INTRODUCTION cxxix 



based upon its use obviously falls to the ground when attention is 

 called to this fact. Nevertheless, this interpretation, founded upon 

 a misconception and positive error, has been the official interpreta- 

 tion of the Government of Great Britain since the year of 1841. It is 

 unfortunate that the opinion was not made known to the United 

 States, because the fatal mistake of the law officers would have been 

 pointed out and the interpretation placed upon non-existent words 

 might have been corrected by Great Britain before Her Majesty's 

 Government had committed itself, to the interpretation of the ques- 

 tion. Although the opinion was not called to the attention of the 

 United States, the headland theory was and became the subject of 

 animated correspondence between Great Britain and the United States 

 from 1841 to 1845, when Lord Aberdeen repudiated the headland theory 

 as far as the Bay of Fundy was concerned, although he refused to 

 extend it to the other bays of the non-treaty coast."^ 



The question had ceased to be academic by the seizure of two Ameri- 

 can vessels, one the Washington, in 1843, while fishing within the Bay 

 of Fundy, some ten miles from the coast, and the other, the Argus, in 

 1844, while fishing off the coast of Cape Breton at a distance of not less 

 than fifteen miles from land " and more than three miles to the eastward 



the exclusive right of fishing upon the coasts of the two countries, shall, with respect to 

 Bays the mouths of which do not exceed ten miles in width, be measured in a straight 

 line drawn from Headland to Headland." 



' "Her Majesty's government must still maintain, and in this view they are fortified by 

 high legal authority, that the Bay of Fundy is rightfully claimed by Great Britain as a Bay 

 within the meaning of the treaty of 1818. And they equally maintain the position which was 

 laid down in the note of the undersigned, dated the 15th of April last, that, with regard to the 

 other bays on the British American coasts, no United States' fisherman has, under that con- 

 vention, the right to fish within three miles of the entrance of such bays as designated by a line 

 drawn from headland to headland at that entrance. 



"But while Her Majesty's government still feel themselves bound to maintain these posi- 

 tions as a matter of right they are nevertheless not insensible to the advantages which would 

 accrue to both countries from a relaxation of the exercise of that right; to the United States 

 as conferring a material benefit on their fishing trade; and to Great Britain and the United 

 States, conjointly and equally, by the removal of a fertile source of disagreement between 

 them. 



"Her majesty's government are also anxious, at the same time that they uphold the 

 just claims of the British crown, to evince by every reasonable concession their desire to 

 act liberally and amicably towards the United States. 



"The undersigned has accordingly much pleasure in announcing to Mr. Everett, the 

 determination to which her Majesty's government have come to relax in tavor of the United 

 States fishermen, that right which Great Britain has hitherto exercised, of excluding those 

 fishermen from the British portion of the Bay of Fundy, and they are prepared to direct their 

 colonial authorities to allow henceforward the United States fishermen to pursue their avoca- 

 tions in any part of the Bay of Fundy, provided they do not approach, except in the cases speci- 

 fied in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova 

 Scotia or New Brunswick." (Letter from Lord Aberdeen to Mr. Everett, dated March 10, 1845. 

 Appendix, British Case, pp. I4r-r42.) 



See also Lord Aberdeen's letter to Mr. Everett, dated April 21, 1845, refusing to ex- 

 tend to other bays the relaxation conceded to the Bay of Fundy. (Appendix, British Case, 

 P- 145.) 



