referred to only in so far as that liberty was dependent upon or derived from a concession on the part of Great Britain, and not to renounce the right to fish in those waters where it was enjoyed by virtue of their natural right as an independent state.

But the tribunal is unable to agree with this contention:

(a) Because the term "liberty to fish" was used in the renunciatory clause of the treaty of 1818 because the same term had been previously used in the treaty of 1783 which gave the liberty; and it was proper to use in the renunciation clause the same term that was used in the grant with respect to the object of the grant; and in view of the terms of the grant, it would have been improper to use the term "right" in the renunciation. Therefore the conclusion drawn from the use of the term "liberty" instead of the term "right" is not justified;

(b) Because the term "liberty" was a term properly applicable to the renunciation which referred not only to fishing in the territorial waters but also to drying and curing on the shore. This latter right was undoubtedly held under the provisions of the treaty and was not a right accruing to the United States by virtue of any principle of international law.

Third. The United States also contend that the term "bays of His Britannic Majesty's dominions" in the renunciatory clause must be read as including only those bays which were under the territorial sovereignty of Great Britain.

But the tribunal is unable to accept this contention:

(a) Because the description of the coast on which the fishery is to be exercised by the inhabitants of the United States is expressed throughout the treaty of 1818 in geographical terms and not by reference to political control; the treaty describes the coast as contained between capes;

(b) Because to express the political concept of dominion as equivalent to sovereignty, the word "dominion" in the singular would have been an adequate term and not "dominions" in the plural; this latter term having a recognized and well-settled meaning as descriptive of those portions of the earth which owe political allegiance to His Majesty; e. g., "His Britannic Majesty's dominions beyond the seas."

Fourth. It has been further contended by the United States that the renunciation applies only to bays six miles or less in width inter fauces terræ, those bays only being territorial bays, because the threemile rule is, as shown by this treaty, a principle of international law applicable to coasts and should be strictly and systematically applied to bays.

But the tribunal is unable to agree with this contention:

(a) Because admittedly the geographical character of a bay contains conditions which concern the interests of the territorial sovereign to a more intimate and important extent than do those connected with the open coast. Thus conditions of national and territorial integrity,

of defense, of commerce and of industry are all vitally concerned with the control of the bays penetrating the national coast line. This interest varies, speaking generally in proportion to the penetration inland of the bay; but as no principle of international law recognizes any specified relation between the concavity of the bay and the requirements for control by the territorial sovereignty, this tribunal is unable to qualify by the application of any new principle its interpretation of the treaty of 1818 as excluding bays in general from the strict and systematic application of the three-mile rule; nor can this tribunal take cognizance in this connection of other principles concerning the territorial sovereignty over bays such as ten-mile or twelve-mile limits of exclusion based on international acts subsequent to the treaty of 1818 and relating to coasts of a different configuration and conditions of a different character;

(b) Because the opinion of jurists and publicists quoted in the proceedings conduce to the opinion that speaking generally the threemile rule should not be strictly and systematically applied to bays; *** (f) 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 19, 1793; and the letter of Mr. Jefferson to Mr. Genet of November 8, 1793, declares the bays of the United States generally to be, "as being landlocked, within the body of the United States."

Fifth. 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 concerned 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 claims 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 threemile 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 specific

SCOTT INT. LAW-16

ally in statutes or otherwise, in regard to the more important bays such as Chaleurs, Conception and Miramichi;

*

Sixth. It has been contended by the United States that the words "coasts, bays, creeks or harbors" are here used only to express different parts of the coast and are intended to express and be equivalent to the word "coast," whereby the three marine miles would be measured from the sinuosities of the coast and the renunciation would apply only to the waters of bays within three miles.

But the tribunal is unable to agree with this contention:

(f) Because the tribunal is unable to understand the term "bays" in the renunciatory clause in other than its geographical sense, by which a bay is to be considered as an indentation of the coast, bearing a configuration of a particular character easy to determine specifically, but difficult to describe generally.

The negotiators of the treaty of 1818 did probably not trouble themselves with subtle theories concerning the notion of "bays" ; they most probably thought that everybody would know what was a bay. In this popular sense the term must be interpreted in the treaty. The interpretation must take into account all the individual circumstances which for any one of the different bays are to be appreciated, the relation of its width to the length of penetration inland, the possibility and the necessity of its being defended by the state in whose territory it is indented; the special value which it has for the industry of the inhabitants of its shores; the distance which it is secluded from the highways of nations on the open sea and other circumstances not possible to enumerate in general.

For these reasons the tribunal decides and awards:

In case of bays the three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay. At all other places the three marine miles are to be measured following the sinuosities of the coast. * *

It is understood that nothing in these rules refers either to the Bay of Fundy considered as a whole apart from its bays and creeks or as to the innocent passage through the Gut of Canso, which were excluded by the agreement made by exchange of notes between Mr. Bacon and Mr. Bryce dated February 21, 1909, and March 4, 1909; or to Conception Bay, which was provided for by the decision of the Privy Council in the case of the Direct United States Cable Company v. The Anglo American Telegraph Company, in which decision the United States have acquiesced.

