1368 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



I see very little possibility of arrangement between the two nations. 

 At all events, I am drawing attention to the legal interpretation of 

 the treaty, and it is that with which the Tribunal has to do. 



In what I say I wish to keep in view two principles of construc- 

 tion : in the first place, that the parties will be presumed to have con- 

 tracted with a view to the existing circumstances, and secondly, that, 

 as stated in the United States Argument, at p. 106 : 



" It is a familiar rule of construction that that which was within 

 the contemplation of the parties is as much a part of the contract or 

 treaty as if therein written, and that that which was not within the 

 contemplation of the parties, and was not written into the contract 

 or treaty, is and can be no part of it." 



Considering that the parties must have contemplated the reason- 

 ableness and practicability of the respective contentions, I shall say 

 very little as to what would be reasonable and practical, for it seems 

 to me utterly impossible that the negotiators, in 1783 and 1818, could 

 have contemplated the possibility of fishermen pursuing their 

 common operations under divergent rules. 



But, while leaving that point with this single remark, I wish to call 

 attention more at length to what the circumstances were at the 

 826 date of the treaties. I do this because I think that if we shall 

 find the liberty of free fishing regulated by local sovereignty 

 in full operation if we shall find it to have been very well under- 

 stood and established as a constituted and customary principle of 

 intercolonial relationship then I think we shall require something 

 very clear in the treaty of 1818 before feeling ourselves compelled 

 to reverse that principle, and to introduce one not only entirely 

 novel, but one that would, at the time, if it had been imagined by 

 the negotiators, have been instantly rejected by them, and one that 

 would have put the owner of the fisheries under the control of the 

 people who were receiving merely the liberty to use them. If I 

 can show such a principle in full operation in 1783 and in 1818, I 

 think I shall have displaced the two propositions upon which 

 Senator Turner seemed to found his argument, namely, that free 

 fishing means unregulated fishing, and that the liberty to fish means 

 a licence to do as one pleases. 



Senator Turner quoted from Mr. Trescott's argument in the Brit- 

 ish Case Appendix, p. 266 I do not know as indicative of what. 

 He introduced it in connection with the British position at Halifax, 

 but it very well illustrates what Senator Turner's position is with 

 reference to the treaties of 1783 and 1818. I refer the Tribunal to 

 the British Case Appendix, p. 266, near the end of the first para- 

 graph. It refers to the treaty of 1871 : 



" Then we owe no obligation to liberality of sentiment or commu- 

 nity of interest; then we are bound to no moderation in the use of 

 our privilege, and if purse-seining and trawling and gurry-poison 



