishing off any part of the coast of Nova Scotia (consequently in the Bay of Fundy) at a greater distance than three miles, is so plain, that it would be difficult to conceive on what ground it could be drawn in question had not attempts been made by the Provincial authorities of her Majesty's government to interfere with its exercise ; and Mr. Stevenson, min- ister in London before Mr. Everett, while writing to Lord Pal- merston, March the 27th, : 41, in reference of our right to fish in the large outer bays, says, ' the stipulations of the treaty (convention of 1818) are believed to be too plain and explicit to leave room for doubt or misapprehension.' "As to the Bay of Fundy, part of its coast belongs to one of the states of the Union — Maine. Hence Britain cannot claim it as her exclusive jurisdiction. Had Mr. Gallatin been told by the British plenipotentiaries, that the first article of the convention would close the extensive waters of that bay against our fishermen, I do not believe he would have signed it; nor could I have signed it. The spirit, context, all the concomitents of the article, pointed to a dif- ferent meaning. I need not cite all its words. You know them. It will be enough to bring into view the proviso which follows the clause of renunciation. That part was thus : 'And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish, on or within three marine miles of any of the coasts, bays, creeks or harbors of his Britannic Majesty's dominions in America not included within the above mentioned limits: (those set out for us in the beginning of the article;) provided however, that the American fishermen shall be permitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood and of obtaining water; and for no other purpose whatever.' " These are the decisive words in our favor. They meant no more than that our fishermen whilst fishing in the waters of the Bay of Fundy should not go nearer than three miles to any of those small inner bays creeks or harbours which are known to indent the coasts of Nova Scotia and New Brunswick. To suppose they were bound to keep three miles off from a line drawn from headland to headland on the extreme outside limits of tliat bay^ a line which might measure ARGUMENT OF CHARLES B. WARREN. 1141 fifty miles or more according to the manner of drawing or imagining it, would be a most unreasonable and therefore unnatural supposi- tion. I cannot think that it entered the minds of the British pleni- potentiaries any more than ours." I further desire to refer the Tribunal to the letter from Mr. Richard Rush to his executors, to be found on p. 547 of the Appendix to the Case of the United States, and to read the following portion of that letter from p. 548 : — " For more than twenty years the Convention of 1818 was in full operation in the sense in which, our Government understood the article relating to the Fisheries. After this long acquiescence, Great Britain applied a new and different rule for the operation of the article. Whether sne nac^ good grounds for this change in its con- struction, is the essential inquiry. High names, in the Senate and elsewhere, have so well defended our construction, that it might seem unnecessaiy for me to bring before the public the views presented in this letter to the Secretary of State, were they not derived from facts intrinsic to the negotiation itself." I now pass to the position of the counsel for Great Britain, that these bays covered by the renunciatory clause of the treaty are geo- graphical bays, and that it is immaterial for this Tribunal to enquire into their territoriality — that is, into the question of whether or not Great Britain had exclusive jurisdiction over the entire extent — • merely because the words of the treaty itself are an assertion of territoriality. This position will be taken I infer from the statement made by the Attorney-General on Friday morning. I respectfully submit to the Tribunal a set of charts; and I wish, Mr. President, that the Tribunal would take one of these charts, while I make some statements regarding it, because it is difficult for me to entirely illustrate my position without having one of the charts before the Tribunal. Which chart has the Tribunal before it now, Mr. President? THE PRESIDENT: Newfoundland and the adjacent coast of Labra- dor. MR. WARREN : The non-treaty coast of Newfoundland ? DR. DRAGO: Newfoundland and Labrador? 688 THE PRESIDENT: Yes. MR. WARREN: Very well. These charts which have been handed up to the Tribunal include all the non-treaty coasts; that is, the various charts include all the non-treaty coasts. THE PRESIDENT: Yes. MR. WARREN : And therefore I made the inquiry as to which par- ticular chart the Tribunal had before it, in order that I might con- fine my remarks to that chart, rather than be talking about some other chart. 1142 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The charts submitted to the Tribunal bear legends as follows: — No. 525, issued by the Bureau of Equipment, Navy Department, United States of America : Chart of the southern part of the Bay of Fundy, from British and United States surveys. No. 524, issued by the Bureau of Equipment, Navy Department, United States of America : Sheet I. Chart of S.E. coast of Nova Scotia, from Cape Sable to Sambro Island; from the most recent British surveys. No. 525, issued by the Bureau of Equipment, Navy Department, United States of America: Chart of S.E. coast of Nova Scotia; Sheet II; from Sambro Island to Cape Canso; from the most recent British surveys. No. 1110, issued by the Bureau of Equipment, Navy Department, United States of America : Chart of Gulf of St. Lawrence from Anti- cost i Island to Point de Monts; compiled from latest information. No. 1013, issued by Bureau of Equipment, Navy Department, United States of America: Chart of the Gulf of St. Lawrence; com- piled from the latest information. Xo. 2440, issued by the Bureau of Equipment, Navy Department, United States of America : Chart of Newfoundland and the adjacent coast of Labrador ; from the latest British and French surveys. MR. WARREN : Before I proceed to take up the charts which are now before the Tribunal, I desire to state the position of the United States in regard to this matter. My submission is that, if the "bays of His Britannic Majesty's Dominions in America" in 1818 were not confined to those bays lying within the agreed maritime limits, that is, landward of the 3-mile line, and therefore to those 6 marine miles or less in width, there is no evidence whatever from which this Tribunal can establish the outside limits of any of these bodies of water. It is not shown in the evidence that any understanding existed in the minds of the negotiators, in the public mind, or in the minds of local fishermen or navigators as to their outside limits. Is it to be inferred that the outside limits would be from time to time deter- mined by the local authorities, as occasion required? The Case sub- mitted in behalf of Great Britain does not suggest any outer lines to be used as the basis of measurement, and I submit it will not do to determine that the distance of 3 marine miles should be measured from the outer limits of bodies of water, without its having: first / D been determined where the outer limits were agreed to be in 1818. It seems apparent that if the only definite rule, that is, that a bay of His Britannic Majesty's Dominions in America was such a bay as lay landward of the 3-marine-mile line drawn following the sinuosi- ties of the shore, is disregarded, there is no fixed line for measure- ment, for there was and is no other agreement as to what constituted ARGUMENT OP CHARLES B. WARREN. 1143 the limits of the bays referred to. If the measurement was to be from some arbitrary line to be drawn across each bay on the non- treaty coast, is it not reasonable to conclude that the Commissioners of the two Powers would have agreed upon such lines, or at least upon a method for their determination? And would this most im- portant matter have been left open for future disputes, and ultimate adjustment by some other negotiation? Referring now to the chart — SIR CHARLES FTTZPATRICK : You will identify that chart, so that we may know what you are referring to, when we come to read your remarks in the record? There is only one chart immediately before the Court, and you will identify that in some way, so that we will know what you are referring to in your remarks in connection with it? MR. WARREN : I have handed to the Tribunal a set of charts show- ing the entire non-treaty coasts, but I shall confine what I am about to say now to the chart which shows the non-treaty coasts of New- foundland. 689 THE PRESIDENT: That is No. 2440? MR. WARREN: Yes, Mr. President, and I will ask the Tri- bunal to look at this map of Newfoundland before I proceed to make any comments upon it. SIR CHARLES FITZPATRIOK : I made my suggestion for the purpose of having you identify the chart with your argument ; that is all. I want you to be precise, and to refer in your argument to the particu- lar chart you are now speaking about; because you will not be here a month hence, when we are looking at all these things. MR. WARREN : As I stated, I shall confine my argument and illus- trations which I am presently to make to the chart showing the non- treaty coasts of the Island of Newfoundland. SIR CHARLES FITZPATRICK : That is No. 2440 ? MR. WARREN: Yes; No. 2440; and it is a hydrographic chart of Newfoundland, and the adjacent coast of Labrador, from the latest British and French surveys. THE PRESIDENT : You are now about to refer to chart No. 2440 ? MR. WARREN: I am talking only of chart No. 2440, now, when I proceed to make these illustrations. THE PRESIDENT: Exactly. MR. WARREN: And the counsel for Great Britain have been sup- plied with a set of these charts. I refer first, if the Tribunal please, to White Bay, so called, on the eastern or outside coast of Newfoundland, well toward the northern extremity of the Island. And having stated my submission, I ask, Mr. President, whether or not the line making that a geographical 1144 NORTH ATLANTIC COAST FISHERIES ARBITRATION. bay is the one 14r| miles in length, or the line 16 miles in length, or the line 22 miles in length, or the line 26£ miles in length, or the line 31 miles in length, or the line 41 miles in length, or the line 43£ miles in length, or the line 46£ miles in length, or the line 48 miles in length, or the line 58| miles in length, or the line 53 miles in length, or the line 65| miles in length? And in order to show, Mr. President, that this is no graphic pic- ture drawn from my imagination, I refer to the fishing regulations of Newfoundland, section 64 of the Act of 1908, to be found on p. 209 of the Appendix to the Case of United States before this Tri- bunal. By reading section 64 of that Act, it will be found that a point within the line 58| miles long — THE PRESIDENT: That is in Port-au-Port Bay? MR. WARREN (continuing) : A point within the line, 58£ miles long, is referred to as being within White Bay. The reference is to Cape Rogue, and the examination of the map shows THE PRESIDENT: Is that section 64? MR. WARREN : Yes, Mr. President. THE PRESIDENT: Section 64 refers to Port-au-Port Bay? SIR CHARLJES FITZPATRICK: No; the second paragraph refers to Cape Rogue. JUDGE GRAY : Yes ; it is in the second paragraph of section 64. MR. WARREN: The second paragraph of section 64 relates to the district that I am now discussing, Mr. President. JUDGE GRAY: Yes. MR. WARREN : The first section relates to Port-au-Port Bay, on the west coast of Newfoundland: the second section to the so-called White Bay. JUDGE GRAY: Where is that from? Is that the 53 mile MR. WARREN: That is within the line 58^ miles long, and within the line 65£ miles long. If that is the idea of Newfoundland as to the outside limits of geo- graphical bays, who is to determine, after this award, where the out- side lines of geographical bays are? 690 From where shall be measured the 3 marine miles seaward from which the fishing-vessels of the United States are ex- cluded under the terms of this renunciatory clause? JUDGE GRAY : Do you understand, Mr. Warren, that they are there, in that section 64, in the second paragraph, describing the outside limit of White Bay ? MR. WARREN: Not at all, your Honour. If your Honour will permit me JUDGE GRAY: Yes; proceed. I want to understand you. MR. WARREN : I will reply to the question in another way. I will read the Act itself. JUDGE GRAY : Yes ; I am reading it. ARGUMENT OP CHARLES B. WARREN. 1145 MR. WARREN : The words of the Act are as follows : — "The use of trawls and bultows is prohibited on the fishing grounds from the west point of Hillier's Harbor to Pyramid Point near Cape Rogue, White Bay." That places Cape Rogue in White Bay. JUDGE GRAY : Where is Cape Rogue ? MR. WARREN: Does the Tribunal see Groais Island on the chart, just off the coast? JUDGE GRAY: Yes. MR. WARREN : Right inside of it will be found Cape Rogue. JUDGE GRAY : Inside of it on the coast ? MR. WARREN : Yes, your Honour. THE PRESIDENT : Yes ; here it is. JUDGE GRAY : Yes. I see it now. SIR CHARLES FITZPATRICK: If you get Hillier's Harbour and get Pyramid Point, and then draw a line across, it is clear what Mr. Warren means. JUDGE GRAY: The language of the second paragraph of this sec- tion 64 would seem to describe the coast south of Cape Rogue as part of White Bay. MR. WARREN : That is my contention, if your Honour please. SIR CHARLES FITZPATRICK : On this map is there a line drawn from the west point of Hillier's Harbour to Pyramid Point? MR. WARREN : From the west point of Hillier's Harbour ? SIR CHARLES FITZPATRICK : Yes ; to Pyramid Point ? MR. WARREN : Hillier's Harbour is opposite Belle Island. SIR CHARLES FITZPATRICK : I am asking you whether or not there is a line drawn on this map that you submitted to us from the west point of Hillier's Harbour to Pyramid Point, near Cape Rogue ? MR. WARREN : Well, Sir Charles, there could not be any line drawn there between opposite shores, because the coast is almost straight. SIR CHARLES FITZPATRICK : Yes. What does the statute refer to ? MR. WARREN : The statute refers to Cape Rogue as being in White Bay. SIR CHARLES FITZPATRICK: The statute refers to the "fishing grounds from the west point of Hillier's Harbour, near Cape Rogue." MR. WARREN (reading) : " Cape Rogue, White Bay." SIR CHARLES FITZPATRICK : Well, that is a matter of construction — whether or not that is in White Bay at all, or not. MR. WARREN : I shall refer to but one more illustration of this sort from the statutes of Newfoundland; — the first paragraph of 691 the same section. I read the words of the first paragraph from the statute, section 64, on p. 209 of the Appendix to the Case of the United States : — " The use of cod- traps is entirely prohibited in Port-au-Port Bay; that is to say, in East and West Bay, and extending from Long Point 1146 NORTH ATLANTIC COAST FISHERIES ARBITRATION. (or the Bar) to Bear Head, north of Serpentine Kiver, in the Dis- trict of St. George." Now, if the Tribunal will kindly follow me to the west coast of Newfoundland, and to the Bay of Port-au-Port, on the same chart, No. 2440, which is now before the Tribunal, it will be found that the point described in that statute as within Port-au-Port Bay — JUDGE GRAY: Will you point out on the map where Port-au-Port Bay is, Mr. Warren, please? Mr. WARREN: Just above St. George's Bay, on the west coast of Newfoundland. JUDGE GRAY: Please indicate it with your pointer on the large map there. Mr. WARREN (indicating on map) : Port-au-Port Bay is this bay, just above St. George's Bay, on the west coast of Newfoundland. JUDGE GRAY: Yes. MR. WARREN : I was then referring to the large map on the wall. I now refer to the small chart, No. 2440, which is before the Tri- bunal. It will be found that in order to bring the point Bear Head, mentioned in that section of the statute, in the Bay of Port-au-Port, a line must be drawn from Long Point which, reaching the shore, would be 73 nautical miles long. I call the attention of the Tribunal to the fact that that line is 63 miles long, and ask the Court to compare it with the map which hangs on the wall, where Port-au-Port is designated. THE PRESIDENT : You said from Long Point to Bear Head. It is 23 miles, is it not ? MR. WARREN : I will retract that statement as to its being 73 miles. My eye caught the wrong line; they are very close together; and I shall presently make the correct statement. I misread the figure, as 73, instead of 23. THE PRESIDENT : It is 23 miles. MR. WARREN : It is 23 miles on the chart, instead of 73. JUDGE GRAY : Yes ; 23 miles ? THE PRESIDENT : Mr. Warren, is it not 16 miles ? The figures 23 are on another line. MR. WARREN: The 16-mile line, Mr. President, would come just south of Bear Head on the chart. THE PRESIDENT : Yes. From Long Point to Bear Head is 16 miles, and from Long Point to Littleport is 23 miles ? MR. WARREN : Yes, Mr. President. THE PRESIDENT: And that which is mentioned here in section 64 of the statute, paragraph 1, is from Long Point to Bear Head? MR. WARREN : Yes: Mr. President. ARGUMENT OF CHARLES B. WARREN. 1147 THE PRESIDENT : And that is 16 miles. That is wide enough ; but it is not as wide as you suggested before. It is very difficult to read these figures. JUDGE GRAY: You will observe that the short line from North Point across to the mainland is only 6 miles. MR. WARREN : Yes, your Honour. I was about to comment on the various lines which have been drawn across from shore to shore, or from point to point, across that particular body of water. JUDGE GRAY : Every other line, it seems to me, upon looking at the chart, except that 6-mile line, encloses part of the open sea. 692 MR. WARREN : Your Honour, that statement practically sums up my argument as to that particular body of water. If the Tribunal please, I shall not take up each of these charts that have been submitted, and discuss in detail the various lines drawn thereon. They are filed with the Tribunal ; and the lines show various outside lines that might be drawn from shore to shore. The lines drawn across these great bodies of water on these shores, if drawn in accordance with actual constructions by the legislature of Newfoundland, would be so indefinite, and so vague, that they could not possibly furnish a basis upon which the Award of this Tribunal could be founded. [Thereupon, at 12 o'clock, the Tribunal took a recess until 2 o'clock p. m.] AFTERNOON SESSION, MONDAY, JULY 11, 1910, 2 P. M. THE PRESIDENT: Will you please continue, Mr. Warren? MR. WARREN : Mr. President, resuming the discussion which was engaging my attention just preceding the adjournment in connection with the argument based upon the charts, showing lines of various lengths drawn across all these so-called geographical bays, I refer now to all the charts, not only to No. 2440, but the other charts handed to the Tribunal, showing the lines across all the bays on the non-treaty coasts, and in some instances on the treaty coasts for pur- poses of illustration. I desire to refer to the fact that there is no evidence before this Tribunal that there was any map before the negotiators of the treaty of 1818. Without intending to attribute any unworthy motive to counsel for Great Britain, I desire to state that the conclusion might be drawn, from the manner in which the subject was presented, that there was a map before the negotiators of this treaty. All of the protocols of the conferences in 1818 are found in the Appendix to the Case of the United States on pp. 308 to 317. Ac- cording to the protocol of the first conference the proceedings were 1148 NORTH ATLANTIC COAST FISHERIES ARBITRATION. to be recorded in detail. I will use the language of the protocol itself, " were to be recorded in detail " ; and the protocols will be searched in vain for any reference to any map of any kind drawn by anybody as being before the Tribunal, or as being referred to in any connection with the treaty subsequently signed. I desire to refer, in passing, to a statement on p. 103 of the Case of Great Britain filed before this Tribunal. The reading of pp. 103 and 104 is, unless analysed, liable to be very misleading, and I desire to read some paragraphs there for the purpose of commenting on them. Reading first from p. 103 : — " These indentations had all been surveyed and named at the time the convention was entered into. They were well known to mariners and fishermen and were known under the names which they now bear. In other words, the waters to which this discussion relates were known as bays in 1818. "Maps of the coasts had been published before that date. Of these, probably the most important were a wall map known as Mitchell's map (1755), and a book of maps called 'The American Atlas,' prepared by 'Thomas Jeffreys, geographer to the King and others.' In the appendix to this Case will be found reproductions of Mitchell's map, and of such of Jeffrey's maps as cover the terri- tory in question. Not only were these maps available to the negotia- tors in 1783, but the report of the American Commissioners proves that the Mitchell map was actually being used by them during the negotiations. They said : — " ' The map used in the course of our negotiations was Mitchell's.' "When, therefore, in 1783, an agreement was entered into with reference to the ' bays ' in these territories, no one could have been in the slightest doubt as to what was intended." I have shown that it does not make any difference what the bays were in 1783; that there was no attempt to define the jurisdiction, because the rights of the fishing vessels of the United States were to go to the shores under the terms of the treaty. Continuing the reading : — " The maps showed it, and every fishermen knew it without looking at the maps. And the word was used in the same sense in 693 1818. It appears from an entry in Mr. John Quincy Adams' diary, 8th July, 1823, that the same map (Mitchell's) was made use of in subsequent negotiations." The extract referred to as being in Mr. Adams's diary is on p. 108 of the Appendix to the Case of Great Britain. It bears date the 8th July, 1823, and will be found at the bottom of p. 108 : — "The Count de Menou came to inquire where were the Quirpon Islands; I showed him upon Mitchell's map. We had much con- versation upon the subject of the French claim to exclusive fishery from them to Cape Ray. He said he had received further instruc- tions from the Viscount de Chateaubriand on this affair, but there were still two previous instructions which he had not received. He saw it was an affair of great delicacy, and he did not see how they and we could enjoy a concurrent right of fishery on the same coast." ARGUMENT OF CHARLES B. WARREN. 1149 If the Tribunal please, Mr. Adams was negotiating with and talking with the Minister from France about the controversy that arose in 1822 on the coast of Newfoundland between the vessels of the United States and the French vessels, and the words in the British Case, " that the same map was made use of in subsequent negotiations," must be understood as referring to the subsequent nego- tiations in 1822 and 1824, and not to subsequent negotiations in 1818, because the diary of Mr. Adams shows what negotiation Mr. Adams was writing about. Before passing to a consideration of the actions of the two Gov- ernments immediately after the making of the treaty, there is one matter brought into the discussion by the counsel for Great Britain, which should be cleared up, if possible. Sir Robert Finlay said at p. 59 of the report of his oral argument : — " From the year 1819 to 1836 there is a lull with regard to matters affecting this treaty of 1818. There are only two points which I shall notice in regard to the interval and they are both of consid- erable importance. The first relates to the sort of collision which took place in 1822 between the United States and France with regard to the exclusion by French vessels of United States fishermen from the bays on the west coast of Newfoundland over which the French, under their treaties with Great Britain, claimed exclusive rights. I shall refer to what took place then for the purpose of bringing out clearly what was the extent of the French claim, and the very strong assertions that were made by the United States with regard to the jurisdiction of the British in the waters on that western coast of Newfoundland. The second incident which I shall notice relates to a statement which was made in the argument of the United States to the effect that it is established by overwhelming evidence that the American fishermen, during these years before 1836, habitually fished in the Bay of Fundy, and that the British Government acquiesced in their doing so unless they came within 3 miles of land." The distinguished counsel, as reported at p. 61, also said: — "The correspondence which ensued between the United States Government and the French Government will be found beginning at page 101 of the Appendix to the British Case. It extends from page 101 to page 113. and it is necessary, not to read that correspondence throughout, but to refer to it for the purpose of seeing the very strong assertions made by the United States as to the jurisdiction of Great Britain in the bays upon that coast." The correspondence relating to this incident is printed in the Appendix to the Counter-Case of the United States, commencing on p. 105, and continuing through p. 129. I have no intention of delaying the Tribunal for the purpose of analysing that evidence, and I shall be quite content to refer to one or two extracts which I respectfully submit are entirely conclusive as to what was the nature of the assertion of France, and as to what was done as between the Governments of Great Britain and the United States and as between France and the United States. 1150 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I submit that the correspondence, while showing that the vessels were fishing in the bays, Port-au-Port and Bay of Islands, which are under any theory territorial bays, and in two instances were fishing in St. George's Bay, conclusively establishes that the discus- sion involved the right of the United States vessels to fish on the entire west coast; and it is also apparent that when the words ap- pearing on p. 128 of the United States Counter-Case Appendix " within the strictest territorial jurisdiction of the island " were used, the reference was to the waters lying within 3 marine miles of all that coast of Newfoundland. This shows, I submit, that the vessels were fishing within the 3-mile limit, for in the note of Richard Rush, who, of course, 694 will be remembered as one of the negotiators of the treaty of 1818. to Mr. Canning, dated the 3rd May, 1824, found on p. 127 of the Appendix to the Counter-Case of the United States, Mr. Rush states :— "After the ratification of the above convention, the fishermen of the United States proceeded, according to its stipulations, to take fish on the western and northern coast of Newfoundland, between the limits of Cape Ray and the Quirpon Islands, as aforesaid; but, in the course of the years 1820 and 1821,. whilst pursuing in a regular manner their right to fish within these limits, and being also within the strictest territorial jurisdiction of the island, these fishermen found themselves ordered away by the commanders of the armed vessels of France, on pain of seizure and confiscation of their fishing vessels." The gist of this controversy is well stated in the 10th protocol of the Conference of the American and British Plenipotentiaries, held at the Board of Trade in London, the 29th March, 1824, found in the Appendix to the United States Counter-Case, commencing with p. 123 and continuing to p. 129. In these protocols will be found a copy of the statement of Mr. Rush, embodying the claim of the United States. I will read from the bottom of p. 124 of the Appendix to the Coun- ter-Case of the United States, from a paper made a part of the 10th protocol of those conferences. The Tribunal undoubtedly recalls that these negotiations did not refer to the matters here in dispute, but to quite another matter. " Finally, by the convention of October 20, 1818, between the United States and Great Britain, it is provided, article first, that ' the inhabitants of the said United States shall have forever, in common with the subjects of his Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau islands, and on the western and northern coast from the said Cape Ray to the Quirpon Islands.' By the same convention the United States are allowed to dry and cure ARGUMENT OF CHARLES B. WARREN. 1151 fish on the southern part of the coast of this island, as above described, but not on the western coast. " From the preceding statement, it follows that the French have the right of taking and drying fish on the western coast of the Island of Newfoundland. The United States claim for their citizens the right of taking fish on the same coast. But this France denies, say- ing that the right both of taking and drying belongs to her EXCLU- SIVELY. Her cruisers have, accordingly, in 1820 and 1821, ordered off the American fishing vessels whilst within the acknowledged juris- diction of the coast, threatening them with seizure and confiscation in case of refusal." And on the top of p. 126 of the same volume I read from the same document prepared by Mr. Rush, and incorporated in the protocols of this conference as follows: "The above summary may serve to present the general nature of the question which has arisen between the United States and France respecting fishing rights, and which Great Britain will doubtless de- sire to see settled in a manner satisfactory to the United States. It is obvious that, of Great Britain cannot make good the title which the United States hold under her to take fish on the western coast of New- foundland, it will rest with her to indemnify them for the loss. Another question which it is supposed will also be for her considera- tion is, how far she will deem it proper that France should be allowed to drive or order away the fishermen of the United States from a coast that is clearly within the jurisdiction and sovereignty of Great Britain." On p. 129, still reading from the same volume, Mr. Rush stated, in a note to Mr. Canning, dated London, the 3rd May, 1824 : — "The United States seek only the fair and unmolested enjoyment of the fishing rights which they hold at the hands of Great Britain under the convention of 1818, satisfied that Great Britain, whether as regards the guarantee of those rights, or the maintenance of her own sovereign jurisdiction over this island and its immediate waters, will take such steps as the occasion calls for, and above all, as are ap- propriate to the just and amicable intentions which it may be so con- fidently supposed will animate the Government of his most Christian Majesty, as well as that of His Britannic Majesty, towards the United States, touching the full rights of the latter under the conven- tion aforesaid." We are fortunate in having knowledge as to the rights Mr. Rush thought had been renounced by the treaty of 1818, for, turning to the report of Mr. Rush and Mr. Gallatin on p. 306 of the United States Case Appendix, I read: — " The exception (writing then as to the exception concerning Hud- son's Bay) 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." 92909°— S. Doc. 870, 61-3, vol 10 11 1152 NORTH ATLANTIC COAST FISHERIES ARBITRATION. If the Tribunal will now kindly follow me to p. 319 of the Appen- dix to the Case of the United States there will be found an 695 extract from the book of Kichard Rush, published in 1833, entitled, "Memoranda of a Residence at the Court of London," concerning which I spoke at this morning's session, and from which I desire to read the following extract: — " It was by OUT act that the United States renounced the right to the fisheries not guaranteed to them by the Convention. That clause did not find a place in the British counter-pro jet. We deemed it proper under a three-fold view: (1) to exclude the implication of the fisheries secured to us being a new grant; (2) to place the rights se- cured and renounced, on the same footing of permanence; (3) that it might expressly appear, that our renunciation was limited to three miles from the coasts. This last point we deemed of the more conse- quence from our fishermen having informed us, that the whole fish- ing ground on the coast of Nova Scotia, extended to a greater distance than three miles from the land ; whereas, along the coasts of Labrador it was almost universally close in with the shore. To the saving of the exclusive rights of the Hudson's Bay Company, we did not object. The charter of that company had been granted in 1670, and the people of the United States had never enjoyed rights in that bay that could trench upon those of the company. Finally, it is to be re- marked, that the liberty of drying and curing on certain parts of the coast of Newfoundland, as secured in the article, had not been allotted to the United States even under the old treaty of 1783." Mr. Rush stated, after these negotiations with France in 1822 and 1824, and after taking up the matter with England, his idea of what the United States had renounced. I am now going to pass by the consideration of the affidavits, cor- respondence and documents in connection with this controversy found in the Appendix to the Counter-Case of the United States, from pp. 105 to 129 inclusive, with the statement that the affidavits therein found, and the notes and documents therein found, will abundantly establish that the American fishing-vessels were fishing within the strictest territorial jurisdiction of Great Britain, which, according to Mr. Rush, was 3 miles from land, and that Mr. Rush was not pre- senting to the British Government any claim that involved an admis- sion of exclusive jurisdiction of Great Britain over all the waters of St. George's Bay. I respectfully submit to the Tribunal the evidence referred to, and pass the subject, Relieving that an examination of the material in the Appendix to the Counter-Case of the United States bearing on this controversy will abundantly establish the position which I have just submitted to the Tribunal. I have now come to the consideration of the acts of the two Gov- ernments during the period immediately following the making of the treaty. ARGUMENT OF CHARLES B. WARREN. 1153 The United States contends that the orders issued to the Admiralty of Great Britain and by the Admiralty to the vessels stationed in the North Atlantic, conclusively demonstrate that the construction put upon the treaty of 1818 by Great Britain was that United States fishing-vessels should be permitted to fish within any of the large bodies of water, provided fishing operations were not conducted within 3 miles of the shore. It is, perhaps, important to call attention to the nature of the Act of 1819 which is relied upon by the Counsel for Great Britain as a construction of the treaty. I have only to say this regarding that Act. It is the unilateral act of Great Britain, and, in any event, if its terms are examined — the Act will be found in the Appendix to the Case of the United States at pp. 112, 113, and 114 — it will be found merely to follow the lan- guage of the Treaty itself, and therefore it is really of no importance in the discussion of the Question with which I am now immediately concerned. In the Case presented on behalf of the United States at pp. 77 to 82 will be found discussed in detail the seizures made between 1821 and 1824, and no seizures were made after 1824 until after the pas- sage of the Nova Scotia Act in 1836. In the Case of the United States, the evidence to substantiate the place of the seizures is specifically referred to, and it is established in respect to each seizure that the claim was made in behalf of Great Britain that an offence had been committed within 3 marine miles of the shore ; and it is also established that no attempt was made, prior to the appearance of the Nova Scotia theory of interpretation, to prevent the fishing-vessels of the United States from fishing in the waters of any of the large outer bays, provided they remained out- side the 3-mile limit from the shores and outside the bays, harbours, and creeks lying landward of the 3-mile line, unless they resorted to such small bays, harbours, and creeks for one of the four purposes specified in the proviso clause of the renunciatory clause of the treaty. In the Case of the United States, on p. 75, will be found this state- ment : — " During the eighteen years from 1818 to 1836, and, in fact, for several years thereafter, no question arose between Great Britain and the United States under this treaty involving the interpretation of the meaning of its provisions. . . . The only seizures of 696 American vessels during this period were made between the years 1821 and 1824 for alleged violations of the provisions of this section of the act. It will be found upon an examination of the circumstances surrounding these seizures that in every instance they were made under the direction of British naval officers on the charge of fishing within three miles of the shore in waters wherein the liberty of fishing had been renounced by the treaty, or of being 1154 NORTH ATLANTIC COAST FISHERIES ARBITRATION. within three miles of the shore in such waters for purposes other than the four purposes of shelter, repairs, wood, and water provided for in the treaty." The evidence is then discussed at length, and it is established be- yond any possibility of doubt that the only seizures made during that period were within the 3-mile limit. That this was the position of Great Britain is established by the orders, under which His Majesty's sloop " Dotterel," then stationed on the North Atlantic coast, acted. Commander Hoare in a report to Rear- Admiral Lake, the 25th November, 1824, to be found in the Appendix to the Case of the United States, on pp. 374 to 377, stated, in answer to a complaint of the owners of the American fishing-vessel " Hero," which had been seized in a harbour within the 3-mile limit, that, as appears at the end of the note closing on p. 377 : — " My order to the officers of the boats has been, that any American vessels they may find within three marine miles of the shore, except in evident cases of distress or in want of wood or water, they are to detain and send or carry them to St. Andrew's." This report of this British Commander I maintain conclusively establishes that the orders issued by the Admiralty of Great Britain in compliance with instructions from the Foreign Office of Great Britain, to the vessels stationed upon the North Atlantic coast were to carry out the terms of this treaty on lines in harmony with the contention now put forward by the United States in this submission ; and in accordance with which construction the people of the United States were exercising their rights at that time. There was no discussion of the interpretation of the renunciatory clause at that time, because there was no question raised at that time about the rights of American vessels in the great bays. But while the fishermen were not molested in their operations within the great bodies of water, unless nearer than 3 miles of the shore, they were not allowed to go into the small bays, creeks, and harbours indenting the coast of the larger bays, "except in evident cases of distress, or in want of wood or water," and that was the cause of the trouble then. The dispute in those days was as to whether a vessel was actually in distress or not. The representatives of Great Britain demanded that the vessel must be in evident distress, while on the other hand the masters of the fishing-vessels of the United States contended that they were tho judges of what was the nature of their distress, and as to whether or not they went in for shelter, or whether they required wood, or water, or whether they required repairs. That difference in interpretation was a source of dispute and controversy during this period, and that difference only. ARGUMENT OP CHARLES B. WARREN. 1155 It was of course natural that differences of opinion would arise in specific cases, as to whether or not any particular vessel was in need of wood or water ; but the great and important fact remains, that by the instructions of the Government of Great Britain, shown by these orders issued to the " Dotterel," the treaty was being construed, as to the great outer bodies of water, in accordance with the interpreta- tion always put forward by the United States, and not in accordance with the interpretation originated in Nova Scotia in 1841. The Case of the United States, on pp. 77 to 82 inclusive, reviews the various seizures made between 1821 and 1824, and, as I have stated, no seizure was made after 1824, prior to the passage of this Nova Scotia Act in 1836. I shall not refer therefore to the seizures in detail. They were all made, I repeat, within the 3-mile limit. The Case of the United States, in discussing each one of these seizures, locates the vessel with particularity and discusses its loca- tion in great detail. If the Tribunal please, the Government of Great Britain could have produced and can now produce before this Tribunal the orders issued to these vessels, and if the statement, made in the Case of the United States served upon the Government of Great Britain in Oc- tober last, that those orders were that no seizures should be made in these great bodies of water unless the vessel was within 3 miles of land, was not accurate, and if that statement did not represent 697 the fact, then it was and is the duty of the Government of Great Britain to produce the orders issued to those vessels. These orders are not in the possession of the Government of the United States; but I maintain that it is conclusively to be presumed, in accordance with the ordinary rules of evidence, that the produc- tion of the orders would not at least assist the contention now made by the Government of Great Britain before this Tribunal. In the British Counter-Case, on p. 47, the following statement is made : — " that so far from freely asserting and exercising the right of fishing in the bays, they did not, until after 1836, frequent the bays for any such purpose." In order to establish that, at least in the opinion of one American, the treaty of 1818 surrendered the right to fish anywhere within the Bay of Chaleurs, the British Case, the Counter-Case, the Argument, and the counsel before this Tribunal cite Mr. Lyman's book on Di- plomacy, written in 1828, in which it is claimed that the statement is made by Mr. Lyman, that we, meaning the United States, had "lost the Bay of Chaleurs fishing, so important formerly as to con- fer a name on a particular description of fish 'as well as vessels." The British Case neglects to explain why a book published in 1828 contained the statement that fishing within the Bay of Chaleurs had 1156 NORTH ATLANTIC COAST FISHERIES ARBITRATION. been lost, if the statement just quoted from the British Case, and if the argument of counsel in this submission is also true, that there was no fishing in the bays until after the mackerel came there in 1838. The author referred, in the quotation used in the British Case, to the fact that the fishing was so important formerly as to confer a name on a particular description of fish as well as vessels. Of course he referred to the American fishing there. I respectfully submit, that if the Tribunal will take the second volume of Lyman's " Diplomacy of the United States," and turn to p. 100, from which this extract is cited so frequently by counsel for Great Britain, it will be discovered that the citation does not bear out the purpose to support which it is cited. The author states: — " In other words, we have renounced the right to come within three marine miles of any British shore, west of longitude about 62, and south of latitude about 47. Even, therefore, if we fish on the pro- hibited grounds outside the marine league, we can neither approach the shore to dry or take bait, both important considerations. And, indeed, as the cod strike in for the shores in pursuit of small fry (called by the fishermen capling, and used by them for bait) the fishing is probably not good outside the limit. One object the Brit- ish government had in view, in restraining our vessels to a distance of three miles, was probably to afford less opportunity for smuggling, a practice of which they made great complaints. In the stipulation there is no provision, that the right shall not be abrogated by a future war ; a permanent character only is given to it in the manner, usual in treaties. By this convention we have relinquished a large portion of the original fishing ground, secured by the treaty of '83, at least, wherever the fishery lies within three marine miles of the coast, and as near as that the laws of nations would permit us to go. On Newfoundland we have obtained an enlarged limit of curing and drying, but the fishery remains the same, for we before possessed a right to fish, wherever British fishermen drew the line. We have lost the bay of Chaleur fishing, so important formerly, as to conifer a name on a particular description of fish as well as vessels. Another obvious consideration is, that under the present arrangement our vessels are obliged to go a greater distance than formerly, all the neighbouring grounds being forbidden. Whether the grounds, relinquished, are inferior, or exhausted, or deserted, by our fishermen, are important considerations, but we believe the codfish, though migratory in its habits, pursuing its food along the shore, returns periodically with a wonderful instinct to regular haunts; — and that the success, hereto- fore, attending the American fisheries, has been owing to the greater degree of enterprize, industry and economy, with which they were managed. Our fishermen have under-worked the British, taking and curing the fish almost at their own doors." It is, of course, at this distant day, difficult to determine, with any degree of accuracy, the merits of the numerous disputes between the Government of Nova Scotia and the fishermen of the United States ARGUMENT OF CHARLES B. WARREN. 1157 resorting to the small bays, harbours, and creeks of the British pos- sessions in North America and it is, fortunately for the present pur- pose, quite immaterial to determine the justice of those claims on behalf of Great Britain, or the justice of the claims asserted by the masters of American fishing vessels. It is apparent that these dis- putes arose from the interpretation put upon the proviso clause of the treaty that a vessel, when resorting to harbours for one of the four purposes provided in the clause, should be in evident distress, or in evident need of repairs, or in evident need of wood or water. Sir Robert Finlay, in his oral argument, after reviewing the 698 operations of the fishing-vessels of the United States seized in the Bay of Fundy in 1824, said on p. 73 of the report of his very able argument : — " So that I claim to have shown that there is no ground for the very important allegation made on behalf of the United States that, during this period from 1819 to 1836, the American fishermen fished in the Bay of Fundy and in other similar bays as of right and with- out being challenged until they came within three miles of the shore. The truth is that the question of fishing in the bays was not, at that time, one of any importance and that it was only about the year 1836 that the question of fishing in the bays became of importance owing to the circumstance that the mackerel supply on the American coasts, failed, and that the American fishermen came to the coasts of the British possessions, and notably into the Bay of Fundy in pur- suit of mackerel. It was then, and not till then, that the controversy as to bays came out. The attempt to show that the right was asserted before 1836 fails." Learned counsel rests this argument upon the assumption that the mackerel fishery was the only fishery pursued by American fishing vessels in the bays and that the mackerel, about 1836, abandoned the coasts of the United States, and that it was not until after that time, or about that time, that American fishing vessels resorted to these large bodies of water adjacent to the British possessions. The chief support for this position is the statement made by Mr. Tuck in a speech, in 1852, in the House of Representatives. Mr. Tuck was a representative from the State of New Hampshire, which has a very limited frontage on the Atlantic Ocean, some few miles only, and he, evidently, as far as anyone knows, had no special knowledge about the fisheries. But I am not going to rest any con- tradiction of Mr. Tuck's statement upon any general remarks that may be made by counsel now as to the special information possessed by Mr. Tuck in 1852, but I shall proceed to show what Mr. Tuck was talking about and where he drew his information from, and will show how extensively fishing operations were carried on in those days before the mackerel came in 1836, as claimed by counsel for Great Britain. 1158 NORTH ATLANTIC COAST FISHERIES ARBITRATION. In dealing with this speech of Mr. Tuck's, Sir Robert questioned, as being an error, the date 1838 in the last sentence of the quotation which he used. I might say that it was erroneously printed in the Appendix to the Case of Great Britain, submitted to this Tribunal, as 1838, and that it was corrected in the Counter-Case of the United States and reprinted as 1828. There is conclusive evidence, however, that Mr. Tuck used the date, 1828, correctly, and that he only re- ferred to a matter which a member of Congress might be expected to refer to, namely, an Act of Congress authorising the licensing of fishing-vessels. I refer now to Sabine's Report on the Fisheries in which he deals with the mackerel fishery from the settlement of New England until the year 1852. A portion of this work appears in the British Case Appendix. I read from Sabine's Report itself at p. 162 : — " Soon after the peace of 1783, a writer in a Boston newspaper, in a series of articles on American commerce, said that the mackarel fishery ' was of more value to Massachusetts than would be the pearl fisheries of Ceylon. ' : Also, further down on the same page, speaking of the mackerel fishery, he said : — " Its legal existence as a branch of maritime industry does not ap- pear to have been so much as recognized by the Government of the United States until 1828, when an act was passed by Congress which authorized the collectors of the customs to issue special licences for its prosecution, and extended to the vessels employed in it the pro- visions of the laws then in force relative to enrolled and licensed ton- nage generally." THE PRESIDENT : Was this mackerel fishery in British or American waters ? MR. WARREN : I am coming to the mackerel, cod, and other fisheries in these treaty waters, Mr. President, in a moment. I was just citing Sabine for the purpose of explaining what Mr. Tuck meant in his speech in Congress when he used the date 1828, which is challenged as incorrect. The statement has been made that it should be 1838. I have shown that what Mr. Tuck, then a member of Congress, evi- dently referred to was the Act of Congress passed in 1828, which licensed vessels especially for the mackerel fishery, although the mackerel fishery had existed, as I have shown by this extract, since immediately after the peace of 1783, and, as far as I know, before. Coming, Mr. President, to the question which you just put to me, I would say in reply that the fact is that food fishes of all 699 varieties, including cod, haddock, and herring, abounded in the inshore waters of the North Atlantic before the Treaty of Peace of 1783, which admitted our fishermen to the very shores of the waters now in dispute. This fact appears in a statement made by AKGUMENT OP CHARLES B. WARREN. 1159 John Adams, one of the negotiators of the Treaty of Peace of 1783, to the British negotiators at Paris in 1782, when the preliminary articles were signed which finally became the definitive Treaty of Peace of 1783. I read from the Appendix to the British Counter- Case on p. 101, where is found an extract from Mr. Adams' diary under date the 25th November, 1782. " I related to them " By " them," he means the British negotiators — " the manner in which the cod and haddock came into the rivers, har- bors, creeks, and up to the very wharves, on all the northern coast of America, in the spring, in the month of April, so that you have nothing to do but step into a boat and bring in a parcel of fish in a few hours ; but that in May they begin to withdraw ; we have a say- ing at Boston, that when the ' blossoms fall, the haddock begin to crawl ' ; that is, to move into deep water, so that in summer you must go out some distance to fish. At Newfoundland it was the same; the fish, in March or April, were in shore in all the creeks, bays, and harbors, that is, within three leagues of the coasts or shores of Newfoundland and Nova Scotia." As to the presence of cod in the bays I desire to submit an extract from Sabine's Report on the Fisheries, found at p. 1287 of the second volume of the Appendix to the Case of the United States : — " I conclude the topic with expressing the conviction — to which all practical men will assent — that, if the new construction of the con- vention of 1818 be persisted in and actually enforced, we shall lose quite one-third of our cod and mackerel fisheries." I also wish to refer to the statement made by the Attorney- General of Nova Scotia in 1844, found in the Appendix to the British Case on p. 139 : — " In conclusion it is humbly urged upon the consideration of Her Majesty's Government that the Bay of Fundy furnishes very valuable and productive fisheries of herring, mackerel and shad as well as cod and Her Majesty's Government cannot appreciate too highly the importance and value set by the Legislature and people of Nova Scotia upon the exclusion of American fishermen from the fisheries in the Bay of Fundy." In support of the fact that there were fish in those bays before the period mentioned by the counsel for Great Britain, I also cite an extract from a report by the Superintendent of Trade and Fisheries at Canso — in the Gut of Canso between Cape Breton and Nova Scotia — dated the 10th November, 1802. This letter is found in the British Case Appendix, on p. 57, and I will content myself by citing it and asking the Tribunal to read the report. In the book, " Fisheries and the Mississippi," by John Quincy Adams, pp. 211-215, there is a letter from a Mr. Lloyd to Mr. Adams 1160 NORTH ATLANTIC COAST FISHERIES ARBITRATION. which bears date the 8th March, 1815, from which I desire to quote the following: — " The shores, the creeks, the inlets of the Bay of Fundy, the Bay of Chaleurs, and the Gulf of St. Lawrence, the Straits of Bellisle, and the Coast of Labrador, appear to have been designed by the God of Nature as the great ovarium of fish; — the inexhaustible repository of this species of food, not only for the supply of the American, but of the European continent. At the proper season, to catch them in endless abundance, little more of effort is needed than to bait the hook and pull the line, and occasionally even this is not necessary. In clear weather, near the shores, myriads are visible and the strand is at times almost literally paved with them. "All this was gradually making itself known to the enterprise and vigilance of the New England fishermen, and for a few seasons prior to the year 1808, the resort to this employment had become an object of attention, from the Thames, at New -London, to the Schoodic ; and boats and vessels of a small as well as a larger size, were flocking to it from all the intermediate parts of the United States. In the fish- ing season, at the best places for catching the cod, the New-England fishermen, I am told, on a Sunday, swarmed like flies upon the shores, and that in some of these years, it probably would not make an over estimate to rate the number of vessels employed in this fishery, belonging to the United States, at from 1500 to 2000 sail, reckoning a vessel for each trip or voyage, and including the larger boat fish- ery; and the number, if the fisheries were continued, would shortly be still further and very greatly extended." Also on p. 214 of the same work this statement is found : — " The Coast and Labrador Fisheries are prosecuted in vessels of from 40 to 120 tons burthen, carrying a number of men, according to their respective sizes, in about the same proportion as the vessels on the Bank Fishery. They commence their voyages in May, 700 and get on the fishing ground about the 1st of June, before which time bait cannot be obtained. This bait is furnished by a small species of fish called capling, which strike in shore at that time, and are followed by immense shoals of cod fish, which feed upon them. Each vessel selects its own fishing ground, along the coasts of the Bay of Chaleurs, the Gulf of St. Lawrence, the Straits of Bellisle, the Coast of Labrador, even as far as Cumberland Island, and the entrance of Hudson's Bay, thus improving a fishing ground reaching in extent from the 45th to the 68th degree of North latitude. " In choosing their situation, the fishermen generally seek some sheltered and safe harbour, or cove, where they anchor in about six or seven fathoms water, unbend their sails, stow them below, and literally making themselves at home, dismantle and convert their vessels into habitations at least as durable as those of the ancient Scythians. They then cast a net over the stern of the vessel, in which a sufficient number of capling are soon caught to supply them with bait from day to day. Each vessel is furnished with four or five light boats, according to their size and number of men, each boat requiring two men. They leave the vessel early in the morning, and seek the best or sufficiently good spot for fishing, which is frequently found AKGUMENT OF CHABL.ES B. WAKBEN. 1161 within a few rods of their vessels, and very rarely more than one or two miles distant from them, where they haul the fish as fast as they can pull their lines, and sometimes it is said that the fish have been so abundant, as to be gaft or scooped into the boats, without even a hook or line; and the fishermen also say that the cod fish have been known to pursue the capling in such quantities, and with such voracitv as to run in large numbers quite out of water on to the shores." In this same book, on p. 223, is an extract from a British author writing on this very subject. I refer to " Extracts from Colquhoun's Treatise on the Wealth, Power, and Resources of the British Empire," second edition, 1815. I desire to read but a brief extract from that work cited by Mr. Adams at the bottom of p. 223 of " Fisheries and the Mississippi " : — " New Brunswick and Nova Scotia, from being both watered by the Bay of Fundy, enjoy advantages over Canada, which more than compensate a greater sterility of soil. These are to be traced to the valuable and extensive fisheries in the Bay of Fundy, which, in point of abundance and variety of the finest fish, exceed all calculation, and may be considered as a mine of gold — a treasure which cannot be esti- mated too high, since with little labour, comparatively speaking, enough could be obtained to feed all Europe." And still there was no fishing in the Bay of Fundy until the year 1836, according to counsel for Great Britain. There is in this same book " Fisheries and the Mississippi," a letter written by a merchant of Boston, whose character is vouched for by Mr. Adams. The letter, which appears on p. 219, bears date May 1815, and I shall content myself with citing it. In addition to all. this evidence, I respectfully refer the Tribunal to a Memorial found in the Appendix to the Counter-Case of the United States on p. 159, addressed to Daniel Webster when he was Secretary of State of the United States. The Memorial says : — " That we and our fathers have always been accustomed to fish in the Great Bays of the North for Mackerel and Cod fish, with the knowledge and acquiescence of the Governments of Great Britain and of the United States, that even so long since as the year 1829 the number of American vessels fishing in the Great Bays of Labrador was estimated at Five Hundred and that for years past over Five Hundred American vessels have passed the Gut of Canso into the Bay of Chaleur engaged in the fisheries." To these extracts may be added statements made by Sabine and Perley, who were reporting their investigations, and I respectfully refer the Tribunal to the Appendix to the Case of the United States at p. 1281, and to the Appendix to the Counter-Case of the United States, at p. 580. The general testimony of officials of the United States and the statements frequently made by diplomatic representatives to British officials are in accord with this evidence, and in no case were these 1162 NORTH ATLANTIC COAST FISHERIES ARBITRATION. statements officially denied at the time they were made by the repre- sentatives of the United States. I refer now specifically to a letter from Mr. Forsyth, when Secre- tary of State of the United States, to Mr. Stevenson, Minister for the United States in Great Britain at that time, found in the Appendix to the Case of Great Britain, p. 124, and to p. 126 of the same volume, where the note of Secretary Forsyth is repeated by Mr. Stevenson to Lord Palmerston in a letter dated the 27th March, 1841. The Secretary of State of the United States, in June 1843, wrote a letter to Mr. Everett, then Minister for the United States in Great Britain, which will be found in the Appendix to the Case of the United States at p. 472. Mr. Everett wrote a letter to Lord Aberdeen, dated the 10th August, 1843, containing such a statement, found in the Appendix to the British Case, p. 131 ; and in a letter, under date the 25th May, 1844, Mr. Everett made such a statement to Lord Aberdeen. 701 In the debates in the Senate of the United States in 1852 similar statements were made by men versed in the knowledge of this industry, and I respectfully refer the Tribunal to the state- ment of Senator Davis, of Massachusetts, which appears in the Ap- pendix to the British Case, p. 167,, and of Senator Soule, to be found also in the Appendix to the British Case, at pp. 173 and 174; and I desire specifically to refer to the report of the interview of Mr. Lawrence, then American Minister at London, with Lord Malmesbury, then at the head of the Foreign Office in Great Britain, on the 7th day of August, 1852. It will be found on p. 517 of the Appendix to the Case of the United States. I would like to read that letter, in which Mr. Lawrence is reporting to his Government his statement to Lord Malmesbury. " I said that I deeply regretted the course taken by her Majesty's government; that the sending of nineteen armed vessels, without notice, to those waters, (as stated in the provincial journals), ap- peared to be a hostile movement, and one that could not but produce unpleasant results; that courtesy demanded that after the right of fishing had been claimed and exercised for thirty years, (whether rightfully or wrongfully) such notice should be given to the govern- ment of the United States as would enable it to seasonably proclaim to all concerned the intentions of the British Government." There is no record anywhere of Lord Malmesbury ever contro- verting this statement made by Mr. Lawrence. Eeference may also be made to a letter from Mr. Everett, when Secretary of State, to the American Minister at London, written in December 1852, which is found at p. 540 of the Appendix to the Case of the United States. I particularly desire to have it noted, if the Tribunal please, that the United States Minister was directed to read ARGUMENT OF CHARLES B. WARREN. 1163 the letter to Lord Malmesbury, as will appear on p. 542 of the Ap- pendix to the Case of the United States. Taking up now the chart of the Bay of Fundy, of which so much was made by the distinguished counsel in behalf of Great Britain. This chart, which is now handed to the Tribunal, is numbered 1057, and I will, in discussing this question immediately — SIR CHARLES FITZPA TRICK : That is a chart of the Bay of Fundy? MR. WARREN : A chart of the Bay of Fundy ; and in discussing this question of the operations of the fishing vessels of the United States in the Bay of Fundy, my references will be to this chart No. 1057. The chart is from the hydrographic office, and is from original sur- veys of the British Admiralty in 1855 amongst other sources. Before taking up the direct consideration of this chart No. 1057, I desire to pause to say that it would have been a very easy matter for the counsel for Great Britain to have produced before this Tri- bunal the orders issued to the " Dotterel," the nature of which, as I have stated, is set out on p. 77 of the Case of the United States, and in the Appendix to the Case of the United States on pp. 374 and 377. If it had appeared from these orders that vessels were to be seized for fishing in the Bay of Fundy that would have had, I submit, a most important bearing upon this controversy, but the Tribunal will not find, in the evidence submitted in behalf of Great Britain, the orders issued to the " Dotterel," and counsel therefore presented a chart of the Bay of Fundy, to show that certain vessels that had been accused of fishing in the Bay of Fundy had not, in reality, been found in waters which counsel for Great Britain is pleased to define as the Bay of Fundy. When discussing this question the counsel for Great Britain used a chart in the collection of maps presented with the Case of the Gov- ernment of His Britannic Majesty before this Tribunal, which is numbered 7 in the book of charts. An examination of that chart will show that in order to establish the fact that some of these vessels were not in the Bay of Fundy, a line is drawn from the southern extremity of Brier Island, at the entrance to St. Mary's Bay on the Nova Scotia side, to a point above the centre of Grand Manan Island, all of which is British territory, and which line, if continued straight through, would run to the north and east of the admitted bound- ary line between the possessions of Great Britain and the United States. Now, if the Tribunal please, the chart that I have just handed to the Tribunal, designated as No. 1057, shows a line projected from the southernmost extremity of Brier Island to the southernmost ex- tremity of Grand Manan Island — all of which is in British terri- tory— and I submit that an examination of the affidavits, upon which 1164 NORTH ATLANTIC COAST FISHERIES ARBITRATION. so much time was spent, will disclose that the Murr ground, about which so much was said, lies within the geographical Bay of 702 Fundy, as described by a line drawn from the south of Brier Island to the south of Grand Manan Island. I also submit that the tide rips, referred to in the affidavits, so much discussed, lie within the line drawn from the southern extremity of Brier Island to the southern extremity of the Grand Manan, and that the gravelly grounds, which are referred to in the affidavits, lie to the northward of the line drawn from the southern extremity of Brier Island to the southern extremity of Grand Manan. I will make an explanation which may perhaps be unnecessary, but which I will take time to make. The letter " G " on this chart indicates the gravelly ground. I do not know of any other indication of gravelly ground than the " G " lying to the northward of this line that I have defined and which appears on the map. It is quite true that there was fishing outside the Bay of Fundy, and I have no doubt but that some vessels were fishing off the Grand Manan Bank, which lies outside of this line which is drawn from Brier Island to Grand Manan. I submit that there is no reasonable explanation . whatever for drawing a line from the foot of Brier Island to above the middle of Grand Manan Island, which is British territory. If there is any theory upon which that line can be drawn which might explain it I am unfamiliar with it, and cannot undertake to state it. I shall leave this question with the observation that an examination of the evidence will disclose that this Murr ground, and a part of the Murr ledges, are to the northward of a line from the south of Brier Island to the southernmost extremity of Grand Manan ; and with the further observation that the Murr ledges, if counsel for Great Britain desire to confine the discussion to the Murr ledges, lie within the line 3 miles outward and parallel to a line between the south of Brier Island and the south of Grand Manan. [At this point the Court took a recess of fifteen minutes.] Mr. President, the period has now been reached when the conten- tion advanced by the Government of Great Britain was first heard of. Time will not be taken to more than refer to the report of Mr. Vail, who, as the Acting Secretary of State, reported on the conditions of the fishing-ground. This report is found in the Appendix to the Case of the United States at pp. 436 and 440. One thing, however, is to be noted in Mr. Vail's report, which appears at p. 437, and that is that he stated — " It does not appear that the stipulations in the article above quoted "• Having quoted the article of the treaty of 1818 now under consid- eration— " have, since the date of the convention, been the subject of conflict- ing questions of right between the two governments." ARGUMENT OF CHARLES B. WARREN. 1165 That report is dated the 14th August, 1839, and is the report of the Acting Secretary of State to the President of the United States, and he makes his official statement to that effect. In that report he reviews the only controversies which had arisen between Great Brit- ain and the United States, 'and in that part of his report which ap- pears on p. 440 Mr. Vail states : — " From these statements it will appear that the only cases of seiz- ure of which anything is known at the Department, not being made on the coasts of Newfoundland or Labrador, occurred at places in which, under the convention of 1818, the United States had forever renounced the right of their vessels to take, dry and cure fish ; retain- ing only the privilege of entering them for the purposes of shelter, repairs, purchasing wood and obtaining water, and no other. In the absence of information of a character sufficiently precise to ascertain either, on the one side, the real motives which carried the American vessels into British harbors, or, on the other, the reasons which in- duced their seizure by British authorities, the department is unable to state whether, in the cases under consideration, there has been any flagrant infraction of the existing treaty stipulations. The presump- tion is, that if, on the part of citizens of the United States, there has been a want of caution or care in the strict observance of those stipu- lations, there has been, on the other hand, an equal disregard of their spirit, and of the friendly relations which they were intended to pro- mote and perpetuate, in the haste and indiscriminate rigor with which the British authorities have acted." So that Mr. Vail, making his official report, shows that the con- troversy prior to that time had been as to the right within these har- bours, concerning which I have said that there was a dispute, that is, as to whether or not a vessel was in actual distress or in distress in accordance with the judgment of the master of the vessel. 703 This report conclusively establishes that, as between the two Governments, there had been no discussion of the construc- tion of this article 1 of the treaty; United States vessels had been enjoying the privileges under the treaty, and there had been no con- flict between the two Governments except as to the right to go into harbours under the terms of the proviso clause. The inhabitants of Nova Scotia apparently began, because of the natural conditions arising out of the competition, a systematic effort — more or less justified, perhaps, in natural competition and by the ambitious desires of every community to develop its own indus- tries— to nullify the treaty obligations between the United States and Great Britain. In 1836 Nova Scotia memorialised King William IV to assent to an Act containing rules and regulations and restrictions under which the fisheries should be conducted. This memorial is found printed in the Appendix to the Case of the United States on pp. 1040 and 1042. 1166 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The legislature of the province of Nova Scotia passed an Act in 1836 containing, amongst others, the following provisions, which are found at pp. 120 and 122 of the Appendix to the Case of the United States. Section IV is found at p. 120 of the Appendix to the Case of the United States : — " IV. And be it further enacted, That all goods, ships, vessels, boats or other thing, which shall have been condemned as forfeited under this act, shall, under the direction of the principal officer of the customs or excise where such seizures shall have been secured, be sold by public auction to the best bidder, and the produce of such sale shall be applied as follows, that is to say : the amount chargeable for the custody of said goods, ship, vessel, boat or any other thing so seized as aforesaid, shall be first deducted and paid, and the resi- due divided into two equal moieties, one of which shall be paid to the officer or other person or persons legally seizing the same, with- out deduction, and the other moiety to the government, and paid into the treasury of this province, all costs incurred having been first deducted therefrom. Provided always, That it shall be lawful for the commissioners of the revenue to direct that any of such things shall be destroyed or reserved for the public service." Section XIII is to be found on p. 122 of the Appendix to the Case of the United States: — " XIII. And be it further enacted, That in case any information or suit shall be brought to trial on account of any seizure made under this act, and a verdict shall be found for the claimant thereof, and the judge or court before whom the cause shall have been tried shall certify on the record that there was probable cause of seizure, the claimant shall not be entitled to any costs of suit, nor shall the person who made such seizure be liable to any action, indictment, or other suit or prosecution on account of such seizure, .... wherein a ver- dict shall be given against the defendant, the plaintiff, besides the thing seized, or the value thereof, shall be entitled to no more than two pence damages, nor to any costs of suit, nor shall the defendant in such prosecution be fined more than one shilling." It will be found by an examination of these two sections of the Act that the legislature protected, by the provisions of this Act, any person making a seizure against a claim for damages, and at the same time awarded to the officer, or to an individual making a seizure, one-half of the proceeds arising from the sale of the cargo or vessel. This legislation was peculiarly adapted to persuade the inhabitants of Nova Scotia to become active in seizing American vessels, and it is not surprising that, within a short time after the passing of the Act, it should be found that a new interpretation of the renunciatory clause of the treaty of 1818 had been discovered by the provincial fishermen. Lieutenant Paine, of the United States Navy, in a report dated the 29th December, 1839, which will be found in the Appendix to the ARGUMENT OF CHARLES B. WARREN. 1167 Case of the United States at p. 451, first made known to the Secre- tary of State the theory of interpretation now put forward, and then put forward by the authorities of Nova Scotia. The letter of Lieu- tenant Paine reads as follows: — " The authorities of Nova Scotia seem to claim a right to exclude Americans from all bays, including those large seas such as the Bay of Fundy and the Bay of Chaleurs; and also to draw a line from headland to headland; the Americans not to approach within three miles of this line. " The fishermen, on the contrary, believe they have a right to work anywhere, if not nearer than three miles to the land." That is, the fishermen of the United States; and here is the im- portant part of this report of Lieutenant Paine, if the Tribunal please : — " The orders of Admiral Sir Thomas Harvey," 704 That is, the British Admiral — " as he informed me, are only to prevent their fishing nearer than three miles." Lieutenant Paine means, there, nearer than 3 miles to land, be- cause he used the expression " nearer to land " just above. This evidence as to the nature of the orders to Admiral Sir Thomas Harvey, was referred to in the Case of the United States, and of course was incorporated in full in the Appendix to the Case of the United States, and the orders to Sir Thomas Harvey, although under the exclusive control of the Government of Great Britain, have never been made a part of the evidence submitted to this Tribunal. Many of the seizures, indeed. Lieutenant Paine stated, as will be found in the portion of his report on p. 452 of the Appendix to the United States Case, were made by a person who commanded a Che- bacco boat as Lieutenant Paine calls it, with ten or twelve men armed with muskets. The Lieutenant states that he was prompted by his own interests, as secured to him by this Act of the Legisla- ture of Novia Scotia as well as by the certainty of immunity, also assured to him by virtue of the terms of this Act which I have just been referring. Various consuls of the United States in Nova Scotia and Cape Breton advised the Department of State of seizures of American vessels in the year 1840, for offences, however, always claimed to have been committed within 3 miles of land. The consul at Pictou, on the 25th November, 1840, Pictou being in the Province of Novia Scotia, as appears in the Appendix to the Case of the United States at p. 458, advised the Secretary of State of the United States that the authorities of Novia Scotia claimed that the 3 marine miles should be measured from the headlands. 92909°— S. Doc. 870, 61-3, vol 10 18 1168 NORTH ATLANTIC COAST FISHERIES ARBITRATION. This was a confirmation of the statement made by Lieutenant Paine in 1839. The Department of State immediately took the question up with the British Government, and the notes exchanged, which are fully set out in the Appendix to the Case of the United States, and which have been fully presented in the Case of the United States, and amply discussed in the printed Argument, conclusively establish that there had been no former discussion between the two Gov- ernments concerning the interpretation of this treaty. The Secretary of State addressed a note to the Minister of the United States in Great Britain with regard to the matter. Thereupon followed the notes exchanged between the American Minister and the Foreign Office of Great Britain, all of which appear at length in the Appendix to the United States Case, and have been referred to by the counsel for Great Britain, and, of course, read by the Tribunal ; so there is no necessity for my going into those long notes between Mr. Stevenson and Lord Aberdeen, and Mr. Everett and Lord Aberdeen. The Government of the United States, in these notes, stated its posi- tion as to the interpretation of the renunciatory clause of the treaty, which was in harmony with the understanding at the time of the mak- ing of the convention, and with the construction placed upon the words of the treaty by both Governments for something over twenty years. In 1841 Governor Falkland of Nova Scotia presented a case stated to the British Government, with the request that the Crown Officers render an opinion thereon. The remarkable opinion of the Law Officers of the Crown is well within the memory of this Tribunal, and needs no further discussion by anyone. This opinion was rendered 30th August, 1841, and was transmitted to Lord Falkland in Novem- ber 1842, as appears in the Appendix to the Case of the United States at p. 1046. It is indeed unfortunate that this remarkable opinion, which relied solely upon the alleged fact that the term " headland " was used in the treaty to express " extreme points of land next the sea of the coast, or of the entrance of the bays," was never communicated to the Gov- ernment of the United States. If it had become the subject of diplo- matic discussion, perhaps this long controversy, and even this sub- mission, might have been avoided. It appears that as late as 1866 a Committee of the House of Assem- bly of Nova Scotia, of which the late Sir Charles Tupper was Chair- man, referred to this opinion as clearly establishing the rights of the Colony of Nova Scotia. That year, 1866, was just before the passage of the British North America Act, which created the Dominion of Canada. ARGUMENT OF CHARLES B. WARREN. 1169 It also appears that in March 1845, Appendix to the Case of the United States, at p. 489, Lord Aberdeen, in a note to Mr. Everett, rested his case upon this opinion and stated that Her Majesty's Gov- ernment " are fortified by high legal authority." 705 The fishing- vessels of the United States continued to prose- cute the fisheries in the Bay of Fundy and other large bodies of water, but in the spring of 1843 the authorities of Nova Scotia, for the purpose of making a test case, having received, it will be borne in mind, the opinion of the Law Officers of the Crown, seized the American fishing-schooner "Washington," on the 7th day of May of that year, while the " Washington " was fishing within the waters of the Bay of Fundy, at a distance of more than 3 miles from shore. This, I may be permitted to repeat, was a seizure made for a test case; and the ground of the seizure was so stated at the time. The seizure was promptly reported to the State Department of the United States, and Mr. Everett, the Minister for the United States in Great Britain, was instructed to present the subject of the seizure to the Government of Great Britain. The fact should not be overlooked that this seizure, for the pur- pose of making a test case, was, in fact, made while the matter of the construction of this clause of the treaty was still under discussion between the Governments of the United States and of Great Britain, and before the Government of Great Britain had replied to the notes of the American Minister concerning the true interpretation of the treaty. I shall not review these long notes, exchanged between the Minister for the United States in London and the Foreign Office, concerning the construction of this treaty. They are, as I have stated, set out in the Appendix to the Case of the United States, and have been sufficiently discussed in the Printed Argument of the United States. Later, on the 6th July, 1844, the authorities of Nova Scotia seized the American fishing-schooner "Argus," off the coast of Cape Breton, when about 16 miles from shore, claiming that the body of water formed by a line from Cow Bay head or Cape Percy, near Sydney, in Cape Breton, extending to Cape North, the northern extremity of Cape Breton, was such a bay as had been renounced by American fishermen under the terms of the treaty of 1818. The seizing officer stated, as reported by the captain of the vessel, and as appears on p. 485 of the Appendix to the Case of the United States : — " he seized us " that is, the vessel " he seized us to settle the question." 1170 NORTH ATLANTIC COAST FISHERIES ARBITRATION. So that the "Argus" was also made a test case. It may be here opportune to bring again to the attention of the Tribunal the fact that these two vessels, the "Washington" and the "Argus," seized, respectively, in 1843 and 1844, for the purpose of making test cases, are the only seizures ever made during this entire controversy by the Government of Great Britain outside of a line 3 miles from land. I desire, if the Tribunal please, to devote a few minutes to trav- ersing the statement made at the bottom of p. 83 of the British Case, which reads : — " This view *— That is, the American contention " was not insisted on, and it would seem that the British contention, with an exception in favor of the Bay of Fundy, was officially accepted by the United States Government, at least it was accepted by Mr. Everett, United States Minister in London, and by Mr. Webster, United States Secretary of State." That statement, in regard to the acceptance by both Mr. Everett and Mr. Webster, was repeated in the oral argument of the dis- tinguished counsel who opened in behalf of Great Britain. I shall now, at this stage, confine myself to showing that the statement regarding Mr. Everett's having acquiesced in any such interpreta- tion as is now put forward, or as then put forward by the Govern- ment of Great Britain, is not borne out by the records at all. Turning to the letter of Mr. Everett, dated the 25th May, 1844, upon which this statement is based, and which is set out at length in the Appendix to the Case of the United States, on pp. 478 to 482, inclusive, I desire to read therefrom but two extracts — one of which is relied upon by Great Britain, and the other of which explains the meaning of the statement relied upon by the counsel for Great Britain, and shows conclusively just what Mr. Everett had in mind. 706 1 refer the Tribunal to p. 480 of the Appendix to the Case of the United States, at the bottom of the page, where will be found these words, in this letter from Mr. Everett to Lord Aber- deen : — " In estimating this distance, the undersigned admits it to be the intent of the treaty, as it is itself reasonable, to have regard to the general line of the coast; and to consider its bays, creeks and harbors, that is, the indentation usuallv so accounted, as included within that line." That, if the Tribunal please, is the statement upon which the British Case relies in this submission, to show that Mr. Everett was in accord with the contention of the Government of Great Britain. If the Tribunal will now kindly follow me to p. 481 of the Ap- pendix to the Case of the United States3 from this same letter from ABGUMENT OF CHARLES B. W ARREST. 1171 Mr. Everett, I will read, in the middle of that page, the following passage : — " Lastly — and this consideration seems to put the matter beyond doubt — the construction set up by her Majesty's colonial authorities, would altogether nullify another, and that a most important stipula- tion of the treaty, about which there is no controversj', viz.: the privilege reserved to American fishing vessels of taking shelter and repairing damages in the bays within which they are forbidden to fish. There is, of course, no shelter nor means of repairing damages for a vessel entering the Bay of Fundy, in itself considered. It is necessary, before relief or succor of any kind can be had to traverse that broad arm of the sea and reach the bays and harbors, properly so called, which indent the coast, and which are no doubt the bays and harbors referred to in the convention of 1818." As a result of the notes and interviews between Mr. Everett and Lord Aberdeen, Lord Aberdeen informed Mr. Everett, as appears on p. 489 of the Appendix to the Case of the United States, under date the 10th March, 1845, that the Government of Great Britain had decided to relax the construction of the treaty in favour of the United States fishermen as to the Bay of Fundy, which was the particular body of water at that time under consideration, and in fact the only waters then directly involved in the dispute. I shall not stop to read that entire note from Lord Aberdeen to Mr. Everett, but I desire, if the Tribunal please, to read this passage at the bottom of p. 489 : " The undersigned has accordingly much pleasure in announcing to Mr. Everett, the determination to which her Majesty's government have come to relax in favour of the United States fishermen that right which Great Britain has hitherto exercised, of excluding those fishermen from the British portion of the Bay of Fundy, and they are prepared to direct their colonial authorities to allow henceforward the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach except in the cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick." In this note, the Government of Great Britain conceded that the fishermen of the United States could fish within the waters of the Bay of Fundy, but said that they must not approach within 3 miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick. The position of the United States is here occupied by the Govern- ment of Great Britain — I am not speaking now by reason of the con- cession of the Bay of Fundy, but I am speaking of the statement con- cerning the bays along the coast of Nova Scotia bordering the Bay of Fundy, and being within the Bay of Fundy itself. The fact is very apparent from an examination of the evidence that before this relaxation as to the Bay of Fundy, the Government of Great Britain had decided, or at least it had under consideration 1172 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the question of deciding and the decision followed within a very short time thereafter, not to enforce or attempt to enforce the Nova Scotia theory of interpretation, for the Tribunal is now furnished with the evidence which, for the first time, has been made public, that, in spite of the remarkable opinion of the Law Officers of the Crown, Lord Stanley was instructed by the formal action of the British Ministry, as appears in the Appendix to the Case of Great Britain, at pp. 145 and 146, to advise the authorities of Nova Scotia reading from the top of p. 146, from a despatch from Lord Stanley to Lord Falk- land— under date the 19th May, 1845, as follows : — " H. M. Govt therefore henceforward propose to regard as bays, in the sense of the treaty, only those inlets of the sea which measure from headland to headland at their entrance the double of the dis- tance of 3 miles, within which it will still be prohibited to the fishing vessels of the United States to approach the coast for the purpose of fishing. I transmit to your Lordship herewith the copy of a letter, together with its enclosures, which I have received from the 707 Foreign Office upon the subject, from which you will learn the general views entertained by H. M. Govt as to the expedi- ency of extending to the whole of the coasts of the British posses- sions in N. America, the same liberality with respect to U. States fishing boats as H. M. Govt have recently thought fit to apply to the Bay of Fundy." JUDGE GRAY: What was the date of that letter? Mr. WARREN: The 19th May, 1845, your Honour; and it is found in the British Appendix, at p. 145. On p. 53 of the Counter-Case of Great Britain, filed before this Tribunal, this rather surprising statement is made : — "Afterwards (19th May, 1845) the new Colonial Secretary (Lord Stanley), not apparently appreciating the value of the bays as fish- ing grounds, suggested to the Governors of Nova Scotia and New Brunswick a further relaxation of," &c. and the Counter-Case proceeds to quote from the letter which I have just read. As a matter of fact, it appears from the letter which I have just read that Lord Stanley, the new Colonial Secretary, did not decide this question ; but that Lord Stanley transmitted to Governor Falk- land a letter from the Foreign Office of Great Britain, registering the formal decision of the Government of Great Britain in respect of this matter. Those enclosures do not accompany the letter printed in the British Case Appendix. In passing, I desire to state that Mr. Everett, in behalf of the Gov- ernment of the United States, declined to accept as a concession the right to fish in the Bay of Fundy; and in a note addressed to Lord Aberdeen, dated the 25th March, 1845, to be found in the Appendix to the Case of the United States, at p. 497, he communicated to Lord ARGUMENT OF CHARLES B. WARREN. 1173 Aberdeen the fact that nothing had occurred to change the determina- tion of the Government of the United States that its fishing- vessels had a right to resort to those waters, and other waters of that char- acter, as a matter of right ; and that the concession, while not rejected in any unfriendly spirit, could not be accepted as a concession, but that the United States would continue to assert its rights. I now pass to the consideration of the decisions in the cases of the " Washington " and the "Argus," which were seized in 1843 and 1844, for the purpose, as has appeared from the evidence before this Tribu- nal, of making test cases. The Tribunal is, undoubtedly, entirely familiar with the fact that these decisions were the decisions of an Umpire, under the Claims Convention of 1853 between the United States and Great Britain, — both nations having submitted to a joint commission all claims of the citizens or subjects of either country which had arisen after the Treaty of Ghent in 1814. The two Commissioners appointed by the respective Governments differed on the question. The opinion, however, of the Commissioner in behalf of the United States, Mr. Upham, is printed in full at p. 212 of the Appendix to the Case of Great Britain before this Tribunal, and there is no decision in that Appendix or elsewhere by the Commissioner in behalf of Great Britain. The decisions by the Umpire — the Commissioners having disagreed — are found at pp. 131 to 133 inclusive of the Case of the United States, and if it please the Tribunal, I desire to read them : — "The schooner Washington was seized by the revenue schooner Julia, Captain Darby, while fishing in the Bay of Fundy, ten miles from the shore, on the 10th of May, 1843, on the charge of violating the treaty of 1818. She was carried to Yarmouth, Nova Scotia, and there decreed to be forfeited to the crown by the judge of the vice admiralty court, and with her stores ordered to be sold. The owners of the Washington claim for the value of the vessel and appur- tenances, outfits and damages, $2,483, and for eleven years interest $1,638, amounted together to $4,121. By the recent reciprocity treaty, happily concluded between the United States and Great Britain, there seems no chance for any future disputes in regard to the fisher- ies. It is to be regretted, that in that treaty, provision was not made for settling a few small claims of no importance in a pecuniary sense, which were then existing, but as they have not been settled, they are now brought before this commission. " The Washington fishing schooner was seized, as before stated, in the Bay of Fundy, ten miles from the shore, off Annapolis, Nova Scotia. " It will be seen by the treaty of 1^83, between Great Britain and the United States, that the citizens of the latter, in common with the subjects of the former, enjoyed the right to take and cure fish on the shores of all parts of Her Majesty's dominions in America, used by British fishermen ; but not to dry fish on the island of Newfoundland, which latter privilege was confined to the shores of Nova Scotia in 1174 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the following words: 'And American fishermen shall have liberty to dry and cure fish on any of the unsettled bays, harbors and creeks of Nova Scotia, but as soon as said shores shall become settled, it shall not be lawful to dry or cure fish at such settlement, 708 without a previous agreement for that purpose with the inhabi- tants, proprietors, or possessors of the ground.' " The treaty of 1818 contains the following stipulations in relation to the fishery : ' Whereas, differences have arisen respecting the lib- erty claimed by the United States to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of his Britannic Majesty's dominions in America, it is agreed that the inhabitants of the United States shall have, in common with the subjects of his Britannic Majesty, the liberty to fish on certain portions of the southern, western, and northern coast of Newfoundland ; and, also, on the coasts, bays, har- bors, and creeks, from Mount Joly, on the southern coast of Labrador, to and through the straits of Belle Isle; and thence northwardly indefinitely along the coast, and that American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of said described coasts, until the same become settled, and the United States renounce the liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish, on or within three marine miles of any of the coasts, bays, creeks, or harbors of his Bri- tannic Majesty's dominions in America, not included in the above- mentioned limits: provided, however, that the American fishermen shall be admitted to enter such bays or harbors, for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner what- ever abusing the privileges hereby reserved to them.' " The question turns, so far as relates to the treaty stipulations on the meaning given to the word ' bays ' in the treaty of 1783. By that treaty the Americans had no right to dry and cure fish on the shores and bays of Newfoundland, but they had that right on the coasts, bays, harbors and creeks of Nova Scotia ; and as they must land to cure fish on the shores, bays, and creeks, they were evidently admitted to the shores of the bays, etc. By the treaty of 1818, the same right is granted to cure fish on the coasts, bays, etc. of Newfoundland, but the Americans relinquished that right, and the right to -fish within three miles of the coasts, bays, etc. of Nova Scotia. Taking it for granted that the framers of the treaty intended that the word 'bay or bays ' should have the same meaning in all cases, and no mention being made of headlands, there appears no doubt that the Washing- ton, in fishing ten miles from the shore, violated no stipulations of the treaty. " It was urged on behalf of the British government, that by coasts, bays, etc., is understood an imaginary line, drawn along the coast from headland to headland, and that the jurisdiction of her Majesty extends three marine miles outside of this line; thus closing all the bays on the coast or shore, and that great body of water called the Bay of Fundy against Americans and others, making the latter a British bay. This doctrine of headlands is new, and has received a proper limit in the convention between France and Great Britain of 2d August, 1839, in which ' it is agreed that the distance of three ARGUMENT OF CHARLES B. WARREN. 1175 miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland.' "The Bay of Fundy is from 65 to 75 miles wide, and 130 to 140 miles long, it has several bays on its coasts; thus the word bay, as applied to this great body of water, has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume the sovereignty. One of the headlands of the Bay of Fundy is in the United States, and ships bound to Passamaquoddy must sail through a large space of it. The island of Grand Menan (British) and Little Menan (American) are situated nearly on a line from headland to headland. These islands, as represented in all Geographies, are situate in the Atlantic Ocean. The conclusion, is, therefore, in my mind irresistible, that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word, as used in the treaties of 1783 and 1818. " The owners of the Washington, or their legal representatives, are therefore entitled to compensation, and are hereby awarded, not the amount of their claim, which is excessive, but the sum of three thou- sand dollars, due on the 15th January, 1855." The decision in the "Argus" case, the decision of Joshua Bates, Umpire, is as follows: — "The Umpire appointed agreeably to the provisions of the Con- vention entered into between Great Britain and the United States on the 8th of February 1853 for the Adjustment of Claims by a Mixed Commission having been duly notified by the Commissioners under the said Convention that they had been unable to agree upon the decision to be' given with reference to the Claim of the Owners of the Schooner 'Argus,' of Portland, United States Doughty master against the British Government; And having carefully examined and considered the papers and Evidence produced on the Hearing of the said Claim and having conferred with the said Commissioners thereon hereby reports that the Schooner 'Argus' 55 tons burthen was cap- tured on the 4th August 1844 while Fishing on St. Ann's Bank by the Revenue Cruiser Sylph of Lunenburg Nova Scotia commanded by William Carr — Phillip Dod seizing Master — carried to Sidney where she was stripped and everything belonging to her sold at Auction. At the time of the Capture the Argus ' was stated on Oath to have been 28 Miles from the nearest land Cape Smoke there was therefore in this case no violation of the Treaty of 1818. I therefore Award to the Owners of the Argus or their legal Representatives for the loss of their vessel outfits stores and fish the sum of Two thousand Dollars on the 15th January, 1855. " JOSHUA BATES, Umpire. " London, 23d December, 1854." 709 I am not going to delay to discuss the effect of these deci- sions; but the fact is that in the decision in the case of the "Washington," which was seized within the waters of the Bay of Fundy, beyond 3 miles from shore, the Umpire decided that the Bay 1176 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of Fundy was not a bay within the meaning of the treaty of 1818 between the United States and Great Britain, and it is not an ac- curate statement of this decision to say that the basis of the decision of the Umpire was solely that one headland was in the United States and one headland was in the territory of Great Britain. Why, if the Tribunal please, the Government of Great Britain could easily have remedied that difficulty by claiming that the Bay of Fundy extended from the lower point of Nova Scotia to the line fixing the boundary between New Brunswick and Maine, in the United States, and then have had determined by that Commission the question of whether that bay was within the exclusive territorial jurisdiction of the Gov- ernment of Great Britain. The fact is that the Umpire in that case, Mr. Bates of the firm of Baring Brothers, of London, decided that the Bay of Fundy was not a bay within the meaning of the treaty of 1818, and he stated in his decision that the rule laid down in the treaty of 1839 between Great Britain and France fixed a proper limitation as to the extent of territorial waters. Does it look, from the reading of that decision, and from the state- ment of its effect, as though at that time the Government of Great Britain was claiming that the bays renounced by the clause of the treaty of 1818 now under consideration were geographical bays, or does it look as though they were claiming that they were territorial bays ? If they were territorial bays, Mr. Bates, the Umpire, decided that that bay, the Bay of Fundy, was not a bay within the meaning of the treaty of 1818. Mr. Bates said, in the conclusion of his opinion, found at p. 132 of the Case- of the United States: — " The conclusion is, therefore, in my mind irresistible, that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word, as used in the treaties of 1Y83 and 1818." I am not going to delay to discuss the decision in the case of the "Argus," which involved the determination of the right to call the water lying inside of a line from Cape Percy, or Cow Bay Head, to Cape North, on the coast of Cape Breton, a bay within the meaning of the treaty of 1818. I will satisfy myself with the statement that the decision was against the contention of Great Britain, and that it was decided by a High Commission created by a formal treaty be- tween these two Powers to pass upon claims presented. It was an essential part of the determination of the claim of the owners of the " Washington " and of the owners of the "Argus " as to whether or not the waters within which the seizures were made were bays within the meaning of the treaty of 1818. And counsel for Great Britain cannot escape the conclusion, if the British contention were to be upheld, that it was necessary to the ARGUMENT OF CHARLES B. WARREN. 1177 decision of those cases, made in accordance with the terms of this treaty between the two Powers, that the waters of the Bay of Fundy and the waters lying within the line from Cape Percy to Cape North were such waters as had been renounced by the United States. Following the relaxation as to the Bay of Fundy, the Government of Great Britain did not interfere with the fishing operations of the American fishing- vessels in the waters of the North Atlantic adjoin- ing its possessions between the years 1845 and 1852. And I submit that this is conclusively established by the evidence before this Tri- bunal. I am quite aware of the statement made by the distinguished coun- sel for Great Britain, that the arrangement as to the Bay of Fundy between Lord Aberdeen and Mr. Everett was regarded by the United States as a settlement of the controversy, and that between 1845 and 1852, there was no fishing within the bays wider in extent than 6 miles. But I submit that there is ample evidence before this Tribunal to show that American vessels continued to fish uninterruptedly from the year 1845 until the year 1852, when the excitement was caused by the letter of Lord Malmesbury, who had recently become Minister for Foreign Affairs in Great Britain. I shall later read some of that evidence, and cite other evidence. The fact is that none of the other provinces of the British posses- sions bordering the North Atlantic, or adjacent to the North Atlan- tic, had in force during this period any Acts similar to the Act of 1836 of Nova Scotia. The province of Prince Edward Island enacted, the 15th April, 1843, a law similar to this law, but no attempt was made to enforce its terms. I will not rely upon my statement of the fact, but 710 refer to the letter written by Governor Bannerman of Prince Edward Island, under date of the 12th February, 1852, found in the Appendix to the Counter-Case of the United States, at p. 217, in which he advised Lord Grey that : — " The provisions of this Act have never yet been enforced ; " This letter was written the 12th February, 1852. It continues — • "but should the Fishery question remain much longer unsettled, in all probability attempts will be made to seize American Fishing vessels, and such attempts may be resisted, which may lead to col- lisions, the consequences of which are not easily to be foreseen." The province of New Brunswick did not enact a similar Act to the Act of Nova Scotia of 1836 until the 3rd May, 1853. And a com- mittee of the Newfoundland Legislature in 1845 reported, as appears in the Appendix to the Case of the United States, at p. 1068, that the American vessels were fishing in great numbers in the great bodies of water adjoining the coast, and also stated, in that report, 1178 NORTH ATLANTIC COAST FISHERIES ARBITRATION. which will be found at p. 1068, of the Appendix to the Case of the United States, that the Americans had the right to fish, within 3 miles of the shores — showing conclusively that the Government of Newfoundland, in those years, was not asserting the claim put for- ward by Nova Scotia. In order that I may not depend upon my memory for this im- portant statement, I refer to p. 1068 of the Appendix to the Case of the United States; where will be found a Report of a Committee of the Legislative Assembly of Newfoundland, which reads in part: — " Your Committee, in referring to the American fisheries, have also to say, that they have no data to ground a correct estimate of them ; but they can state that it is very extensive, employing from one thousand five hundred to two thousand sail of decked vessels, averaging from forty to one hundred tons burthen. The catch of fish in the British waters has been estimated at one million one hun- dred thousand quintals, which must give employment to twenty-five thousand fishermen and seamen. The American fishers are observed in great numbers on the Grand Bank, and on the fishing grounds in the Gulf of St. Lawrence — all along the shores of Nova Scotia, Prince Edward's Island, Newfoundland, and the shores of Labrador. They commence their Fishery early in the Spring, and follow it up with the greatest assiduity, to the latest period of the fall. The American fishery is encouraged by a bounty of twenty shillings per ton, and the supply of their own markets protected by a duty of five shilling per quintal on foreign fish. " Your Committee have to observe that the great catch of Fish by the Americans, supported as it is by bounties and other encourage- ments, operates, concurrently with the French catch and bounties, to sap the foundation of the British fishery. " By the Convention of 1818 the Americans of the United States are allowed to fish along all our coasts and harbors, within three marine miles of the shore, (an indefinite distance) and of curing fish in such harbours and bays as are uninhabited, or, if inhabited, with the consent of the inhabitants. The expert and industrious Amer- icans, ever fertile in expedients, and always on the alert in the pro- duce of gain, know well how to take advantage of such a profitable concession." Sir Robert Finlay, in his argument, stated, at p. 92 of the report of his Oral Argument : — " From 1845 to 1852 there ensued a period of quiet. The Bay of Fundy had been given up, and further concessions were not pressed for." He then read from the report of Sabine, in 1852, certain extracts, and from a Presidential message, in the reading of which an im- portant paragraph immediately preceding the one read, was not read. I refer the Tribunal to that preceding paragraph in President Fillmore's message, as bearing on this question. ARGUMENT OF CHARLES B. WARREN. 1179 The distinguished counsel for Great Britain as reported at p. 94 of the Oral Argument, stated: — " So that there really appears to have been, during this seven years, a period t)f quiet, the Bay of Fundy having been opened and no attempts being made to press for an opening of further bays in furtherance of the concession which, as a matter of favor and grace, the British Government had made in regard to that one special case. In 1852 the matter became again a pressing one, under what cir- cumstances we do not exactly know; but there appear to have been rumors that vessels had been despatched by the British Government for a stricter enforcement of the supposed rights of Great Britain with regard to the fisheries. It did not appear that these rumors were well founded. There had been some rearrangement of the dis- position of the naval forces, and nothing more than that; but a cor- respondence opened in 1852, and certain letters were written and notices given which are of very considerable importance." I now take up, if the Tribunal please, the evidence before the Tri- bunal with a view of establishing the fact that the vessels of 711 the United States were fishing within the bays between 1845 and 1852; and I am speaking -about the large bays, always, in this connection — the bodies of water from which the United States claim they are not excluded. I refer first to the memorial of the Gloucester fishermen of July, 1852, which appears in the Appendix to the Counter-Case of the United States, at p. 159. I also refer to Paul Crowell's Report to the Assembly of Nova Scotia, under date of the 10th February, 1852, found in the Appendix to the Counter-Case of the United States, at p. 209. Mr. Crowell was reporting for the Assembly of Nova Scotia upon the fisheries. I refer also to Sabine's Report, on a page from which Sir Robert Finlay read a statement which was claimed to be in support of his contention that the Americans did not fish within the bays between 1845 and 1852. And I respectfully refer the Tribunal to the follow- ing foot-note on the very page of Sabine, United States Case Ap- pendix, pp. 1283-84, from which the extract was read : — " Some of the colonial newspapers still maintain similar views. The St. John New Brunswicker "- That is the paper printed in St. John, New Brunswick " said, in August, 1852, in commenting on Mr. Webster's despatch or proclamation, that ' it will be seen that Mr. Webster labors under the impression that her Majesty's Government are about to enforce the convention strictly, according to the opinions of the law officers of England. We believe that such is not .the case. For some years past there has been a tacit understanding that American -fishing vessels should only be excluded from those bays or inlets of our coasts which were less than six miles wide, and within which Amcr- 1180 NORTH ATLANTIC COAST FISHERIES ARBITRATION. ican vessels could not fish unless within three miles of the land, either on the one side or the other." I submit, therefore, that Counsel for Great Britain conveyed a very erroneous impression as to the state of affairs in the seven years from 1845 to 1852. The quiet which existed was due not to the fact that Americans did not enter the large bays, but to the fact that the British and colonial governments, hopeful of reciprocity, made no attempt to interrupt them in so doing. That they were fishing in the bays is shown by the evidence, and by the alarm caused among American fishermen by the report that Great Britain intended to exclude them from those waters. It appears that Mr. Webster, then Secretary of State, was in- formed that the British colonies complained that the treaty was not strictly enforced, and the Secretary of State, evidently fearful of a complete interruption of the extensive fishing industry of the United States, published an open letter, the 19th July, 1852, in a Boston newspaper, which contained a warning to American fishermen about the change of attitude, and the supposed changed policy on the part of the Government of Great Britain, and which closed with the fol- lowing words, which will be found on p. 510 of the Appendix to the Case of the United States: — " Not agreeing that the construction thus put upon the treaty is conformable to the intentions of the contracting parties, this infor- mation is, however, made public to the end that those concerned in the American fisheries may perceive how the case at present stands, and be upon their guard. The whole subject will engage the imme- diate attention of the Government." It is perhaps unnecessary for me to pause to correct the statement in the British Case, made on p. 84, which I have already read dur- ing the afternoon, that Mr. Webster, the United States Secretary of State, agreed with the British construction of this treaty, because Mr. Webster distinctly stated, in the paragraph that I have just read, that he did not agree that the construction to be put upon the treaty was conformable to the intentions of the contracting parties. How- ever, we have before this Tribunal conclusive proof of the position of Mr. Webster on this question, and I respectfully refer the Tri- bunal to the letter prepared by Mr. Webster shortly before his death, which he was intending to send to Mr. Crampton, the Minister for Great Britain in the United States at that time, and which appears in the Appendix to the Case of the United States on p. 530. Mr. Webster, in this memorandum, stated: — " The signification of the word bay therefore, is known by its con- comitants. It is a bay where shelter is to be had, where damages may be repaired, & where wood and water may be obtained. ARGUMENT OF CHARLES B. WARREN. 1181 " It is a bay used synonymously with a harbor, which may be re- sorted to for the same purposes. It is hardly less than absurd to say, as it appears to the undersigned, that the meaning was that a United States fishing vessel might put into the Bay of Fundy for shelter, or the Gulf of St. Lawrence for repairs, or the Bay of Cha- leurs for wood and water. 712 " Most clear is it then, that the term bay, used in the proviso, means landlocked recesses, places inaccessible to winds, in short natural harbours. " What ground is there for giving to the term bay, in the principal clause, any broader extent, especially as giving it that broader ex- tent, and understanding it in the sense in which the provincial au- thorities appear to understand it, would be to suppose that the Ameri- can Commissioners had given up all the old ground upon which the United States had stood, and which they had maintained from the first, and to violate their own instructions, purposes which there is no proof of whatever kind, that they even contemplated." Furthermore, there is evidence before this Tribunal which com- pletely refutes the idea that the Government of Great Britain be- lieved that the position of the Government of the United States was in harmony with the contention of the British Government. I refer now to a letter under date of the 20th July, 1852, found in the British Case Appendix, on p. 155, from President Fillmore, then President of the United States, to Daniel Webster, which reads as follows : — " Your note of the 17th, dated at Franklin came to hand this morning, inclosing a copy of your's of the same day to Mr. Crampton, and Mr. Hunter has shown me your telegraphic despatch of yester- day, requesting him to ask me whether it was not best to send one of our naval ships to Newfoundland to look after the disturbances among the fishermen. I have also perused your article in the Boston Courier of yesterday, and sincerely hope that these difficulties will not prove as serious as you seem to anticipate. I have seen Mr. Crampton who informs me that he will leave for Boston to-morrow morning, for the purpose of having a consultation with you upon the subject of the fisheries. He informs me also, that he has ad- dressed a circular to the several Governors of the British Provinces of North America advising moderation and forbearance upon this subject. I doubt not that when you and he meet, you will be able to agree upon some line of proceeding that will allay the present excitement and prevent any bloodshed. I would suggest that you unite in a publication in which you should express your regrets that any misunderstanding had arisen between our fishermen engaged in the fisheries at Newfoundland, and the colonial subjects of Great Britain; that the differences of opinion which have arisen between the two Governments, in reference to their respective rights under the Convention of 1818, have called the attention of both Govern- ments to the subject, and that together with the subject of reciprocal trade between Her Majesty's Provinces of North America and the United States, will doubtless become the immediate subject of nego- tiation between the two countries; that in the meantime and until 1182 NORTH ATLANTIC COAST FISHERIES ARBITRATION. these matters can be amicably adjusted, you both concur in the opinion that under the Treaty of 1818 our citizens had the unques- tioned right of fishing on the Southern and Western shore of the Island of Newfoundland, lying between the Islands of Ramea on the south and the Island of Quiperon on the north, and of entering upon any unoccupied lands upon the shore of said island between Cape Ray and said Island of Ramea, for the purpose of drying and curing fish ; and also of fishing upon the shores of the Magdalen Islands ; and with regard to all the rest of the Island of Newfoundland, and the other islands and mainland of Nova Scotia and New Brunswick, the English Government, so far as they have not conceded it to the French, have the exclusive right of fishing in all the waters adjacent to such islands or mainland and within three marine miles of the shore ; but as for those waters in the several bays and harbours which are more than three marine miles from the shore of such bay or harbour upon either side, and within three marine miles of a straight line drawn from one headland to the other of such bay or harbour, that you as the Representative of the United States conceived that our fishermen have the right under the Treaty to fish therein, but the British Government having held that by a true construction of the Treaty such right belonged exclusively to British subjects; and as those waters were thus in dispute between the two nations, you re- spectively advised the citizens and subjects of both countries not to attempt to exercise any right that either claimed within the disputed waters until this disputed right could be adjusted by amicable nego- tiation." I desire to emphasize one clause 'in that letter : — "but as for those waters in the several bays and harbours which are more than three marine miles from the shore of such bay or harbour upon either side, and within three marine miles of a straight line drawn from one headland to the other of such bay or harbour, that you as the Representative of the United States conceived that our fishermen have the right under the Treaty to fish therein." That was the instruction of the Executive of the United States to his Secretary of State; and the Secretary of State of the United States, when acting in an executive capacity, cannot overrule the President of "the United States, because he derives his sole authority from the fact that he represents the President. It further appears, — and this is what makes this letter important — that this very letter from President Fillmore to Daniel Webster was forwarded by the British Minister to the British Government. That fact appears, if the Tribunal please, from a note from Mr. Cramp- ton, the British Minister in Washington, to the Earl of 713 Malmesbury, then Her Majesty's Principal Secretary of State for Foreign Affairs, to be found in the British Appendix, at p. 157:— "With regard to the suggestion contained in the letter of the President to Mr. Webster, a copy of which I had the honour to in- close in my despatch No. 306 of the 26th ultimo, that Mr. Webster ARGUMENT OF CHARLES B. WARREN. 1183 and myself should unite in a joint publication for the purpose of allaying the present excitement in regard to this subject, Mr. Web- ster has, upon consideration, judged it expedient to abstain for the present from taking this step, as one likely to produce fresh discus- sion on the subject without leading to any definite result. I entirely agree with him in this opinion; the more so that the excitement in question has already very much diminished, and that a very general impression prevails that the question is now under discussion be- tween the two Governments, with a view to its settlement upon a satisfactory basis. My present visit to Mr. Webster has, I believe, tended to strengthen this impression." Now, if the Tribunal please, how can the position of Daniel Web- ster in 1852 have made the Government of Great Britain believe that the Government of the United States agreed in its interpreta- tion, when the British Minister in the United States forwarded to the Foreign Office of Great Britain a copy of a letter written by the President of the United States to the Secretary of State, expressing explicitly the position now occupied by the United States before this Tribunal? It is also disclosed by another note from Mr. Crampton to the Earl of Malmesbury, which appears in the British Case Appendix, at p. 168, that the British Government was fully advised that the President " did not seem to concur " — I am quoting the language of the letter — " Did not seem to concur in the construction of the convention of 1818 as regards the definition of bays, laid down in the opinion of the Advocate General and Attorney General of the 30th of August, 1841." There, if the Tribunal please, is the British Minister in the United States advising the Foreign Office of the Government of Great Britain that the President of the United States " did not seem to con- cur " in the opinion of the Law Officers of the Crown ; and when one examines the opinion of the Law Officers of the Crown, one is inclined to think that the President of the United States was quite right. I take up now, briefly, the nature of the orders issued by the Gov- ernment of Great Britain, when Lord Malmesbury became the Min- ister of Foreign Affairs in 1852, and I intend to quote, very briefly, from the evidence to show that even thon, in 1852, in spite of the scare that had been created by a threat of war-vessels coming over here, the Government of Great Britain had no intention of putting into force any new principle. I would refer first to a report of an interview between Mr. Law- rence and Lord Malmesbury, which appears in the Appendix to the United States Case, at p. 522. I will merely cite that letter. I cite, also, the note from Lord Malmesbury to Mr. Lawrence, at that time the Minister for the United States in Great, Britain. This 92909°— S. Doc. 870, 61-3, vol 10 19 1184 NORTH ATLANTIC COAST FISHERIES ARBITRATION. note bears date the 13th August, 1852, and will be found at p. 522 of the Appendix to the Case of the United States. This letter is very brief , and I would like to read it : — " The orders that are to go out to our admiral, and of which I have given Mr. Crampton" That is the Minister for Great Britain in the United States " notice, are — " Not to interfere with the Magdalen islands. " To consider the Bay of Fundy on the same footing as we placed it in 1845. "To capture American fishing vessels only under precisely (the) same circumstances as those which would have been acted upon of late years, and when manifestly infringing the treaty." The evidence is now furnished, on p. 172 of the British Case Ap- pendix, which conclusively establishes the nature of the orders which were issued, and I respectfully refer the Tribunal to p. 172 of the British Case Appendix, where it is stated, in a note from the Earl of Malmesbury to the Minister of Great Britain in the United States that: — " Her Majesty's Government will at once adopt the precaution of repeating the instructions, on which during a long series of years British Admirals commanding on the North American station have invariably acted." 714 I respectfully refer the Tribunal to p. 1079 of the Appen- dix to the Case of the United States, where appears a letter from Lieutenant-Governor Le Marchant to Vice- Admiral Seymour, dated the 26th August, 1852, reading as follows : — " Referring to your Excellency's letter of the 23rd instant, which, with its enclosures, I have had the honor to receive, I beg to remind you that copies of the Instructions under which the Captains of the Provincial Cruisers are acting, are in your Excellency's possession. On reference to these you can satisfy yourself that they contain no authority whatever to act upon our construction of the Convention, except where Vessels are actually found fishing within three marine miles of the shore. " Your excellency may be assured that the Provincial Government have every desire to avoid controversy on the point now under dis- cussion by the Governments of Great Britain and the United States. " Copies of the statements made by the Masters of the American Fishing Vessels have been sent to the Captains of the Halifax and Responsible, and I will communicate with you again when I have their explanations on each representation respectively that the Amer- ican Masters have made." I cite a letter of the Provincial Secretary of Nova Scotia, dated the 26th August, 1852, advising Captain Laybold that in the meantime the captain would take care to detain no vessel which is not found ARGUMENT OF CHARLES B. WARREN. 1185 trespassing within 3 miles of land. This letter is found on p. 1080 of the Appendix to the Case of the United States. " I am commanded by the Lieutenant Governor, to call your atten- tion to the enclosed copy of a Despatch from Vice Admiral Sir George F. Seymour, with statements of certain Masters of American Fishing Vessels enclosed. You will, without delay, furnish me with such explanation as will enable the Lieutenant Governor to judge how far the conversations which are made matter of complaint, have been accurately reported. And, in the meantime, you will take care to detain no vessel which is not found trespassing within three miles of land" I also respectfully refer the Tribunal to the letter of Captain Dodd to the Provincial Secretary Howe, replying to that letter, to be found on p. 1082 of the Appendix to the Case of the United States. That is from the captain of one of the provincial cruisers to the Provincial Secretary of Nova Scotia. There is one other matter of importance that should be considered during this period, and that is the reference that was made by the distinguished counsel for Great Britain to the mission of Commo- dore Perry, of the United States Navy, to the North Atlantic in 1852, and his interviews, or reported interviews, with Vice-Admiral Seymour, which reports are confined largely to statements of subordi- nates as to what Commodore Perry said. I am not going to dwell upon the Commodore Perry correspondence, but I desire to call to the attention of the Tribunal the instructions under date the 14th July, 1853, from the Secretary of the Navy, in 1853, to Commodore Shubrick, who succeeded Commodore Perry on the North Atlantic station in 1853. (United States Counter-Case Appendix, p. 169.) "SiR: Reposing confidence in your judgment, prudence, and patriotism, the Navy Department sends you on a mission involving the discharge of delicate and responsible duties, bearing at once on the protection of rights and the preservation of peace. Information has reached the government of the United States that her Britannic Majesty's government has stationed off New Brunswick, Nova Scotia, in the Gulf of St. Lawrence, and at other points along the coast of British American possessions, a considerable force of war steamers and sailing-vessels, under the command of Sir George Sey- mour, fully armed and manned; that this array of naval strength is alleged to be designed for service in protecting the rights of British subjects, and* preventing the apprehended encroachments of American citizens upon the "fishing grounds," reserved to Great Britain by the convention of 1818, as interpreted by her Majesty's government; that a large class of enterprising and worthy citizens in the New England States have become apprehensive that there is a settled purpose to disturb them in the enjoyment of their fishing privileges ; and in the absence of any naval force of the United States in that region, armed fishing vessels have gone out with crews pre- pared to take the defence of their rights in their own hands. 1186 NORTH ATLANTIC COAST FISHERIES ARBITRATION. ** " In view of these circumstances, with a desire to quiet the public mind and furnish every assurance that the rights reserved to our citizens under the treaty of 1818 shall be promptly and sacredly protected, and the further desire to prevent collision and promote fidelity to treaty stipulations, the Executive of the United States has concluded to send a naval force to cruise in the seas and bays frequented by our fishermen. " It is proper, however, in entering upon the task committed to your charge, that you should be put in possession of the past history of the controversies and treaties between the United States and Great Britain in regard to the fishery questions, as well as the views entertained by the present Administration. The following is the article in the treaty of 1783 : " 'ART. 3. It is agreed that the people of the United States shall continue to enjoy, unmolested, the right to take fish of every 715 kind on the Grand Bank, and on all the other banks of New- foundland, also in the Gulf of St. Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish ; and, also, that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use, (but not to dry or cure the same in that island;) and, also, on the coasts, bays, and creeks of all other of his Britannic Majesty's dominions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled ; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement without a previous agreement for that purpose, with the inhabitants, proprietors or possessors of the ground.' " After the war of 1812 a controversy arose as to whether the stipu- lations of that treaty were abrogated by that war. This contro- versy, however, resulted in the convention of 1818, of which the fol- lowing is the article bearing on the points involved : " ' ARTICLE 1. Whereas differences have arisen respecting the lib- erty claimed by the United States for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of his Britannic Majesty's dominions in America, it is agreed between the high contracting parties, that the inhabitants of the said United States shall have, forever, in common with the subjects of his Britan- nic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau islands, on the western and northern coast of New- foundland, from the said Cape Ray to the Quirpon islands, on the shores of the Magdalen islands, and also on the coasts, bays, har- bors, and creeks, from Mount Joly, on the southern coast of Labra- dor, to and through the Straits of Belleisle, and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson Bay Company; and that the American fishermen shall also have liberty forever to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the same, or any portion thereof, ARGUMENT OP CHARLES B. WARREN. 1187 shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creek, or harbors of his Britannic Majesty's dominions in America, not included within the above-mentioned limits: Pro- vided, however, That the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and repairing damages therein, of purchasing wood and of obtaining water, and for no other purpose whatever. But they shall be under such restric- tions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.' " This article was designed to settle all doubtful questions touching the rights of the parties; but, unfortunately, a very wide and em- barrassing difference of opinion has long existed, and does still exist, between the two governments, as to the proper construction of that article of the convention of 1818. The point of difference is, as to the true interpretation of that portion of the above-recited article in which the United States renounce the right to take, dry, or cure fish within ' three marine miles of any of the coasts, bays, creeks, or har- bors of His Britannic Majesty's dominions in America.' On the American side it has been contended that American fishermen have a right to enter and fish in any of the bays which indent these shores, provided they never approach, for the purpose of taking fish, within three marine miles of the coasts by which such bays are en- compassed. On the part of Great Britain, it has been contended that these three marine miles are to be measured from headland to head- land, and not from the bays or indents of the coast. " This restrictive construction on the part of Great Britain, you will perceive from a glance at the map, if strictly enforced, would exclude our fishing vessels from George's bay, the Bay of Miramichi, the straits of Northumberland, and the large Bay of Chaleur, where the best mackerel are annually caught. Now, these are large open bays, much more than six marine miles wide, and our fishing vessels can, with ease, enter and fish without ever approaching within three marine miles of the coast. The treaty does forbid their taking fish within three marine miles of the shore ; and that restriction, un- favorable and inconvenient as it is to our fishermen, must be faith- fully submitted to as long as this treaty exists. But the President entertains the opinion that our citizens, under the convention of 1818, have a right to enter the bays and harbors, and to take fish there, provided they do not approach within three marine miles of the shore; and he further entertains the opinion, that the clause which authorizes expressly the entering into bays and harbors ' for the pur- pose of shelter, &c.,' precludes the idea that it therein alluded to large open bays, such as the Bay of Chaleur, which afford but little better ' shelter*' than the open sea, and confirms him in his opinion that the restriction was designed to be applicable to narrow small bays and harbors, in which an entrance could not be effected without approach- ing ' within three marine miles of the shore,' but within which it was 1188 NORTH ATLANTIC COAST FISHERIES ARBITRATION. natural and proper that our fishermen should have the liberty to enter ' for the purpose of shelter, &c.' "As to the Bay of Fundy, the government of her Britannic Maj- esty have relaxed their previous interpretation of the treaty. The following extract from the letter of Lord Aberdeen, in 1845, to the American Minister, Mr. Everett, will explain the views of her Maj- esty's government so far as relates to this bay : 716 " ' The undersigned will confine himself to stating that, after the most deliberate reconsideration of the subject, and with every desire to do full justice to the United States, and to view the claims put forward in behalf of the United States citizens in the most favorable light, her Majesty's government are nevertheless still constrained to deny the right of the United States citizens, under the treaty of 1818, to fish in that part of the Bay of Fundy which, from its geographical position, may properly be considered as in- cluded within the British possessions. " ' Her Majesty's government must still maintain — and in this view they are fortified by high legal authority — that the Bay of Fundy is rightfully claimed by Great Britain as a bay within the meaning of the treaty of 1818 ; and they equally maintain the position which was laid down in the note of the undersigned, dated the 15th of April last, that with regard to the other bays on the British American coast, no United States fishermen has, under that convention, the right to fish within three miles of the entrance of such bays as are designated by a line drawn from headland to headland at that en- trance. " ' But, while her Majesty's government still feel themselves bound to maintain these positions as a matter of right, they are neverthe- less not insensible to the advantages which would accrue to both countries from a relaxation of the exercise of that right to the United States as conferring a material benefit on their fishing trade, and to Great Britain and the United States conjointly and equally by the removal of a fertile source of disagreement between them. " ' Her Majesty's government are also anxious, at the same time that they uphold the just claims of the British crown, to evince, by every reasonable concession, their desire to act liberally and amicably towards the United States. " ' The undersigned has accordingly much pleasure in announcing to Mr. Everett the determination to which her Majesty's government have come, to relax in favor of the United States fishermen that right which Great Britain has hitherto exercised, of excluding those fisher- men from the British portion of the Bay of Fundy; and they are prepared to direct their colonial authorities to allow henceforward the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach, except in the cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick.' " You will perceive, therefore, the only point at issue between the two governments, and understand the views of the Executive on the same, as above briefly but plainly set forth. " The President does not allow himself to believe for a moment that her Majesty's government designs, by her large force in that quarter, to do more than protect her subjects in the enjoyment of those rights conceded by our government, and especially enjoins it ARGUMENT OF CHARLES B. WARREN. 1189 upon you to warn our citizens, with scrupulous fidelity to abstain from taking fish within three marine miles of the coasts of the British possessions provided for in the article of the convention of 1818. " The point in dispute as to the right to enter the open bays, pro- vided they do not approach within three marine miles of the shore, is understood in Great Britain as well as within the United States, and the President does not apprehend that force will be rashly resorted to against our citizens fishing in the bays and harbors, provided they avoid approaching within three marine miles of the shore, more par- ticularly as it is known to her Majesty's government that it is at this moment a subject of negotiation. " Chi reaching Halifax, however, you will have an interview with Admiral Seymour, who, we learn, has command of her Majesty's squadron in that region. You will frankly inform him of the Presi- dent's interpretation of the treaty — of the desire of your government to preserve peace and avoid the calamity of a war and the disruption of the friendly relations now so happily subsisting between the two governments — of your instructions, and determination to warn our citizens of the importance of observing the rights of Great Britain with strict fidelity, and avoiding any infraction of existing treaties. " In your interview you will endeavour to ascertain the views of Admiral Seymour, the instructions of his government, and especially the course he designs pursuing towards any of our fishing vessels that may be found fishing in the bays, but not within three miles of the shore. You will communicate to the department promptly the result of your interview, and whatever views may suggest themselves to you in regard to the whole subject, and await further despatches from the department at Halifax, or any other point, if preferable and more convenient. " Portland and Eastport are points at which the department would suggest to you to touch, and learn from the collectors such facts as their observations and experience may enable them to furnish. Their suggestions and information may serve to some extent to guide you in your cruise. " The department desires you, if practicable, to visit the whole of the fishing ground, from the northern boundary of the United States as far north as in your sound discretion you may deem it important. " It is sincerely hoped that your presence will have the effect of quieting the excitement said to exist among our fishermen, and that your warning will admonish them never to venture where treaty stip- ulation does not clearly authorize them. You will see, also, that for- eign vessels are not engaged in fishing on our coasts without authority. " If on any occasion you discover attempts making to deprive any of our citizens of their just rights, you will respectfully but firmly remonstrate ; and if persisted in, you will take such steps as in your judgment will be best calculated to check and prevent such interfer- ence; never resorting to violence as a matter of self-defence and necessity. "All courtesy and respect will be shown to the armed vessels of England and France. " You will communicate as often as possible with the depart- 717 ment. The steamers Princeton and Fulton, and the sloop-of- war Decatur, will be under your command. The Cyane and other vessels may be added if deemed important. 1190 NORTH ATLANTIC COAST FISHEBIES ARBITRATION. " Your mission, Commodore, is one of peace ; but while you do noth- ing to provoke war," you will do nothing to jeopard our rights or compromit our honor. " You will continue actively engaged in the duties confided to you until the middle of September next, unless the situation of public in- terests should, in your judgment, render an earlier return necessary, in which event you will immediately thereafter repair to the city of Washington and report to the department." " Wishing you a safe and prosperous cruise, I am, very respect- fully, your obedient servant." I submit also the report from Commodore Shubrick to the Secre- tary of the Navy, dated the 7th August, 1853, to be found at p. 176 of the Appendix to the Counter-Case of the United States, in which will be found this statement — " that the President could not take the same view of the provisions of the treaty as that taken by her Majesty's government; to express his regret that a different view should have been taken by the Queen's government, and of his hope that force might not be resorted to against our fishermen in the bays and harbors, provided they avoided approaching within three marine miles of the shore, and particularly as it is known to her Majesty's government that the subject of the fisheries is at this moment a matter of negotiation between the United States and Great Britain." The American view is stated in that paragraph. I also submit in this connection a report from Lieutenant Watson to Commander Shubrick under date of the 2nd September, 1853, to be found at p. 182 of the Appendix to the Counter-Case of the United States. It is as follows : — " In accordance with your instructions of the 29th ultimo, I have the honor to report that I received on board at Charlottetown, Prince Edward Island, Major General Gore, commander-in-chief of her Britannic Majesty's forces in Nova Scotia, and staff, hoisted the English flag at the fore, and proceeded to Pictou, where I landed them. General Gore expressed himself much gratified at your having placed the Fulton at his disposal. "After parting from you off the island of Pictou, I proceeded, ac- cording to your direction, along the north side of the island, in Mira- michi bay, Chaleur bay, and to Gaspe, where I was in hopes of meeting you. It was my intention to have gone further up the Bay of Chaleur; but a heavy sea induced me to run for Gaspe. While there, her Britannic Majesty's steam sloop-of-war Argus, Captain Pervis, came in. Captain Pervis immediately came on board, and an interchange of civilities took place on the most friendly and courteous terms. Captain Pervis states that he has not had the least difficulty with our fishermen, with one exception, and that so slight as not to be taken notice of. " On my way to this place, I passed between five and six hundred fishermen ; and, in my conversations with those I spoke to, there ap- pears to be the greatest harmony existing between them and the inhabitants. ARGUMENT OF CHARLES B. WARREN. 1191 " On coming to anchor here, I waited on the collector and authori- ties of the port; and their statements tend to confirm my previous reports, that, so far from any dissatisfaction being felt at our fisher- men, they are welcomed on the coast, and nothing has yet transpired to alter my previously expressed opinion." If the Tribunal please, does that look as though in 1853 the United States fishing vessels were not fishing in those bays into which it was sending its vessels for the purpose of protecting its citizens in their fishing operations? The reciprocity treaty of 1854 became effective on the llth day of September, 1854, and, according to its terms, extended for a period of ten years, and for another period of twelve months, after either of the high contracting parties should give notice to the other of its wish to terminate the treaty. The treaty was terminated by resolution of Congress, the 18th January, 1865. The termination of this treaty of course revived the provisions of article 1 of the treaty of 1818, and it is important to notice the nature of the orders which were issued by the provincial authorities and by the Government of Great Britain after the expira- tion of the reciprocity treaty in 1866, because the provisions of the treaty of 1818 came back into operation. Of course it will be recalled that under the treaty of 1854 the United States enjoyed rights in common with the subjects of Great Britain on these shores. I shall not refer to the documents now in speaking of these orders, but will content myself with saying that on the 12th April, 1866, Secretary Cardwell, of the Colonial Office of the Government of Great Britain, in a note addressed to the provincial authorities, in- structed the provincial authorities to put into operation orders against the fishing-vessels of the United States which confined 718 territorial bays — and he stated in that letter that it had been a question of serious doubt as to what a British bay was — to put into effect orders that were in accordance with the convention between France and Great Britain of 1839, which convention the Tribunal will recall fixed a rule of territorial jurisdiction over bays — confining jurisdiction to those bodies of water not exceeding from shore to shore 10 marine miles in distance. A system of licenses was put into operation between the years fol- lowing the termination of the treaty of 1854, and until January 1870, when it became necessary for the Government of Great Britain actually to put into effect orders against the fishing-vessels of the United States ; because prior to 1870 the fishing- vessels of the United States had the right, under a system of licensing, to fish in all these waters, and they took out licenses and did so fish, so that these orders which confined the assertion of jurisdiction to bodies of water not more than 10 miles in width, were never put in force. Nevertheless, they were issued without any reservation whatever, and without any 1192 NORTH ATLANTIC COAST FISHERIES ARBITRATION. notice to the United States that this was not the view of the Gov- ernment of Great Britain and of the provinces as to the extent of territorial waters. In 1870, as I have stated, the system of licensing was abolished, and it became necessary for the Foreign Office to pass upon this ques- tion, and if the evidence is examined, as found in the Appendix to the Case of the United States, p. 609, it will be discovered that Lord Granville instructed Sir John Young, then Governor-General of the new Dominion of Canada, that in no event should any orders be put in force other than to seize American vessels when fishing within 3 miles of land, or within bodies of water not greater in extent than 6 miles across. I am not unmindful of the fact that these last orders were trans- mitted to the Government of the United States, and that a state- ment was made that these orders must not be regarded as an arrange- ment between the two Governments, but nevertheless, it stands as an undisputed fact, that when the Government of Great Britain, which had decided in 1866 that only bodies of water 10 marine miles in extent were territorial waters, within the meaning of the treaty of 1818, was actually called upon to enforce its orders against the fishing-vessels of the United States, those orders were, that they should only be seized when fishing within 3 miles of land, or within a body of water 6 miles or less in width. THE PRESIDENT: Owing to the unusually late hour would you rather wait and conclude to-morrow? MR. WARREN : If entirely agreeable to the Tribunal, I prefer to conclude to-day. THE PRESIDENT: Then please to continue, Sir. MR. WARREN (resuming) : The orders to which I have last re- ferred as being actually put into operation, are found on p. 613 of the Appendix to the Case of the United States, and read as fol- lows : — " In such capacity, your jurisdiction must be strictly confined within the limit of ' three marine miles of any of the coasts, bays, creeks or harbors ' of Canada, with respect to any action you may take against American fishing vessels and United States citizens engaged in fishing. Where any of the bays, creeks or harbours shall not exceed six geographical miles in width, you will consider that the line of demarcation extends from headland to headland, either at the entrance to such bay, creek or harbour, or from and between given points on both sides thereof, at any place nearest the mouth where the shores are less than six miles apart; and may exclude foreign fishermen and fishing vessels therefrom, or seize if found within three marine miles of the coast." Again I beg to say, I do not overlook, that when a copy of those orders was, at the request of Secretary Fish, transmitted to the State ARGUMENT OF CHARLES B. WARREN. 