106 CASE OF THE UKITED STATES. 



2d. Except within certain defined limits to which the querj' put 

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

 Treat}", American citizens are excluded from the rif^ht of fishing 

 within three miles of the Coast of British America, and that the pre- 

 scribed 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 Bays or Indents of 

 the coast, and consequently that no right exists on the part of Ameri- 

 can citizens to enter the Bays of Nova Scotia there to take fish, 

 although the fishing being within the Bay may be at a greater dis- 

 tance than three miles from the shore of the Bay, as we are of opinion 

 the term headland is used in the Treaty to express the part of land 

 we have before mentioned, excluding the interior of the Bays and 

 the indents of the coast. 



4th. By the treaty of 1818 it is agreed that American citizens 

 should have the liberty of fishing in 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 or 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 navigating 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. 



5th. With reference to the claim of a right to land on the Mag- 

 dalen Islands, and to fish from the shores thereof, it must be observed, 

 that by the Treaty, the Hberty of drying and curing Fish (purposes 

 wliich could only Be accomplished by landmg) in any of the unsettled 

 Bays, etc., of southern part of Newfoundland, and of the coast of 

 Labrador is specifically provided for; but such liberty is distinctly 

 negatived in any settled Bay, etc., and it must therefore be inferred, 

 that if the libert}^ of landmg on the shores of the Magdalen Islands 

 had been intended to be conceded, such an important concession 

 would have been the subject of express stipulation, and would neces- 

 sarily 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 miportant particu- 

 lars are provided for, even b}'' 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 Mag- 

 dalen 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 therefore comprise the land covered 

 V. ith water, as far as could be available for the due enjoyment of the 

 liberty granted. 



