QUESTION FIVE. 201 



width at their mouths, there is no evidence from which to establish 

 outside limits for any of these bodies of water. It is not shown in the 

 evidence that any understanding existed' in the minds of the nego- 

 tiators, in the public mind, or in the minds of local fishermen or 

 navigators as to any such limits. Is it to be inferred that outside 

 limits would be, from time to time, determined by the local authori- 

 ties as occasions required? 



The British Case does not suggest any lines to be used as the base 

 of measurement It will not do to determine that the distance of 

 three marine miles should be measured from lines without first 

 having determined where such lines were agreed to be in 1818. 



It seems apparent that, if the only definite rule that is, that a 

 " bay of His Britannic Majesty's Dominions in America " was such a 

 bay as lay landward of the three marine mile line drawn following 

 the sinuosities of the shore is disregarded, there are no fixed lines 

 for measurement; for there was no other agreement on lines across 

 the bays referred to. If the measurement was to be from some arbi- 

 trary line to be drawn across each bay on the non-treaty coasts, is it 

 not reasonable to conclude that the Commissioners of the two powers 

 would have agreed upon such lines, or at least upon a method for 

 their determination; and would such an important question have 

 been left open for future disputes and ultimate adjustment by another 

 negotiation ? 



The United States submits that the facts establish that the true 

 interpretation of this renunciatory clause of the treaty is in accord- 

 ance with its position, and it further contends that the practice and 

 usage of nations in 1818 was in harmony with the position of the 

 United States. 



If any uncertainty exists as to what waters were " bays, creeks, or 

 harbours of His Britannic Majesty's Dominions in America," what 

 was, in 1818, the decisive test, aside from the facts, by which the doubt 

 can now be removed ? In the absence of any long-continued assertion 

 of jurisdiction, with the acquiescence of the United States, over any 

 particular bodies of water, and no such assertions are found in the 

 evidence, the sole test to be applied was the ability to defend the 

 entrances to such bodies of water from the shores. 



It is unnecessary to more than refer to the long contest for the 

 freedom of the sea. The modern doctrine dates from Grotius, and 

 Bynkershoek formulated it and promulgated the rule, which has 



