166 THE ARGUMENT OF THE UNITED STATES. 



The opinion of the law officers of the Crown in so far as now ma- 

 terial, was as follows: 



2d. Except within 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 ex- 

 treme 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 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 the term 

 headland is used in the treaty to express the part of land we have be- 

 fore mentioned, excluding the interior of the bays and the indents of 

 the coast. 



The law officers of the Crown in turn did not base their decision 

 upon any historic claim of jurisdiction over great bodies of water; 

 they did not examine into the negotiations ante-dating and leading 

 to the treaty of 1818 for the purpose of obtaining the true interpre- 

 tation of this clause ; they did not rest their opinion upon any general 

 principles of international law establishing the extent of jurisdiction 

 over the territorial sea ; but relied entirely upon the alleged fact that 

 the term "headland " was used in the treaty to express " extreme 

 points of land next the sea of the coast or of the entrance of the bays." 



The opinion rested solely upon the use of the term " headland" 

 in the treaty, when as a matter of fact, the word " headland " does 

 not appear in the treaty. They made the grievous error of adopt- 

 ing the words of the case-stated instead of reading, considering, and 

 passing upon the words of the treaty. 6 



It is to be regretted that this opinion was not communicated to 

 the Government of the United States, and did not become the subject 

 of diplomatic discussion. 



This opinion was withheld until the 28th November, 1842, when 

 Lord Stanley enclosed it in a note to Lord Falkland : 



I enclose for your information a copy of the report which on the 

 30th August, was received from the Queen's advocate and Her 

 Majesty's attorney-general, on the case drawn up by your lordship; 

 since that date the subject has frequently engaged the attention of 

 myself and my colleagues, with the view of adopting further measures 

 if necessary, for the protection of British interest in accordance with 

 the law as laid down in the enclosed report. We have, however, on 

 full consideration come to the conclusion, as regards the -fisheries of 



U. S. Case, Appendix, 1047. " U. S. Case, 107. - 