1193 Department of the United States, that they were accompanied by a statement, or at least that a later statement was made by the Minister for Great Britain in the United States, that they were not to be construed as an arrangement between the two powers. But, I re- peat again, that the orders as to the 10-mile bays were without reser- vation, without any notice to the United States, and that when the time came that the system of granting licences was abolished, the actual orders put into operation by the Government of Great Britain, and by the Dominion of Canada which complied with the instruc- tions of the Government of Great Britain, confined the exclusion to bodies of water 6 miles or less in extent. I come now to the Treaty of Washington of 1871. It will be 719 recalled that this treaty took effect the 1st July, 1873, and was made applicable to Newfoundland the 29th May, 1874; that the treaty remained in force for a period of twelve years after its date by virtue of its own terms, and that the Congress of the United States in the year 1883 took advantage of its rights under the terms of the treaty to abrogate the treaty, and gave the two years' notice required by its terms ; and that, in 1885, the treaty was abro- gated in accordance with this Act of Congress. A modus vivendi was concluded between the two Governments upon the abrogation of this treaty, because the treaty ceased to have effect in the midst of a fishing season ; therefore, the modus extended the right of American fishing- vessels to fish in all of the waters, that is, all the waters extending to the shore, because under the Treaty of Washington of 18Yl the citizens of the United States enjoyed in common with the subjects of Great Britain the right to fish in all the bays, creeks and harbours of this portion of the North Atlantic Ocean wherever British subjects fished. It will be recalled that the Government of the United States paid some 5,500,000 dollars for the privilege of enjoying that right. After this treaty was abrogated in 1885 Lord Lansdowne, Gov- ernor-General of Canada, notified Lord Granville, who was at the head of the Foreign Office of Great Britain at that time, in March 1886, as will appear in the Appendix to the Case of the United States, at p. 756, that instructions had been issued by the Depart- ment of Marine and Fisheries of Canada to the officers in command of the vessels employed for the protection of the inshore fisheries of the Dominion, and added: "These instructions are substantially the 'same as those which were issued under similar circumstances in 1870." So that it is found that after the Treaty of Washington was abrogated in 1885, the nature of the orders issued by the Dominion of Canada and by the Colony of Newfoundland, were similar in all respects to the orders which the Dominion of Canada had issued in 1194 NORTH ATLANTIC COAST FISHERIES ARBITRATION. compliance with the request of the Foreign Office of Great Britain in 1870. That is, the orders confined the exclusion of American vessels to waters not over 6 marine miles in width, and of course from the 3-marine-mile belt following the sinuosities of the shore. I desire, before closing the argument on the facts, to call attention to but one more circumstance outside of the treaty of 1888, and that is the correspondence regarding the circular known as Customs Cir- cular No. 371, which appears in its original form on p. 761 of the Appendix to the Case of the United States, and as amended on p. 791 of the Appendix to the Case of the United States. And I desire to call attention to the fact that in pursuance of let- ters written by the Secretary of State of the United States this circu- lar was modified in such a manner that it prevented seizures except within 3 miles of land, and, of course, within the bays lying landward of the 3-mile line. And the Earl of Rosebery, then Her Majesty's Principal Secretary of State for Foreign Affairs, advised the British Minister in the United States as follows, as appears on p. 823 of the Appendix to the Case of the United States: — "With regard to Mr. Bayard's observations in the same note re- specting a customs circular and a warning issued by the Canadian authorities, and dated respectively the 7th May and the 5th March last, I have to acquaint you that these documents have now been amended so as to bring them into exact accordance with treaty stipu- lations; and I inclose, for communication to the United States Gov- ernment, printed copies of these documents as amended." The final paragraph of circular No. 371, as originally issued, read, as appears on pp. 762 and 763 of the United States Case Appendix :— " Therefore be it known, that by virtue of the Treaty Provisions and Act of Parliament, above recited, all foreign vessels, or boats, are forbidden from fishing or taking fish by any means whatever within three marine miles of any of the coasts, bays, creeks and harbors in Canada, or to enter such bays, harbors and creeks, except for the pur- pose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever." This circular bore date the 5th March, 1886. In a note to the British Minister dated the 29th May, 1886, Mr. Bayard, then Secretary of State of the United States, wrote, as ap- pears on p. 774 of the Appendix to the Case of the United States : — " I have also been furnished with a copy of circular No. 371, pur- porting to be from the customs department at Ottawa, dated 720 May 7, 1886, and to be signed by J. Johnson, commissioner of customs, assuming to execute the provisions of the treaty be- tween the United States and Great Britain, concluded October 20, 1818, and printed copies of a warning, purporting to be issued by George E. Foster, minister of marine and fisheries, dated at Ottawa, ARGUMENT OF CHARLES B. WARREN. 1195 March 5, 1886, of a similar tenor, although capable of unequal results in its execution. ******* " In the interest of the maintenance of peaceful and friendly rela- tions, I give you my earliest information on this subject, adding that I have telegraphed Mr. Phelps, our minister at London, to make earnest protest to Her Majesty's Government against such arbitrary, unlawful, unwarranted and unfriendly action on the part of the Canadian Government and its officials, and have instructed Mr. Phelps to give notice that the Government of Great Britain will be held liable for all losses and injuries to citizens of the United States and their property caused by the unauthorised and unfriendly action of the Canadian officials to which I have referred." The Secretary of State of the United States addressed another note to the British Minister, under date the 14th June, 1886, which will be found on p. 787 of the Appendix to the Case of the United States :— " It becomes my duty, in bringing this information to your notice, to request that if any such orders tor interference with the unques- tionable rights of the American fishermen to pursue their business without molestation at any point not within three marine miles of the shores, and within the defined limits as to which renunciation of the liberty to fish was expressed in the treaty of 1818, may have been issued, the same may at once be revoked as violative of the rights of citizens of the United States under convention with Great Britain." The circular No. 371 was amended as appears on pp. 789 to 791 of the Appendix to the United States Case. The amendment consisted in striking out the last paragraph of the circular as originally issued under date the 5th March, 1886, and sub- stituting therefor the following paragraph, which appears on p. 791 of the Appendix to the Case of the United States :— " Having reference to the above, you are requested to furnish any foreign fishing vessels, boats or fishermen found within three marine miles of the shore, within your district, with a printed copy of the ' warning ' enclosed herewith. If any fishing vessel or boat of the United States is found fishing, or to have been fishing, or preparing to fish, or if hovering within the three mile limit, does not depart within twenty-four hours after receiving such ' warning,' you will please place an officer on board such vessel, and at once telegraph the facts to the Fisheries Department at Ottawa, and await instructions." Earl Granville, then Secretary of State for the Colonies for Great Britain, in a note to Lord Lansdowne, bearing date the 15th July, 1886, acknowledged the receipt of a despatch setting forth the amend- ment and stated in a note, found on p. 801 of the Appendix to the Case of the United States : — " Her Majesty's Government observe with satisfaction the amend- ments which have been made in the Customs Circular No. 371, and in the warning to be- given to the United States' fishing vessels frequent- ing the waters of Canada." 1196 NORTH ATLANTIC COAST FISHERIES ARBITRATION. It was after this that the Earl of Rosebery, then Secretary of State for Foreign Affairs of Great Britain, advised the British Minister in the United States under date the 23rd July, 1886, that : — " With regard to Mr. Bayard's observations in the same note re- specting a customs circular and a warning issued by the Canadian authorities, and dated respectively the 7th May and the 5th March last, I have to acquaint you that these documents have now been amended so as to bring them into exact accordance with treaty stipu- lations; and I inclose, for communication to the United States Gov- ernment, printed copies of these documents as amended." The printed document enclosed was the amended circular No. 371. These circulars, both in the original form and in the amended form, appear in the British Appendix, on pp. 296 and 298. I have now shown, if the Tribunal please, that the orders issued in 1886 were similar to the orders in 1871; and I have shown that this Customs Circular No. 371 was amended in such a manner as to pre- vent seizures unless within 3 miles of land or within those small bodies of water lying landward of the 3-mile line ; that that was done by the Government of Great Britain upon the request, — upon the insistence indeed, — of the Government of the United States; and that the Earl of Rosebery informed the Government of the United States that the amendments were in accordance with treaty stipula- tions. 721 I now refer to p. 103 of the Case of Great Britain submitted before this Tribunal, and read the following statement : — " Since 1888 the question has not been further discussed." So, if the Tribunal please, I have discussed these orders up to the year 1886 and have shown that the nature of the orders was the same as in 1870, and that these orders were only to exclude vessels within 3 miles of land or when found within bodies of water lying land- ward of the 3-mile line. I have further shown that Custom Circular No. 371 was so amended as to prevent seizures except in compliance with those orders; and that Lord Rosebery wrote a note for trans- mission to the Government of the United States in which he stated that he was glad to advise that this Customs Circular had now been amended in accordance with treaty stipulations. I now pass briefly to a consideration of the treaty of 1888, and do not intend to go into great detail regarding this treaty. Sir Robert Finlay, when opening for Great Britain in this sub- mission, read from the minority report of the Senate of the United States, when this treaty was brought before the Senate of the United States for approval. This treaty, known as the Chamberlain-Bayard Treaty, was rejected by the Senate of the United States; and I desire to read from the majority report of the Committee on Foreign Rela- ARGUMENT OF CHARLES B. WARREN. 1197 tions of the Senate in the United States. The extract appears at p. 444 of the British Case Appendix, and reads as follows : — " The question of the extent of territorial dominion, as it respects the exercise of fishing rights in bays more than 6 miles wide indent- ing the shores of the country, must of course be determined by the law and practice of nations as they existed in the year 1818, at which time, as the committee thinks, the 3-miles limit from shores was rec- ognized without regard to large indenting bays, except under very peculiar circumstances, such as the prescriptive exercise of dominion, etc. Whether, in view of recent inventions in the implements of war- fare, it may not be politic for maritime nations to agree upon an enlargement of the boundaries of their territorial dominion seaward is a question well worthy of consideration, but it has no place in respect of the matters now in hand." I respectfully prefer the Tribunal to another extract from the report of the committee, to be found on p. 449 of the Appendix to the British Case, as follows: — " This idea of concession was doubtless the ground and guide upon which the treaty of 1818 was founded. At the time of that treaty the United States claimed (and justly as the committee thinks) that the fishing rights recognized by the treaty of 1783 on all the shores of British North America were property rights and that they were not lost by the war of 1812, and that after the treaty of peace of 1814, which made no mention of the subject, those rights existed with all their original force. " The British Government insisted upon the contrary and that the right of citizens of the United States to fish in any British North American waters had been entirely lost. This led to a partition of the disputed territory — whether wise or unwise is immaterial to the present question — but in making this settlement the contracting parties had evidently in view the then understood law of nations, that territorial waters only extended to three miles from the shore; and they also had in view the then existing state of treaty and legal relations between Great Britain and the United States in respect of intercourse between the British North American provinces and this country, and the treaty provided in clear terms where, in British waters, United States fishermen might fish and where they might not." " The only possible question that could fairly arise under the treaty of 1818 was the question what was a British bay. But the question, as a practical one, has been in all the sixty-nine years since the mak- ing of that treaty of little or no account ; for, so far as is known, the only seizure of an American vessel by the British authorities for fish- ing more than 3 miles from the shore in & bay more than 6 miles wide was the seizure of the Washington, in 1843, and in that case, as has been before stated, the international umpire decided the seizure to have been an illegal and unjust one." And, finally, in regard to this treaty, I desire respectfully to refer the Tribunal to the report of the Committee on Foreign Relations of the United States Senate of the previous year, 1887, before the dis- 1198 NORTH ATLANTIC COAST FISHERIES ARBITRATION. cussion of this treaty became a political issue in the Senate of the United States. This committee was practically the same committee which divided on the question in 1888, when the treaty came up before that committee. I would like to read from the report of that committee, which, so far as the records here show, was the unani- mous report of the committee, and was not a report which involved political differences of opinion arising from the fact that the Presi- dent of the United States was then the head of the Democratic party in the United States, and a majority of the Senate of the 722 United States belonged to the Republican party. That report appears on p. 390 of the Appendix to the British Case, and was the deliberate judgment of that committee on this question. I read from the report of the committee as follows : — "And by the same article "- That is, this article 1 of the treaty of 1818,— "And by the same article the United States renounced any lib- erty ' to take, dry or cure fish on or within 3 marine miles of any of the coasts, bays, creeks or harbours of His Britannic Majesty's Do- minions in America not included within the above-mentioned limits ; provided, however, that the American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter and of repair- ing damages therein, and of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any manner whatever abusing the privi- leges hereby reserved to them.' " The committee is of opinion, in view of this history and of the plain language above quoted, that this article was intended to deal, and did deal, only with the subject of the admission of American fishermen within the territorial jurisdiction of His Britannic Majesty, as defined by the public law of nations. " The first question for consideration, then, is whether the preten- sion that has been sometimes asserted by the Government of Great Britain, that American fishing vessels or others have no right, except at the pleasure of the British Government, to be in or to prosecute lawful pursuits in the great arms of the sea extending between parts of the mainland belonging to the British, and which are more than 6 marine miles broad, is well founded. "The committee cannot doubt that any such pretension is ill founded. It is plain that such a pretension is an invasion of the principles of public law now almost universally recognized by all civilised Powers, and one which, it is believed, the British Govern- ment would be indisposed to accede to when applied as against its subjects. It would seem to be clear that by the universally recog- nized public law among civilized nations, territorial jurisdiction of every nation along the sea is limited to 3 marine miles from its coasts, as they may happen to be, whether embracing long lines of open coast or embracing great curvatures of sea-shore, which may, and often do, almost surround vast bodies of the waters of the ocean. The phrase of the treaty, therefore, speaking of bays, creeks and harbours; ABGUMENT OF CHAEL.ES B. WAEREN. 1199 of His Britannic Majesty's dominions, must be understood as being such bays, creeks and harbours as by the public law of nations were and are within the territorial jurisdiction of the British Government. The committee is therefore clear in its opinion that any pretension that exclusive British jurisdiction exists, either by force of public law or of this treaty, within headlands embracing such great bodies of water, and more than 6 marine miles broad, must be quite untenable." If the Tribunal please I have now reviewed the facts material to this Question 5, and I respectfully submit that it appears quite mani- fest that for some twenty years after the treaty was entered into, the American fishing- vessels enjoyed uninterruptedly the rights which are now asserted by the Government of the United States, and that they were not interfered with by the Government of Great Britain ; that when the right was made an issue by the act of Nova Scotia, and by the opinion of the Law Officers of the Crown in 1842, the Brit- ish Government discussed the matter with the provincial authorities, but that the deliberate judgment of the Government of Great Britain was expressed in the note from Lord Stanley to Lord Falkland, which was transmitted in accordance with the decision of the Government of Great Britain ; and that from 1845, after the concession was made regarding the Bay of Fundy, and after this conclusion was reached by the Government of Great Britain, that no serious attempt was ever made, prior to the treaty of 1854, to enforce the Nova Scotia contention against the fishing- vessels of the United States ; that from 1854 until the year 1866, during the existence of the Reciprocity Treaty, these rights were enjoyed under the terms of that treaty; that after the expiration of that treaty the orders issued but not put into operation confined the extent of the territorial jurisdiction of Great Britain to bodies of water not more than 10 marine miles in width; but that in 1870, when the Government of Great Britain was forced actually to put orders into execution, they declined to put into execution even those orders, and put into force orders that limited the right to exclude American fishing-vessels from bodies of water that did not exceed 6 miles in width, and from waters within 3 miles of land ; that, under the Treaty of Washington in 1871, the rights were enjoyed by the inhabitants of the United States in common with the subjects of Great Britain, until that treaty was terminated in 1885 ; that thereafter the Government of Great Britain put into oper- ation, and the Dominion of Canada and the Colony of Newfoundland put into operation, orders similar in all respects to the orders put into force in 1871 under the decision of the Government of Great Britain ; that in 1886 the Circular No. 371 was amended at the direct re- 723 quest of the Government of the United States by the Govern- ment of the Dominion of Canada, at the instance of the Government of Great Britain; so as to make it accord with the treaty 92909°— S. Doc. 870, 61-3, vol 10 20 1200 NORTH ATLANTIC COAST FISHERIES ARBITRATION. stipulations as stated; and that, in accordance with the statement made in the British Case, on p. 103, which I have just a short time since read, since 1888 this Question has not been a subject of discus- sion between the two nations. And I submit that it is plain that this Question has not been, for something over twenty years, at issue at all between the Dominion of Canada and the Government of the United States, or between the Colony of Newfoundland and the Government of the United States, until 1905, when other matters, quite apart from the Question now immediately under consideration, induced the Colony of Newfoundland to take certain actions concerning which I am not called upon to express any opinion, as they are not material to the Question that I am presenting to the Tribunal. Mr. President, I have attempted to present the facts relating to this Question as faithfully as I could and in as good a spirit as I could, and I have tried to be fair in stating the facts as I find them in these records before this Tribunal. I now leave the facts to take up the law applicable to this Question, confidently believing that it is established that in 1818, when this treaty was negotiated, it was understood between these two nations that the fishing- vessels of the United States should only be excluded from waters 3 miles from land, and from bays, creeks, or harbours lying landward of that 3- mile line. The area of water involved in the bodies of water, which during the progress of the argument have come to be called trian- gular bodies has been shown to be of no practical importance what- ever. The negotiators really aimed to lay down the 3-mile from shore rule in the great outer bays. That was the important matter. The United States is confident, as I have said, that the facts abun- dantly establish the true interpretation of this renunciatory clause of the treaty. Chancellor Kent states in his work : — " The intention is to be collected from the occasion and necessity of the law, from the mischief felt, and the remedy in view, and the intention is to be taken or presumed according to what is consonant to reason and good discretion." I have brought to the attention of the Tribunal the practical diffi- culties which the treaty of 1818 was intended to overcome, as dis- closed by the correspondence between the two Powers immediately preceding the negotiation of the treaty, and by the negotiations be- tween the two countries just prior to the period in which the treaty was agreed upon, and I submit that all lead, when read in connection with the treaty itself, necessarily to the conclusion that a " Bay of His Britannic Majesty's Dominions in America " is such a body of water as is within the 3-mile line following the sinuosities of all the coasts, including the coasts of all the great bodies of water, whether ARGUMENT OF CHARLES B. WARREN. 1201 called bays or not, and that the 3-mile line is to be drawn outward from the renounced bodies of water as though the lines drawn from shore to shore, from the point at which the two lines following the sinuosities of the shore meet, were continuations of the shore line. I respectfully submit that it clearly appears from all the evidence before the Tribunal that the Government of Great Britain aban- doned at the time of the recognition of the Independence of the United States of America all broad claims of extensive jurisdiction in respect to the fisheries, as against the fishing- vessels of the United States, over the waters adjacent to the coasts of the possessions of Great Britain in North America;, and that it clearly appears from the very provisions of the treaty of 1783 that American fishing- ves- sels had the right to fish in all the waters, whether known as bays, creeks, or harbours, of whatever extent, in the North Atlantic, on the same terms and conditions as the subjects of Great Britain ; and that from 1783 until the war of 1812, the British Government never as- serted any exclusive jurisdiction over all bodies of water of whatever dimensions adjacent to its coasts, against the fishing- vessels of the United States, for such waters were subject to the joint use of the fishermen of both countries, and there could be no assertion of ex- clusive jurisdiction on the one hand, or acquiescence in such assertion of jurisdiction on the other hand; and that after the war between the United States and Great Britain in 1812, and prior to the treaty of 1818, there was never any assertion of jurisdiction by the Govern- ment of Great Britain over all bodies of water known by the name of bays or called bays on any map, but that the complaint and the only complaint was against the use of the shores and against the fishing-vessels of the United States resorting to the waters, by what- ever name designated, immediately adjacent to the shores of the British possessions, and lying within 3 marine miles from such shores. When bays were referred to, bays within the limit of 3 marine miles from shore were intended. 724 Counsel for the United States understands the rule of law to have been in 1818: That no nation had jurisdiction over any bay, gulf, or other arm of the sea extending into its territory exceeding twice the range of cannon-shot, which, between the United States and Great Britain, was identified with 3 marine miles, except by force of an affirmative international assertion by that nation of jurisdiction over any particular body of water based upon the ex- istence and averment of facts constituting good reasons for allow- ing the claim in that particular case; such, for example, as the re- lation between the extent of the penetration of the water inland and its width, the degree of usefulness for municipal purposes, the necessity of exclusive use as a means of defence to the vital interests 1202 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of the country. And the grounds thus alleged must have commended themselves to the nations of the world, so as to lead to acquiescence in the claim. The British Case and counsel for Great Britain have referred to the capture of the British ship " Grange " by the French frigate " L'Embuscade," in Delaware Bay, in 1793, and to the action of the President of the United States, through the Secretary of State, in 1793, in restoring the vessel to its British owners by reason of its having been captured in Delaware Bay. The United States considers the assertion of jurisdiction over these waters as an excellent illustration of the method by which jurisdiction may be acquired by a State over waters indenting its coast. The assertion of such jurisdiction, and acquiescence in such assertion by Great Britain, at whose request the assertion was made, and the acquiescence by France, which restored the vessel to its British owners in consequence of the assertion by the President of the United States of jurisdiction over the waters in question, fur- nishes, as I stated, a good illustration of the method by which ex- tended jurisdiction may be acquired by a country beyond its admit- tedly territorial waters. The grounds upon which the assertion of jurisdiction in the case of the " Grange " was made, included the geographical situation of the river and the bay. An examination of the region and of the chart now submitted to the Tribunal shows that this body of water is 9.9 miles in width, from Cape May to Cape Henlopen, and that the waters of the so-called bay and the river extend about 85 miles to Philadelphia. It is of course a matter of common knowledge that, beyond, these waters proceeded far into the heart of one of the most populous districts of the United States in 1793, as well as to- day. These waters are the entrance for navigation of vessels to the city of Philadelphia, in 1793 the capital of the United States, and then, and at all times since, one of its principal ports. These waters opened into one of the most populous portions of the United States, and were then, and are now, intimately connected with the most vital interests of the United States, forming an entrance into the heart of the country. This is peculiarly true of the river, and hardly less true of the portion commonly termed the bay, which is in reality, as already stated, but a prolongation of the river. The fact of assertion of jurisdiction and acquiescence therein must be proved like any other fact, for universal use is presumed in the sea beyond the ordinary limits of maritime jurisdiction. I refer the Tribunal, without delaying to read them, to two authori- ties— Lord Stowell and Sir Robert Phillimore : " Twee Gebroeders," ARGUMENT OF CHARLES B. WARREN. 1203 Northolt, master, 3 Robinson's Eeports, pp. 336, 339, has already been read by me ; and Phillimore, vol. I, pp. 274, 284. The assertion of jurisdiction over the waters of Delaware Bay, coupled with the acquiescence of Great Britain, established the claim of the United States to these waters, at least so far as Great Britain and France were concerned. It appears that the assertion of jurisdiction in 1793 over these waters was demanded by the peculiar circumstances then existing. France and Great Britain were then at war, and the United States was being used as a base of hostilities by each belligerent. The French were fitting out vessels in American ports, including the port of Philadelphia, to which these very waters lead ; were enlist- ing men for the vessels so armed and equipped in American ports; were commissioning the vessels for war with papers brought from the Executive Council of France; were investing French Consular Officers in the United States with the jurisdiction and functions of prize judges ; and prizes captured within American waters by vessels fitted out in American ports were actually brought into American ports and adjudicated upon by such Consular Officers, sitting as prize judges. The continuance of this state of affairs, intolerable in itself, was certain, if continued, to lead to friction, if not to war, with Great Britain, and France. The conduct of Great Britain was less flagrant, but the his- 725 tory of the period shows that it likewise was making an im- proper use of American ports and of the waters in question, and was fitting out vessels for war at Philadelphia. President Washington desired to keep each belligerent at arm's length, and to prevent the United States from being involved in the conflict, as might have been the case, if the belligerents, disregarding neutral rights, should conduct their hostilities from Philadelphia and in the waters of this river and bay. The President issued a proclamation of neutrality, and by forbid- ding hostilities within these waters by Executive Act, and not by a judicial process following a decision of the question by any court of the United States, gave notice to the belligerents that they could no longer carry on their naval operations there so as to jeopardize do- mestic interests, and the peace and tranquillity of the United States, by making these waters the base of hostilities. At the request of Great Britain, the President of the United States asked France to restore this British ship, the " Grange," captured by the French frigate " L'Embuscade," within Delaware Bay, after the "Grange" had departed from the port of Philadelphia equipped for war. 1204 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The assertion was not only acquiesced in by Great Britain but was made at the request of that Government, and the surrender of the captured vessel by France in response to the request of the Ex- ecutive of the United States was the most positive acquiescence in assertion of jurisdiction which one nation could make to another. The action of the United States in asserting the right to jurisdic- tion over these waters was made in accordance with the principle of international law which allows jurisdiction to be acquired by asser- tion and acquiescence, and was supported by evidence especially per- suasive of the reasonableness of the claim and the necessity of exer- cising such jurisdiction in order to enable the United States to main- tain neutrality. As stated in the Printed Argument of the United States, "This declaration has remained uncontested by any nation, and has never been made the basis of broad claims of jurisdiction over other bays adjacent to the shores of the United States." No conclusions applicable to any other bodies of water indenting the coasts of the United States or any other country can be properly drawn from this act. The Printed Argument of the United States, at p. 224, states re- garding the case of the " Alleganean," decided in 1885 : — " In 1862 during the Civil War in the United States, an organized force of the States in rebellion, proceeded overland, embarked on the waters of the Chesapeake Bay, a body of water leading by a navi- gable river to Washington, the national capital, and into a populous interior district, as in the case of the Delaware Bay and River, and captured and destroyed the Alleganean, a vessel duly registered in and sailing from a loyal port of the United States. When later, commissioners appointed to apportion the award of the Geneva Tribunal, considered the claim of the owners of the Alleganean, they decided that the waters of Chesapeake Bay could not be used for the operations of war to the injury of the United States. The waters of this bay are open to the vessels of all nations for all peaceful purposes." Taking up for a moment the Conception Bay Case, reported in L. R., 2 App. Cas., p. 394, so much relied upon by counsel for Great Britain : — Conception Bay is one of the bays on the non-treaty coast of New- foundland. This case was decided on the ground that the Judicial Committee of the Privy Council of Great Britain was bound by the Act 59 Geo. Ill, cap. 38, the Act of 1819, purporting to carry out the terms of the treaty of 1818, and on the further ground that the Act was an assertion of dominion " and had not been questioned by any nation from 1819 down to 1872," and the Privy Council stated that this " would be very strong in the tribunals of any nation to show that this bay is by prescription part of the exclusive territory of Great Britain." ARGUMENT OP CHARLES B. WARREN. 1205 Professor Holland, of the University of Oxford, in his " Letters on War and Neutrality," p. 133, commenting on this decision, states: — " The subordinate question, also touched upon by the Admiral, of the character to be attributed to bays, the entrance to which exceeds six miles in breadth, presents more difficulty than that relating to strictly coastal waters. I will only say that the Privy Council, in The Direct U. S. Cable Co. v. Anglo-American Telegraph Co. (L. E. 2 App. Ca. 394), — (the Conception Bay case), — carefully avoided giving an opinion as to the international law applicable to such bays, but decided the case before them, which had arisen with reference to the Bay of Conception in Newfoundland, on the narrow ground that, as a British Court, they were bound by certain assertions of jurisdiction made in British Acts of Parliament." 726 Sir Robert Finlay, in the course of his oral argument before the Alaska Boundary Tribunal, said, with reference to this Conception Bay Case, reading from the proceedings at London, vol. V., Congressional reprint, 1904, p. 237 : — "It was not necessary in the case (Conception Bay Case) to de- cide the point on the question of international law because the point of controversy between the two companies was whether the waters of the bay could be considered as British territory as between them, and there was a statute which seemed to make an end of the point." Lord Blackburn, in delivering the judgment of the Judicial Com- mittee of the Privy Council, stated, at p. 419 : — " It also shews that usage and the manner in which that portion of the sea had been treated as being part of the county was material, and this was clearly Lord Hale's opinion, as he says not that a bay is part of the county, but only that it may be " It seems generally agreed that where the configuration and dimensions of the bay are such as to shew that the nation occupying the adjoining coasts also occupies the bay it is part of the territory; and with this idea most of the writers on the subject refer to defen- sibility from the shore as the test of occupation; some suggesting therefore a width of one cannon-shot from shore to shore, or three miles; some a cannon-shot from each shore, or six miles; some an arbitrary distance of ten miles " If it were necessary in this case to lay down a rule the difficulty of the task would not deter their Lordships from attempting to fulfil it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to shew that the bay has been for a long time occupied exclusively by Great Britain, a circum- stance which in the tribunals of any country would be very impor- tant. And moreover (which in a British tribunal is conclusive) the British Legislature has by Acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland. "To establish this proposition it is not necessary to go further back than to the 59 Geo. 3, c. 38, passed in 1819, now nearly sixty years ago 1206 NORTH ATLANTIC COAST FISHERIES ARBITRATION. "And as this assertion of dominion has not been questioned by any nation from 1819 down to 1872, when a fresh convention was made, this would be very strong in the tribunals of any nation to shew that this bay is by prescription part of the exclusive territory of Great Britain. As already observed, in a British tribunal it is decisive." This case therefore appears to be an authority on the method of acquiring jurisdiction over large bodies of water indenting the coast of a country. But inasmuch as the Act 59 Geo. Ill, passed in 1819, was passed after the treaty of 1818 was signed, and merely used the words of the treaty, and since the evidence before this Tribunal establishes that the United States has, since the question arose, not acquiesced in the exclusive dominion of Newfoundland or Great Britain over the large bays on the non-treaty coasts, but has, on the contrary, asserted the right of American fishing-vessels to freely resort to all such bays more than 6 miles in width at their entrances so long as they did not fish within 3 marine miles of the shores thereof, it is apparent that the assumption by the Judicial Committee of the Privy Council that the United States had " from 1819 down to 1872 " not questioned the assertion of exclusive dominion over this bay is without foundation in fact. An examination of the record in this Conception Bay case, which I have here, also shows that there was no evidence presented of any acquiescence by the United States in the assertion by Newfoundland or Great Britain of exclusive dominion over the waters of this bay. I will file with the Tribunal a copy of this record before the Judicial Committee of the Privy Council. Before 1818, as between the United States and Great Britain, the range of cannon shot had been identified with 3 marine miles. I will content myself with citing on this proposition the following authorities and referring to the following evidence: — Lord Stowell, " Twee Gebroeders," 3 Bob., pp. 162-3 and pp. 336-9 ; the "Anna," 5 Rob., p. 373 ; Justice Story, " The Brig Ann," 1 Gallison's Reports, p. 61 ; Unratified Treaty of 1806, United States Counter-Case Appendix, p. 22; Note from Mr. Jefferson to M. Genet, Minister for France in United States, British Case Appendix, p. 56; Note from Mr. Jefferson to Mr. Hammond, British Minister in the United States, British Case Appendix, p. 57; Extract from note of Mr. Adams to Mr. Monroe, stating conversation with Lord Bathurst, British Case Appendix, p. 65; Note from Mr. Adams to Lord Bathurst, British Case Appendix, p. 67 ; Note from Lord 727 Holland and Lord Auckland to Lord Howick, British Case Appendix, p. 61; Note from Messrs. Monroe and Pinkney to Mr. Madison, Secretary of State, United States Counter-Case Ap- pendix, p. 96; Treaty between United States and Great Britain of the 29th February, 1892, United States Compilation of Treaties in Force, 1904, p. 355; Award of Tribunal of Arbitration under treaty ARGUMENT OF CHARLES B. WARREN. 1207 of the 29th February, 1892 (the Behring Sea Treaty), United States Compilation of Treaties in Force, 1904, p. 357, also to be found in the Proceedings of the Fur Seal Arbitration. An examination of these authorities and of the treaties and evi- dence referred to will show that there had been an identification of the range of cannon shot with the 3-marine-mile rule by the United States and Great Britain, and that when maritime jurisdiction was discussed between the two Powers, it was understood that the juris- diction extended 3 marine miles from the shore except in the case of bodies of water prescribed for in accordance with the rule of law to which I have already referred. However, on the proposition that the cannon-shot rule had been identified by the nations of the world with the 3-marine-mile rule, I wish to call to the attention of the Tribunal some authorities. Galiani, " Dei Doveri de Principi Neutrali verso i Principi Guerre- gianti," p. 422, published in 1782; British extract, p. 2: — " It seems to me reasonable however that .... the distance of three miles from shore should be fixed and given once and for all as that which is surely the greatest that a ball or bomb can be driven with the force of the powder so far discovered." Ortolan, " Diplomatie de la Mer," first published in 1844, citing from edition of 1853, vol I, p. 171 ; United States extract, p. 5 : — " The greatest range of cannon, according to the ordinary progress of the art at each epoch, is therefore the best universal measure to adopt." Sir Robert Phillimore, " International Law," first published in ^1854, citing from edition of 1879, vol. I, pp. 274 and 276; United States extract, pp. 1 and 3 : — " But the rule of law may be now considered as fairly established — namely, that this absolute property and jurisdiction does not extend, unless by the specific provisions of a Treaty or an unquestioned usage, beyond a marine league (being three miles), or the distance of a cannon shot, from the shore at low tide : " " The limit of territorial waters has been fixed at a marine league, because that was supposed to be the utmost distance to which a cannon-shot from the shore could reach." Heffter, " Le Droit International de 1'Europe," first published in 1844, citing from edition of 1883, sec. 75 ; United States extract, pp. 1 and 2 :— " Common usage has established the range of cannon as the distance within which it is not lawful to trespass except in exceptional cases. .... The line of the range of cannon shot although considered the common rule does not present an invariable standard and may be fixed in miles by the laws of each state, at least provisionally. For- merly it was made two leagues. Now it is considered ordinarily as three marine miles." 1208 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Azuni, " The Maritime Law of Europe," first published in 1796, citing from the American edition of 1806, sec. 15, p. 205; British extract, pp. 2 and 3: — " It would be reasonable, then, in my opinion, .... to determine, definitely, that the jurisdiction of the territorial sea shall extend no farther than three miles from the land, which is, without dispute, the greatest distance to which the force of gunpowder can carry a ball or bomb." Sir Travers Twiss, " Law of Nations," first published in 1861, citing from edition of 1884, p. 292 ; United States extract, p. 1 : — " That distance, as between Nation and Nation, .... is by practice since the introduction of firearms identified with that distance, over which a nation can command obedience to its Empire by the fire of its cannon (14). That distance, by consent, is now taken to be a Maritime League seawards along all the coasts of a Nation." Pradier-Fodere, " Traite de Droit International Public," published in 1885, sec. 632 ; United States extract, p. 8 : — " Thus, whilst the line of cannon shot heretofore was minimal it is to-day considered ordinarily as three miles." 728 Fiore, "Le Droit International Codifie," first published in 1890, sec. 205 ; United States extract, p. 1 :— " The territorial sea embraces the waters washing the coast of a state to a distance determined by the necessities of defence, .... By customary law the territorial sea extends to three miles from low water mark." Bivier, " Principles du Droit des Gens," published in 1896, vol. 1, p. 146 ; United States extract, p. 2 : — " .... a distance of a marine league, that is three marine miles. This distance, calculated from low water mark, corresponds to what, in former years, was the cannon range." Ferguson, "Manual of International Law," published in 1884, p. 399:— " This distance is presumed to be the range of the coast defences, but on the maxim that terrae dominium finitur ubi finitur armorum vis, it should be stated to extend to any point on the sea to which the cannon of actual coast defences on shore can carry a projectile. But as the carrying power of any given cannon is such a vague measure, the three mile radius is generally adopted. The miles here referred to are nautical miles (miles. Seemeilen) , sixty of which are equivalent to an equatorial degree, and measure nearly 1,852 meters." Stoerk, in Holtzendorf , "Handbuch des Volkerrechts," published in 1887, vol. II, p. 474 ; United States extract, p. 14 :— " The United States in 1793 declared the sea to a distance of 1 sea mile (3 English miles) as under their protection. But art. 25 of the ARGUMENT OF CHARLES B. WARREN. 1209 treaty with England 1794 only speaks of the range of a cannon, while again in the treaty of 1818 governing the fisheries the 3 mile limit is recognized as it is in the treaty between England and France 1839 (arts. 9 and 10). "Since then the modern practice of the states has given up the regulation of the limit of the territorial sea by the range of a cannon in most cases, probably because the modern state by means of sub- marine boats, sea mines, dirigible from the coast, torpedoes, etc. is able to extend its military action far beyond the range of a cannon. " For this reason the regulation of the sea limits, especially since the middle of this century, by positive precise measures has become more and more established, with the sea-mile as a fundamental measure." Perels, " Manuel de Droit Maritime International," first pub- lished in 1882, citing from French edition of 1884, p. 30; United States extract, p. 8 : — " The identification of the distance of three miles with the range of cannon has only been arrived at after a series of generalizations upon acts and writings which have decided certain special questions." Calvo, " Le Droit International," first published in 1868, citing from the French edition of 1896, sec. 356; United States extract, p. 6:- " From these general principles it is easy to draw the conclusion that territorial waters should include only the space capable of being defended from the main land, or of serving as a base for attacks on the adjacent coast. Since the invention of firearms this space has generally been limited to three nautical miles from the shore line, at low tide." Hall, " International Law," first published in 1880, citing from 5th edition, p. 154 ; United States extract, p. 3 : — " Generally their limit is fixed at a maritime league from the shore ; but this distance was defined by the supposed range of a gun of po- sition, and the effect of the recent increase in the power of artillery has not yet been taken into consideration, either as supplying a new measure of the space over which control may be efficiently exercised, or as enlarging that within which acts of violence may be dangerous to persons and property on shore." Oppenheim, " International Law," published in 1905, vol. I, p. 241:— " Since at the end of the eighteenth century the range of artillery was about three miles, or one marine league, that distance became generally recognized as the breadth of the marine belt." It is quite unnecessary to go into the history of the long contest for the freedom of the seas. The doctrine of Grotius was formulated by Bynkershoek, who promulgated the rule in his great work, " De Dominio Maris," pub- lished in 1702. 1210 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 729 In the edition of 1767, book II, chap. 2, p. 127, Bynkershoek stated : — " My opinion is that the territorial sea should extend only as far as it can be considered subject to the mainland. Hence I concede no further dominion over the territorial sea than that which can be exercised from the land ; and there is no reason why a portion of the sea under the control and power of a state should not be called its property as well as any other body of water within its territory. It is, therefore, right to extend the land power and the right of domin- ion and possession as far as the range of cannon. I speak of our times when cannons are in use; otherwise the general principle should be; the sovereignty of the land ends where the force of arms ends, for this, as I said, is considered possession." This doctrine of dominium terrce finitur, tibi finitur amnorum vis, while not specifically applied by Bynkershoek to bays, was undoubt- edly considered by him as just as applicable to bodies of water in- denting the shores of a nation as to any other part of the sea. The principle that in 1818 jurisdiction over arms of the sea could be obtained only on the ground of power to defend by cannon shot from the opposite shores, or on the ground of assertion of jurisdic- tion and acquiescence therein, or by some definite agreement by treaty, I support by all the authoritative writers on the subject. Some of these works have been cited and read by the Counsel for Great Britain to support a contrary doctrine, but an examination of the books will show that they uniformly support the view now ad- vanced by the United States: — Vattel, " Le Droit des Gens," first published in 1758, citing from London edition of 1760, book I, chap. 23; British extract, p. 2: — "All we have said of the parts of the sea near the coast may be said more particularly, and with much greater reason, of the roads, bays, and straights, as still more capable of being occupied, and of greater importance to the safety of the country. But I speak of the bays and streights of small extent; and not of those great parts of the sea to which these names are sometimes given, as Hudson's Bay and the Streights of Magellan, over which the empire cannot extend, and still less a right of property. A bay whose entrance may be defended, may be possessed and rendered subject to the laws of the sov- ereign. . . ." Neyron, " Principes du Droit des Gens," published in 1783, p. 239:— " Without speaking of the extent of the adjacent seas, which several authors have determined differently, it is recognized, without treaty, by general consent that states have a right of property in maritime districts to the range of a cannon shot (a right which has its appli- cation principally in time of war, and also in the matter of fisheries) ." G. F. de Martens, " Precis du Droit des Gens," first published in 1785, citing from edition of 1864, sees. 40 and 41; United States extract, pp. 1 and 2: — ABGUMENT OP CHARLES B. WARREN. 1211 " Section 40. What has been said about rivers and lakes [that they are the property of the state] is equally applicable to straits and gulfs; above all to those which do not exceed the ordinary width of rivers or the double range of cannon. " Likewise, a nation may assume an exclusive right over those neighboring portions of the sea (mare proximum) susceptible of con- trol from the shore. Different opinions have been expressed upon the distance to which the rights of the master of the shore extend. All nations of Europe to-day agree that the rule is that straits, gulfs, and the adjacent sea belong to the owner of the shore, at least as far as the range of a cannon placed on the shore. A number of treaties have adopted the more extended principle of three leagues." "Section 41. — Can a nation acquire an exclusive right over rivers, straits, gulfs too wide to be covered by a cannon-shot fired from the shore, or over parts of an adjacent sea which exceed the range of cannon or even the distance of three miles ? No one doubts that such an exclusive right could be acquired against an individual state which consents to recognize it." Kliiber, " Droit des Gens," first published in 1809, citing from edition of 1874, sees. 130 and 131; United States extract, pp. 1 and 2 :— " Within the maritime territory of a state are included those mari- time districts or regions susceptible of exclusive possession, over which the state has acquired (by occupation or convention) and retained sovereignty. To these districts belong: .... (2) Those parts of the ocean which extend into the continental territory of a state, if they can be commanded by cannon from the two shores, or the entrance of which may be forbidden to vessels; that is, gulfs, bays, and creeks." Heffter, " Le Droit International de 1'Europe," French edition of 1883, sees. 75 and 76 ; United States extract, pp. 1 and 2 : — " Common usage has established the range of cannon as the dis- tance within which it is not lawful to trespass except in excep- tional cases; a line of limitation which not only has obtained 730 the support of Grotius, Bynkershoek, Galiani, and Kliiber, but has likewise been established by the laws and regulations of many nations. However, we may still maintain, with Vattel, that the domination of a state over the neighboring sea extends as far as necessary for its safety and as far as it can enforce respect. We may, with Rayneval, regard the distance of the horizon from the shore as the extreme limit of measures of surveillance. The line of the range of cannon shot although considered the common rule does not present an invariable standard and may be fixed in miles by the laws of each state, at least provisionally. Formerly it was made two leagues. Now it is considered ordinarily as three marine miles. "Section 76" page 174- — " If the maritime waters of the coast are deemed to belong to the adjacent state, it follows with greater reason that the maritime waters situated inside this portion of the sea ought to be considered within the domain of the adjacent state, which at the same time can guard or forbid access to it and effectively main- tain an exclusive power and control over it. Such are (1) artificial 1212 NORTH ATLANTIC COAST FISHERIES ARBITRATION. canals of the country which connect with the sea, (2) ports, and harbors, either artificial or natural, which give access to the port. " Some nations, by an extension of their rights over the littoral sea or for other reasons and under particular circumstances, have arrogated to themselves the sole right of domain over certain por- tions of the high seas. Thus, Great Britain under the name of Kings Chambers assumed exclusive right of dominion over bays situated between two headlands." Ortolan, "Diplomatic de la Mer," vol. I, p. 152; United States extract, p. 2: — " We must classify under the same heading as roadsteads and, ports, gulfs and bays and all other indentations known by other denomina- tions when these indentations made in the land of a single state do not exceed in width the double range of cannon or when the entrance may be controlled by artillery or when it is naturally defended by islands, banks, or rocks. In all of these cases it may truly be said that these indentations or bays are within the power of the state which is mistress of the territory which surrounds them." Hautefeuille, "Des Droits et des Devoirs des Nations neutres," first published in 1848, citing from edition of 1868, p. 57; United States extract, pp. 3 and 4: — " The sea is absolutely free except the waters washing the coast. These waters are part of the domain of the adjacent state. The rea- sons for this exception are: First, that these portions of the ocean are susceptible of a continuous possession; second, that the people which possess them may exclude others from them ; third, that in the interests of its security and the preservation of the advantages de- rived from the territorial sea, it must establish this exclusion. These causes known, it is easy to fix the limitations. The maritime do- minion ends where continuous possession ends, where the proprietary state can no longer exercise its power, at the place at Avhich it can no longer exclude foreigners and finally at the place where, their presence no longer endangering its security, it no longer has any interest in excluding them. " Now, the point at which the three causes which make the sea sus- ceptible of private possession ceases is the same for all ; it is the limit of its power represented by instruments of war. The space covered by projectiles discharged from the shore protected and defended by the power of these engines is territorial domain, and subjected to the domain of the master of the shore. The greatest range of cannon placed on shore is actually, therefore, the limit of the territorial sea. "The seacoasts do not present a straight and regular line. They are on the contrary almost always cut by bays, capes, etc. If the maritime domain were always to be measured from every point of the coast, great inconveniences would result. Thus it is agreed by usage to draw an imaginary line from one headland to another and to take this line as the point of departure for the range of cannon-shot. This method adopted by almost all states, applies to small bays only and not to gulfs of wide extent like the Gulf of Gascogne and Gulf of Lyon, which in fact are great portions of sea entirely open and whose complete assimilation to the high sea it is impossible to deny." ARGUMENT OF CHARLES B. WARREN. 1213 De Cussy, "Phases et Causes celebres du Droit Maritime," pub- lished in 1856, vol. I, sees. 40 and 41, pp. 96 and 97 ; United States extract, pp. 3 and 4: — " Can we not say with certainty : " First, that the sovereignty over the territorial sea reaches as far as the range of cannon-shot from the shore, .... " Second, this sovereignty extends over maritime regions, such as roadsteads, bays, gulfs, and straits, whose entrance and exit may be defended by cannon " " Section 41, page 97. All gulfs and straits cannot belong through- out their entire extent to the territorial sea of the state whose coasts they wash. The sovereignty of the state is limited over gulfs and straits of wid,e extent to the distance indicated in the foregoing para- graph ; beyond this, gulfs and straits of this category are assimilated to the sea and their use is free to all nations." Sir Travers Twiss, " Law of Nations," citing from edition of 1884, pp. 292 to 295 ; United States extract, pp. 1, 2, 3, and 4 :— " Upon this princpile a Neutral Nation is held to be entitled to preclude Belligerent Powers from carrying on mutual hostili- ties upon the open sea within a certain distance of its coast. 731 That distance, as between Nation and Nation, is held to extend as far as the safety of a Nation renders it necessary, and its power is adequate to assert it; and as that distance cannot, with con- venience to other Nations, be a variable distance, depending on the presence or absence of an armed fleet, it is by practice since the intro- duction of firearms identified with that distance, over which a Nation can command obedience to its Empire by the fire of its cannon (14). That distance, by consent, is now taken to be a Maritime League sea- wards along all the coasts of a Nation. Beyond the distance of a sea -league from its coasts, the Territorial Laws of a Nation are, strictly speaking, not operative. It may happen that a Nation chooses to extend its own Laws over its National vessels wherever they may be navigated on the High Seas, but however general and comprehensive the phrases used in the Municipal Law may be, they must be always restricted in their construction to the citizens of the State, to which the vessel belongs (15), and to the mutual relations between such citizens, and cannot be extended to the vessels of other Nations, or to the persons on board of them. "Section 180. — Writers on Public (16) Law have spoken of the open sea (mare vastum) within the distance of a Maritime League along the coasts of a Nation as its Maritime Tewitory ( See-Gebiet) . If the Law of Nations be held to be a portion of the Law of each Nation in such matters as are within its scope, then there may be no valid objection to the use of the phrase Maritime Territory in the sense of Territory subject to the Law of the Sea, but in as much as the term territory in its proper sense is used to denote a district within which a Nation has an absolute and exclusive right to set Law, some risk of confusion may ensue if we speak of any part of the open Sea over which a Nation has only a concurrent right to set Law, as its .Maritime Territory. It would tend to greater clearness, if Jurists were to confine the use of the term Maritime Territory to the actual coasts of a Nation, or to those portions of sea intra fauces terrce over 1214 NORTH ATLANTIC COAST FISHERIES ARBITRATION. which a Nation is entitled to exclusive jurisdiction, and over which its Territorial Law has paramount force and operation, and if they were to designate the extent of tidal waters, over which the Territorial Law of a Nation operates concurrently with the Law of Nations, as its Jurisdiction^ Waters (17). "/Section 181. If a sea is entirely enclosed by the Territory of a Na- tion, and has no other communication with the Ocean than by a channel, of which that nation may take possession, it appears that such a sea is no less capable of being occupied and becoming property than the land, and it ought to follow the fate of the country that surrounds it (18). The Black Sea, whilst its shores were in the exclusive possession of the Ottoman Porte, was an instance of a Ter- ritorial Sea of this character. So likewise Straits, which serve as a communication between two seas, and of which the shores on both sides are the Territory of one and the same Nation, are capable of being reduced into the possession of that Nation "Section 182. — In the case of portions of the Sea, a nation may have a peculiar possession of them, so as to exclude the universal or common use of them by other Nations (23). Lord Stowell held that portions of the Sea might be prescribed for (24) ; and Mr. Justice Story deemed it possible that a Nation might have an exclusive use founded on the acquiescence or tacit consent of other Nations. There is no inconsistency between these views and those of Grotius, who says, ' that he who has occupied any part of the Sea cannot lawfully hinder the navigating therein of ships that are unarmed, and give no room to apprehend danger ; ' for Grotius must be understood as speaking of the natural right of a Nation, and not of an instituted right founded on the tacit consent of other Nations (24). Lord Stowell (25) has observed that the general presumption certainly bears strongly against such exclusive rights, and the title is a matter to be established on the part of those claiming it, in the same man- ner as all other legal demands are to be substantiated by clear and competent evidence ; in other words, by proof of ancient and constant usage." Fiore, " Nouveau Droit International Public," first published in 1865, citing from Antoine's translation into French of second edition, 1885, sec. 808 ; United States extract, p. 7 :— "The principles which we have just expounded with reference to the territorial sea are equally applicable to bays and gulfs. These latter cannot be considered as being within the domain of the terri- torial sovereignty, unless their extent is so restricted that their waters are entirely within the range of cannon shot from the shore." Calvo, "Le Droit International," citing from fifth edition in French, sees. 353 and 367 ; United States extract, pp. 5 and 15 : — "Section 353.— .... " The natural limit of a state on the coast is defined by the contour of its shores where they are washed by the tide and where the mari- time dominion begins. In order to facilitate the defense of the coast, the general practice of nations sanctioned by numerous treaties, has been to trace, at a certain distance from the land, an imaginary line which is considered to form the extreme limit of the naaritime fron- ARGUMENT OF CHARLES B. WARREN. 1215 tier of each country. All the space within this line comes, ipso facto, under the jurisdiction of the state to which it belongs, and the sea between this line and the shore is called territorial waters." "Section 367. — Gulfs and bays protected either naturally by islands, sand bars, or rocks, or by the cross fire of guns placed on each side of their entrances, belong to the territorial sovereignty adjoining." 732 Th. Funck-Brentano and Albert Sorel, " Precis du Droit des Gens." first published in 1877, citing from edition of 1900, p. 375 ; United States extract, p. 1 : — "As all seas which are not under soverignty are free seas, it suffices to distinguish the one from the other, to determine those which are under sovereignty. " Bays, gulfs, mouths of rivers, and in general all parts of the sea which wash the territory of a State are embraced under the name * territorial sea,' and are considered as constituting part of the State. The territorial sea is, in reality, only a prolongation of the frontier of the State. The limits are necessarily varying and uncertain. We cannot apply to them the procedure by means of which the con- tinental frontiers of States are fixed, but the motives which have led States to consider the territorial sea as placed under their jurisdic- tion have also established its extent. It is because the State, with the force which it commands on its territory, may safeguard, defend, and enforce respect over this part of the sea, and because it is con- sidered as an extension of the territory." Ferguson, " Manual of International Law," voL I, pp. 396 and 397:— " To the maritime domain belong : — ******* " 3. Those bays and gulfs whose shores and surrounding islands, shoals and head-lands are in legal possession and occupation of one and the same State, provided the distance intervening between the hep.d-lands and enclosing shoals and islands is such as to enable bat- teries, established on the land, to control the passages to and the navi- gation of the inner waters, or otherwise does not exceed ten nautical miles (of 60 in the equatorial degree). These are termed closed bays, the entrance being regarded as defensible from the shore, in contra- distinction from those of greater width, which are regarded as open territorial waters." Pradier-Fodere, " Traite du Droit International Public," vol. II, sec. 662; United States extract, pp. 11 and 12: — "The rule generally expressed and moreover observed by all states is that bays and gulfs are unquestionably a part of the territorial sea unless they have such an extent that it 'is impossible to defend their entrance from the shore. All the curvatures surrounded by the lands of a single state when their width does not exceed the double range of a cannon shot or when their entrance may be controlled by artillery, or when they are naturally defended by islands, lakes, or rocks, are considered as constituting a part of the adjacent state and as acces- sories to the land 92909°— S. Doc. 870, 61-3, vol 10 21 1216 NORTH ATLANTIC COAST FISHERIES ARBITRATION. " Thus bays and gulfs are considered as comprised within the do- main of the territorial sovereign if their extent is not such that it is impossible to defend their entrance from the shore. In other words, if they may be defended either by maritime force, by the cross fire of cannons placed at their entrance, or naturally by rocks, sandbanks, islands, etc. But the principle of the liberty of the seas is not to be modified with reference to bays and gulfs of wide extent. We must apply to them the principles set forth with reference to the territorial sea," Testa, " Le Droit Public International Maritime," French edition, 1886, p. 69; United States extract, pp. 1 and 2:— " Gulfs and Bays. — The considerations above advanced apply equally of gulfs and bays whose shores belong to the same power when the entrance or mouth is not so wide as to be unable to be commanded by the crossfire of artillery, or when they are naturally defended by islands, banks or reefs, which render their permanent or effective possession possible." Piedelievre, " Precis de Droit International Public ou Droit Inter- national," published in 1894, vol. I, sec. 417; United States extract, p. 4:- "Gulfs and bays. — Are gulfs and bays or considerable portions of the sea which encroach upon the land to be considered as subject to the territorial sovereignty of the adjacent state? The general rule makes them part of the territorial sea when their extent is such that it is not impossible to defend their entrance from the shore. That is to say, they are under the sovereignty of a riparian state when they do not exceed in width the double range of the cannon placed on the shore, or when their entrance may be protected by artillery or is naturally protected by islands, banks or rocks. In all these cases it is evident that gulfs and bays are within the control of the state, proprietor of the land which encloses them. This state has the actual possession. "As to gulfs and bays which do not fulfil one or the other of these conditions they are free as the sea of which they constitute a natural part, except that portion corresponding to the marginal sea of the adjacent state, which is subject to the principles heretofore enunciated." Rivier, " Principes des Droit du Gens," vol. I, p. 154 ; United States extract, p. 4 : — " In conformity with what we have just said, portions of the sea or seas, which are, by reason of their configuration, called gulfs 733 or bays, are territory when they are surrounded by the land of a single state or when their entrance is sufficiently narrow to be commanded by cannon from its shores ; but as soon as there are several bordering states, the gulf is a free sea, whatever, the width of its entrance. A gulf, even though surrounded by a single state, is a free sea if its entrance is too wide to be dominated from the shore." Despagnet, " Cours de Droit International Public," first published in 1894, citing from second edition, 1899, sec. 415; United States extract, pp. 3 and 4 : — ARGUMENT OF CHARLES B. WARREN. 1217 " Gulfs and wide bays. — Over gulfs and wide bays the state no longer has a right of property. (See a contrario article 538 Cc.) It can only exercise the right of sovereignty. This last right is, moreover subordinated to the condition that the effective power of the state may be exercised throughout the entire extent of the gulf or bay, which can not exceed the total range of cannon from its two shores. In conventions or state laws, especially so far as concerns the monopoly of fishing, we often adopt a rule by virtue of which the right of sovereignty is exercised in an absolute manner only over bays whose width does not exceed ten miles. (See Franco-British Convention of August 2, 1839, and the French law of May 1st, 1888 ; Hague Convention of May 6, 1882, article 2, covering fishing in the North Sea.) " Wide gulfs, beyond the range of cannon ought to be assimilated to the high seas. We cannot, therefore, admit the claim of the United States over the Gulf of Mexico and over Hudson's Bay any more than the English theory of Kings Chambers, or Narrow Seas, ac- cording to which the entire space of sea contained between two shores belonging to one state is under the sovereignty of that state. Thus the English sought to make of the Irish Sea an English sea, under the same title as the arms of the sea between Great Britain and the Isle of Wight; and by the Ordinance of 1882 it considered as such the Bay of Conception in Newfoundland, which extends forty miles inland and is fifteen miles wide." Liszt, " Das Volkerrecht," first published in 1898, citing from fifth edition, 1907, p. 91 ; United States extract, pp. 2 and 3 : — " Special regulations are in force for bays and inlets. In their interior positions, governable entirely from the shores, they are private waters and thus are subject to the unlimited sovereignty of the adjacent state; adjacent to these portions are those waters which beyond their limits extend their waters into the open sea. " The border of the inner portion of bays and inlets is determined by drawing an imaginary straight line from headland to headland at that width of the bay where the middle point of the line can be reached by the cannons placed upon both headlines of the shore. From this line landward lies the enclosed bay and on the other side towards the open sea the adjacent waters begin." Westlake. " International Law," published in 1905, vol. I, pp. 187- 188 ; United States extract, pp. 5 and 6 : — "As to bays, if the entrance to one of them is not more than twice the width of the littoral sea enjoyed by the country in question- that is, not more than six sea miles in the ordinary case, eight in that of Norway, and so forth — there is no access from the open sea to the bay except through the territorial water of that country, and the inner part of the bay will belong to that country no matter how widely it may expand. The line drawn from shore to shore at the part where, in approaching from the open sea, the width first con- tracts to that mentioned, will take the place of the line of low water, and the littoral sea belonging to the state will be measured outwards from that line to the distance, three miles or more, proper to the state (1). But although this is the general rule, it often meets with 1218 NORTH ATLANTIC COAST FISHERIES ARBITRATION. an exception in the case of bays which penetrate deep into the land and are called gulfs. Many of these are recognised by immemorial usage as territorial sea of the states into which they penetrate, not- withstanding that their entrance is wider than the general rule for bays would give as a limit to such appropriation. Examples are the Bay of Conception in Newfoundland, penetrating forty miles into the land and being fifteen miles in average breadth, which is wholly British (2), Chesapeake and Delaware Bays, which belong to the United States (3), and the Bay of Cancale, seventeen miles wide, which belongs to France. Similar exceptions to those admitted for gulfs were formerly claimed for many comparatively shallow bays of great width, for example those on the coast of England from Orfordness to the North Foreland and from Beechy Head to Dun- nose, which, together with the whole of the British Channel and various other stretches of sea bordering on the British Isles, were claimed under the name of the King's Chambres (1). But it is only in the case of a true gulf that the possibility of occupation can be so real as to furnish a valid ground for the assumtion of sovereignty, and even in that case the geographical features which may warrant the assumption are too incapable of exact definition to allow of the claim being brought to any other test than that of accepted usage, real as to furnish a valid ground for the assumption of sovereignty, now enjoyed over the littoral sea or certain gulfs is the remnant of the vast claims which, as we have seen (2), were once made to sover- eignty over the open sea, and which it is held have been gradually reduced to a tolerable measure through such intermediate stages as that of the King's Chambers; and the impossibility - of putting the claim to gulfs in a definite general form may be thought favourable to that view. None the less however the rights which are now ad- mitted stand on a basis clear and solid enough to distinguish and support them." 734 Nys, " Le Droit International," published in 1904, vol. I, p. 446 ; United States extract, pp. 3 and 4 : — "As to gulfs and bays, a distinction is made as to whether there is a certain distance between the two shores. This distance is fixed at ten marine miles and by certain international treaties it is carried to twelve miles, according to one opinion, and according to an older opinion the territorial line is fixed seawards at the double range of cannon. When the distance between the two shores is less than one of the distances just indicated, when, for example, the opening can be dominated by the state, the gulf or bay is assimilated to ports, coves, closed roadsteads, and harbors. The case is different when the opening exceeds ten or twelve mil?s or the total double range of cannon, following the theories to which we have alluded and the development of which we shall trace in discussing the littoral sea." Oppenheim, " International Law," vol. I, pp. 246, 247, and 248 : — " It is generally admitted that such gulfs and bays as are enclosed by the land of one and the same riparian State, and whose entrance from the sea is narrow enough to be commanded by coast batteries erected on one or both sides of the entrance, belong to the territory of the riparian State even if the entrance is wider than two marine leagues, or six miles. ARGUMENT OF CHARLES B. WARREN. 1219 " Gulfs and bays surrounded by the land of one and the same riparian State whose entrance is so wide that it cannot be commanded by coast batteries, and, further, all gulfs and bays enclosed by the land of more than one riparian State, however narrow their entrance may be, are non-territorial. They are parts of the Open Sea, the marginal belt inside the gulfs and bays excepted. They can never be appropriated, and they are in time of peace and war open to vessels of all nations including men-of-war." Holland, " Letters to the ' Times,' " published in 1909, p. 132, et seq.; United States extract, pp. 1 and 2: — " Most authorities would, I think, agree with Admiral de Horsey that the line between ' territorial waters ' and ' the high seas ' is drawn by international law, if drawn by it anywhere, at a distance of three miles from low-water mark. In the first place the ridicu- lously wide claims made, on behalf of certain States, by mediaeval jurists were cut down by Grotius to so much water as can be con- trolled from the land. The Grotian formula was then worked out by Bynkershoek with reference to the range of cannon ; and, finally, this somewhat variable test was, before the end of the eighteenth century, as we may see from the judgments of Lord Stowell, super- seded by the hard-and-fast rule of the three-mile limit, which has since received ample recognition in treaties, legislation, and judicial decisions. " The subordinate question, also touched upon by the Admiral, of the character to be attributed to bays, the entrance to which exceeds six miles in breadth, presents more difficulty than that relating to strictly coastal waters. I will only say that the Privy Council, in The Direct U. 8. Cable Co. v. Anglo-American Telegraph Co. (L. R. 2 App. Ca. 394), carefully avoided giving an opinion as to the inter- national law applicable to such bays, but decided the case before them, which had arisen with reference to the Bay of Conception, in -New- foundland, on the narrow ground that, as a British Court, they were bound by certain assertions of jurisdiction made in British Acts of Parliament. " The three-mile distance has, no doubt, become inadequate in consequence of the increased range of modern cannon, but no other can be substituted for it without express agreement of the Powers. One can hardly admit the view which has been maintained, e. g., by Professor de Martens, that the distance shifts automatically in ac- cordance with improvements in artillery. The whole matter might well be included among the questions relating to the rights and duties of neutrals, for the consideration of which by a conference, to be called at an early date, a wish was recorded by The Hague Confer- ence of 1899." Inasmuch as I conceive that the counsel for Great Britain have misconstrued Grotius, Galiani, Azuni and Burlamaqui, I will, at a later period in the argument, take up these authorities with especial reference to the interpretation put upon their statements by the coun- sel for Great Britain. The Printed Argument of the United States has sufficiently dis- cussed the work of Sir Robert Phillimore on international law, which 1220 NORTH ATLANTIC COAST FISHERIES ARBITRATION. has been cited, and the Tribunal is respectfully referred to pp. 206 and 207 of the Printed Argument of the United States. It is, of course, understood that the authorities discussing this sub- ject since the great improvement in ballistics are cited with the knowl- edge in mind that in 1818 the 3-marine-mile territorial zone and can- non-shot zone were identified, in any event as between the United States and Great Britain. The authorities which have discussed the rule of international law in a later period are cited merely 'as show- ing that the principle, upon which the right to jurisdiction rests, has continued, although there may be different opinions as to the extent of exclusive territorial jurisdiction over bodies of water indenting the coast of a country based upon the increase of the power's to de- fend. 735 Many of these later authors have mentioned the extent of territorial jurisdiction over such waters as comprehending bodies of water 10 miles wide. They have in mind the extent as fixed and determined under certain treaties. In the Printed Argument of the United States this statement is made, at p. 215 : — " The United States does not deny that special agreements between various powers have been entered into providing that all bays which do not exceed ten miles in width are territorial bays; and that such treaties or agreements are binding upon the nationals of the signa- tory powers. The convention of August 2, 1839, between Great Britain and France; the convention of 1867, between the same two powers; the agreement between Great Britain and Germany in 1874; the similar agreement between the German and Danish Governments in 1880; the North Sea Fisheries Convention of May 6, 1882, were all extensions of the territorial sea, and were so regarded." The action of the Institute of International Law in 1894 was also referred to in the Printed Argument of the United States as showing that, in the opinion of that learned body, the generally recognised maritime belt should be extended to 6 marine miles, and the width of territorial bays to the double of 6 marine miles, or 12 miles. It was recognised throughout the Proceedings of the Institute that this proposal was based upon the extended range of cannon shot. And I refer the Tribunal to the "Annuaire de 1'Institut de Droit International, 1894." I have, perhaps, sufficiently drawn the attention of the Tribunal to the fact that the present submission does not involve the examina- tion of those particular cases in any portion of the world, " where "- to use the words of the Institute of International Law — " continuous and established usage has sanctioned a greater width " of the terri- torial sea. It is well established that there are such exceptions, based upon long-continued assertion of jurisdiction and acquiescence in such assertions by other Powers, but it is respectfully submitted that such exceptions require no examination here. ARGUMENT OF CHARLES B. WARREtf. 1221 It has already appeared from the long review of the facts in this controversy that there is no evidence whatever of any claim by Great Britain, based on assertion of jurisdiction over any of these bodies of water more than 6 miles in width, and it, of course, necessarily fol- lows that it has not been shown that there was any acquiescence in any such assertion by the United States. Without taking up in detail the statutes relating to Chaleur and Miramichi Bays, I will refer the Tribunal to the Printed Argument of the United States, at p. 216, as to these statutes cited in the British Case on pp. 113 and 114. I merely wish to cite in addition to what was stated in the Printed Argument of the United States the following decisions from the courts of Great Britain, as to the effect of these unilateral acts of a nation. , In the case of " Le Louis," 2 Dodson, p. 239, Lord Stowell said : — " Neither this British Act of Parliament, nor any commission founded on it, can affect any right or interest of foreigners, unless they are founded upon principles and impose regulations that are con- sistent with the law of nations. That is the only law which Great Britain can apply to them ; and the generality of any terms employed in an Act of Parliament must be narrowed in construction by a re- ligious adherence thereto." In the case of Regina v. Keyn (L. R., 2 Ex. Div., p. 210), Chief Justice Cockburn said: — " For where the language of a Statute is general, and may include foreigners or not, the true canon of construction is to assume that the Legislature has not so enacted as to violate the rights of other na- tions." Two additional authorities to the same effect are : — Cope v. Doherty, 2 De Gex and Jones, 614 ; Jeffreys v. Boosey, 4 H. L. Cases, 926. The citation in the British Case from Taylor's " International Pub- lic Law " and Wheaton's " Elements of International Law," and from Kent's " Commentaries," have been sufficiently, it would seem, dis- cussed in the Printed Argument of the United States, beginning at p. 218 and going to p. 220 inclusive, and I shall not take the time to further discuss the works of these authors, because it seems clear, as stated in the Printed Argument of the United States, that they were not taking positions in opposition to the present contention of the United States. One observation, however, might be added here. Chancellor Kent was not stating a fact as to these large claims of the United 736 States, but was expressing an opinion as to what he thought might be claimed, and was confining his discussion strictly to claims " for fiscal and defensive purposes." I desire to discuss somewhat in detail the views of Dr. Oppenheim, Whewell Professor of International Law at the University of Cam- bridge, as stated in his work on international law. 1222 NORTH ATLANTIC COAST FISHERIES ARBITRATION. At p. 246 of vol. I he states : — " It is generally admitted that such gulfs and bays as are enclosed by the land of one and the same riparian state, and whose entrance from the sea is narrow enough to be commanded by coast batteries erected on one or both sides of the entrance, belong to the territory of the riparian state, even if the entrance is wider than two marine leagues, or six miles." This statement is clearly based upon the increased range of shore batteries, for on p. 241 the author states : — " With regard to the breadth of the maritime belt various opinions have in former times been held and very exorbitant claims have been advanced by different states, and although Bynkershoek's rule that terrce potestas finitur ubi finitur armorum vis is now usually recog- nized by theory and practice and consequently a belt of such breadth is considered under the sway of the riparian state as is within effec- tive range of the shore batteries, there is still no unanimity on ac- count of the fact that such range is day by day increasing. Since at the end of the 18th century the range of artillery was about three miles or one marine league, that distance became generally recognized as the breadth of the maritime belt ; but no sooner was the common doctrine originated than the range of projectiles increased with the manufacture of heavier guns, and although many states and munici- pal laws and international treaties still adhere to a breadth of one marine league, the time will come when by a common agreement of the states such breadth will be very much extended." Professor Oppenheim then makes it very clear on p. 247, that no bay belongs exclusively to the territory of the riparian state whose entrance is so wide that it cannot be commanded by coast batteries, in the absence of specific assertion of and acquiescence in exclusive jurisdiction. " Gulfs and baj^s, surrounded by the land of one and the same riparian state, whose entrance is so wide that it cannot be com- manded by coast batteries, and further, all gulfs and bays enclosed by the land of more than one riparian state, however narrow their entrance may be, are non-territorial. They are parts of the open sea, the marginal belt inside the gulfs and bays excepted. They can never be appropriated, and they are, in time of peace and war, open to vessels of all nations, including men-of-war." Sir Robert Finlay read an extract from Grotius in order to show that any body of water, large or small, indenting the territory of a country was necessarily a part of the territory of the State possessing the surrounding land. Counsel in the report of his argument at p. 251 stated: — " I shall submit that that assertion of one of the great writers on international law there strikes the true note in what he says as to the proportion of the inlet to the land which surrounds it. Where you have a very deep inlet with a comparatively narrow entrance, such an inlet may reasonably be considered as belonging to the territory by which it is surrounded where that territory belongs to one nation or country." AEGUMENT OF CHARLES B. WAEREN. 1223 The extracts cited by counsel from Grotius's " De Jure belli ac pacis," lib. II, ch. Ill, sec. 7, reading from Whewell's edition and translation of Grotius, vol. I, p. 259, were : — " We have begun to speak of the sea ; we must now finish what we have to say on the subject. Rivers may be held as by occupation, though neither their upper or lower extremity be included in the territory, but cohere with superior or inferior water, or with the sea. It is sufficient that the greater part, that is, the sides, are en- closed with banks, and that a river is something small in comparison with the land." Section 8. '• By this it appears that a portion of the sea also may be occupied by him who possesses the land on each side ; although it be open at one end, as a bay, or at both, as a strait; provided it be not such a portion of the sea as is too large to appear part of the land. And what is lawful to one people, or kin, seems also to be law- ful to two or three, if they, in like manner, wish to occupy the sea which lies among their dominions. And thus two rivers which flow between two peoples are occupied by both, and thus divided." Sir Robert Finlay stated at pp. 254—5 of the report of his argu- ment that however great the divergence among waiters as to the size of bodies of water which might be properly considered territorial — " after all the question comes back to the principle enunciated by the great master and founder of international law, Grotius. He really deals with the matter on principle, in a way which contrasts favor- ably with some of his successors. He says if you have got an inlet of that character, having regard to its dimensions and con- 737 formation with reference to the lands which surround it, it may fairly be considered as territorial, and that was the only established principle at that time, and I shall submit to the Court that it is the only established principle at the present day, although various suggestions of modifications have been made." On this " established principle " the learned counsel proceeded to build up a theory of law which he contends is in conformity with the British position in this submission. I submit that an examination of Grotius with care will make clear his true meaning. What Grotius stated was " that a portion of the sea may be occu- pied by him who possesses the land on each side, although it be open at one end as a bay, or at both, as a strait, provided it be not such a portion of the sea as is too large to appear part of the land." In commenting upon rivers this great master of international law said " a river is something small in comparison with the land." The counsel for Great Britain did not read a further extract from Grotius which appears in book 2, p. 3, section 13, of Whewell's edi- tion of vol. I, at p. 266. The section reads :— "The empire of a portion of the sea is, it would seem, acquired in the same way as other lordships: that is, as above stated, as be- longing to a person^ or as belonging to a territory ; belonging to a person, when he ha"s a fleet which commands that part of the sea; 1224 NORTH ATLANTIC COAST FISHERIES ARBITRATION. belonging to a territory, in so far as those who sail in that part of the sea can be compelled from the shores as if they were on land." It is respectfully submitted that this extract from Grotius, in which he defines the means by which empire over a portion of the sea may be acquired and maintained by the nation possessing the adjacent territory, and the extent to which this acquisition is possible, limits the extent by the power of control. Grotius thus aligns himself with the doctrine that the expanse of water over which territorial jurisdiction may extend is limited by the power to defend it, and Bynkershoek later formulated this principle, and designated the means by which this control might be maintained. This is the true position of Grotius on the question of control over portions of the sea by the possessor of the land which the body of water indents, and the far-reaching doctrine which counsel endeav- ours to deduce from the writings of Grotius is, I submit, without foundation. I have cited what Grotius said and have explained it by citing from portions of his work, and I submit that the language — " provided it be not such a portion of the sea as is too large to appear part of the land- is not susceptible of the meaning put upon it by the distinguished counsel for Great Britain. It would seem that it was perfectly clear that what Grotius had in mind was a body of water which was not too large, but that when look- ing across it, it would appear as a part of the land by reason of the fact that one could discern and distinguish objects on the other side. One looking out upon, for one cannot see across an enormous ex- panse such as the so-called geographical Placentia Bay, in New- foundland, would not certainly think that it seemed to be a part of the land. When such bodies of water were so small that they were identified with the land, because of the ability to look across the body of water and see the opposite shore, and therefore to regard the intervening water as merely a part of the territory of the State, they were con- sidered by Grotius as such bodies of water as would appear part of the land. This view of Grotius was subsequently adopted into the common law of England, and later, as I have shown, was followed in the decisions of the Courts of the United States, and later was fixed by statutes in some States at double the width of the territorial zone of 3 marine miles. The test of the power to see and discern and distinguish objects was abandoned for the fixed rule of twice the width of the 3-mile zone. ARGUMENT OF CHARLES B. WARREN. 1225 This view is well illustrated by the statute of Massachusetts, which I have read to the Tribunal during the course of this argument, which merely, according to the decision in the case of Manchester v. Massachusetts, incorporated into the statute law of Massachusetts the rule of the common law. Sir Robert Finlay emphasised upon several occasions, and espe- cially at that point in his argument reported on p. 251, the fact that the principle of defence was applicable as to the extent to 738 which merely an outside marginal belt might be considered territorial, but he added that bays stood by themselves, and were subject to different principles. It is submitted that neither reason nor the authorities bear out the statement of the learned counsel. I submit that this so-called marginal strip, which it is sought to distinguish from bays, consti- tutes, together with territorial bays belonging to any State, whether lying entirely within the 3-mile limit, or acquired by virtue of asser- tion of jurisdiction and acquiescence therein by other nations, the maritime jurisdiction of the State. I have already cited the authorities sustaining this statement. I will therefore content myself with an examination of one of the authorities cited by the learned counsel in his argument. I read from the work of G. F. de Martens, section 40 : — " Different opinions have been expressed upon the distance to which the rights of the masters of the shore extend. All nations of Europe to-day agree that the rule is that straits, gulfs, and the adjacent sea belong to the master of the shore, at least as far as the range of a cannon placed on the shore." De Martens then adds, in his edition of 1821, that a number of treaties have established a more extended limit. No distinction in principle is apparently made by De Martens between adjacent seas and gulfs or bays. Counsel cited an extract from Burlamaqui, to be found in the report of his oral argument, at p. 252, to establish apparently that a great extent of sea might be appropriated by a State : — "With respect to these portions of the sea which are adjacent to the land, they are considered as belonging to the sovereign of the country whose coasts they wash, and the gulfs and bays belong to the people by the land of which they are enclosed. For since it is as easy for these people to take possession of and to guard these por- tions of the sea as any territory why should they not belong to them, and why can they not prevent others from navigating or fishing there and making use of it for themselves ? " Counsel did not read in connection with this section the following section : — " It is rather difficult to fix precisely the extent of sea which is thus considered as belonging to the sovereign of the lands which it washes. 1226 NORTH ATLANTIC COAST FISHERIES ARBITRATION. We may say that it is reasonable to presume that it extends as far and is necessary for the security of the country and to the extent that continuous possession may be maintained. It would be absurd therefore to extend it to some hundred leagues." It is submitted that Burlamaqui here plainly limits the extent to which possession of portions of the sea may be assumed by the power to guard them and by the extent to which "continuous possession may be maintained." The learned counsel for Great Britain cited Galiani on p. 253 of the report of his argument, and Azuni at p. 254 of his oral argument. The following extract from Galiani's work already referred to was read : — "It seems to me reasonable, however that without waiting to see whether in point of fact the sovereign of the territory has constructed such a tower or battery, and of what calibre are the cannons he has set up, the distance of three miles from shore should be fixed and given once and for all as that which is surely the greatest that a ball or bomb can be driven with the force of the powder so far discovered. But in places where the land curves and opens into a bay or gulf, it is accepted among the most civilized nations to imagine a line drawn from point to point of that mainland or from the islands which pro- ject beyond the promontories of the mainland and to regard as terri- tory all that gulf of the sea even if the distances from the middle of this to the surrounding coast should be on every side more than three miles" I only desire to call attention in passing to the last lines of the extract. The quotation from Azuni, which was printed in the British Case at p. 119, and appears in the oral argument of the distinguished coun- sel for Great Britain, at p. 254, is: — " It is already established among polished nations, that in places where the land by its curve forms a bay or a gulf, we must suppose a line to be drawn from one point of the enclosing land to the other, or along the small islands which extend beyond the headlands of the bay, and that the whole of this bay, or gulf, is to be considered as ter- ritorial sea ; even though the center may be, in some places, at a greater distance than three miles from either shore" Counsel draws from these extracts the conclusion that although " the bay at the entrance is more than six miles wide it is to be treated as territorial water ; a line is drawn across the mouth and that 739 the whole of that gulf is to be regarded as territory. It is an express repudiation of the doctrine which it is said was -ac- cepted as established in 1818 by the negotiators of this Treaty. It had never been put forward then, and here, when Galiani has occa- sion to touch upon it, he writes in terms which amount to a repudia- tion." Counsel assumes that the passages " Even if the distances from the middle of this " — body of water — " to the surrounding coast ARGUMENT OF CHARLES B. WARREN. 1227 should be on every side more than three miles," and " even though the center " — of this body of water — " may be in some places at a greater distance than three miles from either shore" have reference to the center of the line drawn from shore to shore, and assumes that even if the center of this line be at a greater distance than 3 miles from either shore, nevertheless the bay is territorial. I submit that the learned counsel for Great Britain has entirely misconstrued the citations from these two authors, Galiani and Azuni. What these authors plainly stated is that provided the approach to a body of water, the territory surrounding which is possessed en- tirely by one State, may be defended, as they express it themselves, then whatever may be the inner extent of that body of water, as stated by Galiani, " even if the distances from the middle of this " — body of water — " to the surrounding coast should be on every side more than three miles," and, as stated by Azuni, " even though the cen- ter " — of this body of water — " may be at some places at a greater distance than three miles from either shore," nevertheless, the body of water is territorial. If this were not true, why should these writers use the expressions which I have just quoted, and especially the expressions " to the sur- rounding coast should be on every side " and " in some places " — that is, within the body of water — " at a greater distance than three miles from either shore ? " It is necessary, to a correct understanding, to read in connection with one another these extracts from Azuni's work on the maritime law of Europe. The citations are to the American edition of 1806, vol. I, pp. 221 and 222; 205 and 206; and 225. A portion of these extracts only appear in the British extract, pp. 3 to 6, inclusive. Masse, a writer on commercial law, is cited by the distinguished counsel for Great Britain at p. 256 of the report of his oral argument. In section 105, to be found on p. 2 of the extract submitted by counsel for Great Britain, this author clearly expresses the view that the range of cannon-shot "measures the extent of the territorial power and assigns its limits. This distance is about three miles." Then the author goes on to say, as stated by Sir Robert Finlay :— "However, in practice this logical rule is not followed. Each nation determines for itself a certain distance in the sea within which it exercises its authority and which constitutes the territorial sea for those who admit this delimitation." The United States does not dispute that if a nation asserts juris- diction over a body of water indenting its territory and secures the acquiescence of other States in such assertion, such water becomes a part of the territorial waters; a part of the maritime jurisdiction of that nation. 1228 NORTH ATLANTIC COAST FISHERIES ARBITRATION. In section 106 (p. 2 of the British extract) this author states: — " Bays and gulfs are undoubtedly a part of the territorial sea, at least in case their extent is not such that it would be impossible to prevent the entry from the shore. "' Further, even when the mouth of the gulf or bay is too large to be able to be defended from the shore, they ought still, following Grotius, to be included in the territorial sea, if by their extent, as compared with that of the land into whose coasts they encroach, they may be considered as constituting a part of the territory," (citing Grotius, Book 2, Chapter 3, Section 8). Masse commits the error of misconstruing what Grotius said in his great work as to the nature of bodies of water which might appear a part of the land, and this accounts for the position taken in the extract just read. Again, I respectfully affirm that the facts abundantly establish the position of the United States on this Question 5, but an examina- tion of the authorities submitted in behalf of the United States and in behalf of Great Britain will, I believe, disclose that they support the contention of the United States, and do not support the contention put forward by Great Britain. I beg to thank the Tribunal for the very careful attention that I have received and to ask pardon for the extended time consumed to-day, but I desired to close at this session of the Tribunal. [Whereupon, at 5.45 p. m., the Tribunal adjourned until to-mor- row, Tuesday, July 12, 1910, at 10 o'clock a. m.] 740 TWENTY-THIRD DAY: TUESDAY, JULY 12, 1910. The Tribunal met at 10 o'clock a. m. ARGUMENT OF MB. JOHN S. EWART, K. C., ON BEHALF OF GREAT BRITAIN. MR. EWART: Mr. President and gentlemen of the Tribunal: I in- tend to offer to the Tribunal some contributions — I hope helpful con- tributions— to the consideration of Questions 1,2, 5, and 7. But as the subject of bays is now prominently in the minds of the members of the Tribunal, I think it will be advisable that I should commence with Question 5. Upon that question, Sirs, the British Government has, during the whole controversy, had but one view. It has never seen any reason to depart from the idea that when the treaty said " three miles from bays," it meant exactly what it said — three miles from bays. In fact, the British Government has never been able to express that idea in any other language; and when they are giving their interpreta- ARGUMENT OF JOHN S. EWART. 1229 lion of the meaning of the words " three miles from bays," after hesitating for language in which to express it, they merely have to say — " three miles from bays." Now, Sirs, that contention of the British Government must not in any way be confused, with the headland theory which, as known in international law, was the peculiarly British idea that lines were to be drawn between headlands — even widely distant headlands — whether the intervening water formed a bay, or was a mere curvature in the shore. The position of the British Government has been completely mis- understood by the United States, and I find in their Counter-Case at p. 68 a wholly erroneous statement of what that position is. In fact, Sirs, we have had no theory; we have had an interpretation of the treaty, or, rather, we have merely said " there is the treaty." That has been spoken of by the United States as though it were the head- land theory ; and at p. 68 the Tribunal will find this statement : — " Under this headland theory Great Britain, instigated by the Province of Nova Scotia, contended with apparent reluctance that the three mile limit of exclusion for American fishing vessels should be measured from a line drawn across the outside portion of the bays, instead of from their shores, and that the bays referred to in the treaty comprised all the indentations of the non-treaty coasts, irre- spective of their width. In other words, under the headland theory wherever headlands could be found on the non-treaty coasts, re- gardless of their distance apart, a line connecting them was to serve as the base from which to measure the three mile limit of exclusion." Not a word, Sirs, is said there as to the intervening water being bays. But our whole contention is that, according to the words of the treaty, you do not draw lines from headlands irrespective of the character or conformation of the water in between, but from the headlands of bays. It may be said in reply to what I have urged, that this has not always been the view of the British Government, because in the case of the "Argus " a seizure was made, based upon the British view of the headland idea. That is perfectly true. The seizure was made upon that idea. But as soon as it was made it was repudiated by the British Government in a letter from the Right Honourable Lord Stanley to Governor Falkland, of Nova Scotia, in British Case Ap- pendix, at p. 151. That was a letter in which Lord Stanley an- nounced that the proposal of the British Government to open all the bays had been withdrawn. He urged, however, scrupulous observ- ance of the treaties, and went on to say— the eighth line from the bottom of the letter: — " The case of the 'Argus ' is an exemplification of my meaning— that " vessel having been seized by a provincial revenue cruizer, under 741 the plea of illegal encroachment, in a spot where she was not 1230 NORTH ATLANTIC COAST FISHERIES ARBITRATION. within three miles of the shore, and where there does not appear to have been any pretence for asserting that she was within any bay, or in unlawful propinquity to any bay on the coast of Nova Scotia. I transmit herewith to your Lordship the copy of the opin- ion delivered upon the case of the 'Argus ' by the Queen's Advocate, and have to direct your Lordship to adopt such measures as may appear to you to be expedient for affording reparation to the parties who have been injured in the transaction. Evidently the opinion of the law officers was taken ; evidently they said this headland theory is not something which is applicable to North American coasts; the treaty says nothing about that sort of thing; this seizure was not "within any bay or in unlawful propin- quity to any bay;" it is unjustifiable; and Lord Stanley directed reparation to be made for the wrong done. For some reason, unexplainable upon the material which is before the Tribunal, Governor Falkland does not seem to have acted upon those very definite instructions; and he seems to have allowed the case of the "Argus " to go to arbitration at the same time that the " Washington " went to arbitration before Mr. Bates and the others. Whether that was for the purpose merely of ascertaining the amount of the damages I cannot say. That probably was Governor Falk- land's idea, because one cannot imagine Governor Falkland acting so directly contrary to the instructions which he had received from the Colonial Office. But if Governor Falkland allowed the matter to go to the Tribunal merely for the purpose of assessment of damages, and so far exceeded his instructions, counsel, when the case got there, seems also to have exceeded his instructions and to have argued in justification of the seizure. That is immaterial. I said that the British Government had always taken one view, and that that was not the headland-theory view. It is immaterial what Governor Falkland did, or what counsel unauthorisedly did, before the Tribu- nal that was engaged in investigating that subject. Other seizures were made by a provincial cruiser in 1852 under Captain Dodd, the same man, I believe, who seized the' " Argus." He seems to have hkd the headland idea in his mind, and it will be observed from what I have read, that the " Argus " was seized not by an Imperial vessel but by a provincial vessel, and therefore not in pursuance of Admiralty instructions. Those other seizures in 1852 were repudiated by the Provincial Government and never came before the Imperial Government at all. It was not necessary. The Tribunal will therefore see that my state- ment remains unimpaired that the British Government has had but one view of this treaty from the commencement of the discussion until to-day, namely, that " within three miles of a bay " means — there is no other language to express it — within three miles of a bay. Now, Sirs, I have listened with great interest to Mr. Warren's very elaborate and very able argument, but I have heard only one ABGUMENT OF JOHN S. EWAKT. 1231 objection to that position or attitude taken by the British Govern- ment— I mean apart, of course, from the argument by which he sup- ports his own view. And that argument is based upon the practical impossibility of applying such a method of ascertaining what the treaty means. Mr. Warren has put in maps covered with suggestive red lines, and he asks the Tribunal: Which of those are you going to take? Well, Sirs, I have two answers to that. In the first place I think that if the members of the Tribunal will take any of those charts and look at almost any bay, they will find their minds at once coming to an opinion as to where the headlands are. If two or three are looking, one will say " It is here," almost at once, almost instantly, and very frequently there will be agreement amongst all those who are look- ing at the same map. Sometimes questions of doubt arise — it may be here or it may be there. But there is a very simple rule for deter- mining in case of doubt, which cannot be resolved in any other way, namely — take the shorter line. There is always a shorter line and a longer line. Very well. If you cannot agree upon that longer line, don't give it, take the shorter line. That is the first answer I have to make, and if the members of the Tribunal will take Mr. Warren's map, unembarrassed by all the red lines, and each separately mark down where they would draw those headland lines they will find not much disagreement. Where there is disagreement, then, if they will take the shorter line, they will have solved the difficulty that Mr. Warren has put to the Tribunal. But, Sirs, my second answer is that that difficulty, if it be one, and it is only one of fact, can be resolved either in the way I have sug- gested— or by a modality (of which we heard so much from Mr. Turner) which is often the complement of a treaty — a method, not of altering or reforming the treaty, but of carrying it out. It is a very proper word, for something which often is necessary. 742 And a further answer which I make is that this practical difficulty has never been sufficient to deter nations from mak- ing arrangements as to bays. If you will take the treaty between Great Britain and France in 1686, at p. 6 of the British Case Ap- pendix, you will there find a reciprocal agreement for abstention from fishing-- u in the havens, bays, creeks, roads, shoals or places, which the King of Great Britain possesses or shall hereafter possess in America." How are you going to find out what a "bay" is? That practical difficulty was not sufficient to prevent the making of that treaty. If that is a little too long ago, let us take the treaty between the United States and France in the United States Case Appendix, at p. 92, 92909°— S. Doc. 870, 61-3, vol 10 22 1232 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that is the treaty of 1778, in which you will find a treaty of very similar character to the one of 1686 that I have just referred to: — "the Most Christian King's subjects shall not fish in the havens, bays, creeks, roads, coasts or places which the said United States hold or shall hereafter hold ; and in like manner the subjects, people and inhabitants of the said United States shall not fish in the havens, bays, creeks, roads, coasts or places which the Most Christian King possesses or shall hereafter possess ; " If that is still too long ago, we will take one between the dates of our two treaties, namely, in 1794. The British Case Appendix, p. 23, the second paragraph of article 25 : — " Neither of the said parties shall permit the ships or goods belong- ing to the subjects or citizens of the other to be taken within cannon shot of the coast, nor in any of the bays, ports, or rivers of their ter- ritories, by ships of war or others having commissions from any Prince, Republic, or State whatever. But in case it should so hap- pen, the party whose territorial rights shall thus have been violated shall use his utmost endeavours," and so on. There we have again, Sirs, an arrangement as to bays, and no method prescribed in the treaty, at all events — plenty of methods outside — no method prescribed in the treaty for ascertaining what a bay is. Now, Sirs, at that time Delaware Bay no doubt was a bay, because Delaware Bay had been decided (upon the application of Great Britain, as against France) by the United States, to be a bay in 1793. Delaware Bay is included in that word " bays " in 1794, undoubt- edly, because the two parties had agreed upon that in the previous year, and Delaware Bay is more than 10 miles wide. The word " bays " then, at a date between the treaties of 1783 and 1818, meant something more than a 6-mile bay, something more than a 10-mile bay, but still something left undefined. Now, Sirs, in contrast with this constancy of the British Govern- ment's view of the true construction of this treaty, one turns to the various views from time to time held by the United States; and I think that as we go over them we shall find that they have never been able, except for a few years at a time, to hold any view; that they from time to time changed their view, sometimes coming back again to a discarded view; and that they have now acquired such a fa- cility in changing their views that, during the course of these pres- ent proceedings, and in the documents which they have presented as statements of their views to the Tribunal, you will find three not -only different but quite inconsistent views. At the outset, in 1824, the view of the United States seems to have agreed with that of Great Britain — that 3 miles from any bay meant ARGUMENT OF JOHN S. EWART. 1233 3 miles from any bay. The evidence of that is not very strong, and within that statement I do not include, now, the Bay of Fundy, about which I shall speak afterwards; but, so far as there is any evidence, it would appear that the United States took the same view as Great Britain has always taken. In 1839 came a period of doubt and indecision. The mackerel were running, and were of value on the colonial coasts, because they were disappearing from the United States coast. It thus became ad- visable that some method of getting to the fishing in the bays should be discovered. But when the question was distinctly put to the United States Government by its own citizens, as to what the con- struction of this treaty should be, the only reply which was given was to send a copy of the treaty. The question had been accom- panied with the statement that it was very necessary that 743 announcement should be made because of possible conflicts in the bays where disputes were going on between the fishermen ; and the reply which the United States Government gave was to send a copy of the treaty. Sirs, I think that the United States Government could not have done better. Anyone reading that treaty, as I humbly submit, will not be in doubt, until complicated with suggestions of territoriality, and things of that sort — will not be in doubt as to what "within 3 miles of a bay " means ; and if he is, he will not be in doubt as to the other word of the treaty, "on" any bay. That word has, perhaps, not been sufficiently brought to the attention of the Tribunal — not merely " within " 3 miles of any bay, but " on " any bay. Now, supposing these fishermen got that treaty, with a statement from the United States Government : " There is the limit of what you are entitled to." If they read it, they would at once say : " Why, the United States have renounced the right to fish on any bay." What meaning would they give to it ? Well it seems to me one mean- ing— not only that they could not fish " on " any bay, but they could not fish "within 3 miles of any bay." What meaning would they give to it? Were the fishermen to whom that intimation was sent familiar with the difficulties of the triangle or the complexities of international law? Does the United States Government really im- agine that the United States fishermen were going to work things out in that way ? No, Sir, they take the language of the treaty that the United States Government sent them, and they would understand it. In 1839, the same year in which the United States Government so acted, they sent Lieutenant Paine out to the fishing grounds, in order to investigate what was going on there. It is said in one of the United States documents that Lieutenant Paine was furnished with instructions showing the position of the United States. Those in- structions we have not the benefit of seeing. Evidently, from his 1234 NORTH ATLANTIC COAST FISHERIES ARBITRATION. report, they did not indicate that the United States had any view different from that of Great Britain, and in that report he said that he had found that the fishermen had an idea about this treaty. He said that the fishermen believed that they could fish within 3 miles of the coast; that they could fish in any bay, so long as they did not go within 3 miles of the coast. That report remained from 1839 to 1841, unacted upon. Notwithstanding what Mr. Thayer said, and what Mr. Levitt said (I shall refer to those statements afterwards) to the United States Government about the advisability of having some declared policy about this treaty, it remained until 1841 unacted upon; when Mr. Stevenson, the United States Ambassador at Lon- don, was directed to present the matter to the British Government; and the way in which he did it is most remarkable. He did not do it as a statement made by the United States, but he put it forward as an idea of the fishermen. He said : " The United States fishermen believe " so and so. Then, of course, he went on to sustain the idea of the fishermen. It will be observed that in this contention (which, for brevity, I may speak of as the " fishermen's contention," or the " fishermen's theory") the question of territoriality has no place whatever. It is a mere question of the construction of the treaty. Does the distance of 3 miles count from the bays, or from the shores of the bays? Territoriality has no place in that discussion whatever. Mr. Stevenson's letter remained unanswered, because the British Government seems to have assumed, for some reason that we are not able now to divine, that the view expressed in it was not going to be pressed; and the Colonial Secretary said to the Governor of Nova Scotia that the United States had " practically acquiesced " in the British view. I cannot, upon the material before the Tribunal, inform the Tri- bunal upon what the Colonial Secretary based that statement. Whether it was well founded or not at the time, this much is cer- tain— that the acquiescence had not taken such formal shape as to have enabled Great Britain afterwards to point to it as an acquies- cence, or settlement. It, therefore, must be taken not to have been an acquiescence of any formal character; and I put no stress upon it. In 1845 Mr. Everett put forward Mr. Stevenson's contention, and it was argued out with Lord Aberdeen; but, as the Tribunal will remember, Mr. Everett was quite unable to sustain, in argument, this fishermen's theory; and he admitted, in the course of his second let- ter, that it was reasonable that the headlands of bays should be joined, conceding, therefore, the validity of the British contention. I shall discuss this, afterwards, more at large, and try to meet Mr. Warren's argument with reference to it. I am merely giving a sum- mary at the present time. It seems to me, and I submit it with confi- ARGUMENT OF JOHN S. EWART. 1235 dence to the Tribunal, that Mr Everett's admission was an acceptance of the British view, accompanied by an attempt to distinguish 744 the case of the Bay of Fundy, and to withdraw it from the application of the general principle, the validity of which Mr. Everett admitted. We have therefore, from 1824, a seeming agreement — I put it no higher than that— of the United States with Great Britain, until 1841 and then we have the fishermen's idea, picked up by Mr. Paine upon the fishing-ground, adopted by Mr. Stevenson, and afterward? by Mr. Everett, and finally abandoned by Mr. Everett. That situa- tion,— the assertion of a principle on the part of Great Britain, and the attempt by Mr. Everett to withdraw the Bay of Fundy from the application of that principle, pointed to the possibility of an ar- rangement. The Bay of Fundy was, of all the bays, the one of greatest use to the United States, and Lord Aberdeen, seeing a way out of the difficulty, said that he would " relax," to use his own words, the application of the principle to the Bay of Fundy. He did so be- cause of the admission by Mr. Everett of the validity of the general principle. He did not say so to Mr. Everett. If he had the case would not be now before the Tribunal. But that he did admit or concede the Bay of Fundy to the United States, because of the ad- mission made by Mr. Everett is very clear, and I shall point it out when I come to a more detailed statement of the facts of the case. That arrangement — *l am almost justified in using the word "ar- rangement " because Sabine uses it ; for myself I would not put it as high as an arrangement, and so I shall not use the word — but that sort of tacit understanding, an admission of the general principle upon the one hand, and a concession of its inapplicability to the principal bay that the United States were interested in on the other hand, remained in operation until 1853, when it was repudiated. But its operation may, perhaps, be said to have continued on the part of Great Britain until 1854, when the reciprocity treaty, which lasted for twelve years afterwards, supervened and put an end, of course, to all arrangements, and an end to all contentions. During the period between 1845 and 1854 the Webster incident took place — in 1852. The determination of Great Britain to exer- cise greater vigilance in the enforcement of her views upon the treaty grounds, unfortunately synchronised with the approach of a Presi- dential election ; and what happened is what always happens when you touch a match to a barrel of gunpowder — a tremendous explo- sion. The United States was alive with excitement upon this ques- tion— because Mr. Webster had published a notice on the 19th July indicating his agreement — I do not think I am putting it too strongly when I say that — indicating his agreement with the view of the British Government, and saying that the difficulty that the United 1236 NORTH ATLANTIC COAST FISHERIES ARBITRATION. States fishermen found themselves in was due to an "oversight" — his word — on the part of the United States negotiators in 1818. That notice, published on the eve of a Presidential election, was taken advantage of, very naturally, by the opponents of the Fillmore ad- ministration, in which Mr. Webster was Secretary of State. There was a tremendous, as Mr. Webster speaks of it, " flare-up " in the Senate. The newspapers were full of it. Was the administration " going to give away bays to which we are rightfully entitled ? " And eiforts were made to calm this excitement, and to get rid of the difficulty, by negotiations for a settlement of the whole subject, in the way afterwards accomplished by the reciprocity treaty. That was Mr. Webster's way out of the difficulty. He saw no other way. He tried his hand at a memorandum, but he could make nothing of it ; and he tried by negotiation to get rid of the difficulty, which -he could see no other way of getting rid of — by bringing about a recip- rocal trade arrangement, including this difficult subject of these fisheries. We then have here, not merely a concession from Mr. Everett in 1845, not merely a tacit agreement or understanding — a better word — from 1845 to 1852 — but we have a man with such an intellect as Daniel Webster's, doing his best for his country, under the pres- sure of a Presidential election, to formulate some theory upon which he can contend that 3 miles from a bay does not mean 3 miles from a bay; and Daniel Webster could not do it.' The result of the elections was to put Mr. Marcy in the place which had been vacated by Mr. Webster's death. And the Government seems to have re-adopted the fishermen's idea. It was not necessary at the time to discuss the question with Great Britain, and no discus- sion seems to have taken place. The treaty of 1854 came into opera- tion during the next year. So now we are back to the fishermen's idea again in 1853, having come through the cycle. That was the situation — because the reciprocity treaty, as we know, was continued by licenses down to 1870, and then the treaty of 1871 came into operation, which opened all bays to every- 745 body, and made it unnecessary to discuss this question — so that was the situation, when in 1877 it became necessary for the United States to formulate some position with reference to the construction of this treaty, and to try to prove in some way or other that 3 miles from a bay did not mean 3 miles from a bay. It was necessary, because of the proceedings at Halifax, in order to ascer- tain the amount of compensation that was to be paid by the United States to Great Britain. And the United States wished to argue that they had a right to all these bays, with the exception of 3 miles ABGUMENT OF JOHN S. EWABT. 1237 from the shore, without the benefit of the treaty of 1871 ; that they had had that before, and therefore that they should not have to pay for that water under the terms of the 1871 treaty. It became necessary for them, therefore, to formulate some argu- ment or position upon which they could support that contention. They had all the difficulties of this fishermen's theory, natural diffi- culties, and difficulties because of Mr. Everett's concession and Mr. Webster's opinion. But still they had to do something. And they abandoned the fishermen's idea and took up the territorial idea — the international idea. That old fishermen's idea, we may say in parting with it for the moment — because we shall come back to it again ; the United States will have us back to it again later on — but in parting with it for the moment I just wish to point out the great difficulty associated with it, and which no doubt determined the United States draftsman of their documents at Halifax to abandon it. Of course, the first thing is that it absolutely contradicts the treaty — that the treaty does not say 3 miles from the shores of the bays, but 3 miles from the bays ; and the only argument that had been advanced in support of it was that flimsy idea constructed upon the shelter theory — what I may speak of as the " shelter theory." They took the words of the treaty, and said that the proviso clause admit- ted American fishermen to " enter such bays or harbours for the purpose of shelter and repairing damages or purchasing wood and obtaining water." SIR CHARLES FITZPATRICK : To what page are you referring ? MR. EWART: I was taking the treaty from p. 25 of the United States Case Appendix. I use it there because, conveniently, I find the 1783 treaty upon one side of the page, and the 1818 treaty upon the other side of the same page. The argument was based upon the use of the words " such bays or harbours for the purpose of shelter," &c. It was that the bays which had been renounced were of the same character as those bays which might be entered ; and, therefore, that the bays that were renounced were only such bays as would afford shelter, facilities for repairing damages, and obtaining water. That argument, the Tribunal will find, has been put forward on various occasions — by Mr. Everett in the British Case Appendix, p. 144; by Senator Cass in the British Case Appendix, p. 160 ; by Senator Davis in the British Case Appen- dix, p. 167 ; by Sabine— who, by the bye, never heard of territorial- ity_in the United States Case Appendix, p. 1273 ; and finally by Mr. Webster in United States Case Appendix, at p. 530. If these men had only had this territorial idea, they would not have had recourse to this shelter argument, which, I think, without disrespect to it, I may call, as we do in Canada, a desperation argument. I believe in 1238 NORTH ATLANTIC COAST FISHERIES ARBITRATION. France they call it a " faute de mieux." In Canada we call it a des- peration argument because it is merely the outcome of desperation. There is very little else to be said for it. Consider the way Mr. Webster puts it; and I take Mr. Webster's way because it is put as well there, perhaps, as anywhere else — at p. 530 of the United States Case Appendix : — " In the Proviso the word occurs in this connection, to wit — " ' That the American Fishermen shall be admitted to enter such bays and harbors for the purpose of shelter & of repairing damage therein, of purchasing wood, & of obtaining water, and for no other purpose whatever.' " The signification of the word bay therefore, is known by its con- comitants. It is a bay where shelter is to be had, where damages may be repaired, and where wood and water may be obtained." The great difficulty about that, of course, is that if a bay must have all those four qualifications, a great many 6-mile bays cannot 746 qualify as bays; because the bay must be a place where shelter is to be had (and some 6-mile bays will not give that any more than larger bays — it depends altogether upon its shape and the way the wind is blowing) ; it must be a place where damages may be re- paired; it must be a place where wood may be purchased (and there- fore there must be at least one man living there, and there are lots of bays where there are no people living) ; and it must be a place where water may be obtained (that, of course, means fresh water, and there are lots of bays where there is no fresh water). And if it is said that Mr. Webster did not mean that it must be a place where all these four things may be obtained, but a place where any one of them may be obtained, then every bay on those coasts will qualify as a bay ; every one of them. Every one of them has one of those quali- fications. Very few of them, perhaps, have all four. I do not dwell upon that argument, because it was a bad argument, used to support a bad theory. If I show that the theory was sup- ported only by such an argument as that, I think it helps me to show that the theory was a bad one. This fishermen's theory, however, had something that could be said in its favour, and that was that in the correspondence, and in other places, could be found phrases in which people spoke of " 3 miles from the shore." Lord Bathurst is said to have used that expression — I will come to that afterwards — and a number of places are quoted by the United States in which similar phraseology occurs. That was something, at all events. It was very little, because it was mere phraseology, used for the purpose of brevity, as one of the United States officials (Mr. Fish, I think) said afterwards when he used it himself. It is a mere phrase, used for the purpose of brevity, and is nothing upon which can be placed an argument. But there was, at AEGUMENT OF JOHN S. EWART. 1239 all events, that much — something upon which you could argue that the British Government had admitted that United States fishermen could go within 3 miles of the shore. That was not thought to be sufficient, and when the United States were drawing a statement of their position for the Halifax Com- mission, they evidently did not think that that argument was quite good enough; and they abandoned the fishermen's theory and took up the territorial view. The territorial view, of course, is one in which the fishermen's idea has no place. When you come to the territorial view, you are not at all interested in the view that the 3-mile line follows the sinuosities of the coast. You are now arguing that it does not. You are argu- ing that it follows the coast where it is unindented, and that it cuts across territorial bays where there are such. And so it is quite con- tradictory of the fishermen's theory. The fishermen's theory has got nothing to do with territoriality. You merely follow the coast, ter- ritorial or non-territorial; it does not make the slightest difference. Whenever you are 3 miles from the coast, you may fish, and when- ever you are inside of that distance, you may not. Take up the other idea, territoriality, and you get away from the fishermen's construc- tion of the treaty altogether. The question is then : " What is a ter- ritorial bay ? " Wherever you get it, cut across it. You do not follow the sinuosities of the coast, according to the fishermen's idea. So, Sirs, the United States draftsmen of the Halifax proceedings abandoned the fishermen's idea, and the}7 took up the territorial idea. I refer to British Case Appendix, at p. 256, at the foot of the page, where I read an extract from the answer of the United States of America to the case of Her Britannic Majesty's Government: — " For the purposes of fishing, the territorial waters of every coun- try along the sea-coast extend three miles from low-water mark ; and beyond is the open ocean, free to all. In the case of bays and gulfs, such only are territorial waters as do not exceed six miles in width at the mouth, upon a straight line measured from headland to head- land. All larger bodies of water, connected with the open sea, form a part of it. And wherever the mouth of a bay, gulf, or inlet exceeds the maximum width of six miles at its mouth, and so loses the char- acter of territorial or inland waters, the jurisdictional or proprietary line for the purpose of excluding foreigners from fishing is measured along the shore of the bay, according to its sinuosities, and the limit of exclusion is three miles from low-water mark." The United States had abandoned an unsustainable theory because it was unsustainable: and they took up one which, to my mind, Sirs, is complicated with difficulties far greater than those that attend the fishermen's theory. In the fishermen's theory you are confronted only with one point — the construction of the treaty : " Does the 3-mile line follow the sinuosities of the coast, or does it cut across the bays ? " 1240 NORTH ATLANTIC COAST FISHERIES ARBITRATION. There is merely one question — the construction of the treaty. Of course the construction of the treaty is terribly against that conten- tion ; but you are bothered with the one point only. The territorial theory, however, has to meet two great diffi- 747 culties. In the first place you must prove that when the treaty spoke of a bay it meant a territorial bay. That is rather formidable — something before which counsel might very well hesi- tate. When it says " any bay " you must strike out " any " and put in " territorial." And that is difficult. But that is not the only difficulty. Another is the impossibility of proving that, according to international law, a territorial bay cannot be more than 6 miles wide. That is formidable. I have not got Mr. Warren's written Argument yet, but we listened to Senator Turner, and we have investigated the subject to some extent, and I think I am not wrong in saying that if anybody is going to undertake to prove that terri- torial bays were only such bodies of water as were not greater than G miles across their headlands, in 1818, or in 1783, or at the present time, he has a task that I, for one, would not like to have to cope with, before this Tribunal or before anybody. These. Sirs, are the two difficulties involved in this new territorial idea — in the first place, changing the treaty; in the second place, proving from international law something that it is quite impossible to prove from international law. And I think I can say that no jurist — I do not need to weigh or number the jurists before 1818 and 1783 — but I say that no jurist prior to those dates had laid down as law that territorial " bays " must be less than 6 miles wide. If one can be found (and I shall read Mr. Warren's Argument with interest in order to ascertain what his investigations have discovered), I will still put to him the question which Mr. Turner said was the crucial one : " What do the nations say ? " And I ask where was there any nation in 1783 or in 1818 — where is there any nation now — that says its territorial bays (I do not care what it says about other people's bays), that its territorial bays are limited to 6 miles? Certainly Sirs, the United States have never said so. They have not a bay, or anything that looks like a bay, that is not a bay — not one. Although they have not, they think there are lots of them a little further north. That was the legal difficulty raised by the territorial idea, but practically it produced other difficulties. On the coast-line there might be a certain conformation of water 6 miles wide — I mean out on the open coast-line. They would say that was a bay. I am not speaking now of Mr. Warren's new idea, something we never heard of until he spoke. I am speaking of the United States idea in 1877, when you had to tatas a* bay as at the mouth. On that idea, I say, you might have a body of water on the coast 6 miles wide that would be a bay. Go down to the other end of a larger body of water — for ARGUMENT OF JOHN S. EWART, 1241 instance, the Bay of Fundy — and you might have precisely the same looking body of water, and it would not be a bay ; and yet the Bay of Fundy, according to the United States, is open sea. Six miles would constitute a bay on the open sea ; down at the end of what is called a bay the same water would not constitute a bay. I hope I make my- self clear. The United States took the position, not as Mr. Warren does now but as the United States did at Halifax, and as the United States does in its printed Argument, that where there are bays not more than 6 miles wide at the " entrance " — the word is at the " mouth " in the Halifax proceedings, at the "entrance" in the United States Argument — then you draw a line across them, and all larger bays are open sea; and when you go down them you may find the same shaped body of water at the end that you would on the coast; but that is not a bay. That was one great practical difficulty. THE PRESIDENT: If I understand you right, it was in consequence of that that we have sometimes heard of bays in the Bay of Fundy, and according to this construction the bays in the Bay of Fundy would not be bays? MR. EWART : No, Sir, they would not be bays, because it is a ques- tion of what it is at the mouth or entrance. Of course, I am not talking of Mr. Warren's new idea; I will come to that afterwards. Then another objection to this Halifax idea, as I may speak of it shortly, was that, according to Mr. Warren's submission, it would really give Great Britain water that was non-territorial. I do not agree to that, but that is Mr. Warren's contention; and after all, as the United States Argument itself puts it, it was a " rule of thumb," not a rule of international law, not a legal construction of the words of the treaty. The United States Argument does not speak of it as such ; it speaks of it as a rule of thumb. I did not know what was meant by the expression until Mr. Warren explained the difficulties of the " triangle " and the great trouble that the United States fisher- men would have in ascertaining exactly where this apex was, and where the curves of the two sides were precisely located. 748 Now, Sirs, these were the twro positions that had been taken by the United States when they had to file their first document in the present proceeding. They had the old "fishermen" idea — raised by the fishermen, adopted by the United States, abandoned by Mr. Evarts. discarded by Mr. Webster; and they had this territorial idea that had been put forward in the Halifax proceeding, and that had also (I forgot to mention the fact) been adopted in the United States Senate report which the Tribunal will find in the British Case Appendix at p. 390. The origin of the idea must be attributed to Senator Soule, whose speech is reported in the British Case Appendix 1242 NORTH ATLANTIC COAST FISHERIES ARBITRATION. at pp. 174 and 175. That speech was before Mr. Webster when he wrote his memorandum, and we may judge of what Mr. Webster thought of the territorial idea, elaborated as it was with considerable learning by Senator Soule a couple of weeks before, by the fact that Mr. Webster does not say a word about it. Now, Sirs, it is interesting to see what the United States did as between these two conflicting positions, when they formulated their Case in the present arbitration. Looking over the history of what had occurred, and observing that this "fishermen" idea had really been discarded by Mr. Evarts, and that the United States, as the United States, had formulated the territorial idea in the Halifax proceedings, we thought that it was that idea that we should have to contend against, and we accordingly quoted it in our Case as indi- cating the position of the United States. We quoted the statement that I have read from the Halifax proceeding, we quoted an extract from the report of the Senate Committee, and we preceded those quotations with the following statement — to be found in the British Case, p. 106 :— "The contention of the United States, so far as it is at present known to His Majesty's Government, is to be found in its 'answer' laid before the Halifax Commission in 1877. It is as follows: — Then we quoted it. " It is stated in the report of the Senate Committee of 1877 in the following terms : — And then we quoted it and continued as follows : — " The contention in effect is that in 1818 when the convention was entered into, no nation could claim territorial rights over bays, creeks, or harbours on its coasts, if the lines between the headlands of such waters were more than 6 marine miles in length." We went on to attack the two positions involved in that statement, namely, whether the treaty can be read as meaning " territorial bays," and secondly, whether " territorial bays " are only 6 mile bays. All our work seemed to be wasted, because when the United States Case came in we found that they were away back to the abandoned " fishermen " idea. I refer to the United States Case, at p. 248, para- graph 5: — " The position of the United States with reference to Question 5 is that the distance of ' three marine miles of any of the coasts, bays, creeks, or harbors ' referred to in the said Article, must be measured from low water mark following the indentations of the coast; and the United States requests the Tribunal to answer and decide this Question accordingly. So that if the Tribunal answers the question as the United States requested in its Case, it will adopt the " fishermen " theory, and not ARGUMENT OF JOHN S. EWABT. 