ARGUMENT OF JOHN S. EWABT. 1411 



regulation had been discussed and settled with Mr. Marcy, and that 

 Mr. Boutwell had adopted the conclusion that had been arrived at in 

 the Marcy circular. 



I therefore submit, Sirs, that we can use this 1871 treaty as a test 

 of the interpretation of the 1818 treaty. 



There seems to have been no doubt in the minds of the United 

 States counsel at the Halifax arbitration that the interpretation 

 which I have placed upon the 1871 treaty was the correct interpre- 

 tation. 



In the British Counter-Case Appendix, p. 187, Mr. Trescott is re- 

 ported to have used the following language. He was speaking with 

 reference to a report which had been put in by the British Govern- 

 ment in support of its view of the subject of bays, and near the com- 

 mencement of Mr. Trescott's argument, omitting the first few lines, 

 is the following: 



"As to the exceedingly interesting and very able brief, submitted 

 for the other side, I am not disposed to quarrel with it. At any rate 

 I shall not undertake to go into any argument upon it. It refers' 

 entirely to the question of territorial right, and the question of ex- 

 tent of jurisdiction questions with which the United States has 

 nothing to do. They have never been raised by our government, and 

 probably never will be, because our claim to fish within the three- 

 mile limit is no more an interference with territorial and jurisdic- 

 tional rights of Great Britain than a right of way through a park 

 would be an interference with the ownership of the property, or a 

 right to cut timber in a forest would be an interference with the fee- 

 simple in the soil. 



" Mr. THOMSON : Do you mean to say there would be no interfer- 

 ence there ? 



" Mr. FOSTER : Certainly not. It would be simply a servitude. 

 You do not mean to say that my right to go through your farm in- 

 terfers with the fee-simple of the property ? 



' MR. THOMSON : It does not take away the fee-simple, but it inter- 

 feres with my enjoyment of the property. 



" Mr. TRESCOTT : That is another question, because compensation 

 may be found and given. I simply say- that it does not interfere 

 with the territorial or jurisdiction right. That is the view I take 

 of it, at any rate, and I think I can sustain it, if it ever becomes 

 necessary." 



In passing, it may be worth observation, that Mr. Foster's view 

 of servitudes did not include a transfer of sovereignty; he took the 

 municipal view of servitudes. 



I now wish to refer to an argument used by the United States 

 (United States Argument, p. 59, second paragraph) : 



" It is interesting in view of the present controversy, and it also 

 throws light on the meaning of article 27 of the treaty of 1871, to 

 note the care observed by the two nations in safeguarding national 

 sovereignty when dealing with the rights granted respectively by 



