52 THE ARGUMENT OF THE UNITED STATES. 



These restrictions and regulations were to be confined to the 

 restrictive provisions of the treaty, and since they were specially 

 authorized by the treaty and did not involve the affirmative right 

 of the American fishermen, but referred to the non-treaty coasts 

 alone, the power of making them was reposed not alone in the 

 Crown, but was confided as well to the governor or person exercising 

 the office of governor in any part of His Majesty's dominions in 

 America. 



The King has had but one occasion since 1819 to recur to the power 

 vested in him alone by the act of 1819. That occasion arose in the 

 year 1907 when the contumacy of the Province of Newfoundland 

 compelled another order in council, securing to American fishermen 

 in spite of adverse provincial laws, the right to enjoy unmolested the 

 fishery in Newfoundland waters accorded to them by the treaty. 



The United States submits that this legislative and executive action 

 of Great Britain (not departed from for ninety years, and near the 

 end of that time again affirmed by King and council), coming so 

 soon after the execution of the treaty, was a construction by Great 

 Britain of the meaning of the treaty with respect to the making of 

 regulations, which demonstrates that it was not thought at that time 

 that power remained in the British Government to limit by regula- 

 tions the affirmative right of fishing. If any such power had been 

 thought to remain in the British Government the act of Parliament 

 would have authorized such regulations, and the power of making 

 them would have been reposed cumulatively in the Crown and in 

 the local officials as was done with reference to the regulations to be 

 made on the non-treaty coasts. This contemporaneous construction 

 of the treaty is completely destructive of Great Britain's contention 

 of the present day. 



The attempt is made in the British Counter Case to escape 

 from the force of this legislative and executive action of the 

 British Government, by distinguishing between " regulations," and 

 " directions, orders and instructions to the governor of Newfound- 

 land" etc., but the attempt is necessarily unsuccessful. The act of 

 Parliament used the terms regulations, and directions, orders and 

 instructions, as convertible terms. Both were to be authorized by 

 orders in council, and both were to be directed, not to regulations of 

 the fishery, but to carrying into effect the purposes of the treaty 



a U. S. Case, 74; Appendix, 11 G. 