1243 at all the theory advanced in its printed Argument, or the theory advanced by Mr. Warren. The United States Case supported its contention, as one would have expected. They said that the British Government had always agreed to this. It was not at all probable that the British Govern- ment had ever agreed to that theory, that theory which is so plainly contradictory of the treaty, but the United States was able to quote some of these detached phrases, in some of the letters, about "'three miles from the coast." Lord Bathurst had said something about 3 miles from the coast. JUDGE GRAY: Do you mean " coast " or " shore?" MR. EWART: Sometimes one, and sometimes the other. That sort of expression. They were able to quote expressions of that sort, and so they argued that we had never claimed more than 3 miles from the shore. Of course if we did not do so, we were always claiming something less than our rights as now admitted by the United States ; because according to the present United States contention, we are entitled to more than that. 749 At pp. 65, 66 and 76 of this United States Case, the Tribunal will find the arguments by which they supported this " fisher- man " theory. To those pages I will add also pp. 77 and 95. We of course were very much surprised at the reversion to the " fishermen " idea, but in our Counter-Case we attacked this new idea — new idea so far as the pleadings are concerned, although a very old one as we now know — and in our Counter-Case at p. 43 we stated the new contention of the United States : — " The contention of the Government of the United States, on the other hand, is that the 3-mile limit must be measured from low water mark following the indentations of the coast of each bay. In the proceedings before the Halifax Commission in 1877 the assertion of the United States was different. It was then contended that the 3 miles ought to be measured from the shore only in cases of bays which exceeded " ' six miles in width at the mouth upon a straight line measured from headland to headland,' " and the same ground was taken in the Report of the Committee of the Senate on Foreign Affairs in 1888. This argument has been dis- cussed in the British Case, and the observations which are now pre- sented to the Tribunal will be supplementary to the arguments pre- sented in the British Case, and directed more particularly to the new and different case now put forward on behalf of the United States." And so we went on, and argued, as best we could, against this view. The United States Counter-Case left us in a good deal of doubt. It seemed to re-affirm the " fishermen " theory, but it declared that we had put forward territoriality, and that they took issue upon the question of territoriality. We had only put forward territoriality in 1244 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the sense that we were meeting the United States contention of ter- ritoriality which had been set up at Halifax, and in the Senate report. We thought that was to be adhered to, and in our Case we had attacked it. But the United States Counter-Case suggested that it was we who had advanced it, and they took issue with us upon it — a most peculiar way of turning round the issue. At pp. 68 and 69 of the United States Counter-Case the Tribunal will see stated at length what I mean. I will read only a few words under the heading: — " The Reply of the United States. " On the issue thus presented by Great Britain, the United States maintains, as it has maintained ever since the question was raised under the headland theory, that, at the time this treaty was entered into, none of the waters on the non-treaty coasts more than three miles from shore were regarded as territorial waters of Great Britain," and so on. " On the issue thus presented by Great Britain." It seemed as though if we had not said anything about territoriality, if we had only known they were going to rely upon this " fishermen " idea, and confined ourselves to that, we would not have heard anything about territoriality at all. It is because we raised it, the United States say, that they now take it up. Having taken it up they rather liked it, and in their Argument they put it forward as really the thing we had to talk about and fight over. And, I call attention to the fact that in every place in their Argu- ment, where they define their position, it is always that a line is to be drawn across the " entrance " of the bay ; never, as Mr. Warren has it, down at the foot of the bay, or down at several places at the foot of the bay. I refer to p. 145 of the United States Argument, in the middle of the page: — "A bay, creek, or harbor of His Britannic Majesty's dominions in America was, therefore, well understood to be a body of water not over six marine miles in width at its entrance." Then again at p. 146, United States Argument, a little below the middle of the page : — "The word 'coasts' comprehended the coast line of all the great bays; and, of course, the three miles could not be measured from the inner coast line of bays, creeks, or harbors six marine miles or less in width, for the three-mile line drawn across their entrances from the opposite shores closed such bays, irrespective of their inner extent." Then at the foot of that same p. 146 : — "A line following the sinuosities of the coasts at a distance of three marine miles seaward would not enter bays, creeks, or harbors 750 six marine miles or less in width at their entrances — that is, bays, creeks, or harbors 'within the exclusive British jurisdic- ARGUMENT OP JOHN S. EWABT. 1245 tion ' ; and therefore the three mile line was to be drawn seaward from such waters as though the shore-line continued across their entrances." Then at p. 148 at the top of the page : — " The bays within the three-mile limit are bays of ' His Britannic Majesty's Dominions,' and the line drawn across the entrances to such bays is for the purposes of measurement considered as the shore line." Then at p. 198, at the foot of the page, last paragraph : — " The United States contends that the intention of the negotiators, the remedy sought, the practical difficulties to be overcome, and the words of the Treaty, all lead to the conclusion that a ' bay of His Britannic Majesty's Dominions in America ' was a bay lying within the three-mile line, following the sinuosities of all the non-treaty coasts ; and that the three-mile distance was to be measured seaward from such bays as though the lines drawn from the opposite shores across their entrances were continuations of the shore-line." Now, Sirs, Mr. Warren takes a perfectly new view. SIR CHARLES FITZPATRICK: Before you leave this, would you tell me, if it is not inconvenient for you to do it now, what is the practical difference in effect between the application of what you call the " fishermen " theory and the " territorial " theory ? In the result what would be the practical difference of the application of these two theories? MR. EWART: The difference would be very great if a territorial bay is a large bay. The difference would not be so great if the terri- torial bay is only a 6-mile bay. But, as the question is, what is the difference between the " fishermen " theory, and the " territorial," I must say the difference varies with one's view of what " terri- torial " is. SIR CHARLES FITZPATRICK : If you limit territoriality to the 6-mile bay? MR. EWART: It is not very great. I think it is greater than Mr. Warren shows upon his diagram except in the particular kind of a bay that Mr. Warren supposes, and if one supposes another kind of a bay one will find a greater difference; but, after all, the difference in water-area is not so very great. It is the difference, however, be- tween carrying out a " principle " and applying a mere rule of thumb that the negotiators are supposed to have had in view, and which the United States now asks the Tribunal to dignify as a declaration of the meaning of this treaty. I am not using that " rule of thumb " in a contemptuous way at all. I am merely quoting from the United States Argument at p. 146, near the foot of the page. - ••*,.,- " Such bays, creeks, or harbors, necessarily lying landward of the three-mile line, were ' bays, creeks, or harbors of his Britannic 1246 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Majesty's Dominions in America '; and as to them the plenipoten- tiaries provided a simple rule of thumb for the guidance of American fishing vessels." We really get away from territoriality, and, as Mr. Warren said, you get out into non-territorial water by this rule of thumb, and get away from the idea of strict construction of the treaty. JUDGE GRAY: I suppose, Mr. Ewart, and you will pardon me for trying to follow you, the so-called " fishermen " theory was that they might fish anywhere within 3 miles of the shore? MR. EWART: Yes. JUDGE GRAY. On the open coast, or following into a bay, pro- vided they fished outside of a line 3 miles from the shore of the bay ? MR. EWART: Yes. JUDGE GRAY: But when you came to a bay that was only 6 miles at its mouth between headlands, even if that bay afterwards widened out into an extended water that was say 10 miles wide, which would admit of a fisherman plying his calling without going within 3 miles of the shore of the bay, yet to get there he would have to pass through a space of water that was 3 miles from one shore or the other, and, therefore, within territorial waters ? 751 MR. EWART: Yes. JUDGE GRAY: Now does not the one theory just supplant the other? MR. P^WART: If the question of the honourable Arbitrator is as to what the fishermen understood. JUDGE GRAY: Did they understand that where there was a bay 6 miles at its entrance, at the mouth, and that it widened out to 10 miles inside, that they might sail through the territorial water at the mouth, in order to get into the bay where they might fish 3 miles from shore ? MR. EWART: Really, Sir, I do not know what the fishermen thought. JUDGE GRAY : I wanted to know what you thought about the " fish- ermen " theory. MR. EWART: I am only giving the " fishermen " theory from what they said, and they did not enlighten us upon that point. What they said was, that they could not fish anywhere less than 3 miles from the shore. If you apply that construction strictly, which I would not be inclined to do, of course it would apply to the case which the honourable Arbitrator has put ; but I do not know what they would have thought of it, I am sure. Now, Mr. Warren has been impressed with the great difficulty of the territorial theory as put forward in the Argument, and this difficulty of the triangle, and of giving up the triangle when we were not entitled to it, and, particularly, as to the difficulty of the triangle from a fisherman's point of view. And he attributes to the negotia- tors a desire to rid the fishermen of the difficulty. He suggests that ARGUMENT OF JOHN S. EWART. 1247 the negotiators saw it, and wanted to get rid of it. There is nothing anywhere to suggest that the negotiators were thinking of the diffi- culties of this little 3.98 miles that Mr. Warren says is the limit of it; there is nothing to indicate that at all. The negotiators were think- ing of something much wider and much more important than that. But Mr. Warren suggests that in order to get rid of the difficulty of the triangle you are to carry the idea down into the end of the bays. On the Halifax idea, and the idea of the United States Argument, you would have all the difficulties with the triangle in a bay a little over 6 miles in width. A 6-mile bay is to be closed; then you draw a line 3 miles from that and there is no triangle. But, on the Halifax idea, and the United States Argument idea, you do not close a 6£- mile bay. In that case you follow the sinuosities of the shore, and there is the same triangle. You have all the difficulties of a 6^-mile bay that the negotiators were trying to get rid of — in fact, giving up, as Mr. Warren says, non-territorial water to Great Britain to get rid of them. Yet, they did not get rid of difficulties in the case of 6J, or 7, or 8-mile bays, that Mr. Warren says they desired to get rid of. To effectuate this, he proposes to carry his lines to the end of the large bays — no matter what width they are— and wherever the distance between the shores diminishes to 6 miles he draws a line across from shore to shore, and another 3 miles out from there and thus gets rid of all triangles. That is his suggestion. I quote from Mr. Warren's typewritten argu- ment at the middle of p. 3651 [p. 606] :— " THE PRESIDENT : I do not quite understand it. Will you be so kind as to give it in a little more explicit way ? ' " MR. WARREN : Your question, Mr. President, was this : As to whether or not the triangle about which I have been speaking was a part of the territorial waters of Great Britain, in respect of fishing, under the terms of the treaty. " THE PRESIDENT : Yes, that was the first question. " MR. WARREN : Then answering that question I would say : It certainly was. Now, the second question was, Whether or not there were not points or places within that triangle which would be more than three miles from shore. " THE PRESIDENT : Yes. " MR. WARREN : Assuredly ; any point within that triangle would be outside. If the President pleases, we have a chart — " THE PRESIDENT : A chart would be very useful. 752 " MR. WARREN : Which we claim to be somewhat more elab- orate than the chart submitted by counsel for Great Britain, but, using temporarily the chart that was submitted, in the absence of the other chart, I will answer the President's question from the one furnished by counsel for Great Britain. " Any place within that triangle which was outside of the segment of the circles described by a radius three miles long, swung from the opposite shores, would be beyond three miles from shore; but, the 92909°— S. Doc. 870, 61-3, vol 10 23 1248 NORTH ATLANTIC COAST FISHERIES ARBITRATION. reason that the negotiators for the United States stipulated that that water should be the territorial water of Great Britain, in respect of these fisheries, was because if they had not a fisherman would have had nothing to guide him in keeping away from the shore," And the negotiators gave up some non-territorial water for this reason. " and when he reached a bay he might have gone in until he touched the six-mile line across, and then if he went one inch over he would have been in the exclusive waters of Great Britain, and a difficulty and a complication would have occurred. Therefore, in order to avoid that complication and difficulty, they laid down that rule which Professor Westlake at page 187 of his volume on International Law says is now the rule. He states it thus: " ' The line drawn from shore to shore at the part where, in ap- proaching from the open sea, the width first contracts to that men- tioned, will take the place of the line of low water, and the littoral sea belonging to the state will be measured outwards from that line to the distance, three miles or more, proper to the state.' " THE PRESIDENT: You are quoting now the discussion between Mr. Warren and myself. Therefore, I feel compelled to confess that when I asked that question of Mr. Warren I was, I think, under the in- fluence of a misunderstanding. I had in view the drawing submitted by Sir. Robert Finlay and the drawing of the Institut Annuaire de Droit International by Sir Thomas Barclay. In both drawings there is a straight line drawn parallel to the 6-mile line. The 6-mile line connects both shores and to this 6-mile line there is drawn a straight parallel 3 miles outside towards the sea. If one construes the triangle in that way there will be spaces in the triangle a greater distance from the bay than 3 miles. Under this impression I asked the question of Mr. Warren whether there were any places in his triangle at a greater distance not only from the shores but also from the bays than 3 miles. But, afterwards, Mr. Warren submitted his chart and the triangle as shown on his chart differs in one point from the triangle of Sir Robert Finlay. He does not draw a straight line parallel to the line which joins both coasts, but he draws his line with a compass and in drawing the line with a compass he gets at a triangle that is not con- fined outside to the sea by a straight line, but by a segment of the circle and in that way he obviates the difficulty of having places in the triangle at a greater distance than 3 miles from the bay. He calls the last point in the bay the apex, and I believe there is no point in this triangle with the circle drawn towards the open sea, which is a greater distance than 3 miles from the apex. I felt obliged to admit that, because I am under the impression that I put my question to Mr. Warren under another supposition than that which he had in mind. I supposed a triangle constructed in the form of that shown by Sir Robert Finlay and Sir Thomas Barclay while he had another triangle in view, and, therefore, the objection I made to the triangle ARGUMENT OF JOHN S. EWABT. 1249 at that moment does not refer to the triangle which Mr. Warren sub- mitted afterwards to us. MR. EWART: The triangle that Mr. Warren draws, I understand him to say, and I think I understand him correctly, is more than 3 miles from the shore. THE PRESIDENT: Yes, certainly from the shore. I would think that the spaces in this triangle are not at greater distance from the bay than 3 miles if you consider the apex still as a point of the bay. MR. EWART: No, Sir, it would all be within 3 miles from the bay, but more than 3 miles from the shore. THE PRESIDENT : More than 3 miles from the shore, of course. MR. EWART: I continue to quote from Mr. Warren, commencing where I left off at the top of p. 3653 [p. 606] :— " THE PRESIDENT : But, according to the words of the renunciatory clause of the treaty, would American fishermen be excluded from fishing in this triangle ? " That is non-territorial water, according to Mr. Warren. " MR. WARREN : Yes, Mr. President. 753 " THE PRESIDENT : I ask only for information. Do you not make too great a concession to Great Britain in doing so? " MR. WARREN : We made it. " THE PRESIDENT : A concession beyond the words of the treaty ? " MR. WARREN : No, we did not make a concession beyond the words of the treaty. We made a concession by the words of the treaty, because the treaty says that they should not be allowed to take, dry or cure fish on or within three marine miles of any of the coasts, bays, harbours or creeks of His Britannic Majesty's dominions." Now, the trangle is got rid of, but it seems to me that Mr. Warren has to encounter a still greater difficulty than if he had adhered to the position assumed at Halifax and in the United States Argument. Mr. Warren's contention is that whenever, coming from opposite directions, the coast narrows down to 6 miles, you draw a line across the water at that point and measure the 3 miles from it. But Mr. Warren must make a distinction. Supposing that these coast lines are coming from opposite directions, not into a bay, but are coming into something of a curvature, more or less shallow, of the shore, and that they come to a place where is is only 6 miles across. In such a case Mr. Warren would not draw a line across the curvature, because he would say that it is not a bay. When you go down into a bay, however — and he spoke of it in that way — you do draw the line across at the specified point. So that, in order to find whether you are to draw the line across, you must first find out whether you are in a bay or not. But if you know that it is a bay, there is -an end to the enquiry, as far as the Tribunal is concerned — because the ques- tion is: What is a bay? How is Mr. Warren to decide what is a bay? He looks at the map, finds a bay. and says: "You go down 1250 NORTH ATLANTIC COAST FISHERIES ARBITRATION. this bay, and wherever you come to a place where it is only 6 miles across, you draw a line." How does he know it is a bay? He looks at the map, and he finds something on the map which is not a bay, something which is a mere curvature in the shore, and he declines to draw his line. Why? — because it is not a bay. But he has to say first whether it is a hay or not. If it is a bay, he draws his line; and if it is not. he does not. So, I say that in order to ascertain whether he is to draw his line or not, he has to decide the question which we have at issue. Not merely that, but a still further difficulty con- fronts Mr. Warren's new theory, and it is that he divides bays into parts, and he says that one end is a bay and that the other is not. For instance, take the Bay of Chaleur. I had always called the Bay of Chaleur, the Bay of Chaleur, but Mr. Warren says: No, it is not the Bay of Chaleur until you come to 6 miles from the inner end; then it is a bay, and, being a bay, you draw your 6-mile line across it. The construction of the treaty according to that theory, is that you do not draw a line 3 miles from the bay, but you draw a line 3 miles from a part of the bay. If that is what the nego- tiators meant, I am inclined to think that there would have been some traces of it in the language which they employed to express their idea. Now, Sir, having, as I hope, fairly stated, in so far as I am able to do it, the views held by the United States, I think the Tribunal will agree that I was not inaccurate when I said that within the last nine months we have had three separate and inconsistent views ad- vanced by the United States — the fishermen's theory in the Case; the idea of territorial bays and a line drawn across the entrance in the Argument; and Mr. Warren's idea that you draw a line, not across the entrance, but wherever the bays converge to such an extent that you get a distance of 6 miles between the shores. I pass on now, before presenting my own view of the facts, to deal with the principal arguments which have been advanced by Mr. War- ren, and upon which he seems most strongly to rely, in order that, having, as I hope to, displaced these arguments, I may then go on almost uninterruptedly with a statement of the case as it presents itself to my mind. And, Sirs, at the outset, I admit that there is one line of statement- — I cannot properly call it argument — which I cannot meet, and that is the appeal based upon the laxity of the British Government in enforcing its view of the treaty. If it be the fact that this is an argument capable of affecting the decision of this case, I might as well at once cease speaking. For I admit that I cannot answer it — so far as it relates to matter of fact. I can say, and I do say, that it is not an argument, but if I thought the Tribunal, or any member of the Tribunal, took it as an argument and would give any effect ARGUMENT OF JOHN 9. EWART. 1251 to it, I should enter upon the task imposed upon me with a feeling of great depression, not merely as to the possibility of the success of my advocacy, but as to the success of international arbitration; for I feel very strongly that if this Tribunal should in any way 754 indicate that such a line of argument could have any effect upon the mind of the Tribunal, then there must forever be an end either to international arbitration, or to international comity and courtesy and endeavours to get along with one another in the best fashion possible. Suppose, Sirs, that a treaty had not been made between Great Britain and France in 1904, by which those difficult questions on the Newfoundland shore were settled, and that there was a question between the United States and France as to the meaning of the treaties which governed their rights, and that France pointed to the fact that the United States had insisted upon and had sought to assert its rights in 1824, had withdrawn from the con- troversy, and had never afterwards tried to assert its rights, would that be an argument upon the construction of the treaty? I quite agree, Sirs, that the conduct of the parties is often very material in considering the construction of a contract, but it must always be conduct of the parties indicative of the mind of the parties. It never can be conduct of the parties, accompanied by an assertion of the validity of a view contrary to that indicated by the complacence evidenced at the moment. So, I ask, if there were a controversy between France and the United States, would the fact that the United States had never enforced its rights on the French shore, count for anything? The question is one of the construction of the treaty. The United States would say : We abstained because we did not care to enter into a contest with France; our foreign relations were such that we did not deem it desirable vigorously to assert the rights which we had. And that ought to be a sufficient reply. When conduct is based upon opinion, and you can show that the conduct reflected opinion, and was indicative of opinion, then, that conduct is very material. Of course, even then it is not decisive as to the interpretation of the contract, but it is very strong to show what one of the parties thought was the meaning of the contract and therefore helps in the construction of the contract. For instance, take the case of Mr. Webster in 1852. I point to that not merely as conduct upon Mr. Webster's part when, during those years, he did not assert the fisherman's theory, but I urge that such conduct was in his case based upon his opinion. He had before him the very question in controversy; he had the arguments which had been advanced in the Senate during the discussion; he wished to come to a conclusion favourable to the United States; and I point to Mr. Webster not as acting out of complacence and regard for international comity to- wards Great Britain, but as acting upon that which was his opinion. 1252 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Conduct of that sort has, I think, some effect. But, take Lord Aber- deen, or the other British statesmen who have made concessions from time to time; those concessions are not indicative of an opinion in agreement with the United States because they were accompanied with the statement that they were not intended as anything but con- cessions. In 1871, when a concession was made, Mr. Fish accepted it, and acknowledged that it was indicative of a generous spirit of amity ; yet, notwithstanding that, it was thus accepted by the United States, we have laxity of enforcement urged now as a reason why the opinion of the United States should prevail and the opinion of Great Britain should be overthrown. We have a plea based upon conduct which was accepted and, I think I am not wrong in saying, thankfully accepted, as getting rid of a difficulty and as a concession by Great Britain in a generous spirit of amity. In Canada, Sirs, we understand perfectly the position of Great Britain in the world. We are a part of the British Empire. We have to take the bad with the good. Sometimes one part of the Empire suffers for the sake of the rest of the Empire. Locally there may be some irritation because of that, but the better men among us take the larger view, and say that the interest of the Empire as a whole must be regarded. The United States has its own difficulties in its smaller compass — all between the Atlantic and the Pacific. The Japanese peril seems to loom large on the Pacific coast, and appears to be something very terrible to the people in California, but on the Atlantic coast, in New York and in Boston, it seems to lose all appearance of anything but a little disagreeable incident which is to be got rid of as easily as possible. We cannot help, in a wide- spread Empire, these difficulties arising, and if British statesmen, either from in appreciation of the value to a locality of its industry — and that is but human nature — or from the desire to keep upon good terms with the United States, have been lax in their enforcement of the strict rights of Great Britain that, Sirs, I submit most respect- fully, is no reason why the British view should be held to be an untrue view by an international Tribunal, which rises above all such considerations and which decides merely according to the law itself. The concession to which I have particularly referred, and which was made during the time of Mr. Fish, happened during a period of great tension between Great Britain and the United States. The Civil War in the United States had raged for several years, and had evoked sympathy on one side or the other throughout the 755 world. British and Canadian sympathy was divided, but per- haps to a preponderating extent it was upon the side of the Southern States. That is disputed; I give merely my own idea. The United States resented the feeling very fiercely. They were engaged in a death struggle for the unity of the United States. ARGUMENT OF JOHN S. EWART. 1253 Everyone now is glad that the North succeeded, but, Sirs, during that period sympathy was something that was appreciated and antipathy was something that was fiercely resented. Not only was British sympathy supposed to be more unanimously on the Southern side than it really was, but unfortunately the British Government permit- ted the " Alabama " to be built in British territory and to go out from a British port for the purpose of carrying destruction into the com- merce of the Northern States. That incident might have resulted in war ; it came very nearly doing so. It led to some few premonitory raids by United States citizens upon Canadian territory, known as the Fenian raids, at intervals between 1866 and 1870. During that time Great Britain was extremely anxious to get rid of all difficulties in the way of an amicable adjustment and settlement with the United States. Although the United States had repealed or put an end to the reciprocity treaty of 1854, in 1866 Great Britain insisted, much against the wish of Nova Scotia, on the continuation of the privileges which the United States enjoyed under it, by a system of licences. Great Britain saw that the repeal of the reciprocity treaty and the refusal to allow American fishermen to come into the bays and waters on the British coasts was going to add fuel to the flames. Lord Kimberley, in 1870, insisted that the United States fishermen should not be kept out even of the 10-mile bays to which Mr. Cardwell had reduced them in 1866, and that they should be admitted to any place 3 miles from the shore. He did more than that : he said that United States fishermen should not be seized unless the capture was made within 3 miles from the shore. Nobody pretends that we had not the right to chase the American fishermen that had been committing depredations on the coast out to the open sea, but that was all imposed upon and accepted by us out of regard for the general interests of the Empire, because of the great stress and strain which existed be- tween Great Britain and the United States. At the same time Lord Kimberley indicated that he would not permit us to refuse commer- cial privileges to the United States in 1871 — commercial privileges that the United States had no right to. They disclaim before this Tribunal any right to these commercial privileges. Lord Kimberley said that he could not agree to us taking a position of that kind. His words are quoted in the United States documents as though there was an intention to put forward the argument that because Lord Kimeberley had admitted that it was reasonable that the United States should have commercial privileges, therefore they ought to have them. I do not see why the language was there quoted unless that is the argument which they were desired to sustain. Difficult questions were pending between the two nations in those years, and it will be found that the greatest concessions were made during that period of great tension. What happened? In 1871 a treaty was 1254 NORTH ATLANTIC COAST FISHERIES ARBITRATION. made between Great Britain and the United States for the settlement, not only of the "Alabama " difficulty, but of other difficulties. The United States had never ceased to urge upon Great Britain the ne- cessity for payment of all the damages sustained by reason of the activity of the "Alabama " and as a result of an agreement and ref- erence, Great Britain had to pay some 15,000,000 dollars in satisfac- tion of those "Alabama " claims. [Thereupon, at 12 o'clock noon, the Tribunal took a recess until 2 o'clock P. M.] AFTERNOON SESSION, TUESDAY, JULY 12, 1910, 2 P. M. MR. EWART: Mr. President, I commence with the argument which is drawn from the use of the words " of His Majesty's dominions." It seems to me, Sirs, that the word " dominions " is synonymous with the word " possessions " — " of His Majesty's possessions." And you will find instances of the use of that phrase in the letters with which we are now familiar — Bathurst to Keats in the British Case Ap- pendix, p. 63, and Bathurst to Baker in the British Case Appendix, p. 64. I quite accept the suggestion of Mr. Warren that the word may be used as meaning " territories " — " His Majesty's dominions," " His Majesty's possessions," " His Majesty's territories." 756 Now, at that time His Majesty's dominions consisted of Newfoundland, Prince Edward Island, Nova Scotia and Que- bec. So that, instead of leaving in the treaty the descriptive words " His Majesty's dominions," we may insert the things described and say : " bays, creeks, and harbours of Newfoundland, of Nova Scotia, of Prince Edward Island, and of Quebec." Putting it in that way, Sirs, it seems to me that all possibility of dispute disappears. Be- cause if one is to ask what are the bays of Newfoundland, and a map is at hand, he has no difficulty in answering. What are the bays of Newfoundland? St. George's Bay, Bay of Islands, &c., and so on, going around the coast. What are the bays of Nova Scotia? Here we have them all named upon the map. We might hesitate a little when we come to the Bay of Fundy. Is that a bay of Nova Scotia or not? Upon one side of it, at one end of that side, is American territory, and one might hesitate a little as to whether that is a bay of Nova Scotia or not. As to all the other bays, one would answer without hesitation. But on the United States contention what are you going to do? You cannot tell what are the bays of Nova Scotia till you get large-sized charts of every one of them, and you must then take a pair of compasses and a scale, and find out where 6 miles cuts across the inner ends of these bays. Then for the first time you know what are the bays of Nova Scotia. It seems to me that that is a travesty upon the language which is used in this treaty, and that the bays of Nova Scotia are what we say they are. ARGUMENT OF JOHN S. EWAET. 1255 The word " dominion " is an old-time word. I believe it was ap- plied to Virginia which is still called in an affectionate way the Old Dominion, because it was so described in its original charter. Wales was at one time called the Dominion of Wales, as may be seen in the papers before the Tribunal — in the statute of 1699. And in the King's title, at the present day, the over-seas part of the Empire are spoken of as the " Dominions beyond the Seas," which means the possessions over the seas. With that observation, Sirs, I pass from that argument. Then I come to one that bulked very largely in Mr. Warren's argu- ment : — That the negotiators understood that they were dealing with waters "within the maritime jurisdiction of Great Britain," "within British sovereignty," and so on. I had made a collection of excerpts for the purpose of proving that to be true, but my list is not nearly so long or so full as Mr. Warren's, and I therefore do not trouble the Tribunal with it. If, however, there is any way in which I can em- phasise what he said, I should like to do so. It seems to me impor- tant. It seems to me, Sirs, that when the negotiators went to nego- tiate about this treaty, even if they had had no instructions at all, they would have known that they were going to deal with waters within British sovereignty. The Americans would not imagine that they were going to ask for waters not in British sovereignty; nor would the British imagine that the Americans were going to renounce parts of the high seas — although according to Mr. Warren that is what they actually did in this transaction. For myself, I do not think the negotiators intended that, and I do not think that that is what they did. Now, Sirs, having this prominently in mind, the American nego- tiators sat down to draft a treaty for the purpose of carrying out their idea, and what did they say? They had clearly in mind that they were going to distinguish between territorial and non-territorial waters; and how did they do it? Well, Sirs, they said: Three miles from the coasts and 3 miles from the bays. If they had not had the idea of territoriality in their minds, I do not know what they might have said, but they were there for the purpose of fixing the limit of territoriality — and they did it. Let me remind the Tribunal of what Mr. Adams said with reference to the report of the Commissioners from Ghent in 1814. The Tribunal will remember that there the British Plenipotentiaries notified the Americans that they would not, without consideration, renew the liberties of 1783 — the liberties within the British sovereignty — but that the British Commissioners had been careful not to say to what extent they believed British sov- ereignty extended, and that Mr. Adams was filled with apprehension as to the extent of the claims of the British Government. When, therefore, the United States Commissioners in 1818 negotiated as to the limits that they were to renounce, they were careful to declare 1256 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that they renounced only 3 miles from the coasts and from the bays, creeks, and harbours. In order to understand that treaty I think we must put the emphasis upon the 3 miles. The negotiators were not thinking particularly about the bays or the harbours. They saw that the fishing was all outside of 3 miles from the coast. And my point is that, having in view that it was only territorial water that they were dealing with, they used language to express their idea of where the line of terri- toriality was. That is the reason that we say it is not necessary now to discuss from the point of view of jurists what was territorial water at that time, even if we could arrive at an opinion by 757 that process — these gentlemen, having territoriality clearly in mind, expressed its limit in the language of the treaty. Now, Sirs, it seems to me that we may ask what would have been the form of that treaty under the different contentions. If the nego- tiations had wanted to carry out and express the present British con- tention, what would they have said? I cannot imagine any lan- guage more precise than that which they used. Supposing they had wished to express what the United States have contended for, what would they say? If one takes the contention of the United States Case they would have said this: — "Three miles from low water mark following the indentations of the coast." That is what I have chosen to call the fishermen's idea. That is the way it would have been expressed. Nothing simpler. They would not have said "3 miles from the bays"; that is not what they meant. They would have made no reference to the bays — 3 miles from the coast wherever there is any kind of water. Supposing that they had wanted to express the Halifax idea adopted in the United States Argument, they would have said: " Within 3 miles of any of the coasts or bays not more than 6 miles wide." Or they might have said: "Within 3 miles of the territorial bays." But then they would have had to add a proviso that territo- rial bays were understood to be not more than 6 miles wide. So I suppose they would have adopted the simpler language. Then, if they wanted to express Mr. Warren's idea I think that they could not have done better than use language similar to that of the North Sea Convention of 1882, the words at the top of p. 42 of the British Case Appendix. They would have said: — "Three miles from the coasts, and as to bays a distance of three miles will be measured from a straight line drawn across the bay in the part nearest the entrance, the first point where the opening will not exceed six miles." SIR CHARLES FITZPATRICK: Ten miles? Mr. EWART: Well, it is ten miles there. SHI CHARLES FITZPATRICK: Yes, it is ten miles there, but did you mean — ARGUMENT OF JOHN S. EWART. 1257 Mr. EWART: Yes, in order to put it in the treaty they would have used language of this sort with the change from 10 miles to 6 miles. And I do not think that they could have expressed it any more shortly than that. Certainly the language that they have adopted will not express it. In connection with that point I may explain our view as to territo- riality, and why we say it is not an important feature in this case. We say that whatever liberties were given by the treaty of 1783, the same liberties were given up in 1818. The position, therefore, so far, would be the same as if no treaty had been made at all. One treaty cancelled the other. The parties would have been in the same posi- tion as if there had been no treaty at all. But besides cancelling the 1783 treaty there was an agreement in the treaty of 1818 fixing the limits of territorial waters, and it was for that purpose that the dis- tance of 3 miles was inserted. I say, one treaty cancelled the other, but in addition to that there was an agreement as to the limit of territorial waters, and that is the purpose of these words "3 miles from the bays." What is the difference, then, between the position of the United States and any other country at the present moment? I do not in- clude France or Spain, because they are under treaty limitations — but any other country. Well, the difference is this, that as between Great Britain and the United States there is a specific agreement as to where the line of territoriality exists: as between Great Britain and any other country that wanted to fish, there is no such agree- ment. There is merely very strong evidence as to where that territo- rial line ought to be drawn, furnished by a treaty as long ago as 1818, made between the only two nations who were interested in that water at that time. Now that is always considered by writers on interna- tional law to be a very strong argument. Practically, therefore, there is very little difference between the position of the United States and other countries not under treaty limitations with us as to that territorial line. The United States are bound by agreement; the others are practically bound by the evidence. May I illustrate that by reference to the position in Fuca Straits? There, by agreement between the United States and Great Britain, a territorial line was drawn along the middle of the straits, the straits there being a little more than 10 miles in width. 758 As between those two nations, by virtue of that agreement, the territorial line is in the middle of those straits. As to other nations the agreement is merely evidence of where that terri- torial line is. They are not absolutely bound by it as the United States and Great Britain are. Now supposing that Great Britain at the present time sent its fishing vessels or war vessels south of that line in the centre of 1258 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Fuca Strait, the United States would say : " Why, you have agreed that the line is in the centre there ! " And if Great Britain were to answer that the agreement depended upon the prior existence of territorial right, and that the United States had possessed no such right, the reply would be that the point was immaterial, that we had agreed upon the location of the territorial line, and that we were bound by our agreement — that we could not escape by suggesting that there was in mind at the time that possibly the territorial line was not there. The next argument that I pass to is that resting upon what is said to be Lord Stanley's decision in 1845. Mr. Warren put it in the very forefront of his argument, the first thing that he referred to, and spoke of it as a decision of Great Britain in accordance with the contention of the United States. In this letter Lord Stanley said that, having frequently had complaints from the Minister of the United States on account of the capture of vessels belonging to fishermen of the United States by provincial cruisers, for alleged in- fractions of the Convention of 1818, between Great Britain and the United States, the Government deemed it advisable to relax the strict rule of exclusion. THE PRESIDENT : From what page are you reading ? MR. EWART : From p. 146 of the British Case Appendix, at the top of the page. The language is : — " deem it advisable for the interests of both countries to relax the strict rule of exclusion exercised by Great Britain over the fishing vessels of tha United States entering the bays of the sea on the British North American coasts. ... I transmit to your Lordship herewith the copy of a letter, together with its enclosures, which I have received from the Foreign Office upon this subject . . . and I have to request that your Lordship would inform me whether you have any objections to offer," etc. It was a mere proposal, and after hearing that the relaxation would be seriously injurious to the local fishermen, the British Gov- ernment determined not to carry it further than a proposal. It was a letter that was not, of course, communicated to the United States in any way. It was a purpose — a purpose not carried out. And that is all I have to say about it. I now come to the Adams and Bathurst correspondence, which was so much relied upon by Mr. Warren. In fact, he seems to me to put his case almost entirely upon what Mr. Adams told Mr. Mon- roe that Lord Bathurst said. The Tribunal will have clearly in mind the letter to Mr. Baker, and the previous letter to Mr. Keats, in which Lord Bathurst had indicated very clearly what his position was, and in which, in his letter to Mr. Baker, he had answered the complaint that had been made in respect of the " Jaseur." ARGUMENT OF JOHN S. EWABT. 1259 In the letter of Mr. Adams to Mr. Monroe, Mr. Adams purports to recount the conversation which he had had with Lord Bathurst, but he gave that conversation in two letters, once to Mr. Monroe and once to Lord Bathurst ; and what I wish to point out is that he does not give at all the same account of the conversation in these two letters. Before pointing that out, may I ask the Tribunal to observe that Mr. Adams, in his letter to Mr. Monroe, tells him that Lord Bath- urst had written a letter to Mr. Baker upon the subject, and that Mr. Baker had probably received it before Mr. Monroe would receive the letter from him — Mr. Adams? And may I also call attention to the fact that Mr. Adams, in his letter to Mr. Monroe, does not wish Mr. Monroe to depend upon the conversation as he — Mr. Adams — re- lated it to Mr. Monroe, but that he asks Mr. Monroe to see whether the letter from Bathurst to Baker is as Mr. Adams indicates in his letter it is? At p. 66, in the last paragraph of Mr. Adams' letter to Mr. Mon- roe, he says this: — " The answer which was so promptly sent to the complaint relative to the warning of the fishing vessels, by the Captain of the Jaseur, will probably be communicated to you before you will receive this letter/' 759 That is, referring to the letter from Lord Bathurst to Mr. Baker. Continuing, the letter reads: — " You will see whether it is so precise, as to the limits within which they are determined to adhere to the exclusion of our fishing vessels, as Lord Bathurst's verbal statement of it to me, namely, to the extent of one marine league from their shores. Indeed, it is to the curing and drying upon the shore that they appear to have the strongest objection." Will the Tribunal be kind enough to observe what it is that Mr. Adams attributed to Lord Bathurst (at the top of p. 65 of the Ap- pendix to the British Case, about 10 lines down) : — " I asked him " That is, Mr. Adams asked Lord Bathurst " if he could, without inconvenience, state the substance of the answer that had been sent." That was the letter to Mr Baker. " He said, certainly : It had been that as, on the one hand, Great Britain could not permit the vessels of the United States to fish within the creeks and close upon the shores of the British territories, so, on the other hand, it was by no means her intention to interrupt them in fishing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore; " 1260 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Now that bears evidence upon its face of being inaccurate, because the latter alternative clearly includes the former, and the alternative is useless. It reads: " Could not permit the vessels of the United States to fish within the creeks and close upon the shores " —that, of course, is within 3 miles — " so, on the other hand, it was by no means her intention to interrupt them in fishing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore; " It is the same thing. Now, if Mr. Adams, instead of saying " close upon the shores," had added to the word " creeks " the words " bays and harbours," as it is in Lord Bathurst's letter to Mr. Baker, there would be a real alternative; and that is what Lord Bathurst meant, and no doubt when he made use of an alternative he meant something. Now, if the Tribunal will turn to Mr. Adams' letter to Lord Bath- urst, in which he purports to recount the same conversation (British Case Appendix, at p. 67), it will be found that the alternative dis- appears altogether. There is not any. In the first letter, he spoils the alternative; in the second, he eliminates it: — " Your Lordship did also express it as the intention of the British Government to exclude the fishing vessels of the United States, here- after, from the liberty of fishing within one marine league of the shores of all the British territorities in North America," No alternative at all being stated — not even the creeks or close upon the shores, if that is an alternative. That letter, then, from Mr. Adams to Mr. Monroe, seems to me to be a very slight basis upon which to found an argument, going as far as, really, the changing of this treaty. If an agreement between the parties was intended, that agreement must be contained not in this conversation as stated by Mr. Adams in these two ways, but in the letter which was sent to Mr. Baker, and which was, no doubt, communicated by Mr. Baker to the United States Government (although of that we submit no evidence, and merely say it is extremely likely). It is quite clear that no agreement could have been based upon the letter, unless it had been seen by the United States Government, and if it was seen it disclosed Lord Bathurst's real meaning. I wish now to call the attention of the Tribunal to the report made by Messrs. Rush and Gallatin, which, as Mr. Warren has said, is dated upon the very day of the treaty. As preliminary to that, how- ever, I should like to remind the Tribunal of the great uncertainty which existed at that time, and previously, as to the extent of the British claims. It is well stated, and perhaps the Tribunal has it ARGUMENT OF JOHN S. EWABT. 1261 sufficient!}7 in mind so that I need merely mention it in Mr. Adams' statement that the American Plenipotentiaries in 1814 embodied in their report this remark : — " ' The extent of what was considered by them as waters peculiarly British, was not stated. From the manner in which they 760 brought this subject into view, they seemed to wish us to under- stand, that they were not anxious that it should be discussed.' " (British Counter-Case Appendix, p. 163.) I desire also, as preliminary to what I have to say about the Rush and Gallatin report, to make a reference to the treaty (p. 25 of the United States Case Appendix) ; and to ask why the words " on or within 3 marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America, not included with- in the above-mentioned limits " were used, instead of " in any part of His Britannic Majesty's dominions in America, not included within the above-mentioned limits." There had been a grant, in the first part of the treaty, of fishing limits within certain parts of His Britannic Majesty's dominions, and one would have naturally ex- pected to find a renunciation of the liberty to take, dry, or cure fish " in any part of His Britannic Majesty's dominions not included within the above-mentioned limits." But these words were not used — for the reason that I have already indicated. Now, I turn to the report, to be found in the British Case Appen- dix, p. 94. The first remark that I make upon it is that its usefulness has passed, so far as the United States is concerned. As long as the United States was upholding the fishermen's theory, of 3 miles from the shores, the United States could cite this report in their favour; because Rush and Gallatin do say that they insisted upon the renun- ciation clause in order to make sure that the renunciation was 3 miles from the coast. And our friends from the United States could say: " There is what the United States Plenipotentiaries intended — only 3 miles from the shore." But, inasmuch as that is not what the United States now themselves contend, the report does not help them. What the United States now contend is that the 3 miles should be measured from bays not more than 6 miles wide, and 3 miles from the heads of bays at the points at which those bays so converge that the shores are only 6 miles apart. Waiving that point, let me say that if one reads this report nar- rowly it will be found that it is full of inaccuracies. For instance, at the very beginning — SIR CHARLES FITZPATRICK: To what page are you referring? MR. EWART : P. 94 of the British Case Appendix, under the head- ing of " Fisheries " : — " We succeeded in securing, besides the rights of taking and curing fish within the limits designated by our instructions, as a sine qua 1262 NORTH ATLANTIC COAST FISHERIES ARBITRATION. n-on, 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 harbours of North America." That is not correct. The treaty permits entry for shelter into the bays, as well as into the harbours. Rush and Gallatin omitted the word " bays." I do not know if the British Government could very well base an argument upon their omission of the word " bays " in favour of the reconstruction of the treaty, and say that the word " bays " should be struck out of the clause giving liberty to enter for the purpose of shelter, because Rush and Gallatin omitted it in their report. I do not think we would make much headway with that argument. Then, coming down further in the report, to the words relied upon by our friends from the United States, — in the third paragraph : " We insisted on it "- That is, the renunciatory clause "We insisted on it with the view — 1st. Of preventing any im- plication 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." But the words "bays, creeks, or harbours" are omitted; and be- cause of that omission our friends used to suggest that those words in the treaty should be disregarded. Then, going on farther, the last sentence of the same paragraph is as follows: — " It is in that point of view that the privilege of entering the ports for shelter is useful," But there is no privilege in the treaty of entering ports — that is, by that name. It is " bays or harbours." Now, must we strike 761 out " bays or harbours " from the treaty, and put in " ports " ? It does not seem to me that this narrow way is that in which those men intended that their report should be read. And I go back and ask what they meant when they said that: " Our renunciation extended only to the distance of 3 miles from the coast " ? Is there any way of ascertaining, merely from this report, what it is that they meant by that? I think there is, Sirs. Let us read the next sentence : — "This last point was the more important, as, with the exception of the fishery in open boats within certain harbours, 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;" ARGUMENT OF JOHN S. EWART. 1263 What did they mean ? No doubt that the fishing grounds were 3 miles from those headlands— from the line of those headlands, there, on Nova Scotia. Where are the fishing grounds ? Here they are, all marked on this map (indicating). What did Kush and Gallatin mean ? That the fishing grounds were 3 miles from the sinuosities of the coast? Not in the slightest. What were they interested in — 3 miles from the sinuosities? No, Sirs. They were interested in the fishing grounds which were 3 miles from the coast. If one says that he is 3 miles from the shore, he does not mean that he is 3 miles from the end of a bay. He means that he is 3 miles from the nearest point of land — that he is 3 miles to there (indicating on map) ; not 3 miles to there (indicating). And so when the negotiators said that the fishing grounds were 3 miles from shore, they meant exactly what they meant in the previous sentence, when they said that they had re- nounced 3 miles from the coast — in both cases, that the 3 miles was from the headlands. It was in this way that they settled the point that they had in view, the point that they were there to determine, namely: Where was the territorial line? That was the point that they were anxious about, and apprehensive about — that they were anxious to settle ; and the reason that they did not use the words " in any other part of His Majesty's dominions," as I suggested, was that such words would not have suited their purpose. They put in the " 3 miles " for their own purposes ; and now the United States wishes to change the effect — because the mackerel changed their purposes also. I pass from that, Sirs, and take up the next piece of evidence, namely, Mr. Rush's letter, which is to be found in- the United States Case Appendix, at p. 549 and subsequent pages. That letter was written in answer to the one which precedes it on the same page of the United States Case Appendix. Mr. Marcy, who was then Sec- retary of State, had asked Mr. Rush what his view was. Mr. Rush commences his letter by recounting what Mr. Marcy had said to him, and amongst other things he says: — " On the other hand you inform me, that our construction of the convention is, that A.merican fishermen have a right to resort to any bay and take fish in it, provided they are not within a marine league of the shore." Well, Sirs, that is the fishermen's theory. In so far as this evidence is useful, it supports the discarded fishermen's theory ; but it does not give any support whatever to the new idea of territoriality. There is not a word in Mr. Rush's statement, as there is not in Rush and Gallatin's report, about territoriality, or about territorial bays only 6 miles wide. Mr. Rush goes on to agree with Mr. Marcy's view, that the true construction of this treaty, and what they intended, was 92909°— S. Doc. 870, 61-3, vol 10 24 1264 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 3 miles from the sinuosities of the shore ; and that, of course, is quite opposite to what the United States now says. But this is important — I think very important — that this letter of Mr. Rush's furnishes us with indubitable evidence that if Mr. Rush, one of the draftsmen of the 1818 treaty, was going to speak of all those coast indentations — big and little — he would use the word- " bays." In his letter, he is naturally on his guard, but in it he uses the word as including all the indentations. In fact, he cannot help it. Mr. Warren could not help it. He corrected himself two or three times, when he used the word " bays," and brought in, as the United States Argument does, "bodies of water." But it is impossible to get along without using the word " bays," in the sense in which we use it ; and so Mr. Rush, in various places — I shall only refer to three or four in the very opening of his letter — uses the word "bays" in the sense in which we use it — that is as including all the indentations. In the second paragraph he says : — " Your letter gives me to understand, that for more than twenty years after the conclusion of this convention, there was no seri- 762 ous attempt to exclude our fishermen from the large bays on that coast ; but that about ten years ago, at the instance of the Pro- vincial authorities, the Home government in England, gave a consti- tution "- Gave a " construction," it means — "to the first article which closes all bays, whatever be their extent, against our citizens for fishing purposes; and that although they have been permitted to fish in the bay of Fundy as matter of favor, the Home government denies their right to fish there, or in any of the other large bays. " On the other hand you inform me, that our construction of the convention is, that American fishermen have a right to resort to any bay and take fish in it," It was, I submit, in the same sense that he used the word " bays " in the treaty. He was one of the draftsmen of that treaty. That is what he meant. That is what he means here, and in other places. At the foot of p. 550, and in other places, at p. 554 and so on, he uses the word " bays " in the same sense. I say it is almost impossible to discuss this question without using the word " bays " in that sense. It will be found that Mr. Marcy used the word " bays " — with the same signification — in the middel of the first paragraph on that same page (p. 549 of the Appendix to the Case of the United States) : — " but about ten years ago, at the instance of the provincial authorities, the home Government gave a construction to the 1st Article which closes all bays, whatever be their extent, against our citizens for fishing purposes." ARGUMENT OF JOHN S. EWART. 1265 Passing on to the second paragraph : — "Our construction of the convention is that American fishermen have a right to resort to any bay and take fish in it," If you go to the United States documents which they have pre- sented to the Tribunal, you will find the same thing. On p. 76 of the Case of the United States, at the foot of the page, the third line from the bottom, you will find a reference to the right of American fishermen — "of fishing in any of the bays along the coast referred to provided that such fishing was not carried on within three marine miles of the shore." Going on to p. 77 of the Case of the United States, in the second paragraph : — " It is evident, therefore, that none of the seizures made during this period had any bearing upon the question which afterwards arose as to whether or not, in renouncing the liberty of fishing in bays under the provisions of this treaty," &c. There it is, actually referring to the renunciatory clause, and they use the word " bays " in the same sense as in the renunciation, and in the same sense in which we use it. Further on. on that same page — I shall not stop to read it, but you will find the same thing at p. 77, and at p. 95 of the Case of the United States. I have not pretended to gather together all of the instances in which the word " bays " is so used ; but in the United States Counter-Case, at p. 69, it is somewhat remarkable that they should have used it as they do there, because in that paragraph they are defining the contention of the United States. I have read the first part, beginning " On the issue thus presented by Great Britain," and so on. The paragraph proceeds to state the contention of the United States, and the last two lines are what I refer to : — " and consequently that the territorial waters of Great Britain did not include any bays which were more than six marine miles in width." clearly indicating that there are " bays " more than 6 miles in width ; and that the way to talk about those bodies of water is to speak of them as bays. The United States Argument is more careful, and we find there the expression that Mr. Warren used as substituted for the word "bays," that is, "bodies of water," at pp. 142, 169, and 170; but here, too, if Mr. Warren drafted this, he lapses, just as he did in speaking, and at p. 122 and p. 174, the word " bays " is again used in the sense in which, as we submit, it is used in the renunciation clause. 1266 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Now, Sirs, it does seem to me to be an embarrassment for counsel that they have to argue against the meaning of a word, and 763 that they find it to be quite impossible to present their argu- ment without using, and constantly using, that word in the very sense that they say cannot be attributed to it in the document which they are discussing. Having taken up those of Mr. Warren's arguments which I think can be well separated from what I shall afterwards have to say to the Tribunal, I wish to supply such explanation as I can in answer to a question put by the President of the Tribunal some days ago, as to the appearance of the words " Gulf of St. Lawrence " in the treaty of 1783. I think some light can be thrown upon that point. If we go back to the proceedings of Congress in 1779, we shall find that the question of the Gulf of St. Lawrence was evidently under discussion. On the 23rd February, a Committee of Congress made a report, and that report will be found in the British Counter-Case Appendix, at p. 10. Near the foot of the page, under the No. " 3," this will be found as one of the ultimata : — " That a right of fishing and curing fish on the banks and coasts of the Island of Newfoundland, equally with the subjects of France and Great Britain, be reserved, acknowledged, and ratified to the sub- jects of the United States." There is nothing there, as the Tribunal will observe, about the Gulf of St. Lawrence. Then, if we go to p. 12, when that report was under consideration in Congress, in Committee of the Whole House, the Tribunal will find at p. 12 the form that the Congress gave to the recommendation of the Committee. I read from p. 12, under No. " 3 " again : — " That a common right in these States to fish on the coasts, bays and banks of Nova Scotia, banks of Newfoundland, and Gulph of St. Lawrence, coast of Labrador and streights of Belleisle, be ac- knowledged," So that they inserted the words " Gulf of St. Lawrence " there. Then, having come out of Committee of the Whole, and Congress dealing with the matter, the Tribunal will find on p. 14 a resolution to reconsider the article. It is not necessary to read what was pro- posed to be substituted, because there is no difference with reference to the Gulf of St. Lawrence. On p. 17 the Tribunal will find a recasting of the whole subject. It had been discussed and re-discussed, and amendments had been suggested, and finally they agreed to clean the slate and commence again. Mr. Gerry brought in a series of resolutions on the 19th June, which commence at the foot of p. 16 and go on to p. 17. The first of those resolutions (commencing at the foot of p. 16) is as follows : — ABGUMENT OF JOHN S. EWART. 1267 " That it is essential to the welfare of these United States that the inhabitants thereof, at the expiration of the war, should continue to enjoy the free and undisturbed exercise of their common right to fish on the banks of Newfoundland, and the other fishing banks and seas of North America, preserving inviolate " &c. The Gulf of St. Lawrence was left out. Why the Gulf of St. Lawrence is left out is very obvious. They left out also " coasts " and " bays," which were in the previous resolutions. They had come to recognise that they had no right to the territorial fisheries of Great Britain, and although in the previous resolutions they had put in everything, " coasts and bays," as well as " Gulf of St. Lawrence," now, with greater light, they make no claim to the Gulf of St. Law- rence or to the coasts and bays, and they confine themselves to the fishing banks and seas of North America. I need not go through the rest of the resolutions, because there is no variation afterwards upon that point. There is a variation with reference to the disclaimer which is inserted as to 3 leagues; but as to that I shall have to speak afterwards. That much light we get from the proceedings of Congress. If we go to the negotiations, a little additional light is thrown upon the subject. The Tribunal may remember that there were in all five drafts of this treaty of 1783. The first was drawn by Mr. Jay, and com- mences at p. 71 of the British Counter-Case Appendix. The clause relating to the fisheries is upon p. 72, under the No. 3 : — " 3. That the subjects of His Britannic Majesty and people of the said United States shall continue to enjoy unmolested the right to take fish of every kind on the banks of Newfoundland and other places where the inhabitants of both countries used formerly, viz. before the last war between France and Britain, to fish ; and also to dry and cure the same at the accustomed places, whether belonging to His said Majesty or to the United States. And His Britannic Majesty and the said United States will extend equal priviledges and hospitality to each other's fishermen as to their own." 764 There is nothing about the Gulf of St. Lawrence there. Mr. Jay was proceeding upon the principle of the final resolution of Congress in 1779. At p. 84 we find an indication that the United States were seeking to get a right to fish in the Gulf of St. Lawrence. At p. 84 is a letter from Mr. Strachey, one of the British Commissioners, to Mr. Town- shend, who was then Colonial Secretary, under date of the 8th November, 1782, and in the third paragraph this will be found :— " No. 3 is what I contended for, as the proper article concerning the fishery, which I take to be precisely consonant with your inten- tion. After a little dispute, they gave up the point of drying fish on Newfoundland ; but they insisted upon a right to fish in the Gulf of 1268 NORTH ATLANTIC COAST FISHERIES ARBITRATION. St. Lawrence, and in all other places, where they and we used for- merly to fish ; " and so on. We get another view of the controversy that was going on at p. 87 of the Appendix to the British Counter-Case, in Mr. Oswald's " observations " with respect to the second draft of the treaty, which draft I am going to read in a moment, and in which the Gulf of St. Lawrence appears. At p. 87, about the middle of the page, I read : — " He also said : "— Meaning Dr. Franklin — " ' I observe as to catching -fish you mention only the banks of New- foundland. Why not all other places, and amongst others, the Gulf of St. Lawrence ? Are you afraid there is not fish enough, or that we should catch too many; at the same time that you know that we shall bring the greatest part of the money we get for that fish to Great Britain to pay for your manufactures? ' He agreed it might be proper not to have a mixture of their people with ours for drying on Newfoundland, but supposed there would be no inconveniency in throwing on shore their fish for a few days on an unsettled beach, bay. or harbour on the coast of Nova Scotia" The second draft of the treaty — at least, the part of it that I wish to refer to, is found upon p. 86. This is a draft supposed to have been drawn by Mr. Adams, and at the very top of the page will be found the clause relating to the fisheries. I need not read it. All I wish to call attention to is that the Gulf of St. Lawrence is inserted there between the " Banks of Newfoundland " and " all other places in the sea." Those two were in the previous draft of Mr. Jay. Now in this one, after the discussion to which I have alluded, Mr. Adams inserts the gulf. I need not continue the investigation any further. The British Government declined to agree to the Gulf of St. Law- rence to begin with, but finally assented. That, so far as I am aware, is all the light that can be thrown upon the question. Now, Sirs, just a few words with reference to the construction of these treaties. First, as to the treaty of 1783 : It seems to me that the word "bays" there must necessarily mean the larger bays. The President of the Tribunal put it to Mr. Warren, when he was speak- ing, as to whether the word " bays," as used in that treaty, would not include the larger bays — the reference being to the liberty to dry and cure fish in any of the " unsettled bays, harbours, and creeks of Nova Scotia," &c. ; and the answer of Mr. Warren was, in effect : " No, because the American fishermen would have a right to go into the larger bays without any provision in the treaty, for those larger bays would be open sea." The answer, however, I think, is quite unsatis- factory ; because, although the fishermen might, under Mr. Warren's ABGTTMENT OF JOHN S. EWART. 1269 contention, have a right to go into the larger bays, they would not have a right to go upon the shores of those bays, without treaty stipu- lation, in order to dry and cure their fish ; and that is the privilege which is given to them by the treaty. The treaty does not give them a right to go in and fish merely in the larger bays, but a right to dry and cure in any of the unsettled bays, harbours, and creeks of Nova Scotia. Now, Sirs, supposing that we should argue to-day, on the basis of that treaty, in support of a claim by Great Britain to exclude Ameri- can fishermen from a right to dry and cure fish in the larger bays, saying that the treaty merely meant territorial bays, and that terri- torial bays were only 6 miles wide, — I cannot imagine that we should have much success. We should be told, and very properly told, that there could have been no object in excluding the Americans from the larger bays — the 6^-mile bays, for instance. When the treaty says any bay — " any of the unsettled bays" — does it not mean large bays as well as small bays ? the Bay of Fundy as well as the little bits of bays ? It seems to me, Sirs, that it is impossible that we could have made such a claim, and it is quite impossible that it could have been supported. 765 My second observation upon the treaty of 1783 is this: that all the bays are put in the second clause of it. What we have in the first part of the treaty is " on the Grand Bank and on all the other banks of Newfoundland ; also in the Gulf of St. Lawrence, and all other places in the sea." Now, there is not much doubt as to what that means. That does not include any of the bays. It means the open sea — the banks, the Gulf of St. Lawrence, and other places in the sea. Then, where did the right to go into the bays come from? For American fishermen did get a right to go everywhere by this treaty. Undoubtedly it was by the language of the second paragraph. They shall have liberty to fish on the " coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America." The only right they got then in respect of the bays was under that second paragraph, and those " bays " must have meant " all bays." And, my third observation is that the word " bays " comes between the words "coasts" and "creeks" — "coasts, bays, and creeks"— evi- dently meaning all along the shore — wherever there were coasts or bays or creeks they all go together, embraced in one inclusive sen- tence, and those bays necessarily included " all bays." Lastly, I need not do more than merely refer to the appearance, and the significance of the appearance, of the Gulf of St. Lawrence, as I have just dealt with it. Passing to the treaty of 1818, I make the same observation with reference to the interpretation of the " bays," where it occurs in con- 1270 NOBTH ATLANTIC COAST FISHEBIES ARBITRATION. nection with the right to dry and cure fish. There it must mean the larger bays. Then, in the renunciation clause, the Tribunal will observe the re- nunciation is of the "liberty .... to take, dry or cure fish . . . . within three marine miles of any of the coasts, bays, creeks or har- bors." If there could be any ambiguity as to what "bays" were meant with reference to the taking of fish, there cannot be any am- biguity with reference to the drying or curing, because the renuncia- tion is of the liberty to dry and cure which was given by the treaty of 1783, and that liberty extended to all "bays." I think that is clear. The renunciation is of liberty to dry and cure — in what? In any " bay " — the same word as in the treaty of 1783 ; and if " bays " in 1783 meant all bays, then " any bay " in the treaty of 1818 must mean all bays — for the United States was renouncing the liberty which it got in 1783. And, of course, when liberty is given to "enter such bays," the word must have the same significance as before. JUDGE GRAY: May I ask you a question without disturbing you? Where they give the liberty to dry and cure in the " bay " you say, and perhaps properly, that that must mean all bays, large as well as small ? That is what I understand you to say ? MR. EWART: I should think so, Sir. JUDGE GRAY : But the liberty to dry and cure is a liberty to go on land for that purpose, isn't it? MR. EWART: Yes. JUDGE GRAY: And therefore, whether a bay was large or small, and if it were a large bay, it would necessarily require a grant of the liberty, for there it would be conceded, you would have to go through territorial water in order to land upon the shore ? MR. EWART: Quite so. JUDGE GRAY: Upon any theory? MR. EWART: Quite so. JUDGE GRAY: That is, if the line of exclusion ran around in a large bay 3 miles from the shore, it would be necessary to give a liberty to land and cure in large bays as well as small bays, neces- sarily ? MR. EWART: Yes. JUDGE GRAY: Is that what you mean? MR. EWART: Yes. 766 JUDGE GRAY: But that would make it necessary, without reference to the territoriality of the bay itself ? MR. EWART: Quite so. What I say is, that when they get liberty to go into any bay, that is, into the shores of any bay for the purpose of drying and curing fish, that means on the shores of any bay, no matter what size. They can go into any bay outside of 3 miles with- ABGUMENT OF JOHN S. EWABT. 1271 out liberty, but they cannot go on the shore without liberty ; and the treaty was intended to give them liberty to go on the shore of any bay. THE PRESIDENT : But the right of drying and curing is only on the treaty coast, but nowhere on the non-treaty coast? MR. EWART: In the 1818 treaty? THE PRESIDENT : Yes ; only on the treaty coast and not on the non- treaty coast? MR. EWART: I was speaking more particularly of the 1783 treaty, where there is a right to dry and cure everywhere except on New- foundland, and there I say it is perfectly clear, or we submit it is perfectly clear. THE PRESIDENT : But the question of Mr. Justice Gray touched the treaty of 1818, not the treaty of 1783. JUDGE GRAY : I thought you were referring to the treaty of 1818. MR. EWART : I was. THE PRESIDENT : In your last remarks you were. MR. EWART: The argument as to the 1818 treaty is this, that getting away from any difficulty about treaty or non-treaty shores, the United States was renouncing, as to drying and curing, the liberty which they had got under the treaty of 1783 ; that that liberty was a liberty to dry and cure in all the bays ; and that, therefore, the renunciation applies also to all the bays. The next observation I make with respect to this treaty of 1818 is, that the renunciation is not merely of a liberty to fish within 3 miles of any of the coasts, bays, creeks, or harbours, but " on " any of the coasts, bays, creeks, or harbours ; and it seems to me to be impossible to contend that if the United States renounce the liberty to fish on " any bay," that nevertheless they have a right to fish on some of the bays. Now, Sirs, I pass from that line of argument and take up some of the events that occurred in the history of the question. Com- mencing in 1824, I merely stop to correct a misapprehension that Mr. Warren fell into with reference to our suggestion as to the mackerel fishing in the bays at that time. We did not say — it was not our contention — that there was no fishing in the British bays at that time. What we did say, and what we supported by reference to Representative Tuck, Mr. Dana, and others, was this, that until 1836, or thereabouts, until after 1830 at all events, there were plenty of mackerel on the United States coast, and that a change in the habits of the mackerel led to the incursion of the American fisher- men into British waters, and brought about the difficulty. Mr. Warren quoted a number of authorities for the purpose of showing there was fishing all the time in British bays. That is perfectly true. It does not, however, at all affect the point which we make. 1272 NORTH ATLANTIC COAST FISHERIES ARBITRATION. He also referred to the British orders {p. 357 of the United States Case Appendix) issued in 1824, and referred to those orders as though they were Admiralty orders. What they really were were orders issued by the captain of the " Dotterel " to Mr. Jones, who was in charge of a provincial boat, and who was assisting in the work that the " Dotterel " had to do. That boat was assigned to work at the islands of Grand Manan, Campo Bello, and Lebuc, at the entrance to the Bay of Fundy. Mr. Jones was given that district to patrol, and his orders were to operate in that district, and to seize American fishermen found within 3 miles of the land. That is quite a different thing from a statement that Admiralty orders to their cruisers in other parts, not in con- nection with those islands, but in connection with the coast, were as limited as those that the captain of the " Dotterel " gave to Mr. Jones. At p. 357 of the United States Case Appendix, the place where the extract was read from, there is an affidavit made by Mr. Faxon, and at the end of the page there is a statement showing what Jones told him: — " He said they were authorized to take all vessels within three miles of the land. I afterwards heard the orders given by the captain to Jones read; they directed him very nearly, and I 767 believe exactly, as follows : ' You will consider your cruising ground to be the Menan islands, Campo Bello, and the island of Lubec. You will take all American fishermen found within three miles of the land, except in extreme cases of distress, and carry them to St. Andrew's, there take an inventory. . . .' " and so on. Xow, it is very obvious what was the reason for those orders given to the men put in charge of that boat. The Americans were fishing, not in the Bay of Fundy at all, as we contend ; they were fishing out- side the Bay of Fundy, or, if in the Bay of Fundy, it was so near to the line that the exact locality was immaterial (and it is quite dis- putable whether they were within the line or without the line, be- cause we have not agreed yet where the line ought to be), but the duty of this officer, at all events, was not in connection with fishing in the Bay of Fundy, but with the fishing that was going on outside of the Bay of Fundy, and with the operations of the crews of those vessels in coming within 3 miles of the land for the purpose of clean- ing their fish, and getting supplies, and furnishing themselves in various ways. This officer, therefore, was detailed for the purpose of preventing that particular incursion into British territory, and the nature of his duties explains the character of his orders. I referred, in my short sketch of this history in opening, to the fact that there was some evidence (and I distinctly guarded myself ARGUMENT OF JOHN S. EWART. 1273 by saying I did not consider it strong evidence) to support the view that the United States originally coincided in the opinion of Great Britain as to the construction of this treaty. I referred to the pe- riod of 1821, 1822, and so on, when the United States fishermen were operating in the bays on the west coast of Newfoundland. The United States, in its Counter-Case and Argument, makes a strong point against us, when discussing Question No. 6, upon the ground that the United States vessels were fishing in those bays, and upon that fact is based the argument that as early as 1824 there is evidence as to the interpretation of the word " coasts " as submitted in Question No. 6. The fact that these men were fishing in the bays there is material upon the subject that I am now addressing myself to, because it seems to me very clear that, if the United States held the view that they now do as to the construction of the treaty of 1818, they would not have submitted, without question, to being excluded from St. George's Bay ; and yet we find that they made no point as to whether they were fishing within the 3 miles or outside of the 3 miles. In fact, when they were ordered out of the bay altogether, as stated in the United States Counter-Case, the only point that they took about it was, not that they wrere on the high seas at all when they were 3 miles from land, as they would now say, but that the French had no exclusive right there. They therefore appealed to Great Britain to exercise her sovereign jurisdiction in that vicinity, and to vindi- cate the right of the United States to fish in those bays. JUDGE GRAY : Would you put the pointer on St. George's Bay ? MR. EWART: Yes, Sir (indicating by means of map on the wall). JUDGE GRAY: Thank you. MR. EWART: The Tribunal will find an account of the operations of the United States vessels in the United States Counter-Case, at p. 89, the third paragraph : — " Under the liberty of fishing established on this coast by the Treaty of 1818, the American fishermen at once began to engage in fishing in the bays, creeks, and harbors, as well as in all the other waters of the west coast of Newfoundland, and having found that the fishing there was of great importance," and so on. Then the next sentence : — "It appears, however, that in the years 1820 and 1821, a French war vessel undertook to interrupt this practice by ordering them away and forbidding them to fish on that coast. In the latter part of May, 1820, the American schooner Aretas, and other vessels in com- pany with her, were ordered out of St. George's Bay by the com- mander of a French naval vessel and forbidden to fish at any harbor or island ' on the west coast of Newfoundland ; and in the following year the same vessel was ordered out of the Bay of Port-au-Port on that coast, and threatened " 1274 NORTH ATLANTIC COAST FISHERIES ABBITBATTON. and so on. And then it goes on about the Bay of Islands. 768 Then, over on p. 90 :— " This situation does not appear to have been called to the attention of the Government of the United States until the spring of 1822, when, in anticipation of further interference by the French naval officers with the American fishing vessels on the west coast of Newfoundland during the approaching season, a number of the American fishermen in March of that year submitted to the Secretary of State depositions, setting forth the occurrences of the two preced- ing years, as above recited, with a view to having their rights under the treaty of 1818 determined." What they wanted determined under that treaty was, whether the French had exclusive rights there ; not as to whether " bays " meant " territorial bays." " Mr. Adams, the Secretary of State, promptly wrote to Mr. Gal- latin, the American Minister at Paris, on June 28, 1822, enclosing copies of the depositions referred to, from which, he said, 'you will perceive that in the years 1820 and 1821 several fishing vessels of the United States were ordered away from their fishing stations on the coast of Newfoundland, within the limits secured to us by the Conven- tion of 20 Octr. 1818, by armed vessels of France, and upon threat of seizure.' " It seems to me that Mr. Adams, when he wrote that, had not the slightest idea that St. George's Bay was anything but a bay. Much the same thing is said in the United States Argument, at p. 244, about the middle of the page, in the paragraph commencing " The Counter-Case," I commence at the second sentence in the paragraph : — " Some thirty American vessels were fishing in the bays of the west coast in 1820 and 1821 and were ordered off by French vessels of war. Great Britain, in the subsequent negotiations, confirmed the American right in the bays and France discontinued its interference with that right." The word " bays " is used there in the sense in which we say it is used in the treaty. THE PRESIDENT: All these cases of the controversy with France touched the treaty coast? MR. EWART: Yes, Sir. That is the treaty coast, the west coast of Newfoundland, where the Americans went under the permission which we gave them in the 1818 treaty. Now, the point that was raised by the American Government in connection with those circumstances, was not at all as to whether St. George's Bay was a bay or not, but a mere question of the ex- clusive rights of the French. That is so clear that I shall do nothing but give the references and pass on. SJR CHARLES FITZPATRICK: If it was a part of the high seas they did not require to appeal to England at all ? ARGUMENT OF JOHN S. EWAET. 1275 MR. EWART: No, Sir; they could have blown the French ships out of the water, as we ought to have done, as suggested by Mr. Turner. a little later on. The nature of the claim that was set up by the United States appears from the British Case Appendix, pp. 102, 103, 110, and 111. Nothing further seems to have happened until 1839. During that period it seems to me that, upon the evidence I have given, I can very well say that the view of the United States (so far as it had formu- lated a view) was the same as we have presented to the Tribunal. In 1839, however, the mackerel having now deserted the United States coasts and coming very largely upon ours, the fishing in the Bay of Fundy and Chaleurs and other places became important, and immediately the question arose. In the United States Case Appendix, at p. 426, will be found a letter from the Secretary of the Treasury to the Secretary, or rather the Acting Secretary of State, enclosing certain letters which he had received, and asking that they might be laid before the President. The letters enclosed with that letter (p. 426 of the United States Case Appendix) are set out upon the subsequent pages, and I wish to refer to three of them. The first is from Mr. Thayer to Mr. Parris, at the foot of p. 426 : — " I have this morning been informed that some depredations have already been made upon Grand Manan by our fishing vessels, that now number four or five hundred in the Bay of Fundy. and that a serious attack is in contemplation. 769 "The complaints of the inhabitants of this island have resulted in refusing to our vessels any shelter during bad weather." I may pass on to the third last paragraph : — " Towing our vessels indiscriminately to sea, whatever may be the state of the weather, is justified upon the ground that our vessels have no right to enter the Bay of Fundy, much less any of the bays and creeks of the Bay of Fundy. " Our fishermen are generally armed, and will not bear these indig- nities. They can furnish some thousands of as fearless men as can be found anywhere, at short notice ; and, unless our Government send an armed vessel here without delay, you will shortly hear of blood- shed : five hundred fishermen, with an average crew of ten men, will not long suffer the tyranny of drunken lieutenants in the British Navy." We are getting to the subject of blowing out of the water again. Then below, from Mr. Barker to Mr. Woodbury :— " The communication of Messrs. B. and J. M. Leavitt, in reference to the treaty stipulation by which our fishermen are regulated, pre- senting a question of diplomatic character, it is respectfully con- ceived, ought to be submitted to the Secretary of State. I therefore return it enclosed." 1276 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Then comes the letter of the Leavitt firm at the top of p. 428 : — "Difficulties having occurred in relation to our fishing in the Bay of Chaleurs, Gulf of St. Lawrence, Bay of Fundy, and on the coast of Nova Scotia, we request the favor of instructions as to the fact whether any other, or those treaty stipulations of 1783, are now the regulations by which our fishermen are to be governed." Then the postscript: — " We wish an answer for publication to our fishermen, should the Department have no objection to our adopting that course." Now, Sirs, the matter is becoming somewhat acute; and if the United States have an opinion upon the interpretation of this treaty, we are going to get it, and get it at once, and for publication. If the Tribunal will be kind enough to turn to p. 438, they will find what was done. In the middle of a report by Mr. Vail (who was Acting Secretary of State) to the President, with reference to the seizures that were then being made (at p. 438, a little below the middle), these words occur: — " The recent cases of seizure constitute the last instance of alleged violation of rights, and the charge is laid to the British account. The attention of this department was first called to the subject by a reference by the Treasury of a letter from B. & J. M. Leavitt, of Boston, asking for information as to the existing treaty stipulations regulating the matter. The inquiry was answered by a reference to the first article of the convention of 1818." As I said this morning, I do not think there was a better answer. It is the only one that was given. Then, in order that the United States might keep track to some extent of what was going on, it was arranged that Lieutenant Com- manding Paine should go 'out to the fishing grounds. JUDGE GRAY: We have not got the answer itself. We have only this reference to it by Mr. Vail. MR. EWART: That is all we have, Sir. It was arranged to send Lieutenant Commanding Paine with the " Grampus " out to the fish- ing ground, and I refer in that connection to p. 441, to a letter from Mr. Vail, Acting Secretary of State, to Commodore Chauncey : — " In consequence of the recent seizures of several American vessels on the coast of Nova Scotia by the British colonial authorities, the President has determined that the schooner Grampus, which he deems sufficient for this service, shall be despatched to the coasts of the British provinces in the neighborhood of the fisheries, under the command of a judicious and competent officer, to be selected by the Secretary of the Navy, and furnished with instructions distinctly setting forth the rights of citizens of the United States under the Treaty with Great Britain of the 20th of October, 1818, and making it his duty to protect them in the enjoyment of those rights, as well as to caution them against any infraction, on their part, of existing conventional stipulations. To enable you to carry these directions ARGUMENT OF JOHN S. EWART. 1277 into effect, I have the honor to transmit to you herewith, copies of papers containing all the information possessed by this de- 770 partment on the subject to which they relate ; and, at the same time, to suggest that the consuls of the United States in the British Provincial ports referred to. (to whom application may be made by the commander of the Grampus,} will, doubtless, cheerfully aid. by their advice, and by the communication of any pertinent facts within their knowledge, in advancing the objects of this visit." Now I think the Tribunal will agree with me that if we had those instructions ;' distinctly setting forth the rights of the citizens of the United States " under the treaty of 1818, they would throw some light upon what the position of the United States was at that time. As Senator Turner has said, the Government that has those papers has failed to produce them; and I might, Sirs, entertain a very lively suspicion as to the reason for their non-appearance, was I not very well aware of the difficulty which the compiler of such immense volumes of documents as we have before us has to encounter — how impossible it is for him to foresee the importance of documents — at all events, such importance as may be attached to them by counsel who are going to argue upon them. Then I know, too, that, very frequently, documents are not printed, not because they are valuable, but because they are valueless. And, in the third place, I think it is quite possible that the same fate that has happened to a great jnany of our own Admiralty orders has happened to the orders of the United States, namely, that after the most searching enquiry, they cannot be found. So that, I make no ungenerous suggestion as to the reason for the suppression or non-appearance of these instructions. They would show what the position of the United States was ; that is quite clear. We shall have to get on as well as possible without them, and I think that probably we can find from the report which Lieutenant Paine made when he came back whether, at all events, there was anything in them indicating that the United States had at that time assumed any definite attitude with reference to the construction of the treaty of 1818. I think we shall be able to see that down to that time, at all events, the United States had not taken up any position antagonistic to that which Great Britain has now the honour of submitting to this Tribunal. Lieutenant Paine's report will be found in the British Case Appendix, at p. 121, and its language indicates, I think, with sufficient clearness, that there was nothing in the instructions which he carried with him contradicting the British view of the interpretation of the treaty of 1818. We shall also find where the fishermen's theory came from. Lieutenant Paine says: — " In my late cruise on the coasts of Her Britannic Majesty's prov- inces, I found the convention of 1818, on the subject of fisheries, so variously construed, that I deemed it proper to address the Navy 1278 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Department on the subject — the letters to which I alluded in conver- sation with you. " Avoiding unnecessary repetitions, I will endeavor to give, in the following, all that seems of importance in a more concise form." ******* " I had believed the vessels seized had been generally guilty of systematic violation of the revenue law ; but I was soon led to suspect that this was not the cause, so much as a pretence, for seizing. " A vessel once seized must be condemned, unless released as a favor ; because the. owners will not claim her under the present laws of Nova Scotia, where the only seizures have taken place. " The questions on which dispute may arise are — " 1st. The meaning of the word Bay, in the convention of 1818, where the Americans relinquish the rights before claimed or exer- cised, of fishing in or upon any of the coasts, bays, &c., of Her Britannic Majesty's provinces, not before described, nearer than three miles. " The authorities of Nova Scotia seem to claim a right to exclude Americans from all bays, including those large seas such as the Bay of Fundy and the Bay of Chaleurs; and also to draw a line from headland to headland; the Americans not to approach within three miles of this line. " The fishermen, on the contrary, believe they have a right to work any where, if not nearer than three miles to the land. " The orders of Admiral Sir Thomas Harvey, as he informed me, are only to prevent their fishing nearer than three miles. "According to this construction, Americans may fish in the Bay of Fundy, Bay of Chaleurs, and the Bay of Miramichi ; while their right would be doubtful in Chedabucto Bay, and they would be pro- hibited in the other bays of Nova Scotia. " On that part of the coast of Newfoundland where the right of fishing is relinquished, there are several bays in which fisheries may be prosecuted at three or more miles from the land." He goes on with other things, and there is just one passage, on p. 122, that I want to read : — " If the grounds assumed by the British provincial authorities be carried out, it will be in their power to drive the Americans 771 from those parts of the coast where are some of the most valu- able fisheries ; whereas, if the ground maintained by the Ameri- cans be admitted, it will be difficult to prevent their procuring articles of convenience, and particularly bait; from which they are precluded by the convention, and which a party in the provinces seems resolved to prevent." The contents of that report, Sirs, is the only reason why I use, for the sake of brevity, the expression " fishermen's theory." It is dated in 1839 and, as the Tribunal now knows, conflicts at that time were apprehended. Seizures were being made and there was a possibility of bloodshed at any moment. The United States, however, took no position, even after they had got Lieutenant Paine's report, until 1841; when, for the first time, ARGUMENT OF JOHN S. EWART. 1279 a communication was made by the United States representative to the British Government, indicative of the contention of the United States. It was contained in a letter from Mr. Stevenson to Lord Palmerston, and is set out in the British Case Appendix, at p. 125. At the top of p. 126 Mr. Stevenson indicates that there has been no difference of opinion,, so far, regarding the interpretation of the treaty, and then, in the second paragraph, he proceeds in this way : — " It also appears, from information recently received by the Gov- ernment of the United States, that the provincial authorities assume a right to exclude the vessels of the United States from all their bays, (even including those of Fundy and Chaleurs,) and likewise to prohibit their approach within three miles of a line drawn from headland to headland, instead of from the indents of the shores of the provinces. They also assert the right of excluding them from British ports, unless in actual distress; warning them to depart, or get under weigh and leave harbor, whenever the provincial custom- house or British naval officer shall suppose that they have remained a reasonable time; and this without a full examination of the cir- cumstances under which they may have entered the port. Now, the fishermen of the United States believe (and it would seem that they are right in their opinion, if uniform practice is any evidence of cor- rect construction), that they can with propriety take fish any where on the coasts of the British provinces, if not nearer than three marine miles to land, and have the right to resort to their ports for shelter, wood and water ; nor has this claim, it is believed, ever been seriously disputed, based as it is on the plain and obvious terms of the con- vention." I think that is all that I need read in this connection. It bears out what I said in opening to the Tribunal, that it does seem remarkable that when, for the first time, the contention of the United States is put forward, it is put forward as the contention of the fishermen. It is, of course, supported by the United States, but that, after all, is what the Foreign Department always does after a certain amount of pressure. Here pressure had been brought to bear upon a depart- ment for two years — the fishermen making this claim — and finally the Secretary of State of the United States yields; but he does little more than forward the contention of the fishermen, supported, of course, by his own remarks. One can hardly wonder that a claim put forward in that way should not have appeared to be very for- midable; and there must have been some reason why Lord Stanley came to the conclusion that it was not intended on the part of the United States to press it. In 1842, Lord Stanley wrote to the Gov- ernor of Nova Scotia a letter which appears in the United States Case Appendix at p. 1046. I refer to the last sentence of the letter on p. 1047:— " We have, however, on full consideration come to the conclusion, as regards the Fisheries of Nova Scotia, that the precautions taken 92909°— S. Doc. 870, 61-3, vol 10 25 1280 NORTH ATLANTIC COAST FISHERIES ARBITRATION. by the Provincial Legislature appear adequate to the purpose, and that being now practically acquiesced in by the Americans, no fur- ther measures are required." Our friends from the United States say that there is no reason why Lord Stanley should have indulged that idea, and I cannot say to the Tribunal that we have shown anything, that justified him in coining to that conclusion. I cannot say why he came to it, but I do say that for some reason or other he did come to it; and that there was no further communication from Mr. Stevenson or anyone else on the part of the United States. Whether Lord Stanley was right in thinking that it was not going to be pressed, as a matter of fact, it was not pressed. I will point out, before I leave that letter of Mr. Stevenson, that there is nothing in it which affords any sup- port to the contentions of the United States — that the proceedings in 1806 and the conversation of 1815 constituted some sort of an under- standing between the two Governments; and that there is no sug- gestion in it either that the theory or the opinion of the British Gov- ernment had not always been what we now say it had always been from the date of the making of the treaty. Nothing further happened until the seizure of the " Wash- 772 ington " in 1844, and then came the correspondence between Mr. Everett and Lord Aberdeen. In Mr. Everett's first letter of 10th August (British Case Appendix, p. 130) he made the curious mistake of, if not misquoting, at all events misunderstanding the language of the treaty of 1818; for he seems to have been under the impression that the renunciation clause applied only to 3 miles from the coast and not as well to 3 miles from the bays, creeks, and harbours. I read from the second paragraph of the letter : — " Bj7 the first article of the convention above alluded to, the United States renounce any libertj7 heretofore enjoyed or claimed by their inhabitants to take, dry, or cure fish on or within three marine miles of any of the coasts of her Majesty's dominions in America, for which express provision is not made in the said article." Omitting the next sentence, I continue: — " The right, therefore, of fishing on any part of the coast of Nova Scotip, at a greater distance than three miles, is so plain that it would be difficult to conceive on what ground it could be drawn in question." The conception would no doubt be difficult if the language of the treaty were as Mr. Everett seemed to think it was, but of course it was not. Lord Aberdeen's reply did little more than point out that Mr. Everett had misread the treaty. That letter appears in the British Case Appendix, at p. 132. Thereupon Mr. Everett evidently re-read the treaty, and his opinion underwent a very vital change. His second letter is in the British Case Appendix, at p. 133, and that ARGUMENT OF JOHN S. EWART. 1281 part which I read is on p. 134. It has already been read by Mr. Warren : — "An examination of the map is sufficient to show the doubtful nature of this construction. It was notoriously the object of the article of the treaty in question to put an end to the difficulties which had grown out of the operations of the fishermen from the United States along the coasts and upon the shores of the settled portions of the country, and for that purpose to remove their vessels to a distance not exceeding three miles from the same." The Tribunal will notice the phrase, " three miles from the same." That signifies, of course, 3 miles from the coast. The letter con- tinues : — " In estimating this distance, the undersigned admits it to be the intent of the treaty, as it is itself reasonable, to have regard to the general line of the coast ; and to consider its bays, creeks and harbors, that is, the indentations usually so accounted, as included within that line." Then Mr. Everett proceeded to indicate that he did not think that the principle applied to the Bay of Fundy. That is now immaterial. The important thing is Mr. Everett's acceptance of the principle which the British Government always held, and which it advocates to-day — " bays, creeks, and harbors, that is, the indentations usually so accounted." What does that mean ? " Usually so accounted " undoubtedly refers us to the map — to common knowledge. The letter continues : — " But the undersigned cannot admit it to be reasonable, instead of thus following the general directions of the coast, to draw a line from the southwestern-most point of Nova Scotia to the termination of the north eastern boundary between the United States and New Brunswick, and to consider the arms of the sea which will thus be cut off, and which cannot, on that line be less than sixty miles wide, as one of the bays on the coast from which American vessels are excluded." Mr. Everett tried to exempt the Bay of Fundy from the operation of the principle. And I wish to call the attention of the Tribunal to the ground which he offered as sufficient for the exclusion of the Bay of Fundy from that principle : — " It is obvious that (by the terms of the treaty) the furthest distance to which fishing vessels of the United States are obliged to hold them- selves from the colonial coasts and bays, is three miles. But, owing to the peculiar configuration of these coasts, there is a succession of bays indenting the shores both of New Brunswick and Nova Scotia, within the Bay of Fundy. The vessels of the United States have a general right to approach all the bays in her Majesty's colonial ominions, within any distance not less than three miles — a privilege from the enjoyment of which they will be wholly excluded — in this part of the coast, if the broad arm of the sea which flows up between New Brunswick and Nova Scotia, is itself to be considered one of the forbidden bays." 1282 NORTH ATLANTIC COAST FISHEBIES ARBITBATION. Mr. Everett takes the position, as I understand him, that the exclu- sion of the treaty is from all bays, and he affixes no limit to their size. But he says Americans have a general right to approach all the 773 bays within a distance of not less than 3 miles, and he points out that they cannot do that unless they go into the Bay of Fundy, and so reach the limit of exclusion in connection with those inner bays. But Mr. Everett does not indicate that these inner bays must be less than 6 miles in order that Americans may be excluded from them. His point is that, no matter what their size, Americans may go down the Bay of Fundy until they reach a point 3 miles from any of these inner bays. They may go no further. Now, Sirs, there are five bays within the Bay of Fundy that are larger than 6 miles. Mr. Everett says nothing as to that. He seems to agree that the American fishermen cannot go within 3 miles of those inner bays. Of course he was wrong in saying that there was an affirmative right in the treaty of 1818 to go within 3 miles of all the bays. It is not an affirmative right to go within 3 miles of the bays, but it is an exclusion of 3 miles from all the bays, and therefore from the outer as well as the inner bays. That is very well pointed out in the report of the Attorney-General of Nova Scotia, which will be found at p. 137 of the British Case Appendix. And it will be observed that Mr. Everett's reasoning does not at all affect what he had previously said — that it is reasonable that the bays should be included in the general line of the coast. Now I shall read the paragraph that Mr. Warren referred to as throwing light upon what Mr. Everett meant. It is at the foot of p. 134:— " Lastly — and this consideration seems to put the matter beyond doubt — the construction set up by Her Majesty's colonial authorities, would altogether nullify another, and that a most important stipula- tion of the treaty, about which there is no controversy, viz.: the privilege reserved to American fishing vessels of taking shelter and repairing damages in the bays within which they are forbidden to fish. There is, of course, no shelter nor means of repairing damages for a vessel entering the Bay of Fundy, in itself considered. It is necessary, before relief or succor of any kind can be had, to traverse that broad arm of the sea and reach the bays and harbors, properly so called, which indent the coast, and which are no doubt the bays and harbors referred to in the convention of 1818. The privilege of entering the latter in extremity of weather, reserved by the treaty, is of the utmost importance." Now, the inside bays, as shown upon the chart presented to the Tribunal by the United States, are as follows: St. John Bay, 7£ miles; Maces Bay, 8 miles; St. Mary's Bay, 11£ miles; Chignecto Bay, 14 miles; and Minas Basin, 12 miles. These are about all the bays AEGUMENT OF JOHN S. EWABT. 1283 there are. There are no bays, as the Tribunal will see, all along this coast — not one. The five bays which are referred to are the only bays, in so far as I know — and I think I am right — inside of the Bay of Fundy. Those, Mr. Everett said, are the bays referred to in the con- vention of 1818. They are all wider than 6 miles. The correspondence between Lord Aberdeen and Mr. Everett ended, as I indicated this morning, in the concession of the Bay of Fundy to the United States and, as I also said, that concession was made because of the admission of the principle in Mr. Everett's letter. This reason was not stated to Mr. Everett at the time, but it was never- theless the reason which actuated the concession. I should, before passing from Mr. Everett's letter have called the attention of the Tribunal to a matter which Sir Kobert Finlay did refer to but which might be overlooked unless I pointed it out in the particular connection for which I now cite it. I refer to the fact that Mr. Everett's letter was approved by the President of the United States. At p. 135 of the British Case Appendix there is a letter from the Secretary of State to Mr. Everett, in which the Secretary of State says that — " The President is perfectly satisfied with the manner in which you have presented the case of the American vessel Washington, .... and with the argument on the main question contained in your note to the Earl of Aberdeen of the 25th of May last," Reference evidently was made by the Colonial Office to the Gover- nor of Nova Scotia in connection with the correspondence just referred to, and we have, on p. 136 of the British Case Appendix the reply of the Governor of Nova Scotia. I shall commence reading at the middle of the first paragraph : — " Your Lordship likewise informs me that Lord Aberdeen is well disposed, on mature consideration to relax the strict rule which has hitherto been declared applicable to American vessels found fishing within the limits of the Bay (but without renouncing the right of Great Britain to consider the Bay of Fundy as distinguished from the ocean) provided the fishermen of the United States do not ap- proach within three miles of any inlet within the bay, or within three miles of the coast, and you do me the honour to require my unreserved opinion upon Lord Aberdeen's proposal." 774 Then he refers to the seizure of the "Washington," and proceeds : — " In respect to the expediency of relaxing the strict rule which has hitherto been declared applicable to American vessels found fishing within the limits of the Bay of Fundy, I have found it difficult to arrive at a conclusion, because although some members of the Execu- tive Council believe, with myself, that such a concession, provided it led to no other " 1284 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The italics in our books are the italics that are in the original. Our friends have acted otherwise. I make no complaint; I merely mention it — — provided it led to no other of a like nature, would not be pro- ductive of injury to Nova Scotia, and might in fairness be granted, other members of the board, among whom is the Attorney General, entertain a strong opinion to the contrary. — "When however I perceive that Mr. Everett, in his note of the 25th May 1844, addressed to Lord Aberdeen admits that (in estimat- ing the distance of three miles from the shore within which Ameri- can fishermen are not permitted to approach) it is 'the intent of the treaty, as it is in itself reasonable to have regard to the general line of the coast and to consider its bays creeks and harbours, that is the indentation so accounted, as included within that line,' which I take to be an acquiescence in the opinion of Messrs. Dodson and Wilde, that the distance within which American fishermen must not ap- proach is three miles from a line drawn from headland to headland, taking the general configuration of the coast; I cannot but conceive that a great portion of what I have contened for, (in my despatch No. 75, date May 8th, 1841, addressed to Lord John Russell) on the part of the province, is conceded, and it is therefore my unreserved opinion, provided always that this interpretation of Mr. Everett's phraseology be correct, that that which is now asked by the Ameri- cans may be granted, without evil consequences, if due care be taken that no further pretensions can hereafter be founded on the con- cession." THE PRESIDENT : We shall continue on Thursday at 10 o'clock. [Thereupon, at 4 o'clock p. M., the Tribunal adjourned until Thurs- day, July 14, 1910, at 10 o'clock A. M.] TWENTY-FOURTH DAY: THURSDAY, JULY 14, 1910. The Tribunal met at 10 o'clock A. M. MR. EWART (resuming) : On Tuesday I commenced a detail of the events between 1845 and 1854 for the purpose of showing that Mr. Everett, in 1845, had expressly and in distinct terms admitted the validity of the British contention; that it was because of that ad- mission, although not so communicated to Mr. Everett, that Lord Aberdeen conceded the fisheries in the Bay of Fundy ; that the tacit understanding based upon that admission and concession was acted upon until 1853 ; that in 1852 Mr. Webster also admitted the validity of the British contention ; that this latter admission aroused strong political excitement; that Mr. Webster attempted to quiet the ex- citement, and to obtain access to the fishing ground for American fishermen by combining considerations relating to reciprocal trade with those relating to the fisheries; and that it was a change in the AEGUMENT OP JOHN S. EWART. 1285 administration that brought about a repudiation of Mr. Everett's ad- mission, and a revival of the old " fishermen's theory." I pointed out on Tuesday how very clear and very formal was the admission which Mr. Everett made in 1845. I should like, Sirs, to be able to hold the United States to that admission. Lord Aberdeen's concession of the Bay of Fundy was not em- bodied in any treaty or in any contract; it was a ourelv voluntary concession. We claimed, and I believe rightly claimed, the Bay of Fundy. I think one has but to look at the map to see that the Bay of Fundy, north-east of the international boundary, is a British bay. In point of fact, we received no consideration whatever for the con- cession of the Bay of Fundy, and that concession might be repudi- ated at any moment, for it is contained in nothing but a letter from Lord Aberdeen announcing British policy. But, Sirs, that conces- sion has remained, and it will remain. I should like, however, as I say, to hold the United States to the admission which actuated that concession : first, because we acted upon it, and on account of it gave up the fisheries in the Bay of Fundy, a bay that in itself was of larger value to the United States fishermen than very many others of the bays combined; secondly, be- 775 cause it was the deliberate admission of an able man, Mr. Everett, who had considered the matter fully, and who was perfectly aware of the effect of the admission which he was making; thirdly, because the admission received the formal ratification of the President of the United States; and fourthly, and principally, be- cause, as I believe, the admission was necessitated by the engagements of the United States contained in the treat}" of 1818, and was there- fore an admission to which we were rightly entitled — an admission, as I submit, to which we are rightly entitled to-day. Proceeding now with the relation of the facts. Having given to the Tribunal Mr. Everett's admission, and Governor Falkland's answer to the inquiry as to the advisability of surrendering the fisheries in the Bay of Fundy, I pass to the letter of Lord Aberdeen to Mr. Everett announcing the opening of the fisheries (British Case Appen- dix, at p. 141, second paragraph, second sentence in the paragraph) : — " The undersigned will confine himself to stating that after the most deliberate reconsideration of the subject, and with every desire to do full justice to the United States, and to view the claims put for- ward on behalf of United States' citizens in the most favorable light, Her Majesty's Government are nevertheless still constrained to deny the right of United States' citizens, under the Treaty of 1818, to fish in that part of the Bay of Fundy which, from its geographical posi- tion, may properly be considered as included within the British pos- sessions." SIR CHARLES FITZPATRICK : Would you indicate that on the map ? 1286 NORTH ATLANTIC COAST FISHERIES ARBITRATION. MR. EWART: That would be from Passamaquoddy Bay, all of this part, to the international boundary. (Indicating by means of map on the wall.) THE PRESIDENT: Please, Sir, would you indicate on the map the in- ternational boundary? MR. EWART : It is not on this map. SIR CHARLES FITZPATRICK: It comes out there, between Grand Manan and the State of Maine. THE PRESIDENT: Opposite Grand Manan? Mr. EWART. Opposite Grand Manan. " Her Majesty's Government must still maintain, and in this view they are fortified by high legal authority, that the Bay of Fundy is rightfully claimed by Great Britain as a Bay within the meaning of the treaty of 1818. And they equally maintain the position which was laid down in the note of the undersigned, dated the 15th of April last, that, with regard to the other bays on the British Ameri- can coasts, no United States fisherman has, under that convention, the right to fish within three miles of the entrance of such bays as designated by a line drawn from headland to headland at that en- trance." Then continuing at the foot of the page : — " The undersigned has accordingly much pleasure in announcing to Mr. Everett, the determination to which Her Majesty's Govern- ment have come to relax in favor of the United States fishermen, that right which Great Britain has hitherto exercised, of excluding those fishermen from the British portion of the Bay of Fundy, and they are prepared to direct their colonial authorities to allow hencefor- ward the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach, except in the cases specified in the treaty of 1818, within three miles of the en- trance of any bay on the coast of Nova Scotia or New Brunswick." Now, Sirs, one observation in passing, upon that letter, and it is this: that the policy and the belief of the British Government is to be found there, and not in any statement that has been made in the House of Lords within recent times. Mr. Everett in reply (British Case Appendix, p. 143) renewed to some extent his admission, arid accepted the offer, but not as a con- cession. He expressly guarded himself against accepting it as a concession, and he reasserted the United States right to it. I will read from p. 143, from the paragraph in the middle of the page : — " While he desires, however, without reserve, to express his sense of the amicable disposition evinced by her Majesty's government on this occasion in relaxing in favor of the United States the exercise of what, after deliberate reconsideration, fortified by high legal authority, is deemed an unquestioned right of Her MajestA^'s Gov- ernment, the undersigned would be unfaithful to his duty did he omit to remark to Lord Aberdeen that no arguments have at any time ARGUMENT OF JOHN S. EWAKT. 1287 been adduced to shake the confidence of the Government of the United States in their own construction of the treaty. While they have ever been prepared to admit," 776 not in Mr. Stevenson's time — " that in the letter of one expression of that instrument there is some reason for claiming a right to exclude United States fisher- men from the Bay of Fundy (it being difficult to deny to that arm of the sea the name of ' bay,' which long geographical usage has assigned to it) , they have ever strenuously maintained that it is only on their own construction of the -entire article that its known design in reference to the regulation of the fisheries admits of being carried into effect." Then the second last paragraph on that page: — " In the case of the ' Washington,' which formed the subject of the note of the undersigned of the 25th May, 1844, to which the present communication of Lord Aberdeen is a reply, the capture complained of was in the waters of the Bay of Fundy ; the principal portion of the argument of the undersigned was addressed to that part of the subject; and he is certainly under the impression that it is the point of greatest interest in the discussions which have been hitherto car- ried on between the two Governments, in reference to the United States' right of fishery on the Anglo-American coasts." There was one other matter pending between the Governments of that time. It related to the seizure of the "Argus," but, as one may well understand, Mr. Everett confidently expected a favourable termination to his representations with reference to it, as may be seen in the British Case Appendix, at p. 145, where Mr. Everett so reports to his Government. Everything seemed to have been satisfactorily settled, therefore the admission of British construction had been made by Mr. Everett. On the other hand, the United States had got what they wanted principally at that time — admission to the Bay of Fundy. I shall now read a page or two from Sabine's Report, which will express more authoritatively than I could give it to the Tribunal, the impression that was created in the United States by the publication of a paragraph in a newspaper later on (United States Case Ap- pendix, 2nd volume, p. 1230). It must be remembered that this is the report of no ordinary man, so far as the fisheries are concerned, but the report of a man who had studied the matter more fully per- haps than anyone in the United States, and that his report was made for the United States Government. I will read from the foot of p. 1230:— " The events of 1845 were highly interesting and important. The colonists had, apparently, accomplished their long-cherished plans. The opinion of the crown lawyers in 1841 ; the declaration of Lord Stanley in 1842, that our government ' practically acquiesced ' in the 1288 NORTH ATLANTIC COAST FISHERIES ARBITRATION. new construction of the convention ; and the capture of the Washing- ton in 1843, for an infringement of that construction, and for no other offence whatever, were all calculated to impress them with the belief that the contest was at an end. Such, I confess, was the inclination of my own mind. My home was on the frontier; I was a dealer in the products of the sea ; and was in the daily transaction of busi- ness with fishermen of New Brunswick and Nova Scotia, and was well advised of the measures which were adopted by the colonists, from time to time, to induce the ministry at home to sustain their pretensions. The zeal which was manifested by those who managed the British side of the case, and the seeming apathy of the American press and the American people; the rumours from the Government House at Halifax, and the want of all information from the White House at Washington, gave rise to much alarm. Official silence on o.ur part was at last broken, and such of our citizens as were engaged in the fisheries, or were otherwise involved in the issue of the con- troversy, were astounded, in June, — that was June, 1845 — — "at the following paragraph which appeared in the ' Union,' a newspaper supposed to enjoy the confidence of our government, and said, in the popular sentiment, to be its ' organ.' ' We are gratified,' said that paper, ' to be now enabled to state, that a despatch has been recently received at the Department of State from Mr. Everett, our minister at London, with which he transmits a note from Lord Aber- deen, containing the satisfactory intelligence that, after a reconsidera- tion of the subject, although the Queen's Government adhere to the construction of the convention which they have always maintained, they have still come to the determination of relaxing from it, so far as to allow American fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach — except in the cases specified in the Treaty of 1818 — within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick.' " Pausing there for a moment, it is interesting to notice that those last three lines are a textual reproduction of the words of Lord Aberdeen's letter to Mr. Everett, and that the " Union " must, there- fore, have had direct information from official quarters. The words are not given in inverted commas, but they are, textually, word for word with that part of Lord Aberdeen's letter. I continue to read : — 777 " ' This is an important concession ' •' (that is in the news- paper), " ' not merely as removing an occasion of frequent and unpleasant disagreement between the two governments, but as reopen- ing to our citizens those valuable fishing grounds within the Bay of Fundy which they enjoyed before the war of 1812, but from which, as the British Government has since maintained, they were excluded by the convention of 1818.' '' Then Mr. Sabine continues: — " The assertion, from such a source, that the British Government had ' always maintained ' the construction of the convention con- ABGTJMENT OF JOHN S. EWART. 1289 tended for in the ' case ' submitted to the crown lawyers by Lord Falkland, in 1841 ; the annunciation that our vessels were no longer to fish ' within three miles of the ENTRANCE of any bay on the coast of Nova Scotia or New Brunswick,' the Bay of Fundy alone ex- cepted ; the further declaration that the fishing grounds of that bay ' enjoyed before the war of 1812.' and lost to us by that event, were now ' reopened ' to us by ' an important concession ' — excited the live- liest sensibility and were regarded in the fishing towns of Maine and Massachusetts with dismay. The colonists had pushed their claims so secretly and so adroitly, that the crowning acts of their policy were hardly known to our countrymen who resorted to their seas ; and the fact that the Bay of Fundy was in dispute, was first ascertained by many of them on the seizure of the ' Washington ' for fishing there. It was expected that some more definite annunciation would be made, or that the correspondence between Mr. Everett and the British Gov- ernment, which preceded and led to the ' concession,' would follow the article just quoted from the 'Union; ' but the precise terms of the arrangement of 1845 were never stated, either in that paper or elsewhere, and the citizens whose property was exposed to capture by British cruisers and colonial cutters were left to pursue their business in apprehension and doubt. Under these circumstances, the writer of .this report assumed the task of attempting to impress the public mind with the probable state of affairs. He wrote for the periodical and for the newspaper press; he addressed letters to persons inter- ested in enterprises to the British colonial seas, and to persons in official employments; he continued his labors in various other ways for quite a year: he was unsupported, and abandoned the design finally in despair." An arrangement, therefore, seems to have been arrived at, or at least an understanding. Then turning to p. 1243, at the top of the page :— " It is possible that, had our government seconded the efforts of our Minister at the Court of St. James, and had instructed him, in positive and earnest terms; that the pretentions and claims of the colonists, which were at last adopted by the British Government, had not been, and never would be, admitted as a just and proper commentary on the convention of 1818, the despatch from which the preceding extract is made would never have been written; and that of consequence the excitement and difficulties of 1852 would never have occurred. As it was, the children of the ' tories ' triumphed over the children of the ' whigs ' of the Revolution." —references that the members of the Tribunal will probably be per- fectly familiar with; if not, I would say that the Tories were the Royalists, in the time of the Revolution, or inclined to be so; the Whigs were those who took a stronger view of the rights of the colonies. Turning to p. 1285, at the top of the page, I will quote further. I need not read what precedes it. Mr. Sabine has been dealing with the letter from Lord Stanley to Governor Falkland, in which Lord Stanley said that the British position had been practically acqui 1290 NORTH ATLANTIC COAST FISHERIES ARBITRATION. esced in. Then commencing at the first sentence at the top of the page :— " The opinion thus disposed of in November, 1842, was suffered to rest until the capture of the Washington and the Argus. Mr. Ever- ett's arrangement in 1845 was, in effect, an abandonment of the whole matter." I think I do not put it too high, in view of that language, when I say there was something of a tacit understanding. As some evidence of the existence of that tacit understanding, I refer to the fact that, during the succeeding years, no representation was made to the British Government with reference to the other bays. I quote in support of that statement a sentence from Sabine, at p. 1248 of the same volume, just below the middle of the page : — " It is of consequence to remark, that, as far as there is evidence before the public, the fisheries were not once mentioned by Mr. McLane, (who succeeded Mr. Everett,) in his correspondence with the British Government, during his mission. Nothing, in fact, seems to have passed between the two cabinets relative to the subject for more than six years, though England retraced no step after opening the Bay of Fundy." And I will show that the orders under which the British cruisers were acting, from 1845 to 1852, required the enforcement, although in the most gentle manner, of the British view. 778 I now ask the attention of the Tribunal to the notice which was issued by Mr. Webster on the 19th July, 1852, and pub- lished in the " Boston Courier " of that day. It is to be found in the British Case Appendix, p. 152. JUDGE GRAY : Mr. Ewart, may I ask you a question ? Do I under- stand you to say that during those six years after the Aberdeen- Everett correspondence, that vessels were ordered out of the other bays? MR. EWART: Yes, Sir. JUDGE GRAY : And that there was no insistence or protest in regard to it? MR. EWART: Yes, Sir. JUDGE GRAY : That the exclusion was actually practised ? MR. EWART : Yes, Sir ; by warnings, and only in case of " con- tumacious " (is the word used) refusal, in obedience to orders, was there any direct interference, and no seizure. Those were the orders from the Admiralty at that time. JUDGE GRAY: Yes, but was there any actual putting into force of those orders, as appears in this record ? MR. EWART: Yes, Sir. I will give you that particularly. I would rather not generalise. I will shortly give, particularly, all I have to say about it. ARGUMENT OF JOHN S. EWART. 1291 This notice, issued by Mr. Webster, is to be found at p. 152 of the British Case Appendix. I do not think I need read more than a few sentences, in order to refresh the memories of the members of the Tribunal. It is found at the middle of p. 153 : — " It would appear that, by a strict and rigid construction of this Article, fishing vessels of the United States are precluded from enter- ing into the bays or harbours of the British Provinces, except for the purposes of shelter, repairing damages, and obtaining wood and water. A bay, as is usually understood, is an arm or recess of the sea, entering from the ocean between capes or headlands; and the term is applied equally to small and large tracts of water thus situ- ated. It is common to speak of Hudson's Bay, or the Bay of Biscay, although they are very large tracts of water. " The British authorities insist that England has a right to draw a line from headland to headland, and to capture all American fishermen who may follow their pursuits inside of that line. It was undoubtedly an oversight in the Convention of 1818 to make so large a concession to England, since the United States had usually con- sidered that those vast inlets or recesses of the Ocean ought to be open to American fishermen, as freely as the sea itself, to within three marine miles of the shore." I think that language leaves no room for any doubt that Mr. Web- ster thought the construction of the treatj' was as the British Gov- ernment said. He attributed the unfortunate position the United States fishermen were in to an " oversight " on the part of the nego- tiators. And, this also appears, that he himself did not speak of the " bays " as part of the sea, but he said that they ought to be open " as freely as the sea itself" — not that they were, that thej' constituted part of the sea itself, but that they ought to be open as freely, because of their large size — " as freely as the sea itself." That language is supposed to be qualified by the last clause of the notice : — " Not agreeing that the construction thus put upon the treaty is conformable to the intentions of the contracting parties, this infor- mation is, however, made public, to the end that those concerned in the American fisheries may perceive how the case at present stands, and be upon their guard." It does not seem to me that that qualifies it. One may very well speak of a difference between what the contract says, and what the parties may have intended it to say. The first of these Mr. Webster did not think was disputable; as to the second, he had an opinion different from our opinion. The question before the Tribunal is— What does the contract say ? Mr. Webster seems to have been in very close communication with the President, Mr. Fillmore (United States Case Appendix, pp. 510- 512), and also with Mr. Crampton, who was then British Minister at Washington, and whom he took to his home in Marshfield for a 1292 NORTH ATLANTIC COAST FISHERIES ARBITRATION. period of ten days, in order to discuss the question of the fisheries as Avell as other questions, including the possibility of arranging 779 reciprocal trade relations. At p. 510 of the United States Case Appendix, there is a letter from Mr. Webster to the President stating that he had " prepared a paper which will appear in the newspapers in this part of the country." At the top of the next page : — " We shall be obliged, I am persuaded, to look up this business of the fisheries as well as the whole subject of the Canadian trade as matter of negotiation. Congress will never do anything. I will thank you, at your earliest convenience, to signify to me your wishes and your opinions." Mr. Webster saw the difficulty he was in with reference to the fisheries. He thought he saw a way out of it — indeed, the way which was afterwards carried to a successful completion — by combining the negotiations respecting trade with the fishery question. Pursu- ing that line of thought, he wrote to Mr. Crampton the letter which follows immediately after the one I have read, and in that, in the second sentence, he asks Mr. Crampton to follow him to Marshfield, and proceeds: — " I have recommended to the President, that we take up the whole subject of the fisheries and the Canada trade at once, as matters of negotiation." By this time considerable excitement had arisen over the notice issued by Mr. Webster and, in order to calm the excitement, Mr. Everett sent to Mr. Webster a letter which he had previously sent to Lord Aberdeen — the last of the correspondence between these two men — and Mr. Webster published it. In a later letter (United States Case Appendix, p. 535) Mr. Everett tells Mr. Ingersoll, in the middle paragraph that: — " The publication of my note was intended, in this way, to calm the existing excitement, and I have no doubt contributed materially to that end." If we are to believe Mr. Crampton (British Case Appendix, p. 155), it rather had the opposite tendency, because the effect of the letter was to show that the Bay of Fundy was a concession. Then, I call attention to a letter, which Mr. Warren dwelt upon, from Mr. Fillmore to Mr. Webster (at the end of p. 160, United States Coun- ter-Case Appendix). He says: — " I have also perused your article in the Boston Courier of yes- terday," that is the Webster notice — " and sincerely hope that these difficulties will not prove as serious as you seem to anticipate. I have seen Mr. Crampton who informs ARGUMENT OF JOHN S. EWART. 1293 me that he will leave for Boston tomorrow morning, for the purpose of having a consultation with you upon the subject of the fisheries. He informs me also, that he has addressed a circular to the several Governors of the British Provinces of North America advising mod- eration and forbearance upon this subject. I doubt not that when you and he meet you will be able to agree upon some line of proceed- ing that will allay the present excitement and prevent any blood- shed." Then he goes on to suggest that they should unite in a publication in which certain statements should be made with reference to the views of the two Governments, and Mr. Warren dwelt upon this for the purpose of showing that the notice which Mr. Webster had issued would not bear the interpretation which we put upon it. He said, in effect : " Here are the instructions from the President to the Secre- tary of State, and it would be quite impossible for the Secretary of State to do anything which the instructions forbade." Mr. Warren overlooked the fact that the notice was issued on the 19th July and that this letter advising a joint publication was written after the President had actually read the notice in the newspaper. Mr. Crampton seems to have gone to Marshfield on the 26th July, and on the 2nd August he wrote a letter to the British Foreign Minister which will be found in the British Case Appendix, commencing at p. 156. He wrote this from Mr. Webster's home in Marshfield in the State of Massachusetts. I read from the top of p. 157 : — " I observe with satisfaction that Mr. Webster now clearly per- ceives and fairly admits the correctness of the construction of the Convention of 1818 maintained by Her Majesty's Government. The opinion of the Queen's Advocate and of the Attorney General is, Mr. Webster said, ' undoubtedly right ' : — and he afterwards informed me that the President, from whom he had just received a letter on the subject, now concurred in that opinion. " Mr. Webster remarked however that he thought that more had been conceded on the part of the United States by the Convention of 1818 strictly interpreted, than had been intended, or ought to have been conceded : and that at all events a very important Ameri- 780 can interest had grown up under its practical operation: — an interest which was now threatened with destruction by a strict enforcement of its provisions, and one which the American Govern- ment could not, if it would, abandon. Any injury which should be now inflicted upon that interest by the measures contemplated by Her Majesty's Government, would not fail to excite an angry feeling on the part of the inhabitants of the new England States against the neighbouring British Colonies, which he was most anx- ious to prevent: He felt therefore, he said, most desirous that the whole matter might noAV be taken up by negotiation, and he read to me a letter addressed to the President of the United States, in which he recommends the adoption of this course in preference to a settlement of the matter by legislation, stating his apprehension that the arrangement of the matter by the latter mode, though pref- erable on some accounts, might be subjected to indefinite delay." 1294 NORTH ATLANTIC COAST FISHERIES ARBITRATION. At the very foot of the letter, referring to a letter which he had received from the President about a joint publication, Mr. Crainpton said : — " I entirely agree with him in this opinion ; the more so that the excitement in question has already very much diminished, and that a very general impression prevails that the question is now under discussion between the two Governments, with a view to its settle- ment upon a satisfactory basis. My present visit to Mr. Webster has, I believe, tended to strengthen this impression." He was wrong about the excitement abating. The matter was taken up the very next day in the Senate of the United States, and caused very acrimonious debate. The speeches which are quoted in the British Case Appendix, commencing at p. 157, are the speeches of Messrs. Cass and Davis, and these ones have been selected, because, afterwards. Mr. Crampton mentions them as being the ones with which the President was then inclined to agree. I read only very short extracts from those speeches, the first of Mr. Cass, at p. 160; indeed, I need not read them at all because all I wish to refer to them for is to indicate the line of argument that Mr. Cass was pursuing, namely, the shelter idea, and at p. 167 there is a passage in the speech of Mr. Davis which shows that he took up the same line of argument. Mr. Webster noticed this discussion, as very naturally he would, and on the 4th August, he wrote to the President about it — United States Counter-Case Appendix, p. 166. The first para- graph of the letter does not refer to the matters in question, but to other matters. I commence at the second paragraph : — " I have been informed of the flare-up in the Senate, yesterday respecting the Fisheries. I have very considerable alarm on this subject. Your enemies, and mine, among the Whigs, and the Young Americans among the Democrats, are very like to join in opposing the Adiministration and in embarrassing the State of our affairs with England. I have reflected much on the subject of these English orders; as well from the Home Government, as the Canadian Gov- ernment, respecting interference with our vessels. In my opinion there is solid grounds for remonstrating against both independently of anything which has yet been suggested. Certainly, such seizures are not within the ordinary jurisdiction of a Court of Admiralty. I think the High Court of Admiralty in England could not take cogni- zance of such a seizure, or condemn the vessel seized, without a special act of the Imperial Parliament ; and, as to the Acts of the Provinces, I am prepared to say at once, that we ought not to admit any seizures to be made by Provincial vessels. It appears to me, that this is a case of an alleged violation of Treaty, by alleged encroachment upon Territory in time of peace. It is something like the converse of McLeod's case. Its appropriate remedy is diplomatic complaint, from one Government fro the other ; and not of redress by the exercise of local jurisdiction." ARGUMENT OF JOHN S. BWABT. 1295 I think this letter is important, in view of the suggestion made by Mr. Warren that Mr. Webster did not mean what, as I think, he plainly said in his notice. If Mr. Webster did not so mean, we would not have found this method suggested of meeting the difficulty. Here, he does not at all question the correctness of the British contention, but he does question the method by which that contention is being enforced. He says that the British vessels have no rights without a British Act, and, as for provincial vessels, they have no rights at all; and that is all he has to say about it. The next letter, to which I wish to call the attention of the Tri- bunal, will be found in the British Case Appendix, p. 168, from Mr. Crampton to Lord Malmesbury. He says that he had remained in Marshfield until the 5th August, having stayed there from the 26th July. Now he had gone back to Washington. He says in the third paragraph of the letter : — "At Mr. Webster's suggestion I immediately waited upon the Presi- dent of the United States, who, Mr. Webster said, evidently felt a good deal of uneasiness respecting the view taken in the Senate of the fishery question, as evinced by a debate which took place on the 3rd instant, in regard to the President's message on that subject. 