85 QUESTION FIVE. 



BAYS. 



From where must l>e measured Vhe " 3 marine miles of any of the 

 coasts, bays, creeks, or harbours" referred to in the said article f 



INTRODUCTORY. 



The question involves the construction to be put upon the language 

 of the renunciation clause of the treaty of 1818 (British Case, App., 

 p. 31) :- 



"And the United States hereby renounce, for ever, any liberty here- 

 tofore enjoyed or claimed by the inhabitants thereof to take, dry, or 

 cure fish on or within three marine miles of any of the coasts, bays, 

 creeks, or harbours of His Britannic Majesty's dominions in America, 

 not included within the above-mentioned limits: Provided, however, 

 that the American fishermen shall be admitted to enter such bays or 

 harbours for the purpose of shelter and of repairing damages 

 therein, of purchasing wood, and of obtaining water, and for no other 

 purpose whatever. But they shall be under such restrictions as may 

 be necessary to prevent their taking, drying, or curing fish therein, 

 or in any other manner whatever abusing the privileges hereby re- 

 served to them." 



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

 "bays" includes all those tracts of water which were known under 

 the name of bays in 1818, and were so marked in the maps of that 

 time; and that the three marine miles must be measured from the 

 outer limits of those waters that is, in accordance with the general 

 practice in such cases, from a line drawn between the headlands. 



The contention of the United States is that enclosed waters are in 

 no different position, under the clause, from the open waters adjoin- 

 ing the unindented coasts, and that the same restriction applies to both. 

 In other words, they claim that American fishermen are not excluded 

 from bays, provided that they can fish in them without approaching 

 within three miles of any part of the shores. 



LANGUAGE OF THE TREATY. 



Of these two contentions the one put forward by Great Britain 



must prevail, if the matter is to be decided by the language of the 



treaty. The clause in terms excludes American fishermen 



86 from fishing within three miles of bays, and a construction 

 which would permit them to fish anywhere in the interior of 



75 



