1658 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



but Senator Turner, stating this as he did with such fullness and also 

 with a desire to be accurate, would not go so far as to say that the 

 parties knew anything about the law which was the foundation of 

 the implied term that he was setting up. He would not go so far as 

 to say that the parties knew what they were doing. Of course, he 

 expressed himself, properly enough, in rather guarded language 

 about it. The Tribunal put him a question. I have no doubt he im- 

 plied they ought to know, but he would not say they did know. Some 

 questions were put to him on this point by Sir Charles Fitzpatrick. 

 Sir Charles Fitzpatrick wanted to know because it was in the early 

 stage of his argument, and he had not developed it as fully as he did 

 later whether his argument went to the extent of saying that a 

 nation could part with its sovereignty, or some measure of its sover- 

 eignty, without express words. Mr. Turner said that he did go that 

 far, and then he added, p. 2636 of the report of the proceedings [p. 

 433 supra] : 



" I do not say that the negotiators of the treaty had all this array 

 of learning that we have had here upon that subject, at all." 



There he was right. Until Mr. Turner had imparted his learning 

 to the world it may safely be said that no one in the world knew as 

 much about it as Mr. Turner did, or ever had known as much about 

 it as he did. 



" SIR CHARLES FITZPATRICK : That is quite clear. 

 " MR. TURNER : I say that it was clearly the only use they had in 

 mind." 



That was the use of the words " in common." 



" Quite possibly if they had been fully informed of the law relat- 

 ing to servitudes they might not have thought it necessary to employ 

 these words at all .... if they had been fully informed of the 

 law." 



So that, Mr. Turner does not suggest that anybody knew all about 

 these servitudes. Yet the nation has parted with its sovereignty not 

 merely on an implied term, but on an implication founded on a law 

 not known to the nation itself. Well now, if that is the way in which 

 a servitude may operate, it operates as a sort of trap. You grant 

 your right thinking that all you have parted with is the right to take 

 a few herrings; you grant it freely and in your magnanimity, Lord 

 Bathurst, trying to establish friendly relations between the two coun- 

 tries, thinks he is doing it rather cheaply; he thinks that all that is 

 given away is the right to take a few herring, but, he has not fore- 

 seen Mr. Turner. Now, it appears that the law attaches to this grant 

 these serious and amazing consequences. 



Let us see what people did know about servitudes. I do not mean 

 what jurists said about servitudes, because, after all, they are sitting 



