ARGUMENT OF ELIHTJ ROOT. 2187 



Senator ROOT. Certainly; it was not necessary to mention bays 

 specifically. The argument of the Attorney-General was that the 

 mention of them indicated that we thought it was necessary to men- 

 tion them. The first form of the resolution mentioned coasts, bays, 

 and banks; and my learned friend founded an argument on the fact 

 that " bays " were specially mentioned. 



THE PRESIDENT: Might it not be said that in the first form the 

 mentioning of bays was necessary, because there could be some doubt 

 whether " coasts '' embraced bays ; whereas, in the second form, 

 1322 where it is said " as fully as they enjoyed the same when sub- 

 ject to the King of Great Britain " there could arise no doubt 

 that the word " coasts " embraced in this connection also the bays, 

 because there is no doubt that when they were subjects of the King 

 of Great Britain they had also the right to fish in the bays ? 



SENATOR ROOT : Well, perhaps that may be said. But my particular 

 object here is to destroy the argument of the Attorney-General, which, 

 certainly, is destroyed if you find that the word on which the argu- 

 ment is based was not included in the final form of the resolution. 



The Attorney-General has founded an argument here upon the use 

 of the term u bays " in some of the old treaties, the treaty of 1686, 

 between Great Britain and Spain, I think it was, and the treaty of 

 1778 between the United States and France. The phrase used in both 

 was " havens, bays, creeks, roads, shoals, and places." There are 

 two things that are said about that by the other side: One is that 

 it shows that " bays " were considered of very great importance. 

 It does not show that they were considered of any more importance 

 than " havens, creeks, roads, shoals, and places." In the time when 

 the subject of jurisdiction and right of control over the sea was 

 very unsettled, people making treaties about portions of the sea 

 next to the land used to put in everything they could think of to 

 describe those portions, because they had not any definite line of 

 jurisdiction to appeal to; and that is what was done here. It does 

 not show any importance, particularly, given to bays; and you can 

 draw no inference from it about the meaning of bays without putting 

 that meaning into it. If you assume that " bays " here mean what 

 Great Britain says " bays " mean in the treaty, then you have some- 

 thing in which " bays " will be of some help to them, because they 

 would say : " Here is a treaty in which ' bays ' is used with this 

 meaning." But you have to put the meaning into it in order to get 

 it there; and there is nothing in the treaty which shows what kind 

 of bays they were talking about. If there is any inference to be 

 drawn from the occurrence of the word in this connection, it is 

 the inference that people had been in the habit of using the word 

 as designating something quite close to the shore, and something 

 in the way of interior waters. If it ever is permissible to say 



