ARGUMENT OF JOHN S. EWART. 1429 



MR. EWART : To some extent, I suppose so, Sir. And that is helped, 

 also, by what appears at p. 13 of the Case, where something to the 

 same effect appears. 



THE PRESIDENT : Yes ; in the last paragraph on that page : " The 

 remaining portion or second clause of this article," &c. 



MR. EWART : Yes, Sir : 



; ' The remaining portion or second clause of this article applies only 

 to the inshore or coast fisheries and does not require particular atten- 

 tion at this time because it was superseded by the provisions of the 

 treaty of 1818 and its relation to that treaty is considered later." 



DR. DRAGO: Yes. 



MR. EWART: I am fully aware of those two passages, and I have 

 been unable to see why the partition theory was stated so fully, upon 

 pp. 9 and 10, and why those two subsequent points, as I have spoken 

 of them, were so fully elaborated, unless something was going to 

 depend upon them. Although, as the learned arbitrator has just 

 pointed out, the question as to whether the war terminated the treaty 

 of 1783 was said not to be a question to be submitted to the Tribunal, 

 yet if one turns to p. 14, one will find that from that on to p. 22 the 

 question is most fully argued, under the heading : " The Controversy 

 as to the effect of the War of 1812 upon the Fisheries Article of the 

 Treaty of 1783." I see no purpose whatever in that long discussion, 

 unless to show that the treaty of 1783 continued after the war. And. 

 in the same way, I see no purpose whatever in the discussion engaged 

 in at p. 60 and p. 65, in which an attempt is made to identify the 

 liberties of 1818 with those of 1783, except for the purpose of carry- 

 ing on the previous idea. And the point I make is that, at all events, 

 there is nothing about the present attitude of the United States in 

 the Case. Unless they were putting their case upon the partition 

 and continuation idea, I do not see any argument in the Case which 

 they have presented to the Tribunal. 



JUDGE GRAY : Is it not made perfectly clear, Mr. Ewart, on pp. 26 

 and 27 of the Case : 



" the questions involved having been laid at rest by the subsequent 

 treaty of 1818 ; nevertheless the respective positions of the two govern- 

 ments in the controversy have an important bearing upon the true 

 interpretation of the treaty of 1818."? 



MR. EWART: Yes, Sir. 



JUDGE GRAY : That is, they may throw some light, as being part of 

 the attending circumstances, conditions, which surrounded and pre- 

 ceded the making of the treaty, and which are always to be considered 

 in interpreting treaties as well as contracts ? 



MR. EAVART: Yes, Sir. The learned arbitrator will observe that 

 what is said to have an important bearing upon the true interpretation 

 of the treaty is not the effect of war upon the treaty, or the identity 



