QUESTION FIVE. 43 



ALLEGED NEW INTERPRETATION OF TREATY. 



The United States Case (p. 98) alleges that the interpretation put 

 upon the treaty with respect to bays by the British authorities 

 50 in 1839 was new and was suggested by the provincial authori- 

 ties, who had nothing to do with the negotiation of the treaty. 

 It has already been shown that this interpretation was not new, and 

 that all that the provincial authorities had to do with it was that when 

 the American fishermen began to resort in considerable numbers to the 

 bays on the North American coast they called the attention of His 

 Majesty's Government to the fact. That the view in question was not 

 new is demonstrated by the work of the well-known United States 

 writer, Mr. Theodore Lyman ("Diplomacy of the United States"), 

 alreadjr referred to. Writing in 1828 and dealing with the effect of 

 the treaty of 1818, he said (British Case, p. 87) : 



" We have lost the Bay of Chaleurs fishing, so important formerly 

 as to confer a name on a particular description of fish as well as 

 vessel." 



That the interpretation put upon this provision of the treaty by 

 His Majesty's Government in 1839 was not a novelty, and was cor- 

 rect, is further evidenced by Mr. Everett's attitude in the correspond- 

 ence in 1843-5. 



CORRESPONDENCE OF 1843-5. 



The correspondence exchanged between the two Governments in 

 1843 is important. The United States took exception to any claim 

 over the Bay of Fundy on the ground that it was not a " bay " except 

 in name (United States Case, App., p. 483) . Exception was also taken 

 to any claim over waters which could be included between extreme 

 headlands, but which were not in any sense bays, such as those con- 

 tained within a line drawn from the headland of Cow Bay and Cape 

 North on the north-eastern shores of Cape Breton, where the "Argus " 

 was seized. But no general claim to fish anywhere more than three 

 miles from shore was insisted upon by the United States. 



The material letters have been cited in the British Case, and it is 

 not necessary to repeat in full the extracts given there. It will he 

 enough to point out that the British contention is stated unequivo- 

 cally in the letter of Lord Aberdeen of the 15th April, 1844 (British 

 Case, App., p. 133) : 



" It is thus clearly provided that American fishermen shall not take 

 fish within 3 marine miles of any bay of Nova Scotia, &c. If the 

 treaty was intended to stipulate simply that American fishermen 

 should not take fish within three miles of the coast of Nova Scotia, 

 &c., there was no occasion for using the word ' Bay ' at all. But the 

 proviso at the end of the article shows that the word ' Bay ' was used 

 designedly ; for it is expressly stated in that proviso, that under cer- 



