106 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



reasons which go always back to the doctrine of protection. Lord 

 Blackburn, one of the most eminent of English judges, in delivering 

 the opinion of the PriA'V Council about Conception Bay. in New- 

 foundland, adhered to the same doctrine when he asserted the terri- 

 toriality of that branch of the sea, giving as a reason for such find- 

 ing '• that the British Government for a long period had exercised 

 dominion over this bay, and its claim had been acquiesced in by other 

 nations, so as to show that the bay had been for a long time occupied 

 exclusively by Great Britain, a circumstance which, in the tribunals 

 of any country, A\ould be very important." "And moreover," he 

 added, '' the British Legislature has, by Acts of Parliament, declared 

 it to be part of the British territory and part of the country made 

 subject to the legislation of Newfoundland." {Direct V nited States 

 Cable Company v. the Anglo-American Telegraph Company, Law 

 Eeports, 2 Appeal Cases, 374.) 



So it may safely be asserted that a certain class of bays, which 

 might be properly called the historical bays, such as Chesapeake Bay 

 and Delaware Bay, in North America, and the great estuary of the 

 River Plate, in South America, form a class distinct and apart, and 

 undoubtedly belong to the littoral country, whatever be their depth 

 of penetration and the width of their mouths, when such country has 

 asserted its sovereignty over them, and particular circumstances, such 

 as geographical configuration, immemorial usage, and, above all, the 

 requirements of self-defence, justify such a pretension. Tl^ right 

 of Great Britain over the bays of Conception, Chaleur, and Mira- 

 michi are of this description. In what refers to the other bays, as 

 might be termed the common, ordinary bays, indenting the coasts, 

 over which no special claim or assertion of sovereignty has been 

 made, there does not seem to be any other general principle to be 

 applied than the one resulting from the custom and usage of each 

 individual nation, as shown by their treaties and their general and 



time honoured practice. 

 130 The well-known words of Bj^nkershoek might be very ap- 



propriately recalled in this connection when so many and di- 

 vergent opinions and authorities have been recited: "The common 

 law of nations," he says, " can only be learnt from reason and custom. 

 I do not deny that authority may add weight to reason, but I prefer 

 to seek it in a constant custom of concluding treaties in one sense or 

 another, and in examples that have occurred in one country or an- 

 other." {Qucestiones Juris Puhlici, vol. i, cap. 3.) 



It is to be borne in mind in this respect that the Tribunal has been 

 called upon to decide, as the subject matter of this controversy, the 

 construction to be given to the fishery treaty of 1818 between Great 

 Britain and the United States. And so it is that from the usao;e and 

 the practice of Great Britain in this and other like fisheries, and 



