448 NEW ENGLAND FISHERIES 



attended with the risk of violating territorial waters, it 

 has been thought to be expedient not to allow it where 

 the extent of free waters between the three miles drawn 

 on each side of the bay is less than four miles. This is 

 the reason of the ten mile line. Its intention is not to 

 hamper or restrict the right to fish, but to render its ex- 

 ercise practicable and safe. When fishermen fall in with 

 a shoal of fish, the impulse to follow it is so strong as 

 to make the possibilities of transgression very serious 

 within narrow limits of free waters. Hence it has been 

 deemed wiser to exclude them from space less than four 

 miles each way from the forbidden lines. In spaces less 

 than this operations are not only hazardous, but so cir- 

 cumscribed as to render them of little practical value." 

 (Annuaire de 1'Institut de Droit International, 1804, p. 

 146). 



So the use of the ten mile bays so constantly put into 

 practice by Great Britain in its fishery Treaties has its 

 root and connection with the marginal belt of three miles 

 for the territorial waters. So much so that the Tribunal 

 having decided not to adjudicate in this case the ten miles 

 entrance to the bays of the treaty of 1818, this will be the 

 only one exception in which the ten miles of the bays do 

 not follow as a consequence the strip of three miles of ter- 

 ritorial waters, the historical bays and estuaries always 

 excepted. 



And it is for that reason that an usage so firmly and 

 for so long a time established ought, in my opinion, be 

 applied to the construction of the Treaty under considera- 

 tion, much more so, when custom, one of the recognized 

 sources of law, international as well as municipal, is sup- 

 ported in this case by reason and by the acquiescence and 

 the practice of many nations. 



The Tribunal has decided that: "In case of bays the 

 3 miles (of the Treaty) are to be measured from a straight 



