These restrictions and regulations were to be confined to the restrictive provisions of the treaty, and since they were specially authorized by the treaty and did not involve the affirmative right of the American fishermen, but referred to the non-treaty coasts alone, the power of making them was reposed not alone in the Crown, but was confided as well to the governor or person exercising the office of governor in any part of His Majesty's dominions in America.

The King has had but one occasion since 1819 to recur to the power vested in him alone by the act of 1819. That occasion arose in the year 1907 when the contumacy of the Province of Newfoundland compelled another order in council, securing to American fishermen in spite of adverse provincial laws, the right to enjoy unmolested the fishery in Newfoundland waters accorded to them by the treaty."

The United States submits that this legislative and executive action of Great Britain (not departed from for ninety years, and near the end of that time again affirmed by King and council), coming so soon after the execution of the treaty, was a construction by Great Britain of the meaning of the treaty with respect to the making of regulations, which demonstrates that it was not thought at that time that power remained in the British Government to limit by regulations the affirmative right of fishing. If any such power had been thought to remain in the British Government the act of Parliament would have authorized such regulations, and the power of making them would have been reposed cumulatively in the Crown and in the local officials as was done with reference to the regulations to be made on the non-treaty coasts. This contemporaneous construction of the treaty is completely destructive of Great Britain's contention. of the present day.

The attempt is made in the British Counter Case to escape from the force of this legislative and executive action of the British Government, by distinguishing between "regulations," and "directions, orders and instructions to the governor of Newfoundland" etc., but the attempt is necessarily unsuccessful. The act of Parliament used the terms regulations, and directions, orders and instructions, as convertible terms. Both were to be authorized by orders in council, and both were to be directed, not to regulations of the fishery, but to carrying into effect the purposes of the treaty

a U. S. Case, 74; Appendix, 116.

66

with relation to the taking, drying and curing of fish by inhabitants of the United States". Moreover, if the act had been construed by the King and Council, as requiring and authorizing regulations of the fishery other than regulations for the purpose of assuring the American fishermen in the exercise of their treaty rights, why were not some regulations of that character ever made either by the order in council of June 19, 1819, or by subsequent orders?

The letter of Lord Bathurst of June 21, 1819, transmitting to Sir C. Hamilton, governor of Newfoundland, the act of the British Parliament of June 14, 1819, and the order in council made pursuant thereto contains a further exposition of the meaning of the treaty of 1818.a

Lord Bathurst in that letter directed the governor to confine American fishermen to fishing "in the same manner as previous to the late war with the United States," and distinguished between the right to cure and dry fish on the coast of Labrador and on the southern coast of Newfoundland, denominating the latter a "new privilege and therefore as more limited than the old one on the coast of Labrador. It is quite evident that he considered that all the liberties granted by the treaty of 1818, except the new privilege of curing and drying on the southern coast of Newfoundland, partook of the quality of right enjoyed under the treaty of 1783, which it was the object of the treaty of 1818 to renew, and that the measure of the powers and duties of the British Government with reference to the fishery was the same under both treaties.

LATER CONSTRUCTION.

To the foregoing it may be added that for half a century after the conclusion of the treaty of 1818, there were no laws or regulations of Great Britain or any of her colonies which could be regarded as an assertion of, or even an attempt to assert, a right to limit or restrain the exercise by Americans of their treaty rights in the treaty waters. This statement will perhaps be controverted by Great Britain and it would require more space than it is desirable to occupy in this argument to analyze the various ancient laws, star chamber rules, orders in council, regulations, and proclamations, published in the

a British Case, Appendix, 99.

Appendix to the British Case, for the purpose of sustaining the statement. Nevertheless the United States makes the statement confidently and will amply support it when it comes to present its oral argument. More than that no attempt to enforce, as against American fishermen, such laws and regulations as were finally adopted, was made until a much later period, if indeed it can be said that any attempt was ever made to enforce such laws and regulations on the treaty coast against the American fishermen prior to the year 1905.

CONCLUSIONS.

The United States submits:

1. That the treaty of 1818 created in favor of the United States as against Great Britain an international servitude.

2. That the treaty contained no reservation of power in Great Britain to limit or restrain by municipal laws or regulations the beneficial enjoyment of the servitude.

