ARGUMENT OF CHARLES B. WARREN. 1025 



treaty; but when it is more than that breadth, the question arises 

 whether it is a bay of Her Britannic Majesty's dominions. 



This is a question which has to be considered in each particular 

 case with regard to international law and usage. When such a bay, 

 &c., is not a bay of Her Majesty's dominions, the American fishermen 

 will be entitled to fish in it, except within three miles of the 'coast; ' 

 ' when it is a bay of Her Majesty's dominions ' they will not be en- 

 titled to fish within three miles of it, that is to say, (it is presumed), 

 within three miles of a line drawn from headland to headland." 



The PRESIDENT : Please, Sir, has this memorandum been communi- 

 cated to the United States? 



MR. WARREN: The memorandum was not communicated to the 

 Government of the United States, in so far as any evidence before 

 this Tribunal discloses, and that is what, after all, is binding upon 

 the Tribunal. 



The memorandum was transmitted by the Earl of Kimberley to 

 Sir John Young, then Governor-General of the new Dominion of 

 Canada, and to Sir Edward Thornton, then Minister in the United 

 States for Great Britain, for the purpose of being used as a basis for 

 a negotiation with the United States, and was an instruction for- 

 warded for that express purpose. That the memorandum was for- 

 warded for this purpose is borne out by a note of Sir Edward 

 Thornton to Mr. Fish, then Secretary of State of the United States, 

 which is to be found on p. 632 of the Appendix to the Case of the 

 United States, in which note Sir Edward Thornton stated to Mr. 

 Fish, under date the 26th January, 1871 : 



" In compliance with an instruction whicl I have received from 

 Earl Granville 



This was the instruction that appears on p. 62b of the Appendix to 

 the Case of the United States, and precedes this letter of Mr. Thorn- 

 ton's by three pages. I will just pause here to state that the Earl of 

 Kimberley notified Sir John Young that he had requested Lord Gran- 

 ville to transmit to Sir Edward Thornton this memorandum, as ap- 

 pears at the bottom of p. 628 of the Appendix to the Case of the 

 United States, and that is the reason Sir Edward Thornton came to 

 be instructed by the Earl of Granville. 



Now taking up the reading of the note: 



" In compliance with an instruction which I have received from 

 Earl Granville, I have the honor to state that Her Majesty's Govern- 

 ment deem it of importance to the good relations which they are 

 ever anxious should subsist and be strengthened between the United 

 States and Great Britain, that a friendly and complete understanding 

 should be come to between the two governments as to the extent of 

 the rights which belong to the citizens of the United States and Her 

 Majesty's subjects, respectively, with reference to the fisheries on the 

 coasts of Her Majesty's possessions in North America, and as to any 



