1388 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



MR. EWART : Our position is that regulations reasonably made for 

 the preservation of the fishery do not constitute a derogation from 

 the treaty, but are something which the negotiators of the treaty 

 would have contemplated. The point that I make at present is, that 

 if it be true that after the treaty our regulations could be made only 

 with the concurrence and consent of the United States, that is equiva- 

 lent to saying (under the conditions which existed at that time), 

 that there could have been no regulations at all; because practically 

 we could not have got the consent, even if they could have given it; 

 and under the Constitution as it was then, the difficulties of giving 

 it were sufficient to prevent its ever being given. 



I am meeting, the honourable Arbitrator will see, the second part 

 of the Argument of the United States now, and not dealing with 

 what is the effect of the treaty as to whether regulations could be 

 made, and whether those regulations would be in derogation of the 

 treaty or not. 



JUDGE GRAY : I was only trying to avoid a difficulty which seemed 

 to result from your mode of putting the question, that there could 

 be no regulation except with the concurrence of the United States, 

 that it was not in the power of the United States to place its own 

 citizens under the control of a foreign Government by such' concur- 

 rence, but, that the real situation was such as made necessary an 

 agreement or a modality in order to get any regulation at all, that 



was all. 



838 MR. EWART: I have been basing what I have said, to some 

 extent, upon the form of the question, the contention of the 

 United States being that the liberty granted by the treaty is not sub- 

 ject to limitations or restraints by Great Britain: 



(a.) Unless they are appropriate and necessary, and so on. 



(&.) Unless they are reasonable, and so on. 



(<?.) Unless their appropriateness, necessity, reasonableness, and 

 fairness be determined by the United States and Great Britain by 

 common accord, and the United States concurs in their enforcement. 



I was directing my remarks principally to this third branch of the 

 statement of the case of the United States. 



JUDGE GRAY: I think the form of the question might justify per- 

 haps something of your position in regard to it. At the same time, 

 I asked you whether the whole thing does not boil down to this, that 

 the treaty of 1818 left this liberty of the grantor in the hands of the 

 grantee in such a complete shape that there could be no derogation 

 from it by regulations that were reasonable or unreasonable, in the 

 opinion of the grantor, and that therefore, if you wanted to modify, 

 or change, or regulate, or control in any manner, there was an abso- 

 lute necessity that there should be some agreement between the two 

 parties to the treaty ? What form that should take would be a matter 

 for them to agree upon. 



