ARGUMENT OF ELIHU ROUT. 2171 



Counsel may argue what they please, but the record is a record in 

 which Great Britain has scrupulously refrained from taking that 

 position, and it is reasonable to infer that Great Britain was unwill- 

 ing to take that position, because she felt the weakness of her position 

 in regard to the construction of the renunciation clause. If we could 

 ever see that reasoned exposition that went from the Foreign Office 

 to the Colonial Office, and is referred to by Lord Stanley in his 

 announcement of the decision of Great Britain in 1845 if we could 

 see that, we should know; but circumstantial evidence of what that 

 contained is clear enough. Observe, I am not seeking to hold Great 

 Britain to that decision. We do not base anything upon that de- 

 cision, because she withdrew from it upon the objection of her colony. 

 Her colony objected that it would be a bitter stroke at the policy and 

 the interests of the colony, and Great Britain withdrew from it ; but 

 it remains that that is what she thought about the merits of this 

 question. 



There is the evidence that that is what she thought. She thought 

 that our construction was right. If she had been willing to say this 

 is " within our territorial waters," she would have thought that, no 

 matter whether our construction was right or wrong, it was her 

 duty to exclude our fishermen from those waters in the interest of 

 her colony. 



But, there is a further step to be taken in my argument. Not only 

 had Great Britain always refrained from asserting any jurisdiction 

 over those bays, refrained from conferring it upon her colonies, re- 

 frained from planting herself upon it, refused to permit jurisdiction 

 to be created by convention with the United States, but she expressly 

 excluded those waters from the limits of her maritime or territorial 

 jurisdiction in the negotiation of the treaty of 1818. She expressly 

 put a limit upon the maritime jurisdiction from which she proposed 

 to exclude American fishermen, exactly as she put a limit upon terri- 

 torial jurisdiction, or maritime jurisdiction, under the terms of the 

 treaty of 1806, and it was a limit which excluded from that juris- 

 diction those sheets of water. 



The first paper to which I turn in support of that proposition is 

 the Baker letter, so often referred to, the letter of Lord Bathurst to 

 Mr. Baker Mr. Anthony St. John Baker, who was charge d'affaires 

 at Washington dated 7th September, 1815, British Case Appendix, 

 p. 64. You will remember that the negotiators of 1814, after making 

 the treaty of peace of that year, separated without having included in 

 the treaty any stipulation regarding the fisheries, and that some little 

 time after that, the master of a British naval vessel, the " Jaseur," 

 seized an American vessel some 60 miles off the coast of the British 

 possessions. There was an immediate protest and an immediate dis- 

 avowal of the act of this officer. In disavowing his act in seizing a 



