2282 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



between the United States and various Indian tribes. I referred to 

 a judgment dealing with the words in the treaty then under consid- 

 eration, which are very like the words in the treaty of 1818 in fact, 

 almost identical. The Judge there stated that the words " in com- 

 mon " must be construed to mean on " terms of equality." I need 

 not go into the point, because it is in the recollection of the Tribunal. 



Now, Mr. Senator Root said those two cases had beon overruled, 

 and for that purpose he cited the case in 1904 of United States p. 

 Winans." He did not read the whole of the judgment or show how 

 the cases cited by my learned friend Mr. Ewart and myself had been 

 overruled, as he alleged. 



The Supreme Court, or the Court of Appeal, which then had before 

 it the consideration of the case of United States v. Winans, of course 

 was not dealing with any appeal from the other two cases, and it 

 could only have overruled them by indicating its dissent from the 

 judgments there given. 



Now, I venture to say my learned friend Mr. Root is mistaken in 

 supposing that those two cases were overruled. The case of the 

 United States v. Winans was dealt with, and the other two cases 

 were discussed. It was stated that the learned Judge had improp- 

 erly applied the principle laid down in the " James G. Swan " case 

 to the case of Winans, and his judgment in the case of Winans was 

 overruled, was reversed, but the Court did not say that the principle 

 on which the " James G. Swan " case was decided was a wrong prin- 

 ciple. The Court only said that it was in that particular case 

 wrongly applied. There was therefore no overruling of the case of 

 the "James G. Swan," and it will appear in the report which the 

 learned Senator put in that the United States counsel himself care- 

 fully distinguished the case of the " James G. Swan " from that which 

 was then under consideration. That is all I need say about that case. 

 It is in the hands of the Tribunal. I am quite ready to go through 

 the facts in each of the cases in order to make good what I have said. 

 but all the documents are l>efore the Tribunal, and I deal with them 

 in the same general way in which Mr. Root has himself dealt with 

 them. 



Then there was another case as to which I think I should say some- 

 thing. 



The United States have produced a copy of a written judgment 

 from the archives of a Newfoundland Court in the year 1820, a de- 

 cision by the then Chief Justice of Newfoundland. 6 It is a little 

 embarrassing or puz/ling to find out what he was Chief Justice of 

 at that date. I have no doubt there was a Chief Justice of Xew- 



73 Fed. Rep., p. 72 ; 198 U. S. Rep., p. 371. 

 6 See Appendix, infra. 



