makes the regulations is the sole judge of their reasonableness measured by the prescribed standards."

And, thirdly, to the argument that every regulation, however necessary from a public or preservative standpoint, must of necessity be regarded as an impairment of the obligation of the contract which created the liberty.

It may be that, in this department of law, as in so many others, difficulties may arise in the application of principles in determining satisfactorily upon which side of the line a particular case falls; but that, as I submit, is no reason whatever for declaring that there is no distinction at all between regulations which impair treaty rights, and regulations which are necessary for the prolongation of the enjoyment of those rights. And I should like to submit to the consideration of the Tribunal the language which I have read upon p. 577 of Cooley, that the powers which can be justified on this specified ground "can be such only as are so clearly necessary to the safety, comfort, and well-being of society, or so imperatively required by the public necessity as to lead to the rational and satisfactory conclusion that the framers of the Constitution ".

I would substitute "negotiators of the treaty"—

"could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it."

The United States contends that it has a right to exercise sovereign powers in Canadian and Newfoundland territory. Upon such a question, Sirs, Canada and Newfoundland are just as sensitive as would be Maine or Massachusetts, if Great Britain were advancing a similar claim with reference to United States territory. It was the aspiration of freedom to control their own affairs that fired the hearts of the revolutionary patriots. Canada has acquired, more slowly than the United States, complete legislative control over her own affairs, but she has obtained it, and she may be forgiven if, as she emerges from subordination to the Colonial Office, she objects to enter upon subjection, even in one particular, to the United States. Mr. Roosevelt, in a recent address at Christiania, said:

"But all really civilised communities should have effective arbitration treaties among themselves. I believe that these treaties can cover almost all questions liable to arise between such nations-I ask you to weigh each word, as I am purposely phrasing this with great care so that I shall not appear to be advocating what is impossible-if they are drawn with explicit agreement that each contracting party will respect the other's territory and its absolute sovereignty within that territory, and the equally explicit agreement that (aside from the very rare cases where the nation's honour is vitally concerned) all other possible subjects of controversy will be submitted to arbitration."

In closing my remarks, Sirs, I venture to associate myself with Mr. Roosevelt's language, and to express my agreement with both the inclusive and exclusive limit which he assigned to arbitration treaties. Probably it would be quite impossible to prevail upon the United States to agree to submit a question touching its sovereignty to any tribunal, however august. That Canada and Newfoundland have assented to the submission of the present question to The Hague Tribunal must be taken as an expression, not only of their desire to further the cause of international arbitration, but of their great confidence in the integrity and ability of the eminent men who have been asked to adjudicate upon a matter so vitally associated with their dignity and their self-respect.

I cannot, Sirs, take my seat without giving expression to my most sincere acknowledgment of the patience, attention, and courtesy with which the members of the Tribunal have listened to what, I am afraid, has been a very imperfect presentation of the views of the British Government in connection with the important matters comprised in the questions submitted to this Tribunal.

[Thereupon, at 12.20 o'clock p. m., the Tribunal took a recess until 2.15 o'clock p. m.]

872

AFTERNOON SESSION, TUESDAY, JULY 19, 1910, 2.15 P. M.

THE PRESIDENT: I will ask the Secretary-General to read a communication.

THE SECRETARY-GENERAL: In pursuance of the provisions of article 2 of the special agreement of the 27th January, 1909, both parties have called the attention of the Tribunal to different legislative and executive acts of the other party, for the purpose of asking the Tribunal to point out in what respects, if any, they are inconsistent with the true interpretation of the treaty. Without in any way expressing an opinion on any of the questions submitted to us, we believe that it would facilitate our work and expedite the final disposition of this case if the parties supplied us with a detailed statement of the particular provisions of the statutes and regulations to which they object, accompanied by an exposition of the grounds of such objection. The objections of each party to be communicated to the other. The objections should be made known to the Tribunal and the adverse party within one week from this day, and the answer of the adverse party within one week thereafter, so that the Tribunal, before taking the questions submitted under advisement, may have the benefit of a complete statement of the objections from each party, with such answer as the other party may desire to make. In addition to the written objections, the Tribunal would be pleased to receive such further oral statements as either party may choose to make.

If the counsel of the respective parties desire to submit to the Tribunal, either orally or in writing, any view or suggestions in regard to the subject-matter of article 4 of the Special Agreement, they will be heard or received at the convenience of counsel.

THE PRESIDENT: Now, Mr. Elder, may I ask you to address the Court?

ARGUMENT OF THE HONORABLE SAMUEL J. ELDER ON BEHALF OF THE UNITED STATES.

Mr. President and Gentlemen of the Tribunal:

At the opening of the Argument for Great Britain, Sir Robert Finlay took occasion to express his personal satisfaction in the fact that the Tribunal would, at the end, have the advantage of hearing the Attorney-General of Great Britain. In heartily concurring, on behalf of my associates and myself, in that sentiment, I cannot refrain from expressing my own deep gratification, as well as that of my associates (and, I am confident, that of the Tribunal), in the knowledge that the Tribunal will also have the advantage, at the close, of hearing, on behalf of the United States, the distinguished Senator from New York, and former Secretary of State of the United States, who had so large a share in the diplomatic debate of many questions. now before the Tribunal, and who has been so largely instrumental in bringing about, not only this arbitration, but in advancing the cause of determination by arbitration of international disputes throughout the world.