781 " I have the honour to inclose herewith two extracts of the ' National Intelligencer ' containing a report of this debate and a notice of the message, which has not yet been printed. " Mr. Fillmore's tone and manner in a long and confidential con- versation which I had with him on the subject of the fisheries, was frank and conciliatory. I remarked however with regret that, con- trary to what I had been led to expect from my conversations with Mr. Webster at Marshfield, he did not seem to concur in the con- struction of the Convention of 1818 as regards the definition of bays, laid down in the opinion of the Advocate General and Attorney Gen- eral of 30th of August 1841, but seemed rather disposed to adopt the view taken of that point by General Cass and Mr. Davis in the debate to which I have alluded. I say ' rather disposed ' because Mr. Fill- more in avowing his impression of the correctness of that view, frankly admitted that he had not yet sufficiently examined all the documents relating to the subject, and more particularly the opinion of the Law Officers of the Crown referred to, of which he requested me to furnish him with a copy in extenso. " I remarked to Mr. Fillmore that I had been struck in reading the speeches of the Senators who had impugned the opinion in question, by the absence of any allusion to the doctrine on the subject of the true definition of the maritime jurisdiction over bays which had been invariably held by the United States in regard to their own waters, and which was laid down by the highest American authorities, — a doctrine exactly coinciding with that which had always been held by Her Majesty's Government. " The President not seeming to be clearly aware of the existence of any authoritative statement on this subject by an American authority, I read to him, with his permission, a short memorandum, which, 92909°T-S. Doc. 870, 61-3, vol 10 26 1296 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. with the assistance of an eminent lawyer of this city, I had drawn up for my own use, a copy of which I have the honour to inclose. Mr. Fillmore seemed struck with the justice of the arguments adduced by Chancellor Kent (a very high authority in this country) which he said would certainly be applicable to the case of two nations when their rights had not been modified by treaty, but he seemed to appre- hend that the Treaty of 1783 and the Convention of 1818 ' taken to- gether' would qualify the principle laid down by Kent as regarded the present question between Great Britain and the United States. I confess I was at a loss to seize the drift of his argument in this respectj for he did not contest the correctness, of my remark that the rights in question, whatever they might be, now rested solely on the Convention of 1818." That last paragraph will help one very much to understand the memorandum which Mr. Webster afterwards wrote. Mr. Crampton could not understand what Mr. Fillmore hoped to gain by joining these two treaties of 1783 and 1818 together. Mr. Fillmore seemed to admit that the view of the British territoriality of bays was cor- rect, but said that that would apply to the case of two nations when their rights had not been modified by treaty; that is, that if there had been no treaties between Great Britain and the United States, all these bays would have been British bays. That is what Mr. Fillmore, or that is what Chancellor Kent, understood, but Mr. Fill- more says that the situation had been modified in this particular case by the two treaties taken together. What he means there I shall try to explain when I come to Mr. Webster's memorandum. It is an idea he had got, no doubt, from Mr. Webster in conversation with him — unless it is possible that this very extraordinary con- struction of the treaty could have occurred independently to the minds of these two men separately. I wish to read one other para- graph of that letter — the third paragraph on p. 169 : — " In alluding to the possibility of settling the present question of the fisheries by a negotiation or by legislation embracing the whole subject of reciprocity of trade with the British North American Colo- nies, Mr. Fillmore seemed to fear that the excitement created in the country and which he was sorry to see was participated in by the Legislature, had exercised a very unfavourable influence upon this mode of settling the question. He hoped however that even were it found impossible to combine the settlement of reciprocity of trade with that of the present difference about the fisheries, means might nevertheless be found of arranging the latter independently " ; — and so on. The debate was resumed in the Senate on the 12th August, and will be found to be reported to a certain extent — in so far as we deemed it necessary — in the British Case Appendix, p. 172. There is a speech by Mr. Soule", Senator from Louisiana, and in that speech we find the origin of the territorial idea — the Halifax idea. I read, at the top of p. 174, two short paragraphs. He had referred to Mr. ARGUMENT OF JOHN S. EWABT. 1297 Webster's letter proclamation, as he spoke of it, in which the con- cession had been made that England was right, and he commences that speech with the question: — "Is England right? If we trust the Secretary of State, in the view which he takes of her claims, it would seem, as if the terms, the letter of the Treaty, were on her side. This, Mr. Webster most per- emptorily admits, while others but debate it upon mere technicalities of language. 782 " Mr. Webster says that ' it was undoubtedly an oversight in the Convention of 1818 to make so large a concession to England, since the United States had usually considered that these vast inlets or recesses of the ocean ought to be open to American fish- ermen, as free as the sea itself, to within three miles of the shore.' Here the whole is surrendered ; there is no escape from the admission. IT WAS AN OVERSIGHT TO MAKE SO LARGE A CONCESSION TO ENGLAND ! " The concession was then made, was it not ? If so, the dispute is at an end; and yet, even then, it were a hard task to justify the summary process through which England has sought to compel us to compliance with the concession, and so on. Then he proceeds to argue, from the words " His Maj- esty's dominions," in support of his view that territoriality only extended to bays not more than six miles wide. That is developed at p. 177. On a subsequent day, the 14th August, Senator Seward made a reply and, as Mr. Sabine says, he was evidently speaking on the part of the Government. Mr. Sabine says something to that effect — I forget the exact words — in the United States Case Appendix, at p. 1257. Senator Seward's speech will be found in the British Case Appendix, commencing at p. 181, and I only remind the Tribunal, for I am sure they will have it in view as a most notable statement, that Senator Seward said (p. 187) that Mr. Soule's argument went much too far, and that it would react most injuriously upon the bays of the United States ; that it would surrender the harbour of Boston, Long Island Sound, Delaware Bay, Albemarle Sound, Chesapeake Bay- " and I believe it would surrender the Bay of Monterey, and perhaps the Bay of San Francisco, on the Pacific Coast." He also said (in the middle of p. 185) this: — " I am surprised that any doubts should be raised as to the procla- mation " That is, Mr. Webster's notice — - " being the act of the Government. I do not understand how a Sen- ator or a citizen can officially know that the Secretary of State is at Marshfield, or elsewhere, when the seal and date of the Department affirm that he is at the capital. I would like to know where or when this Government or this Administration has disavowed this procla- mation ? " 1298 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Before coming to this memorandum of Mr. Webster, which is to be found in the United States Case Appendix, at p. 527, may I re- mind the Tribunal that Mr. Rush was alive at the date of this notice, issued by Mr. Webster; that he was in no doubt whatever as to Mr. Webster's meaning; and that he wrote a letter to his executor enclosing a long statement in vindication of the negotiators of the convention of 1818, declaring that they were guilty of no oversight such as Mr. Webster had imputed to them? There seems to have been no doubt, at the time, that Mr. Webster meant exactly what he said. Now, Sirs, this memorandum, which Mr. Webster never completed, is a rather remarkable document. It is remarkable for two things: in the first place, because, having before him both the fishermen's idea and (from Senator Soule's speech) the territorial idea, he puts both aside and says nothing about them. He is seeking some argument upon which he can justify a claim to the bays. He has those two presented to him. He had made, as the United States Case says, an exhaustive study of this whole subject. He knew perfectly the history of it, and he absolutely disregards the two theories which had been advanced, and which were there for his consideration. I should have mentioned, before leaving the Everett correspond- ence, that if anything could have been said in favour of an under- standing between the Governments in 1806 and in 1815, one of which has been put forward by Senator Turner and the other by Mr. Warren, Mr. Everett would have known about it, and said some- thing about it. Mr. Everett says nothing about it, but concedes the validity of the British contention. One point that is to be observed in reference to this memorandum of Mr. Webster is that, having these theories before his mind, he disregards them and thinks there is nothing in them. The next point to be observed in reference to this memorandum is that it is a most remarkable effort by a most remarkable man to make something out of nothing. I cannot believe that if Mr. Webster had lived he would ever have put his name to an argument developed along 783 the lines that he foreshadows here. He never did put his name to it, and in my statement of the different positions that the United States has from time to time taken, I do not include this one ; but it is well worthy of consideration as being a remarkable effort along a line that the United States has never seen its way to adopt as an argument in support of the United States desire to get into the bays. The view that Mr. Webster seems to have taken was this — and we will see now what Mr. Fillmore meant by the " junction " of the two treaties of 1783 and 1818, and how the junction of these two treaties was to be useful. In Mr. Webster's mind this seemed to be possible : ARGUMENT OF JOHN S. EWART. 1299 The first part of the treaty of 1783 acknowledged certain rights, rights not only on the banks of Newfoundland, in the Gulf of St. Lawrence, but in all other places where the fishermen of both coun- tries used to fish. Now, he says, places where American fishermen used to fish included the bays ; therefore in this first part of the treaty of 1783 the bays were included. The rights acknowledged in that first part of the treaty have always endured, because they were rights that were acknowledged, and so were not affected by the war. There- fore, Mr. Webster said, we have got them yet. He had difficulty, of course, with the other part of the treaty and the renunciation clause in the treaty of 1818. And with that subtlety of mind for which he was most remarkable he analysed the renunciation clause and tried to reduce it to a renunciation in connection with drying and curing, and not in connection with the fishing. I should like very shortly to call the attention of the Tribunal to the course of this argument — reading only a few words of it, but pointing out its course. On p. 524 of the United States Case Appendix, it will be seen that Mr. Webster commences at once with the difference between right and liberty. Then he goes on to quote from Mr. Adams's speech (which we are now familiar with) during the negotiations of 1782 when he rose up and said : " When God Almighty made the Banks of Newfoundland " «fcc. — he quotes from that long speech. Then in the middle of p. 525 he quotes the instructions to which Mr. Adams re- ferred. These were the resolutions in Congress of 1779 with which the Tribunal is familiar. Then on p. 526, near the top: — " Upon this assertion of right on our side and its admission on the other, the Treaty of Peace of Nov. 30th, 1782, was negotiated and signed." Then he quotes the treaty of 1818, and just below that I would ask leave to read a little : — " Nothing can be more clear or definite than this Article. It ad- mits a common right on the part of the Citizens of the United States with the subjects of Great Britain. " What those Citizens and subjects had been accustomed to do, they are to have a right to do thereafter. It is not a right granted, but a right acknowledged and continued." Observe that he puts the emphasis there. What they "had been accustomed to do, they are to have a right to do thereafter. It is not a right granted, but a right acknowledged and continued." " It is undeniable that under this provision of the Treaty of Peace of 1783 & the preliminary Treaty of 1782 the citizens of the United States continued to carry on the Fisheries in all the Eastern waters, with the exception of approaching to and using the shores in certain localities. 1300 NORTH ATLANTIC COAST FISHERIES ARBITRATION. '; It is admitted that by these treaties, the right of approaching immediately to, and using the shore for drying fish, is called a liberty, & throughout this discussion it is important to keep up con- stantly the plain distinction between an acknowledged right, and a conceded liberty" I do not think it is necessary to finish that page, but on the next page he commences with an analysis of the Adams-Bathurst corre- spondence which continues down to the middle of p. 528; and then I ask leave to read a few sentences : — "And it was from these considerations that, in the Treaty of Peace of 1783, an express stipulation was inserted, recognizing the rights and liberties which had always been enjoyed by the people of the United States in these fisheries, and declaring that they should con- tinue to enjoy the right of fishing on the Grand Bank, and other places of common jurisdiction on the North American coasts, to which they had been accustomed while they themselves formed a part of the British nation. It was a stipulation contained in a Treaty by which the king of Great Britain acknowledged the United States as free, sovereign and independent states; a treaty which, by the common understanding & usage of civilized nations could 784 not be annulled by a subsequent war between the same parties. The rights and liberties in the fisheries were, in no respect granted by Great Britain to the United States, but they were ac- knowledged as rights and liberties enjoyed before the separation of the two countries, and which it was agreed should continue to be enjoyed under the new relations, which were to subsist between them." I need not pursue the memorandum; it is long, and I have suffi- ciently indicated the line of argument that I think Mr. Webster in- tended to pursue. As I have said it is remarkable for the two rea- sons that I have mentioned. And the one which, of course, is im- portant to us here, is his utter disregard of the only two contentions that had ever been seriously put forward by the United States. It substantiates also our view of his notice; because, although he is attempting to draw an argument opposed to it, he evidently is not satisfied in his own mind at the moment — he did not finish it; it is something which he had been trying to evolve as a basis for negotia- tion afterwards. JUDGE GRAY : Do you understand that Mr. Webster's memorandum tended to this conclusion: That the liberty that the inhabitants of the United States had previously enjoyed under the treaty of 1783 was a liberty granted in that treaty by Great Britain as distinguished from a right acknowledged to fish on the high seas in the first place ; and that in the treaty of 1818 therefore the United States renounced only what Great Britain had a right to grant, and that grant of necessity related only to territorial waters. She could not grant a liberty to the high seas. The fishing in non-territorial waters was a ARGUMENT OF JOHN S. EWABT. 1301 right that depended upon no grant of Great Britain, and belonged to the United States? MR. EWART : Yes, Sir. JUDGE GRAY: And therefore when, in the treaty of 1818, they renounced, not the right, but the liberty theretofore claimed, they were necessarily renouncing the liberty to fish in territorial waters, for no liberty could have been given to them except in territorial waters. MR. EWART: I think that probably that may be included in Mr. Webster's idea, although not specifically stated. At all events I do not contest that idea, as the learned Arbitrator knows. JUDGE GRAY : I was only asking whether that was not the conclusion at which he was pointing. MR. EWART : No, I do not gather that. The line of argument that I think he follows — I will confess that the argument is somewhat involved, and that it is not beyond dispute, what it was that Mr. Webster was dealing with. But what I do say is this, that having those two views in mind — the two views that are very easily stated, and the arguments for which can be made very clear by a man of far less mental pretension than Mr. Webster, these views, at all events, are not put forward, unless inferentially for the purpose of the new argument which he is attempting to evolve. Now, as I said to Mr. Justice Gray a short time ago, I proceed to give such citations as I have with reference to the instructions under which the British cruisers were acting between 1845 and 1852. In the first place I refer to the letter of Vice- Admiral Seymour to the Secretary of the Admiralty, and although we are unfortunately unable to produce these instructions, I think that I shall satisfy the members of the tribunal, beyond all question, what those instructions were. British Case Appendix, p. 202: a letter from Vice- Admiral Seymour to the Secretary of the Admiralty, commencing at the begin- ning of the letter : — " I have to acquaint you, for the information of the Lords Commis- sioners of the Admiralty, that Mr. Crampton, Her Majesty's Minister to the United States, arrived at Halifax on the night of the 7th instant, for the purpose of conferring with me on a notice he had received on the 2nd from Mr. Marcy, the Secretary of State at Wash- ington, of the intention of the United States Government to send a force to the fisheries, and their desire that the possibility of any collision in the present season should be avoided, by his receiving an assurance that no American vessel would be actually seized for fishing in the open bays; with regard to which the American Government placed a different construction on the terms of the Convention from that adopted by Great Britain. Mr. Crampton felt unable to give this assurance, but deemed it advisable at once to communicate with me on the subject. 1302 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 785 " 2. The vessels employed under my orders in the Gulf have already instructions to exercise the utmost moderation: to prefer warning to seizure ; and are told, as last year, to drive away, not to actually seize, beyond three miles from the shore, except in the last resort, in case of determined and contumacious encroachment in what are clearly bays of our provinces." That is the sentence I was trying to reflect in my answer to Mr. Justice Gray. " 3. The American Government does not conceal that it has been induced to send a force to the British waters, by the clamour in the Eastern States. The measure has been preceded by an avowal on the part of many of the United States fishermen, that they are " I need not continue that. In the United States Counter-Case Appendix, p. 176, will be found a letter from Commodore Shubrick, the American Commodore, to the Secretary of the Navy. May I be allowed to leave that letter for a moment, in order to give one that precedes it in point of date, and is necessary, to some extent, to its understanding? I should have given it in its order. It is a letter from Mr. Dobbin, the Secretary of the Navy, to Commodore Shubrick, and will be found in the United States Counter-Case Ap- pendix at p. 169. I am told that on Tuesday I said that Mr. Webster was succeeded by Mr. Dobbin as Secretary of State. Of course that was a mistake. JUDGE GRAY : Mr. Dobbin was Secretary of the Navy, I think, was he not? MR. EWART: Yes; he was Secretary of the Navy, not Secretary of State. At p. 169 of the United States Counter-Case Appendix will be found this letter, which is very noteworthy, because it professes to give a past history of the controversies and treaties, and because of the position which it takes up. At the foot of p. 169 there is a statement that — " armed fishing vessels have gone out with crews prepared to take the defence of their rights in their own hands." And these instructions are given to Commodore Shubrick, at the second paragraph of p. 170 : — " It is proper, however, in entering upon the task committed to your charge, that you should be put in possession of the past history of the controversies and treaties between the United States and Great Britain in regard to the fishery questions, as well as the views enter- tained by the present administration." Leaving that, and going on to p. 171, in the middle of the second paragraph, I call attention to the statement of what Mr. Dobbin says is the view of the United States; and as I read it I ask attention to the fact that he also is quite unable to discuss this question without AEGUMENT OF JOHN S. EWAKT. 1303 using the word " bays " in the very sense in which he says it ought not to be used. I read from the middle of the second paragraph on p. 171 of the United States Counter-Case Appendix :— " On the American side it has been contended that American fisher- men have a right to enter and fish in any of the bays which indent these shores, provided they never approach, for the purpose of taking fish, within three marine miles of the coasts by which such bays are encompassed. On the part of Great Britain, it has been contended that these three marine miles are to be measured from headland to headland, and not from the bays or indents of the coast. " This restrictive construction on the part of Great Britain, you will perceive from a glance at the map, if strictly enforced, would exclude our fishing vessels from George s bay, the Bay of Miramichi, the straits of Northumberland, and the large Bay of Chaleur, where the best mackerel are annually caught. Now, these are large open bays, much more than six marine miles wide, and our fishing vessels can, with ease, enter and fish without ever approaching within three marine miles of the coast." He continues on the same lines, and introduces the shelter theory. So that he has now reverted to the fishermen's idea. He does not refer to Mr. Everett's admission, and he says nothing about Mr. Webster's admission; but, leaving those out of notice altogether, he restates the Stevenson position of 1841. The instructions to Commo- dore Shubrick are to be found at the top of p. 173 : — " On reaching Halifax, however, you will have an interview with Admiral Seymour," 786 And in the next paragraph: — " In vour interview you will endeavour to ascertain the views of Admiral Seymour, the instructions of his government, and especially the course he designs pursuing towards any of our fishing vessels that may be found fishing in the bays, but not within three miles of the shore." Having read those instructions, then, or at least extracts from them, I will now return to the letter that I parted from a moment ago, at p. 176 of the same volume, the United States Counter-Case Appendix, from Commodore Shubrick to the Secretary of the Navy. I read from the fourth paragraph of the letter : — • " I stated to the Admiral "• That is, to Admiral Seymour— " that I was instructed to seek an interview with him, and to express the great desire of the President that a cordial understanding should exist between the officers charged with the interests of the two govern- ments: that I had been instructed to direct the officers of the United States squadron to be particular in warning the citizens of the United States engaged m the business of fishing to scrupulously avoid any violation of the stipulation of the convention of 1818, or of their duty as citizens; that the President could not take the 1304 NORTH ATLANTIC COAST FISHERIES ARBITRATION. same view of the provisions of the treaty as that taken by her Majesty's government; to express his regret that a different view should have been taken by the Queen's government, and of his hope that force might not be resorted to against our fishermen in the bays and harbors, provided they avoided approaching within three marine miles of the shore, and particularly as it is known to her Majesty's government that the subject of the fisheries is at this moment a matter of negotiation between the United States and Great Britain. "Admiral Seymour expressed his entire concurrence with the government of the United States in its desire to avoid any cause of offence. u He stated that he did not feel at liberty to deviate from the interpretation placed by her Majesty's government on the first article of the convention of 1818 ; that his instructions to the cruisers under his command are, ' to carry out the views of the government in the mildest manner, and not to make any seizure except in case of undoubted infraction of the treaty stipulations.' '' So there, very clearly, is a restatement of Admiral Seymour's instructions. In another letter of the 16th August, written by Commodore Shu- brick, at p. 178 of this same volume, the Appendix to the Counter- Case of the United States, it is stated, in the middle of the page : — " I have not been able to get from Sir George Seymour, in so many words, exactly what his instructions to the commanders of his cruis- ers are; but t believe them to be, to seize vessels found fishing un- questionably within three marine miles of the shore, and to warn those within the headlands; but not to seize such, except they should be armed or show a disposition to resist. He has no new instructions, but is acting under those of last year." I should have thought he had stated the instructions sufficiently before when Admiral Seymour told him that he could not deviate from the interpretation placed by Her Majesty's Government upon the convention; and he knew what that interpretation was. How- ever, he now seems to make it sufficiently clear. Now, during that period there were two United States naval officers in those waters. In 1852 Commodore Perry was in charge; and I wish to read some statements with reference to conversations which were had with Commodore Perry at that time. At p. 192 of the Brit- ish Case Appendix is a memorandum of Vice- Admiral Seymour, the British Admiral, of a conversation which he had had with Commo- dore Perry. I read from the top of p. 192 : — " The Commodore was disposed to admit that the proper limits of the Bay of Chaleur were Miscou and Cape Despair & that the U. S. vessels should keep 3 miles beyond a line drawn between those points but as I observe Capt. Bayfield states the northern boundary is gen- erally considered Point Macquereau it is probable the Americans may claim it as the northern limits of the bay. ARGUMENT OF JOHN S. EWAET. 1305 "I observed that the same principle which he was disposed to apply to the Bay of Chaleur should attach as against fishing purposes to Georges Bay, at the western end of the Gut of Canso. The Com- modore did not dissent nor did he agree further to this observation than in allowing the immediate headlands of bays to form their proper boundaries." This, Sirs, is Georges Bay, the one just referred to. Chaleur Bay you are already familiar with. SIR CHARLES FITZPATKICK: Where are Point Miscou and Cape Despair ? 787 MR. EWART (indicating them on the map) : As to Miscou and Cape Despair, there was a question in Commodore Perry's mind as to whether the line should be in one place or in the other. Georges Bay (indicating) is the other bay that he referred to, and as to which he was non-committal. At p. 195 of the British Case Appendix is an extract from the re- port of Commander Campbell to Vice- Admiral Seymour (one of the British commanders reporting to his chief) in 1852, relating a con- versation that Commander Campbell had had with Commodore Perry. I read from the third paragraph on p. 195 : — " Commodore Perry in alluding to the fisheries told me, that he was fully aware that the United States fishermen frequently violated the Treaty, and pointed out what he considered the limits in nearly the same words, as he used while speaking to you in my presence on board the ' Cumberland? I did not enter upon the subject with him more than I could help, but on his asking me, what I considered the sea boundary of the Bay of Chaleur, I told him that I thought from Mis- cou Point, to Point Macqueron, but that I was merely giving my private opinion. " The Commodore then told me that all the fishermen he had seen complained more of the exclusion from Chaleur Bay, than any other part of the Gulf, but that he told them distinctly they could not fish in that bay without clearly violating the Treaty and that they must take the consequences if they attempted it. He then informed me that the ' Telegraph ' had detained another vessel called the ' Golden Rule ' but that it was '•quite right ' and that he had been told by the other American fishermen that that vessel was taken fishing within the 3 miles." The rest is immaterial, except the last clause : — "I neglected to mention that the Commodore remarked, that the Treaty excluded his countrymen from fishing in the bay, of which Cape St. George and Port Hood are the headlands, but that he is at the same time clearly of opinion that the Treaty by no means pro- vides against their navigating the Gut of Canso.' That bay is the Georges Bay that I was just referring to a moment ago. Then, at p. 202 of the British Case Appendix I wish to read another extract. I reserved it to be read in connection with 1306 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Commodore Perry's admission. The extract I desire to read is in paragraphs 4, 5, and 6 of that letter from Admiral Seymour to the Admiralty : — " It is to be observed that the United States Government has deemed force necessary to protect their rights, when no complaint of the mode in which the Convention was enforced last year has, to my knowledge, been made, and no seizure or circumstance had taken place during the present season which justified the probability of a collision, except one may be brought on by their own people, or in consequence 01 an endeavour to resume the fisheries in the Bay of Chaleur, from which they were excluded last year; and the resump- tion would tend to the great disadvantage of the British fisheries around that bay. " Commodore Perry, in 1852, although not officially authorized to establish what were fishing-grounds open to his countrymen, did not attempt to urge that Chaleur was of that description, and did not himself enter the bay. " I am not authorized by my instructions to pursue a different course from that of last year; and I consider the moment when the United States are sending a force beyond any that can be necessary for their proposed object, ill-suited for concessions. Mr. Crampton did not dissent from this view of Mr. Marcy's proposal; and a mes- sage was therefore sent by electric telegraph on the 9th to his Secre- tary of Legation at Washington, that ' I could not give the assurance requested ; that a single United States ship of war on our own coasts could ascertain facts; and that more would be menace, and likely to produce mischief.' " Now, Sirs, Commodore Perry's instructions are not before the Tribunal. I assume that they are not here for the same reason that ours are not here. They evidently authorised him to make the ad- missions which he has made. Those admissions have been before our friends for some time, and we have had no contradiction of them. In further support of the statement that I am now trying to prove, I ask to call attention to a sentence in a letter from Lord Malmes- bury, to be found in the British Case Appendix, p. 172. In the fourth paragraph from the top of this letter to the British Minister at Washington will be found this language: — "Compelled therefore for the reason already stated to reject the proposition abovementioned but earnestly desirous by all means in their power to avert the chances of collision between American citi- zens and British subjects, Her Majesty's Government will at once adopt the precaution of repeating the instructions, on which during a long series of years British Admirals commanding on the North American station have invariably acted, and they will further in- struct Sir George Seymour to use the utmost forbearance and mod- eration in dealing with such American vessels as may be found mani- festly infringing the terms of the Treaty." We are aware, Sirs, what the instructions were that were issued in 1852. They were the same as had been issued for a long period of years. ABGTJMENT OF JOHN S. EWABT. 1307 788 I refer also to the British Case Appendix, p. 180, a let- ter that was referred to as containing some evidence in the other direction. It is a letter from Mr. Lawrence, United States Minister at London, to Mr. Webster. Mr. Lawrence relates a con- versation that he had with Lord Malmesbury, and in the third para- graph of the letter he says : — " Lord Malmesbury will probably propose to leave that part of the treaty about which we disagree, for the present, just where it has been, and will direct the British authorities to confine their ex- ertions to within three marine miles of the shore, to exercise their power with great leniency, and not to make captures except under flagrant circumstances." That decidedly looks the other way. Lord Malmesbury wrote a letter to Mr. Lawrence bearing the same date, and it may have been that he misconstrued that letter, or that he depended upon his recol- lection of some conversation. Whatever the explanation, I give the Tribunal the letter. It is to be found in the United States Case Appendix, at p. 522. In it Lord Malmesbury gives to Mr. Lawrence categorically what the instructions are, but he may very well have left a wrong impression on Mr. Lawrence's mind : — " The orders that are to go out to our admiral, and of which I have given Mr. Crampton notice, are — " Not to interfere with the Magdalen islands. " To consider the Bay of Fundy on the same footing as we placed it in 1845. " To capture American fishing vessels only under precisely (the) same circumstances as those which would have been acted upon of late years, and when manifestly infringing the treaty. " To exercise these instructions with the greatest forbearance and moderation." The same instructions as previously ! That letter was of the same date as Mr. Lawrence's letter to Mr. Webster. The latter letter was brought to Lord Malmesbury's attention, and he at once contra- dicted the statement that had been attributed to him. The letter of Lord Malmesbury will be found in the British Case Appendix, at p. 197:— " In your despatch No. 140 you state that Mr. Webster had allowed you to peruse the reports made to the United States Government by Mr. Abbott Lawrence of a conversation which he had held with me and Sir John Pakington upon the Fishery Question. " It appears therefrom that Mr. Lawrence was under the impres- sion that I had informed him that no seizures would be made of American vessels trespassing on British fisheries beyond three miles from the shore, and that he had reason to hope that you would be instructed to advise the Colonial authorities, and the Commanders of Her Majesty's ships not to make any seizures whatever during the present fishing season in order that American fishermen might 1308 NORTH ATLANTIC COAST FISHERIES ABBITRATION. ' make up their fares ' by fishing close inshore during the two ensu- ing months. "As Mr. Lawrence appears to have totally misunderstood the tenor of my observations, it is necessary that I should inform you that I did not say that seizures would not be made beyond the three mile distance of the shore within bays, but I said that the President of the United States had proposed to you that Her Majesty's ships should abstain from making such seizures. Moreover no mention was made either by Mr. Lawrence, Sir John Pakington, or myself, of permission to American fishermen to ' make up their fares ' by fishing close in shore for two months. " On the contrary I repeatedly remarked that the intimation given by Her Majesty's Government to the United States left everything as to rights and instructions to Commanders in statu quo; that Her Majesty's Government claimed no new right, and laid down no new principle, nor did they abrogate any previous relaxation; that the British proceeding was in fact one merely of police ; but that we had specially enjoined upon Her Majesty's Officers forbearance and judg- ment in the execution of their instructions." But, Sirs, in order to furnish proof of the statement in support of which I am supplying evidence, I have not to depend alone upon what Commodore Shubrick said, or upon what Commander Camp- bell said, or upon what Lord Malmesbury said. I shall now give quotations from United States authorities in support of the statement that I have made. On the 6th December, 1852, President Fillmore sent a message to the Senate, which is found in the United States Case Appendix, at p. 545, commencing at the paragraph a little below the middle of the page :— " The unadjusted difference, however, between the two governments, as to the interpretation of the first article of the convention of 1818, is still a matter of importance. American fishing-vessels, within nine or ten years, have been excluded from waters to which they had free access for twenty-five years after the negotiation of 789 the treaty. In 1845 this exclusion was relaxed so far as con- cerns the Bay of Fundy but the just and liberal intention of the home government, in compliance with what we think the true construction of the convention, to open all the other outer bays to our fishermen, was abandoned in consequence of the opposition of the colonies." I quote from the same volume, at p. 547, in the letter which Mr. Rush sent to his executors; and at the foot of the page, referring to this question of the right, Mr. Rush says: — " It was the most important and pressing of any then pending. How it ever became a question, and when, I have endeavored to show; but, once raised by Great Britain, she adhered to it, to the extent of instructing heY ships of war to order our fishing vessels away, if found on what she claimed as exclusively her fishing grounds." ARGUMENT OF JOHN S. EWART. 1309 That is practically what British fishermen really were doing, ordering away — not seizing unless it could not be avoided. Then, at p. 549 of the Appendix to the Case of the United States, we have a statement to somewhat the same effect, from Mr. Marcy in the second sentence of that letter from Mr. Marcy to Mr. Rush : " For more than twenty years after the conclusion of that conven- tion there was no serious attempt to exclude our fishermen from the large bays on that coast; but about ten years ago, at the instance of the provincial authorities, the home Government gave a construction to the 1st Article which closes all bays, whatever be their extent, against our citizens for fishing purposes. It is true they have been permitted to fish in the Bay of Fundy. This permission is conceded to them by the British government, as a matter of favor, but denied as a right. That government excludes them from all the other large IV O bays. " Without stopping to read it, I refer the Tribunal in support of the same statement to a memorial that was sent in by the New Bruns- wick Government, in 1845, to the Colonial Office. That was a me- morial objecting to the proposal to open all the other bays; and its language clearly indicates that Americans had been excluded from the Bay of Chaleur up to that time. It points out the great damage, the very severe injury, that would accrue to the people in New Bruns- wick if the American fishermen were to be allowed to enter the Bay of Chaleur. (British Case Appendix, 149). I have now, Sirs, finished that subject, and completed what I had to say as to that interesting period, between 1845 and 1852; and I think that I have made my points so clear — at least I hope I have — as I have gone along, that I do not feel that it is at all necessary that I should summarise or make a review in any way of the points I have endeavoured to make. I complete the historical reference by reminding the Tribunal that in 1854, almost immediately after the period that I have been speak- ing of, came the reciprocity treaty, which remained until 1866 : then the licences to 1870; then the treaty of 1871, and then the formula- tion of the American position in 1877 at Halifax, when the territorial theory was definitely stated and for the first time authoritatively put forward — a theory which was afterwards, as I said in opening, dis- carded by the framers of the United States Case in the proceedings. I now come to what Mr. Warren evidently considered to be one of his strongest arguments. He kept it as a climax until the very end, and instead of reading it from his statement, I think it will be more convenient, and the Tribunal will be able better to follow me, if I take it as it appears in the United States Argument at pp. 193, 194, and 195. It is a little involved, but I hope to be able to make it thoroughly clear. 1310 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Extracts from the protests that were sent in by Mr. Bayard in 1886 are given in these pages, and the allegation is made that as a result of these protests, a circular that had been issued by the Cana- dian Government was amended, by substituting in its place a clause in accordance with the United States contention upon this subject of bays ; that that having been done, Lord Granville expressed his satis- faction at the amendment, and Earl Rosebery said that the documents : — " Have now been amended so as to bring them into exact accord- ance with treaty stipulations." Mr. Warren pointed to that amendment (made under protest from the United States) bringing the circular into accord with the United States views, and to the assertion of Lord Rosebery that it was nec- essary that the amendment should have been made, in order that it should accord with treaty stipulations. Now. Sirs, I believe that that whole matter is based upon a com- plete misapprehension of the correspondence, and is arrived at 790 only by confusing two sets of correspondence — one relating to commercial privileges and the other relating to a seizure ; one raising the question of commercial privileges, and the other raising the question of headlands — and that when those letters are separated one from the other, that this statement completely falls to pieces. In order to make myself clear, I think I must ask the Tribunal to be good enough to allow me to read this statement in full ; because it is extremely important, and Mr. Warren bases upon it, — at least the United States draftsman here bases upon it, — the statement that because of the facts as alleged, it is quite impossible for Great Britain to uphold its contention — that Great Britain is, in reality, putting forward its contention only as a sort of makeweight, hoping to get something else out of it. At p. 193 of the United States Argument I read, a little above the middle of the page : — " Following the termination of the fisheries articles, Mr. Bayard, the Secretary of State, in a note of May 20. 1886, to the British minister, stated with reference to the Canadian attitude toward American fishing vessels : " May I interject, that this letter relates purely to commercial privi- leges : — "But I trust you will join with me in realizing the urgent and essential importance of restricting all arrests of American fishing vessels for supposed or alleged violations of the convention of 1818 within the limitations and conditions laid down by the authorities of Great Britain in 1870, to-wit: That no vessel shall be seized^ unless it is evident and can be clearly proved that the offense of -fishing has been committed and the vessel itself captured within three miles of land. '- ARGUMENT OF JOHN S. EWART. 1311 "In regard to the necessity for the instant imposition of such restrictions upon the arrest of vessels, you will, I believe, agree with rne, and I will therefore ask you to procure such steps to be taken as shall cause such orders to be forthwith put in force under the authority of Her Majesty's Government," Heading the letter in that way, it looks as though it really had something to do with this question of bays — and it had, to this extent, but to this extent only, that previous to this the British Government had agreed that seizures of fishing- vessels should not be made except within the 3-mile limit. Afterwards, fishing- vessels (engaged at other times in fishing) wished to exercise trading privileges, wished to get bait, and things of that sort, and Mr. Bayard applied the previous instructions and said that vessels should be interferred with only if they were fishing; that these vessels were not fishing; and that therefore they should not be interfered with. But the old instructions were drawn with a view to prevent fishing within the 3 miles. Mr. Bayard now was trying to apply those instructions to vessels that were not fishing at all — to vessels that went right into the ports, and commenced to trade there, or purchase bait or sup- plies there. I will make that more clear when I come to the letter. It is necessary that I should say that much at present. The follow- ing letter is along the same lines, and where the asterisks are is a sentence which would have made it quite clear (United States Argu- ment, p. 193) : — "Again, in a note to the British minister, dated May 29, 1886, the Secretary of State wrote : " ' I have also been furnished with a copy of circular No. 371, pur- porting to be from the customs department at Ottawa, dated May 7, 1886, and to be signed by J. Johnson, commissioner of customs, as- suming to execute the provisions of the treaty between the United States and Great Britain, concluded October 20, 1818, and printed copies of a warning, purporting to be issued by George E. Foster, minister of marine and fisheries, dated at Ottawa, March 5, 1886, of a similar tenor, although capable of unequal results in its execution.' " Now, may I read from United States Case Appendix, p. 774, the sentence omitted there: — " Such proceedings I conceive to be flagrantly violative of the reciprocal commercial privileges to which citizens of the United States are lawfully entitled under statutes of Great Britain and the well-defined and publicly proclaimed authority of both countries, besides being in respect of the existing conventions between the two countries an assumption of jurisdiction entirely unwarranted and which is wholly denied by the United States." Then, I go on, in the United States Argument, p. 193 : — " In the interest of the maintenance of peaceful and friendly rela- tions, I give you my earliest information on this subject, adding thaj; I have telegraphed Mr. Phelps, our minister at London, to make 92909°— S. Doc. 870, 61^3, vol 10 27 1312 NORTH ATLANTIC COAST FISHERIES ARBITRATION. earnest protest to Her Majesty's Government against such arbitrary, unlawful, unwarranted and unfriendly action on the part of the Canadian government and its officials, and have instructed Mr. Phelps to given notice that the Government of Great Britain 791 will be held liable for all losses and injuries to citizens of the United States and their property caused by the unauthorized and unfriendly action of the Canadian officials to which I have re- ferred." The next protest does relate to the seizure of vessels between head- lands, but it is dated the 14th June, and the amendment of the cir- cular that is alleged to have been made in consequence of the protest was made prior to the 8th June ; so that this protest, at all events, did not bring about the amendment of the circular. I continue to read from p. 194 of the United States Argument : — " The Secretary of State addressed another note to the British minister on June 14, 1886 : " ' It becomes my duty, in bringing this information to your notice, to request that if any such orders for interference with the unques- tionable rights of the American fishermen to pursue their business without molestation at any point not within three marine miles of the shores, and within the defined limits as to which renunciation of the liberty to fish was expressed in the treaty of 1818, may have been issued, the same may at once be revoked as violative of the rights of citizens of the United States under convention with Great Britain.' " That letter is dated, as I say, after the amendment of the circular, and is quite apart from the subject discussed in the two previous let- ters. It was replied to (United States Case Appendix, p. 823) by the simple statement that there were no such instructions : — " In reply, I have to request you to acquaint Mr. Bayard that Her Majesty's Government have ascertained that no instructions to this effect have been issued by the Canadian Government, but that a fur- ther report is expected upon the subject." The United States Argument goes on, at this same page, 194 : — " Earl Granville, in a despatch, dated June 3, 1886, transmitted to Lord Lansdowne the protest, which the minister of the United States had made against the provisions of circular No. 371 above referred to; and subsequently, as a result of this protest, the circular was amended by substituting in place of the last clause the following : " If the Tribunal will be kind enough to observe, the protest was sent from England to Canada on the 3rd June, and that protest is, of course, not the protest of the 14th June, which immediately pre- cedes— because it was sent on the 3rd June. The protest is the one dated the 29th May, 1886 — on the previous page. And as a result of this protest, that is, of some protest before the 3rd June, any way, the circular was amended by substituting in place of the last clause the following. ARGUMENT OF JOHN S. EWART. 1313 Now, Sirs, while the Tribunal looks at this amended clause in the United States Argument, may I read to them from a letter of the 8th June, from the Marquis of Lansdowne in Canada to Earl Gran- ville, informing him of the amendment? The Tribunal will, in that way, be able to see what the comparison brings out. This is a letter in the British Case Appendix, p. 318, from Quebec to London, tell- ing about the amendment. In it, Lord Lansdowne says: — "This point has been considered by my Government with every desire to revise the Circular in such a manner as to remove all reason- able objections to it upon these or other grounds, and I have much pleasure in informing your Lordship that the Circular will be re- issued with the following concluding paragraphs in lieu of those referred to above." I am going to read to the Tribunal the amendment that was made prior to the 8th June, and therefore prior to the only protest that was made by Mr. Bayard with reference to bays, or to seizures within 3 miles from the shore: — "Having reference to the above you are requested to furnish any " That word is different — " foreign fishing vessels, boats or fishermen found within three marine miles of the shore within your district with a printed copy of the warning enclosed herewith. " ' If any fishing vessel or boat of the United States is found fish- ing or to have been fishing or preparing to fish, or if hovering within the three mile limit, does not depart within twenty-four hours after receiving such warning, you will place an officer on board of such vessel and at once telegraph the facts to the Fisheries Department at Ottawa and await instructions.'" I think that with the exception of two words, " every " for " any," and the insertion of the word "please," the language is identical. That amendment was made prior to the 8th June. 792 In order that I may show what the nature of the amendment was, and that it is not at all such an amendment as is indicated by the United States Argument, I wish to read the circular as originally issued. I refer to the British Case Appendix, pp. 298 and 299; and in order that the Tribunal may be the better able to follow me, let me indicate what the effect of the amendment was. The clause in the circular as originally drawn was too wide. It applied to every foreign vessel, instead of to the vessels of the United States only; and the only change in the circulars was to limit its application to United States vessels. That was the only change that was made. It was previously too wide, it included all foreign vessels, and the amendment that was made — protest or no protest — was to make it specifically applicable to the United States vessels and no others. 1314 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The original circular, as I say, is given in the British Case Appen- dix, at p. 298, and the clause is at the foot of p. 299; and if the Tribunal care to look again at the amended clause, as given on p. 194 of the United States Argument, while I read this, they will be able to see what the nature of the change was. I refer the Tribunal to p. 194 of the United States Argument, in the middle of the page, while I read the circular as it was originally (at the foot of p. 299 of the British Case Appendix) : — " Having reference to the above, you are requested to furnish any foreign fishing vessels, boats or fishermen found within three marine miles of the shore, within your district, for other purposes than those of shelter and of repairing damages, of purchasing wood and of ob- taining water, with a printed copy of the warning enclosed herewith. If such vessel or boat is found fishing, preparing to fish, or violating the provisions of the Convention of 1818, by shipping men or sup- plies or trading, or if hovering within the three-mile limit, does not depart within twenty-four hours after receiving such warning, you will place an officer on board of such vessel, and at once telegraph the facts to the Fisheries Department at Ottawa, and await instructions." As it was originally, it was too wide, because, of course, the conven- tion of 1818 applied only to United States vessels; and yet in this paragraph it was being applied to all foreign vessels. The error was pointed out from London in a telegram of the 4th June, given in the United States Case Appendix [p. 785]. THE PRESIDENT: Where is the original form of the circular? From what place did you read just now? MR. EWART: The British Case Appendix, p. 299, the last paragraph. THE PRESIDENT : I see. Thank you. MR. EWART : That is the clause as it originally occurred. [Thereupon, at 12 o'clock, the Tribunal took a recess until 2 o'clock p. m.] AFTERNOON SESSION, THURSDAY, JULY 14, 1910, 2 P. M. THE PRESIDENT : Will you continue, Mr. Ewart, please ? MR. EWART (resuming) : Mr. President and Gentlemen of the Tri- bunal : — I was engaged in the examination of the contention of the United States as put forward in their Argument at pp. 193 and 194. I had read down to the end of the quotation in the middle of the page. I now wish to continue on p. 194 of the United States Argument. " Earl Granville, in a note to Lord Lansdowne, dated July 15, 1886, acknowledged the receipt of a despatch setting forth the amend- ments to this customs circular." Now, while I read the whole of this letter, may I ask the Tribunal to be kind enough to look at the quotation on p. 194. There are a few words that precede the quotation that will be useful : — ARGUMENT OF JOHN S. EWART. 1315 " My Lord : I have the honour to acknowledge the receipt of your despatch of the 8th of June last." 793 I am reading from the United States Case Appendix, at p. 801 where this extract on p. 194 of the United States Argu- ment is given in full. I am reading the two lines which precede the extract in the United States Argument: — " I have the honour to acknowledge the receipt of your despatch of the 8th of June last, and to acquaint you that "- Then commences the extract: — " Her Majesty's Government observe with satisfaction the amend- ments which have been made in the Customs Circular No. 371 and in the warning to be given to the United States' fishing vessels fre- quenting the waters of Canada." The insertion of the earlier words shows the date of the document that I have already referred to, the 8th of June, and if those words had been in the United States Argument they would have shown that the protest set out in the former part of that page, which is dated the 14th of June, could not have anything to do with the altera- tion which appears between the quotations. The members of the Tribunal will observe, on p. 194 of the Argu- ment, that Mr. Bayard at the top addressed a note to the British Minister on June the 14th. The quotation I have just made expresses Lord Granville's satisfaction at the amendment, but that satisfaction was because of what had been done on the 8th of June. That fact would have appeared, if the whole of Lord Granville's letter had been set out; and we would have then observed, at once, that the protest of the 14th June had nothing whatever to do with the amend- ment which immediately follows it. SIR CHARLES FITZPATRICK: What do you mean when you say " with the amendment which immediately follows it " ? MR. EWART : That immediately follows it on p. 194. SIR CHARLES FITZPATRICK: The amendment had actually been made on the 8th of June previous ? MR. EWART : Yes. THE PRESIDENT: The protest which was the subject of the com- munication of the 14th June had not been referred to in any prior communication ? MR. EWART : No, Sir, it was a separate thing altogether, resulting from a seizure on the old headland idea, or what was supposed to be the old headland idea, and the seizure was at once repudiated, as may be seen by United States Case Appendix, p. 823. That is all of that correspondence. THE PRESIDENT : And the note of the 29th May, or any other note prior to the 8th June, does not refer to that matter? 1316 NORTH ATLANTIC COAST FISHERIES ARBITRATION. MR. EWART: No, Sir. That is the only letter that refers to that matter, and there is just the one reply saying that no such instruc- tions existed. JUDGE GRAY: You understand, Mr. Ewart, do you, that the head- land theory, so called, was distinct from the " bay " contention? MR. EWART: Oh yes, Sir. JUDGE GRAY: You are not speaking of the headlands of bays, but headlands out quite a distance along the coast? MR. EWART : It is to that that I am referring. A seizure had been made which was really objectionable; and that is what Mr. Bayard referred to in his letter of the 14th June asking whether instructions had been given which would have warranted that seizure. SIR CHARLES FITZPATRICK : What seizure was that ? MR. EWART: I cannot give the name of the vessel, if that is what the honourable Arbitrator wants. SIR CHARLES FITZPATRICK: It is not material. MR. EWART: It will appear in that letter. 794 Then, passing to Lord Rosebery's statement, the United States Argument at the foot of p. 194 has this passage : — " The Earl of Rosebery, then Her Majesty's principal secretary of state for foreign affairs, on July 23, 1886, advised the British minister in the United States : " With regard to Mr. Bayard's observations in the same note re- specting a customs circular and a warning issued by the Canadian authorities, and dated respectively the 7th May and the 5th March last. I have to acquaint you that these documents have now been amended so as to bring them into exact accordance with treaty stipu- lations; and I enclose, for communication to the United States Gov- ernment, printed copies of these documents as amended" That document itself is found in the United States Case Appendix, at p. 823, and, if the Tribunal is afterwards working out this some- what tangled matter, it may be of advantage that I should enable them to make marginal notes of where the documents are referred to — in that letter of Lord Rosebery's at p. 823 of the United States Case Appendix, he commences by saying : — " I have to acknowledge the receipt of your dispatch No. 46 (treaty) of the 30th of May " The members of the Tribunal will look in vain for one of the 30th May ; it is one of the 29th May which was enclosed in a letter of the 30th. It may be found at p. 774 of this same volume. In the second sentence : — " In reply I inclose an extract of a dispatch from the governor- general oi Canada, containing observations on the subject." That will be found at p. 785 of this volume. " I have to add that Her Majesty's Government entirely concur in the views expressed by the Marquis of Lansdowne in this extract, of ARGUMENT OP JOHN 8. BWABT. 1317 * which you will communicate a copy to Mr. Bayard, together with a copy ox the present dispatch." That was a document setting out the Canadian contention with reference to commercial privileges. " With regard to Mr. Bayard's observations in the same note [page 774] respecting a customs circular and a warning issued by the Canadian authorities, and dated respectively the 7th May and the 5th March last, I have to acquaint you that these documents have now been amended so as to bring them into exact accordance with treaty stipulations; and I inclose, for communication to the United States Government, printed copies of these documents as amended." The language is almost a little sarcastic there, remembering that the amendment had been merely to reduce the generality of these documents, from their application to all nations, to specific applica- tion to the United States. When Lord Rosebery says that the docu- ments have been amended so as to bring them into exact accordance with treaty stipulations, he really meant there were no treaties with other nations which would have authorised the form of the circular hi its original form. The letter, the members will see, is addressed, not to the United States, for in that case it would not have been in that form, but was to Sir Lionel West. The curtness of it is to be explained by the fact that on the same day Lord Rosebery wrote more at length to Sir Lionel West upon the same subject a letter which will be found at United States Case Appendix, p. 809. I am not going to read it. I merely cite it so that the members of the Tribunal may refer to it if desired. Further explanation can be given of the curtness of this reply of Lord Rosebery 's by saying that the subject of commercial privileges had been a matter of correspondence over a considerable period of time; that Lord Rosebery had very clearly, in four previous letters, indicated what his views were; and that when it is now brought up in this particular form he shortly disposed of it in this almost sar- castic way by saying that the circular has been brought into exact accordance with the treaty stipulations. Lord Rosebery's former letters are of the 24th May, in British Case Appendix, p. 304; the 29th May, British Case Appendix, p. 310; the 2nd June, British Case Appendix, p. 317; and the 23rd July, British Case Appendix, p. 341. I pass now from that subject, — I hope I have been able to make it dear, — and I pass it with the observation, that (if I am right) I may fairly say that I do not think any blame at all attaches to the draughtsman of the Argument, because the correspondence is ex- tremely tangled, and it resulted (if I am right) from the confusion of two sets of correspondence, and from the taking of extracts from those two sets, without observing that they were two sets. 1818 NORTH ATLANTIC! COAST FISHERIES AHB1TBATIOS. 796 Mr. Warren referred to the fact that in the orders issued by the Admiralty in 1886 there was no reservation of the right of Great Britain ; by which he meant that they were not affected by the declaration which accompanied the announcement of the orders of 1870 — a declaration that those orders were not to be taken as an arrangement, or indicative of any change of opinion on the part of the British Government. Mr. Bayard, however, had no suspicion at that time that anything was to be inferred from the form of the orders other than what the orders themselves indicated. In 1870, as I have said, during the period of great tension, during the period when these raids, Fenian raids, as we call them, were being made upon Canadian territory, we were required to reduce the limit of the exclusion to 3 miles. That limit continued in 1886, and there was no necessity for making any reservation, or sending any declaration to the United States. In 1870, reservation was very specifically made, because we notified the United States of the change. That was received by Mr. Fish as done " in a generous spirit of amity." It was not necessary to make any communication in 1886; that had been done once and for all. I only refer to the fact, now, for the purpose of introducing this, that in November of the same year of which I have been speaking, 1886, Mr. Bayard showed very clearly that he had not the slightest idea that Great Britain had in any way receded from her original con- tention, for in that year (British Case Appendix, p. 357), on the loth November, he proposed a settlement of outstanding differences between the two countries ; and I ask leave to read two sentences on p. 358, British Case Appendix, at the end of the second paragraph : — " I now enclose the draft of a memorandum which you may pro- pose to Lord Iddesleigh, and which, I trust, will be found to contain a satisfactory basis for the solution of existing difficulties and assist in securing an assured, just, honorable, and, therefore, mutually satis- factory settlement of the long vexed question of the North Atlantic fisheries." Further down, in the middle of the page, commencing at the paragraph : — " In proposing the adoption of a width of ten miles at the mouth as a proper definition of the bays in which, except on certain speci- fied coasts, the fishermen of the United States are not to take fish, I have followed the example furnished by France and Great Britain in their Convention signed at Paris on the 2nd of August, 1839. This definition was referred to and approved by Mr. Bates, the Umpire of the Commission under the Treaty of 1853, in the case of the United States' fishing schooner ' Washington,' and has since been notably approved and adopted in the Convention signed at the Hague in 1882, and subsequently ratified in relation to fishing in the North Sea, between Germany, Belgium, Denmark, France, Great Britain, and the Netherlands." ARGUMENT OP JOHN S. EWART. 1319 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 pro- posals 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 observa- tions— 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 ex- ception 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 col- umn, 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 fisher- men 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 pro- posed 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;" 796 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 construc- tion of the treaty, the question being whether a bay means a terri- 1320 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 consider- ing 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 mean- ing, 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 dis- card 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 Inter- national 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 prob- ably 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 ARGUMENT OF JOHN S. EWAET. 1321 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 Argu- ment 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 lan- 797 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 pos- sessors 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 Kyswick, 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 Newfound- land 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. 1322 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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, b}^ the United States, to get a spe- cific 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 pro- ceedings 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 ARGUMENT OF JOHN S. EWABT. 1323 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 :— 798 " 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 expresslv 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 na- tion ; and in the treaty of separation it was agreed " and so on. I quote next from the American reprint of the Behring Sea Arbi- tration, 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 revolutionarj' war, the exclusive property of Great Britain, as an appurtenant to its terri- tory. 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 representa- tives 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 terri- torial jurisdiction over the sea that ever was asserted there or else- where, were the general property of mankind, or that a participation in them was a part of the liberty of the open sea. If that proposi- tion 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 cal- culated to produce an erroneous impression. I concede, entirely, most of what Mr. Warren said, and I distinctly agree that Mr. 1324 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Warren proved very clearly that Russia did not claim, and that afterwards, the United States, Russia's successor, did not claim, that Behring Sea was a closed sea. We did not intend to give the impres- sion that such a claim had been asserted. If there ever was such a claim it was quite displaced by the correspondence which preceded the reference of the case to arbitration, and nothing is said about it in the reference. But the point I wish to make is that the United States, as the suc- cessors of Russia, did contend for that which Russia had claimed (as stated very clearly in its Case at p. 21), that is jurisdiction over Behring Sea, and ownership as to the fisheries. We say that the United States did uphold that contention ; did submit that contention to arbitration in 1893; and did, in 1893, uphold the claim that the fisheries in Behring Sea, or the eastern part of them — I am speaking of that, and not at all of the Japanese coast — belonged to the United States. I refer to Moore's International Law Digest, vol. i, at p. 890. At that page the ukase of the Russian Emperor of 1821 is given, by which he sanctioned certain regulations of the Russian-American Company in this language: — "'the pursuits of commerce, whaling, and fishing, and of all other industry, on all islands, ports, and gulfs, including the whole of the north west coast of America, beginning from Bering's Strait to the 51° of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands, from Bering's Strait to the south cape of the island of Urup, viz, to 45° 50' northern latitude,' were 'exclusively granted to Russian subjects,' and all foreign vessels were forbidden, except in case of distress, " not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than a hundred Italian miles.' " That was the claim of liussia in 1821. That claim met with very decided opposition both from Great Britain and the United States, as is shown upon the following page of this volume, and that opposi- tion led to two treaties, one with the United States in 1824, and one with Great Britain in 1825. By the treaty of 1824 with the United States it was agreed : — " ' that, in any part of the Great Ocean, commonly called the Pacific Ocean, or South Sea, the respective citizens or subjects of the high contracting parties shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the 799 coasts, upon points which may not already have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles.' " I need not read those. Then the United States purchased from Russia, all its interest in all the territory and dominion of the Rus- sian Emperor on the continent of America and the adjacent islands. After that the view of the United States underwent a certain change, ARGUMENT OF JOHN S. EWART. 1325 and, instead of any protest against this ukase of 1821, the United States said that the ukase was perfectly good except that it extended too far down into the ocean, that it was all right in so far as Behring Sea was concerned, but that when it came below the islands it was bad. I read from p. 901 what this volume says about the note that Mr. Elaine, United States Secretary of State, sent to the British Ambassador : — " This note, which is of considerable length, is almost wholly de- voted to an argument to show that the jurisdictional claim of Russia put forth in the ukase of 1821 was acquiesced in by Great Britain and the United States north of the sixtieth parallel of north latitude. Mr. Blaine contended that the protest of Mr. Adams "- That is the protest in which Great Britain joined in 1821. " was not against the Russian claim itself, but against its exten- sion southward to the fifty-first degree of north latitude; that the term ' Continent of America,' as used by Mr. Adams, was employed not in the geographical sense, but to distinguish the territory of 'America ' from the territory of the ' Russian possessions ; ' that the phrase ' North West coast ' was used in two senses — one including the north west coast of the Russian possessions, and the other merely the coat of America whose northern limit was the sixtieth parallel of north latitude, and that it was used by Mr. Adams, as well as by British statesmen at the time, in the latter sense. Mr. Blaine also contended that in the treaties concluded by the United States and Great Britain with Russia in 1824 and 1825 there was no ' attempt at regulating or controlling, or even asserting an interest in, the Rus- sian possessions and the Bering Sea, which lie far to the north and west of the territory which formed the basis of the contention.' He argued that the terms ' Great Ocean,' ' Pacific Ocean,' and ' South Sea ' did not include the Bering Sea." Diplomatic correspondence was not sufficient to resolve that diffi- culty and so arbitration was agreed upon. The questions submitted are found at p. 905 of this volume, and it will be seen that this very question of exclusive jurisdiction which the United States was advancing was one of the subjects submitted to the Tribunal : — " 1. What exclusive jurisdiction in the sea now known as the Bering's Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States? " 2. How far were these claims of jurisdiction as to the seal fish- eries recognized and conceded by Great Britain ? "3. Was the body of water now known as the Bering's Sea in- cluded in the phrase ' Pacific Ocean ' as used in the treaty of 1825 be- tween Great Britain and Russia; and what rights, if any, in the Bering's Sea were held and exclusively exercised by Russia after said treaty ? " 4. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Bering's Sea east of the water boundary, in the treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that treaty ? " 1326 NORTH ATLANTIC COAST FISHERIES ARBITRATION. All these four questions are devoted to the question of jurisdiction. The fifth raised the other question, whether, apart from jurisdiction altogether, the United States had not some property in the seals, which gave the United States the right to follow them into the ocean and to protect them from destruction there. " 5. Has the United States any right, and if so, what right of pro- tection 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 ? " It seems to be very difficult for the United States to contend that there was any international agreement as to unindented coasts prior to 1783. I merely mention 1783 for the purpose of summarising all the facts and putting them together. Between 1783 and 1818, let me remind the Tribunal, in 1793, in the Delaware Bay case, the Attorney General of the United States claimed more than 3 miles. In the same year President Jefferson discussed the matter and left it unsettled. In 1805 the President suggested that it might go out to the Gulf Stream. And in 1806 negotiations were undertaken expressly because 800 there was no agreement upon the subject They were trying to come to an agreement. If there had been anything in inter- national law which fixed the limit of jurisdiction upon unindented coasts it would not have been necessary to have discussed it in 1806. But there was a discussion and a disagreement. It was afterwards fixed at 5 miles from the coast because the coast of North America might be entitled to be regarded as an exception from the general rule. Why it was an exception from the general rule, however, was not stated, but it is North America that we are discussing. In 1814- JUDGE GRAY : What general rule are you referring to ? MR. EWART : The general rule as to 3 miles from the coast. JUDGE GRAY : You say that it was the general rule at that time ? MR. EWART : No, Sir, not at that time. That is quite outside of the line of what I am presenting to the Tribunal. I am speaking of the general rule now. THE PRESIDENT: On p. 23 of the British Case Appendix, there ap- peari article 25 of the Jay Treaty, and in that article there are men- tioned, besides " coast," " bays, ports, or rivers of their territories." It says that — " Neither of the said parties shall permit the ships or goods be- longing to the subjects or citizens of the other to be taken within cannon shot of the coast, nor in any of the bays, ports, or rivers of their territories, by ships of war " ARGUMENT OF JOHN S. EWART. 1327 &c. Here, " bays " are distinguished from " coast," and in the draft treaty of 1806 there is no mention made of bays, neither in article 12 nor in article 19. These articles treat only of the distance from the shore, and they state a distance of 5 miles from the shore. What is the explanation of that difference? MR. EWART: Will you, Mr. President, be good enough to look at the very last clause of the 1806 draft, and you will see there what was proposed to be done with the latter part of section 25 of the 1794 treaty. THE PRESIDENT : Beginning " Neither of the said parties " ; that is the short paragraph of article 19? MR. EWART: Yes, Sir. The Tribunal will observe the difference between these two clauses. They are dealing with the same subject. In 1794, p. 23, if I may be allowed to restate the point, Mr. President, they provided that: — " Neither of the said parties shall permit the ships or goods be- longing to the subjects or citizens of the other to be taken within cannon shot of the coast, nor in any of the bays, ports, or rivers of their territories, by ships of war or others having commission from any Prince, Republic, or State whatever. But, in case it should so happen, the party whose territorial rights shall thus have been vio- lated shall use his utmost endeavours "- and so on. In that treaty it is " within cannon shot of the coast," and also in " bays, ports, or rivers." These are spoken of as terri- torial. Mr. Warren answered that by saying that the treaty was rescinded, but, of course, it is immaterial whether it was rescinded or not, because it is a declaration as to territorial* rights. Then, in 1806, what the parties proposed to substitute for that, was a clause very much the same, but leaving out, after the words " within can- non shot of the coast " the words " bays, ports, or rivers." The sec- ond sentence is very much the same, if not identical, with the second sentence in the previous treaty. It provides that — " in case it should so happen, the party whose territorial rights shall thus have been violated shall use his utmost endeavours "- &c. So that, in the previous case, we have an acknowledgment that territorial rights extended not only to 3 miles distance from the coast, but to bays, ports, and rivers. In the latter case, we have an acknowledgment that territorial rights extended to 3 miles from the coast. One must not take these treaties as indicating that the parties were declaring that there was no territorial jurisdiction in any other place than those mentioned. They are saying that these places are territorial, but I think that we cannot give the 1806 draft the con- struction that because the parties agreed that " within cannon shot of the coast" was territorial, therefore, that bays were not terri- 92909°— S. Doc. 870, 61-3, vol 10 28 1328 NORTH ATLANTIC COAST FISHERIES ARBITRATION. torial. Bays, by the 1794 treaty, were declared to be territorial, and Delaware Bay, they had agreed, in 1793, was territorial. 801 THE PRESIDENT: My question was whether you could state the reason why in the draft treaty in 1806 there was no men- tion of bays? MR. EWART: No, Sir, I cannot. I see the omission. THE PRESIDENT : That is omitted, and it is not to be explained why they omitted bays? MR. EWART: No, Sir, I have no explanation to offer. The point I wish to make is that the omission is not equivalent to saying that they are not territorial. SIR CHARLES FITZPATRICK: What effect do you give to the words "maritime jurisdiction" in article 12? MR. EWART: That is 5 miles, I think, because there is no mention of bays in the previous paragraph. THE PRESIDENT: You do not think that the reason why they have omitted the word "bays" is that the territorial area had been en- larged from 3 miles to 5 miles? MR. EWART : That had not occurred to me as possible. THE PRESIDENT: One could perhaps imagine that they thought that by the enlargement of the belt to 5 miles they had includued bays ? MR. EWART: I think not, Sir, for Delaware Bay, I understand, is 14 miles, and they were certainly not intending to declare, even by implication, that Delaware Bay was a non-territorial bay. I leave that subject. I think, perhaps, that the list of the refer- ences which I have given could be supplemented, but I believe it to be indisputable that at that time there was no agreement even as to unindented coasts. As to bays. I wish to say just a word or two in connection with the written argument which. Mr. Warren was kind enough to have delivered to me, as early as it was possible for him to do it, and which I have read. SIR CHARLES FITZPATRICK: Before you leave that point, will you allow me to ask one question that occurs to me now: Would you, within the jurisdiction described in article 12, not include the bays on the coast? Would not they be in the maritime jurisdiction? MR. EWART: Some of them would, Sir, within the 5 miles; but 5 miles would not be sufficient to cover some of them. Delaware Bay, for instance, and Chesapeake Bay would not be included. Of course, it would include the bays up to 10 miles — 5 miles on each side would include them. SIR CITARLES FITZPATRICK: Would not the bays extending into the territory be within the maritime jurisdiction, surrounded on all sides by the territory of the country ? ARGUMENT OF JOHN S. EWABT. 1329 MR. EWART: Oh, yes; they would undoubtedly; and my point is that this treaty was not at all intended to declare what was non- territorial, but within the limits of what it did describe, it said those places were territorial. And we cannot gather that the parties were agreeing that other places were non-territorial. It would be impossible to conceive that they intended to do that. I have looked over Mr. Warren's written argument, and the authorities that he cites, and I find that there is none of them earlier than 1818. The earliest is G. F. de Martens, and the extract which he gives from de Martens is taken not from the earlier edition of 1788, but from the later edition of 1821. In the earlier edition of de Martens there is this statement :— " What has been said of lakes and rivers, holds good also with re- spect to straits, which are not in general wider that the great rivers and lakes. So also those parts of the sea which are near land may be looked on as lawfully acquired, and maintained as the property and under the dominion of the nation who is master of the coast. "A custom, generally acknowledged, extends the authority of the possessor of the coast to a cannon shot from the shore; that is to say, three leagues from the shore, and this distance is the least that a nation ought now to claim as the extent of its dominion on the seas." I was inclined to think at first there must be some mistake about that " cannon shot or 3 leagues," but de Martens did use 802 the expression in that way, and it is undoubted that that is what he intended, for in other editions he uses the same lan- guage. In the edition from which Mr. Warren quotes — THE PRESIDENT: What is the date of the edition from which you were quoting? MR. EWART: I was quoting from the edition of 1789, translated into English by William Cobbett in 1802. Mr. Warren's extract is from the edition of 1821, and the phrase- ology there is as follows : — '• What has been said about rivers and lakes [that they are the property of the state] is equally applicable to straits and gulfs; above all to those which do not exceed the ordinary width of rivers or the double range of cannon. "Likewise, a nation may assume an exclusive right over those neighboring portions of the sea (mare proximum) susceptible of control from the shore. Different opinions have been expressed upon the distance to which the rights of the master of the shore extend. All nations of Europe to day agree that the rule is that straits, gulfs, and the adjacent sea belong to the owner of the shore, at least as far as the range of a cannon placed on the shore." He says all nations agree upon the minimum ; that that at least is true. But he does not pretend that there is any agreement as to 1330 NORTH ATLANTIC COAST FISHERIES ARBITRATION. whether there is a wider limit or not ; and in the extract which Mr. Warren has supplied us with I find this : — " We do not contest the exclusive right of Great Britain over St. George's Channel, of the King of Denmark over the Great and Little Belt and the Sound; of the Turks over the Archipelago, the Sea of Marmara, and the straits which lead to the Black Sea ; of the King of Naples over the Strait of Messina; of Holland over the Zuyder- Zee ; and of Sweden over the Gulf of Finland," And in the edition from which Mr. Warren quotes, M. Verge, the editor, supplied a note, which Mr. Warren reproduces: — "According to M. de Cussy (Phases, vol. 1, p. 97), we may mention the following as being considered belonging to the territorial sea subject to the laws and surveillance of the adjacent states. The Sea of Azof and the Sea of Marmara; the Zuyder-Zee and the Dolard. the Gulfs of Bothnia and Finland, the Gulf of St. Lawrence in America, a part of the Gulf of Mexico within the respective limits fixed by the nations whose territory is bordered by that gulf." We are a long way now, the Tribunal will see, from 6-mile bays. Upon the whole, Sirs, I venture to support the suggestion that is made by Sir Robert Finlay, that if any principle is to be adopted with reference to bays, it cannot be better than that of Grotius. It may be said that that is indefinite. It must be indefinite, unless one is to establish a mathematical proportion between the length of a bay and its width. No one has ever suggested what that proportion ought to be. It seems to me that if ever any mathematical statement is made with reference to the territoriality of bays, it must be stated in those terms. It is quite impossible that the territoriality of a bay is to be determined merely by its width at the mouth. For instance, supposing that one takes a bay like that (indicating on the map) or rather, something that is a more depression in the shore, something like this (indicating), which is clearly not a bay. It is less than 5 miles, but still no one will call it a bay, judged by the width of its headlands. If you say that everything less than 6 miles is a bay, territorially then that is a bay. But suppose you draw outside of that, a figure having a width of 7, 8, or 10 miles, and you continue its depth like this (indicating on map) and bringing it back to there (indicating great length), everyone will agree that that is a bay. So I submit that, indefinite as the rule is, unless one is going to treat the subject mathematically, as a proportion between length and breadth, the best we can do is to take Grotius' rule. It has been very largely accepted, and perhaps in no country more so than in the United States. If one looks at the United States Attorney-General's opinion of 1793 (British Case Appendix, p. 55), it will be found that it is indi- cated as being the best rule. Again, in the decision of the Alleganean (already put in) it is referred to; and there is also the Conception ARGUMENT OF JOHN 8. EWABT. 1331 Bay Case. These do not all mention Grotius' name, but they all proceed upon the same principle. The Conception Bay Case will be found to indicate that the only rule is such as I have suggested. 803 JUDGE GRAY : Will you k'indly put your pointer on Concep- tion Bay on that map ? MR. EWART: Yes, Sir, it is here (indicating). JUDGE GRAY : Thank you. THE PRESIDENT : If I understand you correctly, Sir, your criterion is not only the width of the bay at the entrance, but the whole con- figuration of the bay ? MR. EWART: Precisely. THE PRESIDENT: And the width is one of the elements? MR. EWART : The width is one of the elements only. THE PRESIDENT: The width is one of the elements of the con- figuration, but not the only one? MR. EWART: That is my idea. DR. DRAGO : What depth, more or less, is required of an inlet of the ocean in order to form a bay ? MR. EWART : I would not like to propose any proportion. I think when one looks at a bay, one has very little difficulty in saying that it is a bay; and one carries in mind, indefinitely, the necessity of proportion. But, of course, there is what Senator Turner described as the twilight zone ; and some figures will come so near the line on one side or the other that there may be differences of opinion. I think it will be impossible to eradicate that, unless the nations agree upon some mathematical proportion. Until then, we must proceed, I think, upon Grotius' rule, and there is this much to be said in favour of it : That all nations so far have proceeded upon it. JUDGE GRAY: Have you that language of Grotius before you, so that you can read it readily? MR. EWART : Yes, Sir ; I think so. JUDGE GRAY : Do not let me take your time, if it is any trouble to find it. MR. EWART: I think I can get it in a moment, Sir. Here it is: — " By this instance it seems to appear that the property and domin- ion of the sea might belong to him who is in possession of the lands on both sides; though it be open above, as a gulph, or above and below, as a streight ; provided it is not so great a part of the sea, that when compared with the lands on both sides, it cannot be sup- posed to be some part of them." Those are the words, Sir. JUDGE GRAY: Thank you. DR. DRAGO : There must be an inlet of some considerable extent ? MR. EWART: There must be an inlet, yes, Sir. In the British Case Appendix, p. 488, it will be found that the opinion of Senator Mor- 1332 NORTH ATLANTIC COAST FISHERIES ARBITRATION. gan (one of the Arbitrators in the Behring Sea Case) was coached in very much that language : — " The right of dominion in a sea like Bering Sea or the sea of Okhotsk does not depend on its being separated from water commu- nication with the ocean. If the configuration of the land surround- ing it is such as to make it necessary to the peculiar commerce of the country within which it is embayed, or to the defence of such country, or to the proper administration of its powers of government over its own people, it is a right ex debito justitice that there should be domin- ion over such sea." And in the Argument of the United States in the Alaska Boundary Case (to be found on the same page) there is this: — " In cases of this sort " the Argument is referring to the coast of Florida, which is very much cut up with islands and inlets — " In cases of this sort the question whether the interior waters are, or are not, lakes enclosed within the territory, must always depend upon the depth upon the banks, and the width of the entrances. Each must be judged upon its own merits. But in the instance cited, there can be little doubt that the whole Archipielago de los Canaiios is a mere salt-water lake, and that the boundary of tJie land of Cuba runs along the exterior edge of the banks." 804 I would quote, also, from the judgment in the Alleganean Case — that is the Case with reference to Chesapeake Bay, in 1885 — where the learned judge quoted the Conception Bay Case, evi- dently with approval. He said : — " ' But perhaps the most thoroughly considered and important case is that of Direct U. S. Cable Co. v. Anglo-American Tel. Go. in the House of Lords.' " SIR CHARLES FITZPATRICK: From what are you reading? MR. EWART : A print of the case has been handed in already. SIR CHARLES FITZPATRICK: I thought it was in the Case? MR. EWART : No ; it is one of the documents handed in to the Tri- bunal. THE PRESIDENT : It is in the separate print of the Alleganean Case ? MR. EWART: Yes, Sir. THE PRESIDENT : What page do you read from ? MR. EWART : It is not paged. It will be found on the third page of that extract, Sir, which you have, near the top, commencing at the second paragraph : — " This opinion states that Conception Bay is a body of water hav- ing an average width of fifteen miles, a distance of forty miles from the head to one of the capes at the entrance and fifty miles to the other, and a distance of twenty miles between the headlands. Com- ing to the question, the Lords say (p. 419) : ARGUMENT OF JOHN S. EWART. 1333 " ' We find a universal agreement that harbors, estuaries and bays, landlocked, belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to deter- mine what is a " bay " for this purpose. It seems generally agreed that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is a part of the territory ; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation ; some suggesting,' " etc. Now, passing on to the next paragraph : — " ' It does not appear to their lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts, and it has never, that they can find, been made the ground of any judicial determination, if it were necessary in this case to lay down a rule, the difficulty of the task would not deter their lordships from attempting to fulfill it. But in their opinion it is not necessary.' " That is quoted in the case of the " Alleganean " ; and although Grotius' name is not mentioned, it is the Grotius idea. When listening to Mr. Warren's argument, in which he insisted so much upon the dictum of Bynkershoek that territorial water must be within 3 miles, or a cannon-shot, I could not help constantly thinking of what he was going to do with the River St. Lawrence, or any other river. The mouth of the River St. Lawrence, upon a reference between Great Britain and the United States (under the terms of the reciprocity treaty of 1854) was declared to be at this point (indicating Cape Chatte on map). By that treaty the United States were admitted to all our coast fisheries, but not to the rivers. It was therefore important to determine where the rivers ended, and where the gulfs or the ocean commenced ; and so there was a reference to settle that question. The arbitrators determined that that was the point, Cape Chatte, — from there over to there (indicating on map), a distance of over 30 miles. And, as a matter of fact, you can go 300 miles up the river above that line before you will come to a point where the coasts approach one another within a distance of 6 miles. Now, if Mr. Warren's quotation as to territoriality being limited to 3 miles from the coast applies universally — and I do not see why it should not apply to rivers in the same way as to bays — then we have no territorial power or ownership over the River St. Lawrence almost up to Quebec. A river has no greater claim, as far as I can see, to territoriality, than a bay. That point was taken up in the United States Attorney-General's opinion in 1793. He first asked as to whether Delaware Bay was a river or not. and he said part of it was. But supposing the river was 1334 NORTH ATLANTIC COAST FISHERIES ARBITRATION. dried up, he said, what difference would it make? And so I say, supposing that all the fresh water that comes down the St. Lawrence ceased to flow, the tide would still go up 300 miles, and there would be water in the bed which would have ceased to be that of a 805 river and would have become the bed of a bay, for a distance of 300 miles — there would be a bay which was never less than 6 miles wide, and yet 300 miles long. It seems to me impossible, Sirs, to apply the rule which Mr. Warren suggests in the way that he has suggested. Passing on, I wish to call the attention of the Tribunal to the sub- ject of United States bays. First, as to the Delaware Bay: We had been promised in the case a statement as to the position of the United States as to Delaware Bay, in their printed Argument. And we looked for it with interest, because it did seem to us to be a matter of difficulty for the United States to claim all their own bays that were over 6 miles, and yet to assert that there was not one of that char- acter north of the international boundary. I have now received from Mr. Warren — I am sorry that I have not my copy of his supplemen- tary argument ° here, but from memory — JUDGE GRAY: Here is a copy. DR. DRAGO: You may have mine. MR. EWART : Thank you very much, Sirs ; but I think I have it suf- ficiently in mind, and it would take me some time to turn to the exact passages to which I refer. Depending upon memory, to be corrected, of course, by the members of the Tribunal if I am in error, it seems to me that Mr. Warren put the territoriality of Delaware Bay upon the fact that Great Britain claimed it to be territorial in 1793 (when she made the claim for the release of the " Grange ") ; that the Attor- ney-General made an assertion of right on the part of the United States (in his opinion, which was adopted by the United States offi- cially) ; and that, by submitting to the opinion, France also assented to the declaration of the United States that it was territorial water. That may be all very true, Sirs, and I do not question in the very slightest that a transaction of that kind goes a long way to establish territoriality, and that, as between the parties themselves, it may be conclusive. But what I suggest is this: That it is not at all an an- swer to the question as to how Delaware Bay was a territorial bay before those incidents occurred. What the Attorney-General had to determine was, not whether the bay was going to be a bay after his opinion was acted upon by the United States, and acted upon by France, and accepted by the nations as a decision and a declaration of territoriality, but what was the character of the bay at the time the seizure was made. At that tune none of these things had happened. •Pp. 723-739 supra. ARGUMENT OF JOHN S. EWABT. 1335 There had been no demand by Great Britain ; there had been no opin- ion of the Attorney-General; there had been no assent of France. How was it territorial when that seizure happened? To ascertain that, you have to go to the opinion of the Attorney-General, and you will find that he says that it does not at all depend upon such points as Mr. Warren suggests. In the British Case Appendix, at pp. 54 and 55, it is set out. I will not read any more than this : — " No; the corner stone of our claim is, that the United States are proprietors of the lands on both sides of the Delaware, from its head to its entrance into the sea." That was quite sufficient — the bay being of the character that it was. And in Kent's " Commentaries," quoted in the British Argu- ment, at p. 95, the ground upon which the United States based their claim to territoriality of the bay is stated in these words : — "The executive authority of this country, in 1793, considered the whole of Delaware Bay to be within our territorial jurisdiction; and it rested its claim upon those authorities which admit that gulfs, channels, and arms of the sea, belong to the people with whose lands they are encompassed. It was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea beyond the reach of cannon-shot." Kent puts it precisely upon the ground that the Attorney-General placed it in the extract that I have just given. That is the earliest instance of dealing with territoriality of bays in the United States. The next to which I refer is the treaty with reference to Fuca Straits. The treaty between Great Britain and the United States is in the British Case Appendix, at p. 33, and it provided that the line of boundary between the territories should be so-and-so, includ- ing the words " through the middle of the said channel and of Fuca's Straits to the Pacific Ocean;" The United States has supplied the Tribunal with a chart, in which the boundary-line is shown. It comes in a zigzag sort of way 806 commencing at the international boundary here (indicating on the map) between Canada on the one side and the United States on the other, and it goes out into the ocean to a point there (indicating on the map) in Georges Strait. Then it comes down this way, and goes through the islands; and comes down here (indi- cating), and passes through the centre of Fuca Straits out to the ocean. The greatest width of Fuca Straits is about 10 miles— 1QJ miles. Mr. Warren suggests that the boundary-line in the centre of Fuca Straits was drawn not really as a boundary-line, but that the two nations might know that their territorial waters were not where the line is ; that their limijts were at some other places on either side 1336 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of it; that the territorial waters of the United States were to be found somewhere south of the line and the British waters were to be found somewhere north of it. But I humbly submit that the fixing of a boundary-line is for the purpose of showing where the boundary- line is — not at all to indicate the place where there is no boundary- line and to show that the limits of the territorial waters of the parties are some place else. Mr. Warren seemed to be reduced to that position by the fact that 10 miles here (indicating on map) is too wide. The parties seemed to be dividing that water between them; and that is what we say they did. Mr. Warren thinks not. Very well, on this chart there is, up in the corner here, an indication of a line which is said to separate the sea from the inland waters; and that line commences from Dun- geness Point here, — curiously enough, it is an English name, and sometimes used in England in this same connection — from Dunge- ness Point, here, over to Cattle Point, there (indicating on map). The reason that the line is drawn there as separating the sea from the inland waters, no doubt, is that that is the first place at which they get two points of land both in United States territory. They do not draw it out here (indicating the Straits) because only one end of the line would be upon United States territory. The distance at the place where the line is drawn serves my purpose much better, as it happens, than between the two banks of Fuca Straits, because at this place the distance is ¥l\ miles, whereas in the Fuca Straits it is only about 10 miles. The next item that I cite in that connection, and I only mention it because Sir Robert Finlay referred to it, is the treaty between the United States and Mexico. It is quite open to the observation that Mr. Warren made about it, that it was only an arrangement between two countries. So it was, but one of the countries was the United States; and the United States and Mexico were agreeing that their boundary ran 3 leagues from land out into the sea. Then I wish to deal with the Alaska matter. Mr. Warren rather found fault with our statement that the United States were claiming, or had claimed the outside edge of the archipelago there, and he read from the United States Counter-Case in the Alaska proceedings. Now, may I ask the Tribunal to be kind enough to take our book of maps for the purpose of following where, according to the United States Counter-Case, they did claim that their line ran. I refer to map No. 15. The tribunal will see the number of the maps, up in the right-hand corner. I read from the United States Counter-Case in the Alaska pro- ceedings, American reprint, volume iv, at p. 32, and ask the Tribunal to look at map No. 15 in this connection: — AKGUMENT OF JOHN S. EWART. 1337 " In the present instance the political or legal coast line drawn southward from Cape Spencer "- Cape Spencer, the Tribunal will find about the centre _ SIR CHARLES FITZPATRICK: Will you repeat that, please? Mr. EWART : They commence at Cape Spencer, which is on the coast line, a little above the 58th degree of latitude. I read : _ ; In the present instance the political or legal coast line drawn southward from Cape Spencer would cross to the northwestern shore of Chichagof Island " - That is a distance of 9 miles - " and follow down the western side of that Island and of Baranof Island to Cape Ommaney ; " To get that, we have to go on to the next map. You go down that Chichagof Island, continue on down Baranof Island to the end of it, where it comes to a point on map No. 16 ; I continue reading : — " at this point it would turn northward for a short distance and then cross Chatham Strait " - 807 Which the members will see coming straight down from the north — " to the western shore of Kuiu Island, thence again turning south- ward along that shore and along the outlying islets west of Prince of Wales Island,"- Now, that brings us out to the Coronation Islands there. The Prince of Wales Island is the very large island outside of which there are a number of smaller ones. And the document says : — " turning southward along that shore and along the outlying islets west of Prince of Wales Island," So that takes us over to Coronation Island, and crosses Iphigenia Bay, 31^ miles to Noyes Island; then it goes over to Baker Island, and then it goes further on to Dall Island — that would be 27£ miles, and comes on to Cape Muzon. I continue to read from this same p. 32 in the Alaska Case : — " thence again turning southward along that shore and along the outlying islets west of Prince of Wales Island, the line would round Cape Muzon and proceed eastward to Cape Chacon ; " In order to do that, you must make a jump of 14 miles, which is quite easy, after the ones that we have been making. " thence following northward along the eastern shore of Prince of Wales Island to Clarence Strait " The members of the Tribunal will see Clarence Strait, coming down from the north there — " it would cross the latter " — • 1338 NORTH ATLANTIC COAST FISHERIES ARBITRATION. That is, it would cross Clarence Strait — " at its entrance " We have not that distance mentioned. I continue reading: — " and proceed southeastward to the parallel of 54° 40' at the point where it enters Portland Canal." By that I suppose they mean it would cut across the headlands from the lower point of Gravina Island, over to Annette Island, over to Duke Island, and then over to the mainland, taking a last jump of 13£ miles. I continue reading: — " Thus the political coast line of Southeastern Alaska does not touch the mainland between Cape Spencer and 55° of north latitude." That is what Mr. Warren quoted against us. Before leaving those maps it will be convenient if I ask the Tri- bunal now to look at the maps of the United States coast which are in this volume, — No. 8. Taking map No. 8, the Tribunal will see some of the lines that Chancellor Kent claimed on behalf of the United States — very generous sort of lines. Perhaps I am putting it a little too high when I say that he claimed them on behalf of the United States. He indicated that it would be quite correct for the United States to claim them. And I referred to these maps not merely for the purpose of showing what Chancellor Kent was refer- ring to, but also to show the conformation of some of the United States bays. Take that one Nantucket Sound. It is 10 miles there, and I think one would have no difficulty in looking at it to say that it was a bay. When you go a little further north of that, and look at the distance between Cape Cod and Cape Ann, one would think that that might be a little too long; but from Cape Cod westward, a distance of 15 miles, it looks more like a bay. Delaware Bay, of which we have been speaking so much, is found on the next map, No. 9, with a width of 10£ miles, and a distance of 30 before it narrows down to 6. Chesapeake Bay is found on the next map, and Long Island Sound on the one succeeding. Now, Sirs, just a word as to the authors, and I am going to say nothing except with reference to the United States authors. My gen- eral word is that I do not know any of them who has upheld the present United States contention. We have had several referred to. and I only mention them to say that not one of them — I 808 think I am justified in the remark — not one of them advocates the rule now contended for by the United States. Kent cer- tainly does not; Wheaton does not; Hannis Taylor does not — he says: " It is very difficult, to determine." Halleck does not — he refers to differences of opinion, and gives none of his own. There are two others who have not yet been referred to, and as they are very recent, ARGUMENT OF JOHN S. EWART. 1339 and I believe men of good standing— one of them certainly is; the other I do not know so well— I venture to read short paragraphs from them. One is " Gould on Waters "—John M. Gould, who is well known, not only in connection with this work, which has passed through several editions, but as editor and commentator on " Kent's Commentatories "—a man, I believe, generally judged to have been quite competent for that very difficult work. In his last edition, published in 1900, at pp. 9 and 10, he says this : — ;' The territorial jurisdiction of a State now extends seaward to the distance of three geographical miles; and where bays and inlets are formed by the indentations of the coast, even though they are somewhat broader than the double range of cannon, this external limit of jurisdiction is determined by meaning seaward from a straight line drawn from one enclosing headland to the other. Such inlets and branches of the sea, when sufficiently narrow, and within this line of jurisdiction, may be within the body of the adjacent county." The other work that I refer to is that of Mr. Farnham. He seems to be the Yale associate editor of the " Lawyer's Reports Annotated." His work was issued in 1904. It is in three volumes, I think, and at p. 25 of vol. i he says this : — "A bay lying within the boundaries of a country is a part of it. This is especially true if the entrance is of such a nature that it can be defended from the shore. But the rule is not limited to such bays as have narrow entrances. The reason for the rule and public policy unite in according the title to bays with wider entrances to the owner of the surrounding land. The commerce on it must of necessity be mostly local, and it can be of no advantage to foreigners, except possibly a refuge in time of storm, which would always be accorded to foreign powers; while to throw it open to common ownership would surrender the right of controlling the fisheries, and subject the adjoining country to risk in times of war. Great Britain has always insisted that its jurisdiction extended over all bays and gulfs upon the shores of its territory, whether their mouths were wider than the double range of cannon or not. Other sovereign powers have also claimed title to such bays, and the courts have upheld their claims. They have been generally acquiesced in, and there is no dispo- sition at the present time to question the validity of the claim. The Chesapeake bay, the headlands at the mouth of which are about 12 miles apart, the bay itself being not more than 20 miles in width and 200 miles in length, is not a part of the high seas, but belongs exclu- sively to the United States. If the entrance is not more than 2 marine leagues wide, the bay is the property of the nation owning the ad- joining shores, even though the distance between the shores may in some portions exceed that extent. In determining the width of the entrance of a bay, the measurement is to be taken from island to island if any lie in the entrance, and not directly from headland to headland." At a stormy period of the French Revolution, Sirs, at a time when the laws against riot and assassination were being somewhat roughly 1340 NORTH ATLANTIC COAST FISHERIES ARBITRATION. enforced, a suggestion was made to a man in authority that greater success would be obtained if greater moderation were shown. And the reply was, " Parf aitement, que messieurs les assassins commencent." Without applying at all that word to the United States, but the idea merely, I think I may close by saying that if the United States wishes to have established as a principle of international law that no bays can be territorial unless they are less than 6 miles wide they should show the example — they should get some reputable writer in their country to declare it to be a principle of international law, and they should offer up at least one of their bays as a pledge of the sincerity of their convictions. Now, Sirs, I propose to take up Question No. 2. I submit, Sirs, that the question is an inclusive question, and, as has been stated, a universal question. And, further, that unless it can be distributed, as we are quite willing, in case of necessity, that it should be distrib- uted, the answer to it must be in the negative — that is, in favour of the British Government. The question is: — "Have the inhabitants of the United States, while exercising the liberties referred to in said Article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States?" And that must read all persons. Then, if there are any persons that United States inhabitants have not a right to employ, the ques- tion must of course be answered in the negative. If, therefore, it is impossible to distribute the question amongst the different classes of persons, then, as I humbly submit, the question must be answered in the negative. 809 Great Britain, however, does not wish for any mere verbal victory, but desires to have the question really agitated between the nations settled by this Tribunal. And for that purpose we prefer to argue the question distributively. The first observation that I wish to make upon this subject is this : that the right of the United States to employ certain persons involves the absence of right on the part of British Legislatures to prohibit such employment. And therefore the question that we have to resolve or to deal with is whether there is any right on the part of — you may take Newfoundland as the colony principally interested — any right on the part of Newfoundland to prohibit the entry into its waters of persons other than those having treaty rights. And, Sirs, there seems to me to be great necessity for distinguish- ing between three classes of persons at least. I shall have later in the course of my remarks to suggest a possible extension of the list; but at all events, in the beginning, it seems to me necessary to dis- tinguish amongst three classes, namely, the Newfoundlanders them- ARGUMENT OF JOHN S. EWABT. 1341 selves; secondly, the French and Spanish, who are under treaty obli- gations with Great Britain; and. thirdly, all other non-inhabitants. And the questions, therefore, may be put somewhat in this way :— First, Can British Legislatures prohibit British subjects fishing on United States vessels ? Secondly, Can Newfoundland prohibit persons who, by articles of treaty have been excluded for 200 years, from fishing upon United States vessels? And, thirdly. Can NeAvfoundland enact clause 5 of the statute of 1906 — a statute that has not gone into force, but may be used as a test of the right of Newfoundland ? It is found at British Case Appendix, p. 758. The 5th paragraph of that statute reads : — I* No alien, not so entitled by treaty or convention for the time being in force, shall fish in the waters of this Colony;" The rest of the paragraph deals merely with the penalty and the enforcement of it. But the question I seek to ask is : Can Newfound- land, so far as United States rights are concerned, enact that : — " No alien, not so entitled by treaty or convention for the time being in force, shall fish in the waters of this Colony; " ? Now, Sirs, it seems to me very necessary that, in considering this question, we should endeavour, as far as possible, to put ourselves back in the position of 1783. The position at present with reference to the personnel of ships is so widely different from what it was in those early days of sailing-vessels, that perhaps it is somewhat difficult to appreciate the great value that was placed upon the pos- session of a very large number of hardy seamen who were available not only for commerce, but principally in case of war. The early Star Chamber rules and the early statutes, some of which are before the Tribunal in our Case Appendix, are full of provisions intended to encourage the fisheries as a nursery for seamen. And other nations pursued the same policy. As soon as the United States became independent and found itself in need of these seamen — as it very soon did — it also commenced by a system of bounties to pro- vide for the increase by encouragement of the fishermen. I am not going to trouble the Tribunal with many of these numerous statutes, but there are two of the earlier ones to which I should like to refer the Tribunal. The first is the statute of 1699, which is to be found in the British Case Appendix, at p. 525. One clause of it is of some importance. It is the last few words of the first clause— the last four lines of the first clause: — " and that no alien or stranger whatsoever (not residing within the kingdom of England, dominion of Wales, or town of Berwick upon 1342 NORTH ATLANTIC COAST FISHERIES ARBITRATION. shall at any time hereafter take any bait, or use any sort of trade or fishing whatsoever in Newfoundland, or in any of the said islands or places abovementioned." Various provisions are made in that statute for the encouragement of fishermen. The other statute to which I wish to refer is the statute of 1775, on p. 543 of the same volume, and the section that I refer to is section 12, to be found at p. 546 : — " 'And whereas it has been a Practice of late Years for divers Persons to seduce the Fishermen, Sailors, Artificers, and others, employed in carrying on the Fishery, arriving at Newfoundland, on Board Fishing and other Vessels from Great Britain, and the 810 British Dominions in Europe, to go from thence to the Conti- nent of America, to the great Detriment of the Fishery and the Naval Force of this Kingdom : ' Now, in order to remedy the said Evil, and to secure the Return of the said Fishermen, Sailors, Artificers, and others, employed as aforesaid, to the British Domin- ions in Europe, be it further enacted by the Authority aforesaid, That from and after the first day of January, one thousand seven hundred and seventy-six, it shall not be lawful for the Master, or Person having the Charge or Command of any Ship or Vessel trad- ing to or from any place within the Government of Newfoundland, to carry or convey, as Passengers, any such Fishermen, Sailors, Artificers, and others, employed as aforesaid, from thence to any part of the Continent of America, without the Permission under the Hand and Seal of the Governor of the said Island of Newfoundland, under the Penalty of forfeiting two hundred Pounds for every such Offence." It will be seen that the method employed there of conserving the fishermen was to make it penal to carry or convey them as passen- gers away from Newfoundland to the continent of America. The third statute is that of 1786, which is to be found at p. 555 of the same volume. It was designed for the purpose of strengthening the operation of the clause that I have just read. It recites the sec- tion (at p. 558) : — "'And whereas it is essential to the naval strength of Great Britain, that the desertion of seamen and fishermen employed in the fishery of Newfoundland, and the parts adjacent, should be pre- vented : And whereas, by reason of their superior skill as seamen and fishermen, and as artificers of the implements and utensils necessary to the carrying on of such fisheries, they are, by great temptations, exposed to be seduced into the service and employ of the subjects of foreign States : ' " - —very much the point that we have to deal with here. "And whereas the regulations and provisions made in and by an Act, passed in the fifteenth year of His present Majesty's reign, herein be- fore mentioned" - That is the statute I have just been reading, ARGUMENT OF JOHN S. EWAET. 1343 ^'are not sufficient to prevent the desertion of such seamen and fishermen to the service of the subjects of foreign States'; be it therefore enacted by the authority aforesaid, That if any seaman or fisherman, hired or employed in the carrying on of the said fishery shall desert from the said "Island of Newfoundland, or from the said fishery, with intent to enter into the service of any foreign State, or of any of the subjects of any foreign State, or shall have in any wise agreed so to absent himself, or desert with such intent, or shall have actually entered into such service as aforesaid, it shall and may be lawful to and for the governor of Newfoundland, or his surrogates, or for the judge of the Vice Admiralty Court for the time being, or for any justice of the peace . . . ." &c. THE PRESIDENT: That refers to the inhabitants of Newfoundland or only to seamen and fishermen on board of British ships from Europe ? MR. EWART : That is all, Sir. THE PRESIDENT: There were probably not many inhabitants of Newfoundland then? MR. EWART: No, probably not; it would relate principally to those. I think the provisions were made in some of the statutes for the re- turn of seamen. In the earlier statute which I read, provision was made for the return of the fishermen to England at the end of the season. Evidently some of them were staying upon the island and taking up their occupation there. THE PRESIDENT: That is a mere statute against desertion from service. MR. EWART : Probably so, Sir. Although it says : " shall desert from the said Island of Newfoundland," as the President will see, " or from the said fishery, with intent to enter into the service of any foreign State.". I think it was directed to the point that we are interested in here, and would include in its terms not merely those who were actually in service in ships or under articles to the captain of any ship, but those who were residing in Newfoundland. And the President will remember that, in the previous statute, the provi- sion did not apply to British subjects who were engaged upon other vessels — the provision was that they were not to be carried as pas- sengers. As to persons who were residing in Newfoundland, 811 or who might have finished their term and were not willing to return to England, the provision for their protection was that they should not be carried as passengers to the continent of America. [The Tribunal thereupon, at 4 o'clock p. m., adjourned until Mon- day, the 18th July, 1910. at 10 o'clock a. m.] 92909°— S. Doc. 870, 61^3, vol 10 29 1344 NORTH ATLANTIC COAST FISHERIES ARBITRATION. TWENTY-FIFTH DAY: MONDAY, JULY 18, 1910. The Tribunal met at 10 o'clock a. m. THE PRESIDENT: Proceed, Mr. Ewart. MR. EWART: Mr. President and gentlemen of the Tribunal, at the last session I was engaged in an endeavour to lay before the Tri- bunal some of the principal features of the situation of 1818. I had referred to the extreme importance, in those days of sailing-ships and frequently recurring war, of seamen and fishermen; and I had referred to the statutes of 1699 prohibiting certain aliens from fish- ing in Newfoundland waters, to the statute of 1775, which made diffi- cult the seduction of fishermen from Newfoundland, and to the stat- ute of 1786, which prohibited the desertion from Newfoundland of British fishermen. I wish now to call more particular attention to a clause of the 1699 statute, and to ask a question with reference to its interpretation, because it seems to me that the answer to that question will prove to be of some importance as we go on. British Case Appendix, p. 525, the last clause of the first section, is as follows : — " and that no alien or stranger whatsoever (not residing within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed) shall at any time hereafter take any bait, or use any sort of trade or fishing whatsoever in Newfoundland, or in any of the said islands or places abovementioned." And the question which I want to ask is: Whether that statute applied only to aliens who were fishing for themselves, or whether it applied also to aliens who were fishing for other people? The United States, as the Tribunal is aware, draws a very fine, and, as they say, a clear distinction between those cases — cases of men fish- ing for themselves, in which case they are fishing for themselves, and cases of men fishing for other people, when it is said they are not fish- ing at all. Now, Sirs, it seems to me that this section applies to both cases, and it would certainly include the case of an alien not residing within the specified limits who fished for other people. In order to test that, I wish to suppose that a Frenchman residing in the island of Jersey had been arrested and was being prosecuted under the statute for fishing in Newfoundland waters. The man would admit that he had been fishing there; his only defence would be that he was being paid for it by some Englishman ; and the ques- tion is whether that would be a valid defence — the mere fact that he was acting in the pay of somebody else? Would that relieve him from the penalty of this statute, which prohibits an alien of his description from doing that act? .It seems to me, Sirs, that the question only has to be asked in order to be answered; and if we ARGUMENT OF JOHN S. EWABT. 1345 may assume that the judge who tried that man would answer it as I suppose, the decision would form a valuable precedent for the con- struction of later statutes to which I shall afterwards refer. The third feature in the situation in 1818, to which I wish to call attention, and merely at the present moment to remind the Tribunal of, is the exclusion by treaties from Newfoundland waters of the French and of the Spanish. The fourth feature — it also has only to be mentioned — was the difficulty of communication in those days as compared with the present. Nowadays it is quite easy for numbers of Europeans to go to the United States and to take occupation there. In earlier times it was quite beyond the possibility of imagination that any fishermen would be found in American fishing- vessels who were not inhabitants of the United States. They might not be citizens of the United States, but they would certainly be inhabitants of the United 812 States. And it is therefore impossible to believe that the negotiators of the treaties of 1783 or 1818 contemplated the possibility of non-inhabitants of the United States fishing in United States vessels. The next feature of the situation, and the last which I wish to recall to the recollection of the Tribunal, is the pleading of Mr. Adams on behalf of the American fishermen. To his mind, the idea had never presented itself of any other persons than American fishermen fishing in American vessels. I merely give the citations of the passages to which I refer because they have already been read to the Tribunal. They occur in the letters from Mr. Adams to Lord Bathurst (British Case Appendix, pp. 66, 68, and 69) and his letter to Lord Castlereagh (British Case Appendix, p. 76). Summing up the situation, then, I would put it in this way : that the personality of the fishermen was at that day extremely impor- tant; that the 1699 statute prohibited aliens residing outside of the specified limits from fishing; that the statutes of 1775 and 1786 pro- hibited desertion from Newfoundland — the 1786 statute penalising the entry of Newfoundlanders into foreign service, which of course would include United States service ; that by treaties the French and Spanish fishermen had been excluded from the fisheries; that no- body was asking admission to them except the American fishermen; and. finally, that nobody contemplated Americans having in their fishing-vessels any persons other than inhabitants of the United States of America. Turning for a moment to the treaty of 1783, there are one or two points to which I wish to call attention. The Tribunal is aware of the nature of the recital of that statute, and the only other point that I wish to refer to is the renunciation clause. Its form indicates very clearly the total absence of any idea that non-inhabitants would 1346 NORTH ATLANTIC COAST FISHERIES ARBITRATION. be found in American fishing-vessels. It will be observed that it permits the entry of American fishermen into British ports for shelter ; but if there had been any idea that in those American vessels there might be persons other than American fishermen, these other persons would have been included in the permission. Nobody had thought of such a thing, and the permission was given to American fishermen only. I now wish to pass on to the first statute after the 1818 treaty, namely, the statute of 1824 (British Case Appendix, p. 567). That statute repealed the old statute of 1699 and certain portions of other statutes. In section 2, in lieu of the section in the 1699 statute which I have just commented upon, this statute provided as follows "And be it further enacted, That no Alien or Stranger whatsoever shall at any Time hereafter take Bait, or use any sort of Fishing whatsoever in Newfoundland, or the Coasts, Bays or Rivers thereof, or on the Coast of Labrador, or in any of the Islands or Places within or dependent upon the Government of the said Colony ; always excepting the Rights and Privileges granted by Treaty to the Sub- jects or Citizens of any Foreign State or Power in Amity with His Majesty." That section calls for two observations. The Tribunal will observe, in the first place, the word "whatsoever." The previous statute of 1699 prohibited aliens not residing in England, Wales, or Berwick. This statute removes that exception. It applies to all aliens. The second observation is with reference to an exception which is now created for the first time because of the treaty between Great Britain and the United States — the last lines : — " always excepting the Rights and Privileges granted by Treaty to the Subjects or Citizens of any foreign State or Power in Amity with His Majesty." Now, Sirs, it seems to me that the construction of that statute is identical with the construction of the statute of 1699, that is that it would apply to aliens, whether they were fishing for themselves or fishing for somebody else. I will not recall or re-picture the trial, but it does seem to me that if defence was set up to a prosecution under this statute, that an alien, although actually fishing, was under en- gagement to somebody else, that the defence wrould be an extremely bad one. And the only observations that are open, as I think, to the United States with reference to this statute are two: It might say that this statute was a breach of the treaty because it prohibited the employment of persons who were non-inhabitants. But plainly it is not a breach of the treaty, because it expressly saves all treaty rights. And the only other observation, as it seems to me, would be that, not- withstanding this statute, non-inhabitants could be employed, which raises the point that I have discussed as to the 1699 statute (and this ARGUMENT OF JOHN S. EWAftT. 134? one, which is completely in pari materid) as to whether those stat- utes did not prohibit fishing by aliens, although fishing for some- body else. 813 THE PRESIDENT: May I draw your attention, Sir, to the last proviso clause in section 2 of the statute of 1819 on the page just preceding — p. 565 of the British Case Appendix, at the end of section 2: — " provided that nothing in this Act contained shall apply, or be con- strued to apply to the ships or subjects of any Prince, Power or State in amity with His Majesty, who are entitled by treaty with His Majesty to any privilege of taking, drying or curing fish on the coasts, bays, creeks or harbours, or within the limits in this Act described." What might be the reason that, besides the " subjects of any Prince, Power or State " they also mention the " ships " ? Of course, in a treaty with the United States the expression " subjects " is not quite correct; it should be " inhabitants " instead of " subjects." MR. EWART : It should be " inhabitants " ; yes, Sir. THE PRESIDENT: Perhaps it is not a great difference. But what might be the reason that, besides the " subjects," the " ships " are also mentioned here? MR. EWART: The President will observe that this section relates to the non-treaty shores, and provides for the prohibition of persons not natural-born subjects of His Majesty in any foreign ship, vessel, or boat from fishing in non-treaty waters. Then the proviso to which you referred is that nothing in the Act is to — " be construed to apply to the ships or subjects of any Prince, Power or State in amity with His Majesty, who are entitled by treaty with His Majesty to any privilege of taking, drying or curing fish on the coasts, bays, . . ." The word " ships " evidently goes back to the word " ships " in the first part of the first clause: — " That from and after the passing of this Act it shall not be lawful for any person or persons, not being a natural born subject of His Majesty, in any foreign ship, vessel or boat, nor for any person . . ." The President will see that the clause is somewhat comprehensive, and for the purposes of the first clause would properly include the word " ships," and therefore when the proviso is reached it includes the word " ships." That is what suggests itself to me, Sir. I think it advisable (because these statutes are a little compli- cated) to ask permission to make a little summary of the effect of them, as I have presented them to the Tribunal. First, there seem to have been in England, Wales, and Berwick, prior to 1699, for- eigners available for employment as fishermen. Second, those for- 1348 NORTH ATLANTIC COAST FISHERIES ARBITRATION. eigners were, by the statute of 1699 (British Case Appendix, p. 525), permitted to fish at Newfoundland. All other foreigners were ex- cluded, even if they resided in Jersey or Guernsey. Third, this exclusion extended to these other foreigners, whether they desired to fish for themselves or to fish for British subjects. Fourth, the stat- utes of 1775, section 12 (British Case Appendix, p. 546), and of 1786, section 12 (British Case Appendix, p. 558), were directed against the employment of British subjects by foreign fishermen, even including the United States. Fifth, by the treaty of 1783, the places of permitted residence of those who were to fish were extended so as to include the United States. The joint effect of the statute of 1699, and the treaty of 1783, was that no aliens could fish unless they resided in England, Wales or Berwick (by the statute) or the United States (by the treaty). Sixth, the statute of 1824, section 2 (British Case Appendix, p. 567), widened the scope of the prohibition against fishing, by removing the exception of the statute of 1699 in favour of foreigners residing in England, Wales, and Berwick. After the statute of 1824, all foreigners, other than those having treaty rights, were prohibited from fishing, whether they resided in England or not. Seventh, the joint effect, therefore, of the treaty of 1783, and the statute of 1824, was that no aliens could fish unless they resided in the United States. Eighth, this prohibition extended to foreigners whether they desired to fish for themselves, or to fish for persons who had a right to fish. Now. Sirs, I wish to call the attention of the Tribunal to the close similarity existing between the 1824 statute, that I have just been referring to, and the Newfoundland statute of 1906 (British Case Appendix, p. 758). When I say statute of Newfoundland, the Tribunal will remember that that statute never really became 814 operative, because of the modus vivendi between Great Britain and the United States. I read from p. 758 of the British Case Appendix, section 5 : — " No alien, not so entitled by treaty or convention for the time being in force, shall fish in the waters of this Colony ; " In effect it is the same as the British statute of 1824, passed almost immediately after the treaty of 1818. Both of them prohibit aliens from fishing. Both of them make an exception in favour of persons having treaty rights. And if I have been correct in my assumption that the statutes of 1699 and 1824 applied not only to persons desiring to fish for themselves, but to persons desiring to fish for other people who had rights, then I must be correct in saying that this statute would have the same interpretation and the same effect. If so, it seems to me that our case is established; because the United States cannot say that this clause is a breach of the treaty, inasmuch as the ARGUMENT OF JOHN S. EWAKT. 1349 treaty rights are preserved, and they cannot say that aliens fishing for inhabitants of the United States would be exempt from its provisions. I pass, Sirs, from the consideration of those statutes to notice more particularly, what effect the United States contention would have upon the treaties between Great Britain and France. THE PRESIDENT: If you please, Sir, had not Canada accepted another view, after the treaty of Washington of 1871, when the Canadian coasts became accessible to United States fishermen? There was a Canadian statute, of 1872, 14th June, to be found at p. 631 of the British Case Appendix; and there is, at the end of section 1, a disposition to this purport: — " shall be and are hereby suspended as respects vessels and inhabitants of the United States of America engaged in taking fish of every or any kind except shell-fish, on the seacoasts and shores," It refers not only to inhabitants of the United States, but also to vessels of the United States ? MR. EWART : Yes, Sir. And I think that the explanation of that is that the Acts which are being suspended related to vessels as well as to citizens. If the President will be kind enough to look at the first part of the section to which he refers, he will see that one of the Acts, the operation of which is suspended, relates to fishing by for- eign vessels, and that other statutes related to foreign vessels, which, of course, would include not only United States vessels but all for- eign vessels; and that those statutes are suspended, as respects both vessels and inhabitants of the United States. If they were not sus- pended so far as vessels are concerned, they would have remained in force; and as the vessels would have been kept out, of course the inhabitants would have been kept out also. THE PRESIDENT: Yes. MR. EWART: In the British Case Appendix, p. 7, will be found a part of the treaty of Utrecht between Great Britain and France, to which I wish to call the attention of the Tribunal, with a view of showing what effect the contention of the United States would have upon the French treaties and the French fishermen. I refer to the last clause of section 12 on p. 7. The first part of the section effected a transfer of Nova Scotia from France to Great Britain, and the fourth line from the bottom is as follows : — " and that in such ample manner and form, that the subjects of the Most Christian King shall hereafter be excluded from all kind of fishing in the said seas, bays, and other places, on the coasts of Nova Scotia, that is to say, on those which lie towards the east, within 30 leagues, beginning from the island commonly called Sable, inclu- sively, and thence stretching along towards the south-west." 1350 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The Tribunal will observe that the exclusion is of the " subjects " of France, and it seems to me to be impossible for anyone to contend that, notwithstanding this treaty, those " subjects " could enter the service of the inhabitants of the United States, and participate in the fishing from which by treaty they are excluded. The exclusion is directed, as I say, to the " subjects," that is, to the individuals — whether fishing for themselves, or fishing for other people, is quite immaterial. If I am right in that, then I must be right in the interpretation of the permissive clause in the following section, about eight lines from the bottom: — 815 " But it shall be allowed to the subjects of France to catch fish, and to dry them on land, in that part only, and in no other besides that of the said Island of Newfoundland, which stretches." One is the exclusion clause, and the other is the permissive clause. I submit that the interpretation of the word " subjects " would be the same in each case, and that, therefore, the permission to the "sub- jects " of France to catch fish and to dry them on land is a permission personal to themselves ; and that they could not bring in all kinds of people who had no right to go there at all. In the British Case Appendix, at p. 8 will be found the clause of the 1763 treaty between Great Britain and France as to which the same remarks are applicable ; by section 5 : — " The subjects of France shall have the liberty of fishing " That is the first part of the section. Then, after a colon: — "And His Britannic Majesty consents to leave to the subjects of the Most Christian King the liberty of fishing in the Gulf of St. Lawrence, on condition that the subjects of France do not exercise the said fishery but at the distance of three leagues " — and so on. Commencing with the next sentence : — "And as to what relates to the fishery on the coasts of the Island of Cape Breton, out of the said gulf, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of 15 leagues " and so* on. Here again we have permission and exclusion. And I submit that the interpretation of the word "subjects" in both is the same. It must be remembered, too, that the treaty of 1783 between Great Britain and France continued this same inclusion and exclusion; that that treaty was signed upon the same day as the treaty between Great Britain and the United States; and that the word "subjects" is used in the one and the words " inhabitants of the United States " are used in the other. ARGUMENT OF JOHN S. EWAB.T. 1351 Now, Sirs, the effect upon these treaties, of course, is most marked, if the United States is right in its contention that these French people, residing in St. Pierre and Miquelon— these people of the French islands, who are excluded from all these banks here (indicat- ing on map) by treaty, — may fish there (indicating on map) when under engagement to inhabitants of the United States, the treaty is, to a large .extent, torn up, — these treaties that England forced France into at the expense of extremely costly war. In the same way, if the United States contention is correct, the French, who have always wanted to get in here (indicating on map, part of the south shore of Newfoundland) to take bait, will have an easy means of accomplishing their purpose. They tried for a great many years to get access to that shore, for the purpose of bait. The history of the bait question, which I shall submit in connection with Question 7, will show the efforts which they have made. They have now very easy access there; and all the easier because the United States do not want to catch the bait themselves there. They want, as the Tribunal is now aware, to employ Newfoundlanders to catch bait for them there; and if the contention of the United States is right, their pur- pose and that of the French will be well served by a combination of interests. The Americans have a right there; the French have not. The Americans do not want to catch fish there ; the French do. They only have to make a paper arrangement between themselves, and the thing is done. The effect, therefore, applies both to the ocean fish- eries and to the coast fisheries. I shall not dwell upon the effect so far as the Spanish are con- cerned. It does not come out so clearly in connection with the treaty. because there is not the language upon which to comment. The Tribunal is aware that by the Treaty of Utrecht, the claims of the Spanish were to be allowed only at their value, and by the treaty of 1763 the claims of the Guipuscoans, which had been made in their behalf by the Spanish King, were renounced. The remarks which still remain to me, Sirs, to make in connection with this question will best be presented to the Tribunal. I think, by directing them to an attack upon the various arguments which the United States have put forward. The first of them is the one developed in Mr. Root's letter of the 19th October, 1905, to be found in the British Case Appendix, at p. 492: at least, the part to which I am going to refer is at that page. This contention may, perhaps, be summarised under the words that " the flag admits the man." That seems summarily 816 to express the contention which Mr. Root put forward in this letter, and I ask to read two or three paragraphs, commencing with the one numbered 3. In No. 1, the assertion had been made that " any American vessel is entitled to go into the waters of the 1352 NORTH ATLANTIC COAST FISHERIES ARBITRATION. treaty coast and take fish of any kind." Then, going on to the paragraph numbered 3 : — " The only concern of the Government of Newfoundland with such a vessel is to call for proper evidence that she is an American vessel, and, therefore, entitled to exercise the Treaty right, and to have her refrain from violating any laws of Newfoundland not inconsistent with the Treaty. The proper evidence that a vessel is an American Vessel and en- titled to exercise the Treaty right is the production of the ship's papers of the kind generally recognized in the maritime world as evidence of a vessel's national character." Now, Sirs, in answer, the British Case suggested that if the con- tention was valid, Norwegians, for instance — and we have a great many of them on our coasts, who do a great deal of our coasting trade — could charter a United States fishing- vessel and avail them- selves of the treaty rights of the United States inhabitants. If the flag admits the man, and the Norwegians had a vessel with an Amer- ican flag up, then, inasmuch as the only concern of Newfoundland is to see the ship's papers, Newfoundland would be helpless. The re- ply which the United States made to that argument, I think, is suffi- cient to show that the position assumed by Mr. Root is untenable. At p. 94 of the United States Argument our contention is set out, and the reply of the United States is made : — " The United States denies that the position which it has assumed on this Question can lead to the result suggested in the British Case, namely — " If the nationality of the ship, or of the owner of it, and not the nationality of the fishermen actually engaged in the fishing, be the test of the right to fish under the treaty, then fishermen of other countries can obtain access to those fisheries, subject to such restric- tions as the law of the United States may from time to time impose. They may, by charter or arrangement, obtain control of an American vessel, or they may engage to serve on an American vessel. Once on board, their nationality, according to the contention of the United States becomes of no importance; the moment they have entered British waters under the American flag they become entitled to the full rights conferred by the treaty. This is no fanciful objection. The British North American fisheries are of great value, and would be eagerly competed for by foreign fishermen if it became known that access could in any way be obtained to them." The United States replies in this way : — " On the facts here assumed the fishing would not be by inhabitants of the United States in any sense. The United States does not maintain that being on board an American fishing vessel gives the right to fish under the treaty, but that being on board such a vessel under engagement to fish for an inhabitant or inhabitants of the United States does give such right. No foreigner, not an inhabitant, ARGUMENT OF JOHN S. EWABT. 