494 APPENDIX 



(c) Equitable and fair as between local fishermen and the inhabitants of the United 

 States exercising the said treaty liberty, and not so framed as to give unfairly an 

 advantage to the former over the latter class. 



It is contended on the part of the United States that the exercise of such liberty is 

 not subject to limitations or restraints by Great Britain, Canada, or Newfoundland 

 in the form of municipal laws, ordinances, or regulations in respect of (i) the hours, 

 days, or seasons when the inhabitants of the United States may take fish on the treaty 

 coasts, or (2) the method, means, and implements used by them in taking fish or in 

 carrying on fishing operations on such coasts, or (3) any other limitations or restraints 

 of similar character — 



(a) Unless they are appropriate and necessary for the protection and preservation 

 of the common rights in such fisheries and the exercise thereof; and 



(6) Unless they are reasonable in themselves and fair as between local fishermen 

 and fishermen coming from the United States, and not so framed as to give an advan- 

 tage to the former over the latter class; and 



(c) Unless their appropriateness, necessity, reasonableness, and fairness be deter- 

 mined by the United States and Great Britain by common accord and the United 

 States concurs in their enforcement. 



Question I, thus submitted to the Tribunal, resolves itself into two main con- 

 tentions: 



ist. Whether the right of regulating reasonably the liberties conferred by the 

 Treaty of 1818 resides in Great Britain; 



2nd. And, if such right does so exist, whether such reasonable exercise of the right 

 is permitted to Great Britain without the accord and concurrence of the United States. 



The Treaty of 1818 contains no explicit disposition in regard to the right of reg- 

 ulation, reasonable or otherwise; it neither reserves that right in express terms, nor 

 refers to it in any way. It is therefore incumbent on this Tribunal to answer the 

 two questions above indicated by interpreting the general terms of Article I of the 

 Treaty, and more especially the words "the inhabitants of the United States shall 

 have, forever, in common with the subjects of His Britannic Majesty, the liberty 

 to take fish of every kind." This interpretation must be conformable to the 

 general import of the instrument, the general intention of the parties to it, the sub- 

 ject matter of the contract, the expressions actually used and the evidence submitted. 



Now in regard to the preliminary question as to whether the right of reasonable 

 regulation resides in Great Britain: 



Considering that the right to regulate the liberties conferred by the Treaty of 1818 

 is an attribute of sovereignty, and as such must be held to reside in the territorial 

 sovereign, unless the contrary be provided; and considering that one of the essential 

 elements of sovereignty is that it is to be exercised within territorial limits, and that, 

 failing proof to the contrary, the territory is coterminous with the Sovereignty, it 

 follows that the burden of the assertion involved in the contention of the United 

 States (viz. that the right to regulate does not reside independently in Great Britain, 

 the territorial Sovereign) must fall on the United States. And for the purpose 

 of sustaining this burden, the United States have put forward the following series 

 of propositions, each one of which must be singly considered. 



It is contended by the United States: 



(i) That the French right of fishery under the treaty of 1713 designated also as a 

 , liberty, was never subjected to regulation by Great Britain, and therefore the inference 

 is warranted that the American liberties of fishery are similarly exempted. 



