44 COUNTER-CASE OF GREAT BRITAIN. 



lain circumstances the American fishermen may enter Bays, by which 

 it is evidently meant that they may, under those circumstances, pass 

 the sea-line which forms the entrance of the bay. The undersigned 

 apprehends that this construction will be admitted by Mr. Everett." 

 There could be no doubt, therefore, as to the construction put on 

 the treaty by His Majesty's Government (British Case, App., p. 134). 

 In his reply (and it is to be observed that the terms of the reply met 

 with the express approval of his own Government), Mr. Everett 

 admitted that it was the intention of the treaty, and that it was itself 

 reasonable that the 3-mile limit should be measured having 



" regard to the general line of the coast ; and to consider its bays, 

 creeks and harbors, that is, the indentations usually so accounted, as 

 included within that line." 



but he proceeded to argue that the Bay of Fundy was exceptional. 

 This amounts to an unequivocal statement that the United States 

 Government did at that time accept the construction that the 3-rnile 

 limit was not to be measured from low water mark, following the 

 indentations of the coast, as they now contend. 



Moreover, the Lieutenant-Governor of Nova Scotia agreed to the 

 concession subsequently made by Great Britain relative to the Bay of 

 Fundy, because he understood from Mr. Everett's letter that the con- 

 tention of Great Britain as to bays in general was admitted. In the 

 Governor's despatch of 17th September, 1844, the follo\ving passage 

 occurs (British Case, App., p. 136) : 



" In respect to the expediency of relaxing the strict rule which has 

 hitherto been declared applicable to American vessels found fishing 

 within the limits of the Bay of Fundy, I have found it difficult to 

 arrive at a conclusion, because although some members of the Execu- 

 tive Council believe, with myself, that such a concession, provided 

 it led to no other of a like nature, would not be productive of injury 

 to Nova Scotia, and might in fairness be granted, other members of 

 the board, among whom is the Attorney General, entertain a strong 

 opinion to the contrary. 



" When, however, I preceive that Mr. Everett, in his note of the 

 25th May, 1844, addressed to Lord Aberdeen, admits that (in esti- 

 mating the distance of three miles from the shore within which 

 American fishermen are not permitted to approach) it is ' the 

 52 intent of the treaty, as it is in itself reasonable to have regard 

 to the general line of the coast, and to consider its bays creeks 

 and harbours, that is the indentations so accounted, as included 

 within that line,' which I take to be an acquiescence in the opinion of 

 Messrs. Dodson and Wilde, that the distance within which American 

 fishermen must not approach is three miles from a line drawn from 

 headland to headland, taking the general configuration of the coast; 

 I cannot but conceive that a great portion of what I have contended 

 for, (in my despatch No. 75, dated the 8th May, 1841, addressed to 

 Lord John Russell) on the part of the province, is conceded, and it 

 is therefore my unreserved opinion, provided always that this inter- 

 pretation of Mr. Everett's phraseology be correct, that that which is 



