234 APPENDIX TO BRITISH CASE. 



The Bay of Fundy being completely interterritorial, and receiving 

 the fresh water from a large portion of both provinces was an ob- 

 vious appendage of the territory surrounding it; and would natur- 

 ally be deemed the inheritance of its inhabitants while it furnished 

 the congenial resort for the most valuable sorts of fish: whereas 

 such bays as open into the ocean in a more broad and expansive man- 

 ner would afford less appearance of exclusive property and be of 

 less value as fishing ground. 



As a large portion of the reasoning in his Excellency's note is 

 drawn from the assertion that a succession of bays indent the shores 

 of the Bay of Fundy, it may, in passing, be not inexpedient to ob- 

 serve that, as the mode in which the distance across the Bay of 

 Fundy is spoken of is calculated to convey an exaggerated notion of 

 its general width, so the description of the configuration of its shores 

 is not appropriate. So far from those shores being indented by a 

 succession of bays, there are exceedingly few indentations approach- 

 ing to this character, or having the attributes of a harbour between 

 the Gut of Annapolis on the Nova Scotia side, and St. John Harbour 

 on the New Brunswick shore, and the termination of the bay in the 

 channel and basin of Mines on one side and in Chignecto Bay on the 

 other. 



His Excellency argues largely on the assumption that "the vessels 



of the United States have a general right to approach all the bay's 



in Her Majesty's colonial dominions within any distance not less than 



three miles," and thence concludes that the Bay of Fundy is 



138 not a bay from which they are excluded by the treaty, because 



such exclusion would prevent their approaching within three 



miles of the bays within its limits. 



This argument if correct would prove a great deal, because it 

 applies equally to other bays and harbours: 



For instance, Bedford Basin lying above the harbour of Halifax 

 is unquestionably a bay or harbour within the terms of the treaty. 

 The American fishermen it is said has a right to approach all our 

 bays within three miles, and the treaty puts bays and harbours on the 

 same footing therefore it would follow he has a right to approach 

 within three miles of Bedford Basin and consequently to fish within 

 Chebucto Head and the mouth of Halifax Harbour, keeping, as he 

 may, more than three miles distant from any shore or from the 

 basin. 



This argument however it is believed inverts the case. 



The American fisherman is excluded by the formal agreement of 

 his own Government from fishing within three miles of any of the 

 coasts, bays &c. of Her Majesty's dominions in America not excepted 

 in the treaty; and he has no such privilege affirmatively granted as 

 the argument assumes. The sole question seems very evidently to be 

 whether the Bay of Fundy be within the meaning of the treaty and 

 there appears no reason for assuming that the determination of it can 

 be affected by the fact that it contains interior bays or harbours. 



The concluding argument of the American minister and one which 

 he declares puts the matter beyond doubt, is that as the American fish- 

 erman has the privilege reserved of seeking shelter &c: in the bays 

 and harbours from which he is excluded for the purposes of fishing; 

 and the Bay of Fundy not affording the accommodations designated 

 in the treaty, it follows, that this bay is not one from which he is 



