ARGUMENT OF JOHN S. EWART. 1291 



This notice, issued by Mr. Webster, is to be found at p. 152 of the 

 British Case Appendix. I do not think I need read more than a 

 few sentences, in order to refresh the memories of the members of 

 the Tribunal. It is found at the middle of p. 153 : 



" It would appear that, by a strict and rigid construction of this 

 Article, fishing vessels of the United States are precluded from enter- 

 ing into the bays or harbours of the British Provinces, except for the 

 purposes of shelter, repairing damages, and obtaining wood and 

 water. A bay, as is usually understood, is an arm or recess of the 

 sea, entering from the ocean between capes or headlands; and the 

 term is applied equally to small and large tracts of water thus situ- 

 ated. It is common to speak of Hudson's Bay, or the Bay of Biscay, 

 although they are very large tracts of water. 



" The British authorities insist that England has a right to draw 

 a line from headland to headland, and to capture all American 

 fishermen who may follow their pursuits inside of that line. It was 

 undoubtedly an oversight in the Convention of 1818 to make so large 

 a concession to England, since the United States had usually con- 

 sidered that those vast inlets or recesses of the Ocean ought to be 

 open to American fishermen, as freely as the sea itself, to within 

 three marine miles of the shore." 



I think that language leaves no room for any doubt that Mr. Web- 

 ster thought the construction of the treatj' was as the British Gov- 

 ernment said. He attributed the unfortunate position the United 

 States fishermen were in to an " oversight " on the part of the nego- 

 tiators. And, this also appears, that he himself did not speak of the 

 " bays " as part of the sea, but he said that they ought to be open " as 

 freely as the sea itself" not that they were, that thej' constituted 

 part of the sea itself, but that they ought to be open as freely, because 

 of their large size " as freely as the sea itself." 



That language is supposed to be qualified by the last clause of the 

 notice : 



" Not agreeing that the construction thus put upon the treaty is 

 conformable to the intentions of the contracting parties, this infor- 

 mation is, however, made public, to the end that those concerned in 

 the American fisheries may perceive how the case at present stands, 

 and be upon their guard." 



It does not seem to me that that qualifies it. One may very well 

 speak of a difference between what the contract says, and what the 

 parties may have intended it to say. The first of these Mr. Webster 

 did not think was disputable; as to the second, he had an opinion 

 different from our opinion. The question before the Tribunal is 

 What does the contract say ? 



Mr. Webster seems to have been in very close communication with 

 the President, Mr. Fillmore (United States Case Appendix, pp. 510- 

 512), and also with Mr. Crampton, who was then British Minister at 

 Washington, and whom he took to his home in Marshfield for a 



