and fishermen and were known under the names which they now bear. In other words, the waters to which this discussion relates were known as bays in 1818.

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Maps of the coasts had been published before that date. Of these, probably the most important were a wall map known as Mitchell's map (1755), and a book of maps called "The American Atlas," prepared by "Thomas Jeffreys, geographer to the King and others." In the appendix to this Case will be found reproductions of Mitchell's map, and of such of Jeffrey's maps as cover the territory in question. Not only were these maps available to the negotiators in 1783, but the report of the American Commissioners proves that the Mitchell map was actually being used by them during the negotiations. They said: "The map used in the course of our negotiations was Mitchell's." a

When, therefore, in 1783, an agreement was entered into with reference to the "bays" in these territories, no one could have been in the slightest doubt as to what was intended. The maps showed it, and every fisherman knew it without looking at the maps. And the word was used in the same sense in 1818. It appears from an entry in Mr. John Quincy Adams' diary, 8th July, 1823, that the same map (Mitchell's) was made use of in subsequent negotiations. A minority report of a committee of the United States Senate said in 1888 (App., p. 462):

The treaty had reference to extensive lines of seacoast, upon which the bays, harbours, and creeks were as well known by name and location in 1818 as they are now. . . .

The negotiators of the convention were dealing, therefore, with tracts of water on the shores of His Majesty's dominions which were known to everyone under the name of “bays "—tracts of varying size and of varying conformation, some with greater and some with less width between their headlands, ranging from inclosures of considerable extent to inlets of small size. They used the term "bays" without any qualification whatever, and the inference is irresistible, as His Majesty's Government submits, that the term was intended to apply to all the waters on those shores which were known to the negotiators and to the public, and were marked on the maps at the time, as "bays." If it had been intended that the term should apply only to a limited class of the waters which were then called "bays," an express limitation would have been inserted to give effect to that intention.

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a Rev. Dip. Corresp., vol. vi, p. 133. A letter from the British Peace Commissioner, Mr. Oswald, dated the 29th October, 1782, shows that Mr. Strachey took maps with him from London to Paris for use in the negotiations there. These maps were probably Jeffrey's maps.

COMPARISON OF OTHER PASSAGES.

This construction is supported by a comparison of other passages in which the term "bays" occurs in the same article. It is clear from them that the term is used generally of all bays. For instance, the right given to American fishermen to dry and cure fish on the shores of any of the unsettled bays on certain specified coasts, could hardly be read as limited to the smaller bays only; yet apart from the convention there could be no such right in any bays. Again, the proviso at the end of the article, that American fishermen should be permitted to enter bays on the non-treaty shores of His Britannic Majesty's dominions in America for the purposes, amongst other things, of repairing damages, purchasing wood, and obtaining water, cannot reasonably be construed as applying to the smaller bays only. If it were, American fishermen would have no right to resort to the larger bays for those purposes; for even if a right to fish in bays existed apart from the treaty, there would have been no right to land in the absence of an agreement to that effect.

It is submitted that the term must have the same meaning throughout the whole article, and that it is used throughout to include all bays.

JUDICIAL DECISIONS.

The construction of article one has been on two occasions the subject of decision. The first of them is the award made in 1853 in the case of the "Washington," to which reference has already been made. (Ante, p. 100.) In that case it was held, as before stated, that the Bay of Fundy was not a British bay, because one of its headlands belonged to the United States. Mr. Dana, the counsel for the United States, arguing before the Halifax Commission in 1877, stated that this was the real ground of the award. (App., p. 266.) The decision related therefore to the Bay of Fundy, rather than to the general construction of article one. His Majesty's Government have. contended that the Bay of Fundy is within article one equally with the other bays on the coasts affected, but for reasons of policy they have not insisted on that view, and since the year 1845 have made no objection to American fishermen plying their trade within the headlands of the bay. It is not necessary, therefore, for the Tribunal to

take into consideration the question of this particular bay, 106 nor to re-examine the issue of fact decided by the award of 1853, as to whether the headlands are or are not both within British territory. Indeed the understanding between the arbitrating Powers is

that no question as to the Bay of Fundy, considered as a whole, apart from its bays or creeks, or as to innocent passage through the Gut of Canso, is included in this question as one to be raised in the present

arbitration, it being the intention of the parties that their respective views or contentions on either subject shall be in no wise prejudiced by anything in the present arbitration.

CONCEPTION BAY.

The second decision related to Conception Bay on the coast of Newfoundland, and the argument in the case involved the consideration of the very question now before this tribunal. It was a decision of Her Majesty's Privy Council composed of Lord Blackburn, Sir J. A. Colville, Sir Barnes Peacock, Sir Montagu Smith, and Sir Robert Collier. On the general question of the meaning of the term bays" they held that it was impossible to doubt that the convention of 1818 applied to all bays whether large or small.

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The opinion of these eminent jurists is an exact authority in favour of the contention which His Majesty's Government submits to this tribunal.

LINE TO BE MEASURED FROM HEADLANDS.

Assuming that the term "bays" is construed to include all bays, then it is clear that the 3-mile limit must start from a line drawn between the headlands of all those bays.

