regulations, it is a necessary corollary that, the power once conceded to make regulations even though coupled with the concession that they must be reasonable, it is practically and at discretion an absolute and unlimited power.

Every limitation on the fishing right which the British colonies may conceive it to be to their interest to impose, may still be plausibly defended as a reasonable regulation in the interest of the preservation of the fisheries, or as being necessary for the exercise of their common right by the fishermen of the two countries, or as being equitable and fair between them, or as being so framed as not to give the one an unfair advantage over the other. The regulations once made, pursuant to a recognized power to make them, are valid as municipal laws and must be enforced, however unreasonable, unnecessary, and unfair, unless war shall coerce the regulating power, or diplomatic remonstrance convince it of the propriety of changing them.

The power, therefore, to make reasonable regulations according to certain prescribed standards, is not in its practical effect different from the power to make regulations at will and without limitation as to character, when the state which makes the regulations is the sole judge of their reasonableness measured by the prescribed standards. It will be seen that even with the concession made by Great Britain by the peculiar form in which this contention is advanced, the question recurs again and with full force- -can a state, which has limited its territorial supremacy by the grant of a servitude to fish in its territorial waters, which grant is without limitation, and without reservation of power either express or implied to regulate the subject-matter of the fishery, make regulations, without the consent of the beneficiary, which limit the enjoyment of the servitude in the very matter of the time and manner of taking fish.

It may be said that it is to be presumed that neither Great Britain nor her colonies will make any regulations which are not reasonable in the sense that they are not necessary, or are unfair and inequitable. But it is submitted that rights, solemnly granted on good consideration, should not be dependent merely upon the presumption of good faith. Such rights are created and defined by solemn writings and are to be held and enjoyed in accordance with the terms of the instrument granting and defining them and to the full extent thereof.

Presumptions of good faith and fair dealing can not be admitted to impair the enjoyment of rights either in international or municipal law. Moreover, there is no such presumption in international law. That law imposes on nations the utmost good faith, but it does not presume it. Presumptions have their foundation in the general observation of mankind that one fact follows another as a reasonable sequence. But the history of nations is far from showing that good faith in its observance always, or even generally, follows the assumption by a nation of international obligations.

An examination of the evidence in this case, it is believed, will show that the colonies, to which Great Britain has largely remitted the performance of her international obligations under the treaty of 1818, have not acted conformably to any such presumption. Under the stimulus of competition with the United States in the fisheries and to hamper and impede the latter, and to favor special localities, they have enacted laws and made regulations limiting the time and manner of fishing which are not necessary to the preservation of the fisheries and which are not fair and equitable as between the fishermen of the two countries. They have also made laws and regulations directed confessedly at the American fishing right, and with a view of making its enjoyment difficult, if not impossible.

The United States calls the attention of the Tribunal in this connection to the Newfoundland Foreign Fishing Vessels Acts of 1905 and 1906, and to the diplomatic correspondence conducted by Mr. Root and Sir Edward Grey concerning the same, and to various other cognate matters for the purpose of showing that this legislation was conceived with the view of depriving American fishermen of their treaty rights in Newfoundland waters, and that it would be effective for that purpose if allowed to be enforced. The United States also calls attention to the Consolidated Statutes of Newfoundland (1892) and particularly to sections 1, 4, & 5 of such statutes; also to the regulations of the fisheries made by the Governor of Newfoundland in Council, (1905), and particularly to sections 19 to 25, both inclusive, and 53 to 62, both inclusive, and to pertinent evidence in

a U. S. Case, Appendix, pp. 197-201.

U. S. Case, Appendix, 966, 968, 978, 985.

e

CU. S. Case, Appendix, 116; U. S. Counter Case, Appendix, 446-448.

d U. S. Case, Appendix, 175 et seq.

e U. S. Case, Appendix, 175–176.

f U. S. Case, Appendix, 201 et seq.

9 U. S. Case, Appendix, pp. 202, 205–208.

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the record concerning the effect of such regulations, for the purpose of showing that these statutes and regulations are intended to and do discriminate in favor of the local shore fishery and against the vessel fishery of the Americans, or were made to suit the convenience of local fishermen and with entire indifference to American fishing rights. Upon the subject of the purpose and effect, of these regulations generally, the United States also calls attention to the diplomatic correspondence between the two countries."

The United States further submits that the peculiar form in which Great Britain has clothed her contention is, in view of the subjectmatter of the right and the relations of the two nations respecting it, strong confirmation of the contention of the United States that it is entitled to an equal voice in the making of regulations which substantially limit or impair the right, in that the contention contains admissions in the standards of reasonableness set up, which show the identity of interest of the two nations in all the purposes of the regulations and in the manner in which they shall be framed.

