190 THE ARGUMENT OF THE UNITED STATES. 



While making no reservation whatever in any communication to the 

 United States in regard to the instruction to Canada to consider as 

 bays, within the terms of the treaty, only those bodies of water less 

 than ten geographical miles in width in conformity with the arrange- 

 ment made with France in 1839, the Government of Great Britain did, 

 however, give notice to the United States that the instruction to re- 

 gard as bays within the terms of the treaty only those bays whose 

 mouths exceed six miles in width must not be considered as consti- 

 tuting an arrangement between the two Governments.* 



The subject of creating a joint high commission to agree upon a 

 series of lines separating the exclusive from the common right of 

 fishing along the coasts of the British possessions had been broached 

 by Mr. Seward in a note to Mr. Adams, 6 who took the matter up 

 with Lord Clarendon. Sir Frederick Bruce, the British minister 

 at Washington, was advised that the plan was agreeable to the Brit- 

 ish Government, and, although not acted upon in 1866, was revived 

 by the Earl of Kimberly in October, 1870. c 



The Earl of Kimberly advised the Governor-General of Canada 

 that he had requested Lord Granville to transmit to Sir Edward 

 Thornton, the British minister in Washington, a memorandum bear- 

 ing upon the appointment of such a commission, and he enclosed a 

 copy of the memorandum. 



The memorandum shows conclusively that the Government of 

 Great Britain did not support the contention originating with the 

 officials of Nova Scotia, and was not prepared to advance the claim 

 that there had been, prior to 1818, with the acquiescence of the United 

 States, an assertion of jurisdiction over large bodies of water adja- 

 cent to the coasts of the British possessions in the North Atlantic: 



The right of Great Britain to exclude American fishermen from 

 waters within three miles of the coast is unambiguous and it is be- 

 lieved, uncontested. But there appears to be some doubt what are 

 the waters described as within three miles of bays, creeks and har- 

 bors. When a bay is less than six miles broad, its waters are within 

 the three mile limit, and therefore, clearly within the meaning of 

 the 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, 



U. S. Case, Appendix, 610; British Case, Appendix, 239. 



* U. S. Case, 135 ; Appeudix, 566. 



U. S. Case, 147 ; Appendix, 628. 