The reference to the discussions which have taken place and which have already been summarised in this case, show that Great Britain has from the first put forward the contention which is urged before this tribunal to-day; she has from the first contended that all bays on the coasts affected by article one are within that article, and to that contention she adheres. They also show that the United States have more than once accepted this construction of the language of the convention.

UNITED STATES CONTENTION.

The contention of the United States, so far as it is at present known to His Majesty's Government, is to be found in its "answer" laid before the Halifax Commission in 1877. It is as follows (App., p. 256) :

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For the purposes of fishing, the territorial waters of every country along the sea-coast extend three miles from low-water mark; and beyond is the open ocean, free to all. In the case of bays and gulfs, such only are territorial waters as do not exceed six miles in width at the mouth, upon a straight line measured from headland to headland. All larger bodies of water, connected with the open sea, form a part of it. And wherever the mouth of a bay, gulf, or inlet exceeds the maximum width of six miles at its mouth, and so loses the character of territorial or inland waters, the juridictional or proprie

a The Direct United States Cable Co. v. The Anglo-American Telegraph Co. L.R., 2 App., Cas. 394.

tary line for the purpose of excluding foreigners from fishing is measured along the shore of the bay, according to its sinuosities, and the limit of exclusion is three miles from low-water mark.

It is stated in the report of the Senate Committee of 1887 in the following terms (App., p. 390) :—

It would seem to be clear that by the universally recognised public law among civilised nations, territorial jurisdiction of every nation. along the sea is limited to 3 marine miles from its coasts, as they may happen to be, whether embracing long lines of open coast or embracing great curvatures of sea-shore, which may, and often do, almost surround vast bodies of the waters of the ocean. The phrase of the treaty, therefore, speaking of bays, creeks, and harbours of His Britannic Majesty's dominions, must be understood as being such bays, creeks, and harbours as by the public law of nations were, and are, within the territorial jurisdiction of the British Government. The committee is therefore clear in its opinion that any pretension that exclusive British jurisdiction exists, either by force of public law or of this treaty, within headlands embracing such great bodies of water, and more than 6 marine miles broad, must be quite untenable."

The contention in effect is that in 1818 when the convention was entered into, no nation could claim territorial rights over bays, creeks, or habours on its coasts, if the lines between the headlands of such waters were more than 6 marine miles in length.

REPLY OF GREAT BRITAIN.

His Majesty's Government submits that there is no principle or practice of the law of nations under which the right of a State to

exercise territorial sovereignty over bays, creeks, or harbours 108 on its coasts is limited to those bodies of waters only which

are contained within headlands not more than 6 miles apart. At the time when the treaty of 1818 was entered into, the dominion of States over enclosed waters was claimed, and admitted, to a much greater extent than is the case at the present day, but His Majesty's Government believes that in no single instance, either before or since that time, has any such limitation been accepted.

The usage of nations is absolutely opposed to the existence of a 6-mile limit; and the discussions of jurists show that no general rule has ever been agreed on. It is not too much to say that if the present contention of the United States were to receive the sanction of this tribunal, difficulties and disputes would at once arise in every part of the world.

See also Sabine's Report, December 6, 1852, House of Rep., Mis. Doc., No. 32, 42nd Congress, 2nd sess., p. 244; and an article by Professor Pomeroy, Am. Law Rev., vol. 5.

RIGHT OF A STATE OVER THE OPEN SEA ADJOINING ITS COAST.

UNINDENTED COASTS.

It is undoubted law that a State has territorial sovereignty over a belt of sea adjoining its coast, subject to the right of passage by the commercial vessels of other nations. The extent of this belt was not definitely fixed by international law at the time the treaty was entered into, and though a width of 3 miles has since become generally accepted as the minimum limit of the waters over which sovereignty may be exercised, there is not even now universal agreement on the point. Wider claims are put forward by some nations and by some writers, and the Institute of International Law in 1894 unanimously agreed to recommend 6 miles as the maximum. It is not necessary, however, to discuss this question on the present occasion: it has no bearing on the subject now under discussion, namely, the extent of the bays referred to in the last clause of article one of the treaty.

RIGHT OVER ENCLOSED WATERS

BAYS.

It is also undoubted law that a State can exercise sovereignty over certain portions of the sea enclosed within its territory by headlands or promontories.

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But different considerations apply in the case of enclosed waters from those which affect the open sea. The possession of headlands gives a greater power of control over waters contained within them than there can be over the open sea, and the safety of a State necessitates more extended dominion over the bays and gulfs enclosed by its territories than over open waters. Moreover, the interest of other nations in bays and gulfs is not so direct if, as

commonly the case, they lie off the ocean highways. For these reasons the 3-mile rule has never been applied to enclosed waters, nor has any defined limit been generally accepted in regard to them. It is true that the understanding of nations has imposed some restrictions on the exercise of sovereignty over these waters, and that States do not now assert claims, such as were common in former times, over waters, which from their size or configuration can not be effectively controlled, or which from their situation can not be fairly held to be the exclusive property of any one State. But these restrictions must depend on the particular circumstances of each case; they have never become formulated in any rule of general application. There was therefore no definite meaning which could have been assigned in 1818 to the term "bays in His Majesty's dominions" unless it were the meaning which His Majesty's Government contends should be put