1538 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



statute of 1906. It is clearly claimed by Great Britain that these 

 statutes must be interpreted, and, as is now suggested, that is one 

 of the things they say here. 



Now I revert to the fact that the question of inhabitancy is the only 

 one that the Governments finally determined to submit, that is, that 

 no other disqualification than that of non-inhabitancy was submitted 

 under this question. You have the language of the question itself. 

 It clearly calls for a construction of the treaty : 



" Have the inhabitants of the United States, while exercising "- 



SIR CHARLES FITZPATRICK: I have found the reference, it is at p. 

 1017 of the Appendix to the Case of the United States and it is a 

 telegram dated the 7th September, 1907, from Lord Elgin to Governor 

 MacGregor. Also at p. 1015 there is another telegram. 



MR. ELDER: Again, you will note, Sir Charles, that the letter is 

 dated a year or two earlier than the agreement which was finally made 

 between these two countries for the submission. Referring to the 

 question, it is as follows: 



" Have the inhabitants of the United States, while exercising the lib- 

 erties referred to in said article " 



Clearly bringing the question to the treaty; it is the language of 

 the treaty and refers entirely to the treaty 



" a right to employ as members of the fishing crews of their vessels 

 persons not inhabitants of the United States ? " 



It is to be observed that the ground upon which the British Case 

 and on which Sir Robert Finlay puts this was not that it was included 

 in the question, but that the question arose at a time when there had 

 been discussion between the two countries with regard to the effect 

 of the Newfoundland statutes. Now, we submit with all respect 

 that that is no ground for considering a question which the parties 

 themselves finally did not put into their agreement and which does 

 not arise out of or from the agreement. The inference is exactly the 

 reverse of that, because they did not put in a single thing more. 



The statute of 1906 never was discussed between Mr. Root and 

 931 Sir Edward Grey, or between the two Governments, so that 



Great Britain, in this instance, finds itself in the position of 

 asking us to consider a statute that the parties themselves had not 

 considered. 



The British Case, at p. 59, proposes two questions for consideration 

 under the head " Conclusion " : 



" For these reasons His Majesty's Government contends: 

 "(1.) That article one means," &c. 



We agree that that is the question. Then it goes on to say : 



"(2.) That the Colonial legislatures and the Imperial Parliament 

 retain the power." .... 



