76 COUNTER CASE OF THE UNITED STATES. 



1818, during which period, as established in the Case of the United 

 States, usage and custom and the action of both Governments have 

 combined to give an interpretation to the treaty in its practical 

 application entirely inconsistent with the interpretation now con- 

 tended for by Great Britain. 



In supporting this novel contention the British Case relies almost 

 wholly upon the assumption that an intention to exclude American 

 fishermen from the bays, creeks, and harbors of the Magdalen Islands 

 and of Newfoundland, within the limits of the treaty coasts, may be 

 attributed to the negotiators of the treaty ; and, in order to give effect 

 to this assumed attitude of the negotiators, the British Case under- 

 takes further to establish for the word " coast," as used in the treaty, 

 a special significance without which the desired meaning cannot be 

 read into the treaty. 



It will be perceived that, if Great Britain fails in proving either 

 that the language used in the treaty has the desired meaning, or that 

 in using it the negotiators intended to give it that meaning, the entire 

 British contention must fail. Moreover, the intention must be shown 

 to have been mutual on the part of the United States and Great 

 Britain and not merely an undisclosed intention on the part of Great 

 Britain; and the mere possibility of reading the desired meaning 

 into the treaty would not in itself prove that the treaty was not sus- 

 ceptible of the interpretation which both Governments have given 

 it in actual practice for the last ninety years. 



But, even if evidence could be produced to show that the nego- 

 tiators had the intention attributed to them by the British case and 

 that the language was susceptible of the meaning desired, such evi- 

 dence in itself would still be insufficient to justify the denial, at this 

 late date, of a liberty claimed by the United States as a right ever since 

 this treaty was entered into and acquiesced in by Great Britain with- 

 out question for upwards of ninety years. In this connection atten- 

 tion is called to a feature of the Question which seems to have been 

 overlooked in the British case. The Question is not simply whether 

 the inhabitants of the United States have the liberty under Article I 

 of the treaty to take fish in the bays, harbors, and creeks referred to, 

 but " have the inhabitants of the United States the liberty, under the 

 said Article or otherwise, to take fish in the bays, harbors, and creeks," 

 etc. 



