INTRODUCTION Ixxxi 



could not regulate the exercise of the right granted without a specific 

 reservation of the power to regulate its exercise, whereas Great Britain 

 maintained that the right to regulate the exercise of the right granted 

 remained in the grantor unless it was specifically renounced. In the 

 course of his oral argument, Mr. Root cited numerous commercial 

 treaties concluded by Great Britain and the United States in order to 

 show that when the grantor of the right wished to regulate the exercise 

 of a right within its jurisdiction, the grantor reserved by express words 

 the power so to regulate. The Tribunal, however, held that "the com- 

 mercial treaties contemplated did not admit foreigners to all and equal 

 rights, seeing that local legislation excluded them from many rights of 

 importance, e.g., that of holding land; the purport of the provisions in 

 question consequently was to preserve these discriminations;" ^ that 

 "no proof is furnished of similar exemptions of foreigners from local 

 legislation in default of treaty stipulations subjecting them thereto;" 

 and that "no such express provisions for the subjection of the nationals 

 of either Party to local law was made ... in this treaty.^ 



As the Treaty of 1783 and the Convention of 1818 are silent upon 

 this point, unless the expression "in common" be interpreted to mean 

 subjection of all fishermen to local legislation — which view the Tri- 

 bunal adopted — -it is necessary to consider whether in law or in the prac- 

 tice of nations, freedom from local regulation in the exercise of the grant 

 does not arise by necessary implication. Mr. Root laid before the Tri- 

 bunal an instance of express reservation in the matter of fisheries, which 

 not only supported the American contention, but which might well have 

 caused its acceptance.^ 



Reference is made to the treaty concluded by Austria-Hungary with 

 Italy in October, 1878, regarding the right of inhabitants of the King- 

 dom of Italy to fish within the Dalmatian waters. Dalmatia and the 

 northern portions of Italy had belonged to Austria, and Austrian subjects, 

 whether residing in Italy or in Austria proper, possessed the right to 

 fish in waters subject to Austrian jurisdiction. In this regard the situa- 

 tion was identical with the right of the colonies to fish in Newfoundland 

 waters, and the fishery was, it may be said in passing, a vessel fishery 

 from a distance, because Venetia, in which the fishermen resided, was 

 separated from Dalmatia by the waters of the Adriatic. In 1866 a 

 partition of empire followed, because Austria conveyed to the King- 

 dom of Italy the province of Venice, and Venetian fishermen desired to 

 share in the fishery, which, as subjects of Austria, they had enjoyed. 



^Appendix, p. 498; Oral Argument, p. 1442. ^Appendix, p. 4Qg; Oral Argument, p. 1443. 



' See page 58. 



