QUESTION FIVE. 69 



Government contend that the negotiators of the treaty meant by 

 * bay ' all those waters which, at the time, everyone knew as bays," 

 and it appears from the discussion of this Question in the British 

 Case that this definition of " bays " is intended to include the waters 

 of all the indentations of the coast regardless of their width. It 

 further appears that the conclusion reached in the British Case on 

 this Question is that the three marine miles referred to should be 

 measured "in the case of all bays, creeks, and harbors, from a line 

 drawn across the mouths of such bays, creeks, or harbors." 6 



It will be perceived that the interpretation now contended for in 

 the British Case is based on the assumption that the words " bays, 

 creeks, or harbors of His Britannic Majesty's Dominions in Amer- 

 ica," as used in the renunciatory clause of the treaty, were intended 

 to be descriptive of territorial waters of Great Britain, and that all 

 the indentations on the non-treaty coasts were regarded, at the time 

 this treaty was made, as territorial waters of Great Britain. 



The reply of the United States. 



On the issue thus presented by Great Britain, the United States 

 maintains, as it has maintained ever since the question was raised 

 under the headland theory, that, at the time this treaty was entered 

 into, none of the waters on the non-treaty coasts more than three 

 miles from shore were regarded as territorial waters of Great Britain, 

 whether considered with reference to the position taken by the 

 two Governments in the negotiations which led up to this treaty, 

 or with reference to British jurisdiction over such water at that 

 time; and consequently that the territorial waters of Great Britain 

 did not include any bays which were more than six marine miles in 

 width. 



The evidence. 



The extent of the proof required to establish the contentions ad- 

 vanced in the British Case is indicated by the position taken by 

 Great Britain in 1870, as set forth in the following extract from a 

 British Foreign Office memorandum "respecting a Commission to 



British Case, p. 83. British Case, p. 122. 



