2148 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



meaning a meaning which is in question here. If the word " bays *' 

 in the treaty means what Mr. Ewart says it does, that is true; if it 

 means what we say it does, precisely the contrary result is accom- 

 plished. We are now engaged in trying to find what it means, and 

 you must give some other evidence as to what the extent of the terri- 

 torial jurisdiction was in order to ascertain the meaning of " bays." 

 You, by assuming a meaning and putting it into the treaty, cannot 

 ascertain the meaning. That is a perfect petitio principii. 



JUDGE GRAY: The proposition was made by him in connection 

 with Mr. Warren's argument that, in order that " bays " might be 

 considered territorial exceptionally so there must have been some 

 assertion and by the Power claiming them and recognition by some 

 other Powers of their territoriality, and so he said that the conven- 

 tion itself was a recognition of bays. But you contend that that 

 is something of a circle. 



SENATOR ROOT: Plainly so. It was a recognition only if you 

 assume, first, the meaning which British counsel give to " bays," for 

 we have already reached a point now upon this agreement of Mr. 

 Ewart and Mr. Warren which shows that these gentlemen were deal- 

 ing solely with territorial waters; that the renunciation applied 

 solely to territorial waters ; that they had nothing else in mind ; that 

 they were not settling anything except in regard to territorial waters. 

 We have already reached a point where you have excluded a geo- 

 graphical bay as a geographical bay. In order to bring " bay " 

 within the meaning of the treaty, you have to regard it as a terri- 

 torial bay. It must be within the territorial limits of Great Britain. 

 It can not be without, whatever it may be, geographical or otherwise, 

 and whatever any map may say about it. We have reached a point 

 where we know now that these gentlemen were not thinking about a 

 map. Incidentally, I may remark that there is no evidence that 

 they used any map. Mitchell's map was used in 1783 when they 

 were fixing a boundary between the two countries at the original 

 separation, but there is no evidence that I know of that in 1818 they 

 had any map at all. But we know now that they were not making 

 an agreement with reference to any map ; they were making an agree- 

 ment regarding the disposition of certain waters which were within 

 the territorial jurisdiction of Great Britain, and they were dealing 

 with nothing else. Indeed, that conclusion would follow almost 

 inevitably from the mere words of the renunciation clause. The 

 United States renounced 



"Any liberty .... to take, dry, or cure fish on or within throe 

 marine miles of any of the coasts, bays, creeks, or harbours of His 

 Britannic Majesty's dominions." 



On or within. That 3 miles is not an arbitrary expression or 

 measurement. It is a reference to the recognised territorial zone. 



