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 rescinded, but, of course, it is immaterial whether it was rescinded 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 



