QUESTION ONE. 25 



DIFFERENCE BETWEEN REGULATIONS PRIOR AND SUBSEQUENT 



TO TREATY. 



There are a few other points referred to in the Case and Counter- 

 Case of the United States on which it may be convenient to submit 

 some observations at the present stage. 



It is suggested that there is a distinction between regulations exist- 

 ing prior to 1818 and those made subsequently, and that American 

 fishermen are not subject to any regulations not in existence at the 

 date of the treaty. But it is submitted that it is quite impossible to 

 make any sound distinction of this kind. 



There is nothing specifically in the treaty relating either to the 

 one set of laws or the other. And the true question is, not whether the 

 grant in the treaty authorises the regulation of tha conduct of for- 

 eigners when they come within the treaty territory, but whether, 

 besides the grant of liberty to fish, there is also a grant of freedom 

 from all restraint, however reasonable whether the grant is, not one 

 of liberty to fish in a reasonable way, but a grant of unlicensed lib- 

 erty so to act as to destroy the fisheries to the prejudice of other per- 

 sons who have equal rights. 



As the conditions of the fishery changed, it must have been in- 

 tended that there should be power to frame suitable regulations. The 

 regulations existing in 1818 might be quite inapplicable to the state 

 of things existing fifty years afterwards. Can it be suggested that 

 old regulations applicable to cod fishing were to be obligatory on 

 American fishermen, and that new regulations necessitated by new 

 conditions, for instance the mackerel fishing, could not be made ? 



29 JOINT REGULATIONS. 



The United States Case calls attention to the various occasions 

 upon which the British Government invited the co-operation of the 

 United States in framing regulations for the coast-fisheries. The 

 fact that the British Government has been willing to consult with 

 the United States upon a subject which is of great moment to the 

 inhabitants of both countries, cannot, it is submitted, be fairly used 

 as casting any doubt on those sovereign rights which Great Britain 

 has never waived and has, whenever occasion arose, expressly as- 

 serted. The subject is dealt with in the British Counter-Case at 

 pages 33 to 36. 



FRENCH FISHING RIGHTS. 



In the Counter-Case of the United States an elaborate argument 

 has been presented based on an analogy alleged to exist between the 

 rights given to the inhabitants of the United States under the treaty 



