in the light of the conditions surrounding the exercise of the privileges reserved; and the restrictions imposed must not be inconsistent with, or of such a character as to prevent, the full enjoyment of those privileges. In speaking of the Canadian and Newfoundland coasts, the British Case refers to "their large extent of sea-coast, their thickly-wooded shores, their numerous bays and harbors, their scattered population, and the prevalence of fog.”• Taking into consideration the extent and character of these coasts and the consequent difficulty of finding a custom-house, it is evident that a requirement that a fishing vessel should report at a customhouse whenever it availed itself of any of the privileges of taking shelter, or repairing damages, or purchasing wood, or obtaining water in any bay or harbor on these coasts, would in most cases practically amount to a denial of the enjoyment of such privileges. Moreover, the requirement of reporting at a custom-house would have no possible value as a restriction to prevent taking, drying, or curing fish; and such a requirement would be entirely unnecessary to prevent smuggling on the greater part of the non-treaty coasts, owing to their unsettled character. It follows, therefore, that any such restriction applying to all fishing vessels on all parts of the non-treaty coasts would exceed the authority reserved by the treaty, which authorizes only such restrictions as are necessary to prevent the acts specified.

Other exactions.

With reference to the portion of this Question which relates to the imposition of other conditions or exactions, all that has been said above applies equally here, and, in addition, attention is called to the opinion of the Law Officers of the Crown, rendered in 1841. It will be remember that one of the questions, upon which the opinion of these officers was asked, was—

Have American Fishermen the right to enter the Bays and Harbors of this Province [Nova Scotia] for the purpose of purchasing wood or obtaining water, having provided neither of these articles at the commencement of their voyages, in their own countries; or have they the right of entering such Bays and Harbors in cases of distress, or to purchase wood and obtain water, after the usual stock of those articles for the voyage of such Fishing craft has been exhausted or destroyed.'

@ British Case, p. 66.

U. S. Case, p. 105.

This question was answered by the Law Officers as follows:

By the Convention, the liberty of entering the Bays and Harbors of Nova Scotia for the purpose of purchasing wood and obtaining water, is conceded in general terms, unrestricted by any condition expressed or implied, limiting it to vessels duly provided at the commencement of the voyage; and we are of opinion that no such condition can be attached to the enjoyment of the liberty."

It appears, therefore, that even during the period when Great Britain was seeking by every means possible to enforce a narrow and strict construction of the treaty against the contentions of the United States, it was admitted on the part of Great Britain that, inasmuch as the right of entering bays and harbors on the nontreaty coasts for the purposes specified was conceded in general terms by the treaty, no restrictions could be imposed upon such right in addition to those specifically provided for in the treaty.

The evidence presented on the part of the United States in support of its contention can be more conveniently discussed in connection with the argument of this Question before the Tribunal and does not require further examination here.

U. S. Case, p. 107.

QUESTION FIVE.

From where must be measured the "three marine miles of any of the coasts, bays, creeks, or harbors" referred to in the said Article?

This Question calls for an interpretation of the meaning of the provisions of the renunciatory clause of Article I of the treaty of 1818, which are as follows:

And the United States hereby renounce forever, any Liberty heretofore enjoyed or claimed by the Inhabitants thereof, to take, dry, or cure Fish on, or within three marine Miles of any of the Coasts, Bays, Creeks, or Harbours of His Britannic Majesty's Dominions in America not included within the above mentioned limits.

A knowledge of the situation existing prior to and at the time of making the treaty of 1818 is essential to a proper understanding of the true intent and meaning of the renunciatory clause. The Case of the United States, therefore, presented a full review of the historical conditions leading up to that treaty and of the circumstances in which it was made, and the controversy and differences which it was intended to settle. It was shown that the antecedents and surroundings of the treaty and the language used establish beyond question that the negotiators intended, in adopting the renunciatory clause, that it should apply only to the exercise of the liberties, therein mentioned, on or within three marine miles of the shore, and that the bays, creeks, and harbors referred to were those inside of such limit of three marine miles.

Inasmuch as the British Case in the discussion of this Question has not referred to any evidence relating to the negotiations leading up to the treaty of 1818, or to the differences on account of which. that treaty was made, no further discussion of the position of the United States on this feature of the Question is required in advance of the printed and oral arguments.

So also, no evidence is produced in the British Case which calls for a further discussion of the statement made in the Case of the

United States, or of the evidence supporting it, that for the first twenty-five years following the date of the treaty both governments adopted, in giving it practical operation, the interpretation of the renunciatory clause now contended for by the United States.

It will be remembered that, as shown in the Case of the United States, the right of American fishermen to fish in any of the bays on the non-treaty coasts up to the distance of three marine miles from the shore was never questioned until Nova Scotia originated the headland theory in 1839, and no attempt was made to put this theory into practice until the seizure of the schooner Washington in 1843— exactly twenty-five years after the date of the treaty."

Under this headland theory Great Britain, instigated by the Province of Nova Scotia, contended with apparent reluctance that the three mile limit of exclusion for American fishing vessels should be measured from a line drawn across the outside portion of the bays, instead of from their shores, and that the bays referred to in the treaty comprised all the indentations of the non-treaty coasts, irrespective of their width. In other words, under the headland theory wherever headlands could be found on the non-treaty coasts, regardless of their distance apart, a line connecting them was to serve as the base from which to measure the three mile limit of exclusion.

The discussion which ensued, and the positions taken by Great Britain and the United States on the questions thus presented have been fully reviewed in the Case of the United States, and it is there shown that since the Claims Commission of 1853 decided against the British contention in the case of the schooner Washington, above referred to, and in the similar case of the schooner Argus, Great Britain has refrained from attempting, and has restrained its colonies from attempting to give any further practical application of the headland theory.

Great Britain's present contention.

In the discussion of the Question now under consideration, it is stated in the British Case that "the real question for determination is the meaning of the word 'bays' in the following clause of article one of the Convention of 1818," referring to the renunciatory clause of that article. The British Case further states that "His Majesty's

U. S. Case, pp. 95 and 108.

U. S. Counter-Case Appendix, p. 293.