ARGUMENT OF MR. ROOT 271 



means, and you must give some other evidence as to what the extent 

 of the territorial 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 

 convention 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 gentlenien 

 were dealing 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 geographical bay as a geographical bay. In order 

 to bring "bay" within the meaning of the treaty, you have to regard 

 it as a territorial bay. It must be within the territorial limits of 

 Great Britain. It cannot be without, whatever it may be, geo- 

 graphical 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 fbdng a boundary between 

 the two countries as the original separation, but there is no evi- 

 dence 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 agreement 

 regarding the disposition of certain waters which were within 

 the territorial jurisdiction of Great Britain, and they were deal- 

 ing with nothing else. Indeed, that coriclusion would follow 



