Sio APPENDIX 



(d) Because it has not been shown by the documents and correspondence ih evidence 

 here that the application of the three mile rule to bays was present to the minds of 

 the negotiators in 1818 and they could not reasonably have been expected either to 

 presume it or to provide against its presumption; 



(e) Because it is difiScult to explain the words in art. Ill of the Treaty under 

 interpretation "country . . together with its bays, harbours and creeks" other- 

 wise than that all bays without distinction as to their width were, in the opinion 

 of the negotiators, part of the territory; 



(/) Because from the information before this Tribunal it is evident that the three 

 mile rule is not applied to bays strictly or systematically either by the United States 

 or by any other Power; 



(g) It has been recognized by the United States that bays stand apart, and that in 

 respect of them territorial jurisdiction may be exercised farther than the marginal 

 belt in the case of Delaware bay by the report of the United States Attorney General of 

 May 19th 1793; and the letter of Mr. Jeiterson to Mr. Genet of Nov. 8th 1793 

 declares the bays of the United States generally to be, "as being landlocked, within 

 the body of the United States." 



5°. In this latter regard it is further contended by the United States, that such 

 exceptions only should be made from the application of the three mile rule to bays as 

 are sanctioned by conventions and established usage; that all exceptions for which 

 the United States of America were responsible are so sanctioned; and that His 

 Majesty's Government are unable to provide evidence to show that the bayS con- 

 cerned by the Treaty of 1818 could be claimed as exceptions on these grounds either 

 generally, or except possibly in one or two cases, specifically. 



But the Tribunal while recognizing that conventions and established usage might 

 be considered as the basis for claiming as territorial those bays which on this ground 

 might be called historic bays, and that such claim should be held valid in the absence 

 of any principle of international law on the subject; nevertheless is unable to apply 

 this, a contrario, so as to subject the bays in question to the three mile rule, as desired 

 by the United States: 



(a) Because Great Britain has during this controversy asserted a claim to these 

 bays generally, and has enforced such claim specifically in statutes or otherwise, in 

 regard to the more important bays such as Chaleurs, Conception and Miramichi; 



(6) Because neither should such relaxations of this claim, as are in evidence, be 

 construed as renunciations of it; nor should omissions to enforce the claim in regard 

 to bays as to which no controversy arose, be so construed. Such a construction by 

 this Tribunal would not only be intrinsically inequitable but internationally injurious; 

 in that it would discourage conciliatory diplomatic transactions and encourage the 

 assertion of extreme claims in their fullest extent; 



(c) Because any such relaxations in the extreme claim of Great Britain in its inter- 

 national relations are compensated by recognitions of it in the same sphere by the 

 United States; notably in relations with France for instance in 1823 when they applied 

 to Great Britain for the protection of their fishery in the bays on the western coast of 

 Newfoundland, whence they had been driven by French war vessels on the ground of 

 the pretended exclusive right of the French. Though they never asserted that their 

 fishermen had been disturbed within the three mile zone, only alleging that the dis- 

 turbance had taken place in the bays, they claimed to be protected by Great Britain 

 for having been molested in waters which were, as Mr. Rush stated "clearly within 

 the jurisdiction and sovereignty of Great Britain." 



