ARGUMENT OF JOHN 9. EWART. 1251 



to it, I should enter upon the task imposed upon me with a feeling 

 of great depression, not merely as to the possibility of the success 

 of my advocacy, but as to the success of international arbitration; 



for I feel very strongly that if this Tribunal should in any way 

 754 indicate that such a line of argument could have any effect 



upon the mind of the Tribunal, then there must forever be 

 an end either to international arbitration, or to international comity 

 and courtesy and endeavours to get along with one another in the best 

 fashion possible. Suppose, Sirs, that a treaty had not been made 

 between Great Britain and France in 1904, by which those difficult 

 questions on the Newfoundland shore were settled, and that there 

 was a question between the United States and France as to the 

 meaning of the treaties which governed their rights, and that France 

 pointed to the fact that the United States had insisted upon and had 

 sought to assert its rights in 1824, had withdrawn from the con- 

 troversy, and had never afterwards tried to assert its rights, would 

 that be an argument upon the construction of the treaty? I quite 

 agree, Sirs, that the conduct of the parties is often very material in 

 considering the construction of a contract, but it must always be 

 conduct of the parties indicative of the mind of the parties. It 

 never can be conduct of the parties, accompanied by an assertion of 

 the validity of a view contrary to that indicated by the complacence 

 evidenced at the moment. So, I ask, if there were a controversy 

 between France and the United States, would the fact that the 

 United States had never enforced its rights on the French shore, 

 count for anything? The question is one of the construction of the 

 treaty. The United States would say : We abstained because we did 

 not care to enter into a contest with France; our foreign relations 

 were such that we did not deem it desirable vigorously to assert the 

 rights which we had. And that ought to be a sufficient reply. When 

 conduct is based upon opinion, and you can show that the conduct 

 reflected opinion, and was indicative of opinion, then, that conduct 

 is very material. Of course, even then it is not decisive as to the 

 interpretation of the contract, but it is very strong to show what one 

 of the parties thought was the meaning of the contract and therefore 

 helps in the construction of the contract. For instance, take the case 

 of Mr. Webster in 1852. I point to that not merely as conduct upon 

 Mr. Webster's part when, during those years, he did not assert the 

 fisherman's theory, but I urge that such conduct was in his case 

 based upon his opinion. He had before him the very question in 

 controversy; he had the arguments which had been advanced in the 

 Senate during the discussion; he wished to come to a conclusion 

 favourable to the United States; and I point to Mr. Webster not as 

 acting out of complacence and regard for international comity to- 

 wards Great Britain, but as acting upon that which was his opinion. 



