Ix INTRODUCTION 



must be carefully examined, because it is not to be presumed that Great 

 Britain accepted a form of submission which limited its rights, or that 

 British counsel in argument admitted a limitation upon British sover- 

 eignty without impelling reason, and without a belief that the concession 

 in each case was based upon legal principles which required such a con- 

 cession to be made. 



Great Britain may have been willing to consent to a form of sub- 

 mission which restricted it to the enactment of reasonable regulations, 

 because, notwithstanding theories of sovereignty, there was something 

 inherently incongruous in one party passing upon the reasonableness of 

 regulations when two parties were really interested in the subject- 

 matter of the regulations. Attention has already been called to this 

 phase of the question, and it may be dismissed without further comment. 



It may be that the failure to regulate the exercise of the French fish- 

 ing rights seemed to stand in the way of a claim to regulate a fishery 

 granted in similar terms. Or perhaps the failure to regulate American 

 fishing rights during a long period of years may have questioned the 

 wisdom of a claim more honored in its breach than in its observance. 

 Or finally, that certain principles of international law and practice may 

 have suggested the advisability of putting the claim to regulate upon 

 the lowest plane consistent with the possession and exercise of sov- 

 ereignty. It therefore seems advisable to examine each one of these 

 suppositions. 



First, as regards the similarity of the French and American fishing 

 rights. It will be recalled that the language of the Treaty of Utrecht 

 which guaranteed or secured to French subjects the right to dry fish 

 within specified portions of Newfoundland and to fish in Newfoundland 

 waters was very general. The expression used was that French sub- 

 jects "shall be allowed" to take, dry, and cure fish.* The Treaty of 

 1763, while confirming the article of the Treaty of Utrecht, used more 

 precise and technical language. French subjects were henceforth to 

 possess the right to fish within and to be excluded from certain waters 

 which to-day would be considered the high seas, and the indefinite 

 phrase "shall be allowed" was replaced by the technical expression 

 "shall have the liberty of fishing and drying." The term "liberty" 

 was appropriate to grant a right possessed by the Crown within British 

 jurisdiction. The Treaty of Versailles of 1783, while modifying the 

 limits within which the liberty should be exercised and annexing to the 



' Supposing that France was really sovereign of Newfoundland, the cession of the 

 Island to Great Britain extinguished its sovereignty, and the right to fish "allowed" 

 by Great Britain was a grant by the new sovereign, just as if Newfoundland had never 

 belonged to France. 



