QTTESTIOTT FIVE. 95 



REPLY TO UNITED STATES COUNTER-CASE. 



It has already been observed that in the Counter-Case of the 

 United States the position of Great Britain in regard to bays is 

 wrongly stated. (United States Counter-Case, p. 68.) The conten- 

 tion put forward by Great Britain throughout the present proceed- 

 ings, and repeated in the present Argument, is the contention which 

 Great Britain has maintained from the very first moment when the 

 controversy arose. It is not the fact that Great Britain has been 

 reluctant to insist on that contention, nor is it the fact that she has 

 refrained from attempting to apply it. Fair effect must be given to 

 the words of the treaty, and their scope cannot be limited by refer- 

 ence to such views, as to the extent of territorial waters, as are advo- 

 cated by the United States. 



REVIEW OF CONTROVERSY. 



His Majesty's Government has already submitted that the answer 



to the question now under consideration must primarily be 



108 determined by the terms of the treaty itself, and not by other 



considerations. But the conduct of the parties since 1818 is a 



matter which has been discussed, and it is thought convenient to 



present a summary of the more important facts. They have already 



been set out at some length in the British Case. 



It is established, by evidence to which attention has been called in 

 Ihe British Counter- Case, that no question as to bays arose until the 

 year 1836. The fishery exercised by Americans up to that time was 

 almost entirely on the high seas. But about the year 1836, the mack- 

 erel deserted the American coast and the United States fishermen 

 began to follow them into Canadian waters. The mackerel fishery is 

 an in-shore fishery. In 1836, therefore, controversy as to bays first 

 arose. (British Counter-Case, p. 88.) 



PERIOD OF 1838-1845. 



In 1838 the attention of His Majesty's Government was called to 

 the encroachments of American fishermen in British bays, &c. Lord 

 Palmerston, on the 6th October, 1838, instructed Mr. Fox (British 

 Minister at Washington) to give notice to the United States Govern- 

 ment of the intention of His Majesty's Government to take the 

 necessary steps, and, in doing so, to say that (British Case, App., 

 p. 117)- 



" The chief matter of complaint is, that American citizens in viola- 

 tion of the Convention of 1818, enter the gulfs, bays, harbours, creeks, 

 narrow seas, and waters of the Colonies, and that they land on the 

 shores of Prince Edward and the Magdalen Islands, and by force, 

 aided by superior numbers, drive British fishermen from banks and 

 fishing grounds solely and exclusively British. 



