170 THE ARGUMENT OF THE UNITED STATES. 



was used designedly; for it is expressly stated in that proviso, that 

 under certain circumstances the American fishermen may enter bays, 

 by which it is evidently meant that they may, under those circum- 

 stances, pass the sea line which forms the entrance of the bay. The 

 undersigned apprehends that this construction will be admitted by 

 Mr. Everett. 



That the Washington was found fishing within the Bay of Fundy 

 is, the undersigned believes, an admitted fact, and she was seized 

 accordingly. 



The argument of Lord Aberdeen that, inasmuch as there was a 

 provision permitting American vessels to enter bays, creeks, and 

 harbors for the purpose of shelter, wood, water, and repairs, there- 

 fore the word " bay " was intended to refer to the large outer bays 

 as well as to the small inner bays is far from convincing. The bays, 

 creeks, and harbors, which the American fishermen desired to enter 

 for shelter, wood, water, and repairs, were necessarily those small 

 bodies of water within which lay shelter, and along the shores of 

 which had been established settlements, where wood, water, and 

 materials for repairs could be obtained. 



The Government of Great Britain had been persuaded against 

 their will by the authorities of Nova Scotia to advance the provincial 

 contention as to the construction of this clause. 



Nevertheless, Great Britain never issued orders to enforce this 

 Nova Scotia theory, or authorized the provincial authorities to do so, 

 and shortly made a so-called concession to the United States regard- 

 ing the particular waters then in controversy, the Bay of Fundy, and 

 finally in 1845 Lord Stanley advised Lord Falkland, lieutenant- 

 governor of Nova Scotia, that 



Her Majesty's Government therefore henceforward propose to 

 regard as bays in the sense of the treaty, only those inlets of the sea 

 which measure from headland to headland at their entrance, the 

 double of the distance of three miles, within which it will still be 

 prohibited to the fishing vessels of the United States to approach the 

 coast for the purpose of fishing. 6 



In May, 1844, Mr. Everett replied to Lord Aberdeen's note of April 

 15 of that year : 



In reference to the case of the Washington, Lord Aberdeen, in his 

 note of the 15th of April, justifies her seizure by an armed provincial 

 vessel on the assumed fact that as she was found fishing in the Bay 

 of Fundy, she was within the limits from which the fishing vessels 

 of the United States are excluded by the provisions of the convention 

 between the two countries of October, 1818. * * * 



U. S. Case, 110; Appendix, 477. 



* British Case, Appendix, 145 ; U. S. Case, 117-118. 



