Ixxx INTRODUCTION 



the extent of the right granted, Great Britain is incompetent to regulate 

 the exercise of the right with which it h^s parted. In this view of the 

 case the right to regulate would need to be reserved in order to be legal 

 and effectually exercised, whereas, by the British contention, the right 

 to regulate inherent in the sovereign would exist without express reser- 

 vation, although regulations inconsistent with the treaty would con- 

 stitute a breach, which should, however, be corrected by diplomatic 

 protest and negotiation. The American contention was forcibly ex- 

 pressed by Mr. Root, in his correspondence with Sir Edward Grey: 



"The Treaty of 1818 either declared or granted a perpetual right to the inhab- 

 itants of the United States which is beyond the sovereign power of England to destroy 

 or change. It is conceded that this right is, and forever must be, superior to any 

 inconsistent exercise of sovereignty within that territory. The existence of this right 

 is a qualification of British sovereignty within that territory. The limits of the rights 

 are not to be tested by referring to the general jurisdictional powers of Great Britain 

 in the territory, but the limits of those powers are to be tested by reference to the right 

 as defined in the instrument creating or declaring it. . . . An appeal to the general 

 jurisdiction of Great Britain over the territory is, therefore, a complete begging of the 

 question, which always must be, not whether the jurisdiction of the Colony authorizes 

 a law limiting the exercise of the Treaty right, but whether the terms of the grant 

 authorize it." ' 



And again: 



"The government of the United States fails to find in the Treaty any grant of right 

 to the makers of the Colonial law to interfere at all, whether reasonably or unreason- 

 ably, with the exercise of the American rights of fishery, or any right to determine 

 what would be a reasonable interference with the exercise of that American right if 

 there could be any interference." ^ 



The British view was forcibly stated by Sir Robert Finlay, who in 

 his argument before the Tribunal thus commented upon this passage: 



"I submit that that statement contains a curious inversion of the real question. 

 It is said that the United States fails to find any grant of a right to the colonies to 

 interfere in any way with the American rights of fishery. The question is whether 

 the treaty contains an abdication by Great Britain of the right which Great Britain 

 undoubtedly possessed as the Sovereign Power, to regulate these fisheries. It is not 

 a question of whether the United States granted to Great Britain the right to legislate 

 with regard to the fisheries in her own territory. The question is whether Great 

 Britain made a grant to the United States so extensive in its terms that it not merely 

 conveyed a share in the enjoyment of the fishery, but also a share in sovereignty, by 

 renouncing the right of Great Britain, as a Sovereign Power, to make laws within 

 her own territory, unless she obtained the consent of a foreign Government." ' 



In simplest terms the American contention was that Great Britain 



' Appendix, p. 456; Appendix, U. S. Case, p. 978; Appendix, British Case, p. 498. 

 ^ Appendix, U. S. Case, pp. 980-983. ' Oral Argument, Vol. I, p. 176. 



