NORTH ATLANTIC FISHERIES DISPUTE 53 



water and on the land. Mr. Adams thereupon rose up and made a vehe- 

 ment protest, as is recorded in his diary, against the suggestion that the 

 United States enjoyed the fisliing on the banks of Newfoundland by any 

 other title than that of ?•/(//(<.**** The application of the word liber ly 

 to the coast fishery was left as Mr. Adams proposed." "The incident, 

 proceeds the British Case, is of importance, since it shows that the differ- 

 ence between the two phrases was intentional." (British Counter Case, 

 page 17). And the British Argument emphasizes again the difference. 

 "More cogent still is the distinction between the words right and liberty. 

 The word right is applied to the sea fisheries, and the word liberty to the 

 shore fisheries. The history of the negotiations shows that this distinction 

 was advisedly adopted." If then a liberty is a grant and not the recogni- 

 tion of a right; if, as the British Case, Counter Case and Argument 

 recognize, the United States had the right to fish in the open sea in con- 

 tradistinction with the liberty to fish near the shores or 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 whicli were under the sovereignty 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 subject, the Tribunal cannot help a decision as to 

 this point, which involves the second branch of the British contention 

 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 described on almost the same lines as above stated by the 

 British Memorandum sent in 1870 by the Earl op Kimberley to Gover- 

 nor 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 

 harlwurs. 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 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 fish within three 

 miles of it, that is to say (it is presumed) within three miles of a line 



