436 . NEW ENGLAND FISHERIES 



portions of the shores, and if what has been renounced in 

 the words of the treaty is the "liberty" to fish on, or 

 within three miles of the bays, creeks and harbours of 

 His Britannic Majesty's Dominions, it clearly follows that 

 such liberty and the corresponding renunciation refers only 

 to such portions of the bays which were under the sover- 

 eignty of Great Britain and not to such other portions, if 

 any, as form part of the high seas. 



And thus it appears that far from being immaterial the 

 territoriality of bays is of the utmost importance. The 

 treaty not containing any rule or indication upon the sub- 

 ject, the Tribunal cannot help a decision as to this point, 

 which involves the second branch of the British conten- 

 tion that all so-called bays are not only geographical but 

 wholly territorial as well, and subject to the jurisdiction 

 of Great Britain. The situation was very accurately de- 

 scribed on almost the same lines as above stated by the 

 British Memorandum sent in 1870 by the Earl of Kim- 

 berly to Governor SIR JOHN YOUNG : ' ' The right of Great 

 Britain to exclude American fishermen from waters within 

 three miles of the coasts is unambiguous, and, it is believed, 

 uncontested. But there appears to be some doubt what 

 are the waters described as within three miles of bays, 

 creeks or harbors. When a bay is less than six miles 

 broad its waters are within the three mile limit, and there- 

 fore 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 is not a bay of Her Majesty's dominions, the 

 American fishermen shall be entitled to fish in it, except 

 within three marine miles of the 'coast'; when it is a bay 

 of Her Majesty's dominions they will not be entitled to 

 within three miles of it, that is to say (it is pre- 



