DISSENTING OPINION OF DR. LUIS M. DRAGO 517 



United States renounce, forever, any liberty heretofore enjoyed or claimed, to take, 

 cure or dry fish on, or within three marine miles of any of the coasts, bays, creeks or 

 harbours of His Britannic Majesty's Dominions in America." It is well known that 

 the negotiators of the Treaty of 1783 gave a very different meaning to the terms liberly 

 and right, as distinguished from each other. In this connection Mr. Adams' Journal 

 may be recited. To this Journal the British Counter Case refers in the following terms: 

 "From an entry in Mr. Adams' Journal it appears that he drafted an article by which 

 he distinguished the right to take fish (both on the high seas and on the shores) and the 

 liberty to take and cure fish on the land. But on the following day he presented to 

 the British negotiators a draft in which he distinguishes between the 'right' to take 

 fish on the high seas, and the 'liberty' to take fish on the 'coasts,' and to dry and cure 

 fish on the land. . . . The British Commissioner called attention to the distinction 

 thus suggested by Mr. Adams and proposed that the word liberty should be applied to 

 the privileges both on the water and on the land. Mr. Adams thereupon rose up and 

 made a vehement protest, as is recorded in his Diary, against the suggestion that the 

 United States enjoyed the fishing on the banks of Newfoundland by any other title 

 than that of figAi." . . . The application of the word HJer/y to the coast fishery was left 

 as Mr. Adams proposed." "The incident," proceeds the British Case," is of importance, 

 since it shows that the difference 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 recognition 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 contradistinction 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 which 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 situa- 

 tion was very accurately described on almost the same lines as above stated by the 

 British Memorandum sent in 1870 by the Earl of Kimberley 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 harbours. 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 oj 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) 



