ARGUMENT OF JOHN S. EWAET. 1359 



page we should be compelled to admit all sorts of persons, whether 

 inhabitants of the United States or not. 



The third treaty to which reference is made is at p. 41. Sections 

 26 and 28 of the treaty of 1871 are quoted, and, inasmuch as the line 

 of remark I have made with reference to the other treaties suffices 

 for these, I shall not repeat what I have said. 



It seems to me, Sirs, that with regard to all these treaties, the ques- 

 tion is one of construction. There is no absolute rule of law which 

 declares that when the word " citizen " is used it must necessarily be 

 confined to " citizens." I say there is no absolute rule upon that 

 point. The question for consideration is always one of what the 

 parties meant, and that has to be ascertained by the circumstances 

 existing at the time, and by the language which they used. And if 

 other treaties are to be considered in this connection, I remind the 

 Tribunal of the treaties between Great Britain and France, that I 

 have already cited. 



Passing on to the fifth argument, based upon the case of Wickham 

 v. Hawker," by which, it was said, it was decided that when a liberty 

 of enjojanent is given, it is personal, but that where a pro-fit a pi'endre 

 is granted, servants and agents may enter with the grantee. That 

 distinction too, Sirs, I submit is not a rule of law, but a distinction 

 which aids in interpretation; and if Wickham v. Hawker has upon 

 that distinction based a conclusion, there is a case in the United 

 States which was decided the other way the case of Bingham v. 

 Salene. I think copies have been handed to the members of the Tri- 

 bunal. It is Bingham v. Salene, 14 Pacific Reporter, Supreme Court 

 of Oregon. It was an action by a grantee of certain exclusive rights 

 of shooting, for an injunction to restrain interference by the grantor; 

 and the question was whether the grantee could issue permits, that 

 is, give permission to persons other than himself to enter the grounds 

 and to exercise the shooting. It was held that such permits were 

 unauthorised, and not within the purview of the privilege granted, 

 and it is to be noted that the case of Wickham v. Hawker is ex- 

 pressly referred to ; and, although the learned Judge does not say he 

 overrules it, he evidently disagrees with it. 



Then, Sirs, inasmuch as I submit that the distinction is not a rule 

 of law, but only a question of interpretation, one has to see whether 

 that distinction would be available in such a case as this. I think 

 it cannot be said that, however much it might apply to the case of 

 individuals, and however well one might be able to draw inferences 

 from transactions between individuals, it has no application what- 

 ever to international arrangements; principally for this reason, I 

 think that, as the liberty here is a liberty to such a very large class 



7 M. & W., p. 63. 



92909 S. Doc. 870, 61-3, vol 10 30 