It is oftentimes interesting and instructive to see how it comes about that parties are in court litigating their grievances; how it happens that they, or their friends for them, could not reach an agreement outside of the arbitrament of the law.

It is oftentimes most seriously to be studied how nations came to fail to compose their differences, and had resort in the old times solely to war, but in the new time-and, as we believe, the better time that is coming to such an arbitration as this.

Therefore we inquire with regard to this arbitration, How did it happen that Great Britain and the United States could not adjust by diplomacy the controversy that had in part existed for many years and in part for a very short length of time?

Was there irritated feeling between the two countries? Were they on the verge of war? Were both sides excited and belligerent? Not in the slightest degree.

There never had been a time when the two great Anglo-Saxon peoples had been more in accord and more in the spirit of friendship. It was "the piping times of peace " between the two countries, and, quoting Richard, we can say that neither side shared Richard's feel

ing, that he preferred the furrowed front of war. Everything was peace between the two. And so with our great neighbour and 873 friend on the north. The times were those of perfect peace,

and had been for many years. We were proud of the enormous advancement they were making. We looked askance a little at the tens of thousands of our people who were going across the border to help them build up that great northern Empire. But there was only a feeling of generous rivalry, and in regard to the whole of the fishery question, from 1888 on there had been absolute peace, under a simple system of licenses.

And as to Newfoundland, we were in absolute peace with their people. They were our co-labourers in the same field. Tens of thousands of the dollars of the United States went every year to the people of Newfoundland. They worked with us and we with them. They were our friends. How was it, then, that an arbitration, so formal and so important as this, should have become necessary?

I think I am not under-stating it, or over-stating it, whichever it may be, when I say that it was due to one man, and one man alone, that this present arbitration-at least at this time-became necessary. That man was the Premier of Newfoundland. He had sought diligently and earnestly to bring about a reciprocity treaty between his country and ours. There had been an agreement in 1891 which, as will later appear, Canada had prevented from being accepted. There had been another agreement in 1902-the Bond-Hay Treaty, as I think he commonly called it; we commonly speak of it as the HayBond Treaty and that remained in abeyance. It was, as he said, held up in the Senate of the United States for a couple of years. And then trouble began.

In 1904, while this matter was still pending before the United States Senate, a fishing-vessel of the United States, just as the ice was closing in, left the Bay of Islands without a clearance. She went down to Wood Island, which is at the mouth of the Bay of Islands, expecting to find a revenue cutter there, to get a clearance. Failing to find it, she, under orders from her owners not to get caught in the ice, as the captain had once before done, sailed away for Gloucester, and on his return he was haled before the courts and fined 200 dollars. That was one of the first, perhaps the first instance, in which United States vessels had ever been proceeded against on the Treaty Coast. But that was far from being the end of the story.

In 1905, in April, there was brought in the Foreign Fishing Vessels Act of that year, by this Premier. I shall go at some length into that, but need not do more than mention it now. I need not attempt to prove that it was not intended solely in the interest of the fisheries, because the distinguished representative of Newfoundland, Sir James

Winter, told us in reply to an inquiry that it was: "Purely retaliatory fiscal legislation. One country legislating against another upon purely commercial matters." Retaliatory of what, Sir? Had there beeen legislation in the United States against Newfoundland or against its inhabitants? Were they precluded from service with us? Were they in any way hampered? Not at all. It was an attempt to compel the United States to change its fiscal policy. It was an attempt to compel the United States to abandon, so far as Newfoundland was concerned, its protective tariff.

I hold, of course, no brief here for the protective tariff. It is not a subject to be discussed before this Tribunal, or upon this occasion. It is enough to say that it had been, for half a century, almost continuously the policy of the United States, its fiscal policy, under which, as many believe, the majority believe, its prosperity had largely arisen. Its friends and advocates will point to the figures of the valuation in 1850, seven billions of money, and in 1909 one hundred and seventeen billions of money. They say that a large part of that fiscal policy had been its protective tariff. Whether right or wrong, whether wise or foolish, it was the fiscal policy of the United States, and it was that which the Premier of Newfoundland openly insisted upon having changed, and this Foreign Fishing Vessels Act was brought in for the purpose of compelling the United States Senate to ratify this treaty with Newfoundland.

I do not purpose, and need not at this moment go at any considerable length into the questions which there arose. The contest ran through 1905, 1906, and 1907, leading all the way up to this arbitration. Not that the Premier of Newfoundland was advocating arbitration. It was farthest from his desire that arbitration should be brought about.

He made an expression with regard to it at one time. It was in the course of his speech, I think, in 1908, before the Colonial Conference. It is to be found in the Appendix to the Counter-Case of the United States, at p. 524. He said:

"We do not think it just that permission should be given by His Majesty's Government to a foreign Power to over-ride or con

874

travene the laws of the Colony, or that an understanding should be given to a foreign Power by His Majesty's Government not to sanction certain Colonial legislation.

"It has been suggested that the matters in dispute might properly be submitted to arbitration. I cannot see what there is to abritrate upon. To my mind, the only question is, as to the binding effect of Colonial laws upon American citizens when they come within British jurisdiction. If it is intended to submit the Treaty to arbitration, then I contend, that its terms are clear, that the privileges granted to the inhabitants of the United States thereunder are not set forth in language that is ambiguous. Vattel, probably the best authority upon the interpretation of treaties, says: