INTRODUCTION xxiii 



The American right to use certain prescribed portions of British 

 territory under the Treaty of 1783 and the Convention of 1818 would 

 likewise be an international servitude and has been recognized as such by 

 leading writers on international law. But as the right to use the shore 

 as distinguished from the territorial waters was not submitted to arbi- 

 tration it is unnecessary to consider the subject in detail. The right 

 granted to a nation to fish within the territorial waters of another na- 

 tion is regarded, if perpetual, as something more than a commercial 

 privilege. It is the renunciation of the sovereign right to exclude 

 foreigners from domestic waters and the right which the grantee takes 

 is necessarily the right which the grantor granted. Once granted 

 the grantor cannot prevent its exercise. The foreign fishermen enter 

 the specified waters by virtue of a permission from their own coun- 

 try, which is the grantee of the right, and the grantor cannot, without 

 violating the treaty stipulation, prevent their entrance. It would also 

 seem that the foreigner visiting the territorial waters for the purpose 

 specified in the grant — namely, that of fishing — is authorized by the 

 grant to fish, for that was the reason of the grant, and that no local regu- 

 lation should affect the alien in the exercise of his fishing right, unless the 

 treaty reserved the right so to regulate, or unless the grantee consents to 

 the regulation. To hold otherwise would mean that restrictions might 

 be imposed by the grantor upon the exercise of the fishery right, which 

 might prove burdensome or which might easily destroy it; for if the 

 sovereign retains the power, the sovereign is the judge of its exercise. 

 It is self-evident that the territorial sovereign may issue rules and regu- 

 lations binding upon its subjects in the exercise of their rights, but it 

 would seem that foreigners entering the fishing grounds by the per- 

 mission of their sovereign as the grantee are subject only to the rules 

 and regulations prescribed by the grantee from which they derive the 

 right to fish, and that the foreigners should be imaffected by local regu- 

 lation, imless the grantee of the right has either prescribed the rules and 

 regulations, or has consented to the rules and regulations proposed by 



"In spite of all precautions taken it may be said that in the course of the last century 

 hardly a year passed in which the exercise of our privilege was not the cause of complaints or 

 collisions. The population of Newfoundland, which in the beginning numbered hardly four 

 or five thousand souls, increased gradually to two hundred and ten thousand. In the 

 desire of the latter to develop the resources of their island the French shore presented itself 

 to them as closed to all progress; they could enjoy no benefits in a region in which they hoped 

 to find mines and soil favorable to agriculture, and which we ourselves could not utilize. 

 Thus hostile opinion began to arise against our privilege. The irresistible pressure of the 

 necessities of existence in an uninviting and hard cUmate weakened in an increasing measure 

 day by day the barriers of the ancient servitude ('servitudes anciennes') and in spite of 

 our constant protest the inhabitants of the island established themselves gradually along a 

 portion of the coveted shore." {Appendix pp. 301-304; Oral Argument, Vol. II, pp. 

 1425-1426-) 