1353 can charter an American vessel and thereby entitle himself to fish under the treaty. He would be fishing for himself as much as if fish- ing on a vessel of his own nationality." So, Sirs, we are completely away, now, from the position taken by Mr. Eoot, that Newfoundland has nothing to do but see if the ship's papers are right ; and, instead of the very simple method suggested by Mr. Root for ascertaining whether the crew could fish, namely, in- spection of the ship's papers, Newfoundland now has a very, very difficult investigation on hand. The United States does not contend that the ship's papers are sufficient. They are only sufficient if those men are fishing under engagement with an inhabitant How in the world are we going to tell that? We now have to enquire as to the nature of the engagement of every man there. He is a foreigner, and we have to ascertain what the nature of his engagement is. Is he under an engagement or not? How are we to tell? And that is the test now — not the flag; not the ship's papers; but the nature of the employment of the man who is there. If he is under an actual bond fide engagement, the United States says he may fish. If he is not, he may not. That is the enquiry that we have to make. I sub- mit, therefore, that the position taken by Mr. Root wTill not stand this test. If one were to take another case — the case of American fishermen going in an unregistered vessel (and I do not know anything which requires them to be in an American vessel that has proper documents along with it) , Mr. Root's test would not apply to the crew of such vessel. It seems to me that if those men went in a vessel which was not registered, but which was built and owned in the United States, that we would have to make the enquiry as to whether the per- 817 sons forming the crew were entitled to exercise the treaty rights or not. Mr. Root's test would not apply to such a case. There would be no papers. In Mr. Root's letter the statement is made that all American vessels must be owned and officered by American citizens. That is true — under the municipal laws of the United States as they are at present. At one time, I believe, it was not quite correct to say so. It was quite sufficient at one time that they should be owned by a citizen, and that the captain should be a citizen. But it seems to me that that is quite immaterial ; because it is a mere matter of municipal law. There is nothing in the treaty requiring those vessels to be owned and officered by inhabitants of the United States, and those statutes might be re- pealed to-morrow ; in which case, of course, the contention would be that a crew composed to the last man of non-inhabitants of the United States could fish in Newfoundland waters, if they had a prop- erly drawn engagement with some Boston banker — under which the United States says that they would have a right to go in and fish. 1354 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The United States, in its Argument, at p. 95, seems to agree — and I think they are right, I may say — that Americans could not go in a French ship, for instance. And, for fear of misconstruction, either during the present sitting or afterwards, I may say that I perfectly agree with that, and for this reason: that vessels can go to the fishing-ground merely because of the necessary implication of the treaty. There is nothing in the treaty expressly permitting Ameri- can vessels to enter; but inasmuch as it is a vessel fishery, there is a necessary implication in the treaty that the vessels may go. But an implication is never carried further than necessary to accomplish the object of the parties. And it is not at all necessary to carry this implied right of entry of vessels further than what was contem- plated at the time, namely, that they should be American vessels. The point is immaterial, except for the purpose of safeguarding myself from misconstruction. Taking the view that the United States Argument presents to us, that Americans could not go in French ships, I would make this observation: that I would infinitely prefer arguing that Americans could go in French ships — or, rather, I will use the expression " Nor- wegian ships," because the French are excluded by treaty — I would infinitely prefer to argue that Americans could go in Norwegian ships than that Norwegians could go in American ships. It seems to me that something of a case, at all events, could be made in sup- port of the view that Americans could go in Norwegian ships. We can imagine the United States saying to us : " Where do you find anything in the treaty saying that our people are not to go in Nor- wegian ships, or in any ship that they like? Where do you find anything saying that they may not swim, if they choose, or can? Are not they Americans? Are not they inhabitants of America, whether they are in Norwegian ships or any other ships? " Some- thing could be made of that argument, and we would merely have the implication to which I have referred with which to reply to them. It seems to me a much more difficult thing to say that Nor- wegians can go in American ships. And, Sirs, if it is true, as contended, that a whole crew of Norwegians may go in American ships, and if it be also true that Americans may go in a Norwegian vessel, then Norwegians may go in a Norwegian vessel, and the exclusion that we thought we had of these Norwegians is really at an end. The second argument which the United States puts forward has two branches. It is based upon conceptions df the law of principal and agent. The first statement which the United States makes in that connection is found at p. 91 of its Argument, in the paragraph numbered 4: — ARGUMENT OF JOHN S. EWART. 1355 " If the fish are taken for the benefit of inhabitants of the United States, by employees who are not such inhabitants, it is a taking by inhabitants of the United States in the sense of the words used, con- sidered either in their ordinary significance or in their legal signifi- cance of the law, in as much as an act performed by an agent is held to be that of the principal." No doubt, for the purpose of ascertaining the rights or liabilities of a principal the act of his agent is held to be his. But it seems to me a very different thing, and a widely different proposition, to say that whatever a principal may do by himself he may do by an agent ; and yet that has to be the contention, or there is none in this connec- tion. It is impossible, of course, to say that whatever a man may do by himself he may do by an agent, Some things he may accomplish by an agent, no doubt — the general run of things he may do by others as well as by himself; but it is not true to say that things which he may do by himself he may do by other people. 818 The second proposition of the United States is found at p. 94, the second sentence from the bottom : — " On the other hand, if he be on an American vessel engaged in a bona fide fishing venture "- that is, a foreigner — " for and in the interest of American inhabitants, his act is the act of his principals, and, even though he be a non-inhabitant, his act does not constitute the taking of fish by a non-inhabitant." It seems to me an extraordinarily strong proposition that when an agent does something it is not his act. It may, of course, if he is authorised, be the act of his principal; but undoubtedly he did it himself. I have referred to that already, but I should like to refer to it in connection with a statute of Delaware, which will be found in the British Case Appendix, at p. 788 : — " It shall be unlawful for any person not being a citizen of this State to catch or take fish of any kind in the Delaware bay or river, or any of the creeks emptying into the same, within the limits of this Stated nor shall any person, being a citizen of this State, have trans- ferred to him, or in any way have control over or possession of any boat, vessel, or net, which shall be owned, in whole or in part, by any person who is not a citizen of this State, and which is used for the purpose of fishing in the Delaware bay or river, or any of the tribu- taries thereof, within the limits of this State." Sirs, that clause seems to me to exclude persons not citizens, whether they are fishing for themselves or fishing for anybody else. It does not say, " It shall be unlawful for any person not being a citizen of this State, unless under engagement to a citizen, to catch or take fish." The exclusion is absolute. And if an American from Rhode Island, for instance, were under prosecution under that clause 1356 NORTH ATLANTIC COAST FISHERIES ARBITRATION. for having fished within the limits of the State, he could not escape the penalty by saying that he was in the pay of a citizen of the State of Delaware. In fact, Sirs, if this law is good, I cannot see why the United States does not contend that they have a perfect right to employ New- foundlanders; because, although the statute of Newfoundland pro- hibits Newfoundlanders, all that the Newfoundlander would have to say is that he was not fishing for himself, but was fishing for an American; and, under the view of the law on this p. 94 of the American Argument, that would be a good defence. He is pro- hibited from fishing, but he says : " I am fishing in the pay of an American, and therefore the statute does not affect me." It has been observed that the United States requires that non- inhabitants, in order to be entitled to fish, should be engaged " for and in the interest of American inhabitants," and it is therefore important to know what exactly that means. I believe that it is very common — we have some proof of that in the papers before the Tribunal — that fishermen are remunerated, not by so much a day, but by a share of the fish. The men fish upon shares. Sometimes they are paid by a portion of the fish, sometimes by so much money in proportion to the catch of fish, and sometimes by a rate of wage calculated according to the time occupied by the voyage. Now, Sirs, if we are to investigate when these men come to New- foundland, as to whether they are under engagement or not, we should like to know wrhat is an engagement within the meaning of those words. It seems to me that if they are fishing on shares they are partners. If they are fishing to get money in proportion to the catch of fish, it is a very delicate question whether they are em- ployes or partners; and it would only be when they are being paid so much a day that it would be quite clear that they would be em- ployes. I only mention this for the purpose of showing the great difficulties that Newfoundlanders would be placed in if it should be held that the test of the right to fish is the nature of the engagement which they have made before they get there. But, in any case, it is quite clear that we are a very long way now from the easy sugges- tion that, as long as the flag is flying and the ship's papers are right, that is the end of the enquiry. A third contention which the United States made is to be found at p. 95 of their Argument, in which they base their contention upon the use of the words " in common." They say that that means an equal right, and that if Newfoundland should permit Frenchmen or Norwegians to go to the island and fish for Newfoundlanders, that it must, by virtue of these words, give the same right to American fishermen. That is, if Newfoundland chooses to open its fishing for the purpose of helping its own people by giving assistance, that ARGUMENT OF JOHN S. EWAKT. 1357 it would be bound to permit the Americans the same 819 liberty; which seems to me equivalent to saying that the Americans have certain rights by treaty, and if the New- foundlanders do so-and-so, those treaty rights are enlarged. I say the Americans have that right now, or they have not. If they have, they can go on and exercise it; if they have not, they do not get it from anything that Newfoundland may do, except in the way of a concession to the United States. It seems to me impossible, more particularly in view of the argu- ment of Senator Turner upon Question No. 1, to suggest that if Newfoundland bestowed any benefit upon its own fishermen, that it was bound to bestow equal benefits upon American fishermen. Sena- tor Turner has argued that American fishermen were under no obedi- ence whateA-er to any of the laws of Newfoundland; that they are there free from obedience to those laws; and that no such laws can affect them. But this doctrine of servitude, or something else, seems to work in such a peculiar way that Newfoundland laws which are of disadvantage or supposed disadvantage to American fishermen do not apply to them, but that they are entitled to the benefit of any laws that would help them, even although those laws were not designed for the purpose of giving them benefit. If that were true, we would have to sell them bait, because we allow Newfoundlanders to sell bait to one another; we would have to allow them all commercial privileges, because we allow Newfound- landers to give commercial privileges to one another; and we would have to allow them to employ Newfoundlanders, because we allow Newfoundlanders to employ one another. Sirs, I pass over that suggestion and go to a further argument based upon other treaties. The United States cites three other trea- ties which they claim to be quite analogous, and to form an argu- ment against the contention which I have been advocating. They refer to the treaty of 1794, p. 20, British Case Appendix. The United States Argument commences with the second sentence of that article. I shall read the first as well, because it brings into contrast " vessels " and " citizens," and I think in these treaties we must draw a very clear distinction between treaty rights given to vessels, even although men must man them, and treaty rights given to citizens, even although they must go in vessels. The implications of the two are quite different : — " His Majesty consents that the vessels belonging to the citizens of the United States of America shall be admitted and hospitably re- ceived in all the sea-ports and harbours of the British territories in the East Indies. And that the citizens of the said United States may freely carry on a trade between the said territories and the said United States, in all articles of which the importation or exportation -respectively, to or from the said territories, shall not be entirely prohibited." 1358 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The United States claims there that those citizens could carry on that trade by agents. It does not suggest that it would be possible to send those agents into Canadian territory, but I think that is what the contention must amount to. Before commenting upon that I would ask attention to the second last sentence of the same paragraph : — "And the citizens of the United States, whenever they arrive in any port or harbour in the said territories, or if they should be permitted in manner aforesaid, to go to any other place therein, shall always be subject to the laws, government, and jurisdiction of what nature established in such harbour, port, or place, according as the same may be." The word " citizens " there of course is used in its confined sense, because it is an arrangement being made by the United States with reference to what laws its citizens are to respect when they go into foreign territory. Of course the United States could not make such an agreement with reference to foreigners. Returning to where " citizens " is used in the earlier part of the clause, I suggest, that although foreigners might be employed in the trade, yet that (whatever might be done as a matter of comity) they could not, by virtue of this treaty, be sent into British territory, for that would have the effect of preventing Canada excluding un- desirable foreigners. The United States and Canada have both found it necessary to pass laws, more or less stringent, protecting themselves against the entry, in too large numbers, of persons of a different race; and this clause, I respectfully submit, could not be construed as taking away the right, and the authority, of Great Britain or her colonies, to enact laws of exclusion of that char- acter. 820 The second treaty to which the United States refers is at p. 29 of the same volume. It is the treaty of 1815, article 1. The second sentence is: — " The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places, ports, and rivers in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively." It seems to me, Sirs, that this clause is very clearly confined to the inhabitants of the two countries. Provision in the treaty is made under which the inhabitants may remain and reside in the other countries. It is impossible, I think, to argue that under such Ian- ARGUMENT OF JOHN S. EWAET. 1359 page we should be compelled to admit all sorts of persons, whether inhabitants of the United States or not. The third treaty to which reference is made is at p. 41. Sections 26 and 28 of the treaty of 1871 are quoted, and, inasmuch as the line of remark I have made with reference to the other treaties suffices for these, I shall not repeat what I have said. It seems to me, Sirs, that with regard to all these treaties, the ques- tion is one of construction. There is no absolute rule of law which declares that when the word " citizen " is used it must necessarily be confined to " citizens." I say there is no absolute rule upon that point. The question for consideration is always one of what the parties meant, and that has to be ascertained by the circumstances existing at the time, and by the language which they used. And if other treaties are to be considered in this connection, I remind the Tribunal of the treaties between Great Britain and France, that I have already cited. Passing on to the fifth argument, based upon the case of Wickham v. Hawker," by which, it was said, it was decided that when a liberty of enjojanent is given, it is personal, but that where a pro-fit a pi'endre is granted, servants and agents may enter with the grantee. That distinction too, Sirs, I submit is not a rule of law, but a distinction which aids in interpretation; and if Wickham v. Hawker has upon that distinction based a conclusion, there is a case in the United States which was decided the other way — the case of Bingham v. Salene. I think copies have been handed to the members of the Tri- bunal. It is Bingham v. Salene, 14 Pacific Reporter, Supreme Court of Oregon. It was an action by a grantee of certain exclusive rights of shooting, for an injunction to restrain interference by the grantor; and the question was whether the grantee could issue permits, that is, give permission to persons other than himself to enter the grounds and to exercise the shooting. It was held that such permits were unauthorised, and not within the purview of the privilege granted, and it is to be noted that the case of Wickham v. Hawker is ex- pressly referred to ; and, although the learned Judge does not say he overrules it, he evidently disagrees with it. Then, Sirs, inasmuch as I submit that the distinction is not a rule of law, but only a question of interpretation, one has to see whether that distinction would be available in such a case as this. I think it cannot be said that, however much it might apply to the case of individuals, and however well one might be able to draw inferences from transactions between individuals, it has no application what- ever to international arrangements; principally for this reason, I think that, as the liberty here is a liberty to such a very large class 0 7 M. & W., p. 63. 92909°— S. Doc. 870, 61-3, vol 10 30 1360 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of persons, there can be no implication that the grantee was to be entitled to get assistance from any persons outside the class. If liberty is given to one individual, the question may be whether he must go himself, or whether he may take others with him; but when the liberty is given to an immense class, namely, all the inhab- itants of the United States, it seems to me that no such inference can be drawn. I submit, Sirs, that it could not be said here that if the United States had no right to carry away the fish, they must exercise the privilege themselves, but as they have a right to carry away the fish, that they can employ other persons. Two other considerations I would now add, from my own point of view, and then bring this subject to a close. One would raise the question as to whether Great Britain could not now exclude other nationalities by treaty. She excluded French- men and Spaniards prior to the treaties of 1783 and 1818. Is there anything in those treaties which prevents her now excluding other nations? Is there anything in those treaties — giving liberty to the United States to fish — which would prevent an agreement be- 821 tween Great Britain and Norway for instance, under which Norwegians would be excluded? Of course, if the United States fishermen have a right under the treaty now to employ Nor- wegians, Great Britain cannot make an arrangement under which they are not to go there, but I do submit, Sirs, there is nothing in those treaties which would prevent an agreement of that kind being made. One would have to consider, too, what would be the effect of a war between Great Britain and Norway ? If the United States fishermen have a right to employ Norwegians, I suppose Norwegians could go into those fishing grounds and upon British territory, eveti although they were alien enemies — because of the United States right. I can- not think, Sirs, with all due respect, that the treaties of 1783 and 1818 worked such prohibition upon the freedom of action of Great Britain, as to prevent her excluding alien enemies. I then seek to add to the three classes of persons with wjiich I com- menced my remarks to the Tribunal. I would say that the United States clearly have no right to employ Newfoundlanders; that they have no right to employ French; that they have no right to employ Spaniards; that they have no right to employ alien enemies; that they have no right to employ nationals whom Great Britain may afterwards exclude by treaty ; and that they have no right to employ nationals who afterwards may be excluded by British statute — which is equivalent to saying that the United States have no right to inter- fere with the complete liberty of action which Great Britain enjoyed before the treaties were made. ARGUMENT OP JOHN S. EWART. 1361 I now, Sirs, intend to take up Question No. 7. I shall not dwell long upon it. In the first place I shall read quotations from the United States Counter-Case and Argument to show the scope of the contest. I refer, in the first place, to the United States Counter-Case at p. 105, in the middle of the page: — "This Question, like all the other Questions presented in the Special Agreement under which this Arbitration is held, is raised only in relation to the provisions of Article 1 of the Treaty of 1818, which this Tribunal is called upon to interpret." During the discussion which preceded this reference attempts were made to base the claims of the United States upon two other grounds. First, what are called the " arrangements " of 1830 — the reciprocal " arrangements " of 1830 — a proclamation issued by the President of the United States, and an Order-in-Council adopted by the Brit- ish Government. These are not in the form of a treaty, and there is nothing binding upon either side in respect of them. They were issued and adopted in pursuance of an understanding that that would be done; but there is no treaty, and there is, in respect of them, no treaty right. The second ground upon which the claim of the United States was sometimes based was section 29 of the treaty of 1871. I merely mention these two points for the purpose of excluding them, and of saying that according to the United States interpreta- tion of this question (which is the same as ours) that it is raised only in relation to the provision of article 1 of the treaty of 1818. Being thus raised only in connection with that treaty, the next sen- tence to the one which I have just read seems to dispose of the question : — " It is agreed on both sides that Article I of that treaty relates to fishing, and not to commercial privileges ; and the United States does not claim that the treaty of 1818 confers general commercial priv- ileges on the treaty coasts upon the inhabitants of the United States, or upon their vessels, whether they are trading or fishing vessels." That is repeated at p. 62. I need not read it. It would seem, therefore, that if the United States is entitled to any such commercial privileges, it must be by virtue of some subse- quent action ; but the United States has indicated that these subse- quent treaties or subsequent arrangements are not a subject of dis- cussion, and I wish to make that clear to the Tribunal. The sentence which follows that which I have just read is this: — " The Question under consideration assumes that commercial privi- leges on the treaty coasts are now accorded, by agreement or other- wise, to United States trading vessels generally; but it does not ask what these privileges are, or by what agreement or otherwise they 1362 NORTH ATLANTIC COAST FISHERIES ARBITRATION. are accorded; and in considering this question it is unnecessary to examine the terms on which such commercial privileges are accorded to American trading vessels, or the extent of such privileges." 822 In the same way in their Argument, at p. 258, in the middle of the page : — " It is manifest that the Tribunal is not called upon to determine by what agreement the privileges are accorded, and the intentional generality of the word ' otherwise ' shows that no such determination is called for or permissible." The 1830 arrangements are specificially excluded from debate by the statement at p. 263 of the United States Argument, at the top of the page: — "As previously stated, the United States does not understand that the act, proclamation, and order in council are submitted to the Tri- bunal for construction, but it is deemed proper to point out the erron- eous assumption in the British Case that they applied only to trading vessels." Pointing out those sentences to the Tribunal, I necessarily pass over all discussion with reference to the effect of the arrangements of 1830, and the treaty of 1871. Probably, therefore, Sirs, I might remain silent as to the differences which have arisen between the countries from time to time, for, as I submit, the answer to the question does not depend upon the view which might be taken of the merits of the controversy. I am aware, however, that some of Senator Turner's remarks were calculated to create the impression that colonial action deserved condemnation, and I am not aware of the extent to which subsequent speakers may seek to influence the attitude of the Tribunal by reflections of a similar character. For these reasons, and also because I am extremely anx- ious that no member of the Tribunal should entertain any opinion adverse to Canada and Newfoundland, I beg leave to occupy a short time with a few observations with regard to the subject of what are called "commercial privileges." I am anxious, too, that the eminent men who are here from the United States should have an opportunity of hearing the colonial view, for unfortunately, the opinion of this Tribunal cannot, upon this occasion, at least, completely end the con- troversy. The question is not worded with sufficient comprehension in order to attain that very desirable end. The differences which have arisen are of two kinds. The earlier of them relates to the refusal of the colonies to sell bait and other sup- plies, and to permit the transhipment of fish. The second — and that of which the Tribunal has heard more — has relation to the refusal to sell herring for purpose of consumption, and the refusal to permit Newfoundlanders to assist the United States in taking them, ARGUMENT OF JOHN S. EWART. 1363 It is not necessary to say much — not necessary perhaps to say any- thing upon this second question. Sir James Winter has dealt with it at large. Every nation has a right to prohibit the export of its products, as it pleases, and moreover this difference is not included in the question submitted to the Tribunal. Newfoundland does not refuse to fishing- vessels that which she accords to trading- vessels, and the question is directed to the claim of fish ing- vessels to be placed upon the same footing as trading- vessels. So far as this question of the selling of herring for consumption is concerned, those two classes of vessels are on precisely the same footing. As to the refusal to sell bait and to permit transhipment of fish and so on, that also is not properly included in the question, for what the United States want cannot be included under the head of " com- mercial privileges." It is not " commercial privileges " that the United States fishermen desire ; it is " industrial advantages." I see no reason why an American fishing-vessel, merely because of its character, should not be permitted to enjoy the privileges of a trad- ing-vessel. If for example an American fishing-vessel carried mer- chandise from a United States port to a Newfoundland port, and if it paid proper regard to the local regulations with regard to trading- vessels, it would be welcomed, but that is not what the United States or its fishermen demand. The conversion of their fishing- vessels into carriers of goods, or that such vessels should assume in any respect the character of trading-vessels, is not their desire; and what they wish is, in reality, that which cannot be properly spoken of in con- nection with a trading- vessel, for it is not at all associated with trans- portation. It is industrial advantages that they wish. Their anxiety is to add to their treaty liberty of taking fish, the very substantial industrial advantage of carrying on their fishing operations from Newfoundland, instead of from the United States. If, when they lose their nets they can run ashore and purchase others; if, instead of bringing ice from a warmer to a colder country, they can secure cheaper supplies as they are needed ; if instead of carrying special seines for catching bait, and devoting valuable time to the catching, they can buy what they want and as they want it; and if when their catch is completed they can at once put their fish on shore for transportation to the United States by larger vessels, and 828 resume their work, it is perfectly evident that the privileges which they are thus exercising are not at all those usually accorded to trading- vessels, and cannot properly be classed with them. It is quite evident, too, that if American fishermen could secure all those advantages, they would have succeeded in very largely adding to the liberties accorded to them by the treaty. The treaty is clear and specific in its enumeration of the liberties which it concedes. 1364 NORTH ATLANTIC COAST FISHERIES ARBITRATION. An American fisherman has no claim to anything outside the list. The proposal now made by the United States is to add indefinitely to that list. For example, the treaty gives liberty to fish, but none to dry and cure fish, on the west coast of Newfoundland and on the Magdalen Islands. And the contention seems to be that although an American fisherman is thus clearly prohibited from furthering his industry by drying and curing his fish upon those shores, yet that he ought to be allowed to take his fish into the harbours; to pack them in ice there; and to attend to their transhipment by some larger vessel, or by Canadian railways. At present British fishermen enjoy the advantage of their geo- graphical position. For the future (if the United States view be upheld) they will have no such advantage. American fishing head- quarters will be on British soil, instead of several hundred miles awa}^ on the eastern coast of the United States. American boats may, if they will, winter at the fishing grounds. The product will go to the United States, either by steam-boats, or in bond over Canadian rail- ways. And thus, instead of bona fide American fishermen travelling long distances in connection with each vessel-load of fish, operating under all the difficulties and restrictions of far-off bases of supplies, we shall have Americans competing in this great industry on almost equal terms as to accommodation and supplies (both for fishing and sustenance) with the British themselves. The geographical advantages of the British colonies have often been remarked upon by Americans. Tt is now proposed to appro- priate them. In 1845 (25th March) Mr. Everett, United States Sec- retary of State, in a letter to Lord Aberdeen, British Case Appendix, p. 144, said : — " The British colonial fishermen possess considerable advantages over those of the United States. The remoter fisheries of New- foundland and Labrador are considerably more accessible to the colonial than to the United States fishermen. The fishing grounds on the coasts of New Brunswick and Nova Scotia, abounding in cod, mackerel, and herring, lie at the doors of the former; he is there- fore able to pursue his avocation in a smaller class of vessel, and requires a smaller outfit;" These are the industrial advantages which the United States de- sire to obtain from us. Fishing is an industry, and is carried on by a class of vessels specially adapted for it. Transportation, on the other hand, is the exclusive occupation of trading- vessels. They carry goods for hire from one place to another. Fishing-vessels leave port not with a cargo, but to seek one on the ocean ; and the transportation home of that cargo is a mere interruption, although a necessary inter- ruption, of the labours of the men. AKGUMENT OP JOHN S. EWART. 1365 The difference between the two classes of operations comes out strongly in connection with the United States demand to be allowed to purchase bait. Bait is the raw material of the fishing industry, in much the same sense as iron ore is the raw material of the steel in- dustry. Trading-vessels do not want to purchase iron ore, in order to manufacture it into steel. Nor do they wish to purchase bait, in order to catch cod-fish. The purchase of bait is not a commercial privilege; it would be an industrial advantage. I would seek to illustrate what I have been saying by a reference to the United States position in the Pribyloff Islands. The members of the commission are aware that the Pribyloff Islands are particu- larly valuable for the fact that they are the breeding ground of the seals; and that Canadians as well as Japanese envy the possession by the United States of those islands, and would like very well to get a footing upon them. Canadians are excluded by former proceedings, but if the Japanese proposed to establish head-quarters for sealing upon the Pribyloff Islands the United States would most certainly object. If the Japanese said :"A11 we want are commercial privi- leges; we want to go there and carry on our operations from there, and why should we not do that? We allow you to go into our ports with your vessels and get supplies, and why do you not allow us to go to the Pribyloff Islands? I think the reply of the United States would be this: "The difference between trading and fishing vessels is very clear and easily understood. The United States ports 824 are free to the commerce of the world, but no one has ever yet suggested that this modern idea of unrestricted intercourse involves the cession of industrial and geographical advantages." They would say to the Japanese: "Your ships may come and go. That is the modern habit. But what you want now is to come and stay; to make these islands your headquarters; to appropriate the territorial advantage which we have, in our propinquity, to the seals. How do you found such a demand as that upon freedom of com- merce? Your proposed operations are not commercial. It is seals you seek, not trade. Canada and Newfoundland approve the reply. Trading- vessels of the United States will be welcomed in their ports, but Canada and Newfoundland respectfully submit that industrial advantages are not at all the same as commercial privileges; that what the United States has demanded has been advantages of the former, and not privileges of the latter s^ort, and that comity and sentiments of friendship impose upon Canada and Newfoundland no obligation to aid a foreign industry at the expense of their own. In connection with this subject of the purchase of bait, I have pre- pared a memorandum which is nothing but a catalogue of the docu- ments relating to it. The impression may have been created that the prohibition of the, sale of bait is a very recent policy. It really com- 1366 NORTH ATLANTIC COAST FISHERIES ARBITRATION'. menced in 1670. It would be of no service to the Tribunal that 1 should read this memorandum, which is, as I say, a mere catalogue ; but, on the other hand, it might be of some use to the Tribunal to have it, and, if permitted, I will hand it to the reporter, in order that it may be included "as an appendix to what I have said : — BAIT. 1670. Order-ln-Council of Charles II prohibited aliens taking bait (B. C. A., p. 519.) 1699. British statute prohibited aliens taking bait or other fish. (B. C. A., p. 525.) 1786. British statute prohibited sale to foreigners. (B. C. A., p. 559.) 1818. Negotiations; United States wanted to buy bait on non-treaty Shores and refused. (B. C. A., p. 88.) 1824. British statute prohibited aliens taking bait — except treaty rights. (B. C. A., p. 567.) 1839. Paine's report. United States interpretation of treaty would help United States to procure bait from which they are precluded by the convention. (B. C. A., p. 122.) 1844. Newfoundland address. Complained of French getting bait Asked en- forcement of statute, 1786. (U. S. C. A., pp. 1056-7.) 1844. French negotiations. Wm. Thomas and Captain Fabre. Thomas's report. Bait the main object of the French. (U. S. C.-C. A., p. 223.) Governor's instructions. (U. S. C.-C. A., p. 220.) 1845. Newfoundland statute. Export duty on bait. (B. C. A., p. 699.) 1848-9. Newfoundland address. Same as in 1844. (U. S. C. A., pp. 1073-5.) 1852. Governor, Newfoundland, to Colonial Secretary reporting negotiations. (U. S. C.-C. A., pp. 230-1.) 1853. Newfoundland Attorney-General in London. Perrier's report. United States involved. (U. S. C.-C. A., pp. 232-3.) 1853. Report, Newfoundland Attorney-General and Strachey (Colonial Office) on French proposals. Bait refused to French. (U. S. C.-C. A., pp. 234-5.) 1855. Report, Newfoundland Attorney- and Solicitor-General. (U. S. C.-C. A., p. 251.) 1857. Proposed treaty, Great Britain and France. Right to purchase bait, &c. — if refused, power to take it. (U. S. C. A., p. 61.) 1857. Colonial Secretary to Governor, Newfoundland, explaining proposed treaty. (U. S. C.-C. A., pp. 254-5.) Proposal objected to by Newfoundland and dropped. 1861. Further negotiations, British and French. Newfoundland believed that she was not to be consulted and protested. (U. S. C.-C. A., p. 260.) 1863. Newfoundland proposed legislation ; and Governor sent draft Bill to Colonial Secretary, who replied that sale of bait must not be prohibited. (U. S. C. A., p. 1083.) 1871. Judgments of Hazen J. and Sir Wm. Young as to whether purchase of bait was preparing to fish. (B. C. A., 246-9.) Kimberley letter. Inconsistent with " general policy of the Empire." 1884. Proposed treaty, Great Britain and France. 825 1885. Proposed treaty, Great Britain and France. France wanted lib- erty to purchase bait (U. S. C. A., p. 76.) ARGUMENT OF JOHN S. EWAET. 1367 1886. Governor, Newfoundland, told Colonial Office why Newfoundland object to treaty. TJ. S. C.-C. A., pp. 312-3.) 1886. Newfoundland passed statute to regulate sale of bait. (Not printed.) 1886. Discussion in London as to disallowance of statute. (U. S. C.-C. A., pp. 315-6.) Rosebery letters. "Only one opinion." (B. C. A,, pp. 310-317.) 1887. Newfoundland re-enacted statute. (B. C. A., p. 711.) 1887. Colonial Office surrendered. (U. S. C.-C. A., pp. 321-2.) 1887. United States statute, retaliating. (B. C. A.; p. 792.) 1888. Newfoundland statute. Licenses may issue to purchase bait. (B. C. A., p. 712.) 1888. Proposed treaty and modus. (B. C. A., pp. 44, 427.) 1889. Newfoundland statute. The Bait Act. (B. C. A., p. 714.) 1890. Bond-Blaine Treaty. (B. C. A., p. 45.) 1893. Newfoundland statute, "The Foreign Fishing-Vessels Act." (B. C. A., p. 730.) 1902. Bond-Hay Convention. (B. C. A., p. 46.) 1904. Treaty with France. Purchase of bait on west coast permitted in ex- change for abandonment of exclusive claim. (B. C. A., p. 48.) 1905. Newfoundland statute. (B. C. A., p. 757.) 1905. Bond's speech. By refusing bait-supply we can bring our competitors to realise their dependence upon us. (U. S. C.-C. A., p. 448.) 1906. Newfoundland statute (not in force). (B. C. A., p. 758.) Now, I take up Question No. 1. This question, as developed by Senator Turner, seems to me to present a very clear and a very simple issue, namely: Are the common operations of fishermen, who work side by side in British waters, to be regulated by the laws of one Government or by the laws — possibly divergent laws — of two Governments? In other words, the United States claim that the treaties give not only the liberty to fish but a liberty of extra-terri- toriality to their fishermen, and still further a liberty to the United States to follow with its sovereignty its fishermen into British terri- tory. In view of the fact that not for many hundreds of years has any such claim been made in respect of any part of the British Em- pire, and in view of the fact that no such claim has ever been made in respect of a foot of United States soil, it might be thought that the question was not one fitted for prolonged argument. It has, how- ever, not only been put forward by the United States, but it has been most earnestly supported by Senator Turner; and it must, therefore, whatever one's opinion may be respecting it, be treated with that attention to which every claim put forward by the United States is entitled. For the present I put aside the possibility of agreement, about which Senator Turner said so much. I put it aside because it is something with which the Tribunal has nothing to do, and I put it aside for another reason — because, although I had thought that agreement was probable, after Senator Turner's advocacy of free licence for everybody to do what he pleases upon the fishing grounds, 1368 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I see very little possibility of arrangement between the two nations. At all events, I am drawing attention to the legal interpretation of the treaty, and it is that with which the Tribunal has to do. In what I say I wish to keep in view two principles of construc- tion : in the first place, that the parties will be presumed to have con- tracted with a view to the existing circumstances, and secondly, that, as stated in the United States Argument, at p. 106 : " It is a familiar rule of construction that that which was within the contemplation of the parties is as much a part of the contract or treaty as if therein written, and that that which was not within the contemplation of the parties, and was not written into the contract or treaty, is and can be no part of it." Considering that the parties must have contemplated the reason- ableness and practicability of the respective contentions, I shall say very little as to what would be reasonable and practical, for it seems to me utterly impossible that the negotiators, in 1783 and 1818, could have contemplated the possibility of fishermen pursuing their common operations under divergent rules. But, while leaving that point with this single remark, I wish to call attention more at length to what the circumstances were at the 826 date of the treaties. I do this because I think that if we shall find the liberty of free fishing regulated by local sovereignty in full operation — if we shall find it to have been very well under- stood and established as a constituted and customary principle of intercolonial relationship — then I think we shall require something very clear in the treaty of 1818 before feeling ourselves compelled to reverse that principle, and to introduce one not only entirely novel, but one that would, at the time, if it had been imagined by the negotiators, have been instantly rejected by them, and one that would have put the owner of the fisheries under the control of the people who were receiving merely the liberty to use them. If I can show such a principle in full operation in 1783 and in 1818, I think I shall have displaced the two propositions upon which Senator Turner seemed to found his argument, namely, that free fishing means unregulated fishing, and that the liberty to fish means a licence to do as one pleases. Senator Turner quoted from Mr. Trescott's argument in the Brit- ish Case Appendix, p. 266 — I do not know as indicative of what. He introduced it in connection with the British position at Halifax, but it very well illustrates what Senator Turner's position is with reference to the treaties of 1783 and 1818. I refer the Tribunal to the British Case Appendix, p. 266, near the end of the first para- graph. It refers to the treaty of 1871 : " Then we owe no obligation to liberality of sentiment or commu- nity of interest; then we are bound to no moderation in the use of our privilege, and if purse-seining and trawling and gurry-poison ARGUMENT OF JOHN S. EWAET. 1369 and eager competition destroy your fishing, as you say they will, we have paid the damages beforehand ;" It seems to me that that very well sums up the position that the United States have taken as to their legal right— not that the United States ever would pursue such a policy, but that there is the legal right to destroy that fishery if they choose to do it. I do respect- fully submit, Sirs, that, not consciously, at all events, was ever any such treaty entered into between any two nations that had the slight- est regard for the preservation of their fisheries. I shall now try to supply some evidence as to the position of fish- ing liberties and fishing sovereignty at the date of the treaty of 1783, with the view of showing what was the accepted idea of intercolonial relationship at the time, and I shall take it up in two ways, first, as between the thirteen colonies themselves, and afterwards as be- tween the northern colonies and the thirteen southern colonies. By a charter of 1620, King James granted to the Council of Vir- ginia a large tract of territory upon the American coast. Almost im- mediately afterwards, a contest arose as to whether that charter passed, to the grantees of it, an exclusive right to the fishing upon the coast. That controversy was debated for several years. It was carried into the House of Commons and formed one of the disputes between the Stuart kings and the House of Commons — the King de- claring that he has a right to give away that monopoly, as he had given away other monopolies, and the House of Commons saying that he had no such right. Sabine gives an interesting account of what took place, and it is reproduced in the United States Case Appendix, at pp. 1166-1170. After tracing the struggle for some time, Mr. Sabine shows that it was ended, in the year 1626, in favour of the Commons' idea of free fishing to all British subjects everywhere. The charters issued after that date invariably contained a clause giving the right of free fishing, and prohibiting the grantees of charters from interfering with that right of free fishing conferred upon all British subjects. The United States, in their Case Ap- pendix, has printed one of these charters — a charter of Massachu- setts— I think it is the charter of 1691. Massachusetts had two charters, one of 1629 and the other of 1691. They are, I believe, almost identical in the respect to which I refer. By this charter, and by the others — a large number having been issued previously to this — very large rights of self-government were given to the colo- nies— courts were established, laws might be made, and fisheries were granted, but there was always a clause, such as will be found at p. 1039 of the United States Case Appendix a little below the middle of the page : — "And further Our expresse Will and Pleasure is and Wee doe by these presents for Vs Our Heires and Successors Ordaine and appoint 1370 NORTH ATLANTIC COAST FISHERIES ARBITRATION. i that these Our Letters Patents shall not in any manner Enure or be taken to abridge bar or hinder any of Our loveing Subjects whatso- ever to vse and exercise the Trade of Fishing vpon the Coasts of New England but that they and every of them shall have full and free power and Libertie to continue and vse their said Trade of Fish- ing vpon the said Coasts in any of the seas there vnto adjoyning or any Arms of the said Seas or Salt Water Rivers where they have been wont to fish "- 827 I call attention to the use of the words " full and free power " of fishing, because, as we shall see, they did not, in the estimate of those affected by them, at all mean that the fisheries should be unregulated by the respective possessors of them. It may be suggested, Sirs, that what I am now submitting to the Tribunal is open to certain observations. It may be said that I am showing the position as between the colonies of one Power and that Senator Turner dealt with the relationship between independent sovereignties. But, it is not at all with the purpose of discussing the question of servitudes that I am referring to the position that ex- isted at that time. It seems to me that it would be the relation be- tween the colonies themselves and not their common relation to another Power that would be of interest in the connection in which I am referring to this subject; and when one remembers how com- pletely the colonies were distinct and separate from one another, the objection would lose almost all of its significance. Some members of the Tribunal, if not all of them, are well aware that the colonies had no connection with one another. They were not permitted to cor- respond with one another. All their correspondence took place through the Colonial Office in London. They had no union even for defensive purposes, and when one of them, as it often happened, was at war with the Indians, others were at peace and doing nothing. The relations, therefore, were almost completely such as would have existed as between perfectly independent nations. At all events, I am merely showing what the existing circumstances were, and what system it was that was familiar to these people when they made the treaty of 1783. In order to show what was done in pursuance of these charters, I refer to the British Case Appendix, pp. 770-776, where a number of the laws that were made, regulative of the fisheries, are set out. Be- fore reading those laws, may I give the dates of the charters of the different colonies whose laws are before the Tribunal ? The charter of New Plymouth is dated 1620; and as the Tribunal will observe that was before the settlement of the free-fishing controversy. This charter of New Plymouth was, moreover, not a charter direct from the Crown, but was a sub-charter from the grantee of another charter, the Plymouth charter of 1609. The Massachusetts' charters were dated 1629 and 1691. The New Hampshire charter was dated AEGUMENT OP JOHN S. EWART. 1371 1629 and confirmed in 1635, and the New York grant was in 1664 and 1674. I now ask the attention of the Tribunal to these laws. The first in point of date is one of the Massachusetts colony under its first charter — not of the Massachusetts province under the second charter. This law, in 1668, established a close season for cod-fish, hake, and mackerel. The succeeding laws in the Appendix are the laws of New Plymouth, and the contrast between these New Plymouth laws and the laws of the other colonies will be noticed. The other colonies were obligated to free fishing, while New Plymouth claimed exclusive fishing, and her laws are useful only for the purpose of showing the contrast, and for the purpose of showing how general was the regu- lation of the fisheries in those years. These New Plymouth regu- lations deal with seines for mackerel, &c., p. 771, and proceeding to the New Hampshire law, of 1687, you will find there a close season for mackerel and provision as to seines. Massachusetts, in 1692, under the second charter, enacted a law as to a close season for mackerel and as to seines; and on the following pages there are other laws passed by Massachusetts. The succeeding regulations relate to lights merely; and one has to go on to p. 775 for the laws of New York under which close seasons and regulations of nets were estab- lished. In 1775, at p. 776, is a further statute of New York — bring- ing down the series very close to the date of the treaty of 1783. Now, I submit, Sirs, that I have shown that the principles of in- tercolonial action were very well established ; that free fishing, in the words of the charters, did not at all mean unlimited fishing, as Sena- tor Turner seems to think : and that liberty to fish did not at all mean license to do as one pleased — it meant in conformity with the laws of the place. Now, passing on to the position as between the northern colonies and the southern colonies, one has to return to the statute of 1699. The use of the words " free " and " freedom " in that Act has not been called to the attention of the Tribunal, because it has not as yet been necessary. I refer to p. 525 of the British Case Appendix, com- mencing about ten lines from the top : — "That from henceforth it shall and may be lawful for all His Majesty's subjects residing within this his realm of England, or the dominions thereunto belonging, trading or that shall trade to New- foundland, and the seas, rivers, lakes, creeks, harbours in or about 'Newfoundland, or any of the islands adjoining or adjacent thereunto, to have, use, and enjoy the free trade and traffic, and art of merchan- dise and fishery, to and from Newfoundland, and peaceably to have, use, and enjoy, the freedom of taking bait and fishing in any of the rivers, lakes,"- 828 and so on. And the statute immediately proceeds to make regulations; thus showing that to the British Parliament of 1372 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that time free fishing did not at all mean unregulated fishing. This statute was in force when the 1783 treaty was made, and also when the 1818 treaty was made. The Americans were admitted to the freedom of fishing, and I submit it was to the freedom of fishing re- ferred to in this statute. That was the freedom of fishing which they had enjoyed prior to their declaration of independence. They had freedom of fishing subject to the regulations. They forfeited their position by their declaration of independence; and when, by treaty, they returned, I submit that they returned to the position which they occupied immediately before their declaration of inde- pendence. THE PRESIDENT : The Court will adjourn until 2 o'clock. [Thereupon, at 12 o'clock, the Tribunal took a recess until 2 o'clock P. M.] AFTERNOON SESSION, MONDAY, JULY 18, 1910, 2 P. M. THE PRESIDENT : Will you kindly continue, Sir. MR. EWART : Mr. President and gentlemen of the Tribunal : Sena- tor Turner based an argument in support of the United States con- tention upon the assertion of the right of the United States to the fisheries at the time of the negotiation; and he quoted, from Mr. Adams' correspondence, some extracts in support of his position. I am not quite sure, if Senator Turner could establish what he en- deavoured to establish, that it would have much bearing upon the question before the Tribunal. It is, however, possible that the impli- cations of the treaty might be different in the two cases — I mean the case of the United States having had a right prior to the date of the treaty, and the case of the treaty being a grant for the first time of a liberty from Great Britain to the United States. And because of the possibility of those differing implications I feel that I must follow Senator Turner to some extent, He was met at the outset of his argument by the very serious dif- ficulty that the Congress of 1779 and the Committee of Congress of 1782 had disclaimed any right on the part of the United States to the inshore fisheries — to a distance of 3 'leagues, indeed from the shore-line. He endeavoured to get rid of that very serious difficulty by some rather slighting remarks as to the personnel of the Congress. Senator Turner had not examined the list of names of the men who signed that report in 1782, and who comprised or were mem- bers of the Congress in the previous year. He spoke of them as " inconspicuous individuals." Two of the members of the committee of 1782 were far from being inconspicuous individuals. One of them was James Madison, whose name has only to be mentioned in order that he may be known — fourth President of the United States ; prob- ARGUMENT OF JOHN S. EWART. 1373 ably the leader in the convention which settled the form of the United States constitution, and co-operator with Hamilton and Jay in the editing of the "Federalist." Another member was Charles Carroll, who, after studying the civil law in Paris, went to London to complete his professional education by studying the common law in England. He was a congressional delegate to Canada. He was one of the signers of the Declaration of Independence. The other mem- ber of that committee, James Lovell, has not left any particular record behind him. In Congress were men of very well-known names : John Dickinson, to begin with, the celebrated author of the celebrated "Farmer's Let- ters," because they were signed " Pennsylvania Farmer" — letters that probably did more than anything else to give the colonials a knowl- edge of the dignity of their posititon ; Henry Laurens, who actually was one of the negotiators of this very treaty of 1782 ; Edmund Ran- dolph, who was at one time Governor of Virginia. He helped to frame the constitution, and his biographer says that " his career was brilliant, and elicited the admiration of Franklin, who generally voted with him." He was Attorney-General of the United States from 1789 to 1793, and was probably the Attorney-General who wrote the opinion that we are now so familiar with connected with the seizure of the " Grange." He was afterwards Secretary of State. Eldridge Gerry, a man whose name still lives in the word "gerry- mander," who was Governor of Massachusetts, and afterwards 829 Vice-President of the United States. Samuel Huntington, President of the Congress, Judge of the Supreme Court, and afterwards Chief Justice of the Supreme Court. Samuel Adams, the implacable and the insatiable, the enthusiastic organiser of the corre- spondence committees. John Jay, Chief Justice of New York, Sec- retary^ of State, negotiator of Jay's Treaty, Governor of New York. Roger Sherman, one of the committee to draft the Declaration of Independence, of whom Jefferson said that he was a man who had never said a foolish thing — although, possibly, he did a very foolish one in voting as we see he did. Patrick Henry, the great orator and statesman, Governor of Virginia for three years. These are all whose names I think I need trouble the Tribunal with at this stage. Then Senator Turner said that a great change came over the posi- tion of United States affairs, and their prospects with reference to a successful termination of the war between 1779 and 1782, and there- fore between the attitude which Congress assumed in 1779 and the attitude which they might have assumed in 1782. But Senator Turner got his chronology a little wrong. He put between those dates the French alliance and the Battle of Saratoga, at which Bur- goyne and his army were taken captive. That, however, is to put those two events entirely in the wrong chronological position. The 1374 NORTH ATLANTIC COAST FISHERIES ARBITRATION. true order is: Saratoga, the 17th October, 1777; the French alliance, the 8th February, 1778 ; Congress proceedings in 1779 ; Yorktown, the 19th October, 1781, when Cornwallis surrendered; the Committee of Congress on the 8th January, 1782. And Senator Turner com- pletely overlooked the tremendous change of situation brought about by the defeat of the French fleet (that had done so much for the Americans at Yorktown) by the British in the West Indies on the 12th April, 1782, and also the failure of the French and Spanish allies before Gibraltar, the 13th September, 1782 — two facts completely altering the position as between Great Britain and her enemies, because they restored to her the mistress-ship of the seas. Senator Turner, in the same connection, read from* Lord Shel- burne's speech in the House of Lords, in which Lord Shelburne, trying to defend what is said to have been the worst treaty that Great Britain ever made, justified himself, so far as possible, by indicating the helplessness of the British position. He was an- swered, however, immediately afterwards by Admiral Keppel, who until a very short time before had been his colleague in the Rockingham administration. Admiral Keppel said that the British fleet was in perfectly good condition, and that there were the hap- piest prospects for the next campaign (British Counter-Case Ap- pendix, pp. 123, 124). Then, if one wants to see what the position was in the United States, it will be found in the British Counter-Case Appendix, at pp. 30 and 31, in letters from the Secretary of State of the United States, Mr. Livingstone — the first of them to General Greene, and the second to the Governors of the various States. The date is the 31st January, 1782. Yorktown was, as I have said, the 19th October, 1781. The second paragraph of the first letter reads (British Counter-Case Appendix, p. 30) : — " I wish it were in my power to tell you that our accounts from Europe were proportionate to our expectations. The combined fleets, as you know, have returned and separated without having effected anything. The British are again masters of the ocean. Gibraltar is a rock on which all the exertions of Spain seem to split, and the siege of Fort St. Philip seems to be carried on in the most energetic manner. We have no prospect of forming an alliance either with Spain or Holland, who both appear to sigh for peace. Our loan on the guarantee of France with the last is nearly com- pleted. But what is not a little unsatisfactory, it is also nearly ex- pended by advances which France has made us on the credit of it. From Spain we are likely to get nothing. In his letter to the Governors, which appears below the letter from which I have just read, the Secretary goes over the prospects in detail, referring to his expectations from Spain as scarcely more flattering than those which they had in respect -of the United ARGUMENT OF JOHN S. EWART. 1375 Provinces, and saying that he was compelled to turn to France alone, and France — " assures us that it is not in her po.wer to make us any further grants of money." Then, at the foot of p. 31 :— " When Congress call upon a State for supplies, they are usually answered by pleas of disability, urged too by the State with good faith and a firm persuasion that they speak their real situation. A recurrence to facts that have passed under their own observation will convince them that they are deceived." 830 The most cursory reader of the history of the great difficul- ties that General Washington had at that period knows that that last clause is exactly in accordance with the terrible difficulty that he experienced in getting supplies and in keeping his men together. Then, Sirs, turning to Mr. Adams' testimony, I refer to the letter upon which Senator Turner placed much reliance in United States Case Appendix, at p. 318. There are two elements in that letter that have to be dealt with. Mr. Adams is stating the grounds and principles upon which the negotiators had contended for the third article of the treaty, and upon which Great Britain had finally yielded (I read from the top of p. 318) : — " That the Americans, and the adventurers to America, were the first discoverers and the first practisers of the fisheries. " 2. That New England, and especially Massachusetts, had done more in defence of them than all the rest of the British empire. That the various projected expeditions to Canada, in which they were defeated by British negligence, the conquest of Louisburg, in 1745, and the subsequent conquest of Nova Scotia, in which New England had expended more blood and treasure than all the rest of the British empire, were principally effected with a special view to the security and protection of the fisheries. " That the inhabitants of the United States had as clear a right to every branch of those fisheries, and to cure fish on land, as the inhabitants of Canada or Nova Scotia; that the citizens of Boston, New York, or Philadelphia, had as clear a right to those fisheries, as the citizens of London, Liverpool, Bristol, Glasgow, or Dublin." The first observation that occurs to one in connection with a claim based upon a ground of that kind — a claim of co-operation with Great Britain — is this: That if the colonies did co-operate with Great Britain, and if that gave to the colonies something of a title to British territory, the same co-operation would have given Great Britain a title to colonial territory. The two parties were working together, and Mr. Adams says : Because they were working together the United States had, after separation, a right to a bit of the British Empire. The same line of reasoning would have given the British 92909°— S. Doc. 870, 61-3, vol 10 31 1376 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Government a right to a bit of the Massachusetts coast or the Massa- chusetts fishery. Of course, Mr. Adams would not have taken it that far, and no Bostonian would have admitted any sort of a claim of that kind. Mr. Adams, moreover, while he speaks of co-operation in 1745, absolutely overlooks the fact that France was not ousted from the North American continent in 1745, but afterwards, when the colonies took no part in the attack upon Louisburg and Canada, when all they did was to accompany some British expeditions, in their own hinterland, against the French and the French Indians. They were not with Wolfe at Louisburg in 1758, when Louisburg finally fell; nor were they at Quebec in 1759 with Wolfe when Montcalm met his defeat and France lost her position in Canada for ever; nor even at the surrender of Montreal — a quiet sort of affair the next year. I pass from that point thus summarily because really I do not see that it has very much bearing upon the matter before the Tribunal. The next paragraph in the letter may possibly have some more bearing, and I shall ask leave to speak about it. Section 5 of the letter (p. 318 of the Appendix to the Case of the United States), referred to the negotiations, and then proceeded as follows : — "We asked no pardon, we requested no grant, and would accept none. We demanded it as a right, and we demanded an explicit acknowledgment of that as an indispensable condition of peace; and the word right was in the article as agreed to by the British ministers, but they afterwards requested that the word liberty might be substituted instead of right. They said it amounted to the same thing, for liberty was right and privilege was right; but the word right might be more unpleasing to the people of England than liberty and we did not think it necessary to contend for a word/' The fact is that the word " right " was in the article as agreed to by the British Ministers, but with reference to the ocean fishery only ; and that the request that the word " liberty " might be substituted instead of " right " related to the same ocean fishery. It would be true to say that. " They said it amounted to the same thing, for liberty was right, and privilege was right; but the word right might be more unpleasing to the people of England than liberty, and we did not think it necessary to contend for a word "-—it would be true if applied to the ocean fisheries. It would not be in accordance with the fact if applied to the coast fisheries. The record will show that Mr. Adams drew the projet of the treaty which was afterwards accepted by the British Plenipo- 831 tentiaries, and was incorporated in the treaty, and that in it he himself used the word " liberty " with reference to the coast fisheries. He had not done that in his first draft, but he did after- ARGUMENT OF JOHN S. EWART. 1377 wards use it in the draft which finally became the treaty, and that he, so far from agreeing to the word " liberty," as applied to the ocean fisheries, as being more pleasing to the British, in fact stoutly contended against it. I say he contended against it so far as the ocean fishery is concerned. So far as the coast fishery is concerned, he was agreeable to it. As I said on a former day, there were several drafts of this treaty: The first two drafts were prepared by the Americans, the first by Mr. Jay, the next by Mr. Adams. In both of them they use the word " right " as applying to the fishery which they asked for. Then the British draft (to be found in the British Counter-Case Appendix, at p. 96, article 3, in the middle of the page) was as follows : — " The citizens of the United States shall have the liberty of taking fish of every kind on the banks of Newfoundland, and also in the Gulf of St. Lawrence," and so on. Mr. Adams prepared the next draft, and it was the one that went into the treaty. In it the word " right " is applied to the ocean fisheries and the Gulf of St. Lawrence, and the word " liberty " is applied to the coast fisheries. Having that in view, I should like to refer to Mr. Adams' diary, at the place so strongly relied upon by Senator Turner, commencing at p. 103 in the British Counter-Case Appendix, at the foot of the page, under date of the 29th November : — " Met Mr. Fitzherbert, Mr. Oswald, Mr. Franklin, Mr. Jay, Mr. Laurens, and Mr. Strachey, at Mr. Jay's Hotel d'Orleans, and spent the whole day in discussions about the fishery and the Tories. I pro- posed a new article concerning the fishery; it was discussed and turned in every light, and multitudes of amendments proposed on each side, and, at last, the article drawn as it was finally agreed to." So that the discussion which took place and is related on the next page was in connection with the draft of the treaty, in the form in which it afterwards went into the treaty — the word "right" being applied to the general fisheries, and the word " liberty " being applied to the coast fisheries. Going on at the top of the next page : — " The other English gentlemen being withdrawn upon some occa- sion, I asked Mr. Oswald if he could not consent to leave out the limitation of three leagues from all their shores, and the fifteen leagues from those of Louisbourg." Then, skipping one paragraph, I read : — to " Upon the return of the other gentleman, Mr. Strachey proposed leave out the word right of fishing and make it liberty" 1378 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Now, that refers to the first clause of the treaty, and the sugges- tion was to strike out the word " right " with reference to the ocean fisheries, not, as Senator Turner thought, with reference to the coast fisheries. I continue reading; and we shall see whether Mr. Adams agreed that the change proposed by Mr. Strachey made very little- difference : — " Mr. Fitzherbert said the word right was an obnoxious expression. Upon this I rose up and said, gentlemen, is there or can there be a clearer right? In former treaties, that of Utrecht, and that of Paris, France, and England have claimed the right, and used the word. When God Almighty made the Banks of Newfoundland at three hundred leagues distance from the people of America, and at six hundred leagues distance from those of France and England, did He not give as good right to the former as to the latter? If Heaven, in the creation, gave a right, it is ours at least as much as yours. If occupation, use, and possession give a right, we have it as clearly as you. If war and blood and treasure give a right, ours is as good as yours. "We have been constantly fighting in Canada, Cape Breton, and Nova Scotia, for the defence of this fishery, and have expended be- yond all proportion more than you; if then, the right cannot be denied, why should it not be acknowledged, and put out of dispute? Why should we leave room for illiterate fishermen to wrangle and chicane ? " That seems to me to be perfectly clear; but if there could be any doubt about it I refer to Mr. Adams' biographer, his grandson, Mr. C. F. Adams, an extract from whose book will be found upon p. 105, in the middle of the first paragraph: — " The discussions which ensued for the next four days, were long, animated, and often vehement. The great struggle was upon the fisheries. Great Britain was willing to concede the use on the high seas as a privilege," 832 That is precisely accurate " whilst she denied it altogether within its three miles' juris- diction on the coasts. America, on the other hand, claimed the for- mer as a right, and asked for the privilege of the latter." Precisely in line with what I have said to the Tribunal. Then, if one wants further evidence of it, we can take the letter from Mr. Fitzherbert one of the British agents in Paris) to Lord Shelburne, on p. 110 of the British Counter-Case Appendix, omitting the first sentence : — " I can truly assure your Lordship that in regard to the fishery, no pains nor instances were spared in order to settle that article accord- ing to the ideas of the British cabinet, 1st by restraining the Ameri- cans to the fishery upon the Great Bank; 2d by restraining them (agreeably to the hint thrown out in your Lordship's letter to me of the 24th) merely to the cod-fishery; 3d by preventing them from AKGUMENT OF JOHN S. EWAET.- 1379 drying their fish on the shores of Nova Scotia, and lastly by having the article so worded as that the fishery on the Great Bank should be stipulated for, not as a matter of right, but as a matter of grace and favour; but upon all these articles the Commissioners in general and particularly the eldest of them, Mr. Adams (who your Lordship knows is from New England) were absolutely inflexible." I think that the point is sufficiently well established. And, there- fore, it is quite clear that this passage that I have read from Mr. Adams, on p. 318 of the United States Case Appendix, is quite errone- ous. He had absolutely forgotten what had taken place. I may say as to that, however, that it is no wonder. In Mr. Adams previous letter of 1815 he had described himself as without memory and with- out eyes. He was writing, now, seven years afterwards, and it is no discredit to such a great man as he was that after having spent so many years in violent struggle, his memory should at last have failed him. If I were asked why, then, were the fisheries conceded, if the United States had no claim to them at all ? there are three very satis- factory answers: The first, and one of the most important, at all events, was connected with the trade of the United States. Until 1776, the trade of the colonies had been engrossed by Great Britain. The Declaration of Independence set that trade at large; and evi- dently there was going to be great competition for it among the Euro- pean nations, who now were to have an opportunity of participating in it. It was probable that the estrangement which had arisen be- tween Great Britain and the United States, by reason of the war, would militate against the chances of Great Britain, and be of great service to the European nations in the struggle for this commerce. It was a matter of great object with the British Government that they should, so far as possible, effect a reconciliation — not merely a peace, but a reconciliation ; and throughout the history of the negotia- tions, the members of the Tribunal will find that that point was fre- quently put by Mr. Franklin to Mr. Oswald, and that a great impres- sion was made upon Mr. Oswald, and through him upon the British Government in that regard. That was, then, one great motive actu- ating the treaty, namely the placating of colonial feeling. Another great object was that the United States might be detached from the European alliance — with France, Spain, and Holland — and that, by separating the United States from these others, Great Britain would be in a better position to deal with her European enemies. And the third reason was the great political difficulties that Lord Shelburne found himself in. He and Fox— I need not go into that very particularly — had always differed as to the line of policy to be adopted in the negotiations. While members of the same Eockingham 1380 NORTH ATLANTIC COAST FISHERIES ARBITRATION. administration, Fox had insisted upon the immediate recognition of the independence of the United States, with the idea of detaching the United States from the European coalition. Shelburne had con- stantly opposed that, and had insisted, in line with his King's desire, that independence should only be granted as a condition of peace. Lord Shelburne found himself afterwards, when he became Prime Minister, forced to accept the policy of Fox. Fox now was in coali- tion with North, and was carrying on most virulent opposition to his former colleague, Lord Shelburne. Lord Shelburne, as I say, had to adopt the Fox policy, and by Oswald's second commission, he recog- nised the independence of the United States. He felt, however, that in doing so he had taken his political life in his hands, and that unless the recognition could be followed by a treaty of peace to be presented to Parliament (which was just about to meet) that his political downfall was a certainty. And so, when communicating to Oswald the issue of the second commission, recognising the inde- pendence of the United States, he accompanied it with a letter 833 which may be found in the British Counter-Case Appendix, at p. 70 — a most interesting letter, from an historical point of view as well as of a little service here : — " Having said and done every thing which has been desired," The reference is to the sending of this second commission — " there is nothing left for me to trouble you with except to add, that we have put the greatest confidence, I believe, was ever placed, in men, in the American commissioners. It is now to be seen, how far they or America are to be depended upon. " I will not detain you with enumerating the difficulties, which have occurred. There never was greater risk run. " I hope the public will be the gainer. Else our heads must answer for it and deservedly." He made the treaty, Sirs, but it was a bad treaty; and his head did answer for it. He was driven from public life by an adverse vote in the House of Commons condemnatory of his treaty, and shortly afterwards retired from public life altogether. Now, Sirs, pausing there for a moment, it does seem to me that it is out of the question to suggest that these negotiators were propos- ing that Great Britain should abdicate a part of its sovereignty, and that the United States should succeed to it. We have printed, very elaborately, all that we have been able to discover with reference to these negotiations, and the collection is very complete. I venture to say there is not a syllable anywhere upon the point, or anything to indicate that anything of that sort was in the minds of one of these negotiators. One cannot imagine Mr. Adams saying to Mr. Oswald that he " supposes it is perfectly understood that if we have liberty to fish on your coasts, our police will go along." I say it is impos- ARGUMENT OF JOHN 3. EWART. 1381 sible to imagine Mr. Adams saying that; and yet that is what Sena- tor Turner proposes to us as the implication of the treaty. With reference to the treaty itself, Sirs, I have, I think, four ob- servations to make, and very briefly ; the first is this : The Tribunal will observe that by the treaty, Great Britain relinquishes all claim to government over the United States. It would not have been diffi- cult, of course, to have added " and to the government of American fishermen in the waters of His Majesty's dominions in America ; " but that was not added. We have a relinquishment of government in the United States. We have no relinquishement of government in British territory. My second observation relates to the word " liberty " ; and I merely mention it because I have already dealt with it, and, I think, have shown that to these men — the men who were negotiating that treaty — " liberty " to fish did not mean license to do as one pleases ; and that free fishing did not mean unregulated fishing. The third observation I make is in opposition to what is very formally put forward in the United States Case and Argument, and which was touched upon by Senator Turner, namely, that what the treaty meant by a grant of liberty was really a grant of a half ownership in the fisheries. That is put forward in the United States Case, at p. 9, and in the United States Argument, at pp. 65 and 67 ; and it is said that there is no more reason why Great Britain should regulate American fishermen than that the United States should regulate British fishermen. I do not suppose, Sire, that this argument will be given effect to; but I do not wish to let it pass unnoticed, because one knows what is taken, at subsequent times, out of what happens during these arbitrations. I submit, Sirs, that, so far from having given the United States a half interest in these fisheries, or half ownership of them, that we merely gave them a liberty to fish there ; and that that would not at all preclude us from giving like liberty to other nations. I cite, in support of that, the pamphlet which Senator Turner put in, Eivier, at p. 6. But I can do better than that, for I can show that such was the view taken by the parties with reference to these very fisheries. For instance, Great Britain introduced the United States fishermen on to the French shore of Newfoundland, after we had given rights to the French. The French claimed exclusive rights. The United States say : " No ; it was a mere right to fish in common." And prior to the declarations interchanged with the treaty of 1783, I think it was a right to fish in common ; that is, a right to fish in common be- tween the British subjects and the French subjects. At that time, while the fishery was in that condition, we made a treaty by which we admitted the United States to participation in that common fishery, and the United States accepted it 1382 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Afterwards, in the treaty of 1818, we gave more formal and specific entry to the United States in respect of that French shore. 834 By the treaty of 1783, as the Tribunal will remember, the United States got a right to fish on Newfoundland only in such places as British fishermen might use, which might or might not include the parts of Newfoundland where the French shore was situated. But in the treaty of 1818 we specifically gave the United States the right to fish upon the French shore — introducing them there, therefore, by virtue of the right which we had left to us as owners of the fisheries. Then, in the subsequent treaties of 1854 and 1871, we introduced the United States again to the French shore between St. John and the Quirpon Islands. The French had that shore, as the Tribunal will remember, as well as down here (indicating on the map). The United States had not that shore ; under the treaty of 1818 they had this (indicating on map). The treaties of 1854 and 1871 introduced the American fisherman to this shore (indicating) on the east side of Newfoundland, which was the French shore. Then, in 1857, by an unratified treaty, but one that Great Britain certainly thought she had a perfect right to make, she agreed to intro- duce the French on to the coast of Labrador, where the United States had the liberty to fish in common with British subjects under the treaty of 1818. That treaty did not become effective because of New- foundland's opposition; but Great Britain took the same position then as she had previously in introducing the Americans to the French shore, namely, that she could introduce the French on to the American shore. The fourth observation I have to make with reference to that word " liberty " is that it is a liberty to fish and not a liberty of extra-terri- toriality, which is entirely a different thing. Passing from the treaty, then, Sirs, I wish to give some contem- porary testimony as to the effect of this treaty — to show in what way it was regarded by United States Secretary of State, Mr. Livingston, and by Mr. Madison. (British Counter-Case Appendix, at p. 132). Mr. Livingston is writing to General Washington on the 12th March, 1783, giving him an account of the treaty. The only sentence that interests us is the last sentence: — "The third ascertains our rights as to the fishery, and puts them upon the same footing that they were before the war." That is precisely the position that we take here, — that it was a regulated fishery previously; that that was the sort of fishery that everybody was familiar with; and that it was to a similar fishery that the treaty referred; and when the United States Secretary wished to express his view as to the position of American fishermen ARGUMENT OF JOHN S. EWAET. 1383 in the future, he found no clearer or more compendious language than that it was to be the same as it was " before the war." Then, on the same page, is a letter from Mr. Madison to Mr. Ed- mund Randolph, referring to the boundaries and indicating what they were to be. It ends, so far as this extract is concerned, with an unfinished sentence; but I am satisfied there is nothing in what re- mains of the sentence that is of any interest, or else it would have appeared — " That the fisheries shall be exercised as formerly ; . . . " And, Sirs, curiously enough, I do not find that that is so widely apart from some expressions in the United States Counter-Case, p. 81, the last sentence: — " The British Case omits to state that this French claim, the ex- istence of which 'may have supplied an additional reason for not extending the grant to bays, harbours, and creeks ' in 1818, antedated the treaty of 1783 between the United States and Great Britain, and by that treaty, it will be remembered, the American fishermen were placed upon an exact equality with British fishermen in the use of all the waters of Newfoundland for fishing purposes." That is, when they were introduced into the French shore they went there on a footing of an exact equality with British fishermen, which of course — at least I submit — would mean that they would be subject to the same regulations as British fishermen. And at the top of p. 86:— " These treaties of 1783 "— Those are the British treaties with the United States and with France. " These treaties of 1783, therefore, left the American fishermen on exactly the same footing as British fishermen, so far as the use of the waters of the so-called ' French Coast ' was concerned. 835 And I submit, Sirs, if they were on the same footing exactly as British fishermen, that they were subject to the same regulations. We are told, Sirs, that Great Britain, by the treaty of 1818, aban- doned its sovereignty and its power to legislate, save with the con- currence and consent of the United States; and I think it is worth considering whether any such concurrence and consent could have been anticipated at that time. We must remember that King George was then in pretty bad odour in the United States, and that there would have been hardly any chance in the world of his obtaining assent to any of his laws. It will be remembered that one of the counts of the long indictment against him contained in the American Declaration of Independence was that — " He has refused his assent to laws the most wholesome and neces- sary for the public good." 1384 NORTH ATLANTIC COAST FISHERIES ARBITRATION. And I think that the frame of mind of the colonials at that time was such that they would have been delighted to have had an oppor- tunity of refusing to assent to any law of his. One can hardly imagine, Sirs, that the British Government, after that treaty, should have sent over to the United States, and should have asked their assent to the re-enactment of the regulations which were then in existence, and without which the fisheries could not properly be con- ducted. I think that we should have had a unanimous and vigorous dissent; and we can almost get a little of the flavour of it in some language of Mr. Root in British Case Appendix, p. 500, at the top. He is referring to Sir Edward Grey's memorandum, in which it was said : — • " ' The American fishermen cannot rightly claim to exercise their right of fishery under the Convention of 1818 on a footing different than if they had never ceased to be British subjects.' r It is the end of the quotation. Then Mr. Root goes on : — " What then was the meaning of independence? What was it that continued the power of the British Crown over this particular right of Americans formerly exercised by them as British subjects, although the power of the British Crown over all other rights formerly exer- cised by them as British subjects was ended? " I think, Sirs, something like that, but infinitely stronger and punctuated with emphasis of various sorts, would have been the kind of answer we would have got if we had asked the colonials, while they were in the state of mind that they were at that time — and I do not say improperly — for assent to any of our laws. That period was one of the most intense excitement, and but for Washington and other splendid men of the period, the war of independence might have been followed by civil war and state bankruptcy. Another point has to be considered; if concurrence and consent were necessary in 1783, how could it have been given ? According to the constitution of the United States at that time, what would have been its form? One has to consider what the concurrence and consent had to accomplish. We have to take it that by the treaty American fishermen could go into British waters and when there would be free from British sovereignty. We want, then, something which will place those men under the operation of British sovereignty. Concurrence and consent do not seem to be the proper words to use in that connection. I say that by the treaty, the American fishermen, according to the United States contention, could go into the British waters and be free entirely from British sovereignty. What is wanted, then, is some act of the United States or of the individual States, which will place these men under British sovereignty when in British territory. AKGUMENT OF JOHN S. EWAET. 1385 Now, I do not know how the United States would do that to-day. It would be a very difficult operation for Great Britain to do it. I do not know that there is any instance of a statute anywhere by which nationals are placed under the jursidiction of another sov- ereign. But I feel quite sure that it would have been a most difficult problem to be solved under the constitution which existed in the United States in 1783. The constitution that existed then was that of 1778, and will be found in the British Counter-Case Appendix, at p. 7. Its effect was to give to a Congress of the States, some very clearly specified but exceedingly limited authority. It was properly speaking a confederation and not a federation, such as that which afterwards followed in the more complete constitution of the United States. Under this constitution, as indeed under the other, each State retained its sovereignty, freedom, and independence, except so far as it granted powers of sovereignty to the central body. But the difference, and the great difference, between the two constitu- 836 tions is that in the case of the present constitution of the United States, Congress has very large powers, and there is an Executive with the President and regular State officers. The earlier constitution provided for a meeting of delegates from the different States in Congress, and the powers which they gave are to be found in section 9, about the fourth paragraph from the top : — "ART. IX. The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth Article; of sending and receiving ambassadors; entering into treaties and alliances," —with a certain provision. And below, at the foot of the page are other powers in respect of coinage, managing the affairs of the In- dians, post-offices, appointing officers to the land forces, and so on. The only executive that was provided for was what was called " A Committee of the States." That is provided for at the top of p. 9 of the Appendix to the British Counter-Case : — " The United States, in Congress assembled, shall have authority to appoint a committee, to sit in the recess of Congress, to be denom- inated 'A Committee of the States,' and to consist of one delegate from each State ; and to appoint such other committees and civil offi- cers as may be necessary for managing the general affairs of the United States under their direction ; to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; " So that the only President of the United States was really the Chairman of this Committee of the States. The other officers were such as Congress might direct. Now, Sirs, it seems to me, without dwelling upon that Constitution, that there was no power in Congress, and there was certainly none in 1386 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the executive, to place United States citizens under foreign jurisdic- tion, even in foreign territory. What would have had to be done, then (if that could have been done), would have been that each State should have passed a statute placing its own citizens under the foreign jurisdiction — a proceeding that, of course, could not have been anticipated and something that would never have happened. It may be said that Congress could have made a new treaty. Yes. The old treaty, by which the United States got those liberties might have been torn up, and another treaty made by which the United States would have taken those liberties with the necessary qualifica- tion. But that is not a sufficient reply, for nobody will argue that this treaty was made with the intention of its being torn up and another being made in its place. I am asking what could have been done under this treaty; and as far as I can see there was no provision made for the concurrence and the consent of the United States; it was something that practically could not have been obtained ; and we are left in the position that there were no means by which the United States fishermen could have been brought under control in British waters. One might press the argument a little further, and point to the effect upon the British Parliament of such a contention as this. The suggestion is that British laws would not be valid urfiess assented to by the United States; that British sovereignty was limited and cur- tailed, and that its exercise was to depend upon the concurrence and consent of the United States. British statutes at present, Sirs, recite "that His Majesty, by and with the consent of the Lords and Com- mons enacts " ; but if this contention of the United States were up- held, the recital would have to be amplified; it would have to be: " His Majesty by and with the consent of the Lords and Commons and of the United States, enacts, &c." Well, Sirs, I need not say that the British Parliament has never intentionally so limited itself. I have shown what the political situation was before 1782 JUDGE GRAY: Mr. Ewart, let me see if I follow your argument: It is your contention that the position of the United States is such as you have just indicated, and that the treaty of 1818 itself must be taken to mean, or looked forward to, necessary regulations of the fish- ing act, and that those regulations must be made by concurrent action between Great Britain and the United States. MR. EWART : Do you mean that that is my view, Sir ? JUDGE GRAY: Is that your view of the position of the United States: That any regulations which may be adopted, or any legis- lation that may be enacted by Great Britain or the colonies, must be formally assented to by the United States, and thus become active and operative? ARGUMENT OF JOHW S. EWART. 1387 837 MR. EWART : I understood from Senator Turner's argument, which I took to be an amplification of the position taken by the United States in its printed Argument and Case, that Great Britain had abandoned its sovereignty 'pro tanto, and that the American citi- zens were not in any way amenable to that sovereignty when in British waters — that American sovereignty followed them into Brit- ish waters. That I understand to be in their printed Argument, and to have been developed, so as to leave no doubt as to the attitude of the United States, by Senator Turner. JUDGE GRAY : Then do you understand that the result of the posi- tion taken, and the argument made by the United States, was that the completeness of the liberty granted by the treaty of 1818 was such that it admitted of no derogation from it, whether reasonable or un- reasonable, in the opinion of the granting power ; and that, therefore, if that position was maintained, all legislation or regulation would be invalid or without authority, that undertook to touch the very sub- ject matter of the treaty — that is, the very act of fishing? MR. EWART: Yes, Sir. JUDGE GRAY : The position to which both parties would then be re- duced if, after adoption of the treaty and in the years following, it became 'manifest that some regulation was reasonably necessary in order to preserve the fishing and promote its productiveness, or what not, would be that such regulations could not be adopted by Great Britain, but that the two parties would be compelled to adopt some modality to that end, to use a word with which we have become familiar? MR. EWART: Yes, Sir. JUDGE GRAY : That is. that that was not contemplated, or within the four corners of the treaty of 1818, and that the necessary result of the completeness and fullness of the liberty granted was that there- after, if it should be thought that that treaty should be in any wise affected, diminished, impaired, or derogated from in the interest of the fishing rights themselves, it would have to be done by a modality agreed upon by the United States and Great Britain, either in the form of a new convention, or in the form of any other mode of agree- ment by which the ends sought could be achieved. Is not that the position the United States take ? You understand I am not express- ing any opinion about it. but am merely asking whether that is your understanding of the position of the United States. MR. EWART: I understood it almost in the language which you have used. Sir. I have understood that that is the position of the United States, that no derogation shall take place from the treaty itself. That, so far, is also our position. They, however, take it that any regulation at all would be a derogation from the treaty. JUDGE GRAY : Exactly. 1388 NORTH ATLANTIC COAST FISHERIES ARBITRATION. MR. EWART : Our position is that regulations reasonably made for the preservation of the fishery do not constitute a derogation from the treaty, but are something which the negotiators of the treaty would have contemplated. The point that I make at present is, that if it be true that after the treaty our regulations could be made only with the concurrence and consent of the United States, that is equiva- lent to saying (under the conditions which existed at that time), that there could have been no regulations at all; because practically we could not have got the consent, even if they could have given it; and under the Constitution as it was then, the difficulties of giving it were sufficient to prevent its ever being given. I am meeting, the honourable Arbitrator will see, the second part of the Argument of the United States now, and not dealing with what is the effect of the treaty as to whether regulations could be made, and whether those regulations would be in derogation of the treaty or not. JUDGE GRAY : I was only trying to avoid a difficulty which seemed to result from your mode of putting the question, that there could be no regulation except with the concurrence of the United States, that it was not in the power of the United States to place its own citizens under the control of a foreign Government by such' concur- rence, but, that the real situation was such as made necessary an agreement or a modality in order to get any regulation at all, that was all. 838 MR. EWART: I have been basing what I have said, to some extent, upon the form of the question, the contention of the United States being that the liberty granted by the treaty is not sub- ject to limitations or restraints by Great Britain: — (a.) Unless they are appropriate and necessary, and so on. (&.) Unless they are reasonable, and so on. (rd Salisbury's somewhat peculiar views, as far as we have observed, as to the difference between laws existing at the date of the treaty 1418 NORTH ATLANTIC COAST FISHERIES ARBITRATION. and laws passed subsequently to the date of the treaty, what is the extent of the discrimination which he makes? MR. EWAET: It is this, Sir; Lord Salisbury, I think, was putting the British position with respect to prior legislation higher than his successors, and higher than the British Government now care to put it. Lord Salisbury's view was that, as to legislation prior to the treaty, there would be no question at all. It was not a matter for debate, whether such regulations were reasonable or unreasonable. By the express terms of the treaty, by virtue of the words " in com- mon," Lord Salisbury said that the United States took the privilege subject to the laws which existed at that time. JUDGE GRAY: That is, that they were allowed to participate in a regulated fishery, but he seems to make a distinction between partici- pation in an already regulated fishery and a fishery to be regulated. MR. EWART: No, Sir, with submission; the distinction which he makes is between laws which had existed prior to the treaty and laws passed afterwards. JUDGE GRAY: Exactly. MR. EWART: As to those which existed prior, he says that the United States fishermen are bound by them, no matter what their character is; that the express words of the treaty are sufficient to bind them. SIR CHARLES FITZPATRICK : Those laws prior to the treaty must be read into the treaty and be considered as part of the treaty ? MR. EWART: That was Lord Salisbury's view. As to subsequent laws he said, both in his first and second letters, if Mr. Evarts sug- gests that the subsequent laws are inconsistent with the treaty, we shall be glad to discuss them. Now, there was no purpose in saying that, if Lord Salisbury was admitting that no subsequent laws of any kind could be passed. He therefore makes a distinction, with refer- ence to discussion, between prior and subsequent laws. As to prior laws, we cannot discuss them ; they are read into the treaty ; they are there by virtue of the treaty : while subsequent ones may be good or may not be good. The Tribunal will see that Lord Salisbury is challenging 857 Mr. Evarts' statement that Great Britain cannot regulate the fisheries. If that be so, Lord Salisbury says the fisheries are delivered over to anarchy, and he finishes both letters with the same sentence inviting discussion as to subsequent laws. What were the subsequent laws? There was only one — the Sunday law of 1876 — and Lord Salisbury, therefore, if we apply his general language to the only statute to which he could have been referring, was speaking of the Sunday law of 1876; and what he says, in ref- erence to it, is that if Mr. Evarts thinks that the Sunday law is in- ABGUMENT OF JOHN S. EWART. 1419 consistent with the terms of the treaty, let us discuss it, — a clear po- sition it seems to me, to take up, and, as I think, one very easily sustained. SIR CHARLES FITZPATRICK : Do you not think that Lord Salisbury's view is very clearly expressed in the second last paragraph of the let- ter of the 7th November, 1878, p. 271, with respect to subsequent legislation ? Does he not there assert the absolute right to legislate subject to remonstrance ? MR. EWART: He does, Sir. JUDGE GRAY: Which paragraph is that? SIR CHARLES FITZPATRICK : The second last paragraph, on p. 271. MR. EWART: I will read that paragraph for the purpose of in- corporating it in the record: — " Her Majesty's Government prefer the view that the law enacted by the Legislature of the country, whatever it may be, ought to be obeyed by natives and foreigners alike who are sojourning within the territorial limits of its jurisdiction; but that if a law has inadvertently been passed whch is in any degree or respect at variance with rights conferred on a foreign Power by Treaty, the correction of the mis- take so committed, at the earliest period after its existence shall have been ascertained and recognized, is a matter of international obli- gation." Then he refers to Mr. Evarts possible contention that the Sunday law was inconsistent and invites consideration of it. THE PRESIDENT: Would not the view of Lord Salisbury respect- ing subsequent legislation have been very similar to the view which was entertained by both Governments in framing article 2 of the Agreement ? : — " Either party may call the attention of the Tribunal to any legisla- tive or executive act of the other party, specified within three months of the exchange of notes enforcing this agreement, and which is claimed to be inconsistent with the true interpretation of the treaty of 1818;" MR. EWART: Yes, that is precisely the same. THE PRESIDENT: It seems to be almost the same idea. MR. EWART: Precisely the same idea; and if one wants further light as to Lord Salisbury's view it is to be found in the letter which preceded the two to which Senator Turner referred. It is to be seen in the United States Case Appendix, at p. 650. I read the last clause : — " You will perceive that the report in question appears to demon- strate conclusively that the United States fishermen on this occasion had committed three distinct breaches of the law, and that no vio- lence was used by the Newfoundland fishermen except in the case of one vessel whose master refused to comply with the request which was 1420 NORTH ATLANTIC COAST FISHERIES ARBITRATION. made to him that he should desist from fishing on Sunday, in viola- tion of the law of the colony, and of the local custom, and who threatened the Newfoundland fishermen with a revolver, as detailed in paragraphs five and six of Captain Sulivan's report." That Sunday law was subsequent to the date of the treaty. It is dated in 1876, and Lord Salisbury justified the interference with the American fishermen on the ground, amongst others, that they had committed a breach of a law which was passed subsequent to the date of the treaty. Shortly after the close of that correspondence and during the cur- rency of the treaty of 1871, the State of Maine showed very clearly what its view was as to its powers of legislation, notwithstanding the treaty of 1871, by passing a statute which may be found in the Brit- ish Counter-Case Appendix, at p. 196. The State of Maine acted upon Lord Salisbury's views. The statute was passed in 1883 and amended in 1885. Section 17: — " ' The taking of mackerel, herring, shad, porgies or menhaden, and the fishing therefor by the use of purse and drag seines is pro- hibited in all small bays, inlets, harbours or rivers, where any 858 entrance to the same, or any part thereof, from land to land, is not more than three nautical miles in width ' under a penalty ' and so on. SIR CHARLES FITZPATRICK : What is your point as to that ? MR. EWART : That the State of Maine acted upon the view of Lord Salisbury that, notwithstanding the treaty of 1871, which was then in force, they had the right to legislate and did legislate. SIR CHARLES FITZPATRICK: — under which treaty British subjects had, in American waters, the same right that American subjects had in British waters under the treaty of 1818 ? MR. EWART: Yes, Sir, and the State of Maine did exactly what Newfoundland did — went on and legislated notwithstanding the treaty. THE PRESIDENT: The treaty of 1871 lasted until 1885? MR. EWART : Yes, Sir. I now wish to refer to a statute which was passed by the United States in 1887, sometimes referred to as the retaliatory statute. Prior to the passage of this statute the Canadian authorities had been preventing United States fishing-vessels from obtaining supplies and exercising what are improperly (as I submit) called commercial privileges, and, after very strong language as to the action of Canada in that respect used in the Senate of the United States, this statute was passed (British Case Appendix, p. 792). It might be well to remember that previous to the passage of this stat- ute the Evarts- Salisbury correspondence had taken place, and that the question had been distinctly raised as to whether British Legis- ARGUMENT OF JOHN S. EWABT. 1421 latures had a right to pass reasonable regulations in reference to the fisheries. The material part of the statute is as follows: " That whenever the President of the United States shall be satis- fied that American fishing vessels or American fishermen, visiting or being in the waters or at any ports or places of the British domin- ions of North America, are or then lately have been denied or abridged in the enjoyment of any rights secured to them by treaty or law, or are or then lately have [been] unjustly vexed or harassed in the enjoyment of such rights, or subjected to unreasonable restric- tions, regulations, or requirements in respect of such rights; or otherwise unjustly vexed or harassed in said waters, ports or 1 V * * places ; Down to there the statute is dealing with fishing; then it goes on to speak of commercial privileges: — "or whenever the President of the United States shall be satisfied that any such fishing vessels or fishermen, having a permit under the laws of the United States to touch and trade at any port or ports, place or places, in the. British dominions of North America, are or then lately have been denied the privilege of entering such port or ports, place or places in the same manner and under the same regu- lations as may exist therein applicable to trading vessels of the most favoured nation, or shall be unjustly vexed or harassed in respect thereof, or otherwise be unjustly vexed or harassed therein, or shall be prevented from purchasing such supplies as may there be lawfully sold to trading vessels of the most favoured nation ; or whenever the President of the United States shall be satisfied that any other vessels of the United States, their masters or crews, so arriving at or being in such British waters or ports or places of the British dominions of North America, are or then lately have been denied any of the privi- leges therein accorded to the vessels, their masters or crews, of the most favoured nation, or unjustly vexed or harassed in respect of the same, or unjustly vexed or harassed therein by the authorities thereof," then it shall be lawful for the President to declare non-intercourse. Now, Sirs, it seems to me that the United States Congress had adopted the British view as to regulations; otherwise we should have had it that, if the British Legislatures adopted regulations of any kind, the President might retaliate. But the clause is that if the American fishermen are subjected to " unreasonable restrictions, regulations, or requirements" in respect of their fishing rights — SIR CHARLES FITZPATRICK: Or harrassed in the enjoyment; would that not cover the case of improper regulations ? MR. EWART: That would cover the case also of improper regula- tions. SIR CHARLES FITZPATRICK: That term is broad enough to cover improper regulations? 859 MR. EWART: Clearly the United States had no doubt that reasonable regulations could be enforced as against United States fishermen. 1422 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I should like to call attention to the nature of the claim which the United States is now making — namely, a right to veto reasonable regulations. In their contention they say that American fishermen are not subject to regulations (a) "unless they are appropriate and necessary . . . ."; (b) "unless they are reasonable . . . ."; and (c) " unless," as I read it, " regulations of that character are agreed to by the United States." It has been suggested by Senator Turner that by the British contention the purpose is indicated of giving advan- tages to local fishermen of some kind — because the word " unfairly " is used in the contention of the British Government as set out in the question; and Senator Turner says that the use of that word indi- cates an intention to give advantages of some kind — advantages which the British Government would consider to be fair. I should like to say that the reason for the insertion of that word is that geography and the treaty have given some advantages to the British fishermen, and that the use of the word " unfairly " merely means that such advantages as the British fishermen are already in the enjoyment of should not be interfered with. Of course, there is no intention of interfering with the United States by taking from them any advan- tages which the treaty has given them. It is only for the purpose of protecting the British Government in any contention that might afterwards arise that there could be no difference between the situa- tion of the two parties ; whereas the treaty and geography have made a difference between the two. To give merely one example, I might mention the disposal of gurry. The United States are at a disad- vantage, because they cannot deposit their gurry on the shore and make use of it there as the Newfoundlander's may. That is an ad- vantage which the treaty has given to the Newfoundland people, and the word " unfairly " was inserted with reference to such advantages. It is frequently contended in the United States Case and Argu- ment, and it has also been contended by Senator Turner, that the United States would be extremely reasonable in case an application were made to them for the purpose of concurring in regulations which Canada or Newfoundland might wish to adopt. Senator Turner rather marred the effect of his statement, I think, by the assertion, backed up by some authority, that no regulations at all were neces- sary. Although we do not, of course, doubt in the slightest degree the absolute good faith of the United States, yet, Sirs, we are uncer- tain as to the extent of their knowledge as to the necessity of regu- lations, and we are not at all sure of their absolute impartiality. It seems to us, Sirs, that the United States has already indicated in its Argument, at p. 66, that there would be very considerable diffi- culty in obtaining its assent even as to reasonable regulations, because, in the middle of the page, the Argument says this : — ARGUMENT OF JOHN S. EWART. 1423 " While regulations of this character may have a tendency to pre- serve order among the fishermen, yet, since 'they affect the exercise of the fishing right and might be so framed or "so administered as to interfere with its fair enjoyment, the United States can not admit the right of Great Britain to make such regulations applicable to American fishermen without the consent of the United States." I am afraid it is beyond our power to enact regulations which might not be unfairly administered, and if that is a sufficient objec- tion to our regulations, it is an objection to every regulation which we could suggest. There is no security which we could give to the Americans beyond that which they have in every treaty for the fail- administration of the duties which the treaty imposes upon one side or the other. It appears to me, Sirs, that in 1886 and 1887 (if not at the present time) the United States would certainly have declined to assent to any of our regulations, unless we did what they thought was reason- able and accorded to them commercial privileges. They would quite agree that they ought to assent to reasonable regulations ; but, on the other hand, they would link industrial advantages (rather than com- mercial privileges) with them, and would decline to assent to our regulations unless we accorded such advantages to them. In the same way I feel quite sure that they would bring in the question of the employment of Newfoundlanders. They would say that we were very unreasonable in that respect, and that until we showed a more reasonable and conciliatory spirit, they would not con- cur in those regulations. SIR CHARLES FITZPATRICK: What do you mean when you say that you cannot guarantee the fair administration of those regula- tions ? 860 MR. EWART: We can give no legal security for it. Treaties in the old days were sometimes accompanied by the interchange of hostages, and if there was a breach of the treaty, why, the poor hostages had to suffer. Nowadays there is nothing of that sort done. You must depend upon the honour, the integrity, and the good faith of one another; and there is no other sanction. When Sir Robert Finlay was referring to the power of the British Government to exercise a check by disallowance, he was not referring in any way to a legal security which the United States had, but to a moral security : and he was indicating that the United States had, as sanctions, not merely the honour of Newfoundland and of Canada, but the honour of the British Government which could exercise an authoritative, control- ling power over the colonies in case they thought it necessary. Senator Turner took the other view, and said: "How is that a security? " Well, it is not a legal security. There is no such thing as legal security as between nations; but unless you are going to say that 92909°— S. Doc. 870, 61-3, vol 10 34 1424 NORTH ATLANTIC COAST FISHERIES ARBITRATION. all treaties interrupt entirely the legislative power in the countries affected by them, you must allow them to go on and legislate subject to diplomatic representations. By the present agreement, of course, they have ample security in the power of reference. Further, Sirs, I think we would have some difficulty in pressing any request upon the United States for assent to our regulations. We have no right to ask that assent. We have no right, at all events, to expect it to be given. They are under no legal obligation to give it; there is nothing in the treaty which compels them to give it. The case is very similar to that which sometimes happens, under British and United States law, in reference to the law of landlord and tenant. Sometimes there is a clause preventing the tenant from assigning or sub-letting without the assent of the landlord. The tenant asks the assent of the landlord, and the landlord merely says: " I won't give it." He is not bound to give any reason — unless the agreement is that assent is not to be unreasonably withheld — and so the United States here would not be bound to give any reason. We might ask : " What is the reason ? " and they would say : " That is none of your business ; we merely do not assent." What security have we against an unreasonable exercise of the veto power? They have the assurance, on their part, that we are bound by the treaty to act reasonably and properly. We have no such assurance from them; because, by the treaty, they are under no obligation to assent to any regulation that we choose to make, however reasonable or necessary. Further, the United States have really a very small interest now in these fisheries compared with ours. It has been said that they are as much interested as we are in the preservation of the fisheries. That is not the fact. What has appeared before the Tribunal will give ample assurance of that fact. The Newfoundlanders are abso- lutely dependent upon their fisheries; the United States go very little there. They go there, as a matter of commerce, to buy herring, and they go there to get bait. And so far as bait is concerned, it is said in some of the proceedings before the Tribunal that it is not neces- sary— that they have plenty of menhaden bait on their own shores, and that they can get plenty of bait of other kinds on the banks near the cod fisheries themselves. For all these reasons, I submit that it would not be at all reasonable to suppose that the negotiators contemplated placing Great Britain. in reference to regulations, in the position suggested by the United States. The history of the attempts to agree upon joint regulations is rather disheartening. Several attempts have been made, and all have failed. There have been two attempts with reference to the non -treaty shore ; one attempt with reference to the treaty shore ; and there was ARGUMENT OF JOHN S. EWART. 1425 a suggestion of negotiations as to the treaty shore in the correspond- ence which immediately preceded this reference. The first attempt at agreement as to regulations in respect of the non-treaty shore was in 1866. It is to be found in the Seward- Adams- Clarendon correspondence; and the proposal of the United States is to be found in the British Case Appendix, 415. Lord Clarendon's reply, accepting the suggestion, with reservation of rights, is to be found at United States Case Appendix, 575. There was no result. Possibly some agreement might have been reached; but the neces- sity for it was superseded by the system of licenses that was intro- duced shortly afterwards. The attempt with reference to the treaty shore, initiated by Mr. Evarts in 1879, is more instructive. Mr. Evarts, in his letter to Lord Salisbury (British Case Appendix, 277), made a suggestion of agreement upon regulations. Lord Granville, in October 1880 (Brit- ish Case Appendix, 290), concurred in the idea, reserving the question of sovereignty. No reply having been made in the ensuing six months, Lord Granville. in April 1881, wrote to Sir Edward Thorn- ton, the British Ambassador at Washington, asking him to further the matter if possible (United States Case Appendix, 733). A 861 year afterwards the British Government took another step, and submitted to the United States Government a memorandum of the regulations which were then in force, asking consideration of them by the United States (United States Case Appendix, p. 74'J). A few days afterwards on the 9th May, the United States made reply (United States Case Appendix, p. 743), objecting to regulations of all kinds, saying that the United States must be wholly free from regulations. The reply did not enter into the consideration of the reasonableness of the regulations at all — which was, of course, Mr. Evarte's idea in the beginning, and was the idea of the British Government in submitting the memorandum. On the 15th July of the same year, 1882, Lord Granville expressed to Sir Lionel West his great regret at the attitude assumed by the United States (United States Case Appendix, p. 746, and following page). The United States Case, at p. 184, is my authority for saying that no reply at all was obtained to that letter. That was in July, 1882. The matter then rested until October, 1883, when Sir Lionel West wrote again to the United States Secretary of State, Mr. Freling- huysen, asking the views of the United States (United States Case , Appendix, p, 751). We are now three years from the acceptance by Lord Granville of Mr. Evarts' proposal to negotiate. The United States Case says that no reply was sent to this last letter (United States Case, p. 185). The statement, however, is erroneous; a reply was sent, and it is printed in the United States Case Appendix, at p. 1426 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 753 — from Mr. Frelinghuysen to Sir Lionel West. It is dated the llth July, 1884, and it is a reply to Sir Lionel West's letter of the 9th October in the previous year, in which Sir Lionel West enquired as to the views of the United States. Mr. Frelinghuysen says : — " Eeferring to your note of the 9th of October last, concerning the revision of the fishery treaty, and adverting to the language of the President's last annual message to Congress relative to appointing a Commission to consider the subject, I now have the honor to inform you that Congress has adjourned without reaching any action on the President's recommendation. In such an important international question, in which Congress has intervened at every stage hitherto, it is deemed best to defer definite action on the British proposal until December." Now, Sirs, that is the answer which we got after four years — that Congress had adjourned and that it would be better to leave the mat- ter until later on. That was the last of that correspondence — we did not get very far. The next attempt at settling joint regulations related to the non- treaty shore. Mr. Bayard proposed the matter in 1886 (British Case Appendix, p. 418). Lord Salisbury suggested verbal changes, but accepted the idea (British Case Appendix, pp. 418 and 420). But nothing was done. Not much time elapsed between that corre- spondence and the unconfirmed treaty and modus vivendi of 1888. If the modus vivendi had not been arranged, possibly something might have come of this proposal. The last suggestion was made by Sir Edward Grey, in the corre- spondence immediately preceding this reference. His letter propos- ing consideration of the regulations is set out in British Case Appen- dix, p. 508, and the reply was that that matter with all others should be referred to The Hague (British Case Appendix, p. 509). And so, Sirs, we are here for the purpose of getting the opinion of the mem- bers of the Tribunal, and submitting to them our respective conten- tions. It seems to me. Sirs, that the British method of dealing with the subject of regulations is very much better (even if we had to decide upon the merits of the respective contentions) than that proposed by the United States. One only has to imagine what the procedure would be in case the United States contention were put into practical operation. We have seen something of it in the correspondence be- tween 1880 and 1884. Newfoundland would ask assent to certain regulations; those would go before Congress, principally before the Senate; and the Senate, not being sufficiently informed, would ap- point a commission. Newfoundland would wish to be heard with reference to its suggestions, and there might be a joint commission and there might be disagreement, and a long time at all events would elapse before anything could be done. It is quite possible — it is I ARGUMENT OF JOHN S. EWAET. 1427 am afraid very probable — that because of their divergent interests, there would be disagreement. Whereas, if the matter is left in the hands of Newfoundland, we might go on for another hundred years, Sirs, with as little objection as the record will show has been made to any Newfoundland or Canadian legislation during the last hundred years. I pass entirely the question of servitudes, not merely because the Attorney-General is going to deal with that subject fully, but 862 also because of my submission that it has really nothing to do with the subject before the Tribunal; and I give three reasons for that. In the first place, from the point of view of municipal law. The right which is claimed here is a right to take fish, not merely for the purposes of the territory of the United States, but a right to take fish for commercial purposes, and it is therefore not such a right as could have been attached under municipal law to a territory at all. The members of the Tribunal are sufficiently familiar with the civil law to see the application of what I have suggested. The second point regards the matter from the point of view of the jurists who have substituted the sovereign for the prcedium domi- ?uins. I say that this treaty will not come within the suggested law as to servitudes, because this is a liberty reserved not for the citizens of a sovereign, but for the inhabitants of a certain locality ; and that there cannot be a servitude in favour of a sovereign for the benefit of any persons but his own subjects or citizens. If he is to follow with his sovereignty into foreign waters the persons who are the beneficiaries of the treaty, they must be his own subjects. He cannot follow with his sovereignty into foreign waters or foreign territory persons who. although beneficiaries of the treaty, are not his subjects or citizens. My third point is that the liberty is not of a permanent character. Senator Turner declared that permanency was one of the requisites of a servitude. I am not quite so sure of that. I am not quite sure that he was using the word in the sense in which the civil lawyers used it. But without contravening his statement (and it is not my purpose to do that at the present time) , I say that if permanency is a necessary requisite of a servitude, then this treaty will not come within the description; because, as to drying and curing fish, it was terminable with the settlement of the localities, and it is quite possi- ble that all of the localities may in time be settled, and that therefore that part of the treaty may come to an end. I ask leave now to occupy a little time with what has been spoken of as the partition and continuation theory — the theory which has obtained in the United States from 1814 down to the date of the delivery of the Case of the United States in the present proceedings. 1428 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I say down to the delivery of the Case, because it is completely abandoned in the United States Argument. It was very conspicuous in the Case and all its features were elaborated there with care. Not only was the theory itself advanced at pp. 9, 10 and 26; but the two other points that are necessary to its application to the present con- troversy were also elaborated. It was necessary not only to show the character of the treaty of 1783 — that it was a continuation of liberties which had existed previous to the treaty — it was also neces- sary, in order to its application to the present controversy, that it should be proven that those liberties survived the treaty of 1812; and it was further necessary to identify the liberties of the treaty of 1818 with the liberties of 1783. With the help of these three points the argument was made that the liberties which existed prior to 1783 continued, notwithstanding the war, after the treaty of 1818. These two subsequent points, therefore, are fully dealt with in the United States Case : the question of the effect of the war upon the treaty of 1783 most fully at pp. 14 to 22, at p. 26, and at p. 27; and that the liberties of 1818 were identical with those of 1783, was dealt with at pp. 60 to 65 of the United States Case. That is now all useless; it has been abandoned, and the United States Argument DR. DRAGO: Will you allow me? MR. EWART: Yes, Sir. DR. DRAGO : If you please, will you read the last sentence on p. 26 of the United States Case, which refers to the theory of partition? MR. EWART: "The Tribunal is not called"— Is that it? DR. DRAGO : Yes. MR. EWART: " The Tribunal is not called upon to decide the issue presented in that controversy or to pass upon the merits of the arguments, the questions involved having been laid at rest by the subsequent treaty of 1818; nevertheless the respective positions of the two Govern- ments in the controversy have an important bearing upon the true interpretation of the treaty of 1818." DR. DRAGO: Well, I should think that has been the position of the United States from the beginning, on this theory of parti- tion— 863 MR. EWART: Yes, Sir. They say that the Tribunal is not called upon to pass upon the merits of the controversy between Mr. Adams and Lord Bathurst ; and — " nevertheless the respective positions of the two governments in the controversy have an important bearing upon the true intepretation of the treaty of 1818." DR. DRAGO: And that discussion referred to the theory of parti- tion? ARGUMENT OF JOHN S. EWART. 1429 MR. EWART : To some extent, I suppose so, Sir. And that is helped, also, by what appears at p. 13 of the Case, where something to the same effect appears. THE PRESIDENT : Yes ; in the last paragraph on that page : " The remaining portion or second clause of this article," &c. MR. EWART : Yes, Sir : ;' The remaining portion or second clause of this article applies only to the inshore or coast fisheries and does not require particular atten- tion at this time because it was superseded by the provisions of the treaty of 1818 and its relation to that treaty is considered later." DR. DRAGO: Yes. MR. EWART: I am fully aware of those two passages, and I have been unable to see why the partition theory was stated so fully, upon pp. 9 and 10, and why those two subsequent points, as I have spoken of them, were so fully elaborated, unless something was going to depend upon them. Although, as the learned arbitrator has just pointed out, the question as to whether the war terminated the treaty of 1783 was said not to be a question to be submitted to the Tribunal, yet if one turns to p. 14, one will find that from that on to p. 22 the question is most fully argued, under the heading : " The Controversy as to the effect of the War of 1812 upon the Fisheries Article of the Treaty of 1783." I see no purpose whatever in that long discussion, unless to show that the treaty of 1783 continued after the war. And. in the same way, I see no purpose whatever in the discussion engaged in at p. 60 and p. 65, in which an attempt is made to identify the liberties of 1818 with those of 1783, except for the purpose of carry- ing on the previous idea. And the point I make is that, at all events, there is nothing about the present attitude of the United States in the Case. Unless they were putting their case upon the partition and continuation idea, I do not see any argument in the Case which they have presented to the Tribunal. JUDGE GRAY : Is it not made perfectly clear, Mr. Ewart, on pp. 26 and 27 of the Case : — " the questions involved having been laid at rest by the subsequent treaty of 1818 ; nevertheless the respective positions of the two govern- ments in the controversy have an important bearing upon the true interpretation of the treaty of 1818."? MR. EWART: Yes, Sir. JUDGE GRAY : That is, they may throw some light, as being part of the attending circumstances, conditions, which surrounded and pre- ceded the making of the treaty, and which are always to be considered in interpreting treaties as well as contracts ? MR. EAVART: Yes, Sir. The learned arbitrator will observe that what is said to have an important bearing upon the true interpretation of the treaty is not the effect of war upon the treaty, or the identity 1430 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of the liberties under the two treaties, but the respective positions of the two Governments as shown in the correspondence between Adams and Bathurst. JUDGE GRAY: The respective positions of the two Governments would illustrate, or throw light upon the attitudes in which the negotiators approached the treaty of 1818. That would be all. MR. EWART: Possibly, Sir. But that, I submit, affords no expla- nation of the line of argument which the United States Case pursues, and at all events, there is no suggestion of servitudes, either there or in the United States Counter-Case — nothing until two weeks before the Tribunal met. Now, Sirs, the British Case, at pp. 48 and 49, made reply to that partition theory, and the United States reply to what is there 864 said is important, and will be drawn to the attention of the Tribunal in a few moments. I read from the British Case, p. 48 :— " It has from time to time been earnestly contended by the United States that the war of 1812 did not terminate the liberties to take and dry and cure fish which were granted by the treaty of 1783 ; that the treaty of 1783 merely recognised and continued the rights which the fishermen of the United States possessed as subjects of the British Crown before the Declaration of Independence; and that the treaty of 1818, in its turn, recognised and continued existing rights. This view has always been repudiated by Great Britain, and, for reasons which will be submitted to the Tribunal if reliance is placed on this contention in the United States Case, cannot be sustained." Then the Case goes on to argue that if the citizens of the United States are now enjoying the rights which they formerly enjoyed, and if their present rights are merely a continuation of that which they had before, they must necessarily be subject to regulations. The reply of the United States Argument is to be found at pp. 59 and 60 ; and I think what is said there is of importance. I read from the foot of p. 59 : — "An alternative argument is presented in the British Case, based on an assumed contention attributed to the United States, that the treaty of 1783 merely recognized and continued the rights which the fishermen of the United States possessed as subjects of the British Crown before the Declaration of Independence, and that the treaty of 1818 in turn simply recognized and continued preexisting rights. "As a statement of the contention of the United States this is not strictly accurate. The position taken by the United States was that the American Colonies, by reason of their exertions to acquire, main- tain, and develop the North Atlantic fisheries, and of the relation of the fisheries to them geographically and economically, were as much entitled to those fisheries upon their separation from Great Britain, as the people inhabiting the territories which remained under the British Crown, and that the treaty of 1783, recognizing the division ARGUMENT OF JOHN S. EWAKT. 1431 of the British Empire as the result of the success of the American Revolution, apportioned to each of the divided parts, to be thereafter held by each of them as national possessions, an equal right in those fisheries. " This was very far from a contention that citizens of the United States were merely enjoying the fishery rights which they had for- merly enjoyed as subjects of the British Crown, and *that their present rights were only a continuation of their former rights. While the right is in essence the same right and grows out of the former right, it was formerly enjoyed by the Americans as British subjects, but it is now enjoyed by them as American citizens. They enjoyed it before by permission of the Crown which owned all the fisheries; they enjoy it now as a national right." I will seek, Sirs, to trouble the Tribunal with a good many refer- ences for the purpose of establishing that what we are alleged to have erroneously attributed to the United States has been the view of the American Government, or the view, at all events, of the American men who were speaking — if not officially on the part of the Govern- ment, yet while they were framing the ideas by which the Government was directed, that those men held the view that we attribute to the United States, namely, that the treaty of 1783 merely recognised and continued the rights which the fishermen of the United States possessed as subjects of the British Crown. And I shall argue, when those extracts have been finished, that the effect of that contention necessarily is, as set up in the extract from the British Case which I have just read, that a continuation of the rights formerly held by British subjects, after and by the treaty of 1783, was necessarily a continuation in the same position as prior to the treaty of 1783. From the United States Counter-Case Appendix, p. 618, I quote from Mr. John Adams, who was one of the negotiators of the treaty of 1783. I read from a point near the foot of the page, at the figure 2 : — " We have a right — (I know not very well how to express it) — but we have the rights of British subjects. Not that we are now British subjects; not that we were British subjects at the treaty of 1783, but as having been British subjects, and entitled to all the rights, lib- erties, privileges, and immunities of British subjects, which we had possessed before the revolution, which we never had surrendered, for- feited, or relinquished, and which we never would relinquish any farther than in that treaty is expressed. Our right was clear and indubitable to fish in all places in the sea where British subjects had fished or ever had a right to fish." I refer next to the United States Case Appendix, p. 318, and from that page I quote again from Mr. Adams, under the No. 6: — " We considered that treaty as a division of the empire. Our inde- pendence, our rights to territory and to the fisheries, as practised be- fore the Revolution, were no more a grant from Britain to us, than 1432 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the treaty was a grant from us of Canada, Nova Scotia, Eng- 865 land, Scotland, and Ireland to the Britons. The treaty was nothing more than mutual acknowledgment of antecedent rights." I next read from the British Counter-Case Appendix, p. 150, the report of the United States Commissioners of 1814, the second sen- tence from the top of the page : — " In consenting, by that treaty, that a part of the North American continent should remain subject to the British jurisdiction, the people of the United States had reserved to themselves the liberty, which they had ever before enjoyed, of fishing upon that part of its coasts, and of drying and curing fish upon the snores, and this reservation had been agreed to by the other contracting party." That is peculiarly significant, because it was at the negotiations at Ghent that this partition and continuation of liberty theory was originated. Then, from Mr. John Quincy Adams, in the British Counter-Case Appendix, p. 147, about the middle of the page, commencing a para- graph, I read: — " I said "— That was during a conference between Mr. John Quincy Adams and his colleagues at Ghent — " there was no grant of new privileges in the treaty. The liberties, as well as the rights, were merely a continuation of what had always been enjoyed. It was necessary for the fishermen to go to the part of the coast frequented by the fish, and when, by the independence of the United States, it became a foreign jurisdiction, we had a right to reserve the liberty of continuing to fish there, and the circumstance of the jurisdiction alone occasioned the change of the expression." In British Case Appendix, p. 65, may be found another statement by Mr. John Quincy Adams, a little below the middle of the page. This is in Mr. Adams's letter to Mr. Monroe : — " It was obvious that the treaty of peace of 1783 was not one of those ordinary treaties which, by the usages of nations, were held to be annulled by a subsequent war between the same parties : it was not simply a treaty of peace ; it was a treaty of partition between two parts of one nation, agreeing thenceforth to be separated into two distinct sovereignties. The conditions upon which this was done constituted, essentially, the independence of the United States; and the preservation of all the fishing rights, which they had constantly enjoyed over the whole coast of North America, was among the most important of them." In the same volume, at p. 67, in the middle of the page, I read : — " It was, doubtless, upon considerations such as these that, in the treaty of peace between His Majesty and the United States of 1783, an express stipulation was inserted, recognising the rights and liber- ties which had always been enjoyed by the people of the United States in these fisheries, and declaring that they should continue to ARGUMENT OF JOHN S. EWABT. 1433 enjoy the right of fishing on the Grand Bank, and other places of common jurisdiction, and have the liberty of fishing and of drying and curing their fish within the exclusive^ British jurisdiction on the North American coasts, to which they had been accustomed while themselves formed a part of the British nation." At p. 74 of the same volume I wish to read another extract. This is in the later letter from Mr. Adams to Lord Castlereagh, and will be found about two-thirds down the page : — " The intention was, that the people of the United States should continue to enjoy all the benefits of the fisheries which they had en- joyed theretofore, and, with the exception of drying and curing fish on the Island of Newfoundland, all that British subjects should enjoy thereafter. Among them, was the liberty of drying and curing fish on the shores, then uninhabited, adjoining certain bays, harbours, and creeks. But, when those shores should become settled, and thereby become private and individual property, it was obvious that the lib- erty of drying and curing fish upon them must be conciliated with the proprietary rights of the owners of the soil. The same restric- tion would apply to British fishermen; and it was precisely because no grant of a new right was intended, but merely the continuance of what had been previously enjoyed, that the restriction must have been assented to on the part of the United States." In the same volume, at p. 85, I wish to read from a letter of in- struction from Mr. Adams to Messrs. Gallatin and Rush, the negoti- ators of the treaty of 1818. I read from the second paragraph from the top of page 85 : — • " The argument which has been so long and so ably maintained by Mr. Reeves, that the rights of antenati Americans, as British subjects, even within the kingdom of Great Britain, have never been divested from them, because there has been no Act of Parliament to 866 declare it, applies in its fullest force to this case; and, con- nected with the article in the treaty of 1783, by which this particular right was recognised, confirmed, and placed out of the reach of an Act of Parliament, corroborates the argument in our favour." I next refer to the British Counter-Case Appendix, p. 156. At this page is part of the controversy between Mr. John Quincy Adams and Mr. Russell in 1822. I commence reading at the fifth line from the top: — " The title by which the United States held those fishing rights and liberties were the same. It was the possessory use of the right, or, in Mr. Russell's more learned phrase, of the ' jus merce facultatisj at any time theretofore as British subjects, and the acknowledgment by Great Britain of its continuance in the people of the United States after the treaty of separation." At p. 160 of the same volume, about one-third from the top, I read : — " The difference between our principle and that of the British was, that they, considering the rights acknowledged as belonging to us by the treaty, as mere grants, held them as annulled by war alone; 1434 NORTH ATLANTIC COAST FISHERIES ARBITRATION. while we, viewing them as rights existing before the treaty, and only acknowledged by it, could not admit them to be forfeited without our own assent." SIR CHARLES FITZPATRICK : Do you not think, Mr. Ewart, that the view of the United States, the later view of the United States with respect to this theory, is more accurately expressed by Mr. Root, in his letter to Sir Edward Grey of the 30th June, 1906? MR. EWART: Yes. SIR CHARLES FITZPATRICK : In that paragraph at the foot of p. 499 ? MR. EWART : Yes ; I will read that. SIR CHARLES FITZPATRICK: Does not that obviate the necessity of going oack MR. EWART: I should like to complete this series of citations, if I may. SIR CHARLES FITZPATRICK : I do not mean to interrupt you ; but it seems to be found very clearly at that point. MR. EWART : Yes ; it is very clear there, and I will give that a little later on. At p. 166, during the same controversy to which I last referred, at the top of the page, I read : — " By the third article of the preliminaries of November, 1782, and also by the corresponding article of the definitive treaty of 1783, the whole of the fishing rights and liberties were secured, and recognized as rights and liberties, pre-existing, and not as temporary grants And, further down : — "It was a continuance of possessions enjoyed before; and at the same moment, and by the same act, under which the United States acknowledged those coasts and shores as being under a foreign juris- diction, Great Britain recognized the liberty of the people of the United States to use them for purposes connected with the fisheries." At p. 168 :— " We were instructed not to suffer our right to the fisheries to be brought into discussion; we had no authority to admit any discrim- ination between the first and the last parts of the third article of the treaty of 1783. No power to offer or agree to an equivalent either for the rights or the liberties. I consider both as standing on the same footing: both as the continuance of franchises always enjoyed, and the difference in the expressions only as arising from the oper- ation of our change from the condition of British subjects to that of a sovereign people, upon an object in one part of general, and in the other of special, jurisdiction." In the United States Case Appendix, at p. 526, is the view which Mr. Webster took of the situation : — " Nothing can be more clear or definite than this Article." That is, the article quoted from the treaty of 1783 : — " It admits a common right on the part of the Citizens of the United States with the subjects of Great Britain. ARGUMENT OF JOHN S. EWART. 1435 " What those citizens and subjects had been accustomed to do, they are to have a right to do thereafter. It is not a right granted, but a right acknowledged and continued." 867 At p. 528, Mr. Webster also says :— " And it was from these considerations that, in the Treaty of Peace of 1783, an express stipulation was inserted, recognizing the rights and liberties which had always been enjoyed by the people of the United States in these fisheries, and declaring that they should continue to enjoy the right of fishing on the Grand Bank, and other places of common jurisdiction on the North American coasts, to which they had been accustomed while they themselves formed a part of the British nation. It was a stipulation contained in a Treaty by which the king of Great Britain acknowledged the United States as free, sovereign and independent states; a treaty which, by the com- mon understanding & usage of civilized nations could not be annulled by a subsequent war between the same parties. The rights and lib- erties in the fisheries were, in no respect granted by Great Britain to the United States, but they were acknowledged as rights and liberties enjoyed before the separation of the two countries, and which it was agreed should continue to be enjoyed under the new relations, which were to subsist between them." The Committee on Foreign Relations of the United States Senate, in 1888, used somewhat similar language, as will be seen by reference to the British Case Appendix, pp. 435 and 436. "As to the open-sea fishing, it was merely a recognition of a right common to all nations, and as to the fishing within the municipal dominion of His Majesty on his coasts, bays, and creeks, it was an agreement that these rights theretofore existing in all British subjects should of right belong to those British subjects who, by force of the revolution, had become citizens of an independent nation; and thus it was, in the partition of the territory, a reservation in favour of the people of the United States of a right which they, as British subjects, had theretofore lawfully enjoyed. " From 1783 until the war of 1812 between the two countries citi- zens of the United States continued to enjoy the ancient rights be- longing to them as subjects of Great Britain before the revolution and reserved to them as citizens of the United States after it, with the full freedom secured by the article last referred to." Language not at all dissimilar is used in the United States Case — before the conception of the servitude idea. I refer to the United States Case, p. 9, commencing at the bottom of p. 8: — " The United States and Great Britain thus met as independent nations negotiating for the purpose of concluding a treaty of peace dividing between them the British Empire in North America; and standing on this basis the Commissioners on the part of the United States asserted and insisted throughput the negotiations that the British interests in the North Atlantic Coast fisheries were subject to such division and that the pre-existing rights of the Colonies therein must be recognized and continued by the treaty." 