43 QUESTION FIVE. 



BAYS. 



The contention of His Majesty's Government is that the treaty of 

 1818 applies to all bays, and that the 3-mile limit must be measured 

 from a line drawn across the mouths of all bays on the non-treaty 

 coasts. The argument by which this contention is supported has 

 been stated in the British Case. 



The contention of the Government of the United States (p. 248), 

 on the other hand, is that the 3-mile limit must be measured from low 

 water mark following the indentations of the coast of each bay. In 

 the proceedings before the Halifax Commission in 1877 the assertion 

 of the United States was different. It was then contended that the 

 3 miles ought to be measured from the shore only in cases of bays 

 which exceeded (British Case, App., p. 256) 



" six miles in width at the mouth upon a straight line measured from 

 headland to headland," 



and the same ground was taken in the Report of the Committee of 

 the Senate on Foreign Affairs in 1888. This argument has been dis- 

 cussed in the British Case, and the observations which are now pre- 

 sented to the Tribunal will be supplementary to the arguments pre- 

 sented in the British Case and directed more particularly to the new 

 and different case now put forward on behalf of the United 

 States. 



PRELIMINARY. 



At the outset His Majesty's Government submits that this question 

 must be decided according to the language of the treaty. That lan- 

 guage is clear and unambiguous. It provides that American fisher- 

 men shall not fish within 3 miles of any of the bays of His Britannic 

 Majesty's dominions in America. There is no qualification of any 

 kind in regard to bays, and the necessary conclusion is that the treaty 

 meant what it said and applied to all those tracts of water on the 

 British American coasts which were known as bays at the date of the 

 treaty. The plain language of a treaty cannot be defeated by 



44 conjectures as to the possible intention of the negotiators of one 

 of the parties, nor by the diplomatic representations of a later 



date. 



37 



