MISCELLANEOUS. 1103 



This is well known to be the prevailing doctrine on the subject in 

 America, and it would have been surprising if the United States 

 negotiators had relinquished, voluntarily, the large portions of the 

 ocean now claimed by Great Britain as her exclusive right, under the 

 provisions of this treaty, on the ground that it was sanctioned by 

 the law of nations. 



It would have been still more surprising if it had been thus re- 

 linquished, after its long enjoyment by the inhabitants of America 

 in common, from the time of their first settlement down to the Revolu- 

 tion, and from that time by the United States and British provinces, 

 from the treaty of 1783 to that of 1818. 



I see, therefore, no argument, in the view which has been suggested, 

 to sustain the right of exclusive jurisdiction claimed by England. 



2. I come now to the consideration of the second point taken in the 

 argument before us, which is, that by the treaty of 1818 the United 

 States renounced the right of taking fish within the limits now in 

 controversy. This depends on the construction to be given to the 

 article of the treaty which I have already cited. 



In the construction of a treaty, admitting of controversy on account 

 of its supposed ambiguity or uncertainty, there are various aids we 

 may avail ourselves of in determining its interpretation. 



" It is an established rule," says Chancellor Kent, " in the exposi- 

 tion of statutes," and the same rule, I may add, applies to treaties, 

 " that the intention of the lawgiver is to be deduced from a view of 

 the whole and of every part of a statute, taken and compared 

 together, and the real intention, when accurately ascertained, will 

 always prevail over the literal sense of the terms." 



He further says, " When the words are not explicit, the intention 

 is to be collected from the occasion and necessity of the law, from 

 the mischief felt, and the remedy in view ; and the intention is to be 

 taken or presumed according to what is consonant to reason and 

 good discretion." (1 Kent's Com., 462.) 



Now, there are various circumstances to be considered in connexion 

 with the treaty that will aid us in coming to a correct conclusion as to 

 its intent and meaning. 



These circumstances are the entire history of the fisheries ; the views 

 expressed by the negotiators of the treaty of 1818, as to the object 

 to be effected by it ; the subsequent practical construction of the treaty 

 for many years; the construction given to a similar article in the 

 treaty of 1783; the evident meaning to be gained from the whole 

 article taken together ; and from the term " coasts " as used in the 

 treaty of 1818 and other treaties in reference to this subject. All 

 these combine, as I believe, to sustain the construction of the pro- 

 visions of the treaty as contended for by the United States. 



It will not be contested that the inhabitants of the territory now 

 included within the United States, as a matter of history, have had 

 generally the common and undisturbed right of fishery, as now 

 claimed by them, from the first settlement of the continent down to 

 the time of the Revolution and that it was subsequently enjoyed in 

 the same manner, in common by the United States and the British 

 provinces, from the treaty of 1783 down to the treaty of 1818. 



This right was based originally on what Dr. Paley well regards, in 

 his discussion of this subject, " as a general right of mankind ; " 

 and the long and undisturbed enjoyment of it furnishes just ground 