1436 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Then they quote from Mr. John Adams in support of that con- tention, at p. 14 of the United States Case: — " The United States refused to assent to this proposition " — That is, the proposition made at Ghent — " and contended that there was no justification for discriminating against this particular portion of the treaty ; and that, like any other provision of the treaty which was intended to secure to the United States the continued enjoyment of pre-existing rights upon the par- tition of the British North American Empire at the close of the Revolution, this particular provision survived the War of 1812, and consequently that no declaration or provision in the new treaty was required to continue it in force." At p. 26, also, near the top of the page : — "As will appear from the correspondence by which this discussion was carried on, Mr. Adams contended throughout the discussion that such provisions had survived owing to the character of the treaty, and the language used, and the nature of the liberties, and the rela- tion of the American Colonies to them before the Revolution, and that as these liberties had never been renounced by the United States, either in the treaty of Ghent or otherwise, they were still in force." The United States Counter-Case, at p. 86, continued along the same line : — " It appears, therefore, that, notwithstanding the existence of the French claim in 1783, the use of the waters of Newfoundland for fishing, which American fishermen had enjoyed equally with British fishermen prior to the revolution separating the American Colonies from Oreat Britain, was continued under the treaty of peace of 1783 between the United States and Great Britain, by the stipula- tion, . . ." &c. 868 I am not able to make any such quotations from the United States Argument; but I submit that the quotations which I have made amply support the statement of our Case. I now seek to make use of the establishment of that United States traditional view in this way : That if it be true that the rights of the colonists were continued by the treaty of 1783, they are necessarily subject to the regulations which existed at that time, and which were afterwards made, because that was the position which was being con- tinued. So far as regulations prior to the existence of the treaty are con- cerned, I think I may say that at the time of the correspondence which preceded this reference, Mr. Root's opinion was that the American view — this partition and continuation view — involved the idea that the United States were subject to regulations passed prior to the treaty. In order quite to understand the full significance of what Mr. Root said, one must see what it was he was replying to ; and that will be found upon p. 495 of the British Case Appendix, where Sir Edward ARGUMENT OF JOHN S. EWART. 1437 Grey's memorandum is set out, commencing one-third down the page :— " The American fishery, under Article I of the Convention of 1818, is one carried on within the British jurisdiction and ' in common with ' British subjects. The two Governments hold different views as to the nature of this Article. The British Government consider that the war of 1812 abrogated that part of Article III of the Treaty of Peace of 1783 which continued to inhabitants of the United States ' the liberty ' (in the words used by Mr. Adams to Earl Bathurst in his note of the 25th September, 1815) ' of fishing and drying, and curing their fish within the exclusive jurisdiction on the North American coasts to which they had been accustomed while themselves forming a part of the British nation,' and that consequently Article I of the Convention of 1818 was a new grant to inhabitants of the United States of fishing privileges within the British jurisdiction. The United States' Government, on the other hand, contend that the war of 1812 had not the effect attributed to it by the British Govern- ment, and that Article I of the Convention of 1818 was not a new grant, but merely a recognition (though limited in extent) of privi- leges enjoyed by inhabitants of the United States prior, not only to the war. but to the Treaty of 1783. Whichever of these views be adopted, it is certain that inhabitants of the United States would not now be entitled to fish in British North American waters but for the fact that they were entitled to do so when they were British subjects. American fishermen cannot therefore rightly claim to exercise their right of fishery under the Convention of 1818 on a footing of greater freedom than if they had never ceased to be British subjects." To that Mr. Root makes the reply, which will be found upon p. 499, the second paragraph from the bottom : — " The proposition that ' the inhabitants of the United States would not now be entitled to fish in British North American waters but for the fact that they were entitled to do so when they were British sub- jects,' may be accepted as a correct statement of one of the series of facts which led to the making of the Treaty of 1818. Were it not for that fact there would have been no fisheries Article in the Treaty of 1783, no controversy between Great Britain and the United States as to whether that Article was terminated by the war of 1812, and no settlement of that controversy by the Treaty of 1818. The Memo- randum, however, expressly excludes the supposition that the British Government now intends to concede that the present rights of Ameri- can fishermen upon the Treaty coast are a continuance of the right possessed by the inhabitants of the American Colonies as British sub- jects, and declares that this present American right is a new grant by the Treaty of 1818. How then can it be maintained that the limita- tions upon the former right continued although the right did not, and are to be regarded as imposed upon the new grant, although not expressed in the instrument making the grant ? On the contrary, the failure to express in the terms of the new Treaty the former limita- tions, if any there had been, must be deemed to evidence an intent not to attach them to the newly created right. "Nor would the acceptance by Great Britain of the American view that the Treaty of 1783 was in the nature of a partition of 1438 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Empire^ that the fishing rights formerly enjoyed by the people of the Colonies and described in the instrument of partition continued notwithstanding the war of 1812, and were in part declared and in part abandoned by the Treaty of 1818, lead to any different conclu- sion. It may be that under this view the rights thus allotted to the Colonies in 1783 were subject to such Regulations as Great Britain had already imposed upon their exercise before the partition, but the partition itself and the recognition of the independence of the Col- onies in the Treaty of partition was a plain abandonment by Great Britain of the authority to further regulate the rights of the citizens of the new and independent nation." That Mr. Root's opinion was such as one would gather from the extract which I have now read may be seen at p. 502 of the British Case Appendix in a passage in a letter from Congressman 869 Gardner, which was published in the " Boston Herald." This Mr. Gardner is no doubt the same man as is referred to in Mr. Root's first letter to the British representative at Washington, which occurs on p. 491 of the British Case Appendix. Mr. Root there com- menced his letter by saying : — " Mr. Gardner, the representative in Congress of the Gloucester district, has placed in my hands a number of despatches received by him from masters of American vessels now on the Newfoundland coast. These despatches are answers to inquiries sent by him at my request for the purpose of ascertaining definitely, if possible, what is the precise difficulty there." This Congressman Gardner evidently was in close touch with the United States Secretary of State, and in his letter (British Case Appendix, p. 491) he indicates the view of the State Department. The tribunal will observe that the second paragraph of the letter purports to reflect the view held by the department with reference to purse seining: — " The State Department holds that the local regulation prohibit- ing purse seining is unreasonable as against American fishermen." Then, in the clause at the end of p. 502, are these words : — " My advice as to the coming fishing season is to refrain from ship- ping British subjects in British waters or British ports. I am aware, of course, that this advice, if carried out practically precludes gill netting for the coming season, unless that operation is carried on by combining the crews of several vessels. The State Department is now contending with the Government of Great Britain that New- foundland had no right to interfere with our fishermen by any regu- lation that did not exist when the Treaty of 1818 was made. At the same time we have offered to join with Great Britain in agreeing to reasonable regulations. The courses of diplomacy, however, are so slow that I do not believe it would be possible to arrive at any definite conclusion prior to 1907." I think that we may therefore take it that the traditional view which the United States has held from 1814 down to 1907 necessi- ARGUMENT OP JOHN S. EWABT. 1439 tates the admission that regulations existing prior to the treaty would be binding upon United States fishermen. The only question re- maining would be whether there is any difference between prior reg- ulations and subsequent regulations. Upon that point I do not think that I can do better than refer to Mr. Evarts' argument at p. 284 of the British Case Appendix, in which he contends most strongly, and in a passage that received the commendation of Senator Turner, that there can be no difference between prior regulations and subse- quent regulations. The passage has been already read to the Tri- bunal, and it is not necessary that I should read it again. We therefore have this extraordinary situation, that the only two men in the United States that have ever, on the part of the United States, disputed the right of British legislatures to frame regula- tions binding upon United States citizens are Mr. Evarts and Mr. Root; and that if we combine the opinions of these two men the British view is established. For Mr. Root seems to admit that, as to prior regulations, the United States fishermen would be bound, and Mr. Evarts' argument is that there can be no difference between prior and subsequent regulations. The point to which we must always come back is, no doubt, the construction of the treaty, and the question is whether the liberty to fish implies an abandonment of the sovereign power to regulate. And as some assistance to the construction of the treaty I wish to refer to an article in the United States Constitution which provides that no State shall pass any law impairing the obligation of con- tracts. I wish to point out what has been the course of decision with reference to that clause in the Constitution: "No State shall pass any law impairing the obligation of contracts." Does that mean that contracts cannot be affected in any way by United States legislation, or is there some more modified meaning to be attached to it? At a very early stage of American judicial decision, it was held that the clause related not only to contracts between individuals, but to charters granted by State legislatures to companies — that those charters were actually contracts as between the State and the com- pany that was incorporated by the charter. The clause of the con- stitution, therefore, applied to those contracts, and constituted a pro- hibition as against any legislation which should impair the charters of corporations. Many cases have been decided with relation to that question. The principle to be applied has, I think, now been sufficiently clearly estab- lished; but the application of that principle is of constantly recur- ring difficulty. I cannot do better, I think, than read some passages from Cooley on limitations, one of the standard works in the United States, as to what the effect of the decisions has been. At 92909°— S. Doc. 870, 61-3, vol 10 35 1440 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 870 p. 574 — I am reading from the third edition of Cooley — the subject is considered with reference to contracts between indi- viduals; and then, at p. 575, the learned author continues in this way:— " Perhaps the most striking illustrations of the principle here stated will be found among the judicial decisions which have held that the rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may be made by the State with a view to the public protection, health, and safety, and in order to guard properly the rights of other individuals and corporations. Although these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these rights are at once, by force of the charter-contract, removed from the sphere of State regulation, and that the charter implies an undertaking, on the part of the State, that in the same way in which their exercise is per- missible at first, and under the regulations then existing, and those only, may the corporators continue to exercise their rights while the artificial existence continues. The obligation of the contract by no means extends so far ; but, on the contrary, the rights and privileges which come into existence under it are placed upon the same footing with other legal rights and privileges of the citizen, and subject in like manner to proper rules for their due regulation, protection, and enjoyment. " The limit to the exercise of the police power in these cases must be this: the regulations must have reference to the comfort, safety, or welfare of society; they must not be in conflict with any of the provisions of the charter; "- They must not be inconsistent with the treaty, we would say here " and they must not, under pretence of regulation, take from the cor- poration any of the essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise. The maxim, Sic utere tuo ut aZienum non loedas, is that which lies at the foundation of the power; and to whatever enactment affecting the management and business of private corporations it cannot fairly be applied, the power itself will not extend. It has accordingly been held that where a corporation was chartered with the right to take toll from passengers over their road, a subsequent statute authorising a certain class of persons to go toll free was void. This was not a regulation of existing rights, but it took from the corporation that which they before possessed, namely, the right to tolls, and conferred upon individuals that which before they had not, namely, the privi- lege to pass over the road free of toll. ' Powers,' it is said in another case, 'which can only be justified on this specific ground [that they are police regulations], and which would otherwise be clearly pro- hibited by the Constitution, can be such only as are so clearly neces- sary to the safety, comfort, and well-being of society, or so impera- tively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the Constitution could not, as men of ordinary prudence and foresight, have intended to prohibited their exercise in the particular case, notwithstanding the ARGUMENT OP JOHN S. EWART. 1441 language of the prohibition would otherwise include it.' And it was therefore held that an act subsequent to the charter of a plank-road company, and not assented to by the corporators, which subjected them to a total forfeiture of their franchises for that which by the charter was cause for partial forfeiture only, was void as violating the obligation of contracts." Passing some further illustrations which the author gives, I pro- ceed to a subsequent paragraph : — " On the other hand, the right to require existing railroad corpora- tions to fence their track, and to make them liable for all beasts killed by going upon it, has been sustained on two grounds : first, as re- garding the division fence between adjoining proprietors, and in that view being but a reasonable provision for the protection of domestic animals; and second, and chiefly, as essential to the protection of persons being transported in the railway carriages. Having this double purpose in view, the owner of beasts killed or injured may maintain an action for the damage suffered, notwithstanding he may not himself be free from negligence. But it would, perhaps, require an express legislative declaration that the corporation should be liable for the beasts thus destroyed to create so great an innovation in the common law. The general rule, where a corporation has failed to obey the police regulations established for its government, would not make the corporation liable to the party injured, if his own negli- gence contributed with that of the corporation in producing the injury. " The State may also regulate the grade of railways, and prescribe how, and upon what grade, railway tracks shall cross each other; and it may apportion the expense of making the necessary crossings between the corporations owning the roads. And it may establish regulations requiring existing railways to ring the bell " And so on. Then, a little further on : — "And it cannot be doubted that there is ample power in the legis- lative department of the State to adopt all necessary legislation for the purpose of enforcing the obligations of railway companies as car- riers of persons and goods to accommodate the public impartially, and to make every reasonable provision for carrying with safety and expedition." I submit, Sirs, that we have here a very sufficient reply to the various arguments of the United States : To the argument that, because there is no reservation of sovereignty, and no limitation or qualification of the granted liberty, there- 871 fore the State is powerless to exercise the sovereign power with a view to the public welfare ; to the preservation of the subject-matter of the contract : Secondly, to the argument that a right to exercise the- sovereign Power to make regulations for such a purpose is not, as alleged in the present case (United States Argument, p. 62) :-— " in its practical effect different from the power to make regulations at will and without limitation as to character, when the state which 1442 NOBTH ATLANTIC COAST FISHERIES ABBITBATION. makes the regulations is the sole judge of their reasonableness measured by the prescribed standards." And, thirdly, to the argument that every regulation, however neces- sary from a public or preservative standpoint, must of necessity be regarded as an impairment of the obligation of the contract which created the liberty. It may be that, in this department of law, as in so many others, difficulties may arise in the application of principles — in determining satisfactorily upon which side of the line a particular case falls; but that, as I submit, is no reason whatever for declaring that there is no distinction at all between regulations which impair treaty rights, and regulations which are necessary for the prolongation of the enjoy- ment of those rights. And I should like to submit to the considera- tion of the Tribunal the language which I have read upon p. 577 of Cooley, that the powers which can be justified on this specified ground " can be such only as are so clearly necessary to the safety, comfort, and well-being of society, or so imperatively required by the public necessity as to lead to the rational and satisfactory conclusion that the framers of the Constitution " I would substitute " negotiators of the treaty " — " could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it." The United States contends that it has a right to exercise sovereign powers in Canadian and Newfoundland territory. Upon such a ques- tion, Sirs, Canada and Newfoundland are just as sensitive as would be Maine or Massachusetts, if Great Britain were advancing a similar claim with reference to United States territory. It was the aspira- tion of freedom to control their own affairs that fired the hearts of the revolutionary patriots. Canada has acquired, more slowly than the United States, complete legislative control over her own affairs, but she has obtained it, and she may be forgiven if, as she emerges from subordination to the Colonial Office, she objects to enter upon subjection, even in one particular, to the United States. Mr. Roose- velt, in a recent address at Christiania, said : — " But all really civilised communities should have effective arbitra- tion treaties among themselves. I believe that these treaties can cover almost all questions liable to arise between such nations — I ask you to weigh each word, as I am purposely phrasing this with great care so that I shall not appear to be advocating wnat is impossible — if they are drawn with explicit agreement that each contracting party will respect the other's territory and its absolute sovereignty within that territory, and the equally explicit agreement that (aside from the very rare cases where the nation's honour is vitally concerned) all other possible subjects of controversy will be submitted to arbi- tration." ARGUMENT OF JOHN S. EWART. 1443 In closing my remarks, Sirs, I venture to associate myself with Mr. Roosevelt's language, and to express my agreement with both the inclusive and exclusive limit which he assigned to arbitration treaties. Probably it would be quite impossible to prevail upon the United States to agree to submit a question touching its sovereignty to any tribunal, however august. That Canada and Newfoundland have assented to the submission of the present question to The Hague Tribunal must be taken as an expression, not only of their desire to further the cause of international arbitration, but of their great con- fidence in the integrity and ability of the eminent men who have been asked to adjudicate upon a matter so vitally associated with their dignity and their self-respect. I cannot, Sirs, take my seat without giving expression to my most sincere acknowledgment of the patience, attention, and courtesy with which the members of the Tribunal have listened to what, I am afraid, has been a very imperfect presentation of the views of the British Government in connection with the important matters comprised in the questions submitted to this Tribunal. [Thereupon, at 12.20 o'clock p. m., the Tribunal took a recess until 2.15 o'clock p. m.] 872 AFTERNOON SESSION, TUESDAY, JULY 19, 1910, 2.15 P. M. THE PRESIDENT: I will ask the Secretary-General to read a com- munication. THE SECRETARY-GENERAL: In pursuance of the provisions of arti- cle 2 of the special agreement of the 27th January, 1909, both parties have called the attention of the Tribunal to different legislative and executive acts of the other party, for the purpose of asking the Tribunal to point out in what respects, if any, they are inconsistent with the true interpretation of the treaty. Without in any way ex- pressing an opinion on any of the questions submitted to us, we be- lieve that it would facilitate our work and expedite the final disposi- tion of this case if the parties supplied us with a detailed statement of the particular provisions of the statutes and regulations to which they object, accompanied by an exposition of the grounds of such objection. The objections of each party to be communicated to the other. The objections should be made known to the Tribunal and the adverse party within one week from this day, and the answer of the adverse party within one week thereafter, so that the Tribunal, before taking the questions submitted under advisement, may have the benefit of a complete statement of the objections from each party, with such answer as the other party may desire to make. In addition to the written objections, the Tribunal would be pleased to receive such further oral statements as either party may choose to make. 1444 NORTH ATLANTIC COAST FISHERIES ARBITRATION. If the counsel of the respective parties desire to submit to the Tribunal, either orally or in writing, any view or suggestions in regard to the subject-matter of article 4 of the Special Agreement, they will be heard or received at the convenience of counsel. THE PRESIDENT: Now, Mr. Elder, may I ask you to address the Court? ARGUMENT OF THE HONORABLE SAMUEL J. ELDER ON BEHALF OF THE UNITED STATES. Mr. President and Gentlemen of the Tribunal : At the opening of the Argument for Great Britain, Sir Robert Finlay took occasion to express his personal satisfaction in the fact that the Tribunal would, at the end, have the advantage of hearing the Attorney-General of Great Britain. In heartily concurring, on behalf of my associates and myself, in that sentiment, I cannot refrain from expressing my own deep gratification, as well as that of my associates (and, I am confident, that of the Tribunal), in the knowl- edge that the Tribunal will also have the advantage, at the close, of hearing, on behalf of the United States, the distinguished Senator from New York, and former Secretary of State of the United States, who had so large a share in the diplomatic debate of many questions now before the Tribunal, and who has been so largely instrumental in bringing about, not only this arbitration, but in advancing the cause of determination by arbitration of international disputes throughout the world. It is oftentimes interesting and instructive to see how it comes about that parties are in court litigating their grievances; how it happens that they, or their friends for them, could not reach an agreement outside of the arbitrament of the law. It is oftentimes most seriously to be studied how nations came to fail to compose their differences, and had resort in the old times solely to war, but in the new time — and, as we believe, the better time that is coming — to such an arbitration as this. Therefore we inquire with regard to this arbitration, How did it happen that Great Britain and the United States could not adjust by diplomacy the controversy that had in part existed for many years and in part for a very short length of time ? Was there irritated feeling between the two countries ? Were they on the verge of war ? Were both sides excited and belligerent ? Not in the slightest degree. There never had been a time when the two great Anglo-Saxon peoples had been more in accord and more in the spirit of friendship. It was " the piping times of peace " between the two countries, and, quoting Richard, we can say that neither side shared Richard's feel- ARGUMENT OF SAMUEL J. ELDER. 1445 ing, that he preferred the furrowed front of war. Everything was peace between the two. And so with our great neighbour and 873 friend on the north. The times were those of perfect peace, and had been for many years. We were proud of the enormous advancement they were making. We looked askance a little at the tens of thousands of our people who were going across the border to help them build up that great northern Empire. But there was only a feeling of generous rivalry, and in regard to the whole of the fishery question, from 1888 on there had been absolute peace, under a simple system of licenses. And as to Newfoundland, we were in absolute peace with their peo- ple. They were our co-labourers in the same field. Tens of thousands of the dollars of the United States went every year to the people of Newfoundland. They worked with us and we with them. They were our friends. How was it, then, that an arbitration, so formal and so important as this, should have become necessary? I think I am not under-stating it. or over-stating it, whichever it may be, when I say that it was due to one man, and one man alone, that this present arbitration — at least at this time — became necessary. That man was the Premier of Newfoundland. He had sought dili- gently and earnestly to bring about a reciprocity treaty between his country and ours. There had been an agreement in 1891 which, as will later appear, Canada had prevented from being accepted. There had been another agreement in 1902 — the Bond-Hay Treaty, as I think he commonly called it; we commonly speak of it as the Hay- Bond Treaty — and that remained in abeyance. It was, as he said, held up in the Senate of the United States for a couple of years. And then trouble began. In 1904, while this matter was still pending before the United States Senate, a fishing- vessel of the United States, just as the ice was closing in, left the Bay of Islands without a clearance. She went down to Wood Island, which is at the mouth of the Bay of Islands, expecting to find a revenue cutter there, to get a clearance. Failing to find it, she, under orders from her owners not to get caught in the ice, as the captain had once before done, sailed away for Gloucester, and on his return he was haled before the courts and fined 200 dollars. That was one of the first, perhaps the first instance, in which United States vessels had ever been proceeded against on the Treaty Coast. But that was far from being the end of the story. In 1905, in April, there was brought in the Foreign Fishing Vessels Act of that year, by this Premier. I shall go at some length into that, but need not do more than mention it now. I need not attempt to prove that it was not intended solely in the interest of the fisheries, because the distinguished representative of Newfoundland, Sir James 1446 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Winter, told us in reply to an inquiry that it was : " Purely retalia- tory fiscal legislation. One country legislating against another upon purely commercial matters." Retaliatory of what, Sir? Had there beeen legislation in the United States against Newfoundland or against its inhabitants? Were they precluded from service with us? Were they in any way hampered ? Not at all. It was an attempt to compel the United States to change its fiscal policy. It was an at- tempt to compel the United States to abandon, so far as Newfound- land was concerned, its protective tariff. I hold, of course, no brief here for the protective tariff. It is not a subject to be discussed before this Tribunal, or upon this occasion. It is enough to say that it had been, for half a century, almost con- tinuously the policy of the United States, its fiscal policy, under which, as many believe, the majority believe, its prosperity had largely arisen. Its friends and advocates will point to the figures of the valuation in 1850. seven billions of money, and in 1909 one hun- dred and seventeen billions of money. They say that a large part of that fiscal policy had been its protective tariff. Whether right or wrong, whether wise or foolish, it was the fiscal policy of the United States, and it was that which the Premier of Newfoundland openly insisted upon having changed, and this Foreign Fishing Vessels Act was brought in for the purpose of compelling the United States Sen- ate to ratify this treaty with Newfoundland. I do not purpose, and need not at this moment go at any consider- able length into the questions which there arose. The contest ran through 1905, 1906. and 1907, leading all the way up to this arbitra- tion. Not that the Premier of Newfoundland was advocating arbi- tration. It was farthest from his desire that arbitration should be brought about. He made an expression with regard to it at one time. It was in the course of his speech, I think, in 1908, before the Colonial Con- ference. It is to be found in the Appendix to the Counter-Case of the United States, at p. 524. He said : — " We do not think it just that permission should be given by His Majesty's Government to a foreign Power to over-ride or con- travene the laws of the Colony, or that an understanding 874 should be given to a foreign Power by His Majesty's Govern- ment not to sanction certain Colonial legislation. " It has been suggested that the matters in dispute might properly be submitted to arbitration. I cannot see what there is to abritrate upon. To my mind, the only question is, as to the binding effect of Colonial laws upon American citizens when they come within British jurisdiction. If it is intended to submit the Treaty to arbitration, then I contend, that its terms are clear, that the privileges granted to the inhabitants of the United States thereunder are not set forth in language that is ambiguous. Vattel, probably the best authority upon the interpretation of treaties, says : — ABGUMENT OF SAMUEL J. KLDEB. 1447 " ' The first general maxim of interpretation is, that it is not allow- able to interpret what has no need of interpretation. When the word- ing is in clear and precise terms and its meaning is evident and leads to no absurd conclusion, there can be no reason for refusing to admit the meaning which such Treaty naturally presents, and to go else- where in search of conjectures in order to restrict or extend it is but an attempt to elude it.' " If, on the other hand, it is intended to submit Colonial statutes to arbitration, then I respectfully contend that it would be derogatory to the Crown, and in direct contravention to the constitutional right of the self-governing Colonies, to submit their statutes to the arbitra- ment of any foreign Power or of any person, or body of men." In the light of the suggestion now urged upon us, under two at least of the questions, that colonial statutes are to be interpreted by this Tribunal, this remark of Sir Robert Bond is instructive. In the end, however, the arbitration became necessary. It seemed to be the only way out. And, various of the questions, and those to a con- siderable extent with which I have to deal, or with which I shall ask the Court to deal, came at the last moment into the arbitration in a most instructive way, namely, as the terms upon which Sir Robert and his Government would allow the modus vivendi of 1907 to have their approval. At the bottom of p. 1013, Appendix to the Case of the United States, you will find this :— " My Ministers, however, still desire to aid His Majesty's Govern- ment as far as possible consistently with their duty to this Colony, and the preservation of its rights ; they will, therefore, grant permis- sion to the fishermen of the Treaty Coast to sell to Americans during the coming season on the receipt of an assurance from His Majesty's Government that the terms of reference to the Hague Tribunal shall include the question of the right of American vessels to fish or trade in any of the bays, harbours, or creeks of that portion of Newfound- land Coast between Cape Ray and Quirpon Islands, together with all other questions that may be raised." And suggesting that the United States must be consulted before the questions to be submitted could be determined upon, the Govern- ment of Great .Britain conceded that it would include in the terms of arbitration the matters which were insisted upon by Newfound- land. I refer to the top of p. 1017 of the Appendix to the Case of the United States:— " I may add that His Majesty's Government will urge the United States Government to submit to arbitration any point on which your Government and the Government of Canada are agreed. They can- not, however, give a pledge as to anv one point until the views of the Dominion Government are known.' As to one of those questions, namely, Question No. 6, on which the Prime Minister insisted, the Government of Great Britain had never 1448 NORTH ATLANTIC COAST FISHERIES ARBITRATION. said a word to the Government of the United States. It was a ques- tion which all the years of debate had never brought to the surface, not even after the time that Sir Robert Bond himself had presented it in 1905; but, nevertheless, that was included, and for greater in- genuity, the provision was also put into Sir Robert Bond's letter, " any other questions which may be raised." I do not mean, in saying this, to minimise the dignity and impor- tance of the questions here submitted. It is only another illustration of the fact, which has so frequently occurred in history, that either the ambition, or the zeal, or the vanity of men, has been overruled to the greatest purposes. As the result of the difficulty between Great Britain and this colony, and as the result of a difficulty between the United States and Great Britain, brought to a climax in this manner, we have the honour of standing here and presenting to this distinguished Tri- bunal questions which, for nearly fifty or sixty years, have failed of solution by ordinary diplomatic means, as well as questions of detail and of the highest practical importance to both countries. We have the great advantage of discussing them at a time of the profoundest peace, at a time when counsel on one side and the other, can come together as brethren of a great profession, not acting under any ex- citement or exacerbation of the home press or the home people, 875 and under conditions which call for nothing but a statement in the calmest way of the contentions on one side or the other. We come here at an opportune moment when the entire press of the United States, from one end of the country to the other, is echo- ing the brilliant words of the President of this Tribunal at its open- ing session, and approving of the doctrine set out of the arbitral determination of international disputes. We may well believe that we are rearing a great white pillar, marking the progress of the prin- ciple of international arbitration. Nor must we fail to note that in Great Britain as well the same condition prevails. If these proceed- ings result, as they surely will, in bringing the contentions of the parties to a peaceful adjustment, we shall be able to record of this arbitration what was recorded of the first arbitration between these two countries; I refer to the arbitration with reference to the St. Croix River boundary. I do not quote accurately, but one of the arbitrators, in substance, said : " In this quiet chamber we have settled the boundaries between two great nations, and have seen to it that the land was not deluged with the blood of our sons or our rivers choked with their dead bodies." I have already intimated that what I had to deal with were the questions of more recent origin and, to some extent, of more practical importance — Questions 2, 3, 4, 6, and 7 ; not questions involving such recondite considerations of international law as Nos. 1 and 5, but ABGUMENT OF SAMUEL J. ELDER. 1449 yet questions of the most vital importance to the conduct of the fish- eries between these two nations. I have found it to be of distinct service, Mr. President, to arrange in order the events of the last few years which lead up to the arbitration, and I hope that it will not be without service to the Tribunal, if I review, as briefly as I may, those circumstances. In using the word " briefly," which has been so fre- quently used in the course of these proceedings, I cannot hope that any member of the Tribunal, or any one of our friends upon the other side, will say to me what a Scotch juror said to a distinguished Scotch advocate some years ago, a man of great eminence, native of that country which has produced so many of the greatest advocates in the world, which has given to Great Britain and to our own United States men distinguished by their eloquence and attainments at the Bar. He had come to be known in Edinburgh to everyone as "Harry," and, in opening his argument to a jury, he once said: " I shall briefly review the circumstances of this case." One of the jurors, brought up in the forensic, almost casuistical, school of the Scotch, loving debate and fearing that what had promised to be a great intellectual treat would fail him, cried out: "Dinna be brief, Harry ; dinna be brief. What 'a ye do, dinna be brief." My friend, Mr. Warren, brought the consideration of the history down to 1886, having in mind, of course, Question No. 5. Sir Robert Finlay, whom I hope I may also speak of now and always, as my friend, dealt with the subsequent period much more briefly than the earlier history, which facts may be my two excuses for going a little more into detail with reference to this subsequent period. The Treaty of Washington terminated on the 1st July, 1885, but was continued in force by irwdus until the 1st January, the following year. During 1886, however, notices were served on American vessels, upon two of which I shall have occasion to comment more at length later. The " Thomas F. Bayard " was notified at Bonne Bay that American fishermen could not fish on that shore, and the " Mascot " was notified at Port Amherst, in the Canadian jurisdiction, to the same effect. The form of the notices in each case was that they could neither fish nor trade at either of these places. Upon reference being made to Great Britain both of these notices were withdrawn. Both of these notices, you will observe, were upon the treaty coast, and these fish- ermen were seeking to exercise what were believed to be their treaty rights on this coast. The position assumed by Canada and New- foundland was such that the President of the United States was au- thorised, by an Act of the 3rd March, 1887, United States Case Appendix, p. 96, to terminate relations with Canada and with the colony, if he was convinced that they were unreasonably interfering with the rights of American fishing- vessels. One of the significant things about it was that if the vessels of the United States were 1450 NORTH ATLANTIC COAST FISHERIES ARBITRATION. unreasonably crippled, even in their commercial relations, it would be regarded as a ground for putting the Act into operation. That au- thority President Cleveland never exercised, because, almost imme- diately, negotiations for what proved to be the Chamberlain-Bayard treaty were entered upon, and these negotiations promised at one time to serve as a way out of the entire difficulty. I shall now advert to the Newfoundland Act of the 21st February. 1887, United States Case Appendix, p. 170, and British Case Ap- pendix, p. 711. The statute of Newfoundland provided that no per- son without a license should export, catch, or sell for the purpose of exportation, any herring, caplin, squid, or other bait fishes. It will be noticed that neither that nor the statute of Canada pro- 876 hibited commercial transactions in general, but merely pro- hibited the sale of certain specified articles which related directly to fishing. Concerning this Act of Newfoundland, it is to be noticed that we have the advantage of having heard from Sir James Winter, whom we had the pleasure of hearing before this Tribunal, in an interview which he granted to a London paper dur- ing a controversy which had occurred with Sir Robert Bond. The wise man of old said : " Would that mine enemy would write a book." If he had lived at the present time I am very confident that he would have changed it and would have said : " Would that mine enemy would grant an interview." I must stop to apologise for hav- ing used the word " enemy " with reference to so genial and kindly a friend as Sir James is to all of us. I want you to turn to p. 404 of the United States Counter-Case Appendix because there we will find something concerning this very statute. The interview to which I have referred was published in the London " Morning Post." It will appear a little later that Sir Robert Bond had been conducting something of a campaign in England and kindling a back fire on the British Government as to its attitude toward Newfoundland. It was in response to this that this interview was granted by Sir James Winter, who was in England. I read at the bottom of p. 404:— " Sir Robert Bond's ultimate object is reciprocity with the United States — that is, of course, access to American markets for our fishery products — and he hopes to force the Americans to give us this reci- procity by shutting off the sale by our West coast fishermen of her- ring to the Americans. Whether his ultimate object — reciprocity — would be promoted by this policy is, to say the very best for it, extremely doubtful. I for one do not believe that there is any chance of its succeeding, or that the Americans will be forced by any such means to give us reciprocity. In the meantime his policy is only bringing ruin upon our herring fishermen. It is nothing but an experiment on his part, and I believe will end only in failure, even if he were permitted to carry it out. That is the opinion of many practical men. And certainly this reciprocity is not worth ARGUMENT OF SAMUEL J. ELDER. 1451 causing the least possible trouble either with the United States or the Imperial Government. The chances of success cannot be weighed in the balance against the grave difficulties that must arise out of any endeavour to force these measures." Then, we have the Bait Act : — " Permit me to go a little into details. In 1886 a Bait Act was passed " There I think Sir James was in error and that the reference was to the Act of 1887 because I do not find in either Appendix any Act of 1886. I may be in error. "In 1886 a Bait Act was passed for the purpose of preventing the supply of bait to the French fishermen who used it for the purpose of catching cod-fish on the Banks of Newfoundland. They took the cod into our markets, and by means of heavy bounties were able to undersell our fishermen. This Act was clearly intended to be used, first of all, to prevent foreigners from using our bait against us, and, secondly, it was enforced only against Frenchmen on account of their competition in the matter of cod-fish, which was then almost our sole means of livelihood. It was never intended to interfere with the ordinary catching, sale, and exportation of herrings as articles of consumption — a consumption that has always been going on, and, as far as the sale to the Americans is concerned, with considerable profit to our people. It is by what I can call only a perversion and misapplication of the spirit of that Act (although it may be accord- ing to the strict letter) that Sir Robert Bond is endeavouring now to interfere, as he has done, with the traffic with the Americans. In fact, the very same Act contains provisions for facilitating and se- curing the continuance of the traffic in herrings as articles of food. When that Act was passed in 1886 the country was on the verge of starvation on account of French competition ; it was passed as a meas- ure of self-preservation ; the very life of the colony was at stake. But at the present moment there is no necessity for the application of that Act in the case of the United States. There is no strong public demand for reciprocity with the United States. We never had bet- ter markets for our cod-fish than at present. The Americans are doing us no harm whatever ; there is only a desire on the part of some people to obtain an entrance into American markets for the sale of cod, and there is the widest difference among practical men on that point. The best opinion is against it. Americans are not likely to be consumers to any large extent of our codfish. Our best markets are the Roman Catholic countries that buy our salted fish— Brazil, Spain, and the countries of the Mediterranean — and our markets in these countries were never better than they are now." It will be seen that the Act of 1887, if I correctly read what Sir James said — and interviews have been known to be not absolutely in accordance with the statements made — was intended against the French, and it will appear that it was never until 1905 enforced against the Americans. On the 15th February, 1888, the Chamber- lain-Bayard Treaty was agreed upon. It provided for a commission to delimit the places in which, under the renunciatory clause, the 1452 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Americans could not fish. Certain bays were specifically delimited in the treaty itself. Several of the Newfoundland bays were 877 delimited, but none of these was on the treaty coast. That, if the Court please, we believe to be a most significant fact. The treaty provided for the marking out only of bays on the non- treaty coasts, and when it came to Newfoundland they were the bays on the eastern part of the southern coast and the eastern part of the island, and did not touch the treaty coast. We believe that has a direct application to Question 6 as to whether the treaty of 1818 gave us the right to enter into bays. Special bays were delimited — For- tune Bay, Conception Bay, and others on the eastern coast, but not one of the large bays on the western coast was touched at all. Why ? Because no question had then arisen, no question was supposed to exist — and that was seventy years after the treaty had been made — as to our rights with respect to bays on the west coast of that island. That treaty failed of approval before the United States Senate, the adverse vote having been taken in August 1888, but it provided for a modus pending the consideration of the question and to the modus, which appears in the United States Case Appendix, at p. 44, I de- sire to call some attention. In the first section it provided for a license fee for entry to the ports for the purpose of purchasing bait, ice, seines, lines, supplies, and outfits, transhipment of catch, or the shipment of crews. All this was paid for at the rate of $1.50 per registered ton of the vessel. The next section provided that the license fee would be remitted if the United States removed the duties on fish, and the third, that no entry or clearance shall be required if the port is entered for one of the four purposes named in the treaty, namely, shelter, repairs, wood, and water, and if the ship does not remain for more than twenty-four hours. The fourth is that for- feiture shall be exacted only for fishing or preparing to fish in pro- hibited waters — a simple, straightforward, business arrangement be- tween the two countries, which met with the approval of Mr. Cham- berlain and Sir Charles Tupper on the part of Canada, and of Mr. Bayard and Judge Putnam on the part of the United States. The British Case is the authority for the statement that in so far as Can- ada is concerned that provision is still in force. The old questions slept. Perhaps I had better refer to the British Case, p. 136:— " This arrangement is still in operation in Canada. Under it American fishermen have taken out licenses entitling them to the privileges mentioned on payment of annual license fees. Between the years 1888 and 1907 American fishermen have thus paid over 165,000 dollars to Canada alone for the enjoyment of some of the commercial privileges to which they now assert a right. Similar privileges were conceded in Newfoundland until 1905 under various statutes of that colony, for which, since 1888, American fishermen have paid over 120,000 dollars." ARGUMENT OP SAMUEL J. ELDER. 1453 Perhaps the Tribunal will pardon my pointing out on the map, though the members may be absolutely familiar with it, the territory under the jurisdiction of Canada and Newfoundland. Canada cov- ered all the coast of New Brunswick, Nova Scotia, Cape Breton, Prince Edward Island, Anticosti, the Magdalen Islands and the southern coast of Labrador up to this point, just to the westward of the Straits of Belle Isle. Newfoundland, of course, is entirely clear, and its jurisdiction on Labrador extended from that boundary north- ward indefinitely to Hudson Bay. Concerning the coast under Cana- dian jurisdiction, there have been no troubles, one might say, during all this intervening period, and down to 1905 there were no troubles with Newfoundland. In considering the Act of Newfoundland of 1887, it is perhaps well to bear in mind that at an earlier date, the 3rd August, 1863, the United States Case Appendix, pp. 1082-3, New- foundland had in contemplation an Act which might cover both the treaty and the non-treaty coasts, and a memorandum was addressed to Governor Bannerman. by the Duke of Newcastle in reference to that, which will be found at p. 1083 of the United States Case Appendix. The Duke says in the paragraph marked "2nd": — " That no Act can be allowed which prohibits expressly, or is calculated by a circuitous method to prevent, the sale of bait. " 3rd. That all fishing acts shall expressly declare that their pro- visions do not extend or interfere with any existing treaties with any foreign nation in amity with Great Britain. " 4th. That, in any part of the colonial waters, it would be highly unjust and inconvenient to impose upon British fishermen restrictions which could not, without violating existing treaties, be imposed upon foreigners using the same fisheries. On this point, however, I would refer you to my despatch, marked ' confidential,' of the 2nd of February." That advice, or instruction, whichever you choose to call it, of the Duke of Newcastle, with reference to incorporating in all Acts of Newfoundland a saving clause with regard to countries in amity with Great Britain, having treaty rights, has been followed by Newfound- land. There is one other fact that I want to draw attention to in 878 connection with the Act of 1887, which was, in effect, repro- duced in the consolidated Statutes of Newfoundland twice, I think. It would appear, though I concede not conclusively, that the license fees received by Newfoundland, amounting to 120,000 dollars, as has been stated, were wholly, or almost wholly, for rights on the non-treaty coasts of the island rather than on the treaty coasts. I refer the Tribunal to the letter of Sir Edward Grey to Mr. Whitelaw Eeid, of the 2nd February, 1906, United States Case Appendix, vol. ii, p. 973 : " His Majesty's Government agree that the Government of New- foundland could not require that American fishermen seeking to exer- 1454 NORTH ATLANTIC COAST FISHERIES ARBITRATION. cise the Treaty right should take out a license from the Colonial Government. No license is required for what is a matter of right, and no such license has, His Majesty's Government are informed, been, in fact, required." That, of course, would apply to the right of fishing. Then, I refer the Tribunal to Sir Robert Bond's speech of the 7th April, 1905, which is found in the United States Counter-Case Appendix, at p. 417 :— " To sum up : Herring is never taken by Americans themselves. They are purchased in exchange for cash, and in a lesser degree for merchandise, from Newfoundlanders, who catch and freeze them. Newfoundlanders are never hired to catch herring for the Americans. " Care must be taken to distinguish between United States vessels visiting this coast for the purpose of purchasing bait, supplies, etc., for the codfishery, in fact those making Newfoundland ports a base from which to carry on fishing operations, and those who engage in the frozen-herring trade. To the former licenses (copy of which is inclosed) are issued, for which $1.50 per ton is charged; to the lat- ter no charge is made, except the usual ones, equally chargeable to Newfoundlanders, of light and custom dues." He is quoting in that speech from his own letter of the 12th March, 1894, to the Treasury Department of the United States, when the Act of 1887 had been in force for seven years. In 1891 the treaty, which I think Sir Robert always spoke of as the Bond-Blaine Treaty and which we speak of as the Blaine-Bond Treaty, was entered into. It was defeated; and Sir Robert learned afterwards that it was through the intervention of Canada that that treaty came to grief. This was one, and I think the first, of Sir Robert's grievances or disagreements, at all events, in matters of policy with respect to his colony (Appendix to the Counter-Case of the United States, p. 422) :— " His Majesty's Government, recognizing the force of the position that was set forth," He speaks of having been in England — " granted permission to the government of Newfoundland to make the attempt on its own behalf, and I was authorized to proceed to the United States of America to assist Lord Pauncefote in negotiating a trade convention. The result of my labors was entirely successful so far as the making of a treaty was concerned. An agreement was arrived at satisfactory to the government of this colony as well as to the Government of the United States, which has passed into his- tory as the Bond-Blaine Convention. "That convention was upon the lines of the 1888 treaty. It pro- posed to convey to American fishermen the rights intended to be conveyed by the Bayard-Chamberlain Treaty, in exchange for the free admission of our fishery products and crude copper ores, the product of Newfoundland mines, into the markets of the United States. That convention never was submitted for ratification, being ARGUMENT OF SAMUEL, J. ELDER. 1455 held in abeyance by His Majesty's Government out of deference to the wishes of the Dominion of Canada. " Into the motives that prompted the action of the Dominion of Canada and the injustice with which this colony was treated by His Majesty's Government in that connection I do not propose to enter as the House is only concerned at the present time with a history of the treaties that have been made or attempted to have been made from time to time with the United States of America with respect to the fisheries, and not with the merits of the various proposals." I call attention to the fact that neither that treaty nor the Hay- Bond Treaty contained any provision with regard to the shipment of crews. Apparently up to that time, and I think I shall be able to show until 1905 and farther on than that, no question had arisen of the right of a Newfoundlander to earn his living by working for an American, or an American vessel, whenever he could get employment, and no effort had been made to prevent an American vessel from em- ploying such a man; and that the privilege was more and more availed of throughout all the years from 1818 down to the inter- vention of the Foreign Fishing Vessels Act (24th May, 1893), which appears at the United States Case Appendix, vol. i, p. 184. The Act of 1887 was directed against natives and their sell- 879 ing of bait to and their conduct toward foreign fishing-vessels. But the Act of 1893 was directed against the foreign fishing- vessels themselves and prescribed a considerable number of pen- alties— search and seizure — and the effect of having caplin and bait- fishes on board as primd facie evidence of guilt, and all that sort of thing. But it was not put into force against the vessels of the United States. At p. 977 of the United States Case Appendix, in Sir Edward Grey's letter to Mr. Whitelaw Eeid of the 2nd February, 1906, Sir Edward points out that the Act of 1905, the Foreign Fishing Vessels Act, is not new, but that it dates back to this Act of 1893. And then in the second paragraph on that page he says: — " They desire, however, to point out that, though the Act in ques- tion was passed to give effect to the decision of the Colonial Govern- ment to withdraw from American fishing- vessels the privileges which they had been allowed to enjoy for many years previously of purchas- ing bait and supplies and of engaging crews in the ports of the Colony, the provisions objectionable to the United States Govern- ment which it embodies are in no sense new. They will be found in ' The Foreign Fishing Vessels Act, 1893.' r I then pass down some ten or twelve lines : — " His Majesty's Government do not advance these considerations with the object of suggesting that the objections which the United States' Government have taken to sections 1 and 3 of the Foreign Fishing- Vessels Act are impaired by the fact that these provisions 92909°— S. Doc. 870, 61-3, vol 10 36 1456 NORTH ATLANTIC COAST FISHERIES ARBITRATION. have been on the Statute Book of the Colony since 1893 without pro- test, and they are ready to assume that no such protest has been lodged merely because the privileges accorded to American vessels in the ports of the Colony up to the present have been such as to render it unnecessary for inhabitants of the United States to avail them- selves of their right of fishing under the Convention of 1818." And he goes on to say that his object in mentioning it is merely to show that this new Act was not intended to do more than call into effect the Act which had previously not been enforced. So that it ap- pears that that Act also, as well as the Act of 1887, was not enforced against Americans, and apparently the object of it, as Sir James Winter said, was with reference to French and not with reference to American vessels. "What views the Court will take of the fact that Acts, which can find their justification only in the necessary preservation of the bait supply of a colony, are enforced against one country and not against another, I cannot tell. In 1902 Sir Robert Bond was present at the Coronation of the King, and presented to Mr. Joseph Chamberlain his views with regard to the Newfoundland situation, and was authorized to under- take the negotiation of a new treaty. If the citation is of any impor- tance it is at United States Counter-Case Appendix, pp. 469 and 470. That treaty was agreed upon with Secretary Hay, and then, as I have said, was not accepted by the United States Senate, was amended, and in 1904 it had not been passed. The text of the treaty is to be found in the British Case Appendix, p. 46, and I shall only sum- marise it at this moment. Fishing-vessels entering the waters of Newfoundland shall have the privilege of purchasing bait-fishes on the same terms and condi- tions as Newfoundland vessels. They may touch and trade, buy and sell fish and oil, and procure supplies, conforming to harbour regula- tions, and without other charges than the payment of light, harbour and customs dues, such as are levied on Newfoundland fishermen. Then certain manufactures of the United States are admitted free of duty, certain others at a minimum rate, and cod-fish, cod-oil, &c., from Newfoundland are to be admitted into the United States free of duty. As I have said, that treaty failed of confirmation, and while still pending in the United States Senate, the incident which resulted in the prosecution of the captain of the schooner " Columbia " occurred in November 1904, which seems to have been the first of the methods of pressure which Sir Robert was bringing to bear up;on the United States. On 7th April, 1905, Sir Robert Bond made his speech, which I think I may be justified in calling famous, concerning the new For- eign Fishing Vessels Act — the Act of that year. In it he took radi- cal views with regard to the fishing rights of the vessels of the ARGUMENT OF SAMUEL J. ELDER. 1457 United States. It was at that time that he used the language which has already been read to the Court, beginning at p. 413 of the United States Counter-Case Appendix, at the bottom : — " The treaty of 1902, now before the Senate of the United States, is intended to secure to American fishermen equal privileges with our own people in the winter herring fishery ; and I repeat that the state- ment made by Messrs. Pew and Sons, that the Americans under the treaty of 1818 have the right to buy or take these herring in 880 the creeks and harbors on the southern coast of Newfoundland, between Cape Ray and Rameau Islands, and on the northern and western coast of Newfoundland between Cape Ray and Quirpon Islands, is incorrect and misleading; and I desire to emphasize the statement that, in my opinion, the fishermen of the United States of America have no right, under the treaty of 1818, either to take for themselves or to purchase bait fishes in the harbors, creeks, between Cape Ray and Rameau Islands on the southern coast of Newfound- land, or in the harbours, creeks, or coves between Cape Ray and Quir- pon Islands on the northern and western coast; and that the liberty extended to them under the treaty of 1818 to take fish in the harbours, bays, and creeks of this colony is limited to that portion of our de- pendency from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly indefi- nitely. This is a point of vast importance to the people of this country. I believe I am correct in saying that it is the first time that this position has been taken, and, if I am correct in my interpreta- tion of the treaty of 1818, the whole winter herring fishery of the west coast has been carried on for years by the Americans, simply at the sufference of the Government of this colony." That is Question 6, I hope to show that not only had this idea not been conceived by the great minds which had dealt with the treaty from 1818 down to 1905, with the numberless disquisitions which had been written of and concerning it, but that even Sir Robert Bond himself had not conceived it until within a year of the time when he announced it. Certainly he had not conceived it on the 15th April, 1904, as I shall hope to show. We have to deal with many ancient questions in this case ; questions of great historic interest ; questions that have engaged the best minds of the two countries in all these intervening years ; but this is not an ancient question; it is hardly out of its swaddling clothes, and we can but hope that its swaddling clothes will prove its shroud. Sir Robert goes on to say, at p. 415 of the Appendix to the United States Counter-Case that 4,000 out of the 8,000 fishermen on Massa- chusetts vessels are Newfoundlanders, showing the extent to which that practice of employment had then gone. He speaks of the duty imposed by the United States as being 25 per cent., that being the bone of his real complaint. He gives a description of the Bond- Blame treaty, which was held up by Canada, to which I have alluded, the Hay-Bond treaty, which had then been held up, he says, 1458 NORTH ATLANTIC COAST FISHERIES ARBITRATION. for three years. He announces his intention of excluding Americans, as far as possible, from the exercise of the right of fishing. I read from p. 424 of the Appendix to the United States Counter- Case : — " In conclusion I desire to make clear to this House, and to all those outside of the House who are interested in the question under con- sideration, what is the attitude of the government. " This must not be regarded in the nature of a threat, as ' a declara- tion of war,' as the leader of the opposition has asserted, or as an attempt to strike a blow at the fishery interests of the New England States ; but it is, I submit, a wise measure, conceived in the interests of the people of this colony, and calculated only to command the respect of our friends in the great American Republic." It is not at that place that he speaks — though he does in another — of proving to the United States that Newfoundland is the mistress of the northern seas, and that the hand that held out privileges can withhold them; and that Newfoundland held the key of the posi- tion. It is to be remembered that all these utterances were at the moment that the United States Senate had in consideration the treaty the non-ratification of which he complained. On the same day Mr. Morine, the leader of the opposition, made his reply, and pointed out all the dangers to their own interests which would come from this attempted policy on Sir Robert's part. He points out, at p. 436 of the United States Counter-Case Appendix, the ambiguity, the lack of clearness of meaning of the clause with regard to countries in amity with Great Britain, to which I call attention. He is speaking of section 7 : — " ' Nothing in this Act shall affect the rights and privileges granted by treaty to the subjects of any state in amity with His Majesty.' "What did that section mean? Does it mean that you cannot go on board the American vessel, in Bay of Islands or St. George's Bay ? Who, in this country, is competent to decide that question? Is the captain to be first arrested and then the question decided? That is what must be done. The act must affect treaty rights and privileges if any attempt whatever is made to carry it out. That section must mean that the act shall have no effect on the American vessels between Ramea and Quirpon. It would have the effect of driving all the American vessels within that treaty area to obtain from the shore what the French had partially failed to procure. And the American people would be successful, because of their greater enter- prise, skill and funds. All the reasons which had been so ably and eloquently argued by the Premier against the bait act applied with ten times greater force in dealing with the Americans. The 881 house well knew how the Rt. Hon. Premier thundered on that question, and how he convinced the people of this colony against the bait act." One of the questions which this Tribunal will have to consider, and undoubtedly is considering, is what effect has this saving clause upon ARGUMENT OF SAMUEL J. ELDER. 1459 any of these acts of Newfoundland? What is the real value in a statute, notably intended to curtail and restrict, in every possible way, the rights of another, of a saving clause of that kind at the end ? Interpreted by the colony of Newfoundland, interpreted by men whose interests are strongly swayed one way or the other, what is the value to the United States, or what can be the value of that saving clause? Mr. Root said, in a later part of the discussion, that to make that declaration of real value it should state distinctly that it was not to be applied to American vessels within the limits embraced by the treaty coasts. At p. 446 the direct intent of this bill is stated. It is not a matter to be demonstrated ; it is stated : — "This bill is framed specially to prevent the American fishermen from coming into the bays, harbors, and creeks of the coast of New- foundland for the purpose of obtaining herring, caplin, and squid for fishery purposes, and it is still competent for this legislature to make provision in respect to the export of herring in bulk in foreign vessels upon the payment of an export duty. It is quite competent for the House to add a clause to this bill enabling the governor in council to suspend the operation of the act at any time it may be considered expedient to do so and to admit foreign vessels for the purpose of taking herring in bulk." That was a distinct announcement of what the intention of the Newfoundland Government was. Then, at p. 447, the Premier says : — " There was also a recognition on the part of the fishermen of this colony that we had the whip hand in regard to the fisheries of British North America. There is not the faintest shadow of a doubt upon that point, as I stated on a former occasion. We have already demon- strated to the French that we hold the key to the North Atlantic fisheries." That is the fourth paragraph on p. 447 of the Appendix to the United States Counter-Case. At p. 448, referring to a communication which had been presented by the Canadian Parliament, this language is used :— " This communication is important evidence as to the value of the position we occupy as mistress of the northern seas so far as the fisheries are concerned. Herein was evidence that it is within the power of the legislature of this colony to make or mar our competi- tors to the North Atlantic fisheries. Here was evidence that by re- fusing or restricting the necessary bait supply we can bring our foreign competitors to realize their dependence upon us. One of the objects of this legislation is to bring the fishing interests of Glou- cester and New England to a realization of their dependence upon the bait supplies of this colony. No measure could have been de- vised having more clearly for its object the conserving, safeguarding, and protecting of the interests of those concerned in the fisheries of the colony. 1460 NORTH ATLANTIC COAST FISHERIES ARBITRATION. " If this bill goes into force, as I believe it will, it must be the means of keeping up the high price of fish, for if we curtail competi- tion we must obtain that result." That Act became a law on the 15th June, 1905. Fishing-vessels for the winter herring fishery leave our coast in October, and the fishery is prosecuted into January, or until the ice closes in, so that the vessels are driven out. No warning was given to American fishing-vessels, no communication was had with the United States Government concerning this Act. Willingness to present their colonial legislation to the United States for its con- sideration was not exhibited, certainly, in that particular instance. The vessels left for the coast, and then there is a mystery. Some- thing happened, and it is not quite clear what it was that did happen. The first communication on the subject is at p. 964 of the United States Case Appendix, and is contained in a letter from Mr. Root. He says that he has just received from Senator Lodge a communica- tion containing — " the following statement, based, I assume, upon information received from his constituents in Massachusetts, who are interested in the fisheries : " I perhaps do not need to state that Mr. Lodge is a Senator from the State of Massachusetts. The communication is quoted : — " ' Newfoundland cruiser "Fiona" has arrived in Bay of Islands, on Treaty Coast, with Minister of Marine and Fisheries on board. 882 The Minister has forbidden all vessels on American register to fish on Treaty Coast, where they are now, and where they have fished unmolested since 1818.' ': I call attention to the fact that in all the negotiations which fol- lowed this letter of Mr. Root in 1905, that statement that American vessels on register had fished on the treaty coast unmolested since 1818, was never contradicted or qualified in any way, shape, or manner. Mr. Root goes on to say : — " The American boats are already upon the Treaty Coast. I have felt bound to advise Senator Lodge that I have no doubt of their right to proceed to take fish upon the ground where the Minister of Marine and Fisheries of Newfoundland has prohibited them from fishing. The history of the fisheries and the numerous difficulties which have arisen upon the Treaty Coast indicate that this conflict between the orders of the Newfoundland Government and the rights of our fishermen, as we conceive them to be, may lead to very serious and regrettable incidents. It seems unfortunate that the Govern- ment of Newfoundland should undertake to prohibit a practice justi- fied by the construction of the various Treaties relating to the New- foundland fisheries for more than a century without any suggestion by the Government of Great Britain that that Government proposes any change of construction, and without any exchange of views between the two Governments upon the subject." ARGUMENT OF SAMUEL J. ELDER. 1461 I wish to say, if the Tribunal please, something with regard to vessels on register (which are mentioned for the first time in this communication). A vessel on American register must be wholly owned by citizens of the United States. If any one of the owners lives abroad, other than as United States consul, the right of registry ceases, even though his ownership is a mere fraction ; the vessel must have been built in the United States, or must have been captured in war and condemned, a provision which, happily, is of no importance now ; its captain must be a citizen of the United States ; every officer of a watch must be a citizen of the United States. These rules have been in existence I believe, since 1792, perhaps not in identical form, but in substance. Mr. Ewart agreed in substance to that statement, though he was not quite sure that they extended so far back as that. He pointed out that the law might change, and that these were mere statutes, and no protection to Great Britain. This Tribunal is deal- ing with facts and not with possibilities. A rule with regard to the right of American register, which has existed for a century, is not likely to be changed. It is no more probable that the requisite for flying the flag of the United States will be minimized than that the qualifications for flying the flag of Great Britain, or of any other country, will be lessened. Until some change comes in that rule, the force of American registry is absolutely unimpaired. One thing more : A vessel on register is entitled to both trade and fish. That fact appears later in some of the quotations that I shall beg the atten- tion of the Tribunal to ; it may either fish or trade, and it is a well- known fact, and it is apparent from the record, that vessels are used for both purposes, — in some portions of the year for one and in some portions of the year for another. To return to the matter of the mystery, as I am pleased to call it. at p. 965, United States Case Appendix, in a communication from Mr. Durand to Mr. Root of the 19th October, 1905 :— " The Minister says that the statement that he has forbidden vessels on American register to fish on the treaty coast is without foundation. He has exercised no interference whatever with such vessels. There- fore, whatever may be the facts in regard to the alleged interference by subordinate officials, about which you spoke to me to-day, it is clear that the statement originally received by you was not correct." At p. 966, Mr. Root, writing to Sir M. Durand says, in a quotation that was read this morning, that he has been informed by Mr. Gard- ner, a representative in Congress from the Gloucester district, that he has received a number of despatches, and that :— " These despatches agree in the statement that vessels on American registry are forbidden to fish on the Treaty Coast. One captain says that he was informed that he could not fish by the Inspector of the Revenue Protection Service of Newfoundland, and several of them 1462 NORTH ATLANTIC COA6T FISHERIES ARBITRATION. that they have been ordered not to take herring by the Collector of Customs at Bonne Bay, Newfoundland. " It would seem that the Newfoundland officials are making a dis- tinction between two classes of American vessels. We have vessels which are registered, and vessels which are licensed to fish and not registered. The licence carries a narrow and restricted authority; the registry carries the broadest and most unrestricted authority. The vessel with a licence can fish, but cannot trade ; the registered vessels can lawfully both fish and trade. The distinction between the two classes in the action of the Newfoundland authorities would seem to have been implied in the despatch from Senator Lodge which I quoted in my letter of the 12th, and the imputation of the prohibition of the Ministry of Marine and Fisheries may perhaps have 883 come from the port officers, in conversation with the masters of American vessels, giving him as their authority for their prohibitions." In another communication, Mr. Root had asked that the New- foundland authorities be instructed that they had no right to make any such distinction as that, p. 971. On the 22nd October, 1905, in the United States Counter-Case Appendix, p. 633, this occurs. This is from Mr. Durand to Mr. Eoot :— " In continuation of my note of the 20th of October regarding the Newfoundland fishery question, I have now the honor to inform you that I have received from the governor of Newfoundland a telegram which seems to dispose of one important part of that question. " His excellency telegraphs that no Newfoundland officer is pre- venting American vessels from fishing on the treaty coast, and that no distinction is being drawn between registered vessels and licensed vessels. " The local officers have been told that American captains must not engage crews on the Newfoundland coast to fish for them, but no objection is made to their using the nets themselves." So that precisely what happened on the Newfoundland coast, from which this entire discussion arose, is not clear. Apparently some- thing happened. In the light of the Act of 1905, which went into effect the previous June, four months earlier, it would seem, with Sir Robert's declarations of the intentions of that Act, that probably there was an intention of preventing the Americans from fishing; but, at all events, if that was the intention, it was receded from by Newfoundland immediately, and it was receded from — it can hardly be said to have been receded from by the British Government, be- cause it never took part in it — and all the effect of that Act, with all its provisions, or at least all that was sustained by the British Gov- ernment, was that American captains must not ship crews there. That seems to be the only point which Great Britain was at that time prepared to put into effect. ABGUMENT OF SAMUEL J. ELDER. 1463 The next thing in the order of dates that I wish to call to the atten- tion of the Tribunal is a mass meeting of the fishermen of the Bay of Islands. Sir Robert Bond was finding trouble with the programme that he was seeking to carry on, and with the Napoleonic policy which he had adopted. A mass meeting of fishermen at the Bay of Islands, some time apparently in October 1905, took place. The only memorandum which I have found concerning that is contained in Mr. Eoot's letter which is at p. 969 of the United States Case Ap- pendix. It will be remembered that the Bay of Islands was where the largest amount of American money was paid. Mr. Root says, in his letter of the 19th October, 1905 :— " There is still another phase of this subject to which I must ask your attention. I am advised that there is a very strong feeling among the Newfoundland fishermen on the Treaty Coast against the enforcement of the Newfoundland Act prohibiting the sale of bait, and that at a recent mass meeting of fishermen at the Bay of Islands, Resolutions were adopted urging the repeal or suspension of that Act, and containing the following clauses: — " ' If our requests are not granted immediately we shall be com- pelled, in justice to ourselves and families, to seek other ways and means to engage with the Americans. " ' We would also direct the attention of his Excellency the Gov- ernor in Council to what took place in Fortune Bay a few years ago when Captain Solomon Jacobs seined herring against the wishes of the people, and the result. If a similar occurrence should take place here, who will be responsible ? ' That is the end of the resolution, and Mr. Root says : — " This resolution indicates the existence of still another source from which, if not controlled, may come most unfortunate results when the American fishermen proceed to the exercise of their Treaty rights, that is, the Newfoundland fishermen themselves acting inde- pendently of their Government." Mr. Root's letter of the 19th October, 1905, had been adverted to, and portions of it read, and I shall have to quote it more fully later, so that I shall not take the time to do so at this moment. I wish merely to call attention to the fact that it has three main branches. In the first place, Mr. Root formulates, in six propositions, what he under- stands to be the treaty rights of the Americans under the treaty of 1818. In the second place, he discusses the Act of Newfoundland of 1905. In the third place, he calls attention to this threat of violence, if our vessels attempt to take fish, and the resolution of the mass meeting which called attention to the old outbreak at Fortune Bay. That letter was answered on the 2nd February, 1906, and I 884 call attention now only to a single clause in the reply, which is to be found at p. 978 of the Appendix to the Case of the United States, in the second paragraph :— « They " 1464 NORTH ATLANTIC COAST FISHERIES ARBITRATION. That is, His Majesty's Ministers — " do not, however, contend that the Act " That is, the Act of 1905— " is as clear and explicit as, in the circumstances, it is desirable that it should be, and they propose to confer with the Government of Newfoundland with the object of removing any doubts which the Act in its present form may suggest as to the power of His Majesty to fulfill his obligations under the Convention of 1818." It seemed as if matters then were in a fair way of adjustment, and certainly would be taken up between Great Britain and the United States in the light of Mr. Root's letter and of this reply of Sir Ed- ward Grey, in a spirit which would compose the difficulties. But Sir Robert had still to be counted with. That you will observe, was the 2nd February, 1906, and on the 10th of May Sir Robert's Government, under his leadership, passed the Act of 1906, which is to be found on the 199th page of the United States Case Appendix. If Sir Robert had been informed of the tenor of this letter, and the indication that His Majesty's obligations under the treaty would have to be carefully considered by Newfoundland, he was apparently not impressed with the force of that suggestion; because, as every- body agrees, the Act of 1906 was infinitely more drastic than that of 1905. It was intended to place the iron hand on the whole matter of the fisheries of the United States and by United States vessels. I am not going to review at this moment that Act of 1906. It was not discussed by Mr. Root in the subsequent correspondence, and for the reason that His Majesty's Government refused to allow that Act to go into effect. And it still awaits the approval of His Majesty's Government. I want to call attention to a statement which Sir Robert himself made, in his speech of the 12th July, 1907, to be found in the United States Counter-Case Appendix, at p. 471, in which he sums up the situation : — " The machinery for a complete control over our own people so as to prevent them from aiding the Americans in catching such fishes was thus provided by this legislature, but this machinery was ren- dered inoperative by the modus vivendi and its promulgation by the senior British naval officer on this station." To the letter of the 2nd February Mr. Root replied on the 30th June, sending the letter to Mr. Reid, who transmitted it to Sir Ed- ward Grey on the 20th July. I call attention again to but a single point in that letter, at least for the present, and that is to be found on p. 978 of the Appendix to the Case of the United States. It has again and again been said, in the course of this hearing, that Mr. Root was insisting upon the rights of vessels. On the contrary, I think Mr. Root makes it clear, in the extreme, that no such claim as ARGUMENT OF SAMUEL J. ELDER. 1465 that is being advanced, or is the basis of the contention of the United States. At the bottom of p. 978 of the Appendix to the Case of the United States, in Mr. Root's letter to Mr. Whitelaw Eeid of the 30th June, 1906, he says : — '' The letter which I had the honour to address to the British Ambassador in Washington on the 19th October last stated with greater detail the complaint in my letter to him of the 12th October, 1905, to the effect that the local officers of Newfoundland had at- tempted to treat American ships as such, without reference to the rights of their American owners and officers, refusing to allow such ships sailing under register to take part in the fishing on the Treaty coast, although owned and commanded by Americans, and limiting the exercise of the right to fish to ships having a fishing licence. " In my communications the Government of the United States objected to this treatment of ships as such — that is, as trading-vessels or fishing-vessels, and laid down a series of propositions regarding the treatment due to American vessels on the Treaty coast, based on the view that such treatment should depend, not upon the character of the ship as a registered or licensed vessel, but upon its being American; that is, owned and officered by Americans, and, there- fore, entitled to exercise the rights assured by the Treaty of 1818 to the inhabitants of the United States." And then, taking up Sir Edward Grey's criticism with regard to his use of that phrase, he calls attention to the fact that Sir Edward's own memorandum falls into the easy method of speaking of the rights of ships ; and then goes on to say : — 885 " Yet we may agree that ships, strictly speaking, can have no rights or duties, and that whenever the Memorandum, or the letter upon which it comments, speaks of a ship's rights and duties, it but uses a convenient and customary form of describing the owner's or master's right and duties in respect of the ship. As this is con- ceded to be essentially ' a ship fishing,' and as neither in 1818 nor since could there be an American ship not owned and officered by Americans, it is probably quite unimportant which form of expression is used." I shall not pause to read further; but I ought to say that that is a repetition of what Mr. Root, in one of his shorter despatches, at p. 971 of the United States Counter-Case Appendix, the 20th October, 1905, said with reference to the same matter. The situation in Newfoundland, and the troubles that Sir Robert was meeting, are well illustrated in some of the newspaper quotations which are given in the Counter-Case of the United States. I shall not read any of them, but refer the Tribunal to pp. 341, 342, and 343, publications between the 3rd and 10th October, 1906, from the " Western Star." The modus for 1906 was entered into on the 6th and 8th October, and the terms of it I will not stop to consider. 1466 NORTH ATLANTIC COAST FISHERIES ARBITRATION. JUDGE GRAY: Can you give us, Mr. Elder, about the time when the right to buy bait — that is what you are speaking about now, under this trading privilege MR. ELDER: Yes, Sir. JUDGE GRAY (continuing) : — was first asserted, and when it was first denied — some little history of what the practice had been since the treaty of 1818, in regard to the purchase of bait and supplies? It has not much history, but such as it has, I should like to have you touch upon. MR. ELDER : I intended to go in some detail into that later on, but let me say, in a general way, that as far back, certainly, as the For- tune Bay incident, the affidavits disclosed that the Americans had always been in the habit of buying bait. That, you will observe, was on what is now the non-treaty coast. And there are other indications throughout the record, which I cannot advert to out of order, which show that that had been the practice. Sir Robert Bond himself states that. Mr. Root states that in his correspondence. The fact was that with the " speeding up," if I may so say, of modern commercial life, of modern industrial life — haste in the matter of fishing, was essen- tial. In order to make a profitable fare it was more convenient, it was more expeditious, to purchase than to take bait; and therefore the American vessels out on the banks, which came down from home with what they call their first baiting — I think I am keeping within the line of the record — with bait captured largely off Cape Cod, were in the habit when the first bait was used up of putting into the near- est port. Of course up to the Treaty of Washington, and excepting the period during which the treaty of 1854 was in operation, the Americans could do nothing else than buy. They had to buy, because they had no right to fish ; and that practise had grown up, and was entirety well established. When the Treaty of Washington was in effect, the American fleet that put in at Fortune Bay believed it had a right to take its own fish, and it was proceeding to do it when it was interrupted by the natives, who were accustomed to the other prac- tice— that of Americans buying from them. I think we must be satisfied that it was the loss of their livelihood, rather than any fail- ure of technical observance, that caused the outbreak. Some of the men who went on board there said : " You cannot take bait." I mean, some of the persons that were engaged in the assault said : " You must buy it of us." The American vessels did buy of them, or some of them did, and others of them put about and went back to Gloucester, or to the New England coast. The same thing was true when it came to the second an the third baiting, that is, the vessels put in some- where to get the bait. JUDGE GRAY: Always into the non-treaty coasts? ARGUMENT OF SAMUEL J. ELDER. 1467 MR. ELDER: No; not always into the non-treaty coast, but usually on the non-treaty coast. If I may call attention to the map, the Tri- bunal will see the reason for that. The banks are nearer the non- treaty coasts than they are to the treaty coasts; and ordinarily they purchase their bait there. The Magdalen Islands, however, which form part of the treaty coast, are a very common place for them to go for bait, I am not so sure, now, but that I am traveling outside of the record ; but I am stating things which I think are entirely famil- iar. Bait was obtained there in very considerable quantities. 886 Now that this matter has been adverted to, I want to call the attention of the Tribunal to the exact situation with ref- erence to this question, and to the importance of the treaty coasts. It will be observed that the west coast and a part of the southern coast of Newfoundland are reserved to the United States, where they may take fish of every kind. We were told — and I* shall have oc- casion to advert to the fact again — we are told that the American right was a most inconsiderable matter; that it had come down to the question of the herring in the last feto years. The strategv of the situation is this: The American rights on the Grand Banks and on Labrador are ones which can be exercised so long as commercial privileges are extended, by going into the non-treaty coasts for bait. But forced back on to our mere treaty rights — the west shore of New- foundland— and the absolute right to take our own bait there be- comes of the utmost importance. It is simply vital to the entire fish- ing question. Sir Robert Bond was right when ]ie said that they hold the key to the situation of the entire cod fishery. This is no question of the matter of a few herring, if Sir Charles will allow me to revert to his suggestion, but it is a question of the final possibility of Ameri- cans conveniently and profitably carrying on the fishery on the banks. It is not a question of herring merely, but it is a question of the preservation of the rights of the United States on that west coast, on that southern coast, and on the coast of the Magdalen Islands, where there has been no trouble at all, to take bait for themselves, when forced back upon strict treaty rights. THE PRESIDENT: That is important on the sixth question, is it not? MR. ELDER : It is very important upon the sixth question ; and like- wise on the seventh, Mr. President. SIR CHARLES FITZPATRICK : Just as a matter of information, what bait do you get on the Magdalen Islands ? MR. ELDER : Caplin, I think, and squid. SIR CHARLES FITZPATRICK: And when have the Americans gone there for bait ? MR. ELDER: For the second baiting. SIR CHARLES FITZPATRICK : Is that in the record ? 1468 NOETH ATLANTIC COAST FISHERIES ARBITRATION. MR. ELDER : No, Sir ; I think you are asking me a question that is outside of the record. I think I can convince Sir Charles that it is a fact ; but, as I say, it is outside of the record, so far as I know. The modus of 190G I have already given the date of, the 6th and 8th October. Some of the discussion which occurred at that time, par- ticularly in the " Montreal Star," is cited in the United States Counter-Case Appendix, p. 344, under date of the 10th October. On the 20th October the fishermen, to a very large number (United States Counter-Case Appendix, p. 347), asked for a publication of this modus. It had not been published, and they did not know what their rights were. No steps had been taken to give them the information which they desired. It is a petition signed by Mr. J. Hayse and eighty-eight others, concerning whom Governor MacGregor says, on the previous page, p. 346 : — " I am not able to speak as to the position and character of those that signed the petition, but I have no reason to doubt that they are, as represented to be, fishermen and residents of Bay of Islands." On p. 346, they say: — " Your petitioners have got to depend solely upon the subjects of the Republic of the United States for the sale of the herrings caught by them. " Your petitioners have learned from despatches which have ap- peared in the public press that a Modus Vivendi respecting the prose- cution of the herring industry at Bay of Islands by subjects of the Republic of the United States and His Majesty's subjects in this Colony, has been entered into between the Imperial Government and Government of the Republic of the United States. Conflicting re- ports have appeared and are appearing in the public press in relation to the terms and conditions of the Treaty, and, in consequence, your petitioners are in doubt as to their rights and obligations under the said Modus Vivendi. " In consequence of the non-publication of the full text of the Modus Vivendi in the local press, your petitioners do not know what their rights and obligations are under the new arrangement. Herrings have already ' struck in ' in the Bay of Islands, but 887 your petitioners are forced to leave their nets on shore and their boats moored and, in consequence, distress and privation in their homes must ensue. Subjects of the United States of America are in the Bay of Islands prepared to carry on the herring industry in conjunction with your petitioners as it has been conducted for years (with the exception of the season of 1905) which has in the past resulted in mutual profit and advantage to both." In the meantime, the Ministry of Newfoundland was making com- plaint to the British Government with regard to this modus vivendi, which perhaps may account for the fact that, at the bottom of p. 347 of the Appendix to the United States Counter-Case, Governor MacGregor stated to Lord Elgin: — " I am requested by Ministers' minute transmit the following message : ARGUMENT OF SAMUEL J. ELDER. 1469 " ' With reference to your telegram of 23rd instant, my responsible advisers desire to say that in the opinion which they have expressed respecting the subversion of constitutional rights and over-riding of colonial statutes they are supported by the opinion of the Minister of Justice and of learned counsel of high standing in England, and they propose, in accordance with the advice of said counsel, to test the question as to whether the modus Vivendi can over-ride existing legislation of the Colony by taking legal proceedings against colonial fishermen who have engaged themselves and proceeded in violation of the law to prosecute the herring fishery.' " On the 30th October, in the House of Commons, inquiry was made of the Government, which made reply as appears on p. 348 : — " Mr. Churchill, in reply, said : ' The agreement to which I under- stand the honourable Member to refer is a temporary arrangement- intended to avoid the occurrence of untoward incidents during a discussion which has become necessary in consequence of action which the Colonial Government has taken in spite of the representations of His Majesty's Government. The usual course has been followed in regard to this temporary agreement of consulting the Colonial Gov- ernment at every step ; but the ultimate responsibility for the action taken by Great Britain in order to give eifect to her treaty engage- ments with foreign powers necessarily rests upon His Majesty's Gov- ernment.' " On the 30th October of that same year, instead of the publication of the modus, so that fishermen could know, and Americans coming to the coast could know, what rights they had, there was a publica- tion of a notice of the old Bait Act, without giving any date for the Act itself. That appears at pp. 348 and 349 of the Appendix to the Counter-Case of the United States. The confusion caused to fishermen on that publication is pointed out by Captain Anstruther at a later page, the letter beginning at p. 361 of the United States Counter-Case Appendix. On the 9th November of that year Lord Elgin makes a reply to Governor MacGregor concerning the matters which have been called to his attention (United States Counter-Case Appendix, p. 352) :— " Your telegram. 3rd November. As your Ministers are well aware, the Modus Vivendi was arranged with a view to the prevention of action which would embitter the discussion proceeding between His Majesty's Government and the Government of the United States as to the proper meaning of the treaty of 1818— a discussion rendered inevitable by the policy of your Ministers. " With full knowledge of these facts your Ministers have delib- erately decided to take action which may immeasurably increase the difficulty of the task which Newfoundland has imposed upon Great Britain. In these circumstances I have to inform your Ministers that, in endeavouring to frustrate the purely temporary measures which His Majesty's Government consider most likely to lead to a successful termination of the negotiations with the United States, they incur a grave responsibility which His Majesty's Government decline to share. His Majesty's Government will endeavour in the 1470 NORTH ATLANTIC COAST FISHERIES ARBITRATION. future, as in the past, to defend the claims of Newfoundland under the treaty of 1818 to the best of their ability, but if the difficulties in their way become increased your Ministers must bear the blame." [Thereupon, at 4.25 o'clock p. m., the Tribunal adjourned until Thursday, the 21st July, 1910, at 10 o'clock a. m.] 888 TWENTY-SEVENTH DAY: THURSDAY, JULY 21, 1910. The Tribunal met at 10 o'clock A. M. THE PRESIDENT : Proceed, Mr. Elder, if you please. MR. ELDER : With the permission of the Tribunal, I should like to recur to some questions that were asked toward the close of the Tues- day afternoon session. I find, in reading over the enquiry which Judge Gray made, that I did not correctly apprehend the point of it, and I will call attention to it for that reason. The question was: — " JUDGE GRAY : Can you give us, Mr. Elder, about the time when the right to buy bait — that is, what you are speaking about now, un- der this trading privilege " MR. ELDER : Yes, Sir. " JUDGE GRAY (continuing) : — was first asserted, and when it was first denied — some little history of what the practice had been since the Treaty of 1818, in regard to the purchase of bait and supplies? It has not much history, but such as it has, I should like to have you touch upon." I did not notice the force of the words " the right to buy bait," and when it " was first asserted, and when it was first denied." I ought to say that the United States does not understand that any question is involved in this case concerning a right to buy bait under the treaty. We do not conceive that there is any question presented to the Tribunal which raises that issue, and for that reason we have not prepared the Case or Counter-Case with reference to any history of the assertion of any such right, or of the denial of any such right. Apprehending that the question related generally to the subject of the importance of bait, I went on, on Tuesday afternoon, somewhat out of order, to speak of the importance of the bait supply to the United States fishermen, and to point out the completeness of the arrangement, even though it was a modicum of what the United States had previously had of the fishery in the colonial waters. The United States fishermen coming from the south-west there, pass up through the Gut of Canso to the Magdalens and to the banks at the mouth of the St. Lawrence, around the Island of Anticosti, or pass outside of Cape Breton, and so on, having the west coast of New- foundland on their starboard, and the whole line of the Labrador fishery to the north. They have found, as we believe, and as will be ARGUMENT OF SAMUEL J. ELDER. 1471 pointed out more fully later, the possibility of bait supply, both at the Magdalens and on the west coast of Newfoundland, of the utmost importance with reference to the general fisheries on the banks, as well as to the Labrador fishery. The learned arbitrator from Canada — while I was speaking of that, and after I had called attention to the fact that perhaps I was travel- ling a little outside of the record, as to the last part of what I was say- ing— asked me the question which appears on p. 886 of the record : " SIK CHARLES FITZPATRICK : Just as a matter of information, what bait do you get on the Magdalen Islands ? " MR. ELDER : Caplin, I think, and squid. "SiR CHARLES FITZPATRICK: And when have the Americans gone there for bait? " MR. ELDER : For the second baiting. " SIR CHARLES FITZPATRICK: Is that in the record? " MR. ELDER : No, Sir ; I think you are asking me a question that is outside of the record. I think I can convince Sir Charles that it is a fact ; but, as I say, it is outside of the record, so far as I know." I am not quite sure whether the last question referred to the sec- ond baiting, the reply having just been as to the second baiting. I apprehend that it SIR CHARLES FITZPATRICK : It referred to baiting only. MR. ELDER : But if that had been the idea at the moment, I should have been warranted in saying, I think, not only the second but the third baiting, and the experts who have been called here from the other side, at the suggestion of the Tribunal, upon practical issues I think will be able, if the Tribunal cares to enquire of them, amply able, to justify the entire statement. 889 If, however, the question was rather broader, and covered all the bait fish to be found on the Magdalens, I would refer to one or two things, without going in extenso into the matter, to United States Counter-Case Appendix, p. 538. SIR CHARLES FITZPATRICK: I do not think there can be any doubt that there is caplin there. MR. ELDER: Oh, yes. It will save my reading it then till another time, and I will speak merely of the Canadian contention before the Halifax Tribunal, in which they were at the moment discussing (p. 538 of the United States Counter-Case Appendix) the liberty to land for the purpose of drying nets and curing fish. I read from the third paragraph: — " The Convention of 1818 entitled United States citizens to fish on the shores of the Magdalen Islands, but denied them the privilege of landing there. Without such permission the practical use of the inshore fisheries was impossible. Although such permission has tacitly existed, as a matter of sufferance, it might at any moment have been withdrawn, and the operations of United States fisher- 92909°— S. Doc. 870? 61-3, vol 10 37 1472 NORTH ATLANTIC COAST FISHERIES ARBITRATION. men in that locality would thus have been rendered ineffectual. The value of these inshore fisheries is great; mackerel, herring, halibut, caplin, and launce abound, and are caught inside of the principal bays and harbors, where they resort to spawn. Between three hun- dred and four hundred United States fishing-vessels yearly frequent the waters of this group, and take large quantities of fish, both for curing and bait. A single seine has been known to take at one haul enough of herrings to fill 3,000 barrels. Seining mackerel is simi- larly productive." The wonderful productiveness of those waters at the Magdalens, and the marvellous catch that is made there, render the statement that Sir James Winter made with regard to the barrenness of the west coast in the matter of fish somewhat of a physical problem. That there should be such vast numbers as the record shows at the Magdalens and all up through the coast of Labrador, and yet that there should be nothing for the Americans to catch on the west coast seems at least strange ; but that I shall advert to later. I may, at a later date, speak of the "Mascot," in 1886 (United States Case Appendix, pp. 808, 881, and 839). She went to Port Amherst for bait and a pilot, and, as the captain stated, he was warned that he could not fish there, and that he could not buy bait there. THE PRESIDENT : Port Amherst is on the Magdalen Islands ? MR. ELDER: It is on the Magdalen Islands here (indicating on map) : I beg pardon, Sir. I may have been causing some confusion by using the fishermen's* pronunciation — " The Madeleens." JUDGE GRAY: What year was that, Mr. Elder? MR. ELDER. It was in 1886, and the statement of the collector of the port which was forwarded by the Minister of Marine and Fish- eries of Canada JUDGE GRAY: If you will permit me to interrupt you there: Per- haps I was not quite accurate in speaking, in view of the position of the United States, of the assertion of the right on the one hand and the denial of the right on the other, with reference to what the prac- tice had been in regard to buying bait, or securing bait by American fishermen prior to the statutes. Of course the statutes themselves would indicate that there had been a practice prior to the prohibition. MR. ELDER: Yes. JUDGE GRAY: There is nothing in the record, you say, to show anything MR. ELDER : One would be very brave to say that there is anything which is not at some place in this record; but as I carry it in my mind, I recall very little concerning it. If we can find anything, I shall be very glad to call attention to it; but I fancy that your Honour has summed it up in substantially its present situation. The " Mascot," as I say, was warned off, and a warning notice was served upon it which contained both a prohibition of fishing and of ARGUMENT OP SAMUEL J. ELDEB. 1473 'buying bait. The collector of the port, however, made an affidavit or wrote a letter to the effect that he never warned the captain of the " Mascot " that he could not take fish on the Magdalens, but, on the contrary, pointed out to him where he could take fish under the treaty of 1818, and merely prohibited his buying bait there, not denying his right to catch his bait there. For our purpose at this moment it is, of course, entirely unimportant which was true, because it concedes the fact that Americans resorted to the Magdalens 890 at that time for bait; that the bait was there which could be purchased or taken, and also was an emphatic admission, not only by Canada but by the British Government, to whom appeal had been made, confirming the right of the Americans to take bait and fish inshore on the Magdalens, a fact which again is of importance on Question 6. I do not know but that I have already referred to the pages where that incident is to be found. At all events, I will state now that it is in the United States Case Appendix, pp. 808, 881, and 839. And we might further say that Canada, by its legislation, issues licenses to buy bait all up and down the coast The last revised statutes of 1906, to be found in British Case Appendix at p. 144, provide for the issuance of licenses to buy bait anywhere on the Atlantic Coast of the Dominion of Canada. I now revert to the historical statement, which I was seeking to make, of the last few years before this arbitration was determined upon. And I call attention to the situation in Newfoundland between the Government and the home Government in England as evidenced by a letter or despatch from Governor MacGregor to Lord Elgin, of the 1st November, 1906, to be found in the United States Counter- Case Appendix, at pp. 349 and 350. It seemed that it was the prac- tice for the Colonial Governor to approve the minutes of the Council ; and in declining to approve the minutes of a meeting of the Council, Governor MacGregor points out the reasons. The extract to which I wish to invite the attention of the Tribunal is near the bottom of the page, beginning in the middle of the first paragraph : — " I am sure the members of the Executive Council will deem it reasonable that pending reference to the Secretary of State I should ask that while I approve the minutes generally, a copy of this paper with the following qualifications should be entered in the Minute Book of the Council : — " 1. The Minute of Council of llth October conveyed to the Sec- retary of State by telegraph on the 12th October. "(a) The statement that His Majesty's Government has ignored the representations and entreaties of this Government is, it seems to me, so expressed as to be liable to be misunderstood. The representa- tions of this Government are certainly entitled to very careful and respectful consideration; and personally I believe they have received the close and earnest attention of His Majesty's Government, in the anxious desire to give effect to them as far as the foreign relations of the Empire made this practicable. 1474 NORTH ATLANTIC COAST FISHERIES ARBITRATION. "(6.) I must refrain from committing myself to any opinion as to whether the arrangement concluded by His Majesty's Government is subversive or othenyise of the constitutional rights of the Colony ; or whether any constitutional rights of the Colony can legally or expediently nullify or neutralise the arrangements that His Majesty's Government finds it necessary to enter into with foreign nations in the interests of the Empire as a whole ; for I cannot fail to recognise the fact that this question has another aspect than that looked at from the point of view of constitutional rights in a rigid legal sense. There is the important consideration of Imperial or public expedi- ency, and I feel confident that the experience and judgment of the Members of the Executive Council of this Colony will enable them to concur with me that this factor in the problem is a weighty one, and one that must of necessity be most carefully considered by His Majesty's Government. " 2. The minute of Committee of Council of the 25th October communicated to the Secretary of State by telegraph on the 26th October. "(a.) In this Minute the Committee of Council express the inten- tion of taking legal proceedings against Colonial fishermen that have engaged themselves to Americans for the herring fishery. As the modus vivendi seems to me to pledge His Majesty's Government to the Government of a foreign Power that such engagements shall not be penalized, I am not able, without instructions, to subscribe approval to this proposal. " I understand that the proceedings proposed would be confined to Colonial fishermen, and I entertain no doubt that in the action taken American subjects and property would be left unmolested. But even with that reservation I cannot but see that the effect of such pro- ceedings might be very embarrassing to His Majesty's Government in conducting the negotiations now pending with the Government of the United States, and it is on this ground that I have concluded that I should not give an unqualified approval to this Minute without being authorised by the Secretary of State to do so." He goes on to point out other things in the action of the Council which he cannot approve. I am not going into the detail of this con- troversy of this and the following year, but will call attention here and there to indicative passages. On the 9th November, as will be seen in the United States Coun- ter-Case Appendix, at p. 352, Lord Elgin sends this cable to Governor MacGregor : — " Your telegram, 3rd November. As your ministers are well aware, the Modus Vivendi was arranged with a view to the prevention of action which would embitter the discussion proceeding 891 between His Majesty's Government and the Government of the United States as to the proper meaning of the treaty of 1818 — a discussion rendered inevitable by the policy of vour -..-•., * j • j Ministers. " With full knowledge of these facts your Ministers have deliber- ately decided to take action which may immeasurably increase the difficulty of the task which Newfoundland has imposed upon Great Britain. In these circumstances I have to inform your Ministers that, ARGUMENT OF SAMUEL J. ELDEB. 1475 in endeavouring to frustrate the purely temporary measures which H is Majesty s Government consider most likely to lead to a success- ful termination of the negotiations with the United States, they incur a grave responsibility which His Majesty's Government decline to share. His Majesty's Government will endeavour in the future, as inf io?oPf Sy°udefen? ?h? cl?ims of Newfoundland under the treaty of 1818 to the best of their ability, but if the difficulties in their way become increased your Ministers must bear the blame." Notwithstanding that situation, the Newfoundland Government proceeded to put its course to the test, and on the 12th November, three days after the cable was received, and eleven days after the Governor's refusal to approve the minutes, the arrest of Crane and Dubois took place, for putting herring on board the " Ralph L. Hall," an American schooner, to which they claimed to be engaged as seamen. A rather amusing account of that trial appears in the "Daily News," at pp. 354 to 360. The " Daily News " was evidently an op- position paper, and took some pleasure in pointing out the attitude which the Government and the magistrate who tried the case were in, fining these men 500 dollars for putting bait on board a vessel — in effect for hiring on board an American vessel, at the same moment that this same magistrate was charging an American millionaire — concerning which somewhat maligned body of our citizens remarks have been made — 30 dollars for deliberately having gone into the woods and shot game, moose, and caribou, I think, for a very consid- erable period of time; the magistrate travelling down the railroad track for the purpose of collecting the 30 dollars from the American millionaire at the moment of fining these poor fishermen this large amount of money. As to the questions of law which were tried, I will submit observations later, in the proper order of time. Captain Anstruther, of His Majesty's service, was on the coast at this time, having been delegated by the British Government to go to the Bay of Islands and to assist in placating the situation, and in preserving peace; he has made a number of reports which, it seems to me, are most instructive of the situation at that time. I wish to read just a word on p. 362 of the American Counter-Case Appendix, from his report to the Admiralty. He was the senior naval officer on the Newfoundland station. On p. 362, in the middle of the 5th paragraph, speaking of the magistrate with whom he had had a talk, he says : — " He also gave me to understand that the view of the Newfound- land Government is that the Imperial Government had trenched upon the rights of Newfoundland by agreeing, in the Modus Vivendi, that certain portions of the Act of 1905 ' will not be regarded as apply- ing to American fishing vessels,' and that this Public Notice is spe- cially designed to bring matters to an issue. It was further hoped that its publication might prevent any more Newfoundland men 1476 NORTH ATLANTIC COAST FISHERIES ARBITRATION. from shipping in the American schooners and thus cripple the Amer- ican fishing almost entirely, or that even if the men did ship they could be harassed and hampered under the Act quoted, and that this might hinder the American fishermen to some extent." The notice to which he refers, is the one to which I referred on Tuesday afternoon as having been issued by the Newfoundland Government, giving a statement of the laws then in force, but with- out giving the dates of the laws, and without a word of mention of the modus vivendi; and the magistrate's comments to the captain upon that are therefore intelligible : — " He showed me a newspaper in which it was frankly avowed that the intention and hope was to embarrass the British Government in their relations with the United States. " The date of the passing of the Act being omitted in the Public Notice, it will be difficult for the ordinary fisherman to read it in its entirety, if they wish to — perhaps some of the older men may know that the extracts are from the Bait Act of 1889. I hear that the Newfoundland fishermen have been told locally that they will render themselves liable to a penalty of $1,000 or 12 months in the Peni- tentiary if they ship on board American schooners. As 40 or 50 more American schooners are said to be coming here, whose skippers will probably expect to fill up their fishing crews with Newfound- land fishermen either from Bonne Bay or Bay of Islands, it is very important to both Newfoundlanders and Americans to know exactly how they stand." On the 17th November of the same year, 1906 (United States Case Appendix, vol. ii, p. 1002), Governor MacGregor transmits the posi- tion of his Ministers : — " Referring to your telegram of 9th November, Responsible Min- isters " 892 That is the one that I have just read — " Responsible Ministers send long reply, summary of which follows : — "(1) They do not see that any reason existed to justify modus vivendi, which they think was unnecessary. They refer to your tele- gram of 8th August, which stated His Majesty's Government were informing United States Government that His Majesty's Govern- ment were prepared to negotiate for provisional arrangement, and would shortly submit proposals, from which Responsible Ministers infer that engagement to enter into modus vivendi was actually made without reference to opinion of this Government. Responsible Ministers saw they could not prevent the arrangement, but set forth their views and pointed out that modus vivendi not necessary, and guaranteed to maintain peace if His Majesty's Government did not interfere with enforcement of statute law against local fishermen. Under the circumstances Responsible Ministers find it impossible to admit any responsibility for mod/ua vivendi" ABGUMENT OF SAMUEL J. ELDER. 1477 And the third paragraph : — "(3) Responsible Ministers hold opinion that it is their duty to this people to test validity of an arrangement apparently intended to render nugatory law of Colony, and set aside its constitutional rights. In reply to your telegram 8th August, Responsible Minis- ters 10th August, referred His Majesty's Government to despatch 2Gth March, 1857, which declares consent of Newfoundland essen- tial preliminary to any modification of territorial rights or mari- time rights, and five days later Responsible Ministers dealt fully with situation and suggested alternative to proposed modus vivendi. "(4) Object of Responsible Ministers in instituting legal proceed- ings under Bait Act as custodians of rights and privileges of public is to test validity of arrangement which, in their opinion, is infringe- ment of constitutional rights of this Colony." JUDGE GRAY : Who are the " Responsible Ministers," as distin- guished from others? MR. ELDER. I assume that it is the entire body of the Ministry. SIR CHARLES FITZPATRICK : That is a very well-known term. JUDGE GRAY : Is it ? SIR CHARLES FITZPATRICK: Oh, surely. The Responsible Minis- ters of the King are the Ministers in office. JUDGE GRAY: I thought perhaps that the iteration of that phrase was suggested by the despatch of Lord Elgin. SIR* CHARLES FITZPATRICK : The Responsible Ministers are the ex- ecutive ; that is all ; the Cabinet — or executive. JUDGE GRAY : Are they so spoken of as — " Responsible Minis- ters " — in common parlance ? SIR CHARLES FITZPATRICK: The executive is made up of all the Ministers JUDGE GRAY: Exactly. SIR CHARLES FITZPATRICK: The Responsible Ministers are the Ministers of the King JUDGE GRAY : And they are spoken of in that way in common par- lance? SIR CHARLES FITZPATRICK : Invariably. DR. DRAGO : And are they the only responsible ones ? MR. ELDER : Mr. Root calls my attention to the fact that the use of this phrase indicates, where it is used in Great Britain, that the opinion of the Responsible Ministers is being given rather than the opinion of the King; and that where it is used in Newfoundland it means the opinion of the Ministers, and not of the Governor. In a report of the 29th December, 1906, of Governor MacGregor to Lord Elgin, as to the number of people employed, which it will not be necessary to turn to (United States Counter-Case Appendix, p. 366) it is stated that 653 Newfoundlanders shipped outside the 3-mile limit; 23 shipped at St. Pierre. 1478 NORTH ATLANTIC COAST FISHERIES ARBITRATION. THE PRESIDENT : What is that page, Mr. Elder ? 893 MR. ELDER: P. 366 of the United States Counter-Case Ap- pendix. I was referring to it merely as to the number of people who were employed. It is the fourth paragraph of that pas- sage— the paragraph marked 4 : — " Shipped beyond three-miles 635 men ; engagement at St. Pierre, 23; at Sydney, 77." In another despatch, at p. 376, he gives the same figures, except as to Sydney, and there he says that there were 250 shipped at Sydney and elsewhere. That is one of the early references to the practice which was coun- tenanced under the modus vivendi between the two Governments, the colony of Newfoundland having passed a statute prohibiting its inhabitants from shipping on board American vessels, and penalizing American vessels if they shipped or attempted to ship Newfound- landers. The practice grew up of hiring men just outside the 3-mile limit, just beyond the jurisdiction of the colony; and that practice, in each one of the arrangements by modus, was countenanced, in one instance it being expressly put in, that the dignity of the colony should be preserved by their being shipped well outside the 3-mile limit. In reading the record the Court will see the bitterness of feeling which was caused among the fishermen against the Government by a policy which compelled them, oftentimes in violent weather, and, at the risk of their lives, to go practically out to sea, in order to ship on board vessels on which they had been accustomed to serve for many years. I will not pause to go into that further. Again, I wish to refer to the report of the senior naval officer of the 10th December. He made a number of reports during that fall with regard to the situation, which are all of them instructive. At pp. 371 and 372 of the United States Counter-Case Appendix, is to be found the report of the 10th December. In the first paragraph of the report I want to call attention to one thing, which is pre- liminary. Taking the first three questions, namely, the relations of the Newfoundland fishermen, of the American fishermen, and of the Canadian fishermen, he says, as to the situation at that time: — " Taking the first three together, I find that the Newfoundland men were quite satisfied with the system which obtained till the begin- ning of last year, under which they caught herring with their own appliances, and sold them to whomsoever they chose. Since they have been forbidden to sell them to Americans, some of them sell to Canadians, or to local buyers, as they may have done before, whilst others, determined to work for their old comrades — the Americans — shipped on board American schooners in spite of all obstacles, and followed their calling in, virtually, the same manner as they had always been accustomed to ; their contention being, in the first place, ARGUMENT OF SAMUEL J. ELDER. 1479 that the Canadians and others could not take all the herring, and that, therefore, this was the only means left to them of making a living; in the second place, that they had always been in the habit of working with Americans, and that they did not see why they should not con- tinue to do so, if they wished to. "There are about 1,200 fishermen belonging to Bay of Islands and Bonne Bay, besides a few who come from neighbouring places on the West Coast, and from other parts of the Island to engage in this lucrative industry. About half these men prefer to work with, or for, Americans, one reason being that whereas, formerly, herring fishers worked under a system of barter (as cod fishers do to this day), the Americans were the first to inaugurate a system of pay- ment cash down, which compelled everyone else who wished to com- pete to follow suit. This influx of ready money engendered a sense of freedom and a spirit of independence amongst the herring fishers such as can never be felt by men working under a truck system. The men are grateful for this emancipation from former conditions, they are loth to lose the benefits they have gained, and they would risk anything to avoid a return to the old regime. ' Another reason is that the Americans are very freehanded in their dealings with the men, and sometimes spontaneously raise the price to be given per barrel without any demand from the men at all, thus keeping up a wholesome spirit of competition against each other, and against rival buyers, which is all to the pecuniary advan- tage of the local fishermen." " Finally, the Americans are credited with feeding their men better." At United States Counter-Case Appendix, p. 376, in an extract from one of the local papers, there is an account which I shall not take the time to read, entitled, " Bond v. Anstruther." It turned out that Sir Robert Bond, in addition to the complications which were coming upon him, felt that Captain Anstruther had acted most im- properly in his conduct towards the fishermen of the Bay of Islands, which had resulted in the peaceful season of 1906, and he had made it a matter of discussion upon the floor of Parliament, and this article is in a way a reply, or at least it is a commentary. 12th February, 1907. there was brought before the Newfoundland Assembly a protest against the modus vivendi of 1906, in 894 which it was proposed to formally record the dissent of the Government to the conduct of Great Britain. The account begins at p. 464 : — k' Speech of the Right Hon. Sir Robert Bond. K. C. M. G., P. C., Premier, on the motion to go into committee of the whole on address to the Secretary of State for the Colonies, in relation to the modus vivendi entered into between His Majesty's Government and the Government of the United States of America respecting the fisheries of the west coast, February 12, 1907." At p. 466, after setting out in detail the establishment of consti- tutional government in Newfoundland, he goes forward with his 1480 NORTH ATLANTIC COAST FISHERIES ARBITRATION. statement concerning the action of the British Ministers, the last paragraph : — " Now, then, having briefly reviewed our rights and privileges under responsible government, and also the limitations that the Crown has placed upon the same, I would observe that if we, as colonists, had been guilty of asserting rights which do not attach to us and had persisted in disregarding solemn obligations contained in treaties, or in setting at nought imperial acts of Parliament, then we should have forfeited our rights under the constitution and have de- served to be overridden. But even under such conditions any curtail- ment or suspension of our laws could, I submit, only take place at the hands of the Parliament of Great Britain, for Parliament alone has the power to limit or annul the laws of this colony when once ap- proved by the Crown. If this is not the correct position, and His Majesty's Ministers have the power by a diplomatic arrangement to set aside the statutes of this colony and to dispose of its resources, then the constitution of which we have been so proud is something totally different from what we have believed it to be, and in very fact responsible government in the colonies is a mere delusion. " If, on the other hand, it shall be shown that His Majesty's Minis- ters had not lawful authority to deal thus with this colony, and that the modus vivendi was an instrument entirely ultra vires within the jurisdiction of this colony, then it is clear that an attempt has been made to overide the constitutional rights of this people, and this gov- ernment was justified in resisting each attempt by every constitu- tional means at its disposal." And at the bottom of p. 467, again, as to the spirit that underlay this entire crusade : — " The people in Newfoundland, like those of Canada, desire to use the right to withhold a supply of bait as a means of inducing the American Government to remove the import duties on British fish." And he cites Des Voeux to the Colonial Office, 4th January, 1887, with approval, quoting: — "American fishermen are protected in the markets of the United States, which take all their products, by a duty of 56 cents per quintal, which is almost prohibitive to the results of British in- dustry ; " He goes on at p. 469 to recite the failure of the Hay-Bond Treaty, or rather to show that it was still before the Senate — at the bottom of p. 469 :— " In 1902 I was in England in connection with His Majesty's coro- nation and the conference of colonial premiers, and after those func- tions were over I availed myself of the opportunity of pressing upon the then Secretary of State for the Colonies — Mr. Chamberlain — the unfairness of the treatment that had been meted out to us a colony." I think I need not read it all. He says that he was authorised to go to Washington, and the result was the Hay-Bond Treaty; and then, at the top of p. 470 : — ARGUMENT OF SAMUEL J. ELDER. 1481 " That convention was held in abeyance for some considerable time by the I oreign Relations Committee of the United States of America, but m the year 1904 it was reported by that committee to the United States Senate, where it was virtually amended out of existence at the instance of the fishery interests of Gloucester." At p. 470 he recites again that the Americans obtained bait by purchase, the next paragraph but one to the last on that page:— "The method adopted by American fishermen of conducting the herring fishery on the west coast of this colony had ever been by pur- chase or barter. The Bait Act, as it stood, enabled us to prevent a continuation of that practice " The Tribunal will remember that is the Act of 1887 — " but the government appreciated that the Americans would attempt to overcome the difficulty occasioned by the enforcement of the Bait Act by engaging local fishermen to form part of their crews and to catch the fish they required. It was for the purpose, then, 895 of preventing this evasion of the spirit and intention of the Bait Act that the clause that I have referred to was inserted in the act of 1905." At the bottom of p. 471 he still further criticises the modus vivendi : — " The machinery for a complete control over our own people so as to prevent them from aiding the Americans in catching such fishes was thus provided by this legislature, but this machinery was ren- dered inoperative by the modus vivendi and its promulgation by the senior British naval officer on this station." He calls the modus vivendi an extraordinary diplomatic arrange- ment, and the criticism runs on to p. 472, in which there is a repeti- tion of the charge that it was contrary to the spirit of their consti- tution : — " It has been exceedingly distastefiil and painful to my colleagues and myself to oppose the action of His Majesty's Government, and it was only a firm belief in the truth of the maxim 'He serves the King best who directs his endeavours to the preservation of the rights and privileges of the King's subjects ' that nerved us for the per- formance of the very unpleasant duty that developed upon us as ministers of the Crown. We regard the modus vivendi as oppressive, as well as subversive of the constitutional rights of His Majesty's subjects in this colony. For us, therefore, to passively bear with oppression committed within the radius of our jurisdiction would be, in -truth and reason, for this government to be an accomplice in the abuse." At the bottom of p. 499, after he had been discussing again, as I lecall it, the American right to the bays on the west coast, he goes on to explain what learned counsel in this case will have to explain if Question 6 is further argued: — "I have seen an attempt made to argue that the terms of the Washington Treaty and the Treaty of 1818 were identical, and that 1482 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the contentions and admissions of the British counsel acting on the Halifax Commission of 1877 must have an important bearing on the construction of the Treaty of 1818. I cannot conceive how any such view can be seriously put forward. The Treaty of Washington was negotiated and entered into in order to secure to the contracting parties privileges in excess of those enjoyed by virtue of the Treaty of 1818. The Halifax Commission was an international arbitration convened to decide whether the United States had received a greater benefit under the Washington Treaty than had Great Britain. The British had claimed a large money consideration for privileges which they alleged the United States had enjoyed under the Washington Treaty in excess of what the British had. All kinds of loose argu- ments could be and were used by counsel on both sides, but surely it will not be seriously contended that the arguments of counsel before the Halifax Commission can affect the interpretation of the Treaty of 1818. The lawyers engaged on that case were doing their best in the interests of their respective clients, and it is not improper or difficult to conclude that the respective counsel would have argued right opposite to what they did if retained by the opposite side." SIR CHARLES FITZPATRICK : Sir Robert Bond is not a lawyer. MR. ELDER : No ; he describes himself in one of his speeches as " a humble layman." " The Treaty of 1818 was one which gave foreigners certain rights on British soil, rights which should be strictly construed, and no ad- mission, or statement, or argument used by counsel on the Halifax arbitration could, I submit, have the smallest bearing on the inter- pretation of the treaty." I am not quite sure that I am correctly informed, but I have been told that our good friend Sir James AVinter was one of those counsel at the Halifax Tribunal concerning whom this criticism was made; I am told that that statement is an error; I am very glad he is re- lieved from that criticism. I mentioned it, however, for the purpose of hoping that the distinguished counsel of Great Britain and of Can- ada and of Newfoundland, in this case, would not be exposed to the same criticism to which counsel for Newfoundland in the Halifax Case were exposed. February 26th, 1907 (United States Counter-Case Appendix, p. 380) is a petition of 1,000 fishermen of the Ferryland district on the south coast. The Ferryland district is the district along here (indi- cating on map) from Conception Bay down, and therefore some- what removed from the treaty coast, but of course affected by the dep- rivation of the right to sell bait to Americans for use on the banks, and also to ship on board American vessels : — " That your petitioners are engaged in the cod fishery on the south- ern shore, and until two years ago added to their earnings from that avocation by the sale of bait to American vessels." 896 You will observe that that is just the other side of the penin- sula which is formed by Fortune Bay on one side and Concep- ARGUMENT OF SAMUEL, J. ELDER. 1483 tion and Trinity Bay on the other, the Fortune Bay which came into prominence in connection with the question of bait in 1836 : — " That this bait business was one which enabled your petitioners to earn considerable money, and that the visits of these American ves- sels resulted in the circulation of considerably larger amounts to the sale of ice, stores, fishing outfits, shipping men, and proving a means of circulating at least $40,000 per year to the people of this district. " That two years ago the Government decided upon excluding these American vessels from our waters, in the mistaken belief that by so doing they would injure the American fishermen, whereas they only succeeded in injuring the people of this country. " That not alone have the people of this district been injured directly by the suspending of this intercourse with the Americans, but that the people of the northern districts "- Which I assume must include the other side of the island — " have been injured to an equal extent by the American fishing ves- sels which were excluded from this section of the coast, now invading the Labrador waters where our northern fishermen always previously carried on their fishery without interruption. " That during the two years this policy has been enforced 50 or 60 American vessels fishing on the Grand Banks and in Labrador waters, have brought home to Gloucester larger catches than they secured before." And on p. 381 :— " That these American vessels have been securing large quantities of bait from freezers in Canadian ports, which are stocked with herring taken around Magdalene Islands and Nova Scotia coasts to use for their spring supply." That that profit has become very great to the Nova Scotia ports which are under the jurisdiction of Canada, and, finally:— " That your petitioners believe that the best interests of the people of this district and the Colony in general would be served more by abandoning the present policy and returning to that enforced up to 1904. And that your petitioners, therefore, humbly pray that this Legislature in its wisdom will terminate the present policy of hos- tility towards the American fishermen, and return to that under which the people of this district and other districts of the Colony were able to earn food for their families by carrying on legitimate traffic with the Americans, instead of being, as they are now, obliged to emigrate to foreign lands to obtain a livelihood denied them at home." I will not take time to read the rest of the petition. I alluded on Tuesday to the fact that Sir Robert Bond attempted to kindle a back-fire on the British Government by communicating this speech of the 12th April against the modus vivendi to at least one British newspaper, and of course the fair assumption is that it was much more generally transmitted. United States Counter-Case Appendix, 1484 NORTH ATLANTIC COAST FISHERIES ARBITRATION. p. 401. This is an extract from the " Birmingham Daily Post," of the 9th March, 1907:— " Sir Robert Bond, the Prime Minister of Newfoundland, has sent us a document containing a verbatim report of a speech delivered in the House of Assembly protesting against the Fisheries arrangement with the United States. It is a verbose and contentious production which can hardly have failed to have had a mischievous effect upon the minds of the colonists. We regret that he should have found himself unable to accept the decision of the Imperial Government without taking a course calculated to foment resentment in the island ; " On the 26th March, 1907, there was what is described as being a " monster mass meeting of fishermen " at the Bay of Islands, which certainly seems to have been very largely attended. A description of it is found at pp. 384-5 of the United States Counter-Case Appen- dix. It was presided over by a fisherman: — " Other speakers took the floor, and freely expressed themselves on the fishery question, and clearly showed their indignation over the action of the Bond Government in enforcing such stringent regula- tions on the fishermen. Here is the resolution, and also the address : " ' Whereas we, the people of Bay of Islands, view with alarm the policy of the Government of this Colony regarding our Jherring fish- ery; and, " ' Whereas, in the interests of our families, we feel that it becomes necessary for us to protest against said policy, and to appeal to our Gracious Majesty the King for protection and preservation; be it therefore " ' Resolved,' " 897 And they appealed directly to the King. They say also down on that same page : — " Without this American market, the fishery would be of little or no benefit to us, as the demand for the fish in other directions, on the same or as good terms, is comparatively nothing." They state on p. 386 :— "We beg to state most emphatically that the people of this coast are unanimous in condemning this policy as one which is injurious to the best interests of the Colony as a whole, and ruinous to the liveli- hood of the people of this Western Coast." On p. 387 of the Appendix to the Counter-Case of the United States is an account of the same meeting; it is from the "Daily News " of St. John's. I will read a word from the bottom of p. 388 : — " Through this anti-American policy we have been placed in a posi- tion which is humiliating to all concerned. " It is humiliating to our fishermen, as it has transformed them from a position of independence to a position of servitude, and alleged illegal servitude at that." ARGUMENT OF SAMUEL, J. ELDER. ' 1485 I take it that this is a different form of servitude from that which has been discussed before this Tribunal — " It is humiliating to Newfoundland, because it places us in the position of the frog in the fable, or of the dog who idly bayed at the moon. " It is humiliating to the United States, because rights that have been unchallenged for generations have been wantonly disputed and relationships, mutually satisfactory, have been rent asunder." JUDGE GRAY: What was the page? MR. ELDER : Page 388, at the very bottom (United States Counter- Case Appendix). SIR CHARLES FITZPATRICK : There appears to have been some dif- ference of opinion as to the wisdom of Sir Robert Bond's policy? MR. ELDER: Yes, Sir Charles. On the 12th April of that same year, shortly after the mass meeting at the Bay of Islands, there was a similar meeting at Bonne Bay, which is mentioned in a despatch from Governor MacGregor to Lord Elgin, at p. 390. The last paragraph of the governor's letter says : — " There seems to be but little doubt that these Addresses " (speak- ing of the addresses which the Bonne Bay fishermen sent) " represent in a general way the feelings and wishes of Bay of Islands and of Bonne Bay. They, however, comprise but a small part of the popu- lation of the island. At the same time it is impossible to conceal from oneself the fact that the people of Bonne Bay and of Bay of Islands are those that are most directly interested in, and dependent on, this particular herring fishery, in which practically no others, except the people of St. George's Bay, participate." And he transmits the protest. And now we come to the hearing of the Dubois and Crane case before the Law Court, which is reported by Governor MacGregor to Lord Elgin on the 24th April, 1907. No, that is the time of the argument. The part I refer to is at the bottom of p. 391. On the 7th May, 1907, Governor MacGregor says :— " It will also be noticed that the Attorney-General draws attention to the fact that the decision in no way involves an interpretation of either the Treaty of 1818, or of the Modus Vivendi of 1906; but is confined to affirming the conviction by the Magistrate on the lines of a violation of the Bait Act." Without going into the opinion which begins on p. 392, the same thing appears at p. 396 (third paragraph) :— " In adjudicating on the rights of the parties in this case, it has not been necessary for us to enter upon a consideration of the argu- ments addressed to us by counsel, as to the interpretation of the Con- vention made in 1818 between His Britannic Majesty and the United States of America. I may observe that Chapter 129 recognizes the rights acquired by the inhabitants of the United States under this Convention, for it contains a provision, common to our fishery 1486 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 898 legislation, to the effect that nothing in the chapter is ' to affect the rights and privileges granted by Treaty to the subjects of any State in amity with His Majesty.' The appellants, however, do not possess any treaty rights, as they are British subjects, resident in this Colony. Whether ' inhabitants of the United States ' who ' in common with the subjects of His Britannic Majesty ' possess ' the liberty to take fish of every kind ' on certain parts of the coasts of Newfoundland, could lawfully have shipped bait-fish on board the Ralph L. Hall at Woods Island without a special license, is imma- terial, and cannot affect the rights or liabilities of the appellants." I do not find it necessary to balance the weight given in each direc- tion, but it will be remembered that the Government's case consisted in part of the claim that the men had never shipped on board the " Ralph L. Hall ; " that they had not conformed to the United States regulations concerning the shipment of mariners; that they had not subscribed the articles; that the mate had written the names of, I think, twenty-seven men on his book ; and even that was not done at the time of the alleged shipment, so that there was an informality, to say the least, upon which the Court places considerable stress. At p. 393, about eight or nine lines down, the Court says : — " Since then a commission was taken for the examination in Gloucester, Massachusetts, of the master of the Ralph L. Hall and others; applicants have, however, failed to show that the ship's arti- cles were signed by them. On the contrary, the evidence taken upon the commission is, that the names of some 23 fishermen, including the appellants, were written on the articles by the mate of the Ralph L. Ilall, and that the legal requirements as to signature and attesta- tion were not compiled (complied) with. The United States Ship- ping Commissioner at Gloucester, who was examined as a witness, proved that in the United States law there is no distinction between seamen and fishermen as regards the forms and nature of their ship- ping agreements." I call attention to that at this moment because of its relation to Question No. 2, to which I will- ask the Court's attention. Some impression seems to have been made by the various protests, and we find a telegram from Governor MacGregor to Lord Elgin, of the 8th May, 1907 :— "Am informed by Attorney-General that he does not intend to enter any further prosecutions against fishermen in position of Dubois and Crane on account of last season transactions." On the 14th May Sir Robert Bond was at the colonial conference in London. He made a long speech at that conference, at which of course were present the representatives of various other colonies. I think one may fairly say he sought to array against the British Min- istry the entire force of British colonial support. He had at one time alleged in his speech of the 7th April that he was sustained by all the colonies of His Majesty. I do not find it necessary to read ARGUMENT OF SAMUEL J. ELDER. 