QUESTION FIVE. 93 



COMPARISON OF OTHER PASSAGES. 



This construction is supported by a comparison of other passages 

 in which the term " bays " occurs in the same article. It is clear from 

 them that the term is used generally of all bays. For instance, the 

 right given to American fishermen to dry and cure fish on the shores 

 of any of the unsettled bays on certain specified coasts, could hardly 

 be read as limited to the smaller bays only ; yet apart from the con- 

 vention there could be no such right in any bays. Again, the proviso 

 at the end of the article, that American fishermen should be permitted 

 to enter bays on the non-treaty shores of His Britannic Majesty's 

 dominions in America for the purposes, amongst other things, of re- 

 pairing damages, purchasing wood, and obtaining water, cannot 

 reasonably be construed as applying to the smaller bays only. If it 

 were, American fishermen would have no right to resort to the larger 

 bays for those purposes; for even if a right to fish in bays existed 

 apart from the treaty, there would have been no right to land in the 

 absence of an agreement to that effect. 



It is submitted that the term must have the same meaning through- 

 out the whole article, and that it is used throughout to include all 

 bays. 



JUDICIAL DECISIONS. 



The construction of article one has been on two occasions the sub- 

 ject of decision. The first of them is the award made in 1853 in the 

 case of the " Washington," to which reference has already been made. 

 (Ante, p. 100.) In that case it was held, as before stated, that the 

 Bay of Fundy was not a British bay, because one of its headlands be- 

 longed to the United States. Mr. Dana, the counsel for the United 

 States, arguing before the Halifax Commission in 1877, stated that 

 this was the real ground of the award. (App., p. 266.) The de- 

 cision related therefore to the Bay of Fundy, rather than to the gen- 

 eral construction of article one. His Majesty's Government have 

 contended that the Bay of Fundy is within article one equally with 

 the other bays on the coasts affected, but for reasons of policy they 

 have not insisted on that view, and since the year 1845 have made no 

 objection to American fishermen plying their trade within the head- 

 lands of the bay. It is not necessary, therefore, for the Tribunal to 

 take into consideration the question of this particular bay, 

 106 nor to re-examine the issue of fact decided by the award of 

 1853, as to whether the headlands are or are not both within 

 British territory. Indeed the understanding between the arbitrating 

 Powers is 



that no question as to the Bay of Fundy, considered as a whole, apart 

 from its bays or creeks, or as to innocent passage through the Gut of 

 Canso, is included in this question as one to be raised in the present 



