the three-mile line was to be drawn seaward from such waters as though the shore-line continued across their entrances. So the clause was stated: "On or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's Dominions in America."

There was, it was seen, no practical difference between the rule of three marine miles from the coasts that is, land-and three marine miles from the coasts, bays, creeks, or harbors determined by the three marine miles measured from land. The area of water involved was too small to be regarded, and when the words in the proposal were gathered from the treaty of 1783 a simple form of expression was used. The important fact was that thereafter the fishing vessels of the United States should not approach, for the purpose of fishing, nearer than three miles to land, and the bays. lying landward of the three-mile line following the sinuosities of the shore, were regarded as territorial, and the lines closing them as a continuation of the shore-line.

So the treaty was understood at the time of its making, as will presently be disclosed, and so it was construed without discussion for nearly a quarter of a century.

The occupation and use of these bays, creeks, or harbors, lying within the "British limits" that is, landward of the three-mile line-and therefore within "His Britannic Majesty's Dominions in America" where settlements had been made, had been one of the subjects of complaint. The proviso clause, following the renunciatory clause, prescribed the terms upon which, so far as this treaty was concerned, the fishing vessels of the United States were thereafter to enter them.

Provided, however, That the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, or purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein or in any other manner whatever abusing the privileges hereby reserved to them.

These small bays, creeks, or harbors furnished natural shelter, and opportunity to procure wood and water and to make repairs.

The futility of the effort in the British Counter Case to show that the United States has changed its position on this subject is too apparent to necessitate an extended reply. The important matter under discussion is the right, under the terms of this treaty, of American fishing vessels to enter the great bays and to fish therein, so long

as they do not approach nearer than three marine miles to the shores. With this fact in mind, the position of the United States is entirely clear. The bays within the three-mile limit are bays of "His Britannic Majesty's Dominions," and the line drawn across the entrances to such bays is for the purposes of measurement considered as the shore line.

THE MEANING GIVEN TO THE WORDS OF THIS CLAUSE CONTEMPORANEOUSLY WITH THE SIGNING OF THE TREATY.

The American plenipotentiaries transmitted the treaty, together with "some observations on the several objects embraced" by it, on the day that the treaty was concluded." The report of their negotiations was forwarded to John Quincy Adams, Secretary of State, who was more familiar with the subject of the fisheries than any man in the public life of America. It will be recalled that he had instructed the plenipotentiaries on behalf of the President "to agree to an article whereby the United States will desist from the liberty of fishing and curing and drying fish within the British jurisdiction generally, upon condition that it shall be secured as a permanent right" on certain designated coasts; and that he had taken occasion to state "the British Government may be well assured that not a particle of these rights will be finally yielded by the United States without a struggle which will cost Great Britain more than the worth of the prize." An examination of contemporaneous documents shows that Mr. Adams received the treaty and the report of the plenipotentiaries, and that without any comment the treaty was forwarded by the President of the United States December 29, 1818, to the Senate for its consent and approval.

If it had been understood by the Government of the United States and by the people of the United States that by this treaty access to the great bodies of water along the coasts of the British possessions in the North Atlantic had been closed to the inhabitants of the United States, would such a surrender of historic rights have been made without any attempt, on the part of the United States, to obtain from Great Britain a recognition in broad terms of a similar jurisdiction over the waters adjacent to the coasts of its possessions on the U. S. Case, Appendix, 304.

a U. S. Case, 54; Appendix, 306.

Atlantic Ocean? It will be recalled and held in mind that, in the negotiations for the unratified treaty of 1806, the United States had endeavored to extend its jurisdiction in respect of a subject-matter more readily conceded, that is, the movements and operations of ships of war, and had been unable to obtain any concession greater than an additional two marine miles from its shores; and that Mr. Madison, then Secretary of State, and at this time President of the United States, had been anxious to secure a provision which would prevent the invasion of "the harbours or the chambers formed by headlands" of the United States by the war-ships of Great Britain, but had failed.

THE REPORT OF THE AMERICAN COMMISSIONERS IN 1818.

