358 APPENDIX TO BETTISH CASE. 



the entrance to the bays of such narrow capacity as to admit of their 

 being commanded by forts, and they are wholly different in char- 

 acter from such a mass of the ocean water as the Bay of Fundy. 



There is no principle of the law of nations that countenances the 

 exclusive right of any nation in such arms of the sea. Claims, in 

 .some instances, have been made of such rights, but they have been 

 seldom enforced or acceded to. 



This is well known to be the prevailing doctrine on the subject in 

 America, and it would have been surprising if the United States 

 negotiators had relinquished, voluntarily, the large portions of the 

 ocean now claimed by Great Britain as her exclusive right, under the 

 provisions of this treaty, on the ground that it was sanctioned by the 

 law of nations. 



It would be still more surprising if it had been thus reliquished, 

 after its long enjoyment by the inhabitants of America in common, 

 from the time of their first settlement down to the revolution, and 

 from that time by the United States and British provinces, from the 

 treaty of 1783 to that of 1818. 



I see no argument, in the view which has been suggested, to sustain 

 the right of exclusive jurisdiction claimed by England. 



2. I come now to the consideration of the second point taken in the 

 argument before us, which is that, by the treaty of 1818, the United 

 States renounced the right of taking fish within the limits now in 

 controversy. This depends on the construction to be given to the 

 article of the treaty which I have already cited. 



In the construction of a treaty admitting of controversy on account 

 of its supposed ambiguity or uncertainty, there are various aids we 

 may avail ourselves of in determining its interpretation. 



" It is an established rule," says Chancellor Kent, " in the exposi- 

 tion of statutes " and the same rule, I may add. applies to treaties 

 " that the intention of the lawgiver is to be deduced from a view of 

 the whole and of every part of a statute, taken and compared to- 

 gether, and the real intention, when accurately ascertained, will al- 

 ways prevail over the literal sense of the terms." 



He further says: 



When the words are not explicit, the intention is to be collected from the 

 occasion and the necessity of the law, from the mischief felt and the remedy 

 in view; and the intention is to be taken or presumed, according to what is 

 consonant to reason and discretion (1 Kent's Com., 462.) 



Now there are various circumstances to be considered in connexion 

 with the treaty, that will aid us in coming to a correct conclusion as 

 to its intent and meaning. 



These circumstances are the entire history of the fisheries: the 

 views expressed by the negotiators of the treaty of 1818. as to the 

 object to be effected by it; the subsequent practical construction of 

 the treaty for many years; the construction given to a similar article 

 in the treaty of 1783; the evident meaning to be gained from the 

 whole article taken together, and from the term " coasts" as used in 

 the treaty of 1818. and other treaties in reference to this subject. 



All these combine, as I believe, to sustain the construction of the 

 provisions of the treaty as contended for by the United States. 



It will not be contested that the inhabitants of the territory now 

 included within the United States, as a matter of history, have had 

 generally the common and undisturbed right of fishery, as now 



