ARGUMENT OF SIR JAMES WINTER. 993 



fact, the United States fishermen had not openly exercised their 

 rights under the treaty on that part of the coast, that United States 

 fishermen had never carried on a fishery on that part of the coast, 

 that there was no cod fishery for them to carry on and that, as a 

 matter of fact, there is not, in this whole case, from beginning to 

 end, a single bit of evidence that can be called evidence, that ever a 

 fish was caught under the rights of the treaty of 1818 by a United 

 States fisherman from Cape Eay round to Quirpon, with one excep- 

 tion only as far as any statement of that sort appears and that 

 was in the year 1823. There is an account of the proceedings that 

 took place in relation to some fishermen who were ordered off the 

 fishing grounds by the French and correspondence took place which 

 I shall not go into in detail. Great Britain was drawn into that 

 case; the United States set up the sovereignty of Great Britain and 

 they claimed that they had the right to be on the fishing grounds 

 in those waters by virtue of their treaty rights under their treaty 

 with Great Britain. It was only in connection with that question 

 that the matter came up for consideration. I submit that that will 

 be found to be the only case in which there is any evidence whatever 

 of any fish having been caught upon that part of the coast, from 

 Cape Kay to Quirpon, or from Rameau to Cape Ray, by American 

 fishermen. But, supposing that there had been, what difference would 

 it have made? Would it be said that, even if they had no right to 

 come in there, if they had come in there continually and repeatedly, 

 that it would make any difference now when their strict rights under 

 the treaty come to be enquired into? We say that it would not. 

 Great Britain might have allowed American fishermen to come in 

 there freely to catch fish although they had no treaty right. That 

 would not put a different construction on the treaty. If it is clear 

 that the treaty did not give them the right, their coming in there, 

 once, or twice, or a dozen times, or a hundred times, or a thousand 

 times, under the circumstances, ought not to make any difference 

 when we are coming to adjudicate upon their strict rights, as we are 

 to-day. It is freely acknowledged that there was no population on 

 that part of the coast to interfere with them if they had come in. 

 They might come in and fish there and it would not be worth the 

 while of anybody to object to them. The British Government would 

 not know if they were there unless there was someone to tell them, 

 and there was no resident population on that part of the coast. They 

 may have gone in there after 1823 frequently, but if they did go in 

 there and if they did catch fish there whicn must have been only 

 a few fish no legal effect can be given to that circumstance 



that would alter the rights of the parties under the treaty 

 597 of 1818. It could not be turned into a consent on the part 



of Great Britain, or a waiving or a giving up of her rights, if 



