1988 KORTH ATLANTIC COAST FISHERIES ARBITRATION. 



selves. And everything went merrily as a marriage bell until the 

 Government of Newfoundland undertook to close down, with its 

 purpose to use the trading right in order to affect our fiscal policy. 

 And when we came to the modus vicendi of 1906, Great Britain 

 and the United States agreed upon it, and on the suggestion coming 

 from fishermen, we put into the modus y or letter, or instrument con- 

 taining it, a clause that other arrangements might be made on the 

 coast I do not remember the exact words; but there was that per- 

 mission, that the local people might adjust matters; and they did: 

 they substituted a modus of their own for ours, and it went on. If 

 they can only be let alone, they will adjust the matter. Great Britain 

 did the same thing to France; in addition to giving her territory 

 in other parts of the world; she gave the right to purchase bait, the 

 ordinary trading right, adapted to the uses of fishermen. 



So there is no very serious burden, and no real cause for special 

 sympathy, except that the fishermen have a Government that cares 

 more about the interests of the St. John's traders than it does about 

 the interests of the fishermen. 



Where does all this leave us? The British theory of their right is, 

 as I have said over and over again, that the treaty grant is subject 

 to the implied reservation of the British right to legislate. That is 

 stated without any reserve. The obligation of reasonableness is not 

 an obligation of sovereignty. If their theory is correct, if the treaty 

 grant is subject to the right of legislation, it is subject to a right that 

 is under no obligation of reasonableness towards us. That is of the 

 essence of sovereignty itself to determine what is the policy to be 

 enacted into law. The policy of the empire is to find its expression 

 in the legislation of the empire, and all its legislative bodies. I need 

 not trouble the Tribunal with citations from the argument. Sir 

 Robert Finlay stated it at the outset : 



" Subjection to British legislative control was inherent in and 

 formed an essential part of the very subject-matter of the treaty." 



He said [p. 213] : 



" The right to make such regulations springs out of the sovereignty 

 which the British government retained over the coast and the terri- 

 torial waters." 



It is not because of anything that is found in the treaty that that 

 statement is made. It is because Great Britain is sovereign, and the 

 right to which our treaty grant is subject is the right of sovereignty. 

 Nothing that counsel can say here can impose a limit upon that right 

 of sovereignty. We know well what it is. 



I am laying aside now, for the moment, what is said in the state- 

 ment of the question about reasonableness. I am merely pursuing the 

 British argument, the theory upon which the argument is based, for 

 the purpose of testing the soundness of the proposition that the 



