230 



**2. Except witliin certain defined limits, to which the query put to 

 us does not apply, we are of opinion that, by the terms of the treaty, 

 American citizens are excluded from the right of fishing within three 

 miles of the coast of British America; and that the prescribed distance 

 of three miles is to be measured from the headlands or extreme points 

 of land next the sea of the coast, or of the entrance of the bays, and 

 not from the interior of such baj^s or inlets of the coast; and conse- 

 quently that no right exists on the part of American citizens to enter 

 the bays of Nova Scotia, there to take fish, although the fishing, being 

 within the bay, may be at a greater distance than three miles from the 

 shore of the bay, as we are of opinion that the tei^m headland is used 

 in the treaty to express the part of the land we have before mentioned, 

 excluding the interior of the bays and the inlets of the coasts. 



"4. By the treaty of ISIS it is agreed that American citizens should 

 have the liberty of fishing m the Gulf of St. Lawrence, within certain 

 defined limits, in common with British subjects ; and such treaty does 

 not contain any words negativing the right to navigate the passage of 

 the Gut of Canso, and therefore it may be conceded that such right of 

 navigation is not taken away by that convention ; but we have now 

 attentively considered the course of navigation to the gulf by Cape 

 Breton, and likewise the capacity and situation of the passage of 

 Canso, and of the British dominions on either side, and we are of 

 opinion that, independently of treaty, no foreign country has the right 

 to use or navigate the passage of Canso; and attending to the terms of 

 the convention relating to the liberty of fishery to be enjoyed by the 

 Americans, we are also of opinion that that convention did not either 

 expressly or by implication concede any such right of using or navi- 

 gating the passage in question. We are also of opinion that casting 

 bait to lure fish in the track of any American vessels navigating the 

 passage would constitute a fishing within the negative terms of the 

 convention. 



"5. With reference to the claim of a right to land on the Magdalene 

 islands, and to fish from the shores thereof, it must be observed that 

 by the treaty the liberty of drying and curing fish (purposes which 

 could only be accomplished by landing) in any of the unsettled bays, 

 &c., of the southern part of Newfoundland, and of the coast of Labra- 

 dor, is specifically provided for; but such hberty is distinctly nega- 

 tived in any settled ba}', &c. ; and it must therefore be inferred that if 

 the liberty of landing on the shores of the Magdalene islands had been 

 intended to be conceded, such an important concession would have 

 been the subject of express stipulation, and would necessarily have 

 been accompanied with a description of the inland extent of the shore 

 over which such liberty was to be exercised, and whether in settled or 

 unsettled parts; but neither of these important particulars is provided 

 for, even by implication; and that, among other considerations, leads 

 us to the conclusion that American citizens have no right to land or 

 conduct the fishery from the shores of the Magdalene "islands. The 

 word 'shore' does not appear to be used in the convention in any other 

 than the general or ordinary sense of the word, and must be construed 

 with reference to the liberty to be exercised upon it, and would there- 