1487 from this speech, because it is quite largely a repetition of the speeches to which reference has previously been made. That brings us down to the spring of 1907. It will be remembered that Mr. Root had written to Sir Edward Grey, through Mr. Reid on the 30th June, 1906. Sir Edward Grey's reply to Mr Reid's letter is dated the 20th June, 1907 (United States Case Appendix, vol. 11 ). The reply will require to be considered so much in the future that I will not take much time now in reading portions of it He speaks in particular of having had the advantage of a full dis- cussion with Sir Robert Bond when he was present at the colonial conference. That appears at p. 1004: "They have now had the advantage of a full discussion with Sir R. Bond." At p. 1004 he announces the position, which I think is the position of Great Britain to-day, with regard to the employment of non- inhabitants upon fishing vessels. At the bottom of that page, in replying to Mr. Root, he says that the views of His Majesty's Gov- ernment are quite clear upon this point: — "The Convention of 1818 laid down that the inhabitants of the United States should have forever in common with the subjects of His Britannic Majesty the liberty to take fish of every kind on the coasts of Newfoundland within the limits which it proceeds to define. " This right is not given to American vessels, and the distinction is an important one from the point of view of His Majesty's Govern- ment, as it is upon the actual words of the Convention that they base their claim to deny any right under the Treaty to American masters to employ other than American fishermen for the taking of fish in Newfoundland Treaty waters." The Court will remember that Mr. Root's letter, to which this is a reply, had pointed out that it would be rather absurd, that a vessel seeking shelter, or coming into port for repairs, must show 899 evidence that all of the seamen on board the vessel were Ameri- can citizens, that it was quite impossible that in order to entitle itself to any one of the four privileges granted under the renuncia- tory clause of the treaty of 1818 a vessel must make proof of the citizenship of its crew. To that Sir Edward replied : — " Mr. Root's language, however, appears to imply that the condi- tion which His Majesty's Government seek to impose on the right of fishing is a condition upon the entry of an American vessel into the Treaty water? for the purpose of fishing. This is not the case. His Majesty's Government do not contend that every person on board an American vessel fishing in the Treaty waters must be an inhabi- tant of the United States, but merely that no such person is entitled to take fish unless he is an inhabitant of the United States. This appears to meet Mr. Root's argument that the contention of His Majesty's Government involves as a corollary that no American vessel would be entitled to enter the waters of British North America 92909°— S. Doc. 870, 61-3, vol 10 38 1488 NORTH ATT .ANTIC COAST FISHERIES ARBITRATION. (in which inhabitants of the United States are debarred from fishing by the Convention of 1818) for any of the four specified purposes, unless all the members of the crew are inhabitants of the United States." So that the position of Great Britain as placed there and placed here with regard to the employment, is not that all the members of the crew must be inhabitants of the United States, but only, that the persons who can take fish are to be inhabitants of the United States. In response to an inquiry that was made of him, Sir Robert Finlay said distinctly, it was the person who took the fish out of the water that must be an inhabitant of the United States. Sir Edward concurs, or rather he recites that Mr. Root concurs in his statement, that ships, strictly speaking, can have no rights or duties, and so, whenever the term is used, " it is but a convenient or custom- ary form of describing the owners or masters rights." That is quoted from Mr. Root. At p. 1005 he says that he cannot agree that only the regulations in existence in 1818 would now be binding upon American fishermen. At p. 1006 he says that he will gladly pay. the utmost considera- tion to any American representations about the reasonableness of regulations. He speaks, I think, on that page, to the question of entry and clearance of American vessels at Newfoundland ports : — " I would remind Your Excellency that the American vessels engaged in the winter fishery in the Bay of Islands must pass in close proximity to several Custom Houses, and that it cannot be said that the obligation to report and clear unduly interferes with the operations of the vessels. On this point, however, His Majesty's Government would, in order to secure an arrangement for the next fishing season, be prepared to defer discussion of the question of right. And so on. At another place, under Question 6, to which I shall call the atten- tion of the Tribunal, he says that the American vessels in the Bay of Islands, must pass three custom houses in order to engage in their winter herring fishery, and yet one of the questions presented in this case, Question 6, is Newfoundland's denial that American vessels have any right in the bays at all. In order to pass three custom houses you have to sail a dozen miles through the Bay of Islands. Sir Edward Grey apparently had no idea, even after his inter- view with Sir Robert Bond, that American vessels were excluded from the bays. He says, that inasmuch as Newfoundland fishing-vessels do not pay light dues under similar circumstances, Americans need not. On the 12th July, 1907, upon receipt of that letter (United States Case Ap- pendix, pp. 1007 and 1008), Mr. Reid proposes a reference to The Hague Tribunal. ARGUMENT OF SAMUEL, J. ELDEB. 1489 At the third paragraph on p. 1008 : — " In this conviction my Government authorizes me, and I now have the honour, to propose a reference of the pending questions under the Treaty of 1818 to arbitration before the Hague Tribunal. "We have the greater reason to hope that this solution may be agreeable to you since your Ambassador to the United States recently suggested some form of arbitration, with a temporary modus vivendi pending the decision, as the best way of reaching a settlement. We hope also that the reference of such a long-standing question between two such nations at such a time to the Hague Tribunal might prove an important step in promoting the spread of this peaceful and friendly method of adjusting differences among all civilised countries of the world." Mr. Reid says, with regard to the employment of Newfoundlanders in the next paragraph, and speaking of the previous season : — " They did, however, employ Newfoundland fishermen. We do not think the continued employment of men so eager for the work, and the consequent influx of their wages into the colony could, for the short time involved, work the Colony any harm." 900 On the 19th July, 1907 (United States Case Appendix, p. 1008), Lord Elgin transmits to Governor MacGregor the pro- posal of the United States for the modus of 1907. It was substan- tially on the same terms as that of the previous year. I am not going into the avalanche of correspondence by wire and mail which followed after that time, the 19th July, or the time of the reception of that letter. Fifteen despatches passed between Lord Elgin and Governor MacGregor ; the latter reporting the position of his Ministers with regard to it, and protesting against the power and right of the British Government to interfere with Newfoundland laws, and offering to take responsibility upon themselves, offering to enforce the laws only against their own inhabitants, and not against the inhabitants of the United States. That correspondence between the reception of the letter of the 19th July and the 9th September, is to be found in United States Case Ap- pendix, pp. 1010 to 1018, and in the Counter-Case Appendix, p. 297. I was unable on Tuesday, at the moment, to put my han,d on a despatch I wanted to read. It will be remembered that the modus was finally agreed upon by Great Britain, without the consent of Newfoundland, namely, on the 4th September and the 6th September, by notes between the British Foreign Office and Mr. Reid in London, as appears at United States Case Appendix, p. 49. But, just before that, and during the long discussion between the Home and Colonial Governments, there was an effort to bring about an adjustment between Sir Robert Bond and the Government, 1490 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I must crave pardon for having used short names. My attention has been called to the fact that I have been confusing by using the short title " Sir Robert," the distinguished representative of Great Britain who is here, and concerning whom it is impossible to think without enthusiasm and well-nigh impossible to speak without terms of compliment, the expression of which his presence forbids — that I have been, as I have said, confusing Sir Robert Finlay, who is here, with Sir Robert Bond. I shall endeavour most carefully to use the entire names hereafter. Governor MacGregor says, on behalf of his Ministers, of whom Sir Robert Bond was chief, at the bottom of p. 1013 : — "My Ministers, however, still desire to aid His Majesty's Gov- ernment as far as possible consistently with their duty to this Colony, and the preservation of its rights ; they will, therefore, grant permission to the fishermen of the Treaty Coast to sell to Americans during the coming season on the receipt of an assurance from His Majesty's Government that the terms or reference to the Hague Tribunal shall include the question of the right of American vessels to fish or trade in any of the bays, harbours, or creeks of that portion of Newfoundland Coast between Cape Ray and Quirpon Islands, together with all other questions that may be raised under the Treaty." I suppose it is quite clear from that, that Sir Robert Bond had quite fully opened Question 6 with the British Government at his visit the previous spring, and it is quite evident from that that the British Government had not received the suggestion with any approval. The long-suffering Lord Elgin, seeking to continue peaceful rela- tions, sends this telegram of the 2nd September, which is to be found at the bottom of p. 1014 : — " Your telegram, 1st September. It will be necessary to refer to United States Government the question of the terms or arbitration; but provided that your Government now accept proposed modus vivendi, His Majesty's Government would favourably consider the reference to arbitration of question of bays. I do not, however, gather from your telegram whether your Ministers propose to accept modus vivendi, and to permit American vessels to employ New- foundland fishermen on terms mutually arranged, or merely to allow Newfoundland fishermen to sell fish to Americans. " There is no chance of American Government accepting any ar- rangement under which American vessels not allowed to employ Newfoundland fishermen." It seems to have been out of the willingness to placate Sir Robert Bond by having this question of bays (Question No. 6) presented, that its actual presentation at this Tribunal has come about. The British Government, neither before nor then, nor up to the framing of this arbitration, presented or discussed any such ques- tion as that ; and, one cannot but admire the loyalty and courage with which our friends of the British, Canadian, and Newfoundland bar ARGUMENT OF SAMUEL J. ELDER. 1491 have presented that contention here. I trust they will be the first to forgive me for saying that it seems to me that their position is some- thing like that of General Marston, of our State of New Hampshire, a most distinguished and admirable lawyer, who was engaged to prosecute a case in some portion of which his legal judgment did not give him confidence, but his associates were so insistent that the ques- tion should be presented that he did present it. It happened to 901 come before a newly appointed judge, who afterwards became the distinguished Chief Justice of New Hampshire, Chief Justice Carpenter, known, I am confident, to two of the members of this Tribunal. General Marston made the best and most ad- mirable presentation of the question he could possibly make, but at some pause in his oratory the judge said, " I suppose, General Marston, there is no man in the State of New Hampshire who knows better than you do that that is not law." " Well, yes, yes, yes, but I could not tell what view your Honour might take of it," The attempted arrangement with Sir Robert Bond failing, the modus was arranged, as appears by United States Case Appendix, pp. 48 and 40. Then it became necessary to apply the strong hand. Newfoundland had been recalcitrant, it was proceeding against the Government, and it did not concur in the modus vivendi. The cor- respondence discloses the situation. On the 9th September, an Order- in-Coimcil was adopted by which the Act of 1905 was in substance vacated (United States Case Appendix, pp. 117-118). The Order-in-Council begins on p. 117 of the Appendix to the Case of the United States, and the material parts are upon p. 118. It is interesting to observe that this is the first Order-in-Council issued by His Majesty in Council under the provisions of the Act of 1819, after the Order-in-Council passed in that year, and in terms and substance it covers the same field ; that is to say, it was an Order-in- Council prohibiting, as the Order of 1819 had done, His Majesty's subjects from interfering with American fishermen on the treaty coasts. Reading from p. 117 : — "And whereas His Majesty by and with the advice of His Majesty's Privy Council deems it proper and necessary for the carrying into effect the purposes of the said Convention, to give further directions with relation to the taking, drying, and curing of fish by the inhabi- tants of the United States of America in common with British sub- jects on the coasts of Newfoundland: " Now therefore, His Majesty, in pursuance of the powers vested in His Majesty by section 1 of the Act 59 George III., cap. 38, by and with the advice of His Majesty's Privy Council is pleased to order and it is hereby ordered as follows : — " I. No provisions, rules, or enactments which may be in force with regard to the boarding and bringing into port of foreign fishing vessels found in the waters of Newfoundland shall, within the limits 1492 NORTH ATLANTIC COAST FISHERIES ARBITRATION. prescribed by the said Convention of 1818, apply to vessels in which inhabitants of the United States of America resort to the waters of Newfoundland for the purpose of exercising the liberty assured to them by article 1 of the said Convention. " II. If any question should arise before any Magistrate, Justice of the Peace, Judge or Court in Newfoundland, in relation to, con- cerning or in anywise in respect of the presence on board any such vessel of any caplin, squid, or other bait fishes, or of ice, lines, seines, or other outfit or supplies for the fishery, the burden of proof that the said bait fishes and supplies and outfits have been purchased within the waters of Newfoundland shall rest upon the person or persons alleging the same/' Being a direct reversal of the Act of 1905, and so on it goes to the end — '• III. It shall not be lawful for any person without the consent of His Majesty's Senior Naval Officer on the Newfoundland Station, in any proceedings against inhabitants of the United States exercising or claiming to exercise the liberty to take fish assured to them by the First Article of the Convention of 1818, or against any of their boats or vessels, or against any persons engaged by them to form part of the crew of the vessels used or employed by such inhabitants in the exercise of such right. "A. To serve any process of law upon any boat or vessel so used or employed for any act or thing done in the exercise or alleged exercise of the said right, or which may, in the opinion of the said Naval Officer, give rise to any question or dispute in relation to the common fishery established or referred to in the said Convention, or to go on board any such vessel or boat for the purpose of serving such a process. " B. To arrest or seize any such vessel or boat or to seize, remove, or disturb any gear, nets, apparel, or other furniture or stores be- longing to such vessel or boat." The United States desires to express, and does express, its pro- found gratification at the course which Great Britain pursued in this entire controversy. Realizing the delicacy of its position it is grati- fying to know and feel that, in so far as it lay in its power, the action of Newfoundland was restrained and curtailed, and the most definite effort was made to observe His Majesty's obligation under the treaty. Seven more despatches passed from the 9th September to the 23rd September between Newfoundland and the British Foreign Office. The Newfoundland Government desired, almost imperiously, that the Order-in-Council should not be promulgated; and promulgation was suspended from time to time at their urgent request, always, 902 however, with the proviso that if the American fleet arrived on the coast, the Order must be promulgated immediately. After patience seemed to have ceased to be a virtue, on the 23rd September, Lord Elgin directed the Order to be promulgated, United States Case Appendix, pp. 1020 and 1021. On the 16th September Lord Elgin notifies Governor MacGregor that : — AKGUMENT OF SAMUEL J. ELDER. 1493 " Your telegram 15th September. You should inform your Min- isters arrival of ' Gresham ' That was a United States vessel going on the coast — •renders it essential for you to publish Order in Council unless they are prepared to accept modus vivendi, and you should ask for an immediate reply, which you will at once send to me. Your Ministers should clearly understand that in the event of unfavourable reply His Majesty's Government will have no alternative but to at once publish Order in Council, a course which, though inevitable, is to be regretted, and the responsibility for which will, in the circumstances, rest on your Government. "If in the meantime fishing ships arrive you must, in order to avoid greater complications, publish without further instructions." Governor MacGregor replies, p. 1021, on behalf of his Ministers. The second paragraph repeats the objections which have been made by the Prime Minister and says : — " their answer is that modus vivendi is not necessary because of the undertaking of this Government to revert to the status quo prior to 1905, thus giving to the Americans all the privileges hitherto enjoyed by them on the Treaty Coast. " Promulgation of Order in Council would practically destroy case of this Colony before the Hague Tribunal as furnishing argument that the law of Newfoundland is not binding on Americans. My responsible advisers refuse to accept any responsibility for Order in Council which cannot be with justice put on them. To assist His Majesty's Government ameliorate embarrassing position they pro- posed reference to Hague Tribunal, and also a temporary working arrangement to lawfully give Americans the privileges they had before this dispute. My responsible advisers cannot be parties to the modus vivendi, and they protest against the promulgation of the Order in Council. They are advised by Attorney-General and Eng- lish Counsel that Order in Council is not operative against the law of the Colony. Order in Council cannot grant any new right or immu- nity. His Majesty's Government appear to overlook that my respon- sible advisers undertake to place Americans in precisely the same position as they occupied in 1905, thus making the modus vivendi and Order in Council unnecessary. Whether Order in Council is published or revoked, my responsible advisers will issue lawful authority to the local fishermen on the Treaty Coast to sell fish to Americans and others as heretofore, thus removing any possible grounds of complaint so far as Americans are concerned and at the same time upholding the law of this Colony." On the 26th September, as appears at p. 1022, the definite order is given to promulgate the Order : — " In my telegrams of the 23rd of September, I informed you that the refusal of your Ministers to accept the modus vivendi left His Majesty's Government no option but to instruct you to publish the Order in Council of the 9th of September, and I accordingly in- structed you to publish it in the next issue of the Newfoundland ' Royal Gazette.' 1494 NORTH ATLANTIC COAST FISHERIES ARBITRATIONS " His Majesty's Government had no alternative but to take this action in the absence of an undertaking by your Ministers to carry into effect the terms of the modus vivendi, and in view of the fact that, as your Ministers were informed in my telegrams of the 30th of August and the 2nd of September, the Government of the United States have declined to accept the proposal of your Government to permit the sale of fish to American fishermen as a substitute for the modus vivendi" At p. 1023 of the Appendix to the Case of the United States, Lord Elgin makes some references to the surprise which Sir Robert Bond had expressed as to the action of the Government and to the misap- prehension on Sir Robert Bond's part, or the failure of memory, as to conferences with him. He says : — "I cannot enter into a discussion as to the validity of His Majesty's Order in Council of the 9th of September, which was issued on the advice of the Law Officers of the Crown, but I cannot for a moment admit that the issue of an Order in Council shows that the law of Newfoundland is not applicable to Americans. On the contrary, the issue of an Order in Council is a formal and deliberate expression of the view of His Majesty's Government that the law of Newfoundland is binding on American vessels, and that no other means exist of pre- venting the application of such provisions as interfere with the modus vivendi than a formal alteration of the Colonial Law by a competent authority, in this case His Majesty in Council under Sec- tion 1 of the" Imperial Act of G. III., ch. 38." 903 I have wearied the Court by going into considerable detail in regard to the correspondence between Newfoundland and Great Britain concerning the relations with the United States, and I have done so because it seems to me to afford one of the best ex- amples of the futility of the hope expressed by Sir Robert Finlay that American rights would always be preserved by the usual, the decorous and the orderly manner of the passage, and the putting into effect of laws in Newfoundland. He believed, in the first instance, as I recollect it, that the presumption that a colony like Newfound- land would exercise wisely and without discrimination its power to legislate could be relied upon, but failing that, the duty reverted, and must revert to the Home Government to determine and to pass upon the fairness and justice of legislation, and finally, there was the power of the Order-in-Council by which legislation, once passed and put into force, might be put an end to. Well, it may be that, in the end, this would work out our salvation, but it is a long course in that direction. The Tribunal will remember that ordinarily the only way to test this question is to arrest some captain or to seize some ship and to try the case in a local court. Then, upon his remonstrance to the Home Government begins one of those long corridors of corre- spondence between the two Governments, with the situation hope- lessly— no, I will not say hopelessly — but with the situation affected ARGUMENT OF SAMUEL J. ELDER. 1495 by the fact that Great Britain must, in propriety, and does always refer questions to the Government of Newfoundland, and is subject to the urgency and insistence of that Government in all its replies to and dealings with the United States, all of which indicates to my mind that our remedy is not likely to be such as that pointed out by Sir Robert Finlay, or one which will be of value to us. It may be well to say that the legislation will be, in the end, controlled by the action of Great Britain and that it has always been shown to be wise and just. That may be so in very many particulars, and I think I have already paid tribute to that fact, but it is of very little service to our fishermen to be told that when they are between the upper and nether millstones, the means of using their vessels destroyed, their property taken away from them and their men liable to prosecu- tion, the upper millstone is there and will prevail in the end. It seems to me that it has been of value further— I trust that it has not been without some value — to point out in some detail the attitude which Newfoundland has taken in this entire crusade. It has been avowedly, professedly, and without denial, coercive. It has been designed to punish the United States for not admitting their fish free of duty and its purpose has been to cripple the American fishing industry, or to complicate the situation with Great Britain so that it might cripple the United States fishing industry. Palpably the object, over and over again announced by Newfoundland, was to drive our vessels off the coast and, without going outside of my province in argument, I say it is interesting to observe that it is now alleged in this case that the laws which have been passed and the regulations which have been made have been just, reasonable and necessary, not discriminatory as against the United States and in- favor of British fishermen ; in other wrords, that the Government, and the head of the Government, which avowedly proposed to do this drastic thing, had really been most gentle, just and humane, in its dealings with the fishermen against whom its purposes had actually run. SIR CHARLES FITZPATRICK : Would it be possible to make this dis- tinction in referring to the legislation of Newfoundland, that in so far as that legislation is applicable to the prohibition to export fish and the engagement of Newfoundlanders by American captains, it has nothing to do with the treaty as such legislation cannot be regu- lations which are applicable to the fishery ? MR. ELDER: I quite agree that there is substance for argument in that, but the point that I was at this moment calling your attention to was whether, with the expressed determination to cripple the United States fishing industry, it was probable that the Government of Newfoundland would be restrained from drastic and well-nigh homicidal measures by the application of such rules as your body might, in the interpretation of the treaty, lay down. 1496 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR CHARLES FITZPATRICK: Upon one side there was practically a prohibition of the import of fish and on the other a prohibition of the export of fish. That is what all these alleged drastic measures appear to have grown out of. That seems, from what you have said this morning, to have been the controversy. MR. ELDER: It seems to us, sir, that it is very much broader than that, but I am very happy to inform you that my province does not permit me to take up the question of these regulations or to point out the ways in which we believe they trespass upon 904 the rights of American fishermen. I can finish this statement before the hour of adjournment. On the llth September, 1907, there appeared the interview of Sir James Winter in London, in which he calls attention, p. 406, United States Counter-Case Appendix, to the mis-statement of Sir Robert Bond with regard to the effect of the decision in the Dubois case, it being claimed by the Prime Minister that the treaty rights and the effect of Newfoundland statutes had been upheld by a decision of the Court. Sir James Winter says: — " There is another mis-statement which has found currency. It is that the Supreme Court of the Colony has decided against the Impe- rial Government on the question of the modus vivendi. That state- ment is entirely untrue. The modus vivendi was not brought before the Court at all, although, if it had been pleaded, I do not know what decision would have been given. The point at issue could have been tried against any fishermen in any part of the Colony, whether he was on board an American vessel or not. The exact point was upon the construction of our own Statute, and the men were sentenced for an act which has never been treated by any Government or prosecutor as an offence. It was simply a question of putting herring on board without a license. It is entirely incorrect to say that the Americans made this a test case or that they defended the prisoners." The paper, however, adds, as quoted at p. 407 : — " Sir James Winter's opinion that it is ' another mis-statement ' to say that the Supreme Court of Newfoundland decided against the Imperial Government on the question of the modus vivendi has to be reconciled with the following passage of Sir Robert Bond's speech at the Imperial Conference: " * With the validity of the modus vivendi of 1906 I do not propose to deal. Suffice it to say that the Supreme Court of Newfoundland has decided that it could not over-ride local statutes as intended.' " In 1908, as appears on pp. 49 and 50, United States Case Appen- dix, Newfoundland undertakes that the herring fishery shall fie conducted on the same terms as last season — that is, under the modus. There is one thing that I want to call attention to, and it is to be found on p. 50, at the end of Mr. Whitelaw Reid's letter to the British Foreign Office, 23rd July, 1908, as to this question of the modus: — " I am glad to add that Mr. Alexander of the United States Fish Commission, will be sent again this year to the treaty shore, and ARGUMENT OF SAMUEL J. ELDER. 1497 that my Government feels sure that, through his influence, there will be general willingness to carry out the spirit of the understanding and work on the lines of least resistance." That is only one of quite a number of references which have been made to Captain Alexander's presence, representing the United States on the fishing coast, and all of them, with the exception of one from the Newfoundland Ministers, speak in terms of approval of Captain Alexander's work in seeing to it that the Americans obeyed the rules and conformed to the spirit of the conventions, and in adjusting differences between them and Newfoundland fishermen. Captain Anstruther takes several occasions to mention the same thing. I shall, with your permission, give those references this after- noon. What I want to say with reference to that is, that it seems as if his conduct made a demonstration of the value of joint enforce- ment, and that it shows how peacefully, with both sides officially represented upon a coast which had been one of contention, all matters had been, might be, and could be adjusted. I ought to say in this connection that when, last June, Great Britain presented its complaints of acts of the United States in contravention of Great Britain's views of the meaning of statutes, &c., it cited Captain Alex- ander's presence on the Treaty Coast and his policing the coast as one of the subjects of objection. But that does not destroy the long story of their approval of his conduct. And now I am approach- ing the end of your patience and of this part of the presentation. On the 2nd November, 1908, an election occurred in Newfoundland which resulted in a tie, as appears in the United States Counter-Case Appendix, at p. 638. A new election was ordered, it being impos- sible to form a Government, and on the 8th May, 1909, a second elec- tion was held, the result of which appears upon the same page. It resulted in the overwhelming defeat of Sir Robert Bond and in placing the Government in the hands of Sir Edward Morris, whom we have the honour to have with us here, the Assembly standing: Bond, 10 ; Morris, 26. So that the power of the people of the colony was exercised as their contentions and protests had indicated that at some time it certainly would be. On the 4th April, 1908, prior 905 thereto, as you know, a general treaty of arbitration between the United States and Great Britain was entered into. On the 27th January, 1909, this present treaty of arbitration was entered into. The situation in 1909, as outlined here— I came pretty near using the word " briefly," but I restrained myself — was this, in the rough: The United States had well-considered and well-ordered treaty privileges in Newfoundland waters. Auxiliary to the cod fishery and important to the United States was' the bait fishery, to say nothing of the great value of the herring fishery. The banks near by were valuable and the west coast of Newfoundland was valu- able. The great fishery of the Labrador coast was, in part, directly 1498 NOKTH ATLANTIC COAST FISHERIES ARBITRATION. over against this western coast. If for no other reason, it was of almost vital importance that the bait fishery on the west coast should be preserved unrestrained, unrestricted, and unregulated. There is another condition — it is not a theory, but a condition which has to be borne constantly in mind in dealing with this entire situation. In the first place, it is palpable that the United States fishery must be con- ducted from vessels. It is, as Sir Edward Grey said, a ship fishery. Our vessels have to sail 800 or 900 miles in order to reach the treaty coast. They must therefore be sea-going vessels. Our Counter-Case Appendix shows that the value of an ordinary United States fishing- vessel is 15.000 dollars, and that its outfit runs from 2,500 to 3,000 dollars, in addition to its actual value. In order to do a commercially profitable business it must do it promptly. It must fish quickly. If it is compelled to leave the banks and go back to New England ports for each securing of bait, the season is broken up and rendered value- less. One thing more. The Fortune Bay incident in 1886 demon- strated, as it has been demonstrated several times since, that the in- habitants of Newfoundland are determined that the United States fishermen shall not take their bait. The effort to take bait in For- tune Bay resulted in the assault. It is true that it was upon Sunday, but you cannot read the story of those depositions from beginning to end and not see that it was the loss of livelihood — that it was the tak- ing by Americans of fish which the Fortune Bay people had been in the habit of selling — that caused the difficulty. The same thing oc- curred on the other side of the same peninsula years afterwards. American vessels, seeking to save money by taking their bait them- selves, were driven off and compelled to buy. Precisely the same thing was suggested at the mass meeting at the Bay of Islands in 1905. They reminded the Government of Newfoundland of what occurred at Fortune Bay; they reminded the Government of New- foundland that their subsistence and the lives of their families de- pended on the traffic with the Americans, and they asked whose fault it would be if troubles arose. That is a condition and not a theory, and it is a fact which discloses the antagonism of these people — an antagonism that we cannot feel angry about, one to which the Ameri- cans have constantly yielded in their purchase of bait rather than to take the bait themselves — certainly in later years; and it demonstrates and discloses an underlying condition which must be considered in dealing with the legislation and conduct of this colony towards the United States. I observe that the hour of 12 o'clock has arrived. THE PRESIDENT : If you please, we shall continue at 2 o'clock. [Thereupon, at 12 o'clock, the Tribunal took a recess until 2 o'clock p. M.] ARGUMENT OP SAMUEL J. ELDEB. 1499 AFTERNOON SESSION, THURSDAY, JULY 21, 1910, 2 p. M. THE PRESIDENT: Will you please continue, Mr. Elder. MR. ELDER: I asked permission to cite after the adjournment, other references to Captain Alexander's service on the treaty coast, and with the consent of the Tribunal will give them. I do not think it will be necessary to turn to the pages, because the quotations can be readily verified: United States Case Appendix, p. 1013, 1st Septem- ber, 1907, Governor McGregor to Lord Elgin: — " My Ministers deeply regret that their proposal, which was made as an honourable compromise, has not been accepted. They do not understand how the proposal can be said to be too late, as the fishery does not begin for four or five weeks from now, and the vessels Can- not have started yet. They fear that Mr. Alexander may advise the American fishermen that they may with impunity violate the statute laws of this Colony." 906 I next read from United States Case, Appendix, p. 1015, where, under the date of 3rd September, 1907, in a telegram from Lord Elgin to Governor MacGregor, this language is found : — " With all deference to your Ministers we cannot see why they should so strongly object to presence of responsible American official during fishery; he will be useful in preventing improper action by American fishermen, and he will be able to sift any alleged grievance of American fishermen before it is brought to notice of United States Government." And then the one to which I called attention before adjournment, of 23rd July, 1908. in which Mr. Eeid says he is glad to say that Mr. Alexander will go on the coast again. THE PRESIDENT: If you please, Sir, what was the exact mission of Mr. Alexander? MR. ELDER : He was the representative, or at least a member of the staff, of the United States Fisheries Commission, but went down, under the direction of the State Department, to be present with the American fishermen, particularly at the Bay of Islands, where the possibility of collision was greatest, and to see to it that the terms of the modus, as it had been agreed upon between the two Governments, were observed faithfully by the United States fishermen— for in- stance, the matter of Sunday fishing and the matter of night fishing, and a great variety of things. In addition to that, he was to exer- cise a sort of intermediary relation or position between the United States fishermen and the Newfoundland officials and the natives at the Bay of Islands; and it was largely through him that it was brought about that purse-seining by American vessels, which was per- mitted by the modus, but to which the inhabitants strongly objected, was given up by the Americans, so that no collision occurred between the two. 1500 NORTH ATLANTIC COAST FISHERIES ARBITRATION. THE PRESIDENT: Was he in any official relation to the Newfound- land Government? MR. ELDER : No ; he had no such relation. He was from the Ameri- can side. THE PRESIDENT: Yes; but had he any official mission to the New- foundland Government? MR. ELDER: No; he had not. THE PRESIDENT: No; he had only to advise the American fisher- men concerning their rights and their duties ? MR. ELDER : It was rather more extensive than that, Mr. President. The Newfoundland Government was notified by the State Depart- ment that he was coming down, and, as I have said, he was in com- munication with Captain Anstruther, the senior naval officer, who expressed his approval of what he had done, and he, as I say, wa-s> an intermediary between the United States fishermen and the natives at the Bay of Islands, bringing about a relation of friendship and peace and harmony that was fortunate. SIR CHARLES FITZPATRICK: Can you give me the reference to the letter of instructions from the State Department, or the notification to the Newfoundland Government? MR. ELDER: I think so. I cannot do it at this moment, however. SIR CHARLES FITZPATRICK : At any time ? MR. ELDER : I am confident that I can see that it will be handed to you, Sir. Now, I wish to ask the Tribunal, before I take up Question 2, to allow me to call attention to a matter that has twice been before the Tribunal, and that is the position of the United States Government in the Alaska Boundary matter, for the purpose of correcting what we apprehend is a very grave and considerable misapprehension on the part of counsel for Great Britain. The Tribunal will remember that Mr. Ewart, who has just addressed the Tribunal, pointed out on the charts which are presented with the British Appendix certain alleged lines, or supposed lines, along which the United States was claimed to have said that the political coast would run. I will ask the Tribunal to look at those charts again, so that I may call attention to just what was said. (The charts mentioned were handed to the members of the Tribunal.) 907 If the Tribunal will refer to chart No. 15, it will be noticed that, beginning at Cape Spencer, there is a line drawn to Ya- kobi Island, 9£ miles, and then, following down along the coast to Kruzof Island, we come to Sitka Sound, where there is another mark 9£ miles across. Before I leave this chart No. 15 I wish to call atten- tion to the position of the Lynn Canal, and the extent to which it runs AKGUMENT OF SAMUEL J. ELDER. 1501 northwardly, because that was the crux of the case, the possession of the upper part of Lynn Canal. Turning to map 16, at Baranof Island, and following along down to Cape Ommaney, there is a line drawn 21f miles to Coronation Island, and from there to Cape Addington a line drawn 31f miles; and then, following along the coast from Cape St. Bartolomew down to Dall Island, 27^ miles; and then across from Cape Muzon to the mainland of Prince of Wales Island, 14 miles. The Tribunal will remember that Mr. Ewart, in good-natured raillery, said that that was easy, after the jumps that we had previously been taking. And then across from Cape Chacon, 27$ miles to the Cape of Northum- berland ; and then a line 13$ miles over to the mainland, very near 54° 40', which is the end of the boundary line in that direction. And the contention was that the United States was pointing out that line, as it has been followed, and as Mr. Ewart followed it, as the political coast line, not confining itself to 3-mile bays, but jumping indefinite distances, 31 miles and other considerable distances. The United States Government never suggested any such line as that. It never proposed any such line as that, and there is nothing in the record which, understood properly, can give any justification or foundation for the claim. It is a flight of imagination greater than the flights across from one cape to the other, and to the end of proving it, let me call attention to the original question and the original position of the United States. The United States came into the rights of Eussia, and there was a treaty between Russia and Great Britain with reference to this matter which is found on the 15th page of the Alaska Boundary reprint by the United States, the 15th page of the Appendix to the Case of the United States in that arbitration. The line of demarca- tion was to be the crest of the mountain ranges which follow the shore of Behring Sea. But whenever there was no range of mountains within 10 marine leagues of the shore, then the line was to follow the coast. Let me read the passage. It is under the fourth subdivision on that page, the section marked 2 : — " 2. That whenever the summit of the mountains which extend in a direction parallel to the coast, from the 56th degree of north lati- tude to the point of intersection of the 141st degree of west longitude, shall prove to be at the distance of more than ten marine leagues from the ocean, the limit between the British Possessions and the line of coast which is to belong to Russia, as above mentioned, shall be formed by a line parallel to the windings of the coast, and which shall never exceed the distance of ten marine leagues therefrom." I believe that the French word translated " windings " might as well be translated " sinuosities ; " windings or sinuosities. The contention of the United States in this Alaska Boundary Arbi- tration was that, there being no mountain range within 10 marine 1502 NORTH ATLANTIC COAST FISHERIES ARBITRATION. leagues of the coast, beginning at Cape Spencer and running down to 54° 40', that the line as laid down in the treaty would be 10 marine leagues from the windings or sinuosities of the coast, and they marked out a line which was 10 marine leagues back from the head waters of the Lynn Canal, and of each of those deep indentations which you see on the map. The contention of the United States was substantially sustained by the Tribunal. The line is not, geographic- ally or arithmetically, 10 marine leagues away all the time, for when the Tribunal came practically to lay it down on the map, they took tops of mountains and available geographical points, to sight across from ; but in substance they laid the line at 10 marine leagues from the head waters of the bays, that is to say, from the sinuosities or windings of the coast. That was the contention of the United States before the Alaska Tribunal. Great Britain, on the other hand, said that " coast " was to be understood as the frontier coast, not the physical coast that the United States contended for, but a political coast-line, and so it proposed a line which should be inside of those islands that you see on the map, but should be outside of nearly all of these deep inlets. They suggested that bays 10 miles in width should be the ones which were cut off, and left inland, landward, and the line should run along crossing bays at the point at which they were 10 miles wide, and so Great Britain worked out a coast-line of that kind. The United States never agreed that 10 miles was to be the 908 width of a bay for a political coast-line much less than 31-mile bays, or any such bays were the ones that were to be left in- land, and the line carried across them. Mr. Hannis Taylor, in his argument which appears in volume vii of the minutes of the proceedings of the Alaska Boundary Tribunal on p. 611, says this, in the next to the last paragraph : — " The authority, Kivier, if authority is needed, is a demonstration that the political coast line is simply a legal creation; it is a fiction of law. " It is an imaginary line which the law superimposes upon the physical coast line as a basis. But for the purposes of international law, instead of following all the convolutions and sinuosities of the coast, it is permitted to go across the heads of bays and inlets, and it is in that particular that the rule of international law comes in as to the width of bays and inlets, either 6 or 10 miles. We are not en- cumbered with that question, because the British Case contends that they must be 10 miles, and we do not dispute it, and these outside inlets are 10 miles. So we are not encumbered with that question. It is a legal fiction imposed by the operation of law as an accessory, as Rivier puts it, to the political coast line. The minute you establish it, the minute you fix it, all waters back of it, whether they are waters in the Archipelago there of Alexander or the Archipelago de Los Canaries, of Cuba, they all become, as Hall says, salt-water lakes: ABGUMENT OF SAMUEL J. ELDER. 1503 they are just as much interior waters as the interior waters of Loch Lomond, and there is no earthly principle, so far as reason is con- cerned, by which any human being could claim that there could be a political coast line back of a political coast line." So that what the United States did was adopting the British claim or suggestion of catting off bays at the point at which they were 10 miles wide, and arguing the British Case as a hypothetical case, that the true political coast-line would follow those islands, that those islands were not widely separated, that there were always points where the islands were 10 miles or less apart between which points the line could go and ought to go, according to the very rule that Great Britain itself was laying down. So, as a hypothetical argu- ment, or as an argument to meet the British Case, they made the sug- gestion which is contained in the United States Counter-Case before that Tribunal, and which Mr. Warren read to this Tribunal. I wish to present a chart showing just exactly how that works out. My attention is called to the passage that Mr. Warren read, in the fourth volume of the same report, at p. 32. This chart that I now hand up to the Tribunal is the same one that Mr. Warren presented, with the exception of the fact that red lines have been drawn upon it to show exactly how the contention of the United States worked out. With the permission of the Tribunal, I shall be glad if Mr. Lansing will point out these details to the Tribunal as I am speaking. Mr. Lansing, I may say, was associate counsel of the United States before that Tribunal, as he is here. SIR CHARLES FITZPATRICK : Do not one of the counsel on the other side also wish to look at this chart ? (Thereupon the chart mentioned was laid before the Tribunal and explained by Mr. Lansing, in the presence of the Attorney-General.) MR. ELDER: I tMnk I have already mentioned that this is the chart that Mr. Warren produced, with the addition of the red lines which show exactly how the Argument of the United States worked out. I will begin reading, and it is the same passage that Mr. Warren read before this Tribunal, beginning on p. 31 of the fourth volume of the minutes of the Alaska Boundary Tribunal. I am going back to the bottom of the preceding page : " The political coast line (since all arms of the sea not exceeding six miles, and in some cases more, in width, and all islands are prac- tically treated as portions of the mainland) extends outside the islands and waters between them. In the present instance the politi- cal or legal coast line drawn southward from Cape Spencer would cross to the northwestern shore of Chicagof Island and follow down the western side of that island and of Baranof Island to Cape Om- maney; at this point it would turn northward for a short distance and then cross Chatham Strait to the western shore of Kuiu Island ; " 92909°— S. Doc. 870, 61-3, vol 10 39 1504 NORTH ATLANTIC COAST FISHERIES ARBITRATION. You will notice that the line that was shown on the other chart does not turn north at all, but jumps, I think, 31 miles straight across from point to point. " thence again turning southward along that shore and along the outlying islets west of Prince of Wales Island, the line would round Cape Muzon and proceed eastward to Cape Chacon ; thence following northward along the eastern shore of Prince of Wales Island to Clarence Strait it would cross the latter at its entrance and proceed southeastward to the parallel of 54° 40' -at the point where it enters Portland Canal. Thus the political coast line of Southeastern Alaska does not touch the mainland between Cape Spencer and 55° of north latitude." 909 JUDGE GRAY: What are you reading from, Mr. Elder? MR. ELDER: I am reading from the Counter-Case of the United States in the Alaska Boundary matter. You will see that if Great Britain could be allowed to bring its line down to the coast of the mainland, irrespective of islands, and jump bodies of water where they were 10 miles wide, calling them bays — and, by the way, they referred to the North Sea arrangement with various countries as fixing 10 miles as proper — then their 10 marine leagues inward would leave them the control of the upper end of Lynn Canal, and would give them access to the open ocean. Of course it was recognised, and it was not in dispute, that the object of this treaty between Great Britain and Russia was to leave a belt which was immune from British traffic and British access to the sea along that shore, whereby the Hudson Bay Company in particular and British subjects in general could not get down to trade with the Alaska Indians in furs, and interfere with the rights of the Rus- sian Fur Company ; and so this belt was provided for in this treaty. The crest of the mountain ranges was the best thing that could be placed in the way, but where there was no such mountain range, a belt 30 miles wide of mainland was put in the way by the treaty — 10 marine leagues, and at this point 10 marine leagues was the only definition of the belt. All that Great Britain required was to get control of the upper waters of any one of those basins. In this case it happened to be the Lynn Canal. And if the Tribunal could be gotten to adopt the interior political coast-line, so to speak, it could accomplish that object. Well, why did not Great Britain take the other one? Why did it not take the outside coast-line, the real coast-line, the political coast-line along the islands? Because that resulted in an absurdity. That did not leave any mainland at all. And so the United States Counter- Case pointed out that the political coast-line of southeastern Alaska, on that basis, does not touch the mainland between Cape Spencer and 55° of north latitude. It would have been so manifestly absurd, with the known intent of the treaty, for them to have had control of ARGUMENT OF SAMUEL, J. ELDER. 1505 the entire coast of the continent, that they did not make that claim, and the United States in its Counter-Case, after the British Case had been received, pointed out the very absurdity that Great Britain had avoided by claiming an interior coast-line. It pointed out a further absurdity, viz., that there could not be two political coast- lines, an interior coast-line and an exterior coast-line. But the main point of my argument is that any claim on the part of counsel here, that the United States was playing hop, skip, and jump with that coast, jumping 14 miles and 20 miles and 31 miles, is entirely outside of the question. The argument that the United States was making was that, taking Great Britain's own claim of 10-mile bays, it was entirely possible to draw an outside line, using the islands as the out- side coast-line. And that argument seems to have prevailed, and was successful. Question 2 reads as follows: — " Have the inhabitants of the United States, while exercising the liberties referred to in said article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States ? " Though the treaty may be entirely familiar to the Tribunal, I revert to it. on the previous page, for a moment : — " It is agreed between the High contracting parties that the inhabi- tants of the said United States shall have forever, in common," &c. The right of fishery. Sir Edward Grey, in his letter which appears at pp. 972 and 973 of the United States Case Appendix, said, as he had said in many other places, that this right was confined to the inhabitants of the United States. At the bottom of p. 972, referring to Mr. Root's six propositions, and taking the first of them — " Proposition 1 states : ' Any American vessel is entitled to go into the waters of the Treaty Coast and take fish of any kind. She derives this right from the Treaty (or from the conditions existing prior to the Treaty and recognized by it) and not from any permission or authority proceeding from the Government of Newfoundland.' " The privilege of fishing conceded by Article I of the Convention of 1818 is conceded, not to American vessels, but to inhabitants of the United States and to American fishermen. " His Majesty's Government are unable to agree to this or any of the subsequent propositions if they are meant to assert any right of American vessels to prosecute the fishery under the 910 Convention of 1818 except when the fishery is carried on by inhabitants of the United States. The Convention confers no rights on American vessels as such." And Sir Robert Finlay puts it in the same way at p. 216 of his argument : — " The United States, throughout this argument, put the case in this way, as they did in their despatches, that this is a right conferred 1506 NORTH ATLANTIC COAST FISHERIES ARBITRATION. upon United States vessels to fish. There is no such right conferred by the treaty. The only right conferred by the treaty is upon United States inhabitants. There is no right given to United States vessels to prosecute the fishery upon the coasts of Newfoundland. May I read the words of the Treaty ? " Then he proceeds to read them. And, on the same page : — " All these rights are conferred on persons, the inhabitants of the United States, who are also spoken of, in the concluding portion of the renunciatory clause, as ' American fishermen.' The treaty does not confer any right upon United States vessels. It confers a right upon persons who are inhabitants of the United States." Those statements are only partially correct. Nobody contends that vessels, as such, have rights conferred upon them. As I pointed out in the reading from Mr. Root's despatches, he distinctly states that vessels can have no rights and no duties ; and he protests, as the Tribunal will remember, against the Newfoundland Government treating vessels by characterising them, or putting them in classes as trading- vessels on the one hand, or fishing- vessels on the other hand ; and says that the phrase " vessel rights " is but a " convenient and customary " expression, intended to represent the rights of the owners in respect of the ships. But that does not go to the meat of this question. It does not make the final analysis necessary in every case of this kind, because when you go back to inhabitants, no rights were conferred by the treaty upon inhabitants. The right was con- ferred upon the United States. Turning to the British Case, Appendix, at p. 30, to prove what is entirely obvious, the treaty of the 20th October, 1818, says : — " The United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland, desirous," &c. They were the contracting parties in this convention, and not the King of Great Britain on the one hand and the inhabitants of the United States upon the other. It is the Ministers Plenipotentiary of the two countries who are named in the first paragraph of the treaty, the Plenipotentiaries of the United States only, and not the representatives of any inhabitants, or any fishing interests, or any- thing of that sort. Article 1 further says that the differences which had arisen were differences between the United States arid Great Britain respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry and cure fish. When it comes to the renunciatory clause, the fishermen of the United States do not renounce. It is the United States which renounces. " The United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry or cure fish within three marine miles," &c. ARGUMENT OP SAMUEL J. ELDER. 1507 So that, to begin with, we must get back, to get the real analysis of the question, to the fact that the United States is the entity with which this contract was made, and in which this right resides. In- habitants of the United States, without the authorization of the United States, have absolutely no power to exercise that liberty. That I wish to come to later. There has been an interesting thing in the various arguments in this Case quite constantly present. Our friends from Great Britain still speak of the United States in the plural. They think of it as a collection of States. They speak still of going out to " the States ;" and they say the " States are," &c. We do not. We speak of the United States in the singular. JUDGE GRAY : The Constitution speaks of it in the plural. MR. ELDER: Yes; but that period has gone a century and four decades; and the people have come to speak of it as a political entity. They speak of it as " the Republic." They speak of it as " the Sovereign State." They speak of it as " the Flag." 911 Possibly a considerable philosophical treatise might be written on that change in attitude towards the recognition of Federal existence and power and recognition of the flag. The point is, however, that this right, under the treaty, resides in the United States, and that the inhabitants, as such, and in their own proper persons, cannot exercise the privilege. They must derive that right from the United States. An American on board a Nor- wegian vessel, or a French or Spanish vessel, is not entitled to fish under this treaty. A vessel of one of those countries, Norway, for instance, with a crew largely composed of Americans, cannot sail up into those waters and say : " We have Americans on board this vessel ; they have the right to fish over the side of this vessel for us, and we to carry their catch to Norway." Instantly that right would be challenged. And who could intervene? Certainly not the United States, because the United States has never authorised a Norwegian vessel to exercise the privileges accorded to the United States. Clearly Norway could not, because Norway would have no treaty relations on that subject with Great Britain. We must have a step intervening before we reach the inhabitants of the United States, and that is the authorization by the United States of the right to exercise the liberty. I should like to revert for a moment, because this point is not new, to a passage in Sir Robert Finlay's argument at p. 222, when Judge Gray asked : — "JUDGE GRAY: Is the nationality of the fishing vessel a matter of absolute indifference to the Colonial authorities ? " SIR ROBERT FINLAY : Under the treaty the right is conferred on inhabitants of the United States. It is a personal right 1508 NORTH AH ANTIC COAST FISHERIES ARBITRATION. "JUDGE GRAY: Certainly; and the national character of the vessel is a matter of absolute indifference ? " SIR EGBERT FINLAY : The national character of the vessel may be of importance only so far as it affects the question, who are the sailors likely to be on board of her. If she is a foreign vessel, she is almost certain, in accordance with the laws of almost every country, to have a certain number of foreign sailors on board. From that point of view, it would not be a matter of indifference. "JUDGE GRAY: Then the inhabitants of the United States who happen to be on board a German vessel, for instance, might drop their lines in the treaty waters and fish ? " SIR ROBERT FINLAY : Inhabitants of the United States are entitled to fish. There is no restriction imposed with regard to the vessel from which they are to fish; but if American inhabitants came, say, in a Danish vessel, the inference would be almost irresistible that the fishing was carried on by the Danes as well as by the inhabitants of the United States. From that point of view it would be most mate- rial and most important; but I do put it that the treaty is per- fectly express and explicit that the liberty of fishing is given only to the inhabitants of the United States. " JUDGE GRAY : And the Colonial authorities would have the right to board an American vessel and to scrutinize the crews and fishing men as to their nationality ? " SIR ROBERT FINLAY : That does not at all follow." The point that I am urging is this: The logic of his positon, or rather the necessities of his position, compel Sir Robert Finlay, in the argument of the Case, to insist that it is the inhabitant of the United States who is to be considered, that even though he is on board a German vessel, or on board a Norwegian vessel, he can fish ; and that the only importance of the question of the nationality of the ship is the probability that there would be foreigners on board the ship, who might participate in the fishing with the inhabitants of the United States who were on board. We submit that that doctrine is absolutely inadmissible; that it- is absolutely inconceivable that the framers of this treaty, in dealing with the United States, ever agreed that ships of a foreign flag should be the ones in which and from which the fishing was to be conducted, and that the argument results in an absolutely necessary absurdity on Great Britain's part. SIR CHARLES FITZPATRICK : Assuming that your law permitted you to charter a foreign vessel under time charter — I do not know whether it does or not; but assuming that it does — and that your American seamen came up on board that vessel to fish in Canadian waters, would they have the right to fish ? MR. ELDER : You suggest a charter to me, Sir? I am an inhabitant of the United States. You mean, if a foreigner did that? SIR CHARLES FITZPATRICK: No; a citizen of the United States — a Boston merchant, for instance. ARGUMENT OP SAMUEL, J. ELDEB. 1509 912 MR. ELDER: Charters an American vessel? SIR CHARLES FITZPATRICK : Charters a foreign vessel, under time charter, say a six-months' charter, a very usual form of char- ter— MR. ELDER: Yes. SIR CHARLES FITZPATRICK (continuing) : And brings that vessel up to Canadian waters, with American fishermen on board, and they fish in Canadian waters — MR. ELDER : It cannot be done, Sir. SIR CHARLES FITZPATRICK: They cannot do it? MR. ELDER: No, Sir. No. The right is vested in the United States, and the United States must give its authority for the exercise of that privilege. Upon that I wish to cite several passages for the attention of the Tribunal. To begin with, Mr. Root's letter, to be found in the United States Case Appendix, volume ii, p. 967. Mr. Root laid down the case in six propositions, 4, 5 and 6 being the last ones. I read proposition 4, on p. 967 of volume ii of the Appendix to the Case of the United States : — " 4. The proper evidence that a vessel is an American vessel and entitled to exercise the Treaty right is the production of the ship's papers of the kind generally recognized in the maritime world as evidence of a vessel's national character. " 5. When a vessel has produced papers showing that she is an American vessel, the officials of Newfoundland have no concern with the character or extent of the privileges accorded to such a vessel by the Government of the United States. No question as between a registry and licence is a proper subject for their consideration. They are not charged with enforcing any laws or regulations of the United States. As to them, if the vessel is American she has the Treaty right, and they are not at liberty to deny it. " 6. If any such matter were a proper subject for the consideration of the officials of Newfoundland, the statement of this Department that vessels bearing an American registry are entitled to exercise the Treaty right should be taken by such officials as conclusive." Thus, clearly and sharply, setting out from beginning to end that the authorization must proceed from the United States to the persons who are to exercise the privilege — to the inhabitants of the United States. Well, now, there was no dissent from that. Sir Edward Grey in his reply makes no dissent whatever in the passage which I have read from the letter dealing with that subject. He makes no dissent whatever to propositions 4, 5, and 6, as to the necessity of the au- thorisation coming from the United States. The only thing he says is, that the persons who exercise the fishery must be inhabitants of the United States, And so Mr. Root is enabled to say, as he does say at p. 979, in the next to the last paragraph : — " I find in the Memorandum no substantial dissent from the first proposition of my note to Sir Mortimer Durand of the 19th October, 1510 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 1905, that any American vessel is entitled to go into waters of the Treaty coast and take fish of any kind, and that she derives this right from "the Treaty and not from any authority proceeding from the Government of Newfoundland. " Nor do I find any substantial dissent from the fourth, fifth and sixth propositions, which relate to the method of establishing the nationality of the vessel entering the treaty waters for the purpose of fishing, unless it be intended, by the comments on those proposi- tions, to assert that the British Government is entitled to claim that, when an American goes with his vessel upon the Treaty coast for the purpose of fishing, or with his vessel enters the bays or harbors of. the coast for the purpose of shelter and of repairing damages therein, or of purchasing wood, or of obtaining water, he is bound to furnish evidence that all the members of his crew are inhabitants of the United States." THE PRESIDENT : Please, Sir, may I ask a question concerning two statutes of American States ? I refer to the statutes of Delaware and the State of Maryland. Those statutes are printed in the British Case Appendix, at pp. 788 and 793. In regard to the statute of Dela- ware, it says it is unlawful for any person not being a citizen of this State to catch fish, and so on. Then by section 6 it is said that citizens of this State who desire to fish must make a double affidavit; first, an affidavit that he is a citizen of this State, and, secondly, that he will not use such boat and nets in the interest of any person not a citizen of this State. And the statute of Maryland is something similar. As a consequence of this conception prevailing in the States of Dela- ware and Maryland, would not the United States consider fishing exercised by virtue of the treaty of 1818, and protected by that treaty, only if it were fishing exercised in the interest of 913 an inhabitant of the United States? If the fishing were exer- cised in the interest of a Norwegian or a German subject, it would not be considered as a fishing under this treaty? These two statutes, of these two different States, presuppose the fishing is done for the benefit and in the interest of a person who is a citizen of those particular States of the United States. As a consequence, would it not be fishing, in virtue of the treaty of 1818, only if such fishing were done in the interest of an inhabitant of the United States? Or, is there no connection between these two cases? MR. ELDER : Why, as it strikes me it is this : The State of Delaware and the State of Maryland have power over their waters within their territorial jurisdiction, and they have a right, we will assume (I will not assume for the moment that those statutes are unconstitutional) — they have a right to say who shall fish in their territorial waters, and then they say only inhabitants of Delaware shall be allowed to fish. THE PRESIDENT: And only if it is in the interest of an inhabitant of Delaware? ARGUMENT OF SAMUEL J. ELDER. 1511 MR. ELDER: I should suppose that would follow too, from the statute. THE PRESIDENT : I think they say expressly that he must make an affidavit that he is a citizen, and that he will not use his boat in the interest of any person not a citizen. MR. ELDER: That was intended to preserve those prolific- waters, from which so many delightful things come to us, for the benefit of the people of their own State, just as they might preserve the hunt- ing of their own State from attacks outside. When it comes to the question of the fisheries accorded by treaty to the United States upon the shores of Newfoundland, the United States has a somewhat similar right to determine in what way and in what manner it will authorize that use. It might restrict it in one way, or it might restrict it in another, but the power and right is in United States to do it, and therefore it is the authorization of the United States which is necessary even to enable an inhabitant of the United States to exercise the treaty privilege. THE PRESIDENT: And if the fishing would be in the interest of a foreigner, would that be considered by the United States as a fishing under the treaty? MR. ELDER: It would not. THE PRESIDENT: You think it would not? MR. ELDER : I think it would not, if I apprehend the question cor- rectly. The use of an American vessel, which had its authority, and received that properly, to fish for a foreigner, would in my judgment be outside the authorization of the country itself. You see I pointed out earlier, on Tuesday I think, that the United States vessels, in order to be registered, must be owned by the inhabitants of the United States. If any single fraction of the vessel ceases to be owned by citi- zens of the United States, if it is a sixty- fourth part, and those shares are divided up into infinitesimal parts at times — if it ceases to be owned by citizens of the United States, thereupon the vessel ceases to be entitled to registry, and if it is on register at that time, the registry is not valid. I will call attention to those statutes a little further on. Mr. Root called attention in this letter of the 30th June, 1906, at p. 978 to the interference with American vessels upon the New- foundland coast: — " The letter which I had the honour to address to the British Am- bassador in Washington on the 19th October last stated with greater detail the complaint in my letter to him of the 12th October, 1905, to the effect that the local officers of Newfoundland had attempted to treat American ships as such, without reference to the rights of their American owners and officers, refusing to allow such ships sail- ing under register to take part in the fishing on the treaty coast, 1512 NORTH ATLANTIC COAST FISHERIES ARBITRATION. although owned and commanded by Americans, and limiting the exercise of the right to fish to ships having a fishing licence." It seems to me we get a considerable amount of light on this par- ticular phase of the subject from the questions which have been pro- pounded to this Tribunal, in a treaty between the two countries, which treaty must be supposed to be, in a way, a statement by the two countries of their understanding. 914 Question No. 7 reads in this way — "Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article I of the treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf." Clearly implying that the exercise of the treaty privilege can only be by the authorization of the United States, a thing which must follow from the chain of title, as we say with reference to real estate matters, the right having vested in the United States under the treaty, its exercise can only be authorised by the United States. SIK CHARLES FITZPATRICK: "Duly authorised" in Question 7 — does that not refer to commercial privileges? MR. ELDER : No, Sir Charles. SIR CHARLES FITZPATRICK : I have only looked at it for a moment. I am just asking your opinion. MR. ELDER : Perhaps I had better read the question : — "Are the inhabitants of the United Stat«s whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article I of the treaty of 1818 entitled to have for those vessels, when duly authorised by the United States in that behalf, the com- mercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally ? " I think it is a question whether the construction is not open to the one your Honour has suggested. In that case the necessity for the authorization by the United States is, I think, clear, from the fact that the United States itself is the power or party in which the right has been vested, and that it must give its authorization before there can be any exercise of it. Well now, with regard to the authorization, it appears repeatedly in the course of the correspondence between Mr. Root and Sir Edward Grey that the vessels on the treaty coasts were practically all registered vessels, and those were vessels which have a right to fish as well as trade and a right to trade as well as fish. It is the general authority of the United States given to them. And Mr. Root says on p. 979 of vol. ii of the United States Case Appendix : — "As this is conceded to be essentially ' a ship fishing,' and as neither in 1818 nor since could there be an American ship not owned and officered by Americans, it is probably quite unimportant which form of expression is used." ARGUMENT OF SAMUEL J. ELDER. 1513 Referring to the statutes themselves, pp. 1126 and 1127 of this same volume, section 4131 of the revised statutes says : — " Vessels registered pursuant to law and no others, except such as shall be duly qualified according to law for carrying on the coasting or fishing trade, shall be deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels; but no such vessel shall enjoy such benefits and privileges longer than it shall continue to be wholly owned by a citizen or citizens of the United States or a corporation created under the laws of any of the States thereof, and be commanded by a citizen of the United States. And all the officers of vessels of the United States who shall have charge of a watch, including pilots, shall in all cases be citizens of the United States. The word ' officers ' shall include the chief engi- neer and each assistant engineer," And so on. " And after the first day of January, eighteen hundred and ninety- seven, no person shall be qualified to hold a license as a commander or watch officer of a merchant vessel of the United States who is not a native born citizen, or whose naturalization as a citizen shall not have been fully completed." Then section 4132 :— " Vessels built within the United States, and belonging wholly to citizens thereof, and vessels which may be captured in war by citizens of the United States, and lawfully condemned as prize, or which may be adjudged to be forfeited for a breach of the laws of the United States, being wholly owned by citizens, and no others, may be registered " And so on. JUDGE GRAY: Is it with reference to those laws imposing citizen- ship upon all the officers of a registered American vessel that 915 the claim is made that a duly authorised or registered vessel for fishing has the right to exercise that liberty without inquiry as to the nationality of the fishermen or crews, and if so, what would be the case if those laws were repealed to-morrow as they could be ? MR. ELDER : That was a suggestion that I endeavoured to say some- thing about the other day. I take it that the form of authorization by the United States is a matter of importance to Great Britain. It is a matter into which Great Britain has a right of inquiry, and the way in which that authorization has been given in the past is what I am now calling attention to. If the United States should change that law and issue its registry to foreign-owned vessels, or to vessels, we will say, with- out American inhabitants, or to a foreign-owned vessel principally, it would then certainly be a question for Great Britain to consider whether the authorization which the United States was giving was satisfactory. But the point I am making is that the right vesting in the United States, the authorization must come from it, and must 1514 NORTH ATLANTIC COAST FISHERIES ARBITRATION. be a satisfactory authorization. And I will point out that this law, in some form, has been in effect since 1792. If you turn to pp. 1300 and 1301, the citations at the bottom of the page show the statutes from which they have come. They have not been traced down, but in substance it would appear from these citations that the regulations have been the same for upwards of a century. Mr. Root I think asserted in his letter, and it was not contradicted, that they had been the same since 1818. Take, for instance, p. 1300, section 4165 : — " Xo vessel which is registered, pursuant to any law of the United States, and which is seized or captured and condemned under the authority of any foreign power, or which by sale becomes the prop- erty of a foreigner, shall be entitled to or capable of receiving a new register, notwithstanding such vessel shall afterwards become Ameri- can property; but all such vessels shall be taken and considered, to all intents and purposes, as foreign vessels. Nothing in this section shall extend to or be construed to affect the person owning any vessel at the time of the seizure or capture of the same, or his executor or administrator, or shall prevent such owner or his executor or admin- istrator, in case he regains a property in such vessel "- JUDGE GRAY : I think we may take it for granted your assertion is correct about that — about the antiquity. THE PRESIDENT: But please, Mr. Elder, suppose that case should occur that has been referred to by Mr. Justice Gray, a repealing of that law, to what would Great Britain be entitled ? MR. ELDER: I think it would be entitled to the assurance of the United States Government in the form of registration, what is prac- tically a passport, that the ownership of the vessel, the principal in the transaction, was an inhabitant of the United States. THE PRESIDENT: Yes, but if the principle that only ships which belong entirely to United States citizens was abandoned by United States legislation, if a ship could fly the American flag if it were only half the property of American citizens, and half the property of foreigners, and if it were not necessary that the captain and others must be American citizens, to what would Great Britain be entitled then? MR. ELDER : I think Great Britain would be entitled to make diplo- matic representation to the United States that its certificate or au- thorization or passport to that vessel was not sufficient, that they were no longer assured that the owner of the property, the vessel that was assumed to exercise this treaty, was an inhabitant of the United States, and I think they would be justified in pressing that to the extreme point. THE PRESIDENT: Even to denying American fishermen the entry into their waters, or what do you mean by the " extreme point ?" MR. ELDER : So long as the vessel carried a certificate of the United States, the proper channel would be through diplomatic means. But ARGUMENT OF SAMUEL J. ELDER. 1515 it would seem to me entirely clear that the United States must give a sufficient passport for its ships; and that is pointed out by Mr. Root's communication with reference to it. JUDGE GRAY : I suppose the territorially of the deck of an Ameri- can vessel would not help the situation ? I do not think it would. MR. ELDER : No, I do not suppose it would. 916 SIR CHARLES FITZPATRICK: Under your laws as you now have them, without any change, what is the minimum tonnage required for registration purposes? MR. ELDER : I am sorry to say, Sir Charles, I cannot tell you. SIR CHARLES FITZPATRICK: Somewhere about 50 or 60 I suppose? MR. ELDER : I will ascertain that fact. SIR CHARLES FITZPATRICK: Assuming you have a vessel which is not large enough to be registered, and which is not registered, and that two or three or four of these hardy fishermen from the United States of whom you spoke, should come up in such a vessel to the Can- adian waters and fish in a vessel that under your law does not require to be registered, what position then would the Canadian authority be in? MR. ELDER: Why, if she had no fishing license, and had no register — - SIR CHARLES FITZPATRICK : But she has no registry. In what posi- tion would the man be who casts the line into the water ? MR. ELDER : He would be in the position of a man who might have got authority to fish, but who had not. SIR CHARLES FITZPATRICK : Then your argument must come back to this, that no inhabitant of the United States can go and fish in these waters unless he is on board an American registered vessel, or has express permission from the United States which he can exhibit when called for? MR. ELDER: A fishing license, precisely; it gets back to that and stops with that. And, with reference to the question of the possi- bility of change, as I have said before ; we are dealing with facts and realities, and these regulations have been in force one hundred years or more, and are not likely to change, especially in a matter with reference to the authorization to exercise the right of American fishermen. Mr. Root calls my attention to the fact that as to fishing licenses there is no limit to the size of the vessel. SIR CHARLES FITZPATRICK : As a matter of fact, do you issue fishing licenses to individuals? MR. ELDER : No, they are issued to a vessel. SIR CHARLES FIT/PATRICK : There is no fishing license issued to an individual ? MR. ELDER : I do not understand that there is. 1516 NORTH ATLANTIC COAST FISHERIES ARBITRATION. DR. DRAGO : The grant in the treaty is given to the " inhabitants of the United States" without any other qualification. But how this is to be ascertained the United States can regulate by their own municipal legislation. MR. ELDER : My proposition at the moment is, that the treaty being made with the United States, the rights of course run to the United States, and it is the United States that must authorize the exercise of the privilege, and of course by its own internal regulation it deter- mines how that authorization shall be issued. I have been calling attention to the way in which for very many years, in fact since the date of the treaty and earlier, the authorization has been given, be- cause Great Britain has been familiar with this practise of the United States during that whole period of time, and has assented to it. It is not now open to Great Britain, after an acquiescence ever since the treaty of 1818, and unquestionably earlier than that — it is not open to it now to question that form of authorization. It has been eminently satisfactory to them. DR. DRAGO: Is it not the only thing, under the treaty, for Great Britain to ascertain that the fishermen are inhabitants of the United States? Of course, according to your proposition, the best way of ascertaining that is to get a personal fishing license given or other voucher by the United States, and as the United States represent the inhabitants of their country, you say that their Government have the authority to give such licenses? MR. ELDER : That is it precisely. SIR CHARLES FITZPATRICK : Then to get back to my question again. Assuming a man is found fishing in Canadian waters, and he is not on a registered vessel, he is in an ordinary boat that is not regis- 917 tered, not an American vessel, an ordinary boat that is not registered, the Newfoundland Government proceeds against him for fishing in Canadian waters, he produces his certificate of naturalization, he proves to the satisfaction of the Newfoundland Court that he is an inhabitant of the United States, has the Court of Newfoundland any right to say: But you must in addition have the certificate from your Government? Mr. ELDER : Most decidedly. SIR CHARLES FITZPATRICK: How can they do that? MR. ELDER: The Canadian Government is entitled to have the certificate of the United States that this person or this vessel is entitled to exercise the privileges accorded to the United States. SIR CHARLES FITZPATRICK: Let us leave the vessel out of the case. Where do you find in the treaty any justification for that? So far as Newfoundland is concerned they are bound by the treaty. MR. ELDER : Possibly, but when they open the treaty they find it is made with the United States, that the United States is the contracting party. AEGUMENT OF SAMUEL, J. ELDEB. 1517 JUDGE GRAY : Is the grantee of the liberty, so to speak. MR. ELDER : Precisely. It is the grantee of the liberty, and until that grantee has given its authorization to the use of the liberty, the liberty cannot be exercised. THE PRESIDENT: But has not the United States acquired by the treaty the right for all its inhabitants to fish, and would it not be shortening the purport of the treaty if not all the inhabitants had the right, but only those who were licensed by the Government of the United States? Would it not be shortening the purport of the treaty ? MR. ELDER : I think not shortening it in any improper way. It is not depriving any inhabitant of the United States of the oppor- tunity to take fish in those waters, because he can in the simplest possible form get that authorization to do so. JUDGE GRAY : The United States could repeal the treaty to-morrow, and the repeal would be binding upon its own inhabitants. The Congress of the United States could repeal the treaty to-morrow, and that would be binding upon its own inhabitants. That is the line of your argument? MR. ELDER: Precisely. DR. DRAGO: A treaty of commerce entered into by the United States with another nation which gave to its citizens or inhabitants the right to go and exercise trade is more or less in the same position. Would it be necessary for those tradesmen, to get a license from the United States to do business in the foreign country ? MR. ELDER: I am very glad of the illustration, because it is a matter of common knowledge, that where we have treaties, or where any country has treaties by which its citizens are entitled to go in their own ship to another port and to trade, it is the ownership of the ship, it is the head of the enterprise that is considered; it has never been dreamt of that the exercise of that privilege could be only by a ship, all of the sailors in which, or on which, were citizens of the country receiving the privilege. DR. DRAGO: But I was not referring to vessels; I was referring to citizens of the United States going to a foreign country to carry on an industry or a trade under a privilege given by a treaty entered into by the United States. Would it be necessary for those people to get a license from their Government in order to exercise their in- O dustry or trade in that foreign country ? MR. ELDER: Would they not be sure to carry a passport of the United States? DR. DRAGO: In the case of fishermen carrying a passport or a document of identification to the effect that they are really inhab- itants of the United States, would they not be entitled to fish in the waters, according to the treaty provisions ? 1518 NORTH ATLANTIC COAST FISHERIES ARBITRATION. MR. ELDER: Even though the State Department had given no formal certificate that they were entitled to exercise the privilege? DR. DRAGO: Yes. 918 MR. ELDER: I think not, Sir. To put it the other way round, which is the true way, and the way Mr. Root put it, it is this: Newfoundland is entitled to know whether the man is an American or not, and whether the privilege is being exercised by persons who have been authorized by the United States to exercise it, and the only way in which Newfoundland can get that information is by something from the United States itself. To revert to trade and commerce, of which you have just spoken, suppose we had continued the old barriers as to trade and some nation, or nations, had a right to carry on commerce in the territory of another nation, and a lot of people came to exercise that right, to reside, to own lands, and to carry on commerce, which they would have no right to do in the absence of a treaty with the country, the country where they went to reside would be entitled to ask to see their passports. That is the certificate of their Government that they are the people who are entitled to exercise the right, and that, I conceive, to be practically what the registry or fishing license is, for a vessel, namely, it is the certificate of the Government that the vessel is so owned and managed, and that the rights of the master and owner of the vessel are being exercised by them in these waters. SIR CHARLES FITZPATRICK : That is absolutely right, because it is a certificate of the identity of the individual as an inhabitant of the United States. There is no doubt about that, and I presume that, under the terms of the treaty, all that a man would be required to produce would be his passport. But there is a vast difference between a passport, which is the identification of an individual as a citizen of a country, and a certificate which is an authority to do something. MR. ELDER: The certificate that the vessel receives is the identi- fication of the ship as an American ship, owned by Americans, and it carries with it as both Sir Edward Grey and Mr. Root said, in this correspondence, the right both to trade and to fish. JUDGE GRAY : It is essentially a ship fishery ? MR. ELDER: Decidedly a ship fishery. To revert to the point to which I had proceeded in my argument, the question then really is this : is the United States to be required to give a different certificate from the one that it has been giving for a hundred years to authorize the exercise of this treaty privilege? In such case must the United States, through its State Department, or through its Treasury Depart- ment, certify to another fact, not merely that the vessel is owned wholly in the United States, captained by an American citizen, and that every officer of the watch is an American citizen, but that every man on board the vessel is an inhabitant of the United States? To ARGUMENT OF SAMUEL J. ELDER. 1519 go a step further, the certificate that would be required is not that which has been satisfactory to Great Britain for a hundred years, but it is a certificate that all the persons on board who are going to fish are inhabitants of the United States, because that is precisely what Sir Edward Grey's contention came to — not that everybody on board an American vessel was an American citizen, but that everybody on board who was going to fish was an American. So we have a reductio ad absurdum a certificate from the United States, going beyond all previous certificates and certifying that everybody on board a vessel who is going to fish is an inhabitant of the United States. All that Sir Edward Grey himself asked, and he did ask that, was that the certificate should contain the statement that the persons on board who were going to fish were inhabitants of the United States, United States Case Appendix, vol. ii, p. 976 : — " His Majesty's Government are unable to agree to these proposi- tions," I ought to have stated that propositions 4, 5, and 6, which I have already read, are the ones which he is discussing — — except with the reservations as to the status of American vessels under the Convention already indicated, and with reference to propo- sition 6. they would submit that the assurance to be given by the Department of State of the United States should be that the persons by whom the fishery is to be exercised from the American vessels are inhabitants of the United States." So that the point to which my argument has come is the point to which Sir Edward Grey has come, and that is that he insists that the certificate hitherto granted by the United States is not sufficient and that it must contain something further, namely, the 919 assurance of the State Department of the United States that the persons by whom the fishery is to be exercised from Ameri- can vessels are inhabitants of the United States. Now that is an analysis of the question which it seemed to me de- sirable to make in order to appreciate it fully, and my answer to that proposition is that the fact that Great Britain has been contented with a certificate issued since 1818 is the strongest possible reason why the United States should not be compelled to change it now, especially under the circumstances of stress that have been apparent in New- foundland. The next answer I would make is that at the time of the treaty of 1818 the practice, not only of the United States but of Great Britain and all other countries, was to employ on board their ships men of various nationalities, and the treaty was made with that fact well-known and understood by the negotiators. Before I come to that, though — it leads into it — I ought to speak of a matter on which Great Britain has quite largely relied in its 92909°— S. Doc. 870, 61-3, vol 10 40 1520 KOBTH ATLANTIC COAST FISHERIES ARBITRATION. argument. It is a report of Mr. Evarts, as Secretary of State, to the President, on the occurrence at Fortune Bay, and it bears date the 17th May, 1880. I refer the Tribunal to p. 284 of the British Case Appendix. Mr. Evarts says : — " This being the subject of the grant and this the title and posses- sion of the grantor, what is the Treaty description of the estate, right, and privilege granted to the United States for the enjoyment of its citizens? The text of the Fishery Articles of the Treaty of Washington shows that there was no limitation whatever upon the grant, except that the estate, right, and privilege granted were to endure but for a term of years, and were to be enjoyed by the United States, not exclusively, but in common with Great Britain. There was, to be sure, a restriction imposed upon both countries which excluded both equally from extending the enjoyment of cither's share of the common fishery beyond the ' inhabitants of the United States ' on the one side, and 'Her Britannic Majesty's subjects' on the other, thus disabling either Government from impairing the share of the other by introducing foreign fishermen into the common fishery. But this feature in the grant has no significance in the measure of the concession as now disputed by Great Britain and contended for by the United States." The argument drawn by Great Britain is that Mr. Evarts was dealing with the composition of fishing crews, and that he expressly indicates that no one can be introduced into the fishery, even as an employee or servant, unless he is an inhabitant of the United States. It requires only the reading of the entire report and a brief consider- ation of the entire situation to show that Mr. Evarts was dealing with nothing of the sort. No question had been raised of the right of inhabitants of the United States to employ foreigners on their ves- sels, Newfoundlanders among the rest. He had no such subject under consideration. It had not been mentioned. What he was dealing with was what the grantee could do, or what the United States, as the United States, could do, and he expressly pointed out that neither the United States nor Great Britain could grant any portion of the right to a foreign power. The whole paragraph that precedes the one which I have just read indicates that. Mr. Evarts says: — " That the British proprietorship in, and dominion over, this in- shore fishery was perfect, absolute, and without incumbrance or lim- itations, and that this was the subject concerning which the negotia- tions were occupied, and by and to which the Treaty equivalents were to be measured and applied, was certainly never doubted by the nego- tiators of this Treaty on the part of the United States or of Great Britain. Whatever this fishery was in its natural extent and value, in its geographical area and its multitude and variety of fish-prod- ucts, that was the subject of which Great Britain possessed the jus disponendi and that the subject of which the United States proposed to acquire an undivided share," ARGUMENT OF SAMUEL, J. ELDER. 1521 The whole language being the language of a conveyance of title : — " The proportion of this fishery which Great Britain was to part with, and the United States was to appropriate, does not affect the question of what the entire property was and was understood to be. Whatever the United States would have acquired had Great Britain parted with the whole fishery, the subject partitioned between them was this entirety, no matter what the shares in which it was to be enjoyed might be. It is equally clear that the negotiators on both sides assumed that Great Britain was dealing with this subject as sole owner, and that it had impaired neither its title nor its possession by any previous grant or encumbrance. Whatever right and enjoy- ment, then, by proprietorship and dominion Great Britain in its political sovereignty could impart to ' the subjects of Her Britannic Majesty,' that right and enjoyment Great Britain could impart ' to the inhabitants of the United States.' ': The whole language shows that what he is dealing with is the pos- sibility of a grant by one Government, or the other Govern- 920 ment, to some other Power, in the nature of a legal grant, and the last thing in his mind, one that had never been called to his attention, was what the composition of fishing crews should be. But this Fortune Bay case is very important when we consider the affidavits connected with it. The affidavits that were before Mr. Evarts and the affidavits that were before Lord Salisbury showed that other than inhabitants of the United States were fishing for Americans at that very time in Fortune Bay. It seems to me that this is a most significant fact. Lord Salisbury resisted any payment to the United States on account of interference with Americans at Fortune Bay. The correspondence was long and well-nigh acrimo- nious. Everything that the United States fishermen had done in violation of any colonial law was set out; everything that could be supposed to be a violation of the treaty was set out. It was then the treaty of 1871, you will remember, but in so far as these fishing privi- leges are concerned, they run along side by side. The violation of the treaty that Lord Salisbury relied upon was that in the course of the fishing with a large net, which was taking fish for the entire fleet and would have taken enough fish in that one haul to fill the bar- rels of the entire fleet, one end of the net was made fast on the shore. His contention, in so far as interference with the treaty right was concerned, was confined to that sole and single infraction of the treaty right. For the rest, he relied upon a violation and infringe- ment of the statutes of Newfoundland, and he never, in the whole correspondence, which disclosed that many of the persons employed were not inhabitants of the United States, raised this question, or dreamed apparently that any such question could be raised as that which is raised now. Let me call the attention of the Tribunal to the letter of Mr. McLaughlin to Mr. Seward, under date of the 2nd 1522 NORTH ATLANTIC COAST FISHERIES ARBITRATION. April, 1878, which is to be found at p. 648 of the United States Case Appendix : — " On Sunday, January 13, three crews of American schooners, assisted by some Newfoundlanders, put out their seines to haul her- ring; they all succeeded in getting large quantities in their seines, when the fishermen of the bay (Newfoundlanders) gathered together and went to each of the captains and demanded that they should let the herring go out of their seines." A little further down on p. 648 : — " The first captain they addressed (Capt. James McDonald, of schooner F. A. Smith) acceded to their demands and took up his seine; the second, Captain Jacobs, of schooner Moses Adams, had in the meantime run his herring into another seine belonging to a seine- master (Mr. Farroll, of Fortune Bay "- A native — " who was working with him, and which was moored inside of his own) ; he took up his own seine into his boat, but refused to let the herring out of the other one." Page 649 :— " In the winter of 1876-77 a similar case occurred, one of the American seines being put out on Sunday by the crew, in charge of a Newfoundlander as seine-master, Jeremiah Petites. The people of the bay demanded that the seines should not be hauled, and it was accordingly tripped and taken up by the owners, no further difficulty occurring." Page 676:— " A conversation took place between Ryan and Cooper, the purport of which is given by Cooper, and confirmed by Ryan. Ryan said to Cooper that he was a Newfoundlander, and could seine; Cooper re- plied that he could not. Ryan said he would; and Cooper replied ' you'd better try.' Not a word was said by McFaden. " After the short conversation, which lasted a few minutes, Ryan and the master of the schooner went down to Lower Lances Cove, which is a short distance from Aspey Cove, and there shot their seine, and hauled some herring." Page 691. This is the deposition of Mark Bolt, and these deposi- tions seem to have been taken before the senior naval officer on that station, so that they were British affidavits : — " One Sunday in January last John Hickey, Newfoundlander, came first and hove his seine out. Five Newfoundlanders came and told him to take it up, and he did not ; then others came and insisted upon it, then he took it up. If he had then refused to take it up it would have been torn up. " Then Jacobs, an American, came and laid his seine out and hauled about 100 barrels of herring in the big American seine, and capsized into Tom Farrel's seine — a Newfoundland fishermen em- ployed by Jacobs and fishing for him. AKGUMENT OP SAMUEL J. ELDER. 1523 921 " Philip Farrel was also fishing for the Americans, being master of McCauley's seine. The Newfoundlanders then cap- sized Tom Farrel's seine of fish," A little farther down : — " They went to McCauley, an American, who had laid his seine out for barring herring ; this American also employed a Newfoundlander to lay his seine out." Still farther down : — "The Americans were often set afterwards, but not on Sunday; the Americans did not leave off catching herring after this on other days. The English did not prevent the Americans hauling their seines, but the Americans usually employed the English to haul them, as their crews were not sufficient in number, and are not acquainted with the work. The American crews are employed salting and freez- ing the fish, while the English employed by them with the American seines are catching them." Page 698 ; this is the deposition of John Cluett : — " Q. Tell me what you know of it? — A. They commenced hauling herrings on Sunday, about mid-day. The first American seine shot was Captain Jacobs '. There were two more American seines shot. There was an Englishman working for the Americans who had a seine moored there for several days, but it was not shot or attempted to be hauled on the Sunday." Page 699 :— " If there was not a good feeling and mutual understanding be- tween all fishermen, whether foreigners or Englishmen, there would be no law carried out or upheld at all, but there was always prior to this a very good feeling and a mutual understanding between the Americans and ourselves, and I don't know anything to prevent the same in future. After the destruction of McCauley's seine some of the American schooners, one of which was Peter Smith's, drifted about the harbour among the fishermen's nets when blowing hard, with their anchors hanging to their bows, and destroyed several nets." That does not seem to have been the correct passage. At the bot- tom of the page : — " I, Charles Dagle, . . . sailed from Gloucester on the 6th De- cember, 1877, for Fortune Bay, Newfoundland, for a load of herring. The last year (1877) I had sold a seine and boat to parties in New- foundland, and they were to supply me with herring in payment for the seine and boat." Page 701 ; deposition of James McDonald : — " I carried a large purse seine, such as is used to take mackerel. ... I employed Newfoundland fishermen to operate the seine. I set my seine twice "- And so on. Page 703 ; deposition of David Malanson : — " The Newfoundland fishermen have for years been in the habit of selling all the herring to American vessels. I have been there eight years, and I have always bought my herring, or engaged the Newfoundlanders to take them for me, paying them in cash." 1524 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Page 704:— " I should say that there are at least 100 cargoes of herring taken from Newfoundland yearly by American vessels, and as things are now it would be useless for American vessels to go there for herring unless they bought the herring from the inhabitants at whatever price they may see fit to ask. This American trade has been a great benefit to Newfoundland, and the change in the manner of taking herring will greatly reduce the amount of money paid them for herring." Deposition of Edward Stapleton, on same page : — " I carried a seine with me, and employed Newfoundland fishermen to operate it for me." This brings me to another branch, unless it be the pleasure of the Tribunal to adjourn now. THE PRESIDENT : We will continue to-morrow at 10 o'clock. [Thereupon, at 4.2 o'clock p. M., the Tribunal adjourned until to- morrow, Friday, the 22nd July, 1910, at 10 o'clock A. M.] 922 TWENTY-EIGHTH DAY: FRIDAY, JULY 22, 1910. The Tribunal met at 10 A. M. THE PRESIDENT: Will you please continue, Mr. Elder. MR. ELDER (resuming) : The citation which Sir Charles desired is United States Counter-Case Appendix, p. 205, and is a letter of the 25th July, 1905, from the Department of State, written by Mr. Adee to the British Minister, Mr. Durand, with reference to Captain Alex- ander's visit to the coast. With reference to the questions asked me late yesterday afternoon, I think it should be said that I had in mind the authorization of vessels, and that I was directing my replies in that direction, and did not have in mind qualifications that would come where indi- viduals alone were to be considered. It would seem where a nation held rights for the benefit of its subjects, and had passed no restrictive legislation with reference to its exercise or restraint, that the subjects would be presumed to have the authorization of the nation for their exercise. One thing more; of course, in the emphasis I was seeking to lay upon the ninety years of practise of the United States with regard to its authorization by registry and by licence, and the acquiescence of Great Britain in that form of authorisation, I was not intending to express the opinion that the United States could not change that authorization, or that the benefit could not be preserved by the making of other regulations. ARGUMENT OF SAMUEL J. ELDER. 1525 To continue the discussion of Question 2; the employment of foreigners on British ships and United States ships was well known in 1818 when this treaty was made. As far back as 1G60 (British Case Appendix, p. 514), we find the Act of 12 Charles II, cap. 18. In the first paragraph it says, speak- ing of persons who are to exercise the fishery right and so on : — " only to the people of England or Ireland, Dominion of "Wales or town of Berwick upon Tweed or of the built of and belonging to any of the said lands, islands, plantations or territories, as the proprietors and right owners thereof, and whereof the Master and three fourths of ttie Mariners at least are English ;" That is found in paragraph 2. Then at the bottom of the page it is repeated : — " That no goods or commodities whatsoever, of the growth, produc- tion or manufacture of Africa, Asia or America, or of any part thereof, or which are described or laid down in the usual maps or cards of those places, be imported into England, Ireland, or Wales, Islands of Guernsey and Jersey, or town of Berwick upon Tweed, in any other ship or ships, vessel or vessels whatsoever, but in such as do truly and without fraud belong only to the people of England or Ireland, dominion of Wales, or town of Berwick upon Tweed, or of the lands, islands, plantations or territories in Asia, Africa or America, to his Majesty belonging, as the proprietors and right owners thereof, and whereof the master, and three fourths at least of the mariners are English ; " The statute was with reference to importation, and the citation is solely for the purpose of showing that as early as 1660 the composite character of British crews was recognized. I now come to the statute of 1699, on which Great Britain so largely relied, p. 525. I trust the Tribunal will do me the favour of following that statute, because great stress is laid upon it. I must beg the Tribunal to allow me to read the first section :— " ' Whereas the trade of and fishing at Newfoundland is a beneficial trade to this kingdom, not only in the employing great numbers of seamen and ships, and exporting and consuming great quantities of provisions and manufactures of this realm, whereby many tradesmen and poor artificers are kept at work, but also in bringing into this nation, by returns of the effects of the said fishery from other coun- tries, great quantities of wine, oil, plate, iron, wool, and sundry other useful commodities, to the increase of His Majesty's revenue, arid the encouragement of trade and navigation'; Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Par- liament assembled, and by the authority of the same. That 923 from henceforth it shall and may be lawful for all His Majes- ty's subjects residing within this his realm of England, or the dominions thereunto belonging, trading or that shall trade to New- foundland, and the seas, rivers, lakes, creeks, harbours in or about 1526 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Newfoundland, or any of the islands adjoining or adjacent thereunto, to have, use, and enjoy the free trade and traffic, and art of merchan- dise and fishery, to and from Newfoundland, and peaceably to have, use, and enjoy, the freedom of taking bait and fishing in any of the rivers, lakes, creeks, harbours, or roads, in or about Newfoundland, and the said seas, or any of the islands adjacent thereunto, and lib- erty to go on shore on any part of Newfoundland, or any oi the said islands for the curing, salting, drying, and husbanding of their fish, and for making of oil, and to cut down woods and trees there for building and making or repairing of stages, ship-rooms, train-vats, hurdles, ships, boats, and other necessaries for themselves and their servants, seamen, and fishermen, and all other things which may be useful or advantageous to their fishing trade, as fully and freely as at any time heretofore hath been used or enjoyed there by any of the subjects of His Majesty's Royal predecessors, without any hindrance, interruption, denial or disturbance of or from any person or persons whatsoever; and that no alien or stranger whatsoever (not residing within the kingdom of England, dominion of Wales, or town of Ber- wick upon Tweed) shall at any time hereafter take any bait, or use any sort of trade or fishing whatsoever in Newfoundland, or in any of the said islands or places above-mentioned." To whom is that statute directed ? To the ship-owners engaged in trade at Newfoundland and in the trade of fishing. The matter of trade and of fishing are coupled together. The regulations relate to them both. The business of fishing, the enterprise of fishing, is coupled with the business and enterprise of trade and with the com- merce of Great Britain, and the merely incidental mention of their servants, seamen and fishermen, shows that it was not the servants, seamen or fishermen that were being considered or dealt with, but that the trade in which they were employed, the benefit of which was to be preserved to His Majesty's subjects. Turning over to the next page the word " trade " is used through- out, showing that the " enterprise," the capital invested, the profit and benefit which were to come back to these particular parts of the British dominions as the result of this trade and traffic was the only object of the legislation, without the slightest thought of fixing who the members of the fishing crews should be. Those were the " servants, seamen and fishermen." JUDGE GRAY : They carried on the trade by means of servants and fishermen ? MR. ELDER: Precisely. But on p. 526, section 9, the statute does provide something with regard to the crews : — "And be it further enacted by the authorities aforesaid, That every master of a by-boat or by-boats shall carry with him at least two fresh men in six (viz.) one man that hath made no more than one voyage, and one man who hath never been at sea before; and that every inhabitant shall be obliged to employ two such fresh men "- And so on. ARGUMENT OF SAMUEL J. ELDER. 1527 It is not provided that those fresh men shall be British subjects. There is nothing in conflict with the previous statute with regard to three-fourths of the crew being British, with a fair implicaton that the other quarter might be of other nationalities. All that is said by our learned friend with regard to the desire of Great Britain to build up a navy and mercantile marine is true, but Great Britain was glad to get sailors from every source, and in that provision it is notable that while the Act carefully provides with regard to the character of at least two men, there is no provision that British subjects shall be the ones that are so brought up to the trade of fishing. THE PRESIDENT: But. would foreigners have been of use to the British navy? MR. ELDER: Oh, unquestionably. Our own navy, in the last war, was composed quite considerably of men of other nationalities; and, I think that has been true of the history of all naval wars. Coming to the British statute of 1775, at p. 543, the statute with regard to bounties, of which I spoke, and without reading all the way down through, it speaks in the fifth line of : — " fishermen, sailors, and others emploved therein, to the ports of Great Britain." very much as the other statute did. And, coming down to a little above the middle of that page the sentence begins : — " That from and after the first Day of January, one thousand seven hundred and seventy-six the respective bounties hereinafter men- tioned shall be paid and allowed annually, for eleven years 924 for a certain number of ships or vessels employed in the Brit- ish fishery on the banks of Newfoundland, under the limita- tions and restrictions hereinafter expressed, that is to say, such ves- sels shall appear by their register to be British built, and owned by His Majesty's subjects residing in Great Britain or Ireland, or the islands of Guernsey, Jersey or Man; and be of the burthen of fifty tons or upwards, and navigated with not less than fifteen men each, three-fourths of whom, besides the master, shall be His Majesty's subjects; and in other respects qualified, and subject to the same rules and restrictions, as are described." And so on. And, for that class of vessel, 40 pounds is given as a bounty under certain conditions. So that the fact, which I suppose is well-nigh common knowledge, that crews are composite, made up of various nationalities, and have been from the earliest times, is recognized in these very statutes with regard to bounties. Now, the same thing was true in the United States. I will read from a copy of Sabine's report at p. 152. It is a copy of circular in- structions to certain Collectors of Customs relating to fishing allow- 1528 NORTH ATI/ANTIC COAST FISHERIES ARBITRATION. ances, and is dated Treasury Department, 20th February, 1852, and is signed by the Secretary of the Treasury. On p. 152 near the bottom, paragraph marked 2, it says, no fishing vessel is entitled to the allowance of bounty unless it is shown by sufficient proof that the master and three- fourths of her crew are citizens of the United States. At p. 151 it appears at the middle of the page, in Mr. Sabine's language, that the question of bounty allowances to vessels employed in the fisheries will next engage our attention. The Act now in force was passed by Congress in 1819, and its provisions, the construc- tion given to it, as well as the rules to be observed by the collectors of the customs, will be found in the circular of the Secretary of the Treasury of the 20th February, 1852, from which I have just read a portion. It would seem from the circular itself that this provision really antedated 1819. At the top of p. 164 it says, from the original Act of the 16th February, 1792, changing the drawback on dried fish ex- ported, to a bounty on the tonnage of vessels employed in the bank or other cod fisheries, it has always been held that to entitle any fishing vessel to the bounty, and so on. That is not the qualification, because he does not repeat the statement with regard to the three- fourths, but apparently the Act of 1819 was a continuation of the previous law with regard to bounties. It is to be said that Great Britain recognised that our crews were made up compositely prior to the war of 1812, and one of the occa- sions of the war of 1812 was the search of our vessels for persons al- leged to be British subjects. That is a matter of common knowledge, but it is stated in the British Case, at p. 7, near the top. It was to prevent depletion of her force of sailors that Great Britain insisted upon the right to stop United States vessels on the high seas in order to search for British seamen, and it was the enforcement of that claim which was one of the causes of the war of 1812. That, it will be remembered, was not merely a seizure of persons alleged to have deserted, but a. claim of right to search vessels for British subjects who had improperly sought to denationalize them- selves. And we beg to say that that well known composite character of crews at the time of this treaty was and must have been in the minds of the negotiators, and they must have framed the treaty with that full understanding. It is not confined, however, to that period. The employment of foreigners on our vessels has gone on to the present time, with Eng- land's full knowledge. I refer to the United States Counter-Case Appendix, at p. 211. This is a report of Mr. Paul Crowell upon the fisheries in the British colonies, the 10th February, 1852. He is speaking of illegal trade on ABGUMENT OP SAMTJEX, J. ELDEB. 1529 the coast of Nova Scotia. I refer to the portion near the middle of the page: — " Some of the coves where they resort have fine streams of fresh water, with rum shops near by," It was not for that purpose I read the quotation : — " which give them an opportunity " (they are the Americans) " of taking on shore a barrel of the American manufactured brandy, and bringing in return the pure fresh water ; and as many of the crew of these vessels were actually residents of these places, they think they have the same privileges as those who sail in British vessels; and as they have been habituated to go." 925 Showing at that point that American fishing-vessels, the kind complained of, were then known to have Nova Scotians on board. Take another illustration : the schooner " Crittenden " put into port, and it appears (entirely incidentally) that some of the crew were inhabitants of the Nova Scotian port where they had put in. That appears in the United States Case Appendix, p. 896. This was at the Gut of Canso. I will turn to that. This is Mr. Carr to the Minister of Marine, dated Steep Creek, the 1st November, 1886 :— " They also landed a man the same day with his effects, and on their return from Gloucester to the Bay St. Lawrence they shipped a man. Was looking out for the vessel, but could not catch her. . The case is that of the " Pearl Nelson." It is in the United States Case Appendix, p. 845. This is the affidavit of the captain of the "Pearl Nelson," the United States fishing- vessel which was from Provincetown and put in at Arichat : — " I concluded to make a harbor and wait for better weather and wind. I anchored the vessel in Arichat Harbor at 11 p. m., Septem- ber 7, 1886. I had lost a man on the Grand Banks, named James Sampson, who belonged to Arichat, and I wanted to land his effects if the customs officers would allow me to. Some of my crew belonged in that neighborhood. William Babins, my cook, and nine others of the crew took boats off the deck and went ashore." And so on. This was the subject of the seizure, for not reporting, or not enter- ing. In that case this vessel did not enter because she did not get in until 11 in the evening. The captain put in because of heavy weather. Some of the crew went ashore during the night without his knowledge, and when he sought to report in the morning he was brought to book. But, the point about it is that, in all this discus- sion that took place with regard to the boat it never was suggested that the boat was improperly exercising its rights because it had Nova Scotians on board. JUDGE GRAY: As a matter of fact, Mr. Elder, (this is outside of the record perhaps) , was it not a matter of daily news in the papers, 1530 NORTH ATLANTIC COAST FISHERIES ARBITRATION. when giving the losses of the fleets up there, to give the number of the crews, the Nova Scotians or other nationalities ? Was not that a matter of public notoriety ? MR. ELDER : Yes. Our vessels, as a matter of common knowledge, had the inhabitants of Nova Scotia, Cape Breton, and Newfound- land on board to a considerable extent. This is recognised with great frankness by Sir Robert Bond, though he was not addressing himself to that particular point. I refer to the United States Counter-Case Appendix, at p. 415, which is his speech of the 7th April, 1905, at the bottom of the page : — " It is only necessary to have reference to those records " (that is the United States records) " to be convinced of the fact that out of 8,000 fishermen who man the fishing fleets of New England some 4,000 are Newfoundlanders, about 1,500 are of American birth, and the balance consists of Nova Scotians, New Brunswickers, Portu- guese and Scandinavians. We learn that in some instances whole crews of vessels sailing out of Gloucester are made up of Nova Scotians. The Gloucester News, of November 20. 1902, gave an inter- esting report of the three months' trip of the Schooner Aloha, owned by Messrs. Cunningham & Thompson, in which it was stated that the ' skipper was a native of West Bay, Cape Breton, while his fishery lads were the flower of Shelburne County, N. S.' ': Mr. Root made mention of this well-known fact in his letter to Mr. Reid, from which considerable has been read. It is at the very bot- tom of that page (United States Case Appendix, p. 979). " In 1818 and ever since it has been customary for the owners and masters of fishing-vessels to employ crews of various nationalities. During all that period I am not able to discover that any suggestion has ever been made of a right to scrutinise the nationality of the crews em- ployed on the vessels regarding which the treaty right has been exercised." Now that was the letter which began the exact and exhaustive dis- cussion between the two Governments with regard to this and other points, it being, however, I believe, the first time when that question had been raised between the two Governments, namely, in 1905. Sir Edward Grey replied, and the part of his letter that I desire to quote is at p. 1005 of the Appendix to the Case of the United States, vol. ii. He does not deny, and never did question, the absolute accuracy of Mr. Root's statement with regard to 926 the nationality of the crews from 1818 down, and the matter was before his mind, because, on that page, he makes the only denial that he could make, apparently. I read from next to the last paragraph : — " It may be as well to mention incidentally in regard to Mr. Root's contention that no claim to place any such restriction on the French right of fishery was ever put forward by Great Britain; that there ABGUMENT OP SAMUEL J. ELDER. 1531 was never any occasion to advance it, for the reason that foreigners other than Frenchmen were never employed by French fishing vessels." I think it is a matter of common knowledge that French crews are more homogeneous than any other, but, in this important state- ment of what the rights of Great Britain are, Sir Edward Grey does not question the contention of Mr. Root, and I believe that this is a letter which he wrote after having had the advantage of an interview with Sir Robert Bond. The letter was written on the 20th June, 1907, so that more than a year had elapsed; and it was written after he had had the opportunity of meeting Sir Robert Bond and had taken all these subjects into account. Captain Anstruther's report, in 1905, to which I have alluded, appears to be sustained there. I shall not stop to turn to the page, but he says that Newfoundlanders have always worked for the Americans, and one of their grievances was that they were prevented from doing the thing that they had always done. So we do submit most respectfully to the Tribunal that a practice well known in 1818 to both countries, a practice followed from 1818 without dissent, down to 1905, in the exercise of this liberty of fishing, is controlling of the meaning that the treaty ought to receive. Again, it has already appeared in the reading of those English statutes, that this is a trade, or business, or enterprise, and is to be conducted as business enterprises and industrial enterprises are con- ducted with such help as you can hire, such men as you can get, the most efficient men, and the men who can be had at reasonable rates of wage. I want to call the attention of the Tribunal to the fact that it is over and over again demonstrated in all this correspondence that the fishing that was spoken of in the treaty, and which was in the contemplation of the parties, was a fishing business. Of course, no one pretends that the inhabitants of the United States were each to take his own fish up there, and that he could not employ any one. It was expected that it would be done by others, and, being a trade and business for profit, it was clearly one that would be conducted in the ordinary way, and the negotiators so understood it. But, to revert just for an instant, nothing is clearer in our law than that a fishing for profit — not a gentleman's fishing, or hunting, or that of his guests, or his family — but fishing for profit may be done by a man's servants and Manchester v. Norfolk, a case to which allusion has been made, and the case of Wickham v. Hawker, 7 M. and W., p. 63, are authorities which distinctly show the common law of Great Britain on this subject. Now, the learned counsel who preceded me cited a case from the Supreme Court of Oregon. I do not assume that he supposes that the common law of these two countries, announced both in England 1532 NORTH ATLANTIC COAST FISHERIES ARBITRATION. and in America, without question, was overturned by this decision in Oregon in 1887. The excerpts from the decision do not make it en- tirely plain what the case turns upon, but apparently it was the con- struction of a deed given by the owner of land to other parties, of the rights of hunting in that property to the grantee, his heirs and assigns. It was the construction of that deed which the Court re- garded as the turning-point in that case. The terms of it are set out. It seems that the complainant had himself issued licenses and sent all sorts of people into this property ; they treated the owners of the property with great contempt and insult, and apparently the con- troversy arose in that way, as the Court suggests. The Court holds in that case that the termination of the grant was justified. From the language of these excerpts it appears that : — "A grant of this description is construed by the Court. The Court is therefore of the opinion that such permits were unauthorized and not within the purview of the privilege granted." So that the complainant himself was guilty of a breach of this con- tract. It can go no farther than a construction of that contract. Well now, the case of Wickham v. Hawker is referred to. The learned counsel admits that this American case did not over-rule it, and it did not. Apparently no dissent is suggested to that case. There does not seem to be, in the Judges' opinion, any intention to qualify or to express disapproval of it. That this is a busi- 927 ness to be carried on for profit is shown by the cases of 1669 and 1775 to which I have referred, and Mr. Ewart expressly so stated himself. It is interesting to note that it is not only a fishing for profit, or for the serving of the inhabitants of the United States with food fish, but that it was clearly a business which was to be conducted with foreign countries as well. For instance, in 1793, the 24th April, a committee of the House of Commons of Great Britain was appointed to inquire into the state of the trade to Newfoundland (United States Counter-Case Appendix, p. 562), and I want to stop to turn to that. I have the excerpt written out, but it can be verified : — • "As they "— The United States fishermen — " can build and fit out ships cheaper, pay less for their provisions, and less wages to their seamen and Fishermen than the British trader can or does, they can sell their Fish for a less price than he can afford to take, and they have accordingly almost beat out the British traders from all the markets on the coast of the Atlantic; and although the Barbary States are at war with them, they find means to procure Mediterranean passes through their friends in Novia Scotia, to pro- tect them in carrying their Fish within the Streights, where it is pre- ferred to the Newfoundland bank Fish." ARGUMENT OF SAMUEL J. ELDEB. 1533 It is quite interesting that Adams, the earlier, tells us, at p. 101 of the British Counter-Case Appendix, about the conduct of the fisheries off Labrador and on the northern shore of Newfoundland. He says that the fish are taken directly abroad from there and that he was interested in one of these ventures himself. He says : " Our fishermen from Boston, Salem, Newbury, Marblehead, Cape Ann, Cape Cod, and Nantucket, have frequently gone out on the fish- eries to the Straits of Belle-He, north part of Newfoundland, and the banks adjacent thereto, there to continue the whole season, and have made use of the north part of Newfoundland, the Labrador coast in the Straits of Belle-He, to cure their fish which they have taken in and about those coasts. I have known several instances of vessels going there to load in the fall of the year, with the fish taken and cured at these places for Spain, Portugal, &c. I was once concerned in a voyage of that kind myself, and speak from my own knowledge." In 1845 (United States Case Appendix, p. 1068) in a report by a committee to the Assembly of Newfoundland, to which the President called attention when Sir James Winter was speaking, they say that :— " The American fishery is encouraged by a bounty of twenty shil- lings per ton, and the supply of their own markets protected by a duty of five shillings per quintal on foreign fish." In 1846 and 1847 there was another report, which appears on p. 1071 of the same volume, and which says : — " It creates an unequal competition in the markets in Europe and the West Indies, most injurious to Your Majesty's subjects engaged in the Fisheries. British fi<=h must be sold in these markets at the same rate as the fish of the French and Americans, caught under the protection of enormous bounties." Our argument, which we present most respectfully, is that a trade authorized by a treaty is supposed to be conducted in the usual and ordinary way of trades and industrial enterprises, with the employ- ment of such help as you can get, to the best advantage. A word as to the treaty and as to the word " inhabitants." Our friends seem to think that there was a kind of guarantee or protec- tion to Great Britain in the use of the word " inhabitants." I want to call attention to the vagueness of the meaning of the word " in- habitants." A Frenchman, Spaniard, Norwegian, or Newfound- lander can come to Gloucester, and if he affirm the intention of re- maining there, he may and does become a resident. His domicile be- comes that because he has changed his place of residence. He is still a subject of France, or of Spain, or of Norway, or of Great Britain, under our naturalization laws, for some years. Sometimes we are told that the period is quite short, but under the law it is quite long, but he is an inhabitant, and, under the terms of this treaty, is entitled to fish, I submit, without going into that matter more fully, that the 1534 NORTH ATLANTIC COAST FISHERIES ARBITRATION. argument with regard to France and Spain proves too much. It would appear to prove that a subject of the King of France, now a citizen of the republic of France, must be barred from these fisheries ; it would go to the extent of his being barred after he became entitled uryjer this treaty because he was an inhabitant. There must have been a recognition at that time of the enormous influx into the 928 United States of foreigners, who became inhabitants the mo- ment they landed, because their intention was well formed. It can hardly be that the British negotiators assumed that the King was protecting his fisheries by the use of such a word as that. Allusion has been made to other treaties — the Jay Treaty and the treaty of 1815 — in reference to this matter. These were treaties of commerce and citizens of the United States were entitled to go with their vessels, but, has it ever been suggested that citizens of the United States, whose vessels exercised that right, must employ nothing but citizens of the United States on board, against the well-known prac- tice of employing all sorts of people ? Sailors are inhabitants of the world and they ship wherever they are ashore, after their last money has been spent. Business has been conducted under these treaties, as it has under the treaty of 1818, in the usual and ordinary way. Now, I am not unaware that Great Britain seeks to have this Tri- bunal answer another question, and, in fact two others, as the Argu- ment appears, namely, the effect of the statutes of Newfoundland, and also the effect of the treaties with France and Spain. The United States deny most emphatically that any such questions are submitted to this Tribunal. The question which is clearly and sharply pre- sented to this Tribunal is one of inhabitancy. There may be any number of disqualifications of the individual to a particular occupa- tion, but the one that these two countries presented to this Tribunal was the question of inhabitancy. Was non-inhabitancy of the United States a disqualification under this treaty, or was it not ? There was the underlying question which was important to these two countries, and they have brought it here, and, as I have said, and do say with the greatest earnestness, the United States denies that any further question was presented for determination here. The Tribunal, at an earlier stage, during the argument, I think, of Senator Turner, made the inquiry whether a decision of this question would not be res adju- dicata concerning the effect of Newfoundland statutes, and with ref- erence to that I have two things to say. The first is this: In deter- mining what a decision of the Court adjudicates, not only the de- cision, but the pleadings, the written statements made by the parties and the evidence in the case may, and must be, gone into, to see ex- actly what the Tribunal or the Court was dealing with and what its decision did determine. I refer the Tribunal to the United States Counter-Case, p. 45 ; — ARGUMENT OF SAMUEL J. ELDER. 1535 " It is evident, therefore, that this Question asks simply whether or not the treaty permits the inhabitants of the United States to employ as members of the fishing crews of their vessels on the treaty coasts persons of other nationalities who are not inhabitants of the United States. The British Case, however, brings up for discussion in con- nection with this Question the further question of whether under this treaty Great Britain parted with its control over its own subjects, which the United States regards as wholly outside of the scope and meaning of Question 2. " Referring to this new question the British Case says." Then it quotes from the British Case. At the top of p. 46 I con- tinue reading: — " And, after stating the British position on this point and reserv- ing ' further discussion of the point until they are in possession of the Case of the United States,' " the British Case concludes with the contention — " ' That the Colonial legislatures and the Imperial Parliament re- tain the power of prohibiting any of His Majesty's subjects from engaging as fishermen in American vessels, and that the exercise of this power is in no way inconsistent with the treaty.' " This contention, it will be observed, relates solely to the effect of the treaty upon the observance of British laws by British subjects, wThereas Question 2, as shown above, according to the understanding of it accepted by both governments, asks merely whether the treaty permits the inhabitants of the United States to employ persons not inhabitants of the United States for fishing purposes in treaty waters. The Question certainly does not ask whether there is anything in the treaty requiring or authorizing British subjects to engage themselves as members of the fishing crews of the inhabitants of the United States, if they are prohibited or even if they are not prohibited from so doing by British laws, which is all that is involved in the British contention above set forth. The United States, therefore, does not regard this contention of Great Britain as within the scope and mean- ing of the Question submitted for the decision of the Tribunal." At pp. 87 and 88 of the Argument of the United States the same thing is repeated : — " The Question, as before stated, arises directly on the treaty and is to be answered by the treaty. The extraneous question suggested by Great Britain, imports into the case a new arid additional element and one foreign to the treaty, namely, the laws and the effect of the laws of Great Britain. The United States submits, quoting from its Counter-Case " 929 And then follows the quotation that I have just read. Would any Court or Tribunal ever permit the United States to say that the effect of the Newfoundland laws had been adjudicated by this Tribunal with such a disclaimer, such a denial as that of the United States, or can it be presumed that the United States will ever make such a contention? That is my first suggestion, and my second suggestion is that there can be no objection to the Tribunal's 92909°— S. Doc. 870, 61-3, vol 1( 1536 NORTH ATLANTIC COAST FISHERIES ARBITRATION. guarding its decision so as to make it clear that there was no inten- tion of passing upon Newfoundland laws. The United States has not, in its Case, or its Counter-Case, discussed this question of the effect of Newfoundland statutes. SIR CHARLES FITZPATRICK : Would you allow me to ask your atten- tion to Mr. Whitelaw Reid's letter, dated the 6th October, 1906, British Case Appendix, p. 506 : — " My Government understand by this that the use of purse seines by American fishermen is not to be interfered with, and the ship- ment of Newfoundlanders by American fishermen outside the three mile limit is not to be made the basis of interference or to be penalized." Then, further on in the same letter : — " It is further understood that His Majesty's Government will not bring into force the Newfoundland Foreign Fishing-vessels Act of 1906, which imposes on American fishing- vessels certain restric- tions in addition to those imposed by the Act of 1905." Referring to p. 758 of the British Case Appendix, where the Act of 1906 is to be found, section 6 is to the effect that : — " No person, being a British subject, shall fish in, from, or for a foreign fishing vessel." What is the reason for the suggestion that that Act should not be brought into force until such time as this Tribunal has pronounced upon the question submitted to it, if that is not one of the questions submitted and covered by Question No. 2 ? MR. ELDER: That is, if you please, Sir Charles, a modus under which they were to operate for a given period of time, but, certainly, an expression of that kind, in a modus, cannot affect the interpre- tation of the treaty and of the questions which are actually sub- mitted. SIR CHARLES FITZPATRICK : But if the trade question and the ship- ment of Newfoundlanders are not included in Question No. 2, why ask that a law which regulates those matters be suspended until such time as this Tribunal has pronounced? MR. ELDER: Will you pardon me for asking which section you read from on p. 758? SIR CHARLES FITZPATRICK: Section 6: " No person, being a British subject " &c. That is the section which raises the whole question as to the shipment of Newfoundland fishermen. MR. ELDER: I do not understand, Sir Charles, that the reference to the Act of 1906 means that all the provisions of the Act of 1906 are submitted to this Tribunal. They must be, I agree, under the British contention. ARGUMENT OF SAMUEL J. ELDEB. 1537 SIR CHARLES FITZPATRICK : No, but on the record. Why say, " It is further understood " This being one of the conditions of the reference practically— " that His Majesty's Government will not bring into force the New- foundland Foreign Fishing-vessels Act of 1906, which imposes on American fishing vessels certain restrictions in addition to those imposed by the Act of 1905, and also that the provisions of the first part of section 1 of the Act of 1905, as to boarding and bringing into port " And so forth, following immediately the paragraph in which ref- erence is made directly to the shipment of Newfoundlanders by American fishermen? MR. ELDER: If I understand your contention, or suggestion, it is that inasmuch as this modus was made to last until the de- 930 cision of this Tribunal, everything that was suggested in the modus in contravention of the laws of Newfoundland has to be submitted to this Tribunal? SIR CHARLES FITZPATRICK : No, no ; I do not suggest that. To me it is apparent, at least as at present advised, that one of the chief difficulties which had arisen between the two nations was the ship- ment of Newfoundlanders. That was one of the difficulties that brought about this reference? MR. ELDER : Yes. The fact that that was one of the things that was talked of between the parties, and yet was not put into this treaty of arbitration, shows conclusively that the parties did not expect to submit it to the Tribunal. They would otherwise have put something into the question itself regarding it; and I call attention also to the fact that this letter of Mr. Eeid's is written on the 6th October, 1906, before the issues were framed for this Tribunal, which was in 1909. It can hardly be assumed that that letter was intended to qualify a treaty to be made two or three years later, and it could hardly be contended that it bound the United States to submit all the questions which were suggested. SIR CHARLES FITZPATRICK : You are more familiar with the record than I am ; do you recollect a letter written by Lord Elgin, in which some reference is made to this question ? I cannot find it. MR. ELDER: In reference to the shipment of Newfoundlanders? SIR CHARLES FITZPATRICK : Yes, at the time these negotiations were being carried on. MR. ELDER: Negotiations in reference to the? SIR CHARLES FITZPATRICK: In reference to the arbitration. Do not trouble yourself to find it if you have not got it before you. MR. ELDER: I want to go forward and point out why the framers of this treaty did not incorporate, or attempt to incorporate, all the questions which might arise under this statute of 1905, or under this 1538 NORTH ATLANTIC COAST FISHERIES ARBITRATION. statute of 1906. It is clearly claimed by Great Britain that these statutes must be interpreted, and, as is now suggested, that is one of the things they say here. Now I revert to the fact that the question of inhabitancy is the only one that the Governments finally determined to submit, that is, that no other disqualification than that of non-inhabitancy was submitted under this question. You have the language of the question itself. It clearly calls for a construction of the treaty : — " Have the inhabitants of the United States, while exercising "- SIR CHARLES FITZPATRICK: I have found the reference, it is at p. 1017 of the Appendix to the Case of the United States and it is a telegram dated the 7th September, 1907, from Lord Elgin to Governor MacGregor. Also at p. 1015 there is another telegram. MR. ELDER: Again, you will note, Sir Charles, that the letter is dated a year or two earlier than the agreement which was finally made between these two countries for the submission. Referring to the question, it is as follows: — " Have the inhabitants of the United States, while exercising the lib- erties referred to in said article " Clearly bringing the question to the treaty; it is the language of the treaty and refers entirely to the treaty — " a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States ? " It is to be observed that the ground upon which the British Case and on which Sir Robert Finlay puts this was not that it was included in the question, but that the question arose at a time when there had been discussion between the two countries with regard to the effect of the Newfoundland statutes. Now, we submit with all respect that that is no ground for considering a question which the parties themselves finally did not put into their agreement and which does not arise out of or from the agreement. The inference is exactly the reverse of that, because they did not put in a single thing more. The statute of 1906 never was discussed between Mr. Root and 931 Sir Edward Grey, or between the two Governments, so that Great Britain, in this instance, finds itself in the position of asking us to consider a statute that the parties themselves had not considered. The British Case, at p. 59, proposes two questions for consideration under the head " Conclusion " : — " For these reasons His Majesty's Government contends: — "(1.) That article one means," &c. We agree that that is the question. Then it goes on to say : — "(2.) That the Colonial legislatures and the Imperial Parliament retain the power." .... ARGUMENT OF SAMUEL J, ELDER. 