82 FISHERIES ARBITRATION AT THE HAGUE 



upon the interpretation of the treaty of 1818 and the effect and 

 application of the award of this Tribunal. Suppose this Tribunal 

 makes an award which affirms the contention of Great Britain here, 

 that is to say, that the treaty grant is subject to the sovereign 

 power of municipal legislation. What is the new Tribunal going 

 to say when that power has been exercised ? That is the award. 

 That is the law for the parties. It has been the exercise of a sov- 

 ereign power that we are subject to. Suppose you add that it 

 must be reasonable, and that is for the Tribunal to determine. 

 Then we have got to prove that there has been an abuse of the 

 discretion. We have got to make a proof of the negative. Instead 

 of the United States going upon the treaty coast to exercise a Hberty 

 granted in 18 18 as it had been exercised time out of mind, as it 

 was exercised without interference for half a century after the treaty 

 of 18 18, and meeting an assertion that now the exercise of that 

 Uberty ought to be restricted, an assertion that there is good reason 

 for restricting it in time or in manner, and the establishment of 

 that to somebody's satisfaction, the United States must go to this 

 Tribunal and prove that there was not any reason for restricting — 

 a very difficult thing to do; in a majority of cases quite impossible 

 to prove that there is no occasion. It is a complete reversal of the 

 rights. Our rights are to be our rights as granted; and if there 

 were anjrwhere a right to change them, the burden of justifying, 

 giving grounds, reasons for the change, should be upon the person 

 who proposes to change them. If the British theory is maintained 

 by your award, there is a complete reversal, and we have got to 

 make the negative proof. Our right as it was originally granted 

 and originally exercised is to be assumed to be all wrong, and 

 a different situation and a different method is to be assumed 

 to be right, and we are to disprove it. I do not know whether 

 anybody can prove that a limitation against the use of purse 

 seines ought to be imposed or not, and I do not know whether 

 anybody can prove that the limitation against the use of purse 

 seines is unreasonable or not; but I do know that there is an 

 immense difference between having somebody else prove it to be 

 necessary and having yourself to prove that it is unnecessary; 

 and in the majority of cases that difference of the burden of proof 

 would probably be controlUng. 