SCOTT INT.LAW

IV. MARGINAL SEAS-THREE-MILE LIMIT

THE QUEEN v. KEYN.

(Court of Crown Cases Reserved, 1876. L. R. 2 Exch. Div., 63.)

Case stated by Pollock, B.

Ferdinand Keyn was tried at the April sittings of the Central Criminal Court for the manslaughter of Jessie Dorcas Young.

On the part of the prosecution it was proved that Jessie Dorcas Young was a passenger by a British steamer called the Strathclyde, from London to Bombay, and that when off Dover the Strathclyde was run into by a steamer called the Franconia, whilst she was under the command and immediate direction of the prisoner, whereby the Strathclyde was sunk, and Jessie Dorcas Young was drowned.

The Franconia was a German vessel, carrying the German flag. She sailed from Hamburg with the prisoner, who is a German, in command, and a crew of seventy-three, nearly all of whom were Germans, and a French pilot. She was carrying the mail from Hamburg to St. Thomas in the West Indies, and put into Grimsby to take on board an English pilot, whose duty it was to conduct her down channel as far as the South Sand light, after which she would proceed to and touch at Havre, where she would land the English pilot and the French pilot, whose duty it was to conduct her from off Dungeness to Havre, and thence go to St. Thomas.

The Franconia had performed the same voyage six times.

The point at which the Strathclyde was run down by the Franconia was one mile and nine tenths of a mile S. S. E. from Dover pier-head, and within two and a half miles from Dover beach.

At the close of the case for the prosecution, the counsel for the prisoner objected that the Court had no jurisdiction. The learned judge, without expressing any opinion, ruled that the Court had jurisdiction. Witnesses were called for the prisoner. The jury found him guilty. The question for the opinion for the Court for Crown Cases Reserved was whether the Central Criminal Court had jurisdiction.

May 6, 13. The case was argued before Kelly, C. B., Sir R. Phillimore, Lush, Field, and Lindley, JJ., and Pollock, B., by Benjamin, Q. C. (Cohen, Q. C., Phillimore, and Stubbs with him), for the prisoner, and by Sir H. Giffard, S. G. (Poland, C. Bowen, and Straight with him), for the prosecution.

The Court being divided, the case was directed to be reargued.

June 16, 17, 21, 22, 23. The case was again argued before Cockburn, C. J., Lord Coleridge, C. J., Kelly, C. B., Sir R. Phillimore, Bramwell, Pollock, and Amphlett, BB., and Lush, Brett, Grove, Denman, Archibald (1), Field and Lindley, JJ.

The arguments and the authorities cited sufficiently appear from the judgments.

Cur. adv. vult.

Nov. 11, 13. The following judgments were delivered:

Lord COLERIDGE, C. J.29 I have had the advantage of reading and considering the judgments which have been already delivered, and that also which will be delivered after mine by the head of this Court. I agree in thinking it clear that unless the place where the offense was committed was part of the realm of England locally, or unless the offense itself was committed on board a British ship, whether the British ship was locally within the realm of England, or without it, the conviction cannot stand.

But, first, I think the offense was committed within the realm of England; and if so, there was jurisdiction to try it. * * Now the offense was committed much nearer to the line of low-water mark than three miles; and therefore, in my opinion, upon English territory. I pass by for the moment the question of the exact limit of the realm of England beyond low-water mark, I am of opinion that it does go beyond low-water mark; and if it does, no limit has ever been suggested which would exclude from the realm the place where this offense was committed. But for the difference of opinion upon the Bench, and for the great deference which is due to those who differ from me, I should have said it was impossible to hold that England ended with low-water mark. I do not of course forget that it is freely admitted to be within the competency of Parliament to extend the realm how far soever it pleases to extend it by enactments, at least so as to bind the tribunals of the country; and I admit equally freely that no statute has in plain terms, or by definite limits, so extended it.

But, in my judgment, no Act of Parliament was required. The proposition contended for, as I understand, is that for any act of violence committed by a foreigner upon an English subject within a few feet of low-water mark, unless it happens on board a British ship, the foreigner cannot be tried, and is dispunishable. *

By a consensus of writers, without one single authority to the contrary, some portion of the coast-waters of a country is considered for some purposes to belong to the country the coast of which they wash. * * * This is established as solidly, as, by the very nature of the case, any proposition of international law can be. Strictly speaking, international law is an inexact expression and it is apt to mislead if its inexactness is not kept in mind. Law implies a law-giver, and a tribunal capable of enforcing it and coercing its transgressors. But there is no common law-giver to sovereign states and no tribunal has the power to bind them by decrees or coerce them if they

28 Parts of the opinion of Lord Chief Justice Coleridge and the opinions of Brett and Amphlett, J. A., Grove, Denman, and Lindley, JJ., to the same effect as the opinion of Lord Chief Justice Coleridge, are omitted.