ARGUMENT OP JOHN S. EWABT. 1439 



tates the admission that regulations existing prior to the treaty would 

 be binding upon United States fishermen. The only question re- 

 maining would be whether there is any difference between prior reg- 

 ulations and subsequent regulations. Upon that point I do not think 

 that I can do better than refer to Mr. Evarts' argument at p. 284 of 

 the British Case Appendix, in which he contends most strongly, and 

 in a passage that received the commendation of Senator Turner, 

 that there can be no difference between prior regulations and subse- 

 quent regulations. The passage has been already read to the Tri- 

 bunal, and it is not necessary that I should read it again. 



We therefore have this extraordinary situation, that the only two 

 men in the United States that have ever, on the part of the United 

 States, disputed the right of British legislatures to frame regula- 

 tions binding upon United States citizens are Mr. Evarts and Mr. 

 Root; and that if we combine the opinions of these two men the 

 British view is established. For Mr. Root seems to admit that, as to 

 prior regulations, the United States fishermen would be bound, and 

 Mr. Evarts' argument is that there can be no difference between prior 

 and subsequent regulations. 



The point to which we must always come back is, no doubt, the 

 construction of the treaty, and the question is whether the liberty 

 to fish implies an abandonment of the sovereign power to regulate. 

 And as some assistance to the construction of the treaty I wish to 

 refer to an article in the United States Constitution which provides 

 that no State shall pass any law impairing the obligation of con- 

 tracts. I wish to point out what has been the course of decision with 

 reference to that clause in the Constitution: "No State shall pass 

 any law impairing the obligation of contracts." Does that mean that 

 contracts cannot be affected in any way by United States legislation, 

 or is there some more modified meaning to be attached to it? 



At a very early stage of American judicial decision, it was held 

 that the clause related not only to contracts between individuals, but 

 to charters granted by State legislatures to companies that those 

 charters were actually contracts as between the State and the com- 

 pany that was incorporated by the charter. The clause of the con- 

 stitution, therefore, applied to those contracts, and constituted a pro- 

 hibition as against any legislation which should impair the charters 

 of corporations. 



Many cases have been decided with relation to that question. The 

 principle to be applied has, I think, now been sufficiently clearly estab- 

 lished; but the application of that principle is of constantly recur- 

 ring difficulty. I cannot do better, I think, than read some passages 

 from Cooley on limitations, one of the standard works in the 

 United States, as to what the effect of the decisions has been. At 

 92909 S. Doc. 870, 61-3, vol 10 35 



