320 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P 



Stated to cruize, fish, or do any other thing in waters that by the public law of 

 nations did not belong to the territorial jurisdiction of His Majesty. 



Then follows a discussiou as to the. meaning of the word "bays". 1 

 do not think I need read that. As a matter of fact, for years upon the 

 banks of Newfoundland, and without any question, outside the terri- 

 torial limit, the fishermen of France, of the United States, of Canada, 

 and of Great Britain are to be found pursuing their calling. 



Now I really must ask the Tribunal to allow me to read again this 

 extraordinary statement beginning at page 150 of the United States 

 Argument, in view of what I have now read to you. 



It is enough to perceive that it never occurred to the United States Government 

 or its eminent representatives to claim, far less to the British Government to concede, 

 nor to any diplomatist or writer, either in 1783 or 1815, to conceive that these fish- 

 eries, extending far beyond and outside of any limit of territorial jurisdiction over 

 the sea that ever was asserted there or elsewhere, were the general property of 

 mankind, or that a participation in them was a part of the liberty of the open sea. 

 If that proposition could have been maintained, the right of the Americans would 

 have been plain and clear. 



Now, I have demonstrated, I submit, that the Treaty of 1783 recog- 

 nized the right in the open sea, and that it granted concurrently with 

 the recognition of that right in the open sea certain rights within terri- 

 torial waters in British territory. It never was suggested that the 

 former right was affected or touched by the question of the war. 

 1103 It was not a Treaty right; it was a natural right. It was sug- 

 gested that the war did put an end to the special privileges that 

 were granted by virtue of the Treaty ; but the special privileges in non- 

 territorial waters alone were put an end to by the war. 



The President. — Might not there be a difference in respect of time? 

 The historical expose of Mr. Dwight Foster 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 apertwn in opposition to 

 mare clamsum 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 ihey 

 did not want to abandon it in fact. Towards the end of the eighteenth 

 century it was not abandoned; but, perhaps, at the time of the Treaty 

 of Utrecht it was not quite clear. 



Sir Charles Eussell. — 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 consider whether she would be justified under those Treaties 

 in making that pretension at all. I have stated wliat was asserted, 

 what was put forward. There were certain Treaty rights, but that is 

 ancient history. 



The President. — The Treaty rights were limited to about 100 

 miles. 



Sir Charles Eussell. — As I have already pointed out, and you 

 were good enough to assent to my statement I think, even if such pow- 

 erful 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. Of course, when the United States became 

 an independent Power, one of the family of nations, it would have, in 

 virtue of its sovereignty, 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 