1539 recognising clearly that there are two distinct questions: and the United States agreed to submit and did submit only one question. I wish to call attention to the maze in which we think the Tri- bunal would find itself if it sought to determine the effect of these statutes, because these statutes do not run to a single point. They run to a great many points. In the first place, to summarize the statute of 1905, we say that the questions that would be involved under a consideration of that statute are numerous. And, by the way, I ought to add to that that our opponents now claim also a construction of the statute of 190(5 which Great Britain itself never would allow to come into operation — they ask you to say that the United States has agreed that you should determine the bearing of the statute of 1906 though Great Britain and Newfoundland had never agreed to it, and, as I have already said, when the United States had never discussed that statute with them at all. An analysis seems to me to show that the questions would be these : — First, the right of Newfoundland to prohibit its own inhabitants from shipping within its jurisdiction. Second, to ship outside its jurisdiction — a thing which the modus permitted. Third, the right of Newfoundland to prohibit its own inhabitants from leaving the colony for the purpose of becoming inhabitants of the United States — as they undoubtedly are constantly doing, because they have a prohibition in this statute of their own inhabitants coming away from there to ship on American vessels. That raises the further question, whether it could prohibit their inhabitants from going away for the purpose of acquiring residence in the United States and then shipping, because it might easily be held that one step was included in the other. Fourth, and this relates to the United States, to prohibit United States vessels from shipping, or attempting to ship, Newfoundlanders within the jurisdiction of Newfoundland. Fifth, whether the Newfoundland legislature can prohibit its own inhabitants from shipping at Sydney or in the jurisdiction of Canada. Sixth, whether it can prohibit the United States from shipping persons who are not Newfoundlanders within its jurisdiction. Be- cause, you see, this prohibition is against shipping " crews." So that if a United States seaman or fisherman was down there at Bay of Islands, and a man was needed aboard of any vessel, under the terms of this statute he could not ship within the jurisdiction of New- foundland. Seventh, whether it can prohibit the shipping of Canadian or other British subjects outside of the jurisdiction; because the statute pro- hibits all British subjects from shipping. 1540 NOETH ATLANTIC COAST FISHERIES ARBITRATION. Now, we submit that the question why these things, some of which had been discussed between the two Governments, were not put into this Question or this treaty of arbitration, was because there was absolutely no limit to the questions that would have to be submitted. Underlying the whole thing, and most important between the two countries after it was raised, is the question whether, in the treaty, the United States is confined to the exercise of this fishing liberty by inhabitants of the United States only. That underlies the whole thing. If this Tribunal decides that we are confined to inhabitants of the United States, that disposes of everj7thing; and it is of the utmost importance that this question should be disposed of and de- cided. But when it comes to anything beyond that — the interpreta- tion of statutes — as I have already suggested, the maze into which we are led is not traversible ; and the countries did not determine to put, and did not put, it into this arbitration. I want to summarize my position on this matter, and then I shall have done with Question 2. 932 Question 2 relates solely to non-inhabitancy as the criterion of inclusion or exclusion from the American fishing crew upon a vessel entitled to exercise the treaty right. In other words, the question is whether the owner of a vessel, which is to exercise the treaty right, is excluded from employing a person who lacks the qualification or status of being an inhabitant of the United States. If the lack of that qualification or status excludes an owner from employing, the whole matter is disposed of. If on the other hand the lack of that qualification or status does not exclude the owner from employing such a person, there might still remain any number of reasons other than the lack of that qualification which may interfere with such employment, or may interfere with or prevent special classes of people, not inhabitants of the United States, from accept- ing the employment offered by American owners. If an employment of any of the persons who are subjected to such prohibitions is un- lawful, it is not because the treaty of 1818 does not permit the American owner to employ such persons, but because some statute forbids such persons to accept the employment. Question 2 relates solely to the owner's right under the treaty of 1818 to employ non-inhabitants, not at all to particular non-inhabi- tants' disqualification by the laws of their own countries to accept employment. No question is submitted to the Tribunal regarding any of those other possible reasons, and no answer which the Tribunal can make to this Question can apply to any of those possible reasons. We have in this record illustrations of a number of such reasons. The Newfoundland Act of the 15th June, 1905 (United States Case Appendix, p. 197), prohibits the master of any foreign fishing- vessel from engaging any person to form part of his crew in the territorial ARGUMENT OF SAMUEL J. ELDEB. 1541 waters of Newfoundland. The Tribunal is not asked whether the American owner can employ a non-inhabitant of the United States in contravention of that provision any more than it is asked whether he can employ an inhabitant of the United States in contravention of that provision. The Newfoundland Act of the 10th May, 1906, which still awaits the approval of the Government of Great Britain (United States Case Appendix, p. 199) provides that: — " No person, being a British subject, shall fish in, from, or for a foreign fishing vessel in the waters of this Colony." The Tribunal is not asked whether the United States can employ a non-inhabitant whose acceptance of the employment would be in contravention of that provision. The same Act further provides: — • " No person, being a resident of this Colony, shall leave this Col- ony for the purpose of engaging in foreign fishing vessels which are fishing or intending to fish in the waters of this Colony." The Tribunal is not asked whether the United States c£| employ a non-inhabitant whose employment would be in contravention of that provision. Mr. Ewart has suggested in his oral argument (p. 4776) that the French and Spanish are under certain treaty obligations with Great Britain which nciay affect their engagement. The Tribunal is not asked whether a United States owner may employ, as a member of his crew, a non-inhabitant who, by reason of being a Frenchman, or a Spaniard, would be forbidden by the treaty obligations of his own Government to enter such engagement. Nor is the Tribunal asked whether the American owner can em- ploy, as a member of his crew, Norwegians, or Danes, or Germans, or people of any other particular country, whose engagement would be in contravention of the laws binding upon the citizens of their respective countries. It should be observed that the one question of this character which the counsel for Great Britain insists should be answered by the Tri- bunal comes in the last category of questions. So far as this record is concerned such a question would be purely hypothetical, because there does not appear to be any law of Newfoundland forbidding her citizens from engaging upon American vessels. The laws of Newfoundland prohibit the engagement of any person whomsoever in her waters, and prohibit any Newfoundlander from leaving her territory for the purpose of making such an engagement. But ex- cept as to Newfoundlanders covered by general provisions applicable to all persons whomsoever, or who are implicated in the specific act of leaving for the purpose of engaging with a foreign fishing- vessel, there is no prohibition. 1542 NORTH ATLANTIC COAST FISHERIES ARBITRATION. If the Tribunal were now called upon to pass upon the 933 effect of a prohibition by Newfoundland against her citi- zens engaging in American fishing-vessels, they would have to deal with a supposititious case, a statute the form and scope of which no one can now forecast. There might be any number of difficult questions arising under such a statute. For instance, would the prohibition apply only to Newfoundlanders within the jurisdic- tion of Newfoundland, or would it apply to Newfoundlanders who have left that jurisdiction? This would involve not merely the ques- tion upon which there is so wide a difference of opinion, between most Continental States and Great Britain and the United States, as to the power of a Sovereign State to follow it citizens over the whole world, with prohibitions affecting them, but also the question whether a colony which is not an independent Sovereign State can, in the exercise of its limited governmental control, follow its citizens in like manner? Another question which might arise would be whether it is com- petent for the colony of Newfoundland to prevent its citizens from acquiring the status of inhabitants of the United States? You will remember that the statute prohibits Newfoundlanders from leaving the colony for the purpose of shipping, and that would include their leaving the colony for the purpose of acquiring a residence and then shipping. It is plain that when the questions were framed, it was imprac- ticable to cover the whole range of possible questions which might arise, because of matters dehors the treaty of 1818, and no such ques- tion was asked, or is now submitted to this Tribunal. Counsel are not here to frame and submit questions. They are here to argue the questions which have been submitted by the formal act of the two Governments. It is respectfully submitted that the limit to which the Tribunal can go in regard to questions that might arise based upon matters other than mere inhabitancy or non-inhabitancy is, in deciding Question 2, to state that their award does not cover this question. THE PRESIDENT: Of course, we are only to answer the questions as they are asked ; but does not Question 2 in its general terms ask the Tribunal whether the inhabitants of the United States, while exercis- ing the liberties referred to in the said article, have a right to employ as members of their fishing crews all persons not inhabitants of the United States? The question is quite general. MR. ELDER: Yes. THE PRESIDENT: Whether they have a right to employ persons non-inhabitants of the United States. Is not that to be understood in the sense that they have the right to employ all persons non- inhabitants of the United States, or every person not an inhabitant of the United States. ARGUMENT OP SAMUEL J. ELDER. 1543 MR. ELDER : Even a ward who was bound in articles of apprentice- ship. It would prohibit that employment? THE PRESIDENT: Yes; because in the question there is no excep- tion. The question is entitled : " or have a right to employ as mem- bers of their fishing crews persons not inhabitants of the United States." MR. ELDER: Can it be that the United States and Great Britain in- tended to cover every individual in the world ? Now, in that gener- ality, if a man were under contract to serve as a civil engineer out in one of our new territories, for three years, he could not ship on one of our crews because of that prohibition. There are no end of dis- qualifications or prohibitions which might affect this case. But the question I think is to be read according to its tenor, according to its full meaning, and that is to raise the question of inhabitancy or non- inhabitancy of the United States. And all the subsidiary questions that might arise from men's personal contracts with each other, which might arise from the laws of the country to which they owed obedi- ence and allegiance — which arise in any way whatsoever — are ex- cluded from that question and were not contemplated. No one dreamed it. THE PRESIDENT: You assimilate, Sir, the prohibition of a national law to that of a personal contract into which the individual has entered? Would it be quite the same, whether the person is pro- hibited by a personal contract which he has entered into with another person or whether he is prohibited by the law of his country ? MR. ELDER : It would not be quite the same, Mr. President. 934 THE PRESIDENT: Not quite the same. I should think not. MR. ELDER : I quite agree. But when we are discussing the generality of the question, when we are considering whether there are any persons who would be prohibited from serving, every kind of dis- qualification would then be brought in. Therefore, while my illus- tration was an extreme one, it seems to me that it was a fair one. I wish also to call attention to the fact that Great Britain, neither in its Case nor in its Argument, nor in Sir Robert Finlay's argument, put the question on that ground. They did not contend it was a part of the question itself. Their contention was merely that the parties had been discussing between themselves the question of one of these Newfoundland statutes, and therefore, for the purpose of disposing, as they contended, of all questions, they asked this Tribunal to answer a question which they call Question No. 2. THE PRESIDENT: But would not the Tribunal, if it should answer this question with a simple " Yes," expose itself to the danger of being misunderstood? And is it not the duty of the Tribunal to give its answer in such a way that it is not liable to be misunderstood ? MR. ELDER: Precisely. I am quite in accord with the suggestion of the President on that point. And it was intended that that should 1544 NORTH ATLANTIC COAST FISHERIES ARBITRATION. be covered by a portion of the formal submission which I have made : — " That it is respectfully submitted that the limit to which the Tri- bunal can go, in regard to questions that might arise based upon mat- ters other than mere inhabitancy or non-inhabitancy is, in deciding Question No. 2, to state that their award does not cover such other questions." I am pleased to say that I have finished Question No. 2, and will ask the attention of the Tribunal to Questions Nos. 3 and 4. The form of the questions is so familiar to the Court that I shall not take the time to read them, and, for the purposes of my discus- sion, these two questions can be dealt with together. I have recently read Senator Turner's argument with reference to those questions, and am convinced that I ought not to interrupt by my competition the thread and strength of his presentation of those questions. I only desire to call attention to two matters with which he did not deal. The first is the appearance of the word " condition " in one of the questions, and the word " conditional " in the other of those questions. I am not going to call to the attention of the Tribunal the definition of those words in our law, because it seems to me that there is a practical side to it which goes beyond even the strict inter- pretation of the words themselves. Sir Robert Finlay was disposed, in answer to the questions of the President of the Tribunal, to regard the words as meaning terms upon which the liberties, in one case and the privilege in the other might be exercised. I do not think that that is the meaning of the word " condition " or " conditional." With the mere question of the definition of a word in this submission I do not care to deal ; but I wish to ask the attention of the Tribunal to the practical working of the thing, either upon the treaty coast or upon the non-treaty coast. How would it work in actual practice ? A vessel does not enter or call at the customs, does not pay harbour or light dues, and if she is not prosecuted while she is there, for non-entry, as may possibly occur, she will do as fishing- vessels always do— return. It is a part of their trade to go back to the same fishing-grounds and to the same place. She is then exposed to attachment or seizure, or her captain is exposed to prosecution. And it does not make any difference whether I am dealing with the non-treaty coast or the treaty coast. The right of going in for shelter or repairs or wood or water on the non-treaty coast, of course, extends to the entire stretch of coast. The vessel may never be driven in by stress of weather to the same port again, but the Canadian ports, which comprise most of the non-treaty coast, are all under the same Government now, and this record dis- closes that they have a very complete system of keeping track of vessels that are supposed to have broken regulations, or failed to make payment at any port, whereby the vessel is seized at some other ARGUMENT OF SAMUEL, J. ELDER. 1545 port, the next time she turns up, whether it is six months or a long time afterwards. And as to the treaty coasts, the vessels must go back to some one of those main harbors, Bonne Bay, the Bay of Islands, St. George's Bay, or to some one of the smaller harbors. It is a part of their trade to go back. So that the vessel on its 935 next voyage is seized and proceeded against for its failure to make payment of these dues. And that comes simply to this, that the vessel must pay, or it cannot exercise its treaty privileges on the treaty coast, of fishing, or on the non-treaty coast of any one of the other four objects, without making the payment. It may be that the mills of the gods will grind slowly, but they will grind exceeding small, and in the end the result is inevitable. So that it comes to be a condition precedent, as well as a condition subsequent, that the vessel should pay, because it is a condition precedent to the next exer- cise of the privilege. So that we are met squarely, in this case, under these two questions, by this question: Can the liberty on the treaty coast, or the privilege on the non-treaty coast, be made dependent upon the payment of the various charges which are set out in those two questions? That is all I have to say with reference to that first point. I come now to another, which has not been discussed, I think, at all. Sir Robert Finlay did not discuss it, and used the words to which I shall refer, interchangeably, as if they were synonymous in their effect. The words are " report or entry." If the Tribunal has the question before it the expression will be found to be the same in either one of the questions. I am reading from Question 3 : — " to the requirements of entry or report at custom houses." There is a world-wide difference between those two things. I fancy that the meaning is well enough understood, but it may be well to state it. A report of a vessel coming in is practically a statement that she is there, and who she is, and who her master is, and possibly the number of her crew. But an entry is the formal entry in cus- toms with reference to the payment of duties and to the examination of her cargo, and to all questions, and it involves clearance on going out. While report does not necessarily involve clearance in going out, it may be coupled with it. So that it is of vital importance to determine whether our fishing- vessels, while exercising these liber- ties or privileges, can be subjected to one or the other, assuming that the Tribunal should think that they ought to do either. Fortunately the distinction between the two words is brought- out by an Act of the British Parliament, to which I have already referred. This is the Act of 15 Geo. Ill, cap. 31, in the year 1775, on p. 65 of the British Case: — " VII And it is hereby further enacted by the authority aforesaid that from and after the 1st day of January, 1776, all vessels fitted 1546 NORTH ATLANTIC COAST FISHERIES ARBITRATION. and cleared out as fishing-ships in pursuance of this Act, or of the before-mentioned Act, made in the tenth and eleventh years of the reign of the late King William III, and which shall be actually em- ployed in the fishery there, or any boat or craft whatsoever employed in carrying coastwise, to be landed or put on board any ships or ves- sels any fish, oil, salt, provisions, or other necessaries for the use and purpose of that fishery, shall not be liable to any restraint or regula- tion with respect to days or hours of working, nor to make any entry at the custom-house at Newfoundland, except a report to be made by the master on his first arrival there, and at his clearing out from thence; and that a fee not exceeding 2s. 6d. shall and may be taken by the officers of the customs at Newfoundland for each such report ; and that no other fee shall be taken or demanded by any officer of the customs there upon any other pretence whatsoever relative to the said fishery, any law, custom, or usage to the contrary notwith- standing. " Provided always, and be it enacted, that in case any such fishing ship or vessel shall at her last clearing out from the said island of Newfoundland have on board, or export any goods or merchandise whatsoever except fish, or oil made of fish, such ship or vessel, and the goods thereon laden, shall be subject and liable to the same securities, restrictions, and regulations, in all respects, as they would have been subject and liable to if this Act had not been made, anything herein- before contained to the contrary notwithstanding." That Act of 1775 comes very near expressing the present conten- tion of the United States with regard to its fishing-vessels, because we say, and have always said, that the moment a vessel became a trading-vessel, or was registered with right to trade as well as fish, then she did become liable to formal entry at the Customs; but that so long as she was simply a fishing- vessel, exercising these privileges or liberties, she should not be called upon in any event to do anything more than to report, and that that was all that the Newfoundland people had a right, or anybody else had a right — even our friends of Canada — to require of us. It was urged in the British Case and Argument, and I think in the oral arguments, though I am not sure, that the United States was contending that it had commercial privileges under the treaty of 1818, and that nevertheless, though we were entitled to commercial privi- leges, and claiming them, we were denying our liability to enter at Customs and our liability to pay dues as other trading-vessels 936 paid them. The United States never has made such a con- tention. It has been over and over again denied in the papers in this Case, and is denied now. So that the question comes down distinctly to fishing-vessels pure and simple. I must be pardoned for adverting for a moment to Sir Robert Fin- lay's oral argument on this question and his use of the words. At p. 1354 of the record he says that he will examine these Questions 3 and ARGUMENT OF SAMUEL J. ELDER. 1547 4 together — first, as to entry at the custom-house, and, second, as to the payment of light and harbour dues. At p. 1355 he says : — "Are the American fishermen subject to the obligation to report at the customs? " At p. 1356 he quotes from an Act of Newfoundland. I have a large number of other citations here, but I do not find them at the moment. At any rate, throughout his argument he uses the word " report " almost exclusively, but he does use the word " entry " occasionally, so that it cannot be said that he was merely claiming that we ought to report. He evidently had in mind that they were substantially the same thing, and his claim ought to be considered as having gone to the extent of claiming the right to compel us to enter. I wish to say that, as to fishing- vessels, nothing can be much clearer than that no customs dues are collectible. The only ground on which an entry should be compelled is because customs dues ought to be collected. SIR CHARLES FITZPATRICK : Before you leave that, I should like to put this question to you : Would smuggling be an abuse of the privi- leges conferred by section 1 of the treaty ? MR. ELDER: You refer now to the renunciatory clause? SIR CHARLES FITZPATRICK: Yes. MR. ELDER : And to the privileges conferred of entry and harbor ? SIR CHARLES FITZPATRICK: Yes. MR. ELDER: My impression is that smuggling would be an abuse of the privileges conferred. SIR CHARLES FITZPATRICK : Then, would a mere report be an effec- tive means to prevent smuggling? MR. ELDER : I think it would, Sir. Senator Turner went so fully into that subject that I do not propose to go into it. SIR CHARLES FITZPATRICK: Very well. I do not want to trouble you with it. I just thought you had it in your mind. MR. ELDER: Well, I am doing just what I said I would not do. At p. 989 of the Appendix to the Case of the United States is a letter from Lord Elgin to Governor MacGregor, dated the 3rd Sep- tember, 1906, in which this clause is found, and these are formal in- structions, coming from Downing Street to Governor MacGregor of Newfoundland : — "As regards call at custom-house, your Ministers are of course aware that the negotiations which led up to the Convention of 1818 virtually bind His Majesty not to exact customs duties in respect of goods on board United States vessels necessary for prosecution of fishery, and support of fishermen during fishery, and during voyages to and from fishing grounds." 1548 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I do not think that it is necessary to go beyond that formal state- ment of what the position of a fishing- vessel on the coast is with ref- erence to any liability to custom dues. That ends what I have to say with regard to the question of entry, and we submit that the question, when answered, must or should— excuse me — exclude any idea of fishing-vessels being required to enter. SIR CHARLES FITZPATRICK: As fishing- vessels ? MR. ELDER: As fishing- vessels. The moment they are trading- ves- sels, I quite agree that they ought to go through the formalities at- taching to trading-vessels. Let me take one or two instances, so that the Tribunal will see how burdensome any other decision would be upon our fishing fleet. Take the case of the schooner " Columbia," in 1904, of which I spoke at the outset of my argument. I refer the Tribunal to p. 632 of the United States Counter-Case Appendix, the affidavit of Edward Cosgrove : — 937 " I sailed as Master of the Schooner ' Columbia,' Messrs. John Pew & Son, Gloucester, owners, from Gloucester, Mass., October 1? 1904, for Bay of Islands, Newfoundland, for a fare of Salt Herring. I duly arrived at Bay of Islands and after securing my fare in the Middle Arm " I have the impression that Mr. Warren described to the Tribunal the Middle Arm at the Bay of Islands. If not, I should like to speak of that just for an instant. The Bay of Islands consists of three great arms, or inland seas. JUDGE GRAY • Can you not point it out there on the map ? MR. ELDER : Unfortunately the scale is not so large as it should be for that purpose on this map, but I think I can do it. The bay is here (indicating on map), and coming round this point, and in be- tween the point and Wood Island which is referred to in a number of papers, the Humber Arm is found, the deep arm here (indicating), where the navies of the world might anchor. It is called the Humber Arm because it is the end of the Humber River. Then, passing up here and around this point, we come to the Middle Arm, which is in there (indicating on map), and going still further on, we come to what is usually called the North Arm, though it is sometimes called Goose Arm, if I have the name correctly. Those are, as I say, great inland seas ; and this man had been fishing in the Middle Arm. I continue reading from his affidavit: — " and as soon as the vessel finished loading November 4, 1904, 1 called at Woods Island, supposing the Cutter was there, and I could procure a clearance from the officer on her. On my arrival, there was no Cut- ter, so I bore away for Lark Harbor. It then came on thick, and snowing, and night shutting in, I decided to go to sea the same day. ARGUMENT OF SAMUEL J. ELDER. 1549 " I arrived at Gloucester, November 12, 1904, and enclosed is a cer- tificate from the Custom House Officer, of Gloucester, showing that the fare was duly landed at this port. " On another voyage to the Bay of Islands in another vessel, Schooner ' Essex.' On my arrival at the above named place, Novem- ber 28, 1904, I was immediately summoned before a magistrate and a fine of $200 and cost $1 was imposed. " I do not feel that I have caused any loss to the Newfoundland Government by my action in sailing for home without a clearance, especially as I expected to obtain one from the Cutter and took meas- ures to secure such. My owners had give me imperative orders to sail at first chance when loaded, and to run no risk about ice. The year before, one of their vessels had been frozen in at Bay of Islands and caused them a severe loss. I was very anxious to get away and run no chances about the vessel getting in the ice, and under all the circumstances, I pray you to remit the fine to my owners." And those were the circumstances. He had apparently reported all right, and for failure to clear, under such circumstances as that, he was fined 200 dollars. That sort of thing, permitted all up and down such a coast as that, could be and would be vexatious almost to the extent of hampering the exercise of the liberty itself. I can- not help reading just a word from Captain Anstruther's report re- garding the conditions down there, although considerable has already been said about that. I find, however, that I have the wrong page reference in my memorandum here, so that I am unable to refer to his report at this moment. But Captain Anstruther describes, with eloquence for a naval man, or perhaps because he was a naval man, the tremendous difficulties under which the work of fishing is con- ducted on that coast and in that bay, and the conflict with ice and with storms, and the hardihood of the men who carry it on, whom he regards as worthy of all commendation, and as not surpassed by the fisher-folk or seamen of any nation in the entire world. Remember' that the arms are liable to be frozen over early in the season, that the vessel's whole winter's work is lost if she gets caught in the ice before she gets away, and then consider this question of clearance, and the burdensomeness of it is, we submit, most apparent. It ought to be remembered that it is a good many miles from two of those fishing grounds to any custom-house. This man in particular went to Wood Island, where there was usually a revenue-cutter where he could get clearance, and there being none, he went off. Any peremptory de- cision that the fishermen of the United States must either report or clear, it seems to us, ought to be guarded against. I call attention to the fact that the modus of 1906 and 1907 provided that there should be a report when physically possible. So that that distinction was drawn, even as to the matter of report. And in 1908, Newfoundland agreed to allow the fishery to be carried on as it had been carried on in the previous years, which involved that very same thing. I agree 1550 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that it was a modus, it was a means of getting on, and yet I submit that that particular provision of the modus recognised a fact 938 which this Tribunal ought to recognise in making its deter- mination with regard to any compulsory and inevitable report or clearance. THE PRESIDENT: The report of Captain Anstruther to which you referred a few moments ago is probably at p. 369. MR. ELDER: Thank you. It is to be remembered that this is from a naval officer, and not a landsman who happens to be at sea at the time; and it is from a British sailor, too. This is the report of Robert Anstruther, senior naval officer, Newfoundland fisheries, to the Secretary of the Ad- miralty, and I read from p. 369 of the Appendix to the United States Counter-Case : — " It is a marvel to me how the men do the work at all in the sort of weather one gets on the west coast of Newfoundland in the winter; blow high or blow low, it makes no difference to them, in hail, sleet, frost, or snow they fish steadily on as if they were not made of flesh and blood. Ice does not daunt them, if they cannot break it up they make holes in it and shove their nets down through and fish that way. Truly they are hardy folk, and deserve every cent they get. I have seen fishing in Iceland, fishing in the North Sea, and in many other parts of the world, but if I had a grudge against a man I should send him to fish for herring in the Bay of Islands about Handsel- Monday." I think I have already spoken, in the matter of clearance, of the great danger of vessels being frozen in, and of the necessity of being relieved from going up the harbor to any one of the custom-houses, running the risk of the vessel's being caught and held there for the entire winter. SIR CHARLES FITZPATRICK: What is the object of a clearance? MR. ELDER: Why, I cannot conceive what the object of a clear- ance is. SIR CHARLES FITZPATRICK : How is the State from which the ship sails affected by it? MR. ELDER: I do not think it is affected in the slightest degree. Mr. Root suggests that it is a recognition of commercial intercourse. SIR CHARLES FITZPATRICK : It is useful with respect to the country to which you go; but it does not affect the country from which you sail? MR. ELDER : No. It relates to the exercise of commerce, and not to fishing, for one thing, and it is not important or imperative to the colony of Newfoundland. Now we come to the reason of the thing, about the question of the report. I venture, with some hesitancy, back into the question of authorization. At all events the situation^ if I am right about it, is AKGUMENT OF SAMUEL J. ELDER. 1551 this: Newfoundland or Canada is entitled, when a vessel comes there to exercise cither liberties or privileges, to know that she is a vessel that is entitled to do so; and therefore she has a right to demand reasonably and properly, at proper times and seasons, the exhibition of that authorization in the form of her registry or license as it may happen to be. That can be done in one of two ways. The vessel can be required to go to a custom-house for the purpose of reporting which, in effect, is showing its authorisation, or the police officer, the cutter, may put out to her where she has shown herself and is fishing, and ask to see her papers. One or the other of the two things consti- tutes the way in which Newfoundland, or any country, can secure the information to which it is entitled. But it is oftentimes a most burdensome thing to a vessel to have to go up into a harbor when she attempts to exercise a privilege. With the wind ahead she may be a day in getting up to the custom-house ; and with the variability of the winds up there, the wind may be ahead when she comes back on her way to the fishing grounds, and in that way most valuable time may be lost. I wish to submit that in the answer to this question there should be the further restriction that the call at custom-house should not be imperatively required, because the Government has its own means of ascertaining all that it is entitled to ascertain. The vessel is usually in sight for a good while. The supervision over a vessel is just the same as the supervision over a citizen who happens to be travelling. It amounts to requiring a vessel to change its voyage, and to lose pos- sibly the best day of fishing, to imperatively require the vessel to go up into the harbor to the custom-house. 939 It is conceded in the argument throughout, on the other side, that there must be some qualifications in this decision. For instance, Sir Robert Finlay, at p. 1359 of the record, admits that the power ought to be reasonably exercised, ought not to be vexa- tiously insisted upon, and that the matter of its being physically possible for the vessel to report is one of those considerations. The question whether there is any custom-house or not within reach is another. It seems to us that the answer should be guarded, cer- tainly in that particular, if a report at customs is thought necessary at all. We say that under no circumstances ought an entry to be required, and that no clearance should be required, and that the report at customs at least should be guarded, supposing the Tribunal to be against us at all. I do not waive, however, and do not think of waiving, under Question 3, where the right of fishing in the bays and harbors is given, the claim that Senator Turner advanced, and which the United States advances, that that is an absolute right, that it cannot be hampered in any way whatsoever, and that the Colony of Newfoundland can protect itself perfectly by not requiring entry 92909°— S. Doc. 870, 61-3, vol 10 42 1552 NORTH ATLANTIC COAST FISHERIES ARBITRATION. at all. It can secure all that it is entitled to while the vessel is on the coast. I wish to call attention to an instance on the non-treaty coast, to show how hardly any hard-and-fast regulation with regard to the fish ing- vessels would bear. The case of the " Everett Steele " is the one to which I refer, and is found in United States Case Appendix, at p. 842. There was a case where the vessel put in in heavy weather for shelter. I am not going to read with regard to it, because I can state it, and it appears in a number of despatches. The captain put in, and, of course, as is the manner of fishing-vessels, he prepared to go to sea the instant the storm abated, and the earlier in the morning the better, to save the day's fishing. He was hailed by a revenue- cutter, and required to go up the harbor (he was in the outer harbor) to the custom-house and there report. And in the course of the con- versation he was asked whether he had ever been in any port with- out reporting to the customs, and he told them, honestly enough, that he had — I think it was six months before — put in at some place for shelter, and made away in the morning; and so they held his vessel. It is to be said that the vessel was released within two or three days — after her bait had spoiled, however, so that her catch was, for that particular trip, ruined. We submit that, under Question 4, where shelter merely is sought, and where there is no communication with the shore, that there ought not to be any requirement of report at all. The Canadian Govern- ment recognised the inconvenience of reporting, in the special instruc- tions to fishery officers, from the department of fisheries in Canada, on the 16th April, 1887. (Appendix to the Case of the United States, vol. ii, p. 921) :— " In places where United States' fishing vessels are accustomed to come into Canadian waters for shelter only, the Captain of the Cruiser which may be there is authorized to take entry from and grant clearance to the masters of such fishing vessels without re- quiring them to go on shore for that purpose. Blank forms of entry and clearance are furnished to the Captains of Cruisers; these, after being filled in, are to be forwarded by the Captain of the Cruiser to the Customs Officer of the ports within whose jurisdiction they have been used." And it goes on to say that in cases of distress and sickness, all possible accommodation shall be shown them. That recognises the severity of such a rule as I have been discussing when applied to vessels seeking merely shelter, and not communicating with the shore. It seems to us, and I submit that under no circumstances should any- thing but report be required of fishing-vessels pure and simple, and that that requirement ought not, so far as report is concerned, to be imposed at all upon the treaty coast ; that it ought not to be imposed ARGUMENT OF SAMUEL J. ELDER. 1553 on the non-treaty coast where there is no communication with the shore. That concludes what I have to say on Questions 3 and 4. [Thereupon, at 12 o'clock the Tribunal took a recess until 2 o'clock p. m.] 940 AFTERNOON SESSION, FRIDAY, JULY 22, 1910, 2 P.M. THE PRESIDENT: Will you kindly continue, Mr. Elder. MR. ELDER (resuming) : Question 6 reads as follows: — • " Have the inhabitants of the United States the liberty under the said article or otherwise to take fish in the bays, harbours, and creeks on that part of the southern coast of Newfoundland which extends from Cape Eay to Eameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands? " The contention of Great Britain is that under the first clause of the treaty which granted the liberty of fishing, no right of access to the bays of the south or west coast of Newfoundland are included, nor to the bays on the Magdalen Islands. To put it the other way, they say that all the United States did get was the right to a strip of water 3 miles wide. Outside was the open sea, where of course anybody could fish, and on the inside were the bays where we could not fish. So that practically we got a meagre right, because I do not suppose it is contended that that 3-mile strip is of peculiar value, while the bays, of course, are of the greatest value. In using the word " bays," I understand the British contention to be that we are excluded from the large bays or bodies of water known as bays in 1818, at the time of the Treaty. We do not concede that that is the meaning, but, as is elaborately argued under Question 5, contend that the word " bays " had a dis- tinct and definite meaning in 1818, that is jurisdictional or territorial bays which are 6 miles wide or less at the mouth. At the same time I propose to discuss this question just as broadly as the British claim puts it. I ought, perhaps, to say at this point that Mr. Ewart felt that a passage which was taken from the printed Argument, on Question 6, with regard to the treaty of 1818 being taken from the treaty of 1783. and being in some particulars " a Chinese copy " of it, was of service to him in his Argument concerning the question of bays under Ques- tion 5. We do not feel that it is, and it having arisen under Ques- tion 6, I take the liberty of answering it at this point. The negotiators of that treaty unquestionably had the treaty of 1783 before them, they use those peculiar words " without previous agreement with the possessors, proprietors or occupies of the ground,'' which are copied from one treaty to the other. The general struc- 1554 NORTH ATLANTIC COAST FISHERIES ARBITRATION. ture of it is the same, and it is quite natural that when persons are drawing an agreement between parties who had a previous one, that they should use the old agreement, but it is to be remembered that they were drawing a new treaty, to have it different, and for the pur- pose of having it different. More than that, the question that was being considered under Question 6, where that language is used, is the meaning of the word " coasts." Now, if the meaning of the word " coasts " had changed between 1783 and 1818, had become more definite or different, Great Britain undoubtedly would have pointed it out to us with great care, and showed in what way the word " coasts " had changed in its meaning, and very properly. ' And so with regard to the word " bays," the United States does point out that between 1783 and 1818, notably in the years shortly preceding 1818, the word " bays " had come to have, between these two countries at least, a definite and distinct meaning which was in the minds of the negotiators. Just exactly as if two concerns were operating under a patent, and had an agreement and used certain terms of trade, and they afterwards proposed to make another agree- ment. In the meantime the terms in the trade had come to have a clearer and more definite meaning in the minds of everybody con- cerned in that trade. For instance, terms of art, terms of commerce, terms of patent claims — anything of that description. Of course, though they use the same word in the second agreement that they did in the first, they would nevertheless be using it in the sense in which everybody understood it at the time of the second. And so with regard to the word " bays." Now to revert to the British contention under Question 6. They place it almost wholly on the fact, I think I am quite right in saying almost wholly, or rather Sir Robert Bond placed it, and they placed it where he did, on the fact that the word " coast " alone is used with reference to the southern and western part of Newfound- 041 land, and that the word " coasts " is used in connection with the words " bays, harbours and creeks," in speaking of Labra- dor. They say, therefore, that the word " coast," having the same meaning in different parts of the treaty, must be understood to mean something different from " ba}rs, harbours and creeks," that is to say, the coast, with the bays, harbours and ceeks subtracted. An inquiry made by the President of the Tribunal at an early stage of this argument seems to counsel for the United States to throw complete and illuminating light upon this entire subject, and this entire question. It is the plural " coasts " that is used with regard to Labrador, and not the singular " coast," which is comprehensively used of Newfoundland. In other words, when Labrador is spoken ARGUMENT OF SAMUEL J. ELDEB. 1555 of, the " coast," which means everything, is split up into its different component parts " coasts, bays, harbours and creeks." First comes a strip of sea coast, external coast, then comes a " bay," and then comes another strip of coast, then a harbour, then a creek, and so on, until you have a large number of " coasts, bays, harbours, and creeks " that is the whole "coast." So that the answer to Sir Robert's contention as it seems to us, is thereby suggested, namely ; the word that is used in regard to Labrador is not the word that is used in regard to New- foundland. It is the plural instead of the singular, and describes parts of the coast instead of the whole. It seems to us that this argument might close with that point, be- cause the contention set up by Sir Robert Bond rests upon that con- tention. But the matter is of great importance to us and to the fishermen of the United States, and I crave leave to go into the subject a little more fully. With reference to this distinction in words, Sir Robert Finlay, at pp. 54, 55, arid 56 of his oral Argument, spoke of its as " a very curi- ous difference " in the language of this article. At another place he says it is " contended on behalf of Newfoundland " that the difference is not accidental, and that it is a very marked difference. That was about as far as Sir Robert Finlay was willing to justify Sir Robert Bond's contention. I think if he were here, he would pardon me for saying it seemed like " damning the contention with faint praise." The claim goes further, and extends not merely to the south and west coast of Newfoundland, but also to the Magdalen Islands. Now, no such verbal nicety as that exists with regard to the Mag- dalen Islands. It is the word " shores " with regard to the Magdalen Islands that is used, and the word " shores " is not repeated with regard to Labrador or anywhere else. There is nothing to cut down the meaning of the word " shores " from its regular and accepted meaning, and yet Sir Robert Bond and the British Case have felt it was necessary to include the Magdalen Islands with the south and west coast of Newfoundland, absolutely, so far as we can see, without any logical connection or ground. The British case also says that the word " shores " on the Magdalen Islands is used in the same sense and meaning as the word " coast," and for that reason they include it. Well, we quite agree that it does-, and we think that the Newfoundland contention stops with that state- ment, because the well-understood meaning of the word " shores " includes " bays, harbours, and creeks," and every sinuosity. I shall not go at considerable length into this discussion, because it is printed in our printed Argument, which seems to me to set out fully our views and contention with regard to the matter. 1556 NORTH ATLANTIC COAST FISHERIES ARBITRATION. "With regard to the intention or the supposed intention of the negotiators, which is suggested in the British Case as a ground for believing that the bays were not to be included, I shall not answer in detail, because the Counter-Case of the United States at pp. 77 and those following, takes that up at very considerable length. It is quite impossible that because Lord Bathurst wanted to give as little as possible, and indicated the inconvenience of giving stretches of coast, that they therefore did not give us " bays " when they finally came to give us the " coast." Of course Lord Bathurst was desirous of giving as little as possible. He offered Labrador first, he offered Newfoundland next, through Mr. Bagot, and then he offered both, and finally, when the negotiations took place, more was granted, but because he wanted to give less, because he said it was inconvenient for His Majesty to give more, is no reason to cut down the amount he actually did give. Sir James Winter in his argument seems to us to have been labour- ing under a peculiar misapprehension with regard to those negotia- tions. He contended that the west coast of Newfoundland was not mentioned until the final draft of the treaty itself, that it appears there for the first time, that there was not a word to explain, in any way, shape or manner, how it got in; that it was in a way 942 thrown- in as a gift from Great Britain to the United States — a kind of gratuity to us, in some way or other. If our learned friends will pardon me, I do not think that that has been the experience of the United States in negotiations with Great Britain. I think it is Hotspur who says : — " I'd give twice so much land to any well deserving friend ; but in the way of bargain not one ell." We may very properly feel that the able negotiators of Great Britain, in all times, have been willing perhaps to give to well- deserving friends, but when it came to bargaining, not one ell, not one inch of the western coast of Newfoundland or anything else. And, if I may drop from an ancient poet to a modern one, Mr. Kip- ling says : — "And we didn't get a ha'p'orth of change oliim. Well now, Sir James Winter is entirely mistaken. The President of the Tribunal called his attention to the fact that the western coast of Newfoundland is in the first proposal of the American negotiators. That, however, seemed to escape his mind in the course of his later argument, and he pursued it along the lines first suggested. But as a matter of fact it appeared in the first American proposal, which is at p. 88 of the British Case Appendix — the proposal of the 17th Sep- tember, 1818. It appeared in the first British proposal, the 6th ARGUMENT OF SAMUEL J. ELDER. 1557 October (British Case Appendix, 1889). It appeared in the second British proposal the 13th October (British Case Appendix, 1893) ; and it appears in the treaty. I am not going into the negotiation any further than to call the attention of the Tribunal to the first British proposal, the one of the 6th October. In the first place, the American negotiators had used these very words that appear in the treaty " coasts, bays, harbours, and creeks " in regard to Labrador, and the British negotiators evidently saw no point in them, because they used exactly the same word in their pro- posal concerning Newfoundland that they did concerning Labrador. They used simply the word " coast," with regard to Newfoundland and with regard to Labrador; showing that they did not conceive that by the use of the word " coast " they could cut down the Amer- ican right by excluding the bays. And, the second thing to which I wish to call attention is in the United States Case Appendix, p. 312. This is the British proposal of the 6th October, 1818, the second paragraph : — "And it is further agreed that nothing contained in this article shall be construed to give to the inhabitants of the United States any liberty to take fish within the rivers of His Britannic Majesty's ter- ritories, as above described; arid it is agreed, on the part of the United States, that the fishermen of the United States resorting to the mouths of such rivers shall not obstruct the navigation thereof, nor wilfully injure nor destroy the fish within the same, either by setting nets across the mouths of such rivers, or by any other means whatever." You will notice that in the first paragraph they used the words " western coast " of Newfoundland and the " eastern coasts " of Lab- rador, or " the southern and eastern coasts of Labrador, which extends from Mount Joli to Huntingdon Island; and it is further agreed that the fishermen of the United States shall have the liberty to dry and cure fish in any of the unsettled bays," and so forth. Great Britain desired to limit that right of fishing by precluding our fishermen from the rivers; to provide specifically that there should be no right to take fish in the rivers. Well, where do rivers empty ? They empty into bays. They never empty into the open exposed sea-coast. You take this very Humber River of which we were speaking this morning. The river comes down and empties into the Bay of Islands, '20 miles at least above the exit to the bay. Now, when the British negotiators asked to have it made sure that rivers were not to be included in their grant of " coast," they under- stood that " coast " included bays. 1558 NORTH ATLANTIC COAST FISHEBIES ARBITRATION. The American negotiators refused to agree to that, and for the reason that it was not in the slightest degree necessary, United States Case Appendix, p. 314, second paragraph on that page : — " The liberty of taking fish within rivers is not asked. A positive clause to except them is unnecessary, unless it be intended to com- prehend under that name waters which might otherwise be considered as bays or creeks." 943 If you mean to include bays and creeks in that word " river " then we do not agree, but if you merely mean " rivers " as you say, then it is not necessary at all, because the word " coast " does not include rivers. I shall spare the Tribunal the long examination of those negotia- tions which under some other circumstances I might have attempted to inflict upon the Court. With regard to the suggested claim that the rights of the French on that coast might have induced the British negotiators to use the word " coast " on Newfoundland, and " coasts, bays, harbours and creeks " afterwards, the American Counter-Case discusses it with great fulness, and again I shall leave the discussion as it was left there. Not one word in the entire negotiations indicated that there was any intention whatsoever of phrasing the language so as to pro- vide against the rights of France, except in the one particular that we were not to dry and cure on the French shore. The French had the right to do that, and it would have been inconvenient to have given rights to the Americans of drying and curing fish there, but that was the only concession that was made. I shall have occasion to speak later, as to the events in 1820 and 1821, and the negotiations which followed and thus a little more concerning the French right. Coming then to the meaning of the word " coast," if there can be any doubt about its meaning, Sir Robert Bond at United States Counter-Case Appendix, p. 404, says : — " There is a prima facie presumption that the word ' coast ' is used throughout the article in the same sense, and as, in the expression ' coasts, bays, harbours, and creeks ' it obviously does not include ' bays, harbours, and creeks ' it would follow that it does not include them when used in connection with Newfoundland. It may be ob- served that while the word is used in connection with Newfoundland in the singular, it is used in connection with the Labrador both in the singular and plural, and it is only as used in the plural that it is con- trasted with ' bays, harbours, and creeks.' I am ready to admit that but for the difficulty arising from the expression ' coasts, bays, har- bours, and creeks ' a right to fish on the coast would prima facie mean a right to fish on any part of the coast, including bays, har- bours, etc., but it seems to me that the construction of the article evidences that there was abundant reason for inserting that ex- pression, and I think that if the words of the Article be taken by themselves the interpretation that I have placed upon them is free from doubt." ABGUMENT OP SAMUEL J. ELDER. 1559 So that there is an admission that if the word " coast " stood alone, and it was to be understood in its natural meaning, it included bays, harbours, and creeks. And, by the way, Sir Robert Bond is very nearly answering his own contention, because he refers to this very question of the singular and plural being used. The British Case, upon this point, at p. 124, says : — " Possibly, if the word ' coast ' had been used alone, without any such context as is to be found in this treaty, it might have been held to include the indentations of the coast. But the language under examination makes a clear distinction between 'coasts "on the one hand, and ' bays, harbours, and creaks,' on the other, as the treaty of 1783 had already done, and as the treaties of 1854 and 1871 subse- quently did." So that, we find an agreement that, prima facie, the word " coast " includes indentations, bays, harbours, and creeks. We have put into our printed Argument, extending from pp. 237 to 241, illus- trations of the use of the word "coast" in treaties, in legislative acts, in memorials, in addresses, in histories, and in orders and regu- lations in which its clear meaning is brought out. I shall not burden the Court by going through them, but I would ask the attention of the Court to them. I would refer the Tribunal to the act of the 30th March, 1809, United States Counter-Case Appendix, p. 67: — "An Act for establishing Courts of Judicature in the Island of Newfoundland and the Islands adjacent; and for reannexing Part of the Coast of Labrador and the Islands lying on the said Coast to the Government of Newfoundland." And so on through a very large number of illustrations, the use of the word " coast " plainly and palpably including the sinuosities of the coast. Even some of the Acts of the Assembly of Newfound- land, prohibiting the use of one sort or means of fishing and another, use the word " coast." Of course, it meant to include fishing in the bays. We have also given the definition of the word " coast " in, I think, every dictionary that was extant in 1818, and these appear in a foot-note to the United States Argument, p. 241. There is a reference also to the Scotch Herring Fisheries Act, 1867, which says : — 944 " The coasts of Scotland shall mean and include all ~bays, estuaines, arms of the sea and all tidal waters within the dis- tance of three miles from the mainland or adjacent islands." The word, coming from the French, means the edge, or margin of the land where it comes in contact with the sea, and is used contrari- wise of the sea as it comes in contact with the land and it marks the exact edge whether it is scalloped or straight. 1560 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Coming, if you please then, to the word " shores " of the Magda- len Islands — and I have already said that the British Case and we agree that it means the same thing that coast does with respect to Newfoundland — I insist again that the plain and palpable meaning of the word " shores," including all the indentations of the shores, carries with it the word " coast," if there was any question in regard to it whatsoever. It is interesting to note that the British Argument itself, in several instances, uses the word " shores " to include indenta- tions. I refer the Tribunal to the fourth paragraph on p. 5 of the British Argument: — " In the Counter-Case of the United States it is claimed that the question before the Tribunal relates only to the right of fishing. But the right to resort to British shores for the purpose of drying and curing is given by the same provision, and must be governed by the same considerations. If American fishermen are in any respect exempt from British jurisdiction on the treaty waters they are equally exempt from that jurisdiction on the shores," which, of course, is the land adjacent to the water; and on p. 15, at the paragraph marked " Joint Ownership " : — " It is asserted that the United States and Great Britain when they met in the negotiations of 1782 possessed ' the equal rights of joint owners ' in the British coast-fisheries and in British shores ; and that such fisheries and shores were subject to division between them." This states exactly what the contention was at that time — that the United States not only had a right to the fishery in the waters, but it had a right to land on the shores to dry fish. I read from the bottom of p. 20 of the British Argument : — "And this point becomes the more important when it is remembered that the exemption claimed for American fishermen would extend to the exercise of their rights on shore." British Argument, p. 88 : " Effect of United States contention." That is under Question 5, when they were very carefully dealing with bays. I quote: — , " According to this contention, the area renounced is to be meas- ured in the same way from the shores of enclosed waters as from the unindented shores, and in that view the clause would have precisely the same effect if the word ' coasts ' had stood alone, and the words, ' bays, creeks or harbours ' had been altogether omitted." Again, we have presented the definition of the word " shore " in every dictionary extant at that time in a footnote of the United States Argument at pp. 241 and 242. With regard to the Magdalen Islands, I want to call attention to the opinion of the law officers of the Crown which will be found in the United States Case Appendix, p. 1043 and following pages. You will remember that in 1841 this opinion seems to have been rendered, ARGUMENT OF SAMUEL J. ELDER. 1561 or forwarded, at all events. The Assembly of Nova Scotia had asked the opinion of the law officers of the Crown on a case stated in which quite a number of questions were propounded. One with re- gard to the headland theory and in regard to the proper delimitation of bays has been called to the attention of the Court very frequently, but the fifth question that was presented to them, which is not the fifth question presented here, appears on p. 1046, United States Case Appendix, with reference to the right to land on the Magdalen Islands. Perhaps I had better read the question : — " Have American citizens a right to land on the Magdalen Islands, and conduct the Fishery from the shores thereof by using nets and seines ; or what right of Fishery do they possess on the shores of those Islands and what is meant by the term shore." Palpably the wise men of Nova Scotia at that time understood that the bays were included because the important part of their question is, whether the right to take fish included the right to land on the shores so as to aid in the fishing by the landing of nets or anything of that kind. Then, coming to the answer of the law officers of the Crown, which appears on p. 1048, United States Case Appendix, sec- tion 5, we find this: — 945 " With reference to the claim of a right to land on the Mag- dalen Islands, and to fish from the shores thereof, it must be ob- served, that by the Treaty, the liberty of drying and curing Fish (pur- poses which could only be accomplished by landing) in any of the unsettled Bays, etc., of southern part of Newfoundland, and of the coast of Labrador is specifically provided for ; but such liberty is dis- tinctly negatived in any settled Bay, etc., and it must therefore be in- ferred that if the liberty of landing on the shores of the Magdalen Islands had been intended to be conceded, such an important conces- sion would have been the subject of express stipulation, and would nec- essarily have been accompanied with a description of the inland extent of the shore over which such liberty was to be exercised, and whether in settled or unsettled parts, but neither of these important particu- lars are provided for, even by implication, and that, among other con- siderations leads us to the conclusion that American citizens have no right to land or conduct the Fishery from the shores of the Magdalen Islands. The word ' shore ' does not appear to be used in the Con- vention in any other than the general or ordinary sense of the word, and must be construed with reference to the liberty to be exercised upon it, and would therefore comprise the land covered with water, as far as could be available for the due enjoyment of the liberty granted." That is to say, it is as far as a vessel fishery could be conducted ; as far as it could go. I want to say at this point, because it comes in this connection, that the United States does not concede that the opinion of the law officers of the Crown is correct upon that proposi- tion. It is based, as you will see, not upon any infirmity in the mean- ing of the word " shore," but is based upon the implication that if 1562 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the right to dry and cure on the Magdalen Islands had been intended it would have been specifically provided for, as it was on the southern coast of Newfoundland and on the Labrador; and from that implica- tion they properly draw the conclusion that there is no right to dry and cure on the shores, but they jump at the conclusion that therefore there is no right on the shores at all. The language of the treaty is " on the shores of the Magdalen Islands." That is, to take fish upon the shores, and we contend that the meaning of that phrase is to con- duct fishing operations, even though it involves attaching a net upon the shore, or landing a boat upon the shore to pull a net, or anything that is confined to the work of fishing, -and does not involve the fur- ther right of drying and curing; and we make the same contention with regard to the coasts of Newfoundland, it being conceded that the word " coast " has the same meaning as the word " shore." THE PRESIDENT: What would be the land covered with water? How is the land covered with water to be distinguished from the sea? MR. ELDER: The law officers draw a distinction there which, I fancy, means that the territory of the King runs under the water, and that the waters flowing over it are what the American fishermen get the right to use, because they are part of the territory of the King, and they have the right to use them as far as possible, up towards the shore. I am not sure that I have interpreted their mean- ing correctly, but that is the inference I draw from it. JUDGE GRAY : There would be great tides laying bare large portions twice every twenty-four hours and flooding them again ? MR. ELDER: Yes. With regard to the doctrine of interpretation which is to be applied, we contend that the word " coast," as used concerning the southern and western coasts of Newfoundland, is a clear word in its meaning, and that the word " shores " is a clear \vord in its meaning. Now, what is the doctrine to be applied, be- cause, in another clause of the same sentence, the plural of the word is used — " coasts," where it is split up into coasts ? Are you to cut down the word " coast," as it is first used, and say that it means less than its real meaning? We say there is no such doctrine of interpreta- tion as that. Our friends rely upon " Maxwell on the Interpreta- tion of the Statutes," p. 397 :— "ASSOCIATED WORDS UNDERSTOOD IN A COMMON SENSE," and the illustrations are given by the writer at p. 397 : — " The word ' land,' which in its ordinary legal acceptation in- cludes buildings standing upon it, is evidently used as excluding them, when it is coupled with the word ' buildings.' If after impos- ing a rate on houses, buildings, works, tenements and heredita- ments " ARGUMENT OF SAMUEL J. ELDER. 1563 We know what the word " land " means. Land is that which we walk upon, that which we till, and that which the herds graze over. Within the intention of law, however, the things attached to it pass \vith the conveyance of the land, and the title to a house is conveyed by conveying the land. But that is the legal result of the use of the word " land " which carries that which is appurtenant to it. 946 It is not the natural or ordinary meaning of the word " land." If, related to it, but separate from it, you use the word " buildings," then you quite clearly indicate that the word " land " is to be received in its natural meaning, and not in the legal signifi- cance which carries " buildings " along with it. The writer con- tinues : — " If after imposing a rate on houses, buildings, works, tenements and hereditaments, an Act exempted ' land,' this word would be re- stricted to land unburthened with houses, buildings, or works ; which would otherwise have been unnecessarily enumerated." That is too plain to require much exposition. A law imposing a rate upon houses, buildings, works, &c., and then exempting land from its operation means what? It means but one thing, and that is that it is land that does not have houses and buildings on it. Other- wise the word " land " would not except anything from the tax rate. So in regard to the next illustration. It is in regard to lands, houses, tithes, and coal mines. " Land," in the usual sense, does not include the things beneath it, while in law it does. If you speak of " mines " in that connection, it clearly means that you are dealing with coal mines independently of the legal implication that the land includes them. Take the next illustration : — " In the same way, although the word ' person ' in the abstract, includes artificial persons, that is, corporations, the Statute of Uses, which enacts that when a ' person ' stands seized of tenements to the use of another ' person or body corporate,' the latter ' person or body ' shall be deemed to be seized of them." That is to say that the fanciful or implied meaning of the word " person " that the law sometimes attaches to it will not continue to apply if you describe a body corporate separately. So that, it is merely a fiction of law that the word " person " shall have a different meaning. We know what a person is, but when a person is men- tioned separate from a corporate body, or, if, in any statute, you use the word " corporation " independently of the word " person," you clearly say that the word " person " is to be understood in its natural meaning. Not one of these eases is, in the slightest, a contradiction of the contention which we make in this case. We naturally go to England for our law, and it seems to us that there is a doctrine which has been over and over again announced in the English books applicable to this case, and I want to call the attention of the Tri- 1564 NORTH ATLANTIC COAST FISHERIES ARBITRATION. bunal to it. I refer to a recent English work published in London in 1908, and it is called " Cardinal Rules of Legal Interpretation." The writer of the work is Mr. Beale. I would especially direct the attention of the Tribunal to what is referred to as " Lord Wensley- dale's Golden Rule." Mr. Beale refers to it over and over again, and he points out at pp. 74, 133, 302, and 525, that when you find a word in a document, or a treaty, or a statute, you are to give it its natural meaning, unless there is something very plain to the con- trary. This rule was originally laid down in the case of Grey v. Pearson, House of Lords Cases, 61, p. 106, where his Lordship said : — " I have been long and deeply impressed with the wisdom of the rule, now, I believe universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills, and indeed stat- utes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsist- ency, but no further. This is laid down by Mr. Justice Burton, in a very excellent opinion, which is to be found in the case of War- burton v. Loveland." We have, I think, all these English cases which are referred to here, if the Tribunal should care to see them, but I am citing only the extracts which give additional evidence in support of the doc- trine laid down in this work " Cardinal Rules of Legal Interpreta- tion." I call attention to another similar expression, that of Lord Esher, Master of the Rolls, in Anderson v. Anderson, 1895, 1 Q. B., 749, who says : — " I will take first the rule as stated by Lord Eldon in Church v. Mundy, 1808, 15 Ves. 396, at page 406. He said— " ' The best rule of construction is that which takes the words to comprehend a subject that falls within their usual sense, unless there is something like declaration plain to the contrary.' " Then Lord Esher goes on : — " That is as I understand him, prima facie you are to give the words their larger meaning unless you find something which plainly shews that they were intended to be read in a more restricted sense. 947 " Nothing can well be plainer than to show that prima facie general words are to be taken in their larger sense, unless you can find that in the particular case the true construction of the instru- ment requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before." He says that in that case the doctrine of ejusdem generis does not apply. Lord Rigby, at p. 755, in the same case, uses the same expres- sion, or states the same principle in a different form ; — ARGUMENT OF SAMUEL J. ELDER. 1565 " The main principle upon which you must proceed is, to give to all the words their common meaning; you are not justified in taking away from them their common meaning, unless you can find some- thing reasonably plain upon the face of the document itself to show that they are not used with that meaning, and the mere fact that general words follow specific words is certainly not enough." Applying this doctrine to this case, it is clear that the word " coast " includes bays, harbours, and creeks, and this Tribunal would have to find something plain, something like " a declaration plain to the contrary," in order to cut the meaning of that word down. "We are reminded that for ninety years the " declaration " was not so clear that anj^body ever dreamed of it, and it was reserved to a gentleman, whom Sir Charles referred to as not being a lawyer, to find it out between the month of April 1904 and the month of April 1905. I want to call the attention of the Tribunal to another authority. The British Case dealt with this question at some length. The Coun- ter-Case confined itself to about so much space [indicating with his thumb and forefinger] in the discussion of this Question 6, and the Argument refers to some extent to the matter in the Case. But they carefully refrain from any mention of the contemporary or subse- quent interpretation of this treaty. When the President of the Tri- bunal called the attention of Sir James Winter to the report of the Assembly in Newfoundland in 1845, United States Case Appendix, vol. ii, p. 1068, which conclusively showed that at that time the As- sembly, or the parties who reported to it. understood that bays were included, Sir James said, in effect, that he protested against the Tri- bunal considering any of these matters that had occurred since, that these reports were written by people who did not know and were ignorant in regard to this subject and that undoubtedly the Tribunal would find a great many instances of this kind in the intervening period of time. He wanted the treaty interpreted as if it were made yesterday, and wanted you to suppose that this treaty was presented to you just as if it were made yesterday. Well, it was not made yes- terday. There were men alive for a number of years after it was made who had taken part in making it and who probably knew some- thing in regard to it. Some of their views I want to call attention to. In the year following the making of the treaty, on the 14th June, 1819, an Act was passed by the British Parliament when everybody knew what this word " coast " meant. I ought to have alluded to the fact that throughout these negotiations, referring to every report that is available to us, no one makes the suggestion anywhere that this word " coast " was to be limited, or that the bays on the west coast of Newfoundland were to be excluded. It was never whis- pered. If this " joker," if I may be pardoned the expression, was in- 1566 NORTH ATLANTIC COAST FISHERIES ARBITRATION. corporated in the treaty the negotiators did not understand it. They could not be suspected of knowing it, for their understanding was that the word was to receive its ordinary meaning. On the 14th June, 1819, this Act was passed, United States Case Appendix, p. 112. One of the sections, referring to the treaty coast gives the King in Council the right — " from time to time made for that purpose, to make such Regulations, and to give such Directions, Orders and Instructions to the Governor of Newfoundland, or to any Officer or Officers on that Station, or to any other person or persons whomsoever, as shall or may be from time to time deemed proper and necessary for the carrying into Effect the Purposes of the said Convention, with relation to the taking. Drying and curing of Fish by Inhabitants of the United States of America, in common with British Subjects, within the limits set forth in the said Article of the said Convention and herein- before recited ; any Act or Acts of Parliament, or any Law, Custom or Usage to the contrary in anywise notwithstanding." That is to say, they gave to His Majesty with regard to these treaty coasts, the places where we could take fish, the right by Order- in-Council to see to it that his treaty obligations were maintained. In the second paragraph on p. 113 of the Appendix to the Case of the United States, the Act deals at length with the non-treaty coasts — " not included within the limits specified and described in the first article ; " that is to say, the non-treaty coasts. 948 And they make provision that the right of entry for the four purposes named in the treaty shall not be violated. The pro- vision is, to proceed with the reading — " not included within the Limits specified and described in the first Article of the said Convention, and hereinbefore recited; and that if any such Foreign Ship, Vessel or Boat, or any Persons on board thereof, shall be found fishing or to have been fishing, or preparing to fish within such Distance of such Coasts, Bays, Creeks or Har- bours, within such Parts of His Majesty's Dominions in America out of the said Limits as aforesaid." Then the vessel is to be seized and the procedure is set out. So then it becomes important to us to consider what His Majesty did in Council. The Order-in-Council will be found at p. 114, United States Case Appendix, where His Majesty goes on also to recite the making of the treaty and its provisions. And on p. 115, he recites the Act which gives the authority to give directions — just midway of the page (United States Case Appendix, p. 115) : — " It is ordered by His Royal Highness the Prince Regent, in the name and on the behalf of His Majesty, and by and with the advice of His Majesty's Privy Council, in pursuance of the powers vested in His Majesty by the said Act, that the Governor of Newfoundland do give notice to all His Majesty's subjects being in or resorting to the said ports that they are not to interrupt in any manner the aforesaid fishery so as aforesaid allowed to be carried on by the inhabitants of ARGUMENT OF SAMUEL J. ELDEB. 1567 the said United States in common with His Majesty's subjects on the said coasts, within the limits assigned to them by* the said Treaty : and that the Governor of Newfoundland do conform himself to the said Treaty, and to such instructions as he shall from time to time receive thereon in conformity to the said treaty, and to the above- recited Act, from one of His Majesty's Principal Secretaries of State, anything in His Majesty's Commission under the Great Seal, consti- tuting him ^Governor and Commander-in-Chief in and over the said island of Newfoundland in America, and of the islands and terri- tories thereunto belonging, or in His Majesty's general instructions to the said Governor, to the contrary notwithstanding." Nowhere is there any provision with regard to the bays of the west coast, or any intimation that this order to His Majesty's subjects not to interfere was to be limited to interference on the aforesaid 3-mile belt. It is a broad order, not to interfere on the coasts which are named in that treaty : and the word " coast " is used just as much, as I recall it, of Labrador, as it is of Newfoundland. Yes: " On the said coasts, within the limits assigned to them ; " His Majesty understanding distinctly that the word "coasts" meant just the same in regard to Labrador, where the bays are included, as it did in Newfoundland and the Magdalens, where we insist that they are also included. And that is signed by Lord Bathurst, who had had so much to do with the negotiations. On the 21st June, 1819, at p. 99 of the British Case Appendix, Lord Bathurst writes a letter, and in the first paragraph he says : — "As the inhabitants of the United States will undoubtedly proceed without delay to exercise the privilege granted to them under that convention His Royal Highness has commanded me " That is, after sending a copy of the Act, and the Order-in-Council, and all that. Why did Lord Bathurst think that the Americans would immediately begin to exercise the right there? Sir James Winter tells us that there were no fish there; that the reason that they never interfered with the United States fishermen in all these intervening years was because there were no fish there, and the United States fishermen were not there. There was nobody to order off. Why was it that Lord Bathurst, in 1819, said that the Ameri- cans would immediately begin to use their right? Why, because they had been using it there in all those previous years, and were likely to continue to do it. Lord Bathurst goes on, in a carefully composed letter, to point out just exactly what rights the Americans had, and just what they had not. He gets down to as fine a point as this, with regard to the dry- ing and curing on the southern coast of Newfoundland, as compared with the drying and curing on the coast of Labrador. He points out that the United States fishermen had the right to dry and cure on the coast of Labrador, under the treaty of 1783, in the places 92909°— 8. Doc. 870, 61-8, vol 10 43 1568 NORTH ATLANTIC COAST FISHERIES ARBITRATION. which were not then settled, and that on Newfoundland they had no such right. And, therefore, the exclusion for purposes of drying and fishing must be on the Labrador coast only in places that were settled in 1783; and in Newfoundland only those that were settled in 1818. He gets down to as close a discrimination as that. The third paragraph of his letter reads : — 949 " With respect to the fishery which the citizens of the United States are authorised to carry on upon the coast of Labrador you will take care that it be carried on by them within the specified limits in the same manner as previous to the late war." With regard to Newfoundland, in the previous paragraph, the only restriction that he makes is that he is to take care that the Ameri- cans do not — " carry on trade or ... introduce articles for sale or barter." not authorised by the convention, &c. But this matter of the greatest importance, as is now contended — the exclusions of Americans from bays on the west coast — had not occurred to his Lordship, and he makes no such suggestion as that. It is reserved for ninety years, for somebody to think of and put forward. To go on from there, Lord Bathurst's expectation that the Ameri- cans would resort there was very shortly realised. In 1820 and 1821, contrary to Sir James' feeling with regard to the matter, the Ameri- can fishermen were in those very bays fishing. And it appears from the fact that a French war vessel ordered them out of three bays, Port- au-Port, and St. George's and the Bay of Islands. That matter was immediately taken up with the French Government, and protest was made to it ; and the rights of the Americans there were fully set out and were fully discussed. It was also taken up with the British Government, and the American Minister was instructed to demand of Great Britain either that they protect us in the rights where our vessels had been fishing, or else that they should give us an equivalent somewhere else. The Counter-Case goes with very great minuteness into these negotiations, both with France and with Great Britain. It shows, I think, conclusively, that France receded from any claim to exclude Americans there. The last communication was between Mr. Gallatin, who was still in Paris, and knew all about this treaty, and whose writing on the subject is most instructive, and Chateau- briand, I think — at any rate, the French Minister. And it was terminated in this way: The French Minister said that instructions had been transmitted to the Charge d'Affaires at Washington, " whose representations to our Government, &c." So this was transmitted to Mr. Adams, then Secretary of State, and the last that we learn of the matter is from Mr. Adams' diary, when he asks the French Charge whether he has received those in- structions or not; and the French Charge tells him that he has ARGUMENT OF SAMUEL J. ELDER. 1569 received one communication, but has not received some others that are important. And there is nothing further said between those two Governments on the subject. With regard to the representations to Great Britain it would have been the most opportune time in the world, with everybody knowing all about it. to have said : " Why. what is the trouble with the United States? You have not any right in the bays. We did not give you any right in the bays. We only said " coast " when we spoke of Newfoundland, and therefore you have nothing to complain of." The fact was that they said nothing of the kind; and the cor- respondence at that time, which is set out in the Counter-Case, quite fully discloses that the representatives of Great Britain recognised that unless the King of France could be persuaded not to pursue his position further, some compensation must be made, an equivalent must be given, to the United States, if the French claim to an ex- clusive right was a valid one. But the suggestion is made that very likely such orders may be given by the King at Newfoundland as will prevent further interference. Apparently those orders were given, because that is the last we hear of it. The United States never had occasion further to press this claim on Great Britain for compensation, or to make further protest to France: and the whole correspondence discloses an absolute absence of everything of that kind. Mr. Adams' letter, one of the very last ones, to the Minister, Mr. Rush, also one of the negotiators of this treaty in London, says that very likely there would be no further interference with United States vessels. And the fact that Mr. Adams did not say anything more about it indicates, I think, pretty distinctly, that there was no more interference. That starts the history of these intervening years, the presence of United States vessels conceded. I cannot help adverting to what Sir James Winter said in his argument as to the reason for there not being any inter- ference by Newfoundland with our people in the bays, because they were not there, and he said that there were no fish there. He said the Americans were not there, and there were no fish for them to catch. At one time Sir James went so far as to say that the French did not take any fish there; but that was withdrawn the next 950 morning. But he was rather inclined to persist that there were no fish for the Americans to take there. It occurred to my mind that it was most unfortunate that at Halifax we should have been told that there were fish at Newfoundland; that there were a great many fish at Newfoundland; there were 6,000,000 dollars worth of fish a year at Newfoundland. Well, now, of course it may be said that in asking for damages at Newfoundland they were only asking on the non-treaty coasts, all the way around here (indicating on map). But if there really were 6,000,000 dollars worth of fish 1570 NORTH ATLANTIC COAST FISHERIES ARBITRATION. on that half of the coast of Newfoundland, it would be the most astounding thing in the world if there were not fish for the Ameri- cans to take in other parts of the coast. I doubt if any such physical phenomenon as that exists elsewhere in the world. That passage that I read a while ago about one net over here on the Magdalen Islands taking 3,000 barrels of herring will be remembered. And yet it is stated that there have not been any fish just across over here (indicating on map). The United States at Halifax was asked to pay Newfoundland 2,880,000 dollars, I think, for twelve years' use of the rights on the non-treaty coast. I am coming to that in just a moment. They did not ask for damages under the Treaty of Wash- ington on the treaty coast. Why not? Because we had the access, under the treaty of 1818, to the treaty coast. Attention has already been called by the President of the Tribunal to this report to the Assembly of Newfoundland in 1845. In 1846 (vol. ii, pp. 1072 and 1073 of the Appendix to the Case of the United States) there is an address by that same body to the Queen, in which the same assertion is made. I shall not stop to read it, but will call attention to the history from that time on. In 1868 there was an Act of the Dominion of Canada, 22nd May, 1868, which is to be found at p. 133 of the Appendix to the Case of the United States, and from which I read: — " The Governor may, from time to time, grant to any foreign ship, vessel or boat, or to any ship, vessel or boat not navigated according to the laws of the United Kingdom, or of Canada, at such rate, and for such period not exceeding one year, as he may deem expedient, a license to fish for or take, dry or cure any fish of any kind whatever, in British waters, within three marine miles of any of the coasts, bays, creeks or harbours whatever, of Canada, not included within the limits specified and described in the first article of the convention between His late Majesty King George the Third and the United States of America, made and signed at London on the twentieth d&y of October, 1818." It will be remembered by the Tribunal that Canada had under its jurisdiction the Magdalen Islands, and it had the coast of Labrador from Mount Joli up to this point (indicating on map), and licences could be issued by the Government to enter and take fish everywhere else except there. Why not there ? Why, because everybody knew and recognized the fact that Americans, under that very treaty, had the right to use them, and that no license was necessary. It is difficult to see how this contention can be advanced in the light of the position of Newfoundland at Halifax with regard to obtaining damages. Of course, they had the object there of showing that under the treaty of 1871 the United States received great benefits, and to state every benefit and every inch of the coast that the United States obtained access to by means of the treaty of 1871 over and AKGUMENT OF SAMUEL J. ELDEB. 1571 above that which it had in 1818. And when they came to state their claim of the coast that was opened to the United States — this is Part II of the printed Case of Newfoundland which begins on p. 546 of the Appendix to the Counter-Case of the United States, chapter 1, and then on p. 547, the second paragraph from the bottom — they say:— "A reference to the accompanying map will show that the coast, the entire freedom of which for fishing purposes has thus been ac- quired " That is, by the Treaty of Washington — " by the United States for a period of twelve years, embraces that portion extending from the Rameau Islands on the southwest coast of the island eastward and northwardly to the Quirpon Islands. This coast contains an area of upwards of 11,000 square miles, in- cluding admittedly the most valuable cod-fisheries in the world. Fish of other descriptions, namely, herring, capelin, and squid, which are by far the best bait for the successful prosecution of the cod- fisheries, can be taken in unlimited quantities close inshore." So that at that time, when they had every reason for showing the largest amount of advantage obtained by the United States under the treaty of 1871 over what it had under the treaty of 1818, they begin with the end of the United States rights and go 951 around to where they began at the other end, recognising dis- tinctly that the United States already had the entire treaty coast, with all its bays, harbours, and creeks, and that the United States should not be called upon to pay for anything on those coasts because nothing was added on them by the Treaty of Washington. If not included under the treaty of 1818, then the Treaty of Wash- ington would have given us the bays, and Newfoundland would have been entitled to compensation for them. It was concerning the con- duct of the Newfoundland Counsel in that Arbitration that Sir Robert Bond explained that they were lawyers, and were doing the best they could. I must go back just for an instant to say that Canada, in that same Halifax hearing, admitted squarely our rights so far as their coasts were concerned. This is part of the Canadian Case at p. 538 of the Counter-Case Appendix of the United States, third paragraph : — " The Convention of 1818 entitled United States citizens to fish on the shores of the Magdalen Islands, but denied them the privilege of landing there. Without such permission the practical use of the inshore fisheries was impossible. Although such permission has tacitly existed, as a matter of sufferance, it might at any moment have been withdrawn, and the operations of United States fishermen in that locality would thus have been rendered ineffectual. The value of these inshore fisheries is great" 1572 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. And it is in that passage that a single seine is described as having taken 3,000 barrels of herrings. There Canada was stating its full case for damages as to the Magdalen Islands, and they admitted that we had a right to fish up to the shore; and the thing that they said we could not do was to step on the shore, in carrying on the opera- tions of fishing — squarely admitting that the bays were open to us. In 1886 the " Bayard " was ordered out of Bonne Bay, up there on the western coast of Newfoundland. I do not know but that it is entirely familiar, but here it is on the map (indicating). And the "Mascot" was ordered out of Port Amherst on the Magdalens, The matter was called to the attention of the British Government, and the warning notices were withdrawn, and the collector of cus- toms at Port Amherst said he never ordered the American captain not to fish; said that he told him where he could fish, and showed him on the map where he could fish, but told him that he could not buy bait, and must not ship a crew. And his report was sent for- ward as disproving the United States claim that they had been inter- fered with in their rights to fish. With reference to this matter of the " Mascot " and the " Bayard," I refer to pp. 66 and 67 of the British Counter-Case : " These warning notices related, first, to fishery rights, and, sec- ondly, to purchases in connection with fishery operations ; and so far as they referred to fishery rights, they were clearly improper in so far as they applied to treaty coasts." So that it wras not possible even for the person or persons who prepared the British Counter-Case to keep in mind when they were discussing Question 7, that they were claiming under Question 6 that we had no right to fish on the treaty coast — a square and com- plete admission that the notice, so far as it related to fishing in the bays of the treaty coasts, was an improper one. THE PRESIDENT : The notice to the " Bayard " was at Bonne Bay ? MR. ELDER: Yes. THE PRESIDENT: And Bonne Bay is on the treaty coast? MR. ELDER: The same notices seem to have been, in substance, served on both of them. THE PRESIDENT: Yes. MR. ELDER: Because the correspondence discloses just the same question. THE PRESIDENT : And they were both on the treaty coast ? MR. ELDER : Both on the treaty coast. In 1886, Lord Rosebery forgot about these treaty rights, and the Treaty of Washington having expired, he asked Mr. Bayard (United States Case Appendix, p. 755), through Sir Lionel West, if he would issue a notice to American fishermen that they were now precluded ABGUMENT OF SAMUEL, J. ELDER. 1573 from fishing "in British North American territorial waters." Mr. Bayard replied, at the same page: — " In view of the enduring nature and important extent of the rights secured to American fishermen in British North American territorial waters under the provisions of the treaty of 1818, 952 to take fish within the three-mile limit on certain defined parts of the British North American coasts, and to dry and cure fish there under certain conditions, this Government has not found it necessary to give to United States fishermen any notification that ' they are now precluded from fishing in British North American territorial waters.' " It would have been an opportune time, if it had then been thought of, for Lord Rosebery to have suggested to Mr. Bayard that he must advise them that they could not fish in the bays on the west coast; but that had not occurred to him. And the British Foreign Office contents itself with acknowledging the note, without contro- verting it at all. In 1886, vol. ii, United States Case Appendix, p. 757, it is conceded that the United States may land on the Magdalen Islands, not as a matter of right, but as a matter of concession. That is the Canadian special instructions, in the middle of the page, under the word " jurisdiction " : " With regard to the Magdalen Islands, although the liberty to land and to dry and cure fish there is not expressly given by the terms of the convention to United States fishermen, it is not at present in- tended to exclude them from these islands. The only question being, as the Tribunal will see, not whether we had a right to the bays clear up to the shores — that was conceded — but whether we had the right to land. In the British Case Appendix, p. 436, the minority report of the Committee of the United States Senate shows clearly that it under- stood that we had the right to the bays. In 1888 — that is the one that I have just been referring to, at p. 436, British Case Appendix, — the quotation is this : — " It will be observed that the ancient right continued in all its force in every bay, harbour, and creek of a described territory, and that the renunciation of the right to fish on other coasts, bays, har- bours, and creeks is in the same language, and is perfectly correlative to the first." The proposed treaty of 1888, the Bayard-Chamberlain treaty, showed distinctly that everybody then understood that we had the right to the bays on the treaty coast, because it provided for the de- limitation of bays on the non-treaty coasts only. Some of them, Chaleur and a number of others, were provided for by exact bound- aries ; but the bays that were to be delimited were those not included in the treaty limits. Why not? There were bays over there that 1574 NORTH ATLANTIC COAST FISHERIES ARBITRATION. required delimiting if we were to be excluded from them. The reason that they were not to be delimited was because we already had them. SIR CHARLES FITZPATRICK: Where is the reference that you have just given ? MR. ELDER : United States Case Appendix, pp. 39 and 40. The high contracting parties agreed to appoint a mixed commission to delimit, in the manner provided in this treaty, the British waters, bays, creeks, and harbours of the coasts of Canada and of Newfound- land— SIR CHARLES FITZPATRICK : Oh, yes. MR. ELDER (continuing) : — as to which the United States, by arti- cle 1 of the convention of the 20th October, 1818, between the United States and Great Britain, renounced for ever any liberty to take, dry, or cure fish. That referred to the bays on the non-treaty coasts, and not the bays on the treaty coasts. That is still further shown, Sir Charles, if you will pardon me. by the fact that they went to Newfoundland ; and the bays specially delimited, to show what should be considered bay and what should be considered open sea, were Fortune Bay, Placentia Bay, and one of the bays on the east coast the name of which I have forgotten; that they specifically provided for, and did not leave to the Com- mission; but the bays on the other side they did not delimit. The Newfoundland customs circular of the 18th October, 1898 (United States Counter-Case Appendix, pp. 331 and 332), I will read : — " Under the treaty of 1818, made between Great Britain and the United States, the fishermen of the latter country have liberty to catch fish on that part of the coast between Ramea Islands and Cape Ray and between Cape Ray and Quirpon Islands, and of drying or curing fish in any unsettled parts within those limits. They may not, however, enter any settled parts in this Colony within the above limits, or any parts without those limits, for any purpose other than for the purpose of shelter, and of repairing any damage, or of pur- chasing wood and of obtaining water; except for taking fish within the above limits." 953 And on the next page, 332 : — " You are to see that every fishing vessel of the United States which enters your port or any port within your jurisdiction, except it be within the above limits, for other than the purpose of shelter, repairing damage, and of purchasing wood and or obtaining water, shall obtain a licence as set forth in the ' Foreign fishing ves- sels Act,' and shall pay for the same the fee of one dollar and fifty cents per registered ton, but if the port be within the above limits she may enter to take "- And, to make clear about it, they use the word " catch " afterwards — " (catch) fish without a license, as well as for the above purposes, but not to buy fish or carry on trade, or for any purpose not above mentioned." ARGUMENT OF SAMUEL J. ELDER. 1575 Of course it will be conceded that a port is in a harbor, or it is in a bay. In 1904. in the correspondence between Great Britain and the Government of Newfoundland concerning that treaty with France of 1894, a despatch was sent to Newfoundland, received the 12th April, 1904 (United States Counter-Case Appendix, p. 337), and they were told, in substance, of the text of the proposed treaty with France. And under date of the 15th April, 1904, Governor Boyle, the Governor of Newfoundland, cabled to the Home Office (p. 338, Appendix to Counter-Case of the United States) : — J' Ministers request me to state that if the right of the people of this Colony to its fisheries throughout the year is not preserved, they cannot approve the arrangement. If British fishermen were prohibited from the Winter Fishery under Convention or other in- strument, does not His Majesty's Government realize that the whole winter fishery would be in the hands of Americans by virtue of Treaty 1818, and British subjects must find themselves in most in- vidious and ruinous position. Ministers must press that close season shall only apply to concurrent right of French fishermen." This recognizes distinctly that if by a treaty with France they were kept out, while the French fishermen were, the herring fishery on the west coast in the winter would go to the Americans; and the herring fishery is wholly, of course, in the bays, as appears over and over again. There are one or two more considerations under Question 6 that I will call to the attention of the Tribunal. I endeavoured in the sum- mary which I made on Tuesday and yesterday morning to show that Sir Robert Bond failed to convince either the British Govern- ment or his own with regard to it, and that Great Britain never presented this question to the United States until it was presented for the purpose of this arbitration. It will be remembered that the citation from Vattel in the British Case — I will not take the time to read it — says that if a construction results in a manifest absurdity, it, of course, must be disregarded. We submit — and we might have rested our whole case so far as this question is concerned on these three contentions — that the construc- tion contended for by Sir Robert Bond results in a manifest absurdity in three particulars. In the first place, if it is true that the bays, harbors, and creeks of Newfoundland on the west coast and south coast, and of the Magda- len Islands, are not covered by article one of the treaty of 1818, they are not covered anywhere by that treaty. The bays that were re- nounced were the bays " not included with the above-mentioned limits"— that is, the treaty coast limits— so the United States did not renounce them, and according to Sir Robert Bond, the United States did not get them ; and therefore those bays were left out by 1576 NORTH ATLANTIC COAST FISHERIES ARBITRATION. these able and learned negotiators altogether, and never were pro- vided for at all. In that connection I perhaps ought to read the renunciatory clause : — "And the United States hereby renounce forever any liberty here- tofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish, on, or within three marine miles of any of the coasts, bays, creeks or harbors of His Britannic Majesty's dominions in America not included within the above-mentioned limits." So we did not renounce them. And according to Sir Robert Bond, the United States did not receive them. In that connection I want to refer to some language in In re Har- rison, in 1885, the 30th Chancery Division, at pp. 393 and 394, where Lord Esher says : — " There is one rule of construction which, to my mind, is a golden rule, namely that when a testator has executed a will, in solemn form, you must assume that he did not intend to make it 954 a solemn farce; that he did not intend to die intestate, when he has gone through the form of making a will. You ought, if possible, to read the will so as to read to a testacy, not to an intestacy. This is a golden rule." But if Sir Robert Bond's contention is correct in this particular, then these negotiators enacted a solemn farce. In attempting to dispose of this whole controversy they left out a most important part of the controversy. The King of France and 40,000 men marched up a hill and then marched down again, so far as the bays of the west coast were concerned. Second, it is clear that the United States fishermen, under Sir Robert Bond's contention, have no right of shelter, repairs, wood, or water, in the bays of the treaty coasts, because the provision in the renunciatory clause is this : — " Provided, however, that the American fishermen shall be ad- mitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood and of obtaining water, but for no other purpose whatever." Now, what are " such " bays ? It immediately follows the words of the renunciatory clause, and is a part of it ; that is to say, the bays of the non-treaty coasts, the ones that we had just renounced. So that the United States fishermen are in the peculiar position of being allowed to fish along a 3-mile strip on the western coast of New- foundland and the other places, but in case of a storm they must come all the way around here (indicating on map) to get on to the non- treaty coast, to get any shelter, or if they are short of wood and water, or need to make repairs, under the terms of this treaty, they cannot do it, because the right of entry to harbours was only on the non-treaty coasts. This was admitted by Sir James Winter, when ABGUMENT OF SAMUEL J. ELDEB. 1577 the President asked him the question. The answer was at p. 3530 of the record, where he says that except when they come in for drying and curing, they would have no right. Of course he said, " we should let them," but, as a matter of fact, under the treaty, they have no right whatever of shelter and the like. Third, as to this strip along here on the southern coast (indicating on map) the United States fishermen have the right to dry and cure their fish, and of course they must go into bays and harbours to do that. They can dry and cure on the unsettled portions, or make an arrangement with the owner or possessor of the ground, so that they can get a leasehold from the owner, or permission from him. But the contention is that American fishermen cannot take any fish in those bays that they go into. That is to say, we cannot fish in the very bays on to the shores of which we can go for the purpose of drying and curing fish. This is all that I have to say with reference to Question 6. I shall now ask the attention of the Tribunal to Question 7. This determination seems to rest very largely on the meaning of the question: — "Are the inhabitants of the United States, whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article 1 of the Treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the com- mercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally ? " Great Britain tells the Tribunal that that is an inquiry as to whether the treaty of 1818 gave United States fishing-vessels any commercial privileges. Clearly it does not. It is a fishing treaty, and we look through it from one end to the other, and there is noth- ing about commercial privileges whatever. It was at a time when Great Britain did not grant commercial privileges on those coasts to any one. Newfoundland was a fishing-station in the Atlantic, as it was described, a ship moored there. All rights of trade were re- served to Great Britain and to its subjects. Long after our trading- vessels were admitted to the West Indies and to other sections, they could not go on to the Newfoundland shores, or indeed to the colonial shores in the North Atlantic at all. And yet Great Britain says that this question is as to whether the treaty of 1818 gave us commercial privileges on that coast. Great Britain knew quite well that the United States did not make that contention. Take the British Case itself, at p. 141, and towards the bottom of the page is Mr. Daniel Manning's report, as Secretary of the Treasury, to the House of Representatives :— " American fishing- vessels duly authenticated by this department, and having a permit ' to touch and trade,' should be permitted to 1578 NORTH ATLANTIC COAST FISHERIES ARBITRATION. visit Canadian ports and buy supplies, and enjoy ordinary commer- cial privileges, unless such a right is withheld in our ports 955 from Canadian vessels. That right is denied by the Privy Council and the Governor-General of the Canadian Dominion upon the ground that it would be in effect a pro tanto abrogation of the treaty of 1818. That contention is an error, in the opinion of this department, because the treaty of 1818 has no application to the sub- ject-matter." That is, to commercial privileges. Take the report of a Committee of the House of Representatives in 1887, which appears on p. 142 of the British Case, the last para- graph quoted : — " The treaty of 1818 gave rights of fishing independent of general commercial rights, although it may be said that as to shelter, repairs, wood, and water, the treaty did give to fishermen certain commercial rights, or rather a few rights of humanity. The treaty did not re- strain the granting of the exercising of commercial rights. The right, if it be a right, of an American to buy anything in Canada does not come of the inshore fishing treaty of 1818." The same with regard to a report to the Senate, which appears at the top of p. 143 of the British Case. It is also concisely stated at p. 143 by Mr. Evarts, in the debate in the United States Senate of the 24th January, 1887. It will be remembered that Mr. Evarts was Secretary of State, and knew whereof he spoke, and he said this : — " the settled opinion of the Government now is that the treaty of 1818 is nothing but a fishing treaty and not a commercial treaty at all. It is regulative of the fishing interest as there described as the subject-matter, and the basis of all the provisions that have entered into that treaty. It is not a restriction of commerce at all; it is an enlargement of mere fishing rights under the very limited allowance of shelter and repairs and procuring wood." And so on, through pp. 143, 144, and parts of 145; so that Great Britain knew that the United States did not claim that there were any commercial privileges granted by the treaty of 1818 ; and yet it urges upon this Tribunal that that is exactly what this question means — that the United States has submitted a question to you which has been foreclosed long ago, and concerning which the United States makes no contention whatever. I do not know what I can say more about that. Their contention is that the United States has actually brought a question here which a child could answer — brought a fishing treaty here, and asked this Tribunal if it could find commercial privileges in it — when the United States did not claim any commercial privileges under it. These two great countries bringing this question across the seas, would almost lead one to quote the old line : Parturiunt monies, nasce- tur ridiculus mus. These two great mountains, Great Britain and ARGUMENT OF SAMUEL J. ELDER. 1579 the United States, in the pains of child-birth bring forth a little mouse like this, and lay it on the table before this Tribunal. Great Britain rests its contention very largely on the word " en- titled," which is in the question—" entitled to have." Entitled to have what? That is the next question. " Commercial privileges on the treaty coasts, accorded" — how? By the treaty of 1818? No. "Accorded by agreement or otherwise." Accorded anyhow. In whatever way we have obtained commercial privileges, the question is whether fishermen are entitled to use them, or are debarred from using them. If there had been the slightest intention of asking whether the commercial privileges were granted by the treaty of 1818, that sentence could have been framed very easily : " Entitled to have the commercial privileges on the treaty coasts accorded by said treaty; " because it has just mentioned that treaty. It does not say that. It says, " accorded by agreement or otherwise." Accorded in any sort of way. The word " otherwise " shows distinctly that the utmost generality of the method by which our commercial privileges were accorded is presented. It is not the question whether they were accorded by one treaty or another, or any treaty whatever; it is a question concerning commercial privileges " accorded by agreement or otherwise." The generality of that word " otherwise " shows that there was nothing of the source, extent, or character of the commercial privi- leges with which this Tribunal was to be troubled at all. It takes for granted that commercial privileges are granted somehow, by agreement or otherwise, and the question is whether United States fishermen are entitled to exercise them. So that we say that this question assumes conclusively, and as the basis on which it rests, that some commerical privileges have been accorded to the United States, and that it is not of importance to this Tribunal to examine what they are. But we are not dealing with any moot question, and I will, for the instant, allude to existing commercial privileges. None what- ever existed in 1818, in any of those waters up there ; but gen- 956 eral commercial privileges, so far as the British North Ameri- can colonies were concerned, were first extended to the in- habitants of the United States by British Order-in-Council of the 5th November, 1830, British Case Appendix, pp. 570 and 571. Reciprocal commercial privileges were granted by the United States for the benefit of the inhabitants of those colonies by Act of Congress of the 29th May, 1830, and by at Presidential proclamation of the 5th Octo- ber, 1830. That is in the British Case Appendix, at p. 786. The Order-in-Council of the 5th November, 1830, recites, in a variety of " whereases," the steps of which led up to the granting of the rights. It recites that His Majesty is satisfied that British ves- sels (and it describes them twice in the last paragraph on p. 570, as 1580 NORTH ATLANTIC COAST FISHERIES .ARBITRATION. British vessels) have been given by the United States corresponding privileges. I read, from the bottom of p. 570: — "And His Majesty doth further, by the advice aforesaid, and in pursuance of the powers aforesaid, "declare that the ships of and belonging to the said United States of America, may import from the United States aforesaid, into the British possessions abroad, goods the produce of those States, and may export goods from the British possessions abroad to be carried to any foreign country whatever." To go back on the other page for a moment, to the second para- graph of the order: — " And whereas by a certain order of His said late Majesty in council, bearing date the 27th day of July, 1826, after reciting, that the conditions mentioned and referred to in the said Act of Parlia- ment, had not in all respects been fulfilled by the Government of the United States of America, and that, therefore, the privileges so granted as aforesaid by the law of navigation to foreign ships, could not lawfully be exercised or enjoyed by the ships of the United States aforesaid, unless His Majesty, by his order in council, should grant the whole or any of such privileges to the ships of the United States aforesaid : His said late Majesty did. in pursuance of the powers in him vested by the said Act, grant the privileges aforesaid to the ships of the said United States; but did thereby provide and declare, that such privileges should absolutely cease and determine in His Majesty's possessions in the West Indies and South America, and in certain other of His Majesty's possessions abroad, upon and from certain days in the said order for that purpose appointed, and which are long since passed : " And then it goes on to recite another order with regard to all vessels of the United States. Now, it was in that way that the United States got its entrance into colonial waters in the North Atlantic. The United States granted the same rights by the Act of Congress of the 29th May. 1830, which is to be found on p. 786 of the Appendix to the British Case, authorizing the President to issue a proclamation when he was satisfied that Great Britain had given to the United States corresponding rights. The President's proclamation begins on the same page, the 5th October. 1830, and recites the Act of Congress to the effect that when he — " shall receive satisfactory evidence that the Government of Great Britain will open the ports in its colonial possessions in the West Indies, on the continent of South America, the Bahama Islands, the Caicos and the Bermuda or Somer Islands, to the vessels of the United States, for an indefinite or for a limited term; that the ves- sels of the United States, and their cargoes, on entering the colonial ports aforesaid," And he recites in the next paragraph : — "And whereas, by the said Act, it is further provided, that, when- ever the ports of the United States shall have been opened under the AEGUMENT OF SAMUEL, J. ELDER. 1581 authority thereby given, British vessels and their cargoes shall be admitted to an entry in the ports of the United States, from the islands, provinces, or colonies of Great Britain, on or near the North American continent, and north or east of the United States : "And whereas satisfactory evidence has been received by the Presi- dent of the United States, that, whenever he shall give effect to the provisions of the Act aforesaid, the Government of Great Britain will open, for an indefinite period, the ports in its colonial posses- sions in the West Indies," And so forth, reciting the places. " Now, therefore, I, Andrew Jackson, President of the United States of America, do hereby declare and proclaim " the right of entry of the British ships. I call attention to these things in part to show that it is not 957 a moot question, and in part to show that the right given by Great Britain and the right given by the United States is to American ships on one hand and British ships and vessels on the other, that it is not a gift, it is not a privilege granted by one or the other to " trading-vessels." Because it is erroneously stated in the British Case as being a fact, that these commercial privileges were granted to trading-vessels, and that it so appears. It does not so appear. And I ought to say right here with reference to the construc- tion of the question itself, how absurd it would be for the United States and Great Britain to come here and present to this Tribunal the question of whether commercial privileges granted to trading- vessels only could be exercised by fishing- vessels. And yet that is one of the positions that is taken, and that exact language is used, in the British Counter-Case — " to trading vessels only." The words of the question are : " to United States trading- vessels generally." The word " generally " has no effect whatever if it meant " only " ; and it would be an absurdity to have presented such a question as that to this Tribunal — to ask whether fishing-vessels could exercise privileges granted only to trading-vessels. The commercial privileges granted in 1830 have been largely ex- tended. To quote the language of Mr. Bayard (Appendix to the Case of the United States, vol. ii, p. 764) :— " This independent and yet concurrent action by the two Govern- ments has effected a gradual extension, from time to time, of the provisions of Article I of the convention of July 3, 1815, providing for reciprocal liberty of commerce between the United States and the territories of Great Britain in Europe, so as gradually to include the colonial possessions of Great Britain in North America and the West Indies within the results of that treaty. " President Jackson's proclamation of October 5, 1830, created a reciprocal commercial intercourse, on terms of perfect equality of flag, between this country and the British American dependencies, by repealing the navigation acts of April 18, 1818, May 15, 1820, and 1582 NORTH ATLANTIC COAST FISHERIES ARBITRATION. March 1, 1823, and admitting British vessels and their cargoes ' to an entry in the ports of the United States from the islands, provinces, and colonies of Great Britain on or near the American continent, and north and east of the United States.' These commercial privileges have since received a large extension in the interests of propinquity, and in some cases favors have been granted by the United States without equivalent concession. The importance which the United States attached to these rights and the belief that American fishing-vessels were entitled to them are. shown by two most remarkable acts. One is by the message of Gen- eral Grant of the 5th December. 1870 (Appendix to the Case of Great Britain, p. 241) in which he calls attention to the denial of these rights to American fishing-vessels and to the hostility with which they were being treated in colonial waters, and asks Congress to give him power to shut out the vessels of those colonies so long as the animosity was continued. That was not followed by the pas- sage of any act, because the discussion which was then created, it being in 1870, resulted in the Treaty of Washington in 1871; and the heated and excited condition of both countries, both on that and on the Alabama Case, was allayed by the treaty. Again, the act of Congress of the 3rd March, 1887 (Appendix to the Case of Great Britain, p. 792) : that act I have already read in part and referred to in the historical statement which I have made. There President Cleveland was given power to shut our ports to the colonial ships if the practical non-intercourse with our fishing-vessels was continued, and the seizures that followed the Treaty of Washing- ton (1870) were kept up. So that we see that whatever those privileges are, and however they were acquired, it is of great importance to ascertain whether, during their continuance, any of the inhabitants of the United States duly authorised by their own government to take advantage of them, can be deprived of them by reason of anything contained in or fairly to be implied from the treaty of 1818. To this extent the British con- tention is correct : that it is the construction of that treaty alone which is submitted to the judgment of this Tribunal. (British Counter-Case, p. 61.) The situation is this : a liberty has been granted by a certain treaty to a sovereign Power for the benefit of its inhabitants, to enable them to enter the jurisdiction of another power for the purpose of prose- cuting there a gainful vocation. In addition to this liberty, certain privileges have been accorded to the inhabitants of the first country whereby they have also the right to enter the same jurisdiction for the purpose of trade. The question is whether these inhabitants, when exercising the treaty liberty, are precluded from enjoying at the same time the privileges, and when enjoying the privileges are prohibited from exercising the liberty. In short form, the question ARGUMENT OF SAMUEL, J. ELDER. 1583 is: whether as to the matter of commercial privileges now or here- after accorded, there is anything in the treaty of 1818 which 958 justifies a discrimination by Great Britain against the inhabi- tants of the United States who are exercising the liberty accorded by that treaty. Before leaving the analysis of the question itself, I want to revert to what the learned arbitrator, Sir Charles, called to my attention yesterday, namely, the words "duly authorised" which I had mis- applied. He called my attention to the fact that it was the com- mercial privileges which the United States may " duly authorize " the exercise of under the terms of the question. So that the ques- tion gets back to one that we have discussed before. It is perfectly clear that the United States has the power to authorize the exercise of those privileges. We are now talking, of course, not with regard to fishing liberties, but with regard to commercial privileges, and the commercial privileges which have, under the question, been accorded by agreement or otherwise, are ones of which the United States can authorize the use. Now, suppose the United States au- thorized a fishing-vessel to exercise those privileges. The question is. whether there is anything in the treaty or in the nature and to be inferred from the treaty of 1818 which enables Great Britain to say that fishing-vessels shall not exercise the commercial privileges which the United States has authorized them to exercise? We think that is the exact question. Well, now, in the British Case at p. 127, Great Britain seemed to have taken our view, in part at least, with regard to what this ques- tion meant. It is on the page on which the question itself is. the third paragraph : — " Great Britain contends that American fishermen cannot claim, as of right, to exercise any liberties in British territorial waters unless those liberties were granted by the treaty of 1818; that no commercial privileges were so granted;" Up to that point the situation is entirely relieved by what has been over and over again said. The United States does not claim that any commercial privileges were granted under the treaty of 1818. The latter part, however, of the British statement presents the real question : — " and that the exercise of commercial privileges by American fishing vessels would be contrary to the intention of that treaty." Now the United States agrees that if it can be found that the ex- ercise of commercial privileges is contrary to the intention of that treaty, then the decision of this question should be against us. But so far as I can now see and from the arguments which have been addressed to this Tribunal, practically no such contention as that is 92909°— S. Doc. 870, 61-3, vol 10 44 1584 NORTH ATLANTIC COAST FISHERIES ARBITRATION. now made; and Great Britain changed its position when it came to its Counter-Case at p. 61. (The Contentions.) " The question before the Tribunal is whether the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties conceded in article 1 have for their vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agreement or otherwise to vessels engaged only in trade." That is clearly a misstatement, as already pointed out. " His Majesty's Government contends that the article confers no right of any kind on American vessels ; " That is the article of the treaty confers no right. " and that it confers no right on the inhabitants of the United States in regard to trade. If that be so it follows, so far as the treaty of 1818 is concerned (and it is the construction of that treaty alone which is submitted to the judgment of this Tribunal), that there is nothing to prevent Great Britain from imposing such restrictions as she pleases on vessels seeking to trade as well as to fish on the treaty coasts." And at the bottom of the page : — "If, then, the question is raised only in relation to article 1, and that article gives no right to trade, it follows that the question must be answered by this Tribunal in the negative." The second part of the contention, as stated by the British Case, does not appear in the Counter-Case, and it is contended that our rights must be found, if at all, in the treaty of 1818. The British 959 Argument does the same thing, and the British Argument goes further, and claims that the United States has abandoned its Case. (British Argument, p. 143) : — "The question, therefore, is agreed to be, Whether by reason of the treaty of 1818, United States fishing vessels are entitled, upon the treaty coasts, to the commercial privileges which by agreement or otherwise are accorded to United States trading vessels? " We say that is not the question. We say the question is distinctly the one we have pointed out, namely, whether there is anything in the treaty of 1818, or fairly to be inferred from it, which prohibits fishing-vessels from exercising commercial privileges that have been accorded to the United States when they have been duly authorized by the United States to exercise those privileges. That of course is a question of importance and of moment. THE PRESIDENT: Do I understand, Sir, that your contention is that the Tribunal has not to enquire how the United States acquired the right to trade and what is the extent of their commercial privileges ? MR. ELDER : That is it. We insist that no burden of inquiry as to either of these things is placed upon the Tribunal. ARGUMENT OF SAMUEL J. ELDER. 1585 THE PRESIDENT: Then is it possible that the Tribunal can pro- nounce concerning the exercise of a privilege, as to which it has not been asserted how it is established, and to what extent it is established ? MR. ELDER : Precisely, Sir. THE PRESIDENT: Is it possible to pronounce as to whether persons are entitled to exercise a privilege, as to which it has not been asserted how it is established, and to what extent? MR. ELDER : We think it goes even further than that, if the Presi- dent pleases. We say that under this question it is conclusively as- sumed that some commercial privileges have been accorded to the United States under the language which I have quoted several times, " the commercial privileges on the treaty coasts accorded by agree- ment or otherwise to United States trading-vessels generally." If the Tribunal were called upon to interpret the Order-in-Council, and the Act under which the order was issued, to interpret the Act of the United States, and the Proclamation of the President which followed that, as well as these amplifications to which Mr. Bayard referred, " in the interest of propinquity," then it would have a most serious burden placed upon it. If that was to be the question, those statutes would have to be announced to the Tribunal. The President, I think, will see that " accorded by agreement or otherwise " does not call upon this Tribunal to search for agreements, and to search for the meaning of the word " otherwise " or to determine about the commercial privileges. Those are assumed. And, as I said, the question is more wide-reaching than that. The question is whether fishing-vessels are entitled to exercise commercial privileges on the treaty coasts which have been accorded in some way or other, or which may hereafter be accorded. It is solely a question of the relation of fishing-vessels to commercial privileges, as interpreted by the treaty of 1818, and we should contend, and do contend, that the question, when answered, will be of service as to future com- mercial privileges granted. Of course, the grant of future commercial privileges may be restricted, it may be provided that commercial privileges shall not be exercised by six-masted schooners or by tur- bine steamers, or by fishing-vessels, but with that, of course, you have nothing to do. The word " generally " is the one that is used at the end of the sentence. So far as we get commercial privileges in the future, or have them now, is there anything in the treaty of 1818, or the fair intendment of it, which prohibits American fishing- vessels ? SIR CHARLES FITZPATRICK: Your contention is that when United States fishermen are on the treaty coast, in the exercise of their treaty privileges, they are free, in addition, to exercise their com- 1586 NORTH ATLANTIC COAST FISHERIES ARBITRATION. mercial privileges, if authorised to do it by the laws of the United States? MR. ELDER : That is so ; but that is not precisely the question asked. SIR CHARLES FITZPATRICK: But that is the position you take, briefly ? 960 MR. ELDER: Yes. SIR CHARLES FITZPATRICK: There would not be any doubt, you say, if a vessel came up in the exercise of the treaty privilege to the west coast of Newfoundland, went into one of the harbours and exercised the treaty right of fishing, she could go out immediately from that harbour, to the non-treaty coast, and enjoy commercial privileges there — there is no doubt about that. MR. ELDER: More than that, being a registered vessel with rights both to fish and trade, it could bring cargo from Boston down to Bonne Bay, and could sell the cargo there ; having its authority as a fishing- vessel it could then fish for herring, and catch a cargo of her- ring, and could go back. SIR CHARLES FITZPATRICK : That is your contention ? MR. ELDER: Yes. SIR CHARLES FITZPATRICK: Or on the other hand, a citizen of the United States could come up in the exercise of his treaty right and catch a certain portion of his cargo by fishing, and supplement that catch by a purchase? MR. ELDER: Yes, by buying. THE PRESIDENT : And we have nothing whatever to do with the ex- tent of those commercial privileges? MR. ELDER: Nothing. THE PRESIDENT : Then it would be like the solution of an algebraic problem. Commercial privileges, say, would be represented by a?, and x is not only accorded to trading- vessels, but also accorded to fishing-vessels. MR. ELDER : As to the algebraic problem, I am afraid I would have to take time to work it out; but that is precisely it. What Great Britain and the United States in this contention ask this Tribunal to determine is, whether the general trading privileges that we get in one way or another from Great Britain, and which our trading- ves- sels can exercise — whether fishing-vessels, under the terms of the treaty, and by virtue of the treaty and its intendments. can be excluded. SIR CHARLES FITZPATRICK : Whether they are disqualified ? MR. ELDER: Yes. JUDGE GRAY: It was under these trading privileges, or it is in the exercise of the commercial privileges which are granted generally to the United States vessels, that you say, by reason of the concurrent ARGUMENT OF SAMUEL J. ELDEB. 1587 legislation of the two countries, that the fishing- vessels claim the right to buy bait and supplies? MR. ELDER: If they are trading- vessels, yes. JUDGE GRAY : If they are duly authorized as trading- vessels— it is that which makes it apply to them, isn't it? MR. ELDER: Yes. JUDGE GRAY: And then the question is whether a fishing- vessel can be excluded from commercial privileges that are granted to trading- vessels generally? MR. ELDER: Yes. JUDGE GRAY: That is the language— " trading- vessels "; and whether a iishing- vessel with trading privileges from the United States that is authorised to trade can be classified under that category of vessels that are entitled by this reciprocal legislation as trading- vessels generally, and to exercise all the privileges of such ? MR. ELDER: That is it. DR. DRAGO : May it not be put in this way — Are inhabitants of the United States entitled to fish from trading- vessels ? MR. ELDER: Yes. DR. DRAGO : That is the simplest way of putting it. MR. ELDER : That is a thoroughly simple way of putting it. 961 SIR CHARLES FITZPATRICK: In the exercise of your treaty privileges ? MR. ELDER: Will you pardon me, Sir Charles? SIR CHARLES FITZPATRICK: You said that was a simple way of putting it. I want to see if I can work it out. You say that under the treaty of 1818, in the exercise of the privileges conferred by the treaty — you say you could not buy bait for the purpose of exercising your treaty rights of fishing? MR. ELDER : Quite so. SIR CHARLES FITZPATRICK: But under your commercial privileges you can supplement the treaty ? MR. ELDER : Yes. Now I want to get back to Dr. Drago's question. That was the way this question arose. If you will recall the some- what prolonged history that I read earlier in this argument, the way the trouble came about in 1905 down at the Bay of Islands was that our fishermen reported that they were forbidden to fish with vessels on register — that they were forbidden to fish. JUDGE GRAY : I think we recollect that. MR. ELDER. That is to say, it seemed to raise the question whether a vessel which was on register, and, that is, could both trade and fish, would be allowed to fish; and the early correspondence between Mr. Root and Sir Mortimer Durand was on that theory, that our regis- tered vessels — vessels authorised to trade — had been forbidden to fish ; and the second or third despatch that Mr. Root sent was that the 1588 NORTH ATLANTIC COAST FISHERIES ARBITRATION. local officials seemed to be discriminating between vessels on regis- ter and vessels with license to fish, and Mr. Root said: Can they not be instructed that they have no right to make this discrimina- tion? Almost immediately in the despatches sent back it was re- plied that vessels on register had not been forbidden to fish. Some notices apparently were given. If any notices were given forbidding registered vessels to fish, the position was almost immediately re- ceded from ; but that is the way the question arose, and the corollary of the British proposition is, that if a fishing-vessel, though duly authorised by its United States register to trade, cannot trade, then the opposite of it will be true — that a United States trading-vessel on register, and therefore with permission to fish, cannot fish. And. as I understand it, the question before this Tribunal is whether there is anything in the treaty of 1818 that would justify Great Britain in taking that position and excluding our vessels on register, who have the right to trade, from fishing — or, of course, the reverse. THE PRESIDENT: There are two sides to the question. One is, whether trading- vessels may fish, or whether one may fish from a trading-vessel ; and the other question is, whether one may trade from a fishing- vessel. MR. ELDER : That is it, precisely. THE PRESIDENT: And I think the more practical side of the ques- tion is the latter one, that is the question of buying bait. MR. ELDER: Yes. THE PRESIDENT: The historical offspring of the question was per- haps the first, the question in the Bay of Islands, whether they might fish from a trading- vessel ; but now the more practical side of the question seems to me to be the other, whether one may buy bait from a fishing- vessel ? MR. ELDER : It wants to be remembered, and undoubtedly is borne in mind by the Tribunal, that the United States register is a register which permits both trading and fishing. The United States in its authorization duly authorizes commercial rights and fishing rights, and the question is whether Great Britain can forbid it. Now, one distinction should be made. Newfoundland statutes have nothing whatever to do with this question. It is not a question whether Newfoundland may prohibit its inhabitants from selling bait. It gets back to our Question 2, but the sole question is whether there is anything in the treaty of 1818 that authorizes Great Britain or Newfoundland to discriminate against our fishing-vessels. THE PRESIDENT: And then as to the exercise of commercial rights by fishing- vessels, has not that question two sides again ? One ques- tion is, whether the fishing- vessels may buy bait or ice or other 962 supplies? and the other question is, whether the fishing- vessels may buy herring for sale? There are two different questions. Do you consider both under the head of commercial privileges? ARGUMENT OF SAMUEL, j. ELDER. 1589 MR. ELDER : I should think so. Of course, under the fishing part of its register, under the fishing part of its authorization, we do not contend that the right of purchase exists; but under the authoriza- tion to trade we do. I hardly need point out that this question relates solely to the treaty coast, it has nothing to do with the non-treaty coast, where there is only the right of entry, and some things like that, but it refers solely to the treaty coast, and as I say, it refers in no way whatever to the Newfoundland statute or prohibitions of any kind. Of course we have no right or power to compel Newfoundland to trade with us, but the question is — SIR CHARLES FITZPATRICK : If you were up there in the exercise of your commercial privileges, and they refused to trade, you know what the result would be ? I think you hav.e quite a lever there. MR. ELDER : If it came to the point of non-intercourse, and severe treatment of that kind, I assume the United States would have to take such a just and moderate course as it might be advisable to take. That is our view of the meaning of this question, and, palpably, it is an important question to us. Great Britain's contention runs counter, as you will see, to the practise of the United States for a great many years, of issuing registry which carries the right both to fish and to trade, giving both powers; and I do not know whether a vessel under the registry would have to have its registration changed if it was going to a treaty coast as the result of this or not. The practical side of it, of course, is whether we can be prevented under the treaty of 1818 from exercising the right of trade. We submit that it is in the highest degree reasonable, and not in conflict at all with the spirit or intention of this treaty of 1818, to allow trading by a vessel which is also a fishing-vessel. There is no reason in the order of things in 1818, or now, why a vessel should not (the illustration which I have just used), carry a cargo of goods, down to Newfoundland, enter them and pay customs, and sell them and land, and immediately proceed to fish or take its cargo by buying and take it back to the United States. It is in the order of things that that should be so. The order of conserving time and force, and everything of that description. SIR CHARLES FITZPATRICK: But that is barter and trade. But, when you go up there in the exercise of your treaty right, on your construction of the treaty, you are in American waters, to all intents and purposes? MR. ELDER : I do not see how that would prevent our trading, if we were in American waters? SIR CHARLES FITZPATRICK: Is your situation under those circum- stances the same as if you were there merely in the exercise of your commercial privileges ? MR. ELDER : I do not think I quite follow your Honour. 1590 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR CHARLES FITZPATRICK: If you go to that coast under the treaty of 1818, on your construction of the treaty, you are in Amer- ican waters practically during all the time that you are there. Would your situation then be the same as if you went there, a foreigner, merely in the exercise of your commercial privileges ? MR. ELDER: I do not see what there is in the treaty of 1818 that would place me in any different position. Because of the mere fact that instead of going into, we will say for the moment, waters ex- clusively in British territorial jurisdiction, we went into waters that were partly under American jurisdiction, ought our right to be less there? SIR CHARLES FITZPATRICK: Not less, but would they be different? I think they would be different. MR. ELDER: As I said at the outset, and as appears by argument of learned counsel, Sir Robert Finlay and Mr. Ewart, no great stress is laid upon the exercise of commercial privileges being not in accord- ance with the treaty or the intention of the treaty of 1818. They did not propose to discuss that, and did not, but they confined themselves to saying that the question itself meant something entirely different, so that the somewhat protracted discussion, which is 963 in our printed Argument, as to the nature of trading and its relation to these coasts, need not be gone into. Of course it is perfectly obvious that even so far as the southern coast of Newfound- land was concerned, we had the right to carry on some trade with the people, because we might hire places to dry fish and cure fish, and undoubtedly we could pay for them in one way or another, money or barter, but as I say, it is not necessary to go into that discussion, and for a still further reason, which involves the last citation I will trouble the Court with. That is the repeated statement that was made by Sir Edward Grey concerning this very question. It is to be found in the United States Case Appendix, pp. 974 and 975. Mr. Root had brought out clearly in his letter that these registered ves- sels had the right both to trade and to fish, so that this question of the combined right, which is the one we have here, whether we put it as was put by the distinguished arbitrator — whether trading vessels could fish — or put it the other way round, was squarely before Sir Edward Grey when he received that letter, and he writes at p. 974 :— " It is admitted that the majority of the American vessels lately engaged in the fishery on the western coast of the Colony were regis- tered vessels, as opposed to licensed fishing- vessels, and as such were at liberty both to trade and to fish. The production of evidence of the United States' registration is therefore not sufficient to establish that a vessel, in Mr. Root's words, ' does not propose to trade as well as fish,' and something more would seem clearly to be necessary." There is no word or suggestion there that there is any incongruity or impropriety in the right of both fishing and trading, of having the ABGUMENT OP SAMUEL J. ELDEB. 1591 power in colonial waters both to trade and fish, and he goes on to say:— " The United States' Government would undoubtedly be entitled to complain if the fishery of inhabitants of the United States were seriously interfered with by a vexatious and arbitrary enforcement of the Colonial Customs laws, but it must be remembered that, in proceeding to the waters in which the winter fishery is conducted, American vessels must pass in close proximity to several custom- houses, and that in order to reach or leave the grounds in the arms of the Bay of Islands, on which the fishery has been principally car- ried on during the past season, they have sailed by no less than three custom-houses on the shores of the bay itself. So that the obligation to report and clear need not in any way have interfered with a vessel's operations." That is to say (and this expression of register with right both to trade and fish occurs repeatedly) when Sir Edward Grey deals with it he does not say, but you have no right to do both, you have no right to be here with authority to do both, but he says you may trade, and therefore because you may trade, you ought to enter at the custom-house, and it is perfectly convenient for you to enter at the custom-house because there are three custom-houses on the shores of the Bay of Islands itself. There, as I submit, we have the whole question admitted. One thing more, if the Tribunal will pardon me an instant longer. The claim is made in the British Argument, and used by Mr. Ewart, that counsel for the United States have been so indiscreet by their language, in the Case and Counter-Case, as to throw away this whole contention, and abandon the whole thing, that it was said in the United States Case that the question was solely one of the interpre- tation of the treaty. We did not say that. That is our answer to it. And, in the Counter-Case, that we said we did not claim that there were any rights under the treaty. We say now exactly what he said in the Case, and that is. that the question to be determined is con- cerning the treaty, namely, whether there is anything in the treaty which prohibits a fishing- vessel from trading. I have finished what I desired to say, Sirs, and I beg to thank you, and the other members of the Tribunal, for the extreme courtesy and kindness with which you have treated me during my argument. (Thereupon at 4.45 o'clock P. M., the Tribunal adjourned until Monday, the 25th July, 1910, at 10 o'clock A. M.) O 000 304 288 JX 238 N69 1912 v.10