2170 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



SENATOR ROOT: I read this extract from the American proposal of 

 the 17th September, 1818, from American State Papers, vol. iv, For- 

 eign Relations, p. 337. That is the same book which is referred to as 

 the source of the extracts from these papers which were printed. 



I conjecture that this policy of Great Britain, which I have said 

 accounted for a series of facts to which I have called attention, also 

 accounts for the very curious form of the British Case, Counter-Case, 

 and British Argument before this Tribunal. 



The position taken by Great Britain certainly was a curious one; 

 the position that the word "bays" related entirely to geographical 

 bays. Although in argument counsel have claimed that all of these 

 bays were in fact territorial, the position of Great Britain, an 

 authoritative position taken in her pleading, was not that they were 

 territorial, it was that they were geographical, and you will recall 

 that this led to a question by the Court. The Court asked counsel of 

 both parties to tell them whether they understood "the position of 

 Great Britain to be that under the renunciation clause of the treaty 

 of 1818 the 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 territorially." 



And in answer, on behalf of the counsel for the United States, I 

 read a series of excerpts from the British Case, Counter-Case, and 

 printed Argument: 



" 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." 



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." 



They are concentrated at pp. 3900 and 3901 of the typewritten copy 

 of the Argument [pp. 642-3. supra]. 



That to me was a rather curious position. It seems to reject as the 



basis of the British case, the case on which they stand, the case 



1312 on which they can be held internationally to reject from that 



any planting of Great Britain on the territorial character of 



these waters. It is quite in accord with the unvarying conduct of 



Great Britain. She never had planted herself: the Foreign Office of 



Great Britain never did plant itself in any discussion with the United 



States upon the proposal that these bays were territorial waters of 



Great Britain, and she did not do so here in this case. 