3. That, in the absence of such a reservation, there remains no power in Great Britain to limit or restrain its exercise by the United States, or its inhabitants, without the consent of the United States.

RIGHT TO REGULATE AND CHARACTER OF REGULATIONS.

It is conceived that the foregoing discussion has made it possible to measure intelligently the limiting regulations, mentioned in Question One of the Special Agreement, with the rights granted by the treaty of 1818, and to determine the extent of the conflict between such regulations and the treaty. The first limiting regulation therein mentioned is one "in respect of the hours, days, and seasons when fish may be taken on the coasts." Manifestly the treaty is without limitation as to the hours, days, or seasons when fish may be taken on the treaty coasts, and, therefore, regulations limiting the right to fish to certain hours, days, or seasons are altogether in conflict with the treaty.

aU. S. Counter Case, 25, 26.

The next regulation mentioned is one in respect of "the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts." Here it is again manifest that the treaty is without limitation as to the method, means, and implements which may be used in the taking of fish or in the carrying on of fishing operations, and that, therefore, regulations limiting the method, means, and implements, which may be used, are in conflict with the treaty. It is not necessary in this connection, to consider regulations in respect of "other matters of a similar character," for the reasons hereinbefore stated.

Here, it is submitted, the affirmative argument logically ends. Regulations of the character, which it is contended Great Britain has authority to make without the consent of the United States, necessarily limit the treaty right granted to the United States; the grant of that right by Great Britain was a voluntary renunciation of her sovereignty to do anything which in fact limits the right; therefore, Great Britain has no authority to make such regulations without the consent of the United States.

BRITISH ARGUMENT AS TO THE RIGHT TO IMPOSE REGULATIONS.

The position of Great Britain in opposition to the views of the United States above set forth is stated thus in the British Case:

As to the general principle which governs the construction of treaties such as this it is submitted that the mere grant of a right or liberty to subjects of one state to do certain acts in the territory of another state, does not itself confer any exemption from the jurisdiction of the state in which those acts are done."

This statement is open to criticism in two respects. It speaks of the treaty right in question as the mere grant or liberty to the subjects of one state. The grant it is submitted was to the United States as a nation. Such a grant, the British statement proceeds to assert, does not confer any exemption from the jurisdiction of the state in which the acts are done. If that be true the grant is to be held and enjoyed absolutely at the discretion of the grantor. That position has never been taken by Great Britain heretofore and clearly is not tenable. The very submission in this case negatives any such extreme contention. There must be some exemption from the juris

a British Case, 40.

diction of the state within which the acts are done. If so, what is it? The United States submits that the exemption is from the exercise of local jurisdiction directed at the particular subject-matter of the grant and intended to limit and restrain its exercise and enjoyment. Further, if the attempted exercise of the local jurisdiction would in fact limit and restrain the enjoyment of the grant, the exemption is not destroyed because some local policy is to be subserved by the limitation and restriction. Necessarily, the exemption remains, where the grant is one of a fishery right to be held in common with the grantor, and the policy which induces any limitation and restriction of the grant is one which the two states have an equal interest in advancing and promoting. This policy can only be advanced and promoted by regulations which, decided upon by the two states, are equally fair and just to each in their provisions.

The British Case quotes a passage from Hall's work on international law in support of its view. It was written in connection with a discussion of the construction of treaties, and it is submitted that the author had lost sight temporarily of the distinction between a treaty dealing with a subject-matter not in itself implying a limitation of sovereignty, and a treaty which by reason of the terms and the subject-matter necessarily implies such a limitation. With reference to the first class of treaties it was an accurate statement of the law to say that "no treaty can be taken to restrict by implication the exercise of the right of sovereignty." It was entirely inaccurate to apply that observation to the second class of treaties, because as has been shown, a treaty containing stipulations which have the effect of creating a state servitude, by necessary implication does restrict the right of sovereignty.

In another part of his work Hall speaks of these treaty rights as servitudes, and as derogations "from the full enforcement of sovereignty over parts of the national territory," and this passage will be found to be a more accurate statement of the law applicable here than that quoted from the same author in the British Case."

In the passage quoted in the British Case, the contention of the United States put forth in connection with the Fortune Bay claim is characterized as "scarcely intelligible," and it is said that "it was contended that the simple grant to foreign subjects of the right to

a British Case, 41-42.

Hall's International Law, pp. 150-160.