They have a common right in the fishery and a common interest in its preservation and protection. They have a like common interest in the full and fair exercise by the fishermen of the two nations of the common right to fish, and in having the regulations to that end so framed as not to give an advantage unfairly to one over the other.

It is true that they have not identical interest in regulations desirable on grounds of public order and morals, but as the relation between public order and morals and regulations directed at the hours, days or seasons when fish may be taken, or at the method, means and implements used in the taking of fish, is far from intimate, and covers, at best, but a limited range of regulations, a discussion of that standard and the regulations which might be referred to it, will be postponed to a later stage of the argument.

There is one particular only, in which the situation of Great Britain with reference to these regulations is different from that of the United States and that is that they are to be enforced within British territorial jurisdiction.

Recurring now to the question of the equal right of the two nations to participate in the making of the regulations, it is not conceived

a U. S. Case, Appendix, 655-656, 984.

that Great Britain means to contend that her conception of the economic value of the fisheries is above that of the United States, or that she has a superior capacity to conceive of proper and necessary regulations for their preservation, or that she is moved by higher motives of international duty in the desire to secure to the fishermen of both nations a full and equal enjoyment of their fruits. If, therefore, the two nations have an equal right in the fisheries and an equal interest in their preservation and protection, and an equal interest in the imposition of proper and necessary regulations from every view point set up by Great Britain, and since there is no impediment to the making of joint regulations by the two nations, to be enforced by Great Britain alone or by the two nations conjointly as may be agreed on, the United States submits that every principle of public law entitles it to an equal voice in the making of regulations if any are found to be necessary. The contrary view would imply want of equality in discretion and judgment, or in national sovereignty, which it can not be supposed Great Britain means to assert, and which, certainly, it can not be supposed that the United States would admit.

The exclusive right of Great Britain can not be supported on any such indefinite theory as reserved sovereignty. There can be no such a thing as a reserved sovereignty to limit or restrain the exercise of a right the grant of which implies a derogation of sovereignty. Any theory of reserved sovereignty in the granting state which permitted limitations or restraints would, in fact, amount to a derogation of the sovereignty of the state receiving the grant. The latter holds the right granted, if it be a right to do something within the territories of the granting state, such as to participate in the fisheries, by as good right and title as the granting state had to the whole before making the grant. It is held as a national right and by virtue of the sovereignty under which every other national right is held, and is entitled to all the protection which public law gives to any right or property of a nation held by virture of its sovereignty. These principles it is believed are incontestable, and they must be broken down and swept aside if the United States is to be deprived of an equal voice with Great Britain in the making of regulations which limit and restrain the enjoyment by the former of the joint common and equal right which the two nations possess jointly in the fisheries.

REGULATIONS REFERABLE TO PUBLIC ORDER.

It is admitted that Great Britain has a special and peculiar interest in the preservation of order on the fishing grounds, and so far as British, or colonial laws and regulations designed to that end do not affect the exercise of the American fishing right, the United States would have no occasion to complain of their enforcement. American fishermen, when within the British territory, must not commit crimes nor breaches of the peace, and if they do either they may be punished by British law. It is presumed, however, that regulations referable to public order, within the contention of Great Britain as stated in Question One, mean the establishment of a general method or order of fishing as between the fishermen, such as, for instance, regulations giving priority to the first comer, forbidding the placing or casting of nets and seines over those already cast, providing rules for separating seines and nets which become entangled, and similar regulations. While regulations of this character may have a tendency to preserve order among the fishermen, yet, since they affect the exercise of the fishing right and might be so framed or so administered as to interfere with its fair enjoyment, the United States can not admit the right of Great Britain to make such regulations applicable to American fishermen without the consent of the United States.

Publicists of repute have said that regulations of even this limited character must be made by treaty between the dominant and servient states; and it is to be noted that the treaty of 1904 between Great Britain and France, in which the claim of an exclusive right of fishery on the part of France on the Newfoundland coast was renounced, and a right retained for her citizens to fish on a footing of equality with British subjects, conformed to this rule of international law by providing that—

The policing of the fishing on the above-mentioned portion of the coast, and for prevention of illicit liquor traffic and smuggling of spirits, shall form the subject of regulations drawn up in agreement by the two Governments."

Regulations which do not actually affect the fishing right in the matter of the time and manner of fishing are conceded to be within the province of British jurisdiction. While such regulations may to some extent impair the faculty of fishing, it is only in the same way and on the same principle, that the arrest and detention of the person U. S. Case, Appendix, 85.

a Ullmann, sec. 99; Clauss, p. 224.