ARGUMENT OF SIR WILLIAM ROBSON. 1923 



bound to give us, under that finding, the privileges of buying bait." 

 In other words, they want to use the finding that they hope they will 

 get on this question in order to defeat the Bait Act, which is a per- 

 fectly legitimate act of sovereignty on the part of Newfoundland. 

 But it is to be used in that way, as Mr. Elder intimated very clearly. 

 He said : Of course, if, notwithstanding such a finding as he asked, 

 Newfoundland still refuses to give the privileges, then the United 

 States would have to consider what measures they would take ; which 

 was language, of course, moderately and cautiously expressed, but 

 nobody could fail to detect in it a tone which was not unlike that of 

 menace to Newfoundland. 



Now I say that they are not entitled to have an answer to use in 

 any such waj 7 . They are entitled to have this question strictly con- 

 strued. And when one looks at the question he sees that the burden 

 of proof is cast on them, and they have to prove what their title is. 

 They do not do it; they show no title whatever. On the contrary, 

 they want an answer to the question founded upon a question which 

 is not put here at all, namely: Is there anything in the treaty to 

 disentitle them? If the question had been put in that way, I can 

 well imagine whoever acted for England in the transaction, the 

 English agent, saying at once " Why, nobody pretends that the treaty 

 forbids commercial privileges. Why do you put such a question as 

 that ? " That was not the question suggested to the British agent : 

 it is not the question now put before the Tribunal. But it is the 

 question Mr. Elder wants to ask, and the question that the United 

 States want to ask, because they say : " The real meaning of the ques- 

 tion is whether or not anything in the treaty justifies Great Britain 

 in discriminating against the use by the inhabitants of the United 

 States of the same vessel for trading and fishing purposes? " Why 

 did not they ask that question ? They do not ask it. The treaty does 

 not deal with the mater : it is completely outside it. It gives one right, 

 and the other rights, if they exist which they do not are given by 

 other documents. They exist not as a right. There is no title in the 

 United States to have trading rights under the Order-in-Council ; 

 not the slightest title. That is not their title to have rights. The 

 Order-in-Council does not give them the slightest right: it simply 

 refrains from imposing a barrier. No American could bring an action 

 against the British Crown because it did not give effect to its own 

 Order-in-Council. A right and title means something upon which 

 you can sue, something that you can enforce by a properly framed 

 action in the appropriate court. The Order-in-Council gives no 

 such right. There is absolutely no title here at all ; and if they want 

 to get an affirmative answer, they cannot do it, without showing a 



