QUESTION ONE.

To what extent are the following contentions or either of them justified?

It is contended on the part of Great Britain that the exercise of the liberty to take fish referred to in the said article, which the inhabitants of the United States have forever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or rules, as, for example, to regulations in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts; (3) any other matters of a similar character relating to fishing; such regulations being reasonable, as being, for instance

(a) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and the liberty which by the said article 1 the inhabitants of the United States have therein in common with British subjects; (b) Desirable on grounds of public order and morals;

(c) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said treaty liberty, and not so framed as to give unfairly an advantage to the former over the latter class.

It is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or (3) any other limitations or restraints of similar character

(a) Unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and

(b) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and not so framed as to give an advantage to the former over the latter class; and

(c) Unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement.

SCOPE AND MEANING OF THE QUESTION.

It does not require critical analysis of the foregoing Question to demonstrate that the two Governments are in substantial accord with respect to subdivisions (a) and (b) of the contentions of the United States, namely, that the exercise of the liberty to take fish on the part of the inhabitants of the United States, referred to in Article 1 of the treaty of 1818, is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in respect of (1) the hours, days, or seasons when such inhabitants may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations, or (3) any other limitations or restraints of similar character "(a) unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and (b) unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States and not so framed as to give an advantage to the former over the latter class."

The particular requirements or characteristics of the regulations to be made are stated by the two Governments in almost identical terms, except in one particular. The statement of the contention of the United States in subdivision (b) is that the regulations must not be so framed as to give the British fishermen "an advantage" over the fishermen of the United States. The equivalent statement in the British contention is that they must not be so framed "as to give unfairly an advantage to the former over the latter class." It will be seen from this statement of the British contention that that Government contemplates the making of regulations of the fisheries which give the British fishermen an advantage over fishermen of the United States; and since that Government and its colonies, under its contention, are to make the regulations and determine for themselves whether the advantages they permit to their own fishermen are fair or unfair, no very certain or determinate right will be left to the United States and its fishermen if the British contention should prevail. The fishermen of the United States will be left to struggle with fishermen of Newfoundland under regulations of the latter, made and designed by them for their own advantage, and with no limitation on the power of making them, except the Newfoundland conception of what is fair or unfair.

The main contention in the case is stated in subdivision (c) of the statement of contentions on the part of the United States, namely, that limitations or restraints on the exercise of the American right of fishing can not be imposed by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations “(c) unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord, and the United States concurs in their enforcement."

The British Case a distorts the question raised by that contention into the following: "Stated in general terms, the question is, whether certain nationals, with treaty liberty to enter alien territory and do certain acts there, are exempt from all the local laws, applicable to persons engaged in those acts, in force in that alien territory, unless their appropriateness, necessity, reasonableness, and fairness have been passed upon, and their enforcement concurred in by the government of their own country."

Passing by the loose terminology employed to describe a common and perpetual right of fishery in its territorial waters granted by one government to another, it is observed with respect to this statement of the British Case that the United States does not now claim, and has never claimed, that its nationals, when visiting the territorial waters of Great Britain for the purpose of there engaging in the common fishery secured to them, "are exempt from all local laws applicable to persons engaged in those acts in force in that alien territory, unless their appropriateness, necessity, reasonableness, and fairness have been passed upon and their enforcement concurred in by the government of their own country." It is not questioned that inhabitants of the United States, resorting to the treaty coast to fish, are bound by all local laws which do not limit or restrain or burden them in the very matter of the time and manner of taking fish, and hence that the great body of the civil and criminal laws of Great Britain, Canada, and Newfoundland apply to the American fishermen to the same extent as to other persons coming within or residing within British jurisdiction. These propositions are not raised by the Questions submitted for decision and have never been and are not now contested by the United States.

Passing for the moment the question of the proper interpretation to be placed on certain words and phrases of the treaty, and assum

a British Case, 20.

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ing that such interpretation will show that there are no words or phrases in the treaty which expressly or by necessary implication reserve to Great Britain power to limit or restrain in any manner the enjoyment by American fishermen of the right to take fish, the United States submits that the question at issue between the two Governments is as to what regulation of the freedom of the fishery in the matter of the time and manner of taking fish remains part of British sovereignty over waters within which exclusive sovereignty over the fishery has been parted with by Great Britain by virtue of its grant to the United States of an equal right in the said fishery.

The phrase, "the matter of the time and manner of taking fish" is here used as comprehending and embracing the several matters of regulation specified in Question One. Regulations in respect to the hours, days, or seasons when fish may be taken go to the time, and regulations in respect to the method, means and implements to be used in fishing go to the manner. The third specification of regulations, viz, "any other matters of a similar character relating to fishing" does not, it is conceived, enlarge the character of the regulations submitted for the judgment of this Tribunal, because, on the principle noscitur a sociis, the other matters must have relation to and be ejusdem generis with those first enumerated.

INTERNATIONAL SERVITUDES.

The United States submits that the treaty of 1818 created an international servitude in its favor to be exercised within British territory-a real right as distinguished from an obligation. What the servitude is, its measure and extent, and whether Great Britain reserved any right to impair its enjoyment by limiting regulations depend, of course, on the terms of the treaty. The United States will undertake to show that the treaty contained no such reserved right, and will insist that, in the absence of such reserved right, Great Britain has no power, without the consent of the United States, under the principles of international law, to limit, restrain, or burden in any manner the exercise and enjoyment of the servitude.

It is proposed to discuss, first, the doctrine of international servitudes, because, it is thought that, to establish clearly the nature in