48 COUNTER-CASE OF GREAT BRITAIN. 



As a matter of fact there had been no change of policy whatever, 

 and it was for the publication of such inaccurate and mischievous 

 statements as those above quoted that Lord Malmesbury expressed 

 regret. Upon the subject of bays, Lord Malmesbury expressly re- 

 frained from remark. He said (British Case, App., p. 171) : 



As I suppose that this despatch shall merely explain away certain 

 points which have clearly been misunderstood, I shall abstain, for 

 the present, from entering into a discussion upon the interpretation 

 to be given to the term " bay." 



56 The United States Case, at p. 129, refers to an unfinished 



memorandum of Mr. Webster's (United States Case, App., 

 p. 530) in which he argued that the word " bay " denotes " land- 

 locked recesses, places inaccessible to winds, in short natural har- 

 bours." But this view is quite inconsistent with any view that has 

 ever been presented on behalf of the United States, and is, it is sub- 

 mitted, obviously untenable. The memorandum, it will be observed, 

 was never finished, and it is impossible to say how far Mr. Webster, 

 if he had lived to finish it, would have modified the expressions on 

 which the Case for the United States relies. 



During the season following Mr. Webster's Notice (1853) the 

 British naval authorities had orders (British Case, App., p. 202) 



to drive away, not to actually seize beyond three miles from the shore 

 except in the last resort in case of determined contumacious encroach- 

 ment in what are clearly the bays of our province, 



and it appears that the American Commodore in command upon 

 the fishing grounds assented (British Case, App., pp. 195, 191, 193) 

 to the British view as to bays, and told the American fishermen that 

 they could not fish in the Bay of Chaleurs without violating the 

 treaty. 



ARGUMENT FROM THE PHRASE " THREE MILES FROM THE BRITISH SHORES." 



The United States Case, in support of its contention that the 

 " three marine miles " of the treaty ought to be measured " from 

 low-water mark following the indentations of the coast," refers to 

 various places in the correspondence in which the expression " three 

 miles from the British shores" (or its equivalent) is made use of 

 by British officials. 



It is submitted that the use made of these expressions in the United 

 States Case is overstrained, and makes too much of an expression 

 which in many cases may have been used simply for the sake of 

 brevity without trenching on the question as to bays. 



For example, a United States circular of instructions (Mr. Bout- 

 well's) gave notice of the termination of the Canadian system of 

 (British Case, App., pp. 235-6) 



