enjoy certain national property in common with the subjects of the State carries with it by implication an entire surrender, in so far as the property in question is concerned, of one of the highest rights of sovereignty, the right of legislation." The author was here guilty of another lapse and had lost sight of the fact that the simple grant to foreign subjects of which he speaks was a right of fishery granted by one State to another, and that it was what he had admitted it to be in his servitude discussion, a servitude derogating from the full enforcement of sovereignty over parts of the national territory. His concluding observation that the United States could demand no more "than that American citizens should not be subjected to laws or regulations, either affecting them alone, or enacted for the purpose of putting them at a disadvantage," is so far from correct that one of the most eminent of modern English statesmen in dealing with the very matter, as will be shown in another connection, made no such broad claim, and in the very submission in this Question Great Britain admits that American inhabitants can not be subjected to such laws and regulations unless they are inherently reasonable, necessary, and appropriate, fair, just, and equitable.

Mr. Hall is not a safe author to rely on in cases where his sympathies or prejudices are involved. This is not the view alone of counsel for the United States. Doctor Oppenheim, the learned and impartial English publicist, at present professor of international law at Cambridge University, in the preface to the second volume of his work on international law, refers to the fault of writers who manifest their political sympathies and antipathies, a fault of which he says: "Hall's classical treatise furnishes at once an illustration and a warning."

The treaty provisions, reproduced in the British Case as examples, do not bear upon the position which the United States has taken in this argument. Stipulations for the entry of citizens or subjects of one nation into the territory of another, entitling them to do business there, and to have their property and property rights respected, are mere obligations as distinguished from real rights and do not derogate from sovereignty.

With reference to the first article of the reciprocity treaty of 1854between the United States and Great Britain, printed in the British Case, the United States takes the position that by that article a

mutual servitude was created, which restricted the sovereignty of each nation, to limit or impair, without the consent of the other, the enjoyment of the servitude reciprocally created.

The statement that American fishermen engaged in fishing under it were uniformly held to be subject to local British regulations, is respectfully denied if the statement implies the acquiescence or participation of the United States in any such holding. The same is true of the statement that it was explicitly recognized in Mr. Marcy's circular that American fishermen were subject to local regulations, if the statement implies that Mr. Marcy recognized that American fishermen were bound to observe regulations limiting their treaty rights except in the sense that such regulations were de facto municipal laws, the validity of which, if questioned, it was the right and duty of the nation to dispute and not that of its citizens. The Marcy circular and other acts and declarations of officials of the United States, from which it has been attempted to show concurrence by the United States in Great Britain's claim of a right to make fishery regulations, will be discussed below in another connection.

The last of these treaty provisions printed in the British Case is taken from article 27 of the treaty of 1871, between the United States and Great Britain, called the Treaty of Washington. That article did not provide for the use by citizens of the United States of the Welland, St. Lawrence, and other canals in the Dominion of Canada, as the abbreviated form in which it is printed in the British Case would make it appear, but stipulated merely that Great Britain engaged to urge upon the Government of the Dominion of Canada to secure to the citizens of the United States the use of those canals 66 on terms of equality with the inhabitants of the Dominion." a

Even if, however, that article had granted citizens of the United States the rights stated, the principal deduction drawn from it by the British Case might be admitted without impairing the force of any proposition advanced in this argument. It has never, indeed, "been contended that citizens of either country were to be exempt from the local laws of the other country when within its territory." No one has suggested that "on terms of equality" (similar in meaning to the words in common in the treaty under discussion) meant that although the citizens of both countries were subject to law when at home, they were free from law when abroad.

a British Case, Appendix, 41.

The parenthetical suggestion in the above that the words of the treaty of 1871, on terms of equality were similar in meaning to the words in common used in the treaty of 1818, is not, however, justified.. It is obvious that the equality provided for in the treaty of 1871 was equality of treatment in the use granted. The equality implied by the words" in common" in the treaty of 1818 was equality of right.

