68 COUNTER CASE OF THE UNITED STATES. 



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 Prov- 

 ince 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, irre- 

 spective of their width. In other words, under the headland theory 

 wherever headlands could be found on the non-treaty coasts, regard- 

 less 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 re- 

 ferred 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. 6 



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. 



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



