INTRODUCTION cxxxix 



fishermen the fishing rights granted by the convention.' The language 

 of the statute is the language of the treaty, and it is difficult to see 

 how such a statute confers any greater right than the treaty. The con- 

 stant protest of the United States against exclusion from the larger 

 bays of the non-treaty coast negatives the acquiescence of the United 

 States in such a contention; the decision therefore is on a statute, and 

 the interpretation of that statute was not acquiesced in by the United 

 States. The distinction between acquiescence of jurisdiction in the case 

 of Delaware Bay and Conception Bay is at once obvious. In the course 

 of the argument Great Britain claimed that jurisdiction had been asserted 

 by municipal ordinances over the Bay of Chaleur and Mirimishi Bay, 

 both on the non-treaty coast. The United States contended that the 

 assertion of jurisdiction in these instances was not made out and that 

 in any event acquiescence was lacking. 



In the passage quoted from Lord Fitzmaurice the territorial juris- 

 diction is stated to extend "from the coast line of any part of the terri- 

 tory of a state to three miles from the low-water mark of such coast 

 line," and "the waters and bays the entrance to which is not more 

 than six miles in width and to which the entire land boundary forms part 

 of the territory of a state." The rule is simple: three miles from unin- 

 dented coasts and double the distance in case of bays six miles wide at 

 the point of entrance, the reason being that in the first case we deal 

 with a single case, whereas in the second we deal with a double case. 

 What is the reason for the first rule, upon which the second depends ? 



In the middle ages nations claimed and asserted jurisdiction over 

 large and undetermined portions of the high seas, and such assertions 

 were injurious to commerce and productive of international controver- 

 sies. Grotius asserted the freedom of the seas in his tractate published 

 in 1608, entitled "Mare Liberum," and insisted that the seas were not 

 capable of occupation, as is land. In his systematic treatise, published 

 in 1625 and entitled "jure Belli ac Pads," he receded somewhat from 

 the doctrine of the earlier work and admitted that certain portions of the sea 

 are subject to occupation. Thus, in speaking of rivers, Grotius says that 



"a portion of the sea also may be occupied by him who possesses the land on each 

 side; although it be open at one end, as a bay, or at both, as a strait; provided it be 

 not such a portion of the sea as is too large to appear part of the land." * 



In a subsequent passage Grotius states the principles upon which 

 he bases his revised doctrine. Thus: 



Tor the statute, see Appendix, p. 466; Appendix, British Case, p. 565; Appendix, 

 U. S. Case, p. 112. 



^De Jure Belli ac Pacis, Bk. II, ch. Ill, sec. 7. (Quoted in Oral Argument, Vol. I, 

 p. 736.) 



