QUESTION SIX. 243 



of Americans to land on the Magdalen Island and to use the strand 

 for fishing. This question was presented by the House of Assembly 

 of Nova Scotia in 1841 to the British Government, which, in turn, 

 presented it to the Law Officers of the Crown. The Law Officers 

 did not find it free from difficulty and decided against the American 

 right to land on these islands, not because the word in itself did not 

 include the strand, but because it was thought, in view of the express 

 provision for drying and curing on the southern coast of Newfound- 

 land, that " such an important concession would have been the sub- 

 ject of express stipulation." The opinion on this point is as follows : 



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 ob- 

 served, 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, 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 liberty of landing on the shores of the Mag- 

 dalen Islands had been intended to be conceded, such an important 

 concession would have been the subject of express stipulation, and 

 would necessarily have been accomplished with a description of the 

 inland extent of the shore over which such liberty was to be exer- 

 cised, and whether in settled or unsettled parts, but neither of these 

 important particulars are 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 Magdalen 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 with water, as far as could be available for the due 

 enjoyment of the liberty granted. 6 



If, then, the only provision of the treaty had been the one creating 

 a liberty to take fish " on the shores of the Magdalen Islands " there 

 could be no question that it would include the right to take in all 

 coastal waters up to the land. There is nothing in the treaty which 

 modifies this right, and it is submitted that the right to take fish on the 

 shores of the Magdalen Islands includes the right to take them in the 

 bays, harbors, and -creeks of those islands. The fact that no ques- 

 tion has ever arisen as to that right and that no effort has ever 

 been made to exclude American fishermen from those bays until this 

 question was framed, is most significant and instructive. 



U. S. Case, Appendix, 1043 et seq. * U. S. Case, Appendix, 1048. 



