24 COUNTER-CASE OF GREAT BRITAIN. 



The statute cannot be limited as suggested: for the regulations 

 which are authorised are not such as might be necessary to prevent 

 British subjects interfering with American citizens, but (British 

 Case, App., p. 565.) 



for the carrying into effect the purposes of the said convention, 

 with relation to the taking, drying and curing of fish by inhabitants 

 of the United States of America, in common with British subjects. 

 In support of the United States contention is cited the British 

 Order-in-Council of the 19th June, 1819, issued in pursuance of the 

 statute. By the Order-in-Council the Governor of Newfoundland 

 was directed to (British Case, App., p. 566) 



give notice to all His Majesty's subjects being in or resorting to the 

 said ports, that they are not to interrupt in any manner the afore- 

 said fishery so as aforesaid allowed to be carried on by the inhabitants 

 of the said United States in common with His Majesty's subjects. 



This Order-in-Council, it is argued, shows (United States Case, 

 p. 73)- 



that, in the opinion of those who were responsible for making the 

 treaty and were thoroughly familiar with its purpose and meaning, 

 the appropriate regulations to be adopted for giving effect to the 

 fishing liberty which the American fishermen had in common with 

 British subjects under the treaty, were regulations requiring British 

 subjects " not to interrupt in any manner the aforesaid fishery so as 

 aforesaid allowed to be carried on by the inhabitants of the said 

 United States." 



This argument overlooks the fact that the Order-in-Council was 

 not one creative of regulations at all, but one of instructions to the 



Governor of Newfoundland requiring him to conform his 

 30 actions to the treaty, and to give notice to others to do the 



like. The statute conferred two powers on His Majesty in 

 Council : 



1. To make such regulations, &c. 

 and 



2. To give such directions, orders and instructions to the Governor 

 of Newfoundland, &c. 



It was in pursuance of the second of these provisions, and not of 

 the first, that the Order-in-Council was issued. 



In further support of the United States contention, the British 

 Order-in-Council of the 9th September, 1907, is referred to, accom- 

 panied by the remark that (United States Case, p. 74) 



It is. therefore, of interest in this connection to find that here 

 again, as before, the regulations made by this Order-in-Council ap- 

 plied to British subjects and not to American fishermen, and were 

 designed to prevent British subjects from interfering with American 

 fishermen, and that the authority for adopting such regulations was 

 stated by the terms of the order to be the Act of June 14, 1819. 



