cxxviii INTRODUCTION 



quested, on behalf of Nova Scotia, the opinion of the Crown officers of 

 Great Britain on a series of points, of which only numbers 2 and 3 are 

 material for the present purpose. They are as follows: 



"2d. — Have American citizens the right under that Convention [of 1818], to 

 enter any of the Bays of this Province to take Fish; if after they have so entered they 

 prosecute the Fishery more than three marine miles from the shores of such Bays; or 

 should the prescribed distance of three marine miles be measured from the headlands, 

 at the entrance of such Bays, so as to exclude them. 3d. — Is the distance of three 

 marine miles to be computed from the indents of the coast of British America, or from 

 the extreme headlands, and what is to be considered a headland." ' 



On this issue, thus clearly raised, the law officers of the Crown, Sir 

 J. Dodson and Sir Thomas Wilde, deUvered the following opinion, dated 

 August 30, 1841, which, however, was neither transmitted nor called to 

 the attention of the United States: 



"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 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 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 ive 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."' 



The carelessness with which this opinion is drawn would deprive it 

 of serious consideration were it not for the fact that it seems to be 

 repeatedly referred to as justifjdng the subsequent interpretation and 

 conduct of Great Britain based upon it. The law officers do not seem 

 to have examined the exact language of the convention, which they were 

 called upon to interpret, and they read into it language it does not 

 contain, and upon this language, not to be found in the convention, 

 they based their opinion. The term "headland," to which they refer, 

 is not used in the convention, although it appears in the Convention 

 of 1839 between Great Britain and France,' and the interpretation 



• U. S. Case, p. 105. 



^ Case of the United States, p. 106. 



"This opinion was never officially communicated to the United States Government, but 

 some ten years later, having been published at Halifax, it came to the attention of Mr. Everett, 

 then Secretary of State." (U. S. Case, p. 107.) 



"It will be noted that the paragraphs of the opinion are numbered to correspond with the 

 numbers of the questions in the 'case' to which they refer, and that the reprint of this opinion 

 found in the Journal of the Legislative Assembly of Nova Scotia does not contain a 3d paragraph, 

 but whether or not the opinion as originally rendered contained a 3d paragraph specifically 

 answering the 3d question does not appear." (U. S. Case, p. 107, footnote o.) 



' " It is equally agreed that the distance of three miles fixed as the general limit for 



