ARGUMENT OF JOHN S. EWART. 1309 



That is practically what British fishermen really were doing, 



ordering away not seizing unless it could not be avoided. 



Then, at p. 549 of the Appendix to the Case of the United States, 



we have a statement to somewhat the same effect, from Mr. Marcy 



in the second sentence of that letter from Mr. Marcy to Mr. Rush : 



" For more than twenty years after the conclusion of that conven- 

 tion there was no serious attempt to exclude our fishermen from the 

 large bays on that coast; but about ten years ago, at the instance of 

 the provincial authorities, the home Government gave a construction 

 to the 1st Article which closes all bays, whatever be their extent, 

 against our citizens for fishing purposes. It is true they have been 

 permitted to fish in the Bay of Fundy. This permission is conceded 

 to them by the British government, as a matter of favor, but denied 

 as a right. That government excludes them from all the other large 



IV O 



bays. " 



Without stopping to read it, I refer the Tribunal in support of 

 the same statement to a memorial that was sent in by the New Bruns- 

 wick Government, in 1845, to the Colonial Office. That was a me- 

 morial objecting to the proposal to open all the other bays; and its 

 language clearly indicates that Americans had been excluded from 

 the Bay of Chaleur up to that time. It points out the great damage, 

 the very severe injury, that would accrue to the people in New Bruns- 

 wick if the American fishermen were to be allowed to enter the Bay 

 of Chaleur. (British Case Appendix, 149). 



I have now, Sirs, finished that subject, and completed what I had to 

 say as to that interesting period, between 1845 and 1852; and I think 

 that I have made my points so clear at least I hope I have as I 

 have gone along, that I do not feel that it is at all necessary that I 

 should summarise or make a review in any way of the points I have 

 endeavoured to make. 



I complete the historical reference by reminding the Tribunal that 

 in 1854, almost immediately after the period that I have been speak- 

 ing of, came the reciprocity treaty, which remained until 1866 : then 

 the licences to 1870; then the treaty of 1871, and then the formula- 

 tion of the American position in 1877 at Halifax, when the territorial 

 theory was definitely stated and for the first time authoritatively put 

 forward a theory which was afterwards, as I said in opening, dis- 

 carded by the framers of the United States Case in the proceedings. 



I now come to what Mr. Warren evidently considered to be one of 

 his strongest arguments. He kept it as a climax until the very end, 

 and instead of reading it from his statement, I think it will be more 

 convenient, and the Tribunal will be able better to follow me, if I 

 take it as it appears in the United States Argument at pp. 193, 194, 

 and 195. It is a little involved, but I hope to be able to make it 

 thoroughly clear. 



