ABGUMENT OF JOHN S. EWABT. 1237 



from the shore, without the benefit of the treaty of 1871 ; that they 

 had had that before, and therefore that they should not have to pay 

 for that water under the terms of the 1871 treaty. 



It became necessary for them, therefore, to formulate some argu- 

 ment or position upon which they could support that contention. 

 They had all the difficulties of this fishermen's theory, natural diffi- 

 culties, and difficulties because of Mr. Everett's concession and Mr. 

 Webster's opinion. But still they had to do something. And they 

 abandoned the fishermen's idea and took up the territorial idea the 

 international idea. That old fishermen's idea, we may say in parting 

 with it for the moment because we shall come back to it again ; the 

 United States will have us back to it again later on but in parting 

 with it for the moment I just wish to point out the great difficulty 

 associated with it, and which no doubt determined the United States 

 draftsman of their documents at Halifax to abandon it. 



Of course, the first thing is that it absolutely contradicts the 

 treaty that the treaty does not say 3 miles from the shores of the 

 bays, but 3 miles from the bays ; and the only argument that had been 

 advanced in support of it was that flimsy idea constructed upon the 

 shelter theory what I may speak of as the " shelter theory." They 

 took the words of the treaty, and said that the proviso clause admit- 

 ted American fishermen to " enter such bays or harbours for the 

 purpose of shelter and repairing damages or purchasing wood and 

 obtaining water." 



SIR CHARLES FITZPATRICK : To what page are you referring ? 



MR. EWART: I was taking the treaty from p. 25 of the United 

 States Case Appendix. I use it there because, conveniently, I find 

 the 1783 treaty upon one side of the page, and the 1818 treaty upon 

 the other side of the same page. 



The argument was based upon the use of the words " such bays or 

 harbours for the purpose of shelter," &c. It was that the bays which 

 had been renounced were of the same character as those bays which 

 might be entered ; and, therefore, that the bays that were renounced 

 were only such bays as would afford shelter, facilities for repairing 

 damages, and obtaining water. That argument, the Tribunal will 

 find, has been put forward on various occasions by Mr. Everett in 

 the British Case Appendix, p. 144; by Senator Cass in the British 

 Case Appendix, p. 160 ; by Senator Davis in the British Case Appen- 

 dix, p. 167 ; by Sabine who, by the bye, never heard of territorial- 

 ity_in the United States Case Appendix, p. 1273 ; and finally by Mr. 

 Webster in United States Case Appendix, at p. 530. If these men 

 had only had this territorial idea, they would not have had recourse 

 to this shelter argument, which, I think, without disrespect to it, I 

 may call, as we do in Canada, a desperation argument. I believe in 



