ARGUMENT OF SAMUEL, J. ELDER. 1521 



The whole language being the language of a conveyance of title : 

 " The proportion of this fishery which Great Britain was to part 

 with, and the United States was to appropriate, does not affect the 

 question of what the entire property was and was understood to be. 

 Whatever the United States would have acquired had Great Britain 

 parted with the whole fishery, the subject partitioned between them 

 was this entirety, no matter what the shares in which it was to be 

 enjoyed might be. It is equally clear that the negotiators on both 

 sides assumed that Great Britain was dealing with this subject as 

 sole owner, and that it had impaired neither its title nor its possession 

 by any previous grant or encumbrance. Whatever right and enjoy- 

 ment, then, by proprietorship and dominion Great Britain in its 

 political sovereignty could impart to ' the subjects of Her Britannic 

 Majesty,' that right and enjoyment Great Britain could impart ' to 

 the inhabitants of the United States.' ' : 



The whole language shows that what he is dealing with is the pos- 

 sibility of a grant by one Government, or the other Govern- 

 920 ment, to some other Power, in the nature of a legal grant, and 

 the last thing in his mind, one that had never been called to 

 his attention, was what the composition of fishing crews should be. 



But this Fortune Bay case is very important when we consider 

 the affidavits connected with it. The affidavits that were before Mr. 

 Evarts and the affidavits that were before Lord Salisbury showed 

 that other than inhabitants of the United States were fishing for 

 Americans at that very time in Fortune Bay. It seems to me that 

 this is a most significant fact. Lord Salisbury resisted any payment 

 to the United States on account of interference with Americans at 

 Fortune Bay. The correspondence was long and well-nigh acrimo- 

 nious. Everything that the United States fishermen had done in 

 violation of any colonial law was set out; everything that could be 

 supposed to be a violation of the treaty was set out. It was then the 

 treaty of 1871, you will remember, but in so far as these fishing privi- 

 leges are concerned, they run along side by side. The violation of 

 the treaty that Lord Salisbury relied upon was that in the course of 

 the fishing with a large net, which was taking fish for the entire 

 fleet and would have taken enough fish in that one haul to fill the bar- 

 rels of the entire fleet, one end of the net was made fast on the shore. 

 His contention, in so far as interference with the treaty right was 

 concerned, was confined to that sole and single infraction of the 

 treaty right. For the rest, he relied upon a violation and infringe- 

 ment of the statutes of Newfoundland, and he never, in the whole 

 correspondence, which disclosed that many of the persons employed 

 were not inhabitants of the United States, raised this question, or 

 dreamed apparently that any such question could be raised as that 

 which is raised now. Let me call the attention of the Tribunal to 

 the letter of Mr. McLaughlin to Mr. Seward, under date of the 2nd 



