1608 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



then there is to be no regulation on the Newfoundland coast, because 

 it is analogous to a " common sea " where regulation of course would 

 be ultra vires of any Power at all. 



Then, what is the situation at which we have arrived so far? 



THE PRESIDENT: Please, Mr. Attorney -General, is not the expres- 

 sion " common sea " in this connection rather to be understood as a 

 sea common to the British and French ? 



SIR W. ROBSON : I think it is used in reference to that argument, as 

 something mpre than common to British and French, or under juris- 

 diction of British and French. I do not think it means that. I think 

 it meant there "common" in the sense that neither patty has juris- 

 diction over the other. However, that is the sense in which Mr. Root 

 is using it. Mr. Root is there dealing with the question of jurisdic- 

 tion, and he says, " I. call this sea a common sea." What is the good 

 of his calling it a common sea unless he means a sea in which there is 

 not. the jurisdiction for which you are contending? It is open, how- 

 ever, to either meaning. I guarded myself by saying I did not quite 

 know what meaning Mr. Root might attach to it when he comes to 

 deal with it; but taking it in its context, and having regard to the 

 point to which he is directing his observation, it seems to me " com- 

 mon sea " meant a sea clear of the regulation which you are now 

 claiming to put upon it. 



THE PRESIDENT : I understood from Mr. Root's letter it was referred 

 to in the sense of a sea common to British and American regulation ; 

 that in the one case the regulations were to be made in common by 

 France and Great Britain, and in this case the regulations were to be 

 made in common by Great Britain and the United States; but of 

 course it is open to your construction. 



SIR W. ROBSON : The words of Lord Derby are : "Analogous to a 

 common sea." He dealt with the words " common sea '' as an abstract 

 term. He was likening this sea to a common sea, so that ap- 

 973 parently one construction that might be put upon the words 

 is that he was limiting it to a sea where regulation would be 

 inapplicable. However, that is a merely verbal criticism, and of 

 course I will accept directly any construction Mr. Root puts upon his 

 words, generally clear enough, and I am bound to say, if they are not 

 clear in this instance, it will be the first. I think they were a little 

 too clear, however, for Mr. Turner and Mr. Warren, who dealt with 

 them later on. They find statements which cannot be avoided or 

 explained away, but have to be boldly met. 



The point, therefore, which I have reached in my argument now. 

 comes to this regulation is a vital necessity. It must have been 

 present to the minds of the framers of the treaty. They must have 

 intended to deal with it. I say they dealt with it by leaving the 

 power of regulation where it was. 