The American plenipotentiaries in their report, dated October 20, 1818, transmitting the treaty, observed as to the fisheries:

We succeeded in securing, besides the rights of taking and curing fish within the limits designated by our instructions, as a sine qua non, the liberty of fishing on the coasts of the Magdalen Islands, and of the western coast of Newfoundland, and the privilege of entering for shelter, wood, and water, in all the British harbours of North America. Both were suggested as important to our fishermen, in the communications on that subject which were transmitted to us with our instructions. To the exception of the exclusive rights of the Hudson's Bay Company we did not object, as it was virtually implied in the treaty of 1783, and we had never, any more than the British subjects, enjoyed any right there; the charter of that company having been granted in the year 1670. The exception applies only to the coasts and their harbours and does not affect the right of fishing in Hudson's Bay, beyond three miles from the shores, a right which could not exclusively belong to, or be granted by, any nation. * * *

It will also be perceived that we insisted on the clause by which the United States renounce their right to the fisheries relinquished by the convention, that clause having been omitted in the first British counter-project. We insisted on it with a view-(1) of preventing any implication that the fisheries secured to us were a new grant, and of placing the permanence of the rights secured and of those renounced precisely on the same footing. (2) Of its being expressly stated that our renunciation extended only to the distance of three miles from the coasts. This last point was the more important, as with the exception of the fishery in open boats within certain harbors, it appeared, from the communications above mentioned, that the fishing-ground, on the whole coast of Nova Scotia, is more than three miles from the shores; whilst, on the contrary, it is almost universally close to the shore on the coasts of Labrador. It is in that

point of view that the privilege of entering the ports for shelter is useful, and it is hoped that, with that provision, a considerable portion of the actual fisheries on that coast [of Nova Scotia] will, notwithstanding the renunciation, be preserved."

It is worthy of note that in this report, drafted on the day that the treaty was signed, and with every detail of the negotiations in mind, the American plenipotentiaries referred to the waters covered by the renunciatory clause as "British harbours of North America; " and when referring to the exclusive rights of the Hudson's Bay Company, stated that the exception of these rights "applies only to the coasts and their harbours and does not affect the right of fishing in Hudson's Bay beyond three miles from the shore, a right which could not exclusively belong to or be granted by any nation."

The treaty itself contained no differentiation between Hudson's Bay and any other bay, for the language is" without prejudice however, to any of the exclusive rights of the Hudson's Bay Company." It was, therefore, clearly the belief of the American plenipotentiaries that in any bay, other than one within the British limits of three marine miles from shore, the inhabitants of the United States had the right of fishing "beyond three miles from the shores," inasmuch as this was "a right which could not exclusively belong to or be granted by any nation."

This observation by the American Commissioners establishes beyond peradventure that in the negotiations it was recognized by both powers that the "maritime limits of Great Britain" or the "Dominions of His Britannic Majesty " extended three marine miles from the shores, and comprehended only waters contained therein as had been previously understood between the two Governments.

The words of the report, "the exception applies only to the coasts and their harbours," shed much light on the understanding of the negotiators. "Coasts and their harbors" were to be excepted from the rights of the American fishermen but beyond three miles from the 66 coasts and their harbours" American fishermen were not to be excluded because the rights in those waters could not exclusively belong to any nation.

These "coasts and their harbours" were within the greater bayHudson's Bay. This is exactly the historic contention of the United States. The renunciatory clause does not refer to the great outer U. S. Case, 66; Appendix, 306.

a U. S. Case, 54; Appendix, 306.

bays, but to the small bays indenting the coasts and to the bays, harbors, and creeks indenting the coasts of the large outer bays. It was these bays which were suitable for shelter and within which wood could be purchased, water obtained, and repairs made.

The negotiators for the United States reported that they "insisted on the clause by which the United States renounce their right to the fisheries relinquished by the convention, that clause having been omitted in the first British counter project." And it will be further observed that this insistence was because, among other reasons, " of its being expressly stated that our renunciation extended only to the distance of three miles from the coasts. This last point was the more important, as with the exception of the fishery in open boats within certain harbours, it appeared from the communications above mentioned that the fishing ground on the whole coast of Nova Scotia is more than three miles from the shores; whilst on the contrary, it is almost universally close to the shore on the coasts of Labrador."

"The fishing ground on the whole coast of Nova Scotia is more than three miles from the shores." By this report the plenipotentiaries clearly establish that they understood the renunciatory clause to relate to waters within three miles from the shores, and that the word coast included the whole coast of Nova Scotia, comprehending the coast bordering the Bay of Fundy.

In the British Case the surprising statement is made that no one seemed to have conceived that the three mile limit should be measured from the shores until the cupidity of the fishermen of the United States was aroused by the mackerel fisheries. This statement is the more remarkable from the fact that this report of the plenipotentiaries of the United States, drafted on the day the treaty was signed, has been a public document known to the Government of Great Britain for more than three quarters of a century, and is printed in the Appendix to the British Case,' while, on the other hand, the Government of Great Britain has never published in full the reports of their plenipotentiaries. It may be presumed, as elsewhere stated in this argument, that the reports of the British negotiators would at least not assist the British contention or weaken the position of the United States.

" British Case, 83. British Case, Appendix, 94. CU. S. Counter Case, 11.