054 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



and there were some small and subsidiary matters and difficulties 

 which presented themselves and which required agreement or regu- 

 lation, or arrangement between the parties, the good sense of the 

 nations on both sides, actuated by friendly and honourable feelings 

 towards each other, could be relied on to take care of them, and that 

 the parties would be able to agree upon these minor and subsidiary 

 matters. They did not stand, he said, in the way of the application 

 of the doctrine which he was contending for, and that under such a 

 treaty as this was supposed to be, where a nation had parted with 

 its control over these matters had parted with its sovereignty, had 

 divested itself of its sovereignty, so that it was not able to legislate 

 in reference to these small matters of detail, such matters of detail 

 would be provided for afterwards by the good sense of the parties 

 concerned. These were what I think he described by the word 

 " modalities." All I have to observe upon this subject is that this is 

 no modality in so far as the interests of the colony are concerned. 

 This is not a mere subsidiary and trifling matter of detail, 

 not provided for by treaty or arrangement, as to which the good 

 sense and comity of nations would make provision afterwards. This 

 is a vital matter which goes right down to the question of the very 

 existence, as we may call it, of the right, or privilege, or property 

 which is in question here. The regulation of the fisheries down on 

 the Newfoundland coast may be a very trifling thing indeed to the 

 United States; it may be a modality, or a triviality, or it may have 

 applied to it any other term that will mean insignificance. To the 

 people of Newfoundland it is not a modality and it is no trifle. 

 This question involving the right of the fishermen of the United 

 States to use purse seines in defiance of the opinion, in defiance 

 of the laws, and in defiance of the Legislature of Newfoundland, is 

 not a mere matter of modality. It is a matter affecting the most 

 vital interests of the colony. To return to the simile of the land 

 and to the subject of the servitude, this is not a mere servitude which 

 is in question in so far as the colony of Newfoundland is concerned. 

 This is the enjoyment by the United States of a servitude, and the 

 question is whether they shall be allowed to enjoy that servitude in 

 such a manner as to destroy not only the servitude itself, but the 

 very existence of the colony of Newfoundland from whom they get 

 this servitude or this privilege. On the subject of purse seines, my 

 attention has just been called by my associates to a further passage 

 in the report, at p. 195, of the Appendix to the Counter-Case on the 

 part of Great Britain, which I shall read to the Tribunal : 



" The United States Government realizing the disastrous falling 

 off on its coasts of the mackerel fishery, but being unable to directly 

 control or successfully prohibit the use of purse seines, to which 

 such falling off was attributed, passed an Act prohibiting the land- 