It is interesting in view of the present controversy, and it also throws light on the meaning of article 27 of the treaty of 1871, to note the care observed by the two nations in safeguarding national sovereignty when dealing with the rights granted respectively by articles 26 and 28 of the same treaty. These two articles secured to each country the free navigation of certain rivers and lakes within the territories of the other, creating undeniable servitudes in favor of each country as against the other. The right of each country to regulate the enjoyment of the servitude within its borders was. not left to any implication of law nor to be drawn from uncertain words, but was specifically reserved. The navigation of the river St. Lawrence was to be "subject to any laws and regulation of Great Britain, or of the Dominion of Canada, not inconsistent with such privilege of free navigation." The navigation of the rivers Yukon, Porcupine and Stikine (they being partly in both countries) was to be "subject to any laws or regulations of either country within its own territory, not inconsistent with such privilege of free navigation." The navigation of Lake Michigan, that lake being entirely within the United States and bounded by several of the States of the American union, was to be, "subject to any laws or regulations of the United States or of the States bordering thereon, not inconsistent. with such privilege of free navigation."

BRITISH ARGUMENT BASED ON SUPPOSED CONTINUANCE OF TREATY OF 1783.

An alternative argument is presented in the British Case, based on an assumed contention attributed to the United States, that the treaty of 1783 merely recognized and continued the rights which the fishermen of the United States possessed as subjects of the British Crown before the Declaration of Independence, and that the

a British Case, Appendix 41.

treaty of 1818 in turn simply recognized and continued preexisting rights.

As a statement of the contention of the United States this is not strictly accurate. The position taken by the United States was that the American Colonies, by reason of their exertions to acquire, maintain, and develop the North Atlantic fisheries, and of the relation of the fisheries to them geographically and economically, were as much entitled to those fisheries upon their separation from Great Britain, as the people inhabiting the territories which remained under the British Crown, and that the treaty of 1783, recognizing the division of the British Empire as the result of the success of the American Revolution, apportioned to each of the divided parts, to be thereafter held by each of them as national possessions, an equal right in those fisheries.

This was very far from a contention that citizens of the United States were merely enjoying the fishery rights which they had formerly enjoyed as subjects of the British Crown, and that their present rights were only a continuation of their former rights. While the right is in essence the same right and grows out of the former right, it was formerly enjoyed by the Americans as British subjects, but it is now enjoyed by them as American citizens. They enjoyed it before by permission of the Crown which owned all the fisheries; they enjoy it now as a national right.

The independence of the United States introduced a factor which resolved the constituent elements of the right on a new basis and metamorphosed what had been municipal rights into international rights. Under the changed condition the right had become one which subjected a part of the territory of Great Britain to the purpose and interest of the United States. In other words, it had become an international servitude limiting the former unlimited power of Great Britain. An appeal, therefore, to the former municipal status to establish the measure of the present international right must be ineffectual for the right being now international is no longer burdened with the municipal incidents which formerly attached to the pre-existing right.

The British Case remarks of the contention in question that "this view has been repudiated by Great Britain," and as the United States, for the purposes of this case, has consented to have its rights measured and adjudicated by the terms of the treaty of 1818, it does not require further consideration.

THE QUESTION OF REASONABLE REGULATIONS.

It is proposed now to examine the special and peculiar form in which Great Britain, with the view, apparently, of escaping the force of the principles of public law applicable to the subject, has stated the British contention in Question One. The British Case does not advance the position that Great Britain is at liberty to make any regulation of the fisheries which may suit the purposes of that Government, but accompanies the contention of an exclusive right to make regulations with the qualification that the regulations must be reasonable. Apparently recognizing that this would not strengthen the contention in the light of public law, because a right to make reasonable regulations would be in effect a right to make any kind of regulations, since that Government would be the sole judge of their reasonableness, this contention is limited by the further qualification that the regulations must be reasonable from certain view points.

This Tribunal is thus asked to declare, not that Great Britain has the right to make regulations at will, or to make reasonable regulations, but that Great Britain has the right to make regulations which shall be reasonable judged by certain standards set up by the form of this Question. It is necessary to look at and examine these standards in determining the validity of this contention.

Great Britain contends, as set forth in this Question, for the right without the consent of the United States to make certain regulations if they be reasonable from the view point of their being—,

(a) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and of 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.

It is submitted that the concession, thus made respecting the necessity of the reasonableness of the regulations from the particular view points set up, does not materially change or alter the question of power to be determined by this Tribunal. The concession is indeed an admission that in principle the power to regulate at will and to any extent does not exist in Great Britain, which would determine against Great Britain all the contentions of Question One. Nevertheless, if Great Britain is to be the sole judge of the reasonableness of